     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

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 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



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