19-407
Waronker v. Hempstead Union Free School District

                                      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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 17th day of October, two thousand nineteen.

PRESENT:
                   JOHN M. WALKER, JR.,
                   SUSAN L. CARNEY,
                               Circuit Judges,
                   JOHN G. KOELTL,
                               District Judge.*

_________________________________________

DR. SHIMON WARONKER,

                   Plaintiff-Appellant,

                             v.                                                     No. 19-407

HEMPSTEAD UNION FREE SCHOOL DISTRICT,
BOARD OF EDUCATION OF THE HEMPSTEAD
SCHOOL DISTRICT, DAVID B. GATES, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY, RANDY
STITH, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, LAMONT E. JACKSON, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY,
PATRICIA WRIGHT, AS A NECESSARY PARTY


 *Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by
designation.
IN HER CAPACITY AS CLERK OF THE
HEMPSTEAD SCHOOL DISTRICT,

           Defendants-Appellees.
_________________________________________

FOR PLAINTIFF-APPELLANT:                            FREDERICK K. BREWINGTON, Law
                                                    Offices of Frederick K. Brewington,
                                                    Hempstead, NY.

FOR DEFENDANTS-APPELLEES:                           JONATHAN L. SCHER (Austin Graff, on the
                                                    brief), The Scher Law Firm, LLP, Carle
                                                    Place, NY.

       Appeal from a judgment of the United States District Court for the Eastern District
of New York (Hurley, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on January 18, 2019, is
AFFIRMED.

       Shimon Waronker appeals from a judgment of the United States District Court for
the Eastern District of New York (Hurley, J.), dismissing his claims under Federal Rule of
Civil Procedure 12(b)(6) and denying him leave to amend his complaint. We assume the
parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to
which we refer only as necessary to explain our decision to affirm.

       We draw the following factual allegations from Waronker’s complaint, taking them as
true for the purposes of evaluating a motion to dismiss. This action stems from Waronker’s
work as superintendent for the Hempstead Union Free School District (the “School
District”). The School District has a long history of academic problems and financial
mismanagement. Waronker, however, believed that “[his] past successful transformative
efforts in [other] schools . . . would enable him to do what was necessary for [the] School
District.” Joint App’x 3-4. Accordingly, when he was hired as the School District’s
superintendent in 2017, Waronker took several steps towards “reshaping the structure of
administration, services[,] and education in the District.” Id. at 17. These included hiring and


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firing personnel, forming collaborations with outside educational organizations, contracting
with “a Forensic Auditing Firm” to review the School District’s books, and hiring “[s]pecial
investigators to . . . root out the corruption and mismanagement.” Id. at 26.

       At some point, however, the Board of Education of the Hempstead School District
(the “Board”) started to resist Waronker’s reform efforts, and in November 2017, it fired
“the Special Investigators who were looking at abuse, mismanagement and possible
corruption.” Id. at 29. In response, Waronker sent an email to the Board on December 6,
2017 (the “Board Email”), advising that he had “consulted with several law enforcement
agencies” about “matters [that] . . . appear to be both unlawful and unethical.” Id. Three
weeks later, the Board suspended Waronker’s authority to act as superintendent. The Board’s
action prompted Waronker to distribute an open letter to the Hempstead community (the
“Community Letter”) in which he urged members to “collaborate with me to make
Hempstead Schools thrive again” and warned that “[p]olitics, self-interest[], patronage,
vendettas, threats, and cover-ups cannot rule the day.” Id. at 31. Four days later, on January
9, 2018, the Board placed Waronker on paid administrative leave. It did so without prior
notice to Waronker and without providing him a pre-suspension hearing.

       On January 19, 2018, Waronker sued the School District, the Board, and several
School District employees (collectively, “Defendants-Appellees”), alleging claims under (1)
the Due Process Clause, for deprivation of both property and liberty interests; (2) the First
Amendment, for unlawful retaliation; and (3) New York law, for breach of contract and
retaliation. After Defendants-Appellees moved to dismiss the complaint, Waronker sought
leave to amend his complaint to add allegations concerning certain “Specifications and
Charges” that the School District had recently filed against Waronker in what appears to be
an administrative proceeding. Less than three weeks later, in January 2019, the District Court
dismissed Waronker’s federal-law claims under Rule 12(b)(6). It further declined to exercise
supplemental jurisdiction over his state-law claims and denied Waronker leave to amend his
complaint on futility grounds.

       We “review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a
claim, accepting all factual allegations as true and drawing all reasonable inferences in favor

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of the plaintiff.” Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018) (citation omitted).
We review “a district court’s denial of leave to amend for abuse of discretion, unless the
denial was based on an interpretation of law, such as futility, in which case we review the
legal conclusion de novo.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d
Cir. 2012).

   1. First Amendment Retaliation

       Waronker asserts that Defendants-Appellees violated his First Amendment right to
free speech when they retaliated against him for speaking out about corruption and academic
mismanagement occurring in the School District. His claim is based on three
communications: (1) the Board Email, (2) the Community Letter, and (3) the set of
communications between Waronker and several law enforcement agencies that was
referenced in the Board Email.

       To state a retaliation claim under the First Amendment, a public employee must
plausibly allege that “[he] spoke as a citizen on a matter of public concern.” Matthews v. City of
New York, 779 F.3d 167, 172 (2d Cir. 2015) (citation omitted). A plaintiff speaks as a
government employee, rather than as a citizen, when “[his] remarks were made pursuant to
his official employment responsibilities.” Montero, 890 F.3d at 398. Whether a plaintiff spoke
as a citizen is a question of law for the court to decide. See Singer v. Ferro, 711 F.3d 334, 339
(2d Cir. 2013). We have cautioned, however, that “[this] inquiry . . . is not susceptible to a
brightline rule,” Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012), because “speech can be
pursuant to a public employee’s official job duties even though it is not required by, or
included in, the employee’s job description,” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of
N.Y., 593 F.3d 196, 203 (2d Cir. 2010) (internal quotation marks omitted). We have
therefore adopted “a functional approach toward evaluating an employee’s duties,” Matthews,
779 F.3d at 173, framing the “[u]ltimate . . . question . . . [as] whether the employee’s speech
was part-and-parcel of that person’s concerns about his ability to properly execute his
duties,” Montero, 890 F.3d at 398 (internal quotation marks and alterations omitted).




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       In this case, Defendants-Appellees do not dispute that Waronker’s statements
concerned matters of public concern, but they contend that Waronker’s statements were
made pursuant to his official duties as superintendent. However, Waronker does not
plausibly allege that he was speaking as a citizen when he publicly accused the School
District of corruption. The complaint makes clear that “root[ing] out [] corruption and
mismanagement” was “part-and-parcel” (in the Montero formulation) of Waronker’s daily
responsibilities as superintendent, even if, as Waronker claims on appeal, it was not part of
his formal job description. Joint App’x 26. Waronker’s factual allegations further make
evident that he sent the Board Email and Community Letter pursuant to his official
employment responsibilities. Not only do both of these communications focus on
Waronker’s efforts as superintendent to reform the School District, but Waronker signed the
Board Email using his official job title, “Superintendent of Schools,” and he posted the
Community Letter on the School District’s website.

       As for the communications between Waronker and law enforcement agencies that he
referenced in the Board Email, nothing in the complaint suggests that he consulted with
these agencies as a private citizen. Instead, as he explains in the Board Email, Waronker felt
“compelled” to contact law enforcement because (1) the Board failed to take “corrective
action” after Waronker “rais[ed] questions about suspected illegal financial activity,” and (2)
Waronker had “[a] professional, moral and legal obligation to serve the District.” Joint App’x
29. Waronker therefore framed his consultations with law enforcement as “a means to fulfill,
and undertaken in the course of performing, his primary employment responsibilit[ies].”
Weintraub, 593 F.3d at 203 (internal citations and quotation marks omitted). Indeed,
Waronker all but concedes this point when he notes that he consulted law enforcement “[a]s
a fiduciary and as a guardian of the public trust.” Joint App’x 29.

       Nor is Waronker’s reliance on Lane v. Franks, 573 U.S. 228 (2014), persuasive. In that
case, the Supreme Court held that a state employee spoke as a citizen when he gave sworn
testimony in a judicial proceeding, even though his testimony concerned certain corrupt
activities that he uncovered while acting pursuant to his official duties. The Court explained
that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a


                                               5
citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court
and society at large, to tell the truth.” Id. at 238. Thus, the Court emphasized, it is this
obligation to tell the truth—an obligation that stands “distinct and independent” from any
obligation that a public employee might owe to his employer—that “renders sworn
testimony speech as a citizen and sets it apart from speech made purely in the capacity of an
employee.” Id. at 239. Here, by contrast, Waronker did not bear an obligation as a private
citizen to communicate with law enforcement about the School District’s corruption and
mismanagement. Instead, as expressed in the complaint, Waronker felt “compelled” to
contact law enforcement by “[his] professional, moral and legal obligation to serve the
District.” Joint App’x 29.

       Accordingly, we affirm the District Court’s dismissal of Waronker’s First
Amendment claim on the grounds that he failed to plausibly allege that he spoke as a private
citizen on a matter of public concern.

   2. Procedural Due Process Claims

       Waronker asserts two procedural due process claims, one alleging deprivation of a
protected property interest, the other alleging deprivation of a protected liberty interest.
Neither survives review.

           a. Property-Interest Claim

       To establish a property-based procedural due process claim, “[a] plaintiff must show
that state action deprived her of a property interest protected by the Fourteenth
Amendment.” Velez v. Levy, 401 F.3d 75, 85 (2d Cir. 2005). We engage in “a two-step
process” to determine whether a property interest is constitutionally protected. O’Connor v.
Pierson, 426 F.3d 187, 196 (2d Cir. 2005). First, we determine “whether some source of law
other than the Constitution, such as a state or federal statute, confers a property right on the
plaintiff.” Id. Then, “[o]nce such a property right is found, we determine whether that
property right constitutes a property interest for purposes of the Fourteenth Amendment.”
Id. (internal quotation marks omitted).




                                                 6
       In this case, Waronker’s property-based procedural due process claim rests on the
Board’s decision to place him on a paid administrative leave of absence. Under this Circuit’s
precedents, however, an employee who is suspended is not deprived of a protected property
interest “[so] long as the employee is receiving a paycheck equivalent to his normal salary.”
Tooly v. Schwaller, 919 F.3d 165, 173 (2d Cir. 2019) (internal quotation marks omitted). Thus,
while “an employee who is placed on unpaid leave has been deprived of a protected property
interest,” an employee who is placed on paid leave “has only been deprived of a property
interest triggering due process when he suffers a financial loss.” Id. (emphasis omitted)
(internal quotation marks omitted). Waronker does not assert, either in his complaint or on
appeal, that he was paid less than his full salary while on administrative leave. His suspension
therefore does not provide an adequate basis for his procedural due process claim.

       Nor can this claim rest on the allegations that Waronker was suspended without “a
prompt and meaningful pre-suspension hearing.” Waronker’s Br. 47. Although Waronker
was entitled to such process under his employment contract, a pre-suspension hearing is
“not an end in itself,” but instead “has value only because it may lead to something
valuable,” namely, avoiding suspension. McMenemy v. City of Rochester, 241 F.3d 279, 287 (2d
Cir. 2001); see also Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 31 (2d Cir. 1994)
(“Thus, where a breach of contract does not give rise to a deprivation of a protectible
property interest, plaintiff’s exclusive remedy lies in state court for breach of contract.”
(internal quotation marks omitted)). Procedural due process, however, “protects only
important and substantial expectations in life, liberty, and property”; it “does not protect
“trivial and insubstantial interests.” N.Y. State Nat’l Org. for Women v. Pataki, 261 F.3d 156,
164 (2d Cir. 2001) (internal quotation marks and alterations omitted). Thus, because a pre-
suspension hearing does not constitute an independent substantive right, much less one that
implicates “important and substantial” property interests, Defendants-Appellees did not
deprive Waronker of a constitutionally protected interest when they suspended him without
a hearing. Id.

       Accordingly, we affirm the District Court’s dismissal of Waronker’s property-based
procedural due process claim.


                                                  7
           b. Liberty-Interest Claim

       Waronker also brings a “stigma-plus” claim, which we have described as “a species
within the phylum of [liberty-based] procedural due process claims.” Segal v. City of New York,
459 F.3d 207, 213 (2d Cir. 2006). To prevail on such a claim, a plaintiff must plausibly allege
“(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is
capable of being proved false, and that he or she claims is false, and (2) a material state-
imposed burden or state-imposed alteration of the plaintiff’s status or rights.” Sadallah v. City
of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (internal quotation marks omitted).

       The District Court dismissed Waronker’s claim on the first prong of the stigma-plus
test, correctly concluding that the complaint failed to identify any “false, stigmatizing
statements” that Defendants-Appellees made about Waronker. Waronker v. Hempstead Union
Free Sch. Dist., No. 2:18-cv-393(DRH)(SIL), 2019 WL 235646, at *5 (E.D.N.Y. Jan. 16,
2019). On appeal, Waronker does not seriously contest this conclusion, nor can he: beyond
conclusory assertions that Defendants-Appellees “subjected [Waronker] to scandalous claims
and investigations,” Joint App’x 34, the complaint is devoid of any specific statements made
about him, much less ones capable of supporting a stigma-plus claim. Instead, Waronker
argues that, if the District Court had permitted him leave to amend his complaint, he would
have alleged statements that were sufficiently stigmatizing.

       We need not resolve, however, whether Waronker’s proposed amendments to the
complaint would satisfy the “stigma” requirement of a stigma-plus claim, because even
assuming they would, the complaint still fails to satisfy the “plus” requirement. To plead an
adequate “plus” factor, a plaintiff must identify “some tangible and material state-imposed
burden” that is separate from the deleterious effects flowing directly from the stigmatizing
statement. Velez, 401 F.3d at 87 (internal citation omitted); see also Sadallah, 383 F.3d at 38
(“[The] deleterious effects flowing directly from a sullied reputation, standing alone, do not
constitute a plus under the stigma plus doctrine.” (internal quotation marks and alterations
omitted)). Burdens that satisfy the “plus” prong include “the deprivation of a plaintiff’s
property and the termination of a plaintiff’s government employment.” Sadallah, 383 F.3d at
38 (internal citations omitted). By contrast, our precedent instructs that a plaintiff’s

                                                8
temporary suspension from work does not constitute an adequate “plus” factor if the
plaintiff suffers no financial loss. See Patterson v. City of Utica, 370 F.3d 322, 332 (2d Cir. 2004)
(“It cannot, as a matter of law, be viewed as a significant alteration of plaintiff’s employment
status when, in fact, he was quickly hired back in the same position from which he was
supposedly fired.”); Dobosz v. Walsh, 892 F.2d 1135, 1137-38, 1140 (2d Cir. 1989) (holding
that plaintiff’s five-month suspension did not constitute a sufficient plus factor because
plaintiff was later reinstated with back pay and seniority credit).

          Waronker’s placement on administrative leave does not satisfy the “plus” requirement
because, as noted above, nothing in the complaint suggests that he suffered a financial loss
as a result of his suspensions. Nor can Waronker avoid dismissal of his stigma-plus claim by
simply alleging that he suffered “public abuse and humiliation” at the hands of Defendants-
Appellees. Waronker’s Br. 41. Instead, Waronker must identify “a state-imposed burden or
alteration of status . . . [that is] in addition to the stigmatizing statement.” Sadallah, 383 F.3d at
38 (internal quotation marks omitted). Because the complaint fails to do so, Waronker’s
stigma-plus claim does not survive. Thus, even assuming arguendo that Waronker plausibly
alleged a stigmatizing statement, we would nevertheless affirm the District Court’s dismissal
of his liberty-based procedural due process claim for failure to plead an adequate “plus”
factor.

   3. State-Law Claims

          The District Court dismissed Waronker’s state-law claims for retaliation and breach
of contract on two grounds. First, it held that the claims were barred by section 3813(1) of
the New York Education Law, which provides, in essence, that a plaintiff may not maintain
an action against a school district unless the plaintiff has previously filed a “written verified
claim” with the school district within three months after the accrual of the action. N.Y.
Educ. Law § 3813(1). The District Court then proceeded to conclude that, even if section
3813(1) did not bar Waronker’s state-law claims, dismissal was warranted because the Court
had decided not to exercise supplemental jurisdiction over Waronker’s remaining state-law
claims.



                                                  9
       It is preferable for the court to address the matter of its own jurisdiction before
considering the substance of a claim. See Sinochem Int’l Co. v. Malaysia Int'l Shipping Corp., 549
U.S. 422, 430-31 (2007) (“[A] federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction over the category of claim in suit . . . .”).
Indeed, because the District Court declined to exercise supplemental jurisdiction over
Waronker’s state-law claims, it had no jurisdiction to decide the state law question of
whether section 3813(1) precluded Waronker from bringing these claims against
Defendants-Appellants.

       In the past, we have vacated and remanded where (1) “it [was] unclear whether the
dismissal of . . . [a state-law claim] was on the merits or based on a decision not to exercise
supplemental jurisdiction,” and (2) the district court’s judgment did not specify whether the
state-law claim was “dismissed with or without prejudice.” Wegner v. Upstate Farms Coop., Inc.,
560 F. App’x 22, 27 (2d Cir. 2014). Here, however, the District Court explicitly declined to
exercise its supplemental jurisdiction; its remarks leave no doubt that it intended to dismiss
Waronker’s state-law claims without prejudice so that they could “be re-filed in state court
where the Parties will be afforded a surer-footed reading of applicable law.” Waronker, 2019
WL 235646, at *8 (internal quotation marks and alterations omitted). Moreover, we find no
abuse of discretion in the District Court’s decision not to exercise supplemental jurisdiction.
See Denney v. Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir. 2006) (“A district court usually
should decline the exercise of supplemental jurisdiction when all federal claims have been
dismissed at the pleading stage.”). Accordingly, we affirm the District Court’s dismissal of
Waronker’s state-law claims, emphasizing that this dismissal is without prejudice. We do not
express any view on the application of section 3813 of the New York Education Law to the
facts at hand.

   4. Leave to Amend the Complaint

       Finally, Waronker asserts that the District Court erred by denying him leave to amend
his complaint so as to add allegations concerning certain “Specifications and Charges” filed
against him by the School District. These Specifications and Charges are relevant, Waronker
contends on appeal, to his allegations that Defendants-Appellees made stigmatizing

                                                 10
statements about him. As we explained above, however, even if the complaint alleged a
sufficiently stigmatizing statement, Waronker’s stigma-plus claim would still fail as a matter
of law because he did not allege facts satisfying the “plus” (burden) requirement under this
doctrine. Nothing else in Waronker’s motion to the District Court, or in his briefs on appeal,
suggests that the Specifications and Charges contain facts that would save his complaint
from dismissal on that ground. Where, as here, “the plaintiff is unable to demonstrate that
he would be able to amend his complaint in a manner which would survive dismissal,
opportunity to replead is rightfully denied.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d
Cir. 1999). We therefore conclude that the District Court did not err by denying Waronker’s
motion to amend his complaint.

                                             * * *

       We have considered Waronker’s remaining arguments and conclude that they are
without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk of Court




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