A federal judge from the Southern District of New York has granted the New York City Department of Education’s (DOE) motion to dismiss a lawsuit brought by an athletic director, who claimed wrongful termination.
Plaintiff John Micillo began his employment with the DOE as a teacher in 1995 and subsequently received tenure. Micillo then became an assistant principal and achieved tenure for that role in 2007.
On October 25, 2012, Micillo was named athletic director at the Canarsie Educational Campus in Brooklyn, New York. One of his responsibilities was to collect and submit payroll for the coaches.
On November 16, 2012, Micillo received completed timecards and time sheets for three football coaches, including the head football coach, for the period ending November 15, 2012. After reviewing the cards, Micillo claimed that he noticed all three were identical. Micillo then reviewed the timecards for the three football coaches for the previous period ending October 31, 2012. Micillo saw that those cards were also identical. That same day, November 16, 2012, Micillo informed his principal, Joseph Scarmato, and another principal on the campus, Adaleza Michalena, that he believed the football coaches were engaging in timecard fraud and that the head coach was punching in and out for all three coaches. Micillo claimed that Principal Michalena told him that he should not do anything about his discovery other than speak to the coaches to institute new procedures that would make it more difficult for the fraud to occur in the future.
Thereafter, Micillo claimed he was treated coldly by the principals and the head football coach.
On November 26, 2012, Micillo was informed that he was fired. Allegedly, no reason was given for his termination.
Micillo sued, alleging a violation of 42 U.S.C. § 1983. To establish a claim under section 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such rights occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Section 1983 does not in and of itself create any substantive rights; rather, a plaintiff bringing a section 1983 claim must demonstrate a violation of an independent federal Constitutional or statutory right. See Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617-618, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979). Here, Micillo alleges that the DOE terminated his employment because he exercised his First Amendment rights. To state a First Amendment retaliation claim, a public employee must allege “that he has engaged in protected First Amendment activity, he suffered an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action.” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (quoting Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007)); accord Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011).
The judge in the instant case noted that “it is well settled that ‘public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.’ Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006) Thus, in order to determine whether the speech at issue is protected by the First Amendment, the court must determine, first, ‘whether the employee spoke as a citizen on a matter of public concern,’ and if so, ‘whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.’ Id. at 418.”
Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. Similar to that case, the court found that Micillo’s speech was tied to his “professional responsibilities.”
John Micillo v. New York City Department of Education; S.D.N.Y.; 14 Civ. 00943 (LAK) (GWG), 2015 U.S. Dist. LEXIS 12321; 2/2/15
Attorneys of Record: (for plaintiff) Christine Ann Palmieri, Liddle & Robinson, LLP, New York, NY, USA. (for defendant) Daniel J. Larose, LEAD ATTORNEY, NYC Law Dept., New York, NY, USA; Grace Diane Kim, LEAD ATTORNEY, New York City Law Department, New York, NY, USA.
