15-1163
Clara Munoz-Feliciano v. Monroe Woodbury Central 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 4th day of
January, two thousand sixteen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         RALPH K. WINTER,
         JOHN M. WALKER,
               Circuit Judges.
________________________________________________

CLARA MUNOZ-FELICIANO,

           Plaintiff-Appellant,

                      v.                                            No. 15-1163

MONROE-WOODBURY CENTRAL SCHOOL DISTRICT,
DR. MICHAEL DIGERONIMO, in his capacity as President
of the Board of Education of the Monroe-Woodbury Central
School District, EDWARD MEHROF, in his capacity as
Superintendent of the Monroe-Woodbury Central School
District and in his individual capacity, JENNIFER TRUMPER,
in her capacity as member of the Board of Education of the
Monroe-Woodbury Central School District and in her individual

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capacity, JOHN DOES, 1 THROUGH 10, in their capacities
as officials, agents, employees and/or administrators of
the Monroe-Woodbury Central School District, and/or as present
and/or former members of the Board of Education of the Monroe-
Woodbury Central School District and in their individual
capacities, JOHN DOES, 11 THROUGH 20, in their capacities
as teachers, employees, and/or agents of the Monroe-Woodbury
Central School District and in their individual capacities, HUGH
CAUTHERS, in his capacity as Chief Information Officer of the
Monroe-Woodbury Central School District and in his individual
capacity,

         Defendants-Appellees.
________________________________________________

For Plaintiff-Appellant:                  Stephen Bergstein, Bergstein & Ullrich, LLP, Chester,
                                          New York.

For Defendants-Appellees:                 Adam I. Kleinberg, Sokoloff Stern LLP, Carle Place,
                                          New York.


        Appeal from the United States District Court for the Southern District of New York
(Seibel, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Clara Munoz-Feliciano appeals from the judgment of the United States

District Court for the Southern District of New York (Seibel, J.) dismissing her amended

complaint brought pursuant to 42 U.S.C. § 1983 for failure to state a claim. We assume the

parties’ familiarity with the facts, procedural history, and issues presented for review.

       “A district court’s dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) is reviewed de

novo, accepting all factual allegations as true and drawing all reasonable inferences in favor of

the plaintiff.” Orlander v. Staples, Inc., 802 F.3d 289, 294 n.4 (2d Cir. 2015) (citation omitted).


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“[W]e may affirm an appealed decision ‘on any ground which finds support in the record,

regardless of the ground upon which the trial court relied.’” Garcia v. Lewis, 188 F.3d 71, 75 n.2

(2d Cir. 1999) (quoting Reid v. Senkowski, 961 F.2d 374, 378 (2d Cir. 1992)).

       Feliciano argues that defendants took adverse actions against her in retaliation for

exercising her First Amendment right to free speech. More specifically, Feliciano’s amended

complaint (“AC”) alleges that, in retaliation for her advocacy on behalf of students with special

needs beginning in 2008 and her decision to run for a position on the Board of Education of the

Monroe-Woodbury School District in May 2012, defendants (1) engaged in a “smear campaign”

that falsely labeled Feliciano as a candidate running on behalf of the Hasidic Jewish community

in the village of Kiryas Joel, (2) distributed an email in May 2013 that falsely stated that

Feliciano unlawfully distributed campaign literature at a school event, and (3) refused

Feliciano’s request to home-school her daughter “CLF” and failed to discipline a student who

assaulted CLF.

       “To plead a First Amendment retaliation claim a plaintiff must show: (1) [s]he has a right

protected by the First Amendment; (2) the defendant’s actions were motivated or substantially

caused by [her] exercise of that right; and (3) the defendant’s actions caused [her] some injury.”

Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per curiam). We agree with the

district court that the AC fails to state a claim with respect to any of the conduct alleged therein.

       First, as to the alleged “smear campaign,” Feliciano has no First Amendment right to

prevent public officials from criticizing her. See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 68 (2d

Cir. 1999). In X-Men, we held that, in the absence of “threats, intimidation, or coercion,” a



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public official’s advocacy is not actionable in a First Amendment retaliation suit. Id. at 70–71.

Feliciano does not allege that the smear campaign involved any such impermissible speech.

       Even if we were to interpret X-Men’s reference to “threats, intimidation, or coercion”

broadly to mean that a First Amendment retaliation claim could be based on a public official’s

speech that is not protected by the First Amendment, thereby making room for claims based on

defamatory remarks, the AC is still insufficient. Because Feliciano’s candidacy rendered her a

public figure, the allegedly false statements only lose First Amendment protection if they were

made with actual malice, that is, with knowledge of or reckless disregard for their falsity. See

Monitor Patriot Co. v. Roy, 401 U.S. 265, 270–71, 277 (1971). The AC, however, is devoid of

anything that could plausibly support a conclusion that defendants acted with actual malice, save,

perhaps, an inference that Feliciano’s critics had a motive to defame her. Circumstantial

evidence of motive, however, is insufficient on its own to establish actual malice. See Tucker v.

Fischbein, 237 F.3d 275, 284 (3d Cir. 2001). Accordingly, the district court properly dismissed

Feliciano’s claim based on the “smear campaign.”

       Second, as to the May 2013 email and conduct against CLF, the district court correctly

determined that the AC failed to allege facts sufficient to permit an inference that defendants’

conduct was caused by Feliciano’s protected activity. “A plaintiff may establish causation either

directly through a showing of retaliatory animus, or indirectly through a showing that the

protected activity was followed closely by the adverse action.” Smith v. Cty. of Suffolk, 776 F.3d

114, 118 (2d Cir. 2015). Here, there is no direct evidence of retaliatory animus either alleged in

the AC or reflected in the content of the email about which Feliciano complains. Further, the



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email was sent a year after Feliciano lost the election and the AC fails to disclose when the

conduct against CLF occurred . No plausible inference of causation based on temporal

proximity can be drawn from the passage of a year or the passage of some undefined period. See

generally Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (“The cases

that accept mere temporal proximity between an employer’s knowledge of protected activity and

an adverse employment action as sufficient evidence of causality to establish a prima facie case

uniformly hold that the temporal proximity must be ‘very close.’”) (quoting O’Neal v. Ferguson

Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (emphasis added)).

       Feliciano does not challenge the district court’s denial of her motion to amend her

complaint a second time. We have considered all of Feliciano’s remaining arguments, and find

them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district

court is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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