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News 2011


Second Circuit Affirms Summary Judgment Decision


Lewis Silverman and Caroline Lineen obtained a decision from the Second Circuit Court of Appeals affirming the summary judgment dismissal of a First Amendment retaliation case.  The plaintiff, who was a Head Custodian at a high school, alleged that he was terminated from his employment in retaliation for making complaints about asbestos in the gymnasium.  The District Court granted summary judgment and dismissed the case.  On appeal, the Second Circuit ruled that the plaintiff was not speaking as a citizen and, relying on Garcetti v. Ceballos and their previous decision in Weintraub v. Board of Education, upheld the District Court’s dismissal.  Morey v. Somers Central School District, 2011 U.S. App. Lexis 2554 (2d Circuit, 2011).






Title VII “Gender Plus” Employment Discrimination Claim

and First Amendment Retaliation Claim Dismissed


Lewis Silverman obtained summary judgment dismissing a school custodian’s claim of “gender plus” discrimination, a Title VII retaliation claim and a First Amendment retaliation claim against her employer, a suburban school district.  The plaintiff, a woman, was denied a promotion to a head custodian position in favor of another female applicant.  The plaintiff claimed that she was denied the position because she had a “more feminine appearance” than the other applicant and because she previously successfully sued the same school district for sexual harassment.  The Eastern District of New York held that an interview committee member’s comment that the plaintiff did not present as an “authoritative figure” did not evidence a discriminatory motive.  Furthermore, the court found that there was no evidence that would establish a causal connection between the prior lawsuit and the District’s decision to promote the other custodian.






Dismissal of Student’s Right to Bodily Integrity Claim Following Attack


Lewis Silverman and Caroline Lineen obtained summary judgment dismissing a claim by a high school student that her Fourteenth Amendment substantive due process right to bodily integrity was violated when she was attacked by other students following a graduation ceremony. The plaintiff alleged that she had made complaints about the other students to the District’s administration and that the District was deliberately indifferent to her complaints and a general pattern of violence and assaults by students that was hidden by the District.  The Southern District of New York held that the Due Process Clause does not impose upon a school district a constitutional duty to protect students from harm inflicted by fellow students or private actors.  The court found that the school district administrators’ actions did not communicate to the attackers that an attack would be condoned or go unpunished and, thus, the plaintiff could not pursue a “state created danger” theory of liability.






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