16-2557
Hughes v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 21st day of February, two thousand seventeen.
4
5 PRESENT:
6 PIERRE N. LEVAL,
7 GUIDO CALABRESI,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _________________________________________
11
12 EVERETT HUGHES,
13
14 Plaintiff-Appellant,
15
16 v. No. 16-2557
17
18 CITY OF NEW YORK, BOARD OF EDUCATION OF THE
19 CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK
20 dba PANEL FOR EDUCATIONAL POLICY, NEW YORK
21 CITY DEPARTMENT OF EDUCATION, NEW YORK CITY
22 COMMUNITY SCHOOL DISTRICT 19, CARMEN FARIÑA,
23 individually and in her Capacity as Chancellor of the
24 New York City Department of Education, JOYCE
25 STALLINGS-HARTE, individually and in her Capacity as
26 Superintendent for New York City Community School
27 District 19,
28
29 Defendants-Appellees.
30 _________________________________________
1 FOR APPELLANT: JOSHUA MOSKOVITZ, Beldock Levine &
2 Hoffman LLP, New York, NY.
3
4 FOR APPELLEES: ERIC LEE (Deborah A. Brenner, on the
5 brief), for Zachary W. Carter, Corporation
6 Counsel of the City of New York, New
7 York, NY.
8
9 Appeal from a judgment of the United States District Court for the Eastern District
10 of New York (Donnelly, J.).
11 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
12 ADJUDGED, AND DECREED that the judgment entered by the District Court on June
13 24, 2016, is AFFIRMED IN PART and REVERSED IN PART, and the cause is
14 REMANDED for further proceedings consistent with this order.
15 Plaintiff Everett Hughes brings this § 1983 action against defendants the City of New
16 York, the Board of Education of the City School District of the City of New York, the New
17 York City Department of Education, the New York City Community School District 19,
18 Chancellor Carmen Fariña, and Superintendent Joyce Stallings-Harte. Hughes, who worked
19 for the Center for Educational Innovation (“CEI”), a non-profit which did contract work
20 for the City schools, alleged that the defendants violated his constitutional rights by banning
21 him from working in the schools, thereby causing his employer to terminate his
22 employment. Hughes appeals the District Court’s grant of defendants’ motion to dismiss the
23 complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the
24 parties’ familiarity with the underlying facts and the procedural history of the case, to which
25 we refer only as necessary to explain our decision to affirm in part and reverse in part.
26 We review a district court’s dismissal under Rule 12(b)(6) de novo, accepting as true all
27 factual allegations in the complaint and drawing all reasonable inferences in the plaintiff’s
28 favor. Segarra v. Fed. Reserve Bank of N.Y., 802 F.3d 409, 411 (2d Cir. 2015) (per curiam). “To
29 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
30 true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
31 (2009) (internal quotation marks omitted). “Threadbare recitals of the elements of a cause of
2
1 action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v.
2 Twombly, 550 U.S. 544, 555 (2007)).
3 Hughes first argues that the District Court erred in dismissing his Fourteenth
4 Amendment due process claim because the complaint adequately alleged a deprivation of his
5 liberty interests without due process, often referred to as a “stigma-plus” claim. See Segal v.
6 City of New York, 459 F.3d 207, 212 (2d Cir. 2006). Even if Hughes adequately alleged a
7 deprivation of his liberty, however, we agree with the District Court that, as in Segal, a post-
8 deprivation name-clearing hearing was sufficient to satisfy due process. Id. at 214. Because
9 Hughes could have challenged Chancellor Fariña’s ban in a state court proceeding brought
10 under Article 78 of the New York Civil Practice Law and Rules, his stigma-plus claim fails.
11 Hughes also argues that the District Court erred in dismissing his First Amendment
12 retaliation claim because his termination and his ban from the City schools were motivated
13 by Chancellor Fariña’s mistaken belief that he organized a demonstration at Intermediate
14 School (“I.S.”) 292. As the Supreme Court recently recognized, a First Amendment
15 retaliation claim may be based on a “perceived” association, rather than an actual protected
16 association. See Heffernan v. City of Patterson, 136 S. Ct. 1412, 1417-19 (2016). Hughes’s
17 complaint alleges that Chancellor Fariña banned him from working in the City schools
18 because she mistakenly believed he “orchestrated the demonstration at I.S. 292, caused ‘a
19 riot,’ and led a group of people who damaged Superintendent Stallings-Harte’s car.”1 Joint
20 Appendix at 16. Drawing all reasonable inferences in Hughes’s favor, we conclude that these
21 allegations are sufficient to state a plausible claim that defendants retaliated against Hughes
22 because they perceived that he was engaged in protected associational activities. The District
1 Counsel for the defendants argued in their brief that there could be no First Amendment liability because
the plaintiff’s conduct, as described in the complaint, consisted of incitement to riot and therefore was not
protected speech under the First Amendment. In support of this argument, the brief stated, “According to
Hughes’s complaint, Fariña took action against him because she thought that . . . he had organized a riot on
school grounds and led others to damage the superintendent’s car.” Appellees’ Br. 30 (emphasis added). As is
apparent, this paraphrase seriously distorted the complaint’s allegations that the Chancellor had been told that
Hughes had “orchestrated a demonstration” [not “a riot”], “caused a riot” [not “organized” a riot], and “led a group
of people who damaged” the Superintendent’s car [not “led others to damage” the Superintendent’s car]. We have
no knowledge whether this distortion was attributable to mere carelessness or an intention to mislead the
court. In either case, the ABA’s Canon of Ethics 22 and Model Rule of Professional Conduct 1.1 appear
pertinent.
3
1 Court believed that plaintiff failed to state an actionable claim because he was present at the
2 site of the demonstration at the behest of his employer, and therefore, under Garcetti v.
3 Ceballos, 547 U.S. 410, 421 (2006), was acting “pursuant to [his] official duties,” and so was
4 not “speaking as [a] citizen[] for First Amendment purposes.” We disagree. The mere fact
5 that he was present at the demonstration because his employer assigned him to be there to
6 observe does not compel the conclusion that any speech he engaged in related to the
7 demonstration was pursuant to his employment duties. Hughes has therefore sufficiently
8 alleged a First Amendment retaliation claim, and the District Court erred in this regard.
9 We reverse the District Court’s dismissal of Hughes’s First Amendment claim; the
10 claim may proceed against all defendants. As to the individual defendants, a determination of
11 qualified immunity is not appropriate at this stage of the litigation. As to the department
12 defendants, neither party has pressed the concern articulated, but not relied upon, by the
13 District Court—that the department defendants do not have legal identities separate and
14 apart from the municipality—and we therefore decline to consider it. Finally, as to the
15 municipal defendant, defendants’ counsel conceded at oral argument that the District
16 Court’s dismissal under Monell was inappropriate because, according to the complaint, it was
17 Chancellor Fariña who made the decision to ban the plaintiff from the City schools, and, as
18 head of the Department of Education, she possessed final authority to establish municipal
19 policy with respect to the action she ordered. See Anthony v. City of New York, 339 F.3d 129,
20 139 (2d Cir. 2003).
21 * * *
22 We have considered the parties’ remaining arguments on appeal and find them to be
23 without merit. The judgment of the District Court is AFFIRMED IN PART and
24 REVERSED IN PART, and the cause is REMANDED for further proceedings
25 consistent with this order.
26 FOR THE COURT:
27 Catherine O’Hagan Wolfe, Clerk of Court
4