79 F.3d 318 (2nd Cir. 1996), 724, Bernheim v. Litt

Docket Nº:724, Docket 95-7592.
Citation:79 F.3d 318
Party Name:Beate BERNHEIM, Plaintiff-Appellant, v. Jeffrey LITT, Defendant-Appellee.
Case Date:March 25, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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79 F.3d 318 (2nd Cir. 1996)

Beate BERNHEIM, Plaintiff-Appellant,


Jeffrey LITT, Defendant-Appellee.

No. 724, Docket 95-7592.

United States Court of Appeals, Second Circuit

March 25, 1996

Argued Dec. 22, 1995.

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Appeal from a judgment of the United States District Court for the Southern District of New York (Brieant, J.) granting the defendant's motion, pursuant to Fed.R.Civ.P. 12(b)(6), dismissing the complaint in its entirety.

David Bernheim, New York City, for plaintiff-appellant.

Barry P. Schwartz, Assistant Corporation Counsel, Margaret G. King, Assistant Corporation Counsel, New York City (Paul A. Crotty, Corporation Counsel of the City of New York), for defendant-appellee.

Before: JACOBS, CALABRESI, Circuit Judges, and SPATT, District Judge. [*]

JACOBS, J., concurs in part B of the opinion, and concurs in a separate opinion as to part C.

SPATT, District Judge.

In this action, brought pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the Constitution, the plaintiff-appellant Beate Bernheim ("Bernheim") appeals from a judgment of the United States District Court for the Southern District of New York, which was entered on May 18, 1995, dismissing her complaint against the defendant-appellee Jeffrey Litt

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("Litt") in its entirety for failure to state a cognizable federal claim. Bernheim's federal claims were dismissed with prejudice, and her state claims were dismissed without prejudice. On appeal, Bernheim argues that her complaint sufficiently alleged actionable claims under 42 U.S.C. § 1983. For the reasons set forth below, we find that only one of her Section 1983 claims sets forth a valid cause of action.


Bernheim is an elementary school teacher in Community School 67 ("CS 67") in Bronx County, New York. She commenced this action pursuant to 42 U.S.C. § 1983, in New York Supreme Court, Westchester County, on June 22, 1994. Her complaint alleges that the school's principal, Jeffrey Litt, discriminated against her based on her race and that he violated her First Amendment right to free speech. On July 22, 1994 the defendant removed the action to federal court. Bernheim moved to amend the complaint and Litt cross-moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Bernheim subsequently withdrew her motion, then moved to file a second amended complaint and sought a jury trial. The district court granted Bernheim's motion to amend and considered Litt's motion to dismiss to be addressed to the second amended complaint. In dismissing the complaint, the district court ruled that the disputes in this case arose out of employment relationships of a New York City school teacher, did not allege a constitutional violation, and should be addressed through employee grievance procedures, citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

On June 13, 1995, Bernheim filed a timely notice of appeal. In an order dated June 16, 1995, Judge Brieant stated that Bernheim's pending appeal prevented him from amending the dismissal order, in the interest of justice, to remand the state claims to the Supreme Court of the State of New York, where the action was originally filed.


  1. The Rule 12(b)(6) standard

    We review de novo the district court's dismissal for failure to state a claim. Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591, 593 (2d Cir.1993). A complaint may not be dismissed under Rule 12(b)(6) unless it " 'appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994). The review of such a motion is limited, and " '[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.' " Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

    Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (citing Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686). Furthermore, the " 'standard is applied with even greater force where the plaintiff alleges civil rights violations....' " Id. (quoting Hernandez, supra, 18 F.3d at 136).

    As the Supreme Court has stated,

    [b]y the plain terms of § 1983, two--and only two--allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.

    Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Bernheim alleges that Litt, a public school official acting under color of state law, deprived her of certain rights guaranteed by the Constitution.

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    See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

    Bernheim's amended complaint alleges two federal causes of action and one state law cause of action against Litt. The first cause of action alleges that Litt discriminated against Bernheim on the basis of her race and in violation of her constitutional rights to procedural due process and equal protection. The second cause of action alleges violations of state law rights. The third cause of action alleges that Litt retaliated against Bernheim for exercising her First Amendment right to free speech.

  2. The due process and equal protection claims

    The amended complaint alleges that prior to January 1, 1992, Litt entered into an arrangement with an organization known as Core Knowledge Foundation ("Core"), and offered to introduce the curriculum advocated by Core to CS 67. Bernheim alleges that Litt created a "Core Knowledge Committee" and designated Bernheim as its co-chairperson.

    The amended complaint further alleges that in March 1992, Litt selected Bernheim to represent CS 67 at a convention of the American Federation of Teachers. Bernheim was scheduled to speak at the convention about the Core curriculum program. Bernheim, who is white, alleges that prior to the convention the Core Knowledge Foundation requested of Litt by means of a written memoranda, that Bernheim be removed from the speakers' list and that a minority teacher be sent in her stead. She further alleges that Litt, who is also white, then designated a minority teacher to speak at the convention. Bernheim concedes, however, that the "Core Knowledge Committee" of CS 67 overruled Litt and decided against sending a representative to the convention.

    According to the amended complaint, during the period from March 1992 until October 1994, Litt discriminated against Bernheim based on her race and retaliated against her because she complained about the racial discrimination. The amended complaint alleges that Litt retaliated against Bernheim by doing the following acts: removing Bernheim from the position of staff developer and then appointing a white woman to that position; appointing another white woman as the library teacher, a position that Bernheim previously held; transferring Bernheim from her out-of-classroom library position to a sixth-grade classroom teaching position and requiring her to serve lunchroom duty; reducing her preparation periods from two to one per day; assigning her to a fifth floor classroom knowing that she had difficulty climbing stairs because of physical disabilities, which included a herniated disc, a bulging disc, a fractured right knee and a loose body in her left knee; failing to properly process insurance forms in connection with a car accident involving Bernheim; and removing a lock and her belongings from her storage areas.

    As stated above, to properly set forth an actionable claim for deprivation of procedural due process under 42 U.S.C. § 1983, a plaintiff must assert that the defendant deprived her of a right, privilege or immunity secured by the Constitution or the laws of the United States. Gomez, supra, 446 U.S. at 640, 100 S.Ct. at 1923-24; Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970). This Bernheim does not do. Bernheim did not have a right to deliver a speech to the American Federation of Teachers Convention, remain in the position of library teacher, be appointed staff developer, have two periods per day to prepare for her classes or to keep her belongings in a particular place area. These are features of Bernheim's working conditions, which are not protected by the Constitution.

    To state a cause of action under the due process clause, a plaintiff must show that she has a property interest, created by state law, in the employment or the benefit that was removed. See Castro v. New York City Bd. Of Educ., 777 F.Supp. 1113, 1116-17 (S.D.N.Y.), aff'd, 923 F.2d 844 (2d Cir.1990), cert. denied, 498 U.S. 1099, 111 S.Ct. 992, 112 L.Ed.2d 1076 (1991). The New York Court of Appeals has stated that the concept of tenure in the teaching profession "does not entitle a teacher to a specific class or proscribe

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    assignment to proper duties of a teacher other than classroom teaching of a specific subject." Adlerstein v. Board of Educ. of New York City, 64 N.Y.2d 90, 99, 485 N.Y.S.2d 1, 5, 474 N.E.2d 209, 212-13 (1984). Furthermore, where the complained-of conduct concerns...

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