Case Information
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
ANNA MARIA MULE,
Plaintiff , MEMORANDUM & ORDER - against - 24-CV-2043(KAM)(SDE) THE DEPARTMENT OF EDUCATION OF THE
CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK,
JENNIFER GOLDBERG, acting
individually and on behalf of the
Department of Education of the City
of New York, and JANICE ROSS, acting
individually and as Superintendent
on behalf of the Department of
Education of the City of New York,
Defendants .
-----------------------------------X
KIYO A. MATSUMOTO, United States District Judge :
Plaintiff Anna Maria Mule commenced an action in state court on February 9, 2024 against the New York City Department of Education (the “Department of Education” or “DOE”), the Board of Education of the City School District of the City of New York (the “Board of Education” and, together with the DOE, the “City Defendants”), Jennifer Goldberg, and Janice Ross. (ECF No. 1-2). Following removal to this Court, Ms. Mule filed a first amended complaint (ECF No. 11) and then a second amended complaint (ECF No. 14 (the “Second Amended Complaint” or “SAC”)), enumerating two causes of action: (1) unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), and (2) unlawful retaliation in violation of the First Amendment.
Presently before the Court are Defendants’ motion to dismiss the SAC (ECF Nos. 19–21), Ms. Mule’s opposition (ECF No. 22), and Defendants’ reply (ECF No. 23). For the reasons set forth below, Defendants’ motion to dismiss is GRANTED .
BACKGROUND
Unless otherwise indicated, the following facts are based on
the well pleaded allegations in the Second Amended Complaint,
“accepting all factual allegations as true, and drawing all
reasonable inferences in the plaintiff’s favor.”
Nicosia v.
Amazon.com, Inc.
, 834 F.3d 220, 230 (2d Cir. 2016) (citation
omitted). The following also draws on the June 8, 2023 report
prepared by the DOE’s Office of Equal Opportunity and Diversity
Management (“OEO”), substantiating a complaint against Ms. Mule
(ECF No. 20-3), which is included in and integral to the
allegations of the Second Amended Complaint (
see
SAC ¶¶ 57–59, 61–
65 (allegations concerning OEO investigation and June 8, 2023
report)), and therefore properly considered in ruling on a motion
to dismiss.
See Nicosia
,
The Court also considers the charge of unlawful
discrimination submitted by Ms. Mule to the New York State Division
of Human Rights (the “Division of Human Rights”) on May 30, 2023
(ECF No. 20-4), which is properly considered in deciding a motion
to dismiss a claim under Title VII.
See Holowecki v. Fed. Express
Corp.
, 440 F.3d 558, 565 (2d Cir. 2006) (“In reviewing the Rule
12(b)(6) ruling, it is proper for this court to consider the
plaintiffs[’] relevant filings with the EEOC [the Equal Employment
Opportunity Commission]. . . .”);
Boyar v. Yellen
, No. 21-507,
I. Ms. Mule’s Employment at the Department of Education
A. The Alleged Discrimination Undergirding Ms. Mule’s Retaliation Claim
Although the SAC does not allege a discrimination claim, the Court includes Ms. Mule’s allegations of discriminatory treatment leading up to her retaliation claim under Title VII.
Ms. Mule began working for the Department of Education in February 1998, and, in 2016, was employed as a high school principal. (ECF No. 20-4 at 3 (CM/ECF numbering); SAC ¶¶ 8–9.) The SAC alleges that Ms. Mule suffered discrimination beginning in 2016, when Ms. Ross became deputy superintendent, and continuing through at least 2023. (SAC ¶¶ 9–10; ECF No. 20-4 at 5–7 (CM/ECF numbering).)
1. Incidents Attributed to Ms. Ross The Second Amended Complaint, generously construed, plausibly alleges twelve specific incidents, statements, or actions attributed to Ms. Ross, who served as a deputy superintendent in 2016 and later served as the superintendent overseeing Ms. Mule’s high school. The SAC fails to allege on which dates several of the alleged statements or actions by Ms. Ross occurred.
a. First, Second, Third, and Fourth Incidents: Ms. Ross “Mocked” Ms. Mule, Asked About Ms. Mule’s Ethnicity and Nationality, “Told Faculty Members” that She Was “Looking to Rеplace” Ms. Mule, and Yelled at Ms. Mule in Front of Students in 2016 (1) In 2016, Ms. Ross “mocked Plaintiff and told her that she was heavy,” “did not dress well,” and “smelled.” (SAC ¶ 10.) (2) Also in 2016, Ms. Ross asked about Ms. Mule’s ethnicity, country of national origin, and whether she was tenured. (SAC ¶¶ 11–12.)
(3) Ms. Ross met with faculty members outside of Ms. Mule’s presence in 2016 and “told faculty members Plaintiff was ineffective and that she was looking to replace Plaintiff.” (SAC ¶¶ 10, 13.)
(4) Ms. Ross “would yell at Plaintiff in front of students, belittling Plaintiff” in 2016. (SAC ¶ 11.) Although the Second Amended Complaint does not specifically allege that the four foregoing incidents all occurred in 2016, the foregoing allegations are in or closely follow paragraph 10 of the SAC, which describes events that allegedly took place in 2016.
b. Fifth, Sixth, and Seventh Incidents: Ms. Ross Stated or Implied that Ms. Mule Was Less Able to Perform Her Professional Responsibilities Due to Ms. Mule’s Race in 2016, 2019, and 2020 (5) In 2016, Ms. Ross “stated that [Ms. Mule] did not know how to talk to the kids at school because Plaintiff was ‘white,’ and the student body was Black and Hispanic.” (SAC ¶ 11.) Although the SAC does not specifically allege that Ms. Ross made the foregoing statement in 2016, the statement immediately follows paragraph 10 of the SAC, which describes events that allegedly took place in 2016.
(6) In 2019, after Ms. Mule was accepted as a “[n]ew [p]rincipal [c]oach,” “a prestigious fellowship offered to high-performing principals,” Ms. Ross “did not allow Plaintiff to coach at her school” because Ms. Mule “did not fit in” “as a Caucasian educator in an African American and Hispanic school.” (SAC ¶ 20.)
(7) When Ms. Mule returned to her school from her fellowship in June 2020, Ms. Ross asked “why [Ms. Mule] would bothеr coming back” and stated that “schools should have principals who look like the kids because representation matters.” (SAC ¶ 23.) According to Ms. Ross, because Ms. Mule was Caucasian, she did not represent her school’s students, who “were African American and Hispanic.” ( Id. ) c. Eighth Incident: Ms. Ross “Start[ed]” and “Spread[] Rumors” that “Plaintiff’s Performance Was Lacking” in 2019 (8) In 2019, Ms. Ross “tarnished Plaintiff’s reputation by starting rumors that Plaintiff’s performance was lacking,” which rumors were “false but used as a pretext because Ross wanted to terminate Plaintiff and replace Plaintiff with a principal of color.” (SAC ¶ 21.) Ms. Ross allegedly spoke to members of the United Federation of Teachers and “spread[]” these rumors “to faculty members.” (SAC ¶ 22.) d. Ninth Incident: Ms. Ross Honored Black Principals as Excellent in February 2021 (9) In “February 2021,” Ms. Ross “held a virtual luncheon where black principals were honored as excellent,” which allegedly illustrated “a pattern where Caucasian principals are cast in a negative light in public while black principals are celebrated for their work.” (SAC ¶ 26.) Ms. Ross allegedly “held a celebration for school leaders” where “only black principals were honored and showcased.” (SAC ¶ 27.) e. Tenth Incident: Ms. Mule’s “Public” “Admonish[ment]” on a Community Zoom Meeting During the “2020–2021 School Year” (10) Ms. Ross allegedly “continued to treat Plaintiff dismissively and disrespectfully throughout the 2020–2021 school year.” (SAC ¶ 24.) Ms. Mule “was admonished publicly on a Zoom meeting for members of her school community [for] calling [the Administration for Children’s Services] for a student they [ sic ] couldn’t find during the Pandemic. This wаs viewed as racist by Janice Ross.” ( Id. ) An unidentified person allegedly told Ms. Mule “that Black and Hispanic children needed Principals who looked like them so that they could feel represented and so that they would not be harmed by white educators who were assumed to be biased and racist.” (SAC ¶ 25.)
Although the SAC does not identify Ms. Ross as the person who made all the foregoing statements in the Tenth Incident, the Court liberally construes the SAC to allege that Ms. Ross made the statements. The SAC does not expressly allege when the Tenth Incident occurred; however, the pertinent allegations are contained within or immediately follow paragraph 24 of the SAC, which refers to alleged conduct by Ms. Ross “throughout the 2020– 2021 school year.” (SAC ¶ 24.) Thus, the Court construes the SAC to allege that Ms. Ross publicly admonished Ms. Mule during a Zoom meeting that took place during the 2020–2021 school year.
f. Eleventh Incident: Ms. Ross’s February 2022 Notice of Unauthorized Absence for Ms. Mule’s Medical Leave
(11) On October 29, 2021, Ms. Mule “broke up a fight across from her office and became injured.” (SAC ¶ 31.) Thereafter, Ms. Mule went on “line-of-duty-injury” (or “LODI”) medical leave. ( See SAC ¶ 60.) Ms. Mule returned to duty for several days beginning on or before December 13, 2021 ( see SAC ¶ 39), and, on December 14, 2021, Ms. Mule “received a summons for a performance conference” from Ms. Ross’s secretary (SAC ¶ 40). On December 17, 2021, Ms. Ross’s secretary requested a medical evaluation from Ms. Mule. (SAC ¶ 42.) Ms. Mule went on medical leave again “from December 15, 2021, until on or about September 6, 2022.” ( Id. ) During that period, on February 28, 2022, Ms. Ross notified Ms. Mule by email “that [Ms. Mule’s] absences would be marked as unauthorized,” as of an unspecified date. (SAC ¶ 44.)
g. Twelfth Incident: Ms. Ross Posted Ms. Mule’s Private Medical Information on Twitter in 2022 (12) On November 30, 2022, Ms. Mule “received notice that the arbitrator denied her medical arbitration for LODI.” (SAC ¶ 60.) Following the arbitrator’s decision, Ms. Ross, allegedly posted Ms. Mule’s private medical information on Twitter. ( Id. ) [1] “This was further retaliation due to [Ms. Mule] being a Caucasian principal that Ross wanted out of her position.” ( Id. ) h. Allegations of General or Repeated Conduct Attributed to Ms. Ross
On an unspecified date, Ms. Ross stated during a recorded Zoom meeting with principals that “anyone who did not accept” that “white culture [was] negative and harmful . . . could not work at Brooklyn North [High Schools].” (SAC ¶ 18.) Ms. Ross allegedly “has hired” or retained employees who “have engaged in harassment of Caucasian teachers and administrators,” including Rushell White, Kyleema Norman, and Terrance Paulin. (SAC ¶ 19.) , N.Y. Times (July 24, 2023), nytimes.com/2023/07/24/technology/ Twitter to X [1] In July 2023, Twitter was renamed X. From Ryan Mac & Tiffany Hsu, See twitter-x-elon-musk.html. Consistent with the Second Amended Complaint and the parties’ briefs, the Court refers to the website as “Twitter” herein.
The SAC alleges that “throughout the 2020–2021 school year,” Ms. Ross “held several professional development sessions that dealt with race,” and, “[a]t one session, the staff had to acknowledge that the United States is a racist country with original sin,” that “white people are oppressive,” and that “white people have an unearned privilege.” (SAC ¶ 24.) o The SAC alleges that the “[p]rofessional learning sessions (2016–current) [ sic ] consist almost exclusively of black vendors who tеach critical race ideology, including such presenters as Glenn Singleton and Gholdy Mohammed [ sic ],” and that these sessions “always centered around looking at education through the lens of oppression and privilege, with Caucasian educators blamed during the sessions for students’ poor performance.” (SAC ¶ 18.) The SAC alleges that “[p]rincipals were consistently asked to engage in conversations about race, based on the work of Glenn Singleton, to speak their truth[,] and [to] experience discomfort.” (SAC ¶ 52.) “During monthly principal meetings, [Ms. Ross] told the principals that she hires based on race.” (SAC ¶ 69.) Ms. Ross “maintains that school leaders need to reflect the demographics of the students.” ( Id. ) o “Superintendent Ross has almost exclusively hired principals of color for the schools that she oversees as openings became available.” (SAC ¶ 14.) The Second Amended Complaint names seventeen schools as “example[s]” of schools where Ms. Ross “hired all black and Hispanic principals.” (SAC ¶ 15.) Ms. Ross allegedly “continued to hire only Blacks and Hispanics.” (SAC ¶ 16.) 2. Incidents Attributed to Individuals Other than Ms. Ross
The Second Amended Complaint alleges additional incidents attributed to individuals other than Ms. Ross.
In September 2021, Ms. Goldberg, “Director of Academic Access for Brooklyn North High Schools,” told Ms. Mule “that as a white woman, Plaintiff needed to understand how her whiteness is a barrier to being a school leader” and “that black children need leaders who look like them.” (ECF No. 20-4 at 4 (CM/ECF numbering); SAC ¶ 29.)
On December 13, 2021, Mr. Paulin, “Chief Operations Officеr [for] Brooklyn North High Schools,” told Ms. Mule that “Dean Scala should not be the Dean as he cannot relate to the kids because he is white and Italian American and that Plaintiff needed to find someone of color to work with the students.” (ECF No. 20-4 at 4 (CM/ECF numbering); SAC ¶ 39.) Subsequently, “Dean Scala was removed from the position of Dean by Acting Principal Rodriguez, and an African teacher replaced him even though she had complaints regarding verbal abuse of students.” (SAC ¶ 39.)
On June 28, 2022, an Equal Opportunity and Diversity Management (OEO) complaint was filed by Ms. Goldberg against Ms. Mule, allegedly because of Ms. Mule’s “skin color and the fact that ‘she did not belong’ as a principal in a school where the student body was mainly Hispanic and African American . . . .” ( See SAC ¶ 57.) The June 28, 2022 OEO complaint alleged racial, gender, and sexual orientation discrimination by Ms. Mule, and further alleged posting of inappropriate materials through an anonymous Twitter account in violation of DOE Chancellor’s Regulation A-830. ( See generally ECF No. 20-3 (CM/ECF numbering).) The SAC alleges that “Plaintiff was subjected to disparate treatment as opposed to her counterparts who were African American and Hispanic by receiving less preferential treatment, by being isolated and not invited to meetings, and by having her career thwarted.” (SAC ¶ 17.) The SAC does not allege the disparate treatment Ms. Mule experienced, dates of the alleged disparate treatment, specific individual or individuals who were either similarly situated or who were responsible for the disparate treatment, or specific facts of “less preferential treatment,” “being isolated and not invited to meetings,” and “having [Ms. Mule’s] career thwarted.” ( Id. ) B. The Alleged Retaliation
As further described below, the SAC alleges that Ms. Mule suffered adverse employment actions in retaliation for her filing a June 9, 2022 OEO complaint against Ms. Ross alleging race discrimination, and in retaliation for Ms. Mule’s tweets and retweets. Although she had used an anonymous Twitter account, Ms. Mule admits that she was responsible for the pertinent postings.
1. Ms. Mule’s June 9, 2022 OEO Complaint On June 9, 2022, Ms. Mule filed a complaint with DOE’s Office of Equal Opportunity and Diversity Management (OEO) against Ms. Ross, alleging race discrimination. (SAC ¶ 49; see also ECF No. 20-4 at 6 (CM/ECF numbering) (noting that Ms. Mule “put in an OEO complaint” in June 2022 following a January 2022 report that she made to “SCI [Special Commissioner of Investigation] misconduct” concerning Ms. Ross).) Ms. Mule’s OEO complaint against Ms. Ross allegedly remains under investigation. (SAC ¶ 49.)
The SAC alleges that “it [became] clear that Plaintiff was not allowed to put in [the] complaint” against Ms. Ross, when, during Ms. Mule’s May 2023 interview for “a higher position at Tweed,” “the investigator” told Ms. Mule “to speed up her responses and that she only had 1 hour for the interview.” (SAC ¶¶ 45, 49.) Ms. Mule does not allege whether others applying to the same position were given more or less than one hour to interview.
2. The June 28, 2022 OEO Complaint Against Ms. Mule On June 28, 2022, DOE’s Office of Equal Opportunity and Diversity Management (OEO) received a complaint against Ms. Mule “alleging racial, gender, and sexual orientation discrimination, which alleged that Plaintiff, through an anonymous Twitter account, posted inappropriate materials.” (SAC ¶ 57.) The OEO complaint against Ms. Mule was filed by Ms. Goldberg. (ECF No. 20-3 at 2 (CM/ECF numbering).) The SAC alleges that the June 28, 2022 OEO сomplaint was “a pretext” and, in fact, “was motivated by Plaintiff’s skin color and the fact that ‘she did not belong’ as a principal in a school where the student body was mainly Hispanic and African American and in retaliation for her EEO activity.” (SAC ¶ 57.) The SAC alleges that the purpose of the OEO complaint against Ms. Mule was to remove her “from her position and replace her with Acting Principal Elizabeth Rodriguez, a person of color who is not a licensed teacher but rather a guidance counselor and an assistant principal of guidance.” (SAC ¶ 61.)
The SAC alleges that “[i]n July 2022, the Superintendent removed Plaintiff’s access to her emails.” (SAC ¶ 58.) On September 6, 2022, allegedly due to the pending the OEO investigation against Ms. Mule, she was reassigned to clerical duties, “such as answering the telephone and greeting visitors.” (SAC ¶ 59.) On “May 17, 2023, OEO interviewed Plaintiff concerning the complaint against her that led to her reassignment.” (SAC ¶ 61.) After interviewing for the position of Senior Director of High School Instructional Support in April 2023, Ms. Mule was subsequently informed that she could not be hired due to the pending OEO investigation. (SAC ¶ 65.)
“On or about June 8, 2023,” after an allegedly “flawed investigation driven entirely by” Ms. Ross and Ms. Goldberg, “and absent any victims or school community environment [ sic ] that was made toxic by the alleged tweets, OEO substantiated the allegations against Plaintiff, finding that she had created a hostile environment based on race, gender, and sexual orientation in violation of [DOE] Chancellor’s Regulation A-830.” (SAC ¶ 62; see also ECF No. 20-3.) [2] “As a result of the substantiated finding,” Ms. Mule “is no longer eligible for per-session work, such as supervising aftersсhool activities, which has resulted in losing thousands of dollars of income” and “permanently changed [her] income, responsibilities, and possibility of further advancement.” (SAC ¶ 63; see also SAC ¶ 64 (alleging Ms. Mule is not eligible for promotion to specific positions due to the substantiated allegations).) Ms. Mule does not allege whether she has sought further review of or has challenged the substantiated OEO findings or its consequences.
Ms. Rodriguez replaced Ms. Mule as principal and allegedly “continues the discriminatory practices targeting Caucasian educators at the school.” (SAC ¶ 70.) “Several Caucasian teachers have transferred to other schools . . . and told Plaintiff it was due to the harassment and discrimination.” ( Id. )
3. Tweets Included in the June 8, 2023 OEO Report on the OEO Complaint Against Ms. Mule Ms. Mule maintained an “anonymous Twitter account,” referred to as “People Of Integrity,” which identified its owner as an “‘NYC parent’ and a ‘principal of a small high school.’” (SAC ¶ 48; ECF No. 20-3 at 1–2 (CM/ECF numbering).)
As determined in the June 8, 2023 report substantiating the June 28, 2022 OEO complaint against Ms. Mule, Ms. Mule used her anonymous Twitter account to post several tweets or retweets, [3] four What Do We Call Twitter Now Anyway? [3] , N.Y. Times (Aug. 3, 2023), nytimes.com So Retweeting refers to “sharing another person’s post.” Kate Conger, /2023/08/03/technology/twitter-x-tweets-elon-musk.html.
of which—a June 20, 2022 tweet and three undated tweets and retweets—were found to violate the Chancellor’s regulations. The four tweets are described below.
On June 20, 2022, Ms. Mule used her “anonymous Twitter account” to post the following:
(1) I’m against screen schools. However, there is some truth to some of what parents are sаying. Doe [ sic ] schools are underfunded even though the system is overfunded. And most schools with large numbers of brown and black students are underperforming.
Culturally, generally speaking, black and brown families [are] not as invested in children’s education, promote/excuse very poor behavior[,] and exhibit poor effort/interest in children’s education. Students exhibit poor effort. Black and brown families look for screened schools too.
(SAC ¶ 51.) Ms. Mule allegedly posted the above in response to the following tweet from “Jeremy Chan-Kraushar, the Director of Equity and Access” at the DOE’s Office of Equity and Access:
Coded language BINGO when admission policies shift (even a tiny bit) toward integration:
“Merit-based”,
“Hard work”,
“Poor schools”,
“Dangerous neighborhoods”,
“Emotional trauma” & “devastation” of kids not getting their select school over generational neglect for Black/brown Ss.
(SAC ¶¶ 50, 52.) Allegedly, Mr. Chan-Kraushar “consistently stated that white parents and Asian parents at the DOE are racist and do not want their children with black students.” (SAC ¶ 52.)
Ms. Mule’s June 20, 2022 tweet was, as alleged, “plaintiff’s way of conversing about race with a fellow DOE member” as “[p]rincipals were consistently asked to” do. ( Id. ) Ms. Mule further alleges that her June 20, 2022 tweet “was based on the data shared by [Ms.] Ross and her team” concerning rates of absenteeism and suspension. (SAC ¶ 53.)
The June 8, 2023 OEO report attributes three other undated tweets and retweets to Ms. Mule’s “anonymous Twitter account,” which the OEO report found violated the Chancellor’s regulations:
(2) In an undated tweet, @PeopleforInteg1 wrote, “My older child is leaving the system next year for high school, and if they continue to teach that white people are racist and crazy LGBTQ stuff, I will take him and myself out too.”
(3) In a[nother] tweet[,] on an unknown date, @PeopleforInteg1 retweeted, without comment, a tweet by an individual identified as Jennifer Moore that stated, “When did gay rights go from ‘get out of my bedroom’ to ‘celebrate us for an entire month in public schools’?”
(4) On an unknown date and without comment, @PeopleforInteg1 retweeted a tweet by “some angry dude” which stated, “Nobody is promoting violence against queer folk. They don’t agree there should be a drag queens story hour in grade school. How is this even a thing? We should focus on academics since a ton of [money bag emoji] gets poured into schools but we’re behind the rest of the world in education.”
(ECF No. 20-3 at 3 (CM/ECF numbering) (final alteration in original; citations and footnotes omitted).) [4]
4. Tweets Omitted from June 8, 2023 OEO Report Ms. Mule allegedly posted the following four additional tweets, dated between January 24, 2020 and September 28, 2022:
“On or about January 24th, 2020 [ sic ]. Tara Christie Kinsey stated An [ sic ] @NPRCodeSwitch podcast cites that 75% of white Americans have entirely white social networks. Research shows attending a diverse school has profound impact on people having heterogenous friend groups in life 2 proud [ sic ].
“On or about March 7th, 2022 [ sic ]. Ana Marie [ sic ] Mule stated As [ sic ] a system, there is no reason to have overcrowded screened schools and under[-]enrolled schools serving students that the screened schools don’t want. Make schools academically heterogeneous and reap the rewards. @Realdavidcbanks @NYCMayor[.]
“On or about March 7th, 2022 [ sic ]. Press NYC stated If [ sic ] you are not hearing what[’]s written here from the parents you are talking to, you have not talked to enough parents, @DOEChancellor.
“On or about September 28th, 2022 [ sic ]. Ana Marie [ sic ] Mule stated The [ sic ] admission algorithm for [high school] is not being utilized properly. Remove all screens and gifted and talented programs and make schools heterogenous in terms of demographic[s], academic ability[,] and poverty. Reduce all schools to no more than 2500 students included [ sic ] the specialized.” (SAC ¶ 54 (reordered chronologically).) Moreover, another tweet from Ms. Mule’s anonymous Twitter account was allegedly linked in an April 3, 2022 New York Post article concerning “[t]he citywide rate of chronic absenteeism among NYC public-school students.” (SAC ¶ 47.) The tweet linked in the April 3, 2022 New York Post article stated, “Terrance Paulin at [Brooklyn North High Schools] [is] providing ‘instructions’ on how to raise attendance rates by asking schools to look for COVID absences that can be changed to present. Students had excused absences. Why inflate atten. [ sic ]? @SusabBEdelman @ChalkbeatNY @MichaelElsenRoo @BobHoldenNYC.” (SAC ¶ 48.)
II. Procedural History
On May 30, 2023, Ms. Mule filed a charge with the New York State Division of Human Rights alleging unlawful employment practices “because of national origin, race/color, opposed discrimination/retaliation.” (ECF No. 20-4 at 2 (CM/ECF numbering).) Ms. Mule was granted the right to sue within 90 days of November 16, 2023. (ECF No. 20-5.)
On February 9, 2024, Ms. Mule commenced an action in state court against the Department of Education, the Board of Education, Ms. Goldberg, and Ms. Ross. (ECF No. 1-2 (state court summons and complaint)). On March 20, 2024, Defendants removed the action to this Court. (ECF No. 1.)
On May 24, 2024, Ms. Mule filed her first amended complaint. (ECF No. 11.) On July 17, 2024, Ms. Mule filed her Second Amended Complaint, alleging (1) “retaliat[iоn] for complaining about her race (Caucasian) discrimination,” and (2) First Amendment retaliation via “depriv[ation] of her Federal rights under 42 U.S.C. [§] 1983 and the Fourteenth Amendment.” (SAC ¶¶ 1, 86.) On November 18, 2024, the parties filed their moving papers in connection with Defendants’ motion to dismiss the Second Amended Complaint. (ECF Nos. 19–23.)
LEGAL STANDARDS I. Motion to Dismiss for Failure to State a Claim
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
Cardinal Motors, Inc. v.
H&H Sports Prot. USA Inc.
, 128 F.4th 112, 120 (2d Cir. 2025)
(internal quotation marks omitted). In assessing whether
challenged allegations meet this standard, the Court is “not bound
to accept as true a legal conclusion couched as a factual
allegation,” and “threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”
Buon v. Spindler
, 65 F.4th 64, 76 (2d Cir. 2023)
(alteration adopted) (first quoting
Bell Atl. Corp. v. Twombly
,
II. Pleading Requirements for Plaintiff’s Claims
A. Claim for Retaliation in Violation of Title VII
For a Title VII retaliation claim to survive a motion to
dismiss, “the plaintiff must plausibly allege that: (1) defendants
discriminated—or took an adverse employment action—against h[er],
(2) ‘because’ [s]he has opposed any unlawful employment practice.”
Vega v. Hempstead Union Free Sch. Dist.
,
B. Claim for Retaliation in Violation of the First Amendment
For a public-employee plaintiff’s First Amendment retaliation
claim to survive a motion to dismiss, she must allege: “(1) that
[s]he engaged in activity protected by the First Amendment;
(2) that [s]he suffered an adverse employment action; and (3) that
there was a causal connection between the protected activity and
the adverse employment action.”
Smith v. City of N.Y.
, 130 F.
Supp. 3d 819, 831 (S.D.N.Y. 2015) (citing
Smith v. County of
Suffolk
,
ANALYSIS
I. JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 42 U.S.C. § 2000e-5(f)(3).
II. CLAIMS
Ms. Mule brings only two claims in the Second Amended
Complaint: (1) a Title VII retaliation claim under the heading “
AS
AND FOR THE FIRST CLAIM FOR RELIEF TITLE VII DOE ONLY [
sic
] -
RETALIATION
” and (2) a First Amendment retaliation claim under the
heading “
AS AND FOR THE SECOND CLAIM FOR RELIEF ALL DEFENDANTS
[
sic
] - FIRST AMENDMENT.
” (
See
SAC ¶¶ 74–87 (emphasis retained).)
Thus, the SAC does not purport to bring Title VII claims for
discrimination or hostile work environment based on race.
See
Brokamp v. James
,
The Court first addresses the basis for dismissing any
purported Title VII discrimination or hostile work environment
claim based on race, if such claims had been included in the SAC.
First, the SAC fails to state a Title VII discrimination claim
based on race because it fails to plausibly allege discriminatory
intent and, in fact, alleges that any
timely
adverse еmployment
actions were due to the June 28, 2022 OEO complaint against Ms.
Mule and its subsequent substantiation.
See Buon
,
Moreover, Ms. Mule abandoned her Title VII race
discrimination claim after including it in her first amended
complaint (“FAC”) but omitting it from her Second Amended
Complaint. (
Compare
ECF No. 11 (FAC) ¶¶ 1, 72–75 (alleging one
Title VII claim “based on [Ms. Mule’s] race, and retaliation” and
alleging a second Title VII claim “based on retaliation” only),
with
ECF No. 14 (SAC) ¶¶ 1, 74–75 (alleging a single Title VII
claim “based on retaliation” only)). “It is long held in this
Circuit that any claims included in the original complaint that
are omitted from the amended complaint are considered
abandoned . . . .”
Toussaint v. City of N.Y.
, No. 19-cv-1239(AT),
2021 WL 4429316, at *3 n.3 (S.D.N.Y. Sep. 27, 2021) (internal
quotation marks and citation omitted);
accord Austin v. Ford
Models, Inc.
, 149 F.3d 148, 155 (2d Cir. 1998) (“ordinarily it
makes perfect sense to hold that a party who seeks to file an
amended pleading that omits a claim intends to abandon the claim”),
abrogated on other grounds by Swierkiewicz v. Sorema N.A.
, 534
U.S. 506 (2002);
see also Ping Tou Bian v. Taylor
,
Second, the SAC fails to state a Title VII hostile work
environment claim based on race because it fails to allege
incidents which together are sufficiently hostile or pervasive.
In considering whether a plaintiff has stated a hostile work
environment claim, courts look to “(1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether the conduct
was physically threatening or humiliating, or a mere offensive
utterance; (4) whether the conduct unreasonably interfered with
plaintiff’s work; and (5) what psychological harm, if any,
resulted.”
Sealy v. State Univ. of N.Y.
, 834 F. App’x 611, 615
(2d Cir. 2020) (quoting
Aulicino v. N.Y.C. Dep’t of Homeless
Servs.
, 580 F.3d 73, 82 (2d Cir. 2009)). “For racist comments,
slurs, and jokes to constitute a hostile work environment, there
must be more than a few isolated incidents of racial enmity,
meaning that instead of sporadic racial slurs, there must be a
steady barrage of opprobrious racial comments.”
Schwapp v. Town
of Avon
, 118 F.3d 106, 110 (2d Cir. 1997) (alteration adopted)
(internal quotation marks and citations omitted). Only incidents
attributed to Ms. Mule’s supervisor, Ms. Ross, are imputed to the
City Defendants. (ECF No. 20-3 at 4 (CM/ECF numbering) (Ms. Mule’s
“supervisor was Superintendent Ross”).) An employer “may be held
strictly liable for” the actions of a supervisor, but is liable
for the conduct of a non-supervisor only where the employer, unlike
here, is alleged to have been negligent.
Lekettey v. City of N.Y.
,
Here, “[i]n the aggregate,” the incidents attributable to the
City Defendants, even if all are considered part of the same course
of conduct, “do not amount to a pervasive hostile work
environment.”
Pattanayak v. Mastercard Inc.
, No. 22-1411, 2023 WL
2358826, at *4 (2d Cir. Mar. 6, 2023);
accord Alfano v. Costello
,
294 F.3d 365, 379–80 (2d Cir. 2002) (collecting cases where
“evidence was held insufficient as a matter of law to alter the
terms and conditions of employment” including one case,
Penry v.
Fed. Home Loan Bank
,
The Court now turns to the two claims purportedly alleged in the Second Amended Complaint.
III. DISCUSSION
A. Title VII Retaliation (First Claim) The SAC fails to allege a plausible Title VII retaliation claim—whether based on individual adverse actions or based on the work environment as a whole—for the incidents following Ms. Mule’s protected act of filing her June 9, 2022 OEO complaint. [5]
Title VII makes it unlawful “‘for an employer to discriminate
against any employee because that individual opposed any practice’
made unlawful by Title VII or ‘made a charge, testified, assisted,
or participated in’ a Title VII investigation or proceeding.”
Littlejohn
, 795 F.3d at 315 (alterations adopted) (quoting 42
U.S.C. § 2000e-3(a)). “[F]or a retaliation claim to survive
. . . a motion to dismiss, the plaintiff must plausibly allege
that: (1) defendants discriminated—or took an adverse employment
action—against h[er], (2) ‘because’ [s]he has opposed any unlawful
employment practice.”
Vega
,
1. Adverse Employment Action
For purposes of a Title VII retaliation claim, an “adverse
employment action” is one that “could well dissuade a reasonable
worker from making or supporting a charge of discrimination.”
Vega
, 801 F.3d at 90 (quoting
Burlington N. & Santa Fe Ry. v.
White
,
In the education context, “[t]he Second Circuit has found
that ‘negative evaluation letters, express accusations of lying,
assignment of lunchroom duty, reduction of class preparation
periods, failure to process teacher’s insurance forms, [and]
transfer from library to classroom teaching . . .’ may qualify as
adverse employment actions for purposes of a retaliation claim.”
Herling v. N.Y.C. Dep’t of Educ.
, No. 13-cv-5287(JG), 2014 WL
1621966, at *9 (E.D.N.Y. Apr. 23, 2014) (quoting
Zelnik v. Fashion
Inst. of Tech.
,
Allegations in the SAC that occurred before Ms. Mule filed
her OEO complaint against Ms. Ross on June 9, 2022 offer no support
for Ms. Mule’s Title VII retaliation claim.
See, e.g.
,
Rivera v.
Rochester Genesee Reg’l Transp. Auth.
, 743 F.3d 11, 25 (2d Cir.
2014);
see also Moy v. Perez
,
[7] Ms. Ross (
see
SAC ¶ 49), constitutes protected activity for purposes of Title
Ms. Mule’s June 9, 2022 OEO complaint alleging race discrimination against
VII.
See, e.g.
,
Arkorful v. N.Y.C. Dep’t of Educ.
,
Ms. Mule allegedly suffered the loss of “thousands of dollars of income” due to her ineligibility for per-session work such as supervising afterschool activities, and her career was “thwart[ed]” as a result of being ineligible for “promotional opportunities.” ( See SAC ¶¶ 62–64.)
In the aggregate, the acts of retaliation alleged in the SAC,
including Ms. Mule’s reassignment to clerical duties on September
6, 2022, Ms. Ross’s posting of Ms. Mule’s personal medical
information to Twitter on November 30, 2022, and Ms. Mule’s failure
to be promoted to the position of “Senior Director of High School
Instructional Support” following an April 2023 interview, could
deter a reasonable person from complaining about discrimination.
(SAC ¶ 65);
see Herling
, 2014 WL 1621966, at *9;
Duling v.
Gristede’s Operating Corp.
,
2. Causation
Turning to the second element, “[t]he requisite causation
‘may be shown by direct evidence of retaliatory animus or inferred
through temporal proximity to the protected activity.’”
Canady v.
Univ. of Rochester Strong Mem’l Med. Ctr.
, No. 21-2150, 2022 WL
17825332, at *2 (2d Cir. Dec. 21, 2022) (quoting
Lively v. WAFRA
Inv. Advisory Grp., Inc.
, 6 F.4th 293, 307 (2d Cir. 2021)). To
meet this standard, a Title VII retaliation “plaintiff must
plausibly allege that the retaliation was a ’but-for’ cause of the
employer’s adverse action.”
Vega
,
Although at least one adverse employment action alleged in
the SAC—Ms. Mule’s September 6, 2022 reassignment to clerical
duties—closely followed the June 9, 2022 filing of Ms. Mule’s OEO
complaint, temporal proximity alone may be insufficient to
establish causation.
See Espinal v. Goord
,
Where a legitimate and nonretaliatory reason for Defendants’ actions is alleged in the SAC, ( see SAC ¶ 62 (alleging OEO complaint was substantiated based on a finding that Ms. Mule had violated Chancellor’s Regulations A-830); see also SAC ¶¶ 79, 84 (alleging “[t]he only reason for” alleged retaliation was Ms. Mule’s “communication on Twitter” as opposed to any protected employment activity)), the Court need not credit conclusory and implausible allegations that the Goldberg OEO complaint was also “in retaliation for [Ms. Mule’s] EEO activity.” (SAC ¶ 57); see Iqbal , 556 U.S. at 681 (“It is the conclusory nature of [plaintiff’s] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”); Walker v. Senecal , 130 F.4th 291, 300 (2d Cir. 2025) (“allegations of plausible non-retaliatory reasons [for adverse action] reinforce the lack of plausible allegations of retaliation”); Sharikov v. Philips Med. Sys. MR, Inc. , 103 F.4th 159, 171 (2d Cir. 2024) (“[R]ather than show [plaintiff] was terminated because of [plaintiff’s] protected activity, the allegations in the Complaint make clear that [plaintiff] was fired because of [plaintiff’s] failure to comply with the company-wide [] policy. Because the policy applied to all employees regardless of whether they had engaged in protected activity, [plaintiff] has not plausibly pleaded a connection between h[er] invocations of [employment law] and [plaintiff’s] termination.”).
Moreover, based on Ms. Mule’s allegations in the SAC, the Court respectfully rejects any conclusory allegation that the filing of Ms. Goldberg’s June 28, 2022 OEO complaint was itself a retaliatory action in response to Ms. Mule’s June 9, 2022 OEO complaint against Ms. Ross. The SAC alleges no facts plausibly explaining why Ms. Goldberg, who was not alleged to be a discriminatory official in Ms. Mule’s June 9, 2022 OEO complaint, would be motivated to retaliate against Ms. Mule because of Ms. Mule’s OEO complaint. See Walker , 130 F.4th at 299 (“when the grievance d[oes] not involve the defendant . . . we require further allegations to plausibly establish retaliatory animus” (citation omitted)).
Accordingly, Defendants’ motion to dismiss Ms. Mule’s Title VII retaliation claim is GRANTED .
B. First Amendment Retaliation (Second Claim) As explained below, the Court finds that the SAC fails to allege a plausible First Amendment retaliation claim.
“[T]he First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of
public concern.”
Weintraub v. Bd. of Educ.
,
For the reasons set forth below, even if certain of Ms. Mule’s
tweets and retweets may constitute activity protected by the First
Amendment for which she has suffered adverse employment actions,
any First Amendment interest Ms. Mule had in posting the tweets
and retweets is outweighed by her employer’s “countervailing
interest,”
Guarnieri
,
1. Constitutionally Protected Activity
As to the first element, whether a plaintiff has engaged in
constitutionally protected activity, “[t]he First Amendment only
protects a public employee’s speech when ‘the employee speaks as
a citizen on a matter of public concern.’”
Smith v. City of N.Y.
,
As noted above, the June 8, 2023 OEO report substantiated the June 28, 2022 OEO complaint against Ms. Mule and found that the following four tweets and retweets that Ms. Mule had posted using her then-anonymous Twitter account were “violations of Chancellor’s Regulation A-830.” (ECF No. 20-3 at 3 (CM/ECF numbering)):
(1) A June 20, 2022 tweet stating, “Culturally, generally speaking, black and brown families [are] not as invested in children[’s] education, promote/excuse very poor behavior[,] and exhibit poor effort/interest in children’s education. Students exhibit poor effort. Black and brown families look for screened schools too.” (ECF No. 20-3 at 3 (CM/ECF numbering); SAC ¶ 51.)
(2) An undated tweet stating, “My older child is leaving the system next year for high school, and if they continue to teach that white people are racist and crazy LGBTQ stuff, I will take him and myself out too.” (ECF No. 20-3 at 3 (CM/ECF numbering).)
(3) An undated retweet of an underlying tweet stating, “When did gay rights go from ‘get out of my bedroom’ to ‘celebrate us for an entire month in public schools’?” (ECF No. 20-3 at 3 (CM/ECF numbering) (footnote omitted).) (4) An undated retweet of an underlying tweet stating, “Nobody is promoting violence against queer folk. They don’t agree there should be a drag queens story hour in grade school. How is this even a thing? We should focus on academics since a ton of [money bag emoji] gets poured into schools but we’re behind the rest of the world in education.” (ECF No. 20-3 at 3 (CM/ECF numbering) (alteration in original; footnote omitted).)
The SAC also alleges that Ms. Mule’s First Amendment rights were violated due to retaliation she suffered for posting the following tweet, concerning DOE’s attendance policy, linked in an April 3, 2022 New York Post article:
(5) An undated tweet stating, “Terrance Paulin at [Brooklyn North High Schools] [is] providing ‘instructions’ on how to raise attendance rates by asking schools to look for COVID absences that can be changed to present. Students had excused absences. Why inflate atten. [ sic ]? @SusabBEdelman @ChalkbeatNY @MichaelElsenRoo @BobHoldenNYC.” (SAC ¶¶ 47– 48, 79.)
For the reasons stated below, the Court finds that four of the five enumerated tweets and retweets by Ms. Mule arguably constitute constitutionally protected speech for which Ms. Mule suffered an adverse employment action, but that Ms. Mule’s First Amendment claim nonetheless fails because her employer’s countervailing interests in the efficient and effective management of its internal affairs justify the employer’s actions.
a. Speaking as a Private Citizen For reasons set forth below, the Court finds, with the exception of Ms. Mule’s June 20, 2022 tweet, that Ms. Mule was speaking as a private citizen when posting anonymous tweets from her “People Of Integrity” Twitter account.
First, as Ms. Mule contends, and Defendants do not dispute, Ms. Mule’s “job responsibilities did not include posting to a Twitter account anonymously.” (ECF No. 22 at 21; see generally ECF Nos. 21 & 23.) Defendants also do not assert that Ms. Mule’s tweets, under a pseudonymous Twitter account identifying itself as an ”NYC parent” and a “principal of a small high school,” furthered her official duties as a high school principal. ( See generally ECF Nos. 21 & 23.) Instead, Defendants contend that because Ms. Mule identified herself in her Twitter account as a “principal of a small high school,” her tweets from the acсount must have been posted in the course of her official duties. (ECF No. 21 at 21; see ECF No. 20-3 at 2 (CM/ECF numbering).)
Ms. Mule did not post each tweet on her account as a public
employee merely because she identified her job title on her Twitter
profile.
See, e.g.
,
Jackler v. Byrne
,
Moreover, controlling authority compels the conclusion that
Ms. Mule’s tweets did not lose constitutional protection merely
because they relied on and discussed her views based on information
learned during the course of her employment, including “data shared
by [Ms.] Ross.” (SAC ¶ 53);
see Lane
,
Finally, a civilian analogue to Ms. Mule’s speech exists. Both public figures and private citizens express their views on Twitter. See, e.g. , Packingham v. North Carolina , 582 U.S. 98, 104–05 (2017) (“social media users employ [] websites [including Twitter] to engage in a wide variety of protected First Amendment activity on topics ‘as diverse as human thought’” (quoting Reno v. ACLU , 521 U.S. 844, 870 (1997))). The existence of a civilian analogue thus adds further support to the Court’s conclusion that Ms. Mule was speaking as a private citizen when posting four of her five tweets and retweets.
The Court finds that one tweet, however, Ms. Mule’s June 20,
2022 tweet, was, as alleged in the SAC, posted as a public employee
and not as a private citizen. “The controlling factor in [the]
case [of Ms. Mule’s June 20, 2022 tweet] is that h[er] expression[]
w[as] made pursuant to h[er] duties” as a public high school
principal,
Garcetti
,
b. Matters of Public Concern To establish that a public employee’s speech is entitled to constitutional protection, it is not enough that a public employee plausibly alleges that she was speaking as a private citizen; she must also plausibly allege that she was speaking on matters of public concern. The Court finds that three of Ms. Mule’s tweets and retweets described in the June 8, 2023 OEO report (other than the June 20, 2022 tweet), and the tweet linked in the April 3, 2022 New York Post article, address matters of public concern, and are therefore entitled to constitutional protection.
Speech involves matters of public concern when it relates to
“any matter of political, social, or other concern to the
community,” or when it “is a subject of legitimate news interest,”
i.e., “a subject of general interest and of value and concern to
the public.”
Lane
,
The “arguably ‘inappropriate or controversial character of a
statement is irrelevant to the question whether it deals with a
matter of public concern.’”
Snyder
, 562 U.S. at 453 (quoting
Rankin v. McPherson
,
As relevant here, the Supreme Court and Second Circuit have
found that the following topics constitute matters of public
concern: “corruption in a public program” and the “misuse of state
funds,”
Lane
,
Here, Ms. Mule’s three tweets and retweets described in the
June 8, 2023 OEO report (other than the June 20, 2022 tweet), and
the tweet linked in the April 3, 2022 New York Post article,
address matters of public concern. Specifically, one of Ms. Mule’s
undated retweets addressed the amount of money “poured into
schools” as compared to the educational outcomes achieved by the
same schools, and, within that discussion, addressed how
educationаl outcomes might be improved by devoting less
instructional time to diversity initiatives. (ECF No. 20-3 at 3
(CM/ECF numbering));
see Jeffries
,
In another undated post, Ms. Mule retweeted a tweet questioning the amount of time and manner in which “gay rights” were “celebrate[d] . . . in public schools” (ECF No. 20-3 at 3 (CM/ECF numbering)); see Snyder , 562 U.S. at 454 (finding “homosexuality in the military” to be a “matter[] of public import”).
In an undated tweet, Ms. Mule wrote that she would take herself and her older child “out” of the public school system “if they continue to teach that white people are racist and crazy LGBTQ stuff.” (ECF No. 20-3 at 3 (CM/ECF numbering)); see Connick , 461 U.S. at 146 (“statements concerning the school district’s allegedly racially discriminatory policies involved a matter of public concern” (citing Givhan , 439 U.S. 410)); cf. Cioffi , 444 F.3d at 164 (“the health, welfare and safety of young students . . . are matters of importance to the public”).
Finally, the tweet posted by Ms. Mule and linked in the April 3, 2022 New York Post article addressed a matter of public concern by suggesting that public school attendance was being improperly “inflate[d]” at the direction of “Terrance Paulin,” a DOE employee and “Chief Operations Officer [for] Brooklyn North High Schools,” a school system within which Ms. Mule was a principal. (SAC ¶¶ 47– 48; ECF No. 20-4 at 4 (CM/ECF numbering)); Specht , 15 F.4th at 601–02 (reports “implicate[d] matters of public importance” because they “relate[d] to possible governmental malfeasanсe, public safety, as well as the public fisc”).
The Court need not, and does not, decide whether Ms. Mule’s
June 20, 2022 tweet regarding “black and brown families” addressed
a matter of public concern. As noted above, the SAC alleges that
Ms. Mule’s June 20, 2022 tweet was posted in her capacity as a
public employee,
see supra
Section III.B.1.a, and therefore may
not be considered when evaluating her First Amendment retaliation
claim.
See, e.g.
,
Smith v. City of N.Y.
,
Therefore, Ms. Mule’s three tweets and retweets described in the June 8, 2023 OEO report (other than the June 20, 2022 tweet), and the tweet linked in the April 3, 2022 New York Post article, address matters of public concern and are protected speech under the First Amendment.
2. Causation
Turning to the next element of her First Amendment retaliation
claim, Ms. Mule must plausibly allege that there was a causal
connection between her protected First Amendment activity and
Defendants’ adverse employment action. “To show causation, ‘a
plaintiff must show that the protected speech was a substantial
motivating factor in the adverse employment action.’”
Heim
, 81
F.4th at 222 (quoting
Smith v. County of Suffolk
,
Here, the SAC plausibly alleges a causal connection between
Ms. Mule’s protеcted speech and Defendants’ adverse employment
action by specifically asserting that “the only reason for” the
“retaliation” against Ms. Mule, including the July 2022 removal of
her access to email, her September 6, 2022 reassignment to clerical
duties, was her “communication on Twitter” and the June 28, 2022
OEO complaint against Ms. Mule resulting from her communications
on Twitter. (
See
SAC ¶¶ 57–62, SAC ¶¶ 78–79);
Heim
, 81 F.4th at
223 (finding employer’s actions were expressly caused by
plaintiff’s speech and therefore causation was established);
cf. Kiernan v. Town of Southampton
,
3.
Pickering
Balancing
“Even if an employee does speak as a citizen on a matter of
public concern” such that she engaged in activity protected by the
First Amendment, “the employee’s speech is not automatically
privileged.”
Guarnieri
, 564 U.S. at 386. Instead, “[c]ourts
balance the First Amendment interest of the employee against ‘the
interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.’”
Id.
(quoting
Pickering
, 391 U.S. at 568). If the government shows
that “the employee’s speech so threatens the government’s
effective operation that discipline of the employee is justified,”
then the employee’s retaliation claim will fail.
Melzer v. Bd. of
Educ.
, 336 F.3d 185, 193 (2d Cir. 2003) (citing
Nat’l Treasury
,
“[T]o determine the appropriate balance[,] a court should
consider both the nature of the speech and the nature of the
services performed by the employee.”
Blum v. Schlegel
, 18 F.3d
1005, 1011 (2d Cir. 1994). As to the nature of the speech, “the
closer the employee’s speech reflects on matters of public concern,
the greater must be the employer’s showing that the speech is
likely to be disruptive before it may be punished.”
Jeffries
, 52
F.3d at 13 (citation omitted). As to the services performed by
the employee, “[a] position requiring confidentiality,
policymaking, or public contact lessens the public employer’s
burden in firing an employee for expression that offends the
employer.”
Melzer
,
Critically, a public employer need not show a public
employee’s speech actually caused disruption; “the Government may
legitimately respond to a reasonable prediction of disruption.”
Locurto v. Giuliani
,
Pickering
balancing is often considered on motions to dismiss
in cases where, as here, the record
[9]
permits resolution of the
balancing test.
Kaluczky v. City of White Plains
, 57 F.3d 202,
210 (2d Cir. 1995) (reversing district court’s denial of motion to
dismiss because, among other reasons,
Pickering
balancing favored
public employer);
accord Janus v. AFSCME, Council 31
, 585 U.S.
878, 889, 909–16 (2018) (analyzing, in review of granted motion to
dismiss, whether
Pickering
balancing precluded First Amendment
claim);
see also Heller v. Bedford Cent. Sch. Dist.
, 665 F. App’x
49, 51–53 (2d Cir. 2016) (affirming dismissal of high school
teacher’s First Amendment retaliation claim because “school’s
concern about the safety of its students and the potential for
‘severe disruption’ to its functioning” outweighed teacher’s First
Amendment interest (alteration adopted) (quoting
Melzer
, 336 F.3d
at 198)),
aff’g
,
“the school shootings in Newtown, Connecticut, were caused by the government controlling the shooter’s mind and . . . his own mind was being controlled,” “if shared with students, parents and/or fellow school employees, would have caused substantial (and well- justified) disruption that far exceeded the value of plaintiff’s” statements). [10]
Here,
Pickering
balancing weighs in favor of Defendants.
[11]
Ms. Mule’s employer, a public school system, has a strong and
recognized interest in preventing its employees from
“compromis[ing] the learning environment,” “provok[ing] anxiety
. . . for the average student,” or “concern[ing]” parents to the
[10]
In other cases, unlike this one,
Pickering
balancing is not appropriately
considered on a motion to dismiss due to the presence of factual disputes or an
absence of allegations giving rise to a reasonable inference that challenged
statements would disrupt the public employer’s operations.
See, e.g.
,
Dangler
v. N.Y.C. Off Track Betting Corp.
,
point of “interrupting the[ir] children’s education, impairing the
school’s reputation, and impairing the educationally desirable
interdependency and cooperation among parents, teachers, and
administrators.”
Melzer
,
In recognition of the foregoing interests, as reflected in Chancellor’s Regulation A-830, Defendants reasonably concluded, as set forth in the June 8, 2023 OEO report, that four of Ms. Mule’s tweets and retweets “created a hostile environment based on gender, race, and sexual orientation in violation of Chancellor’s Regulation A-830.” (ECF No. 20-3 at 5 (CM/ECF numbering).) As noted above, Chancellor’s Regulation A-830 prohibits conduct that “would foreseeably disrupt the educational process or [] would foreseeably endanger the health, safety, morals, or welfare of the school community.” See Chancellor’s Regulation A-830, supra note 2, § I.B.4.
“Compared with these strong governmental interests, [Ms.
Mule’s] interest in the speech alleged in the complaint was
minimal.”
Manchester
, 780 F. Supp. 3d at 310. First, it is
especially significant that Ms. Mule’s June 20, 2022 tweet -- in
which she wrote “black and brown families [are] not as invested in
children[’s] education, promote/excuse very poor behavior[,]
exhibit poor effort/interest in children’s education[, and]
[s]tudents exhibit poor effort” (ECF No. 20-3 at 3 (CM/ECF
numbering)) -- is not entitled to constitutional protection.
[12]
Ms.
Mule’s June 20, 2022 tweet thus adds nothing to Ms. Mule’s side of
the
Pickering
balancing analysis, and yet it weighs strongly in
favor of Defendants. Ms. Mule’s June 20, 2022 tweet, “if shared
with students, parents and/or fellow school employees, would have
caused substantial (and well-justified) disruption that far
exceeded the value of plaintiff’s” statements.
Heller
, 144 F.
Supp. 3d at 619–20,
aff’d
,
justified adverse employment actions taken by Defendants against Ms. Mule. The First Amendment interests implicated by Ms. Mule’s four other tweets and retweets -- which complain of “crazy LGBTQ stuff,” question the celebration of “gay rights,” discuss (without endorsing) “violence against queer folk,” and question DOE attendance policy, (ECF No. 20-3 at 3 (CM/ECF numbering); SAC ¶ 48) -- are similarly outweighed by Defendants’ considerable interests in preventing disruption, preserving the public employer’s reputation, and securing the integrity of thе public employer’s operations. See Lewis , 165 F.3d at 164–65 (public employer’s interest outweighed employee’s “significant interest in speaking . . . on a matter of public concern” where employer had “reasonable belief” that employee’s speech “might impair [its] operations”).
The public nature of Ms. Mule’s tweets and retweets, in which
she identifies herself as a “principal of a small high school,”
underscores the inevitability of disruption that they would cause.
Compare Delano v. City of Buffalo
, 626 F. App’x 23, 24 (2d Cir.
2015) (
Pickering
balancing favored defendants where public
employee “spoke to the media [and] suppl[ied] departmental
photographs and videos to the press in violation of regulations”),
with Feingold v. New York
,
Accordingly, Defendants’ actions in response to Ms. Mule’s
tweets and retweets were justified under
Pickering
balancing.
See
Delano
, 626 F. App’x at 24 (police officer’s interest in
publicizing “what he believes is an injustice in [a] [murder]
investigation” was outweighed by police commissioner’s “duty to
ensure that he maintained a ‘significant degree of control over
[his] employees’ words and actions [as] without it, there would be
little chance for the efficient provision of public services’”
(third alteration in original) (quoting
Garcetti
,
Ms. Mule “has also failed to plausibly allege that the
defendants were motivated by a desire to retaliate against [her]
for [her] views.”
Heller
,
Thus, dismissal of Ms. Mule’s First Amendment retaliation
claim is warranted because any First Amendment interest implicated
[13]
See also Sacha v. Sedita
,
4. Monell Liability Defendants argue that Ms. Mule’s First Amendment claim “fails to the extent it is pled against DOE.” (ECF No. 21 at 19.) The Court agrees.
“[A] local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents” unless such
injury is the result of the “execution of a government’s policy or
custom.”
Monell v. Dep’t of Soc. Servs.
,
Here, although the SAC alleges that Ms. Mule was investigated
and reassigned pursuant to Chancellor’s Regulation A-830 (
see
SAC
¶ 62; ECF No. 22 at 10, 22), such allegations are “deficient” to
plead municipal liability.
See Alexander v. N.Y.C. Dep’t of Educ.
,
No. 19-cv-7023(AJN), 2020 WL 7027509, at *12 (S.D.N.Y. Nov. 30,
2020) (dismissing
Monell
claim even where plaintiff alleged that
Chancellor’s Regulation A-830 could lead teachers to be subjected
to cоrrective actions without due process);
accord Roe v. City of
Waterbury
,
Thus, even if the Court did not grant Defendants’ motion to dismiss Ms. Mule’s First Amendment retaliation claim as to all Defendants for the reasons set forth above, it would, and does, pursuant to Monell , grant Defendants’ motion to dismiss Ms. Mule’s First Amendment retaliation against the City Defendants.
5. Personal Involvement Aside from reasons already set forth above warranting dismissal of Ms. Mule’s First Amendment claim against all Defendants, dismissal of the First Amendment claim against Ms. Goldberg is also warranted because Ms. Mule has insufficiently alleged Ms. Goldberg’s personal involvement.
“If a defendant has not
personally
violated a plaintiff’s
constitutional rights, the plaintiff cannot succeed on a § 1983
action against the defendant.”
Raspardo v. Carlone
,
Here, the SAC fails to allege that Ms. Goldberg, through her own individual actions, intentionally participated in conduct constituting a constitutional violation of Ms. Mule’s First Amendment rights. Ms. Goldberg’s involvement is limited to visiting Ms. Mule’s school, initiating an OEO complaint against Ms. Mule, and responding to OEO’s requests for information in connection with the ensuing, allegedly “flawed” investigation that resulted in substantiated charges against Ms. Mule. ( See SAC ¶¶ 29, 61–62; ECF No. 20-3 at 2–5 (CM/ECF numbering).) Ms. Goldberg is not alleged to have taken any other action against Ms. Mule. Moreover, the SAC does not plausibly allege that Ms. Goldberg knew facts rendering any of her conduct illegal. Thus, the SAC does not plausibly allege Ms. Goldberg’s personal involvement in Ms. Mule’s First Amendment retaliation claim. See Victory , 814 F.3d at 67 (holding defendants were not liable for § 1983 claim due to their lack of personal involvement even where they “directly participated in [a] procedurally defective rescission of [plaintiff’s] parole,” because they did not “kn[o]w of the facts making the process illegal”); Peck v. County of Onondaga , No. 21-cv-651(DNH), 2021 WL 3710546, at *11, *17 (N.D.N.Y. Aug. 20, 2021) (dismissing First Amendment retaliation claim against a defendant due to lack of allegations concerning personal involvement of the defendant).
Accordingly, even if the Court did not grant Defendants’ motion to dismiss Ms. Mule’s First Amendment retaliation claim as to all Defendants for the reasons noted above, it would grant Defendants’ motion to dismiss Ms. Mule’s § 1983 claim for First Amendment retaliation against Ms. Goldberg due to her lack of alleged personal involvement.
IV. LEAVE TO AMEND
Under Federal Rule of Civil Procedure 15(a), leave to amend
a complaint is freely given “when justice so requires.” Therefore,
“[i]t is the usual practice upon granting a motion to dismiss to
allow leave to replead.”
Cortec Indus., Inc. v. Sum Holding L.P.
,
Here, Ms. Mule has filed three complaints but has failed to
state a claim. Under these circumstances any amendment would be
futile. Moreover, Ms. Mule has not requested leave to further
amend or suggested how she would amend her complaint if given leave
to do so.
[14]
The SAC is, therefore, dismissed with prejudice.
See,
e.g.
,
Solomon v. Flipps Media, Inc.
, 136 F.4th 41, 55 (2d Cir.
2025) (affirming district court’s denial of leave to amend where
plaintiff requested leave to amend “in a single footnote on the
final page of her brief”);
TechnoMarine
, 758 F.3d at 505–06
(affirming dismissal with prejudice and without leave to amend
where plaintiff failed to specify how it could cure its pleading
deficiencies);
Madej v. Yale Univ.
, No. 21-353,
CONCLUSION For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint in its entirety. Leave to amend has not been sought and in any event would be denied as futile. The Second Amended Complaint is therefore dismissed with prejudice. The Clerk of Court is respectfully directed to close this case.
SO ORDERED.
Dated: August 21, 2025
Brooklyn, New York Hon. Kiyo A. Matsumoto United States District Judge Eastern District of New York
Notes
[2] The text of Chancellor’s Regulation A-830 is not alleged in the Second Amendment Complaint. The Court takes judicial notice, however, that Chancellor’s Regulation A-830 includes the following pertinent provision: 4. It is a violation of this regulation for any DOE employee to discriminate against or create a hostile school environment for a student by conduct, whether on school property/DOE facilities, during a DOE program or activity, including online learning/working, on the basis of [race, color, religion, age, creed, ethnicity, national origin, alienage, citizenship status, disability, sexual orientation, gender, or weight], including sexual harassment (as defined in Section IX), where such conduct: (1) has or would have the effect of unreasonably and substantially interfering with a student’s ability to participate in or benefit from an educational program, school-sponsored activity or any other aspect of a student’s education; or (2) has or would have the effect of unreasonably and substantially interfering with a student’s mental, emotional or physical well-being; or (3) reasonably causes or would reasonably be expected to cause a student to fear for their physical safety; or (4) reasonably causes or would be expected to cause physical injury or emotional harm to a student. It is also a violation of this regulation for any DOE employee to engage in the conduct noted above off school property/DOE facilities when such conduct disrupts or would foreseeably disrupt the educational process or endangers or would foreseeably endanger the health, safety, morals, or welfare of the school community. Chancellor’s Regulation A-830, § I.B.4 (Oct. 19, 2023), schools.nyc.gov/docs/default-source/default-document-library/a-830.pdf (emphasis added).
[4] The June 8, 2023 OEO report includes additional tweets from Ms. Mule’s personal and anonymous Twitter accounts. ( See ECF No. 20-3 at 4–5 (CM/ECF numbering).) These additional tweets are cited by the report to support its conclusion that Ms. Mule was responsible for the anonymous Twitter account, but the additional tweets were not “identified” as “potential violations of Chancellor’s Regulation A-830.” ( Id. at 3.)
[5] Ms. Mule’s retaliation claims are analyzed together, “because ‘a claim of
“retaliatory work environment” must be treated identically to a claim that an
employer took multiple retaliatory actions that were, in the aggregate,
“materially adverse.”’”
Jones v. Brookhaven Sci. Assocs., LLC
, No. 23-cv-
4194(NJC)(ARL), 2024 WL 4145777, at *10 n.9 (E.D.N.Y. Sep. 10, 2024)
(alterations adopted) (quoting
Carr
,
[6] Defendants appear to argue that Ms. Mule’s Title VII claims are untimely, yet admit that no fewer than four “potential adverse actions” occurred that
[8] In contrast, because Ms. Mule fails to allege that she applied for per-
session work, her ineligibility to perform per-session work does not constitute
an adverse employment action.
See Giordano-Forkan v. N.Y.C. Dep’t of Educ.
,
No. 13-cv-6950(GBD),
[14] Ms. Mule states, in a footnote of her October 28, 2024 opposition, that she “ will be seeking to amend . . . under the New York State and New York City Human Rights Law.” (ECF No. 22 at 14 n.1 (emphasis added).) Ms. Mule suggests that her anticipated request to amend would be based on service of “charges under NYS Education Law 3020A seeking her removal as a tenured employee.” ( Id. ) Ms. Mule does not reveal how any anticipated, yet unrequested, amendment would address the deficiencies identified in Defendants’ motion papers.