17-1539
Maco v. Baldwin 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 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 Courthouse, 40 Foley Square, in the City of New York, on the 7th day of
March, two thousand eighteen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         PIERRE N. LEVAL,
               Circuit Judge,
         RICHARD M. BERMAN,
               District Judge.*
________________________________________________

RHONDA L. MACO,

            Plaintiff-Appellant,

                        v.                                          No. 17-1539

BALDWIN UNION FREE SCHOOL DISTRICT,
LORI A. PRESTI, CARRIE BILLITZKI, in their
official and individual capacities,

            Defendants-Appellees.

        *
         Judge Richard M. Berman, United States District Court for the Southern District of New
York, sitting by designation.

                                                1
________________________________________________

For Plaintiff-Appellant:                               MATTHEW WEINICK, Famighetti & Weinick,
                                                       PLLC, Melville, NY.

For Defendants-Appellees:                              GERALD S. SMITH, Silverman & Associates,
                                                       White Plains, NY.

       Appeal from the United States District Court for the Eastern District of New York

(Wexler, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Rhonda L. Maco appeals the judgment of the United States District

Court for the Eastern District of New York (Wexler, J.) dismissing Maco’s First Amendment

retaliation claim against defendants-appellees Baldwin Union Free School District, Lori A.

Presti, and Carrie Billitzki. Maco claims that Presti, in consultation with Billitzki, reported

potential child abuse to a state agency in retaliation for a complaint Maco made about Billitzki’s

treatment of Maco’s minor child, N.M. The district court held that no reasonable jury could find

that the defendants had a retaliatory motive or that Maco sustained an injury. We assume the

parties’ familiarity with the remaining facts and procedural history of this case, as well as the

issues on appeal. “We review a district court’s grant of summary judgment de novo, resolving all

ambiguities and drawing all reasonable factual inferences in favor of the party against whom

summary judgment is sought.” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107,

113 (2d Cir. 2017) (alterations and internal quotation marks omitted).

       Maco’s principal argument on appeal is that the defendants failed to show entitlement to

judgment because a reasonable juror could find that Presti’s report of suspected child abuse was


                                                  2
“motivated or substantially caused” by Maco’s complaint about N.M.’s treatment. See Dorsett v.

Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per curiam). We disagree. Recognizing that

we owe “unusual deference” to school administrators who are required by law to report

suspected child abuse (or “mandated reporters”), we have held that, absent a “clear showing of

retaliatory or punitive intent,” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 274 (2d

Cir. 2011) (internal quotation marks omitted); see N.Y. Soc. Serv. Law § 413(a), where the

administrator has “a sufficient basis to suspect potential abuse,” Oglesby v. Eikszta, 499 F. App’x

57, 60 (2d Cir. 2012) (summary order), the report is, as a matter of law, not retaliatory, Dole v.

Huntington Union Free Sch. Dist., 699 F. App’x 85, 87 (2d Cir. 2017) (summary order).1

       Here, N.M. told Presti that Maco had checked N.M. out of school and taken her home,

where Maco had slapped her face multiple times and struck her three times with a belt.

According to N.M., at one point, Maco stopped hitting N.M. and left the room, only to return and

strike her again. School records showed that Maco had signed N.M. out of school for an

appointment earlier that day. In our view, this was a “sufficient basis to suspect potential abuse,”

even though Presti’s pre-report investigation was relatively brief and did not include speaking to

N.M.’s teacher, Kristin Maldonado. See Dole, 499 F. App’x at 87.

       Nor has Maco made a “clear showing of retaliatory or punitive intent.” See Cox, 654 F.3d

at 274. Maco’s asserted protected speech is a complaint she made to Presti and Billitzki in June

2013, a full ten months prior to Presti’s April 2014 report of suspected child abuse. Although

       1
          Maco, relying on decisions interpreting Title VII of the Civil Rights Act of 1964, argues
that a retaliation claim can lie even where there are “objectively valid grounds” for the retaliatory
action. See, e.g., DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d 111, 116 n.8 (2d Cir. 1987).
However, as explained above, in the specialized context of a school administrator’s decision to
report suspected child abuse, a more demanding standard applies. See Dole, 699 F. App’x at 87
(citing Cox, 654 F.3d at 274).

                                                 3
Billitzki was admittedly upset with Maco’s complaint at the time, there is no evidence in the

record that her dissatisfaction persisted beyond June 2013, nor any evidence that Maco’s

complaint was a consideration when Presti reported the abuse. It is, of course, true that there is

no “bright line . . . beyond which a temporal relationship is too attenuated to establish[] a causal

relationship” in retaliation cases. Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (first

alteration in original). However, in this case, the lapse of time between speech and adverse action

(and the lack of evidence connecting them) negates any inference of causation, even if, as Maco

suggests, N.M.’s report of corporal punishment provided defendants with their “first actual

opportunity to retaliate.” See id.

       Maco urges that a jury could nonetheless infer motive from a smattering of circumstantial

evidence. We are not persuaded. Maco’s strongest evidence is that Presti’s report of suspected

abuse contained two inaccurate statements: that the school had recommended that Maco have

N.M. evaluated for mental health treatment and that Maco had not done so, which Maco denies.

However, it is undisputed that, four days prior to Presti’s report of suspected abuse, Maldonado

told Maco she was “concerned about [N.M.’s] behavior” and proposed that N.M. see the school

psychologist the following week, but Maco said she wanted more information before making an

appointment. And although Maco had, in fact, independently had N.M.’s mental health evaluated

eight months earlier, she concedes that this was not communicated to the defendants. Against

that background, under the governing rules, a fact-finder could not reasonably find that the

defendants’ actions violated the plaintiff’s First Amendment rights.

       Maco’s remaining evidence is even less probative of retaliatory motive. She points out,

for example, that Presti reported the suspected abuse without first discussing N.M.’s behavior


                                                  4
with Maldonado, even though Presti allegedly should have known that N.M. was a habitual liar.

However, because Presti correctly evaluated N.M.’s credibility on the day in question—Maco

had, in fact, taken N.M. out of school and struck her multiple times—this evidence is scarcely

probative of motive. Maco also points out that Presti has, at different times, cited two reasons for

reporting suspected child abuse: the corporal punishment and Maco’s supposed failure to obtain

treatment for N.M. Although these factors can, in some circumstances, support an inference of

retaliatory motive, we conclude that Maco’s evidence falls short of the requisite “clear showing

of retaliatory or punitive intent.” See Cox, 654 F.3d at 274.

       Accordingly, in light of the “unusual deference” we owe to school administrators’

“decisions to report reasonably suspected abuse and neglect,” we conclude that Presti’s report

was non-retaliatory as a matter of law. See Dole, 699 F. App’x at 87 (alteration omitted) (quoting

Oglesby, 499 F. App’x at 60).2

       We have considered the plaintiff’s remaining arguments and found in them no basis for

reversal. Accordingly, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




       2
        Because we conclude that Maco has failed to satisfy the causation element of her claim,
we do not reach her argument that the district court incorrectly held that Maco also failed to
show she suffered a “concrete harm.”

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