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Massa v. The School Board of Miami-Dade County

United States District Court, S.D. Florida, Miami Division

January 22, 2018




         Richard Massa, a teacher, brings this First Amendment retaliation case under 42 U.S.C. § 1983 against his employer, the School Board of Miami-Dade County. Massa alleges that the School Board retaliated against him with a series of adverse employment actions after he: (1) reported concerns of grade inflation misconduct against his school principal, and (2) appeared to testify at administrative retaliation hearings on behalf of other School Board employees.

         This cause comes before the Court upon the School Board's motion for summary judgment, which was referred to Magistrate Judge Turnoff for a report and recommendation. Judge Turnoff recommends denying summary judgment. Both parties filed objections.

         The School Board argues that: (1) Massa did not suffer an adverse employment action, and even if he did, he has provided insufficient evidence of pretext to rebut the legitimate nondiscriminatory reasons for those actions; and (2) even if Massa can prove retaliation, the evidence is insufficient to prove that the School Board has an unofficial custom or policy of unconstitutional retaliation.

         The Court has reviewed de novo the motion, response, reply, and objections. Additionally, the parties raised some of their briefed arguments at oral argument on October 30, 2017. As explained below, the School Board's motion for summary judgment is DENIED. However, the Court also excludes certain witnesses from testifying about the School Board's alleged custom and policy of unconstitutional retaliation. Accordingly, the School Board's motion in limine to strike witnesses is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         A. Facts

         Construing the record in the light most favorable to Massa, the facts are as follows. Massa has worked for the School Board continuously for approximately 36 years, serving as a highly effective teacher of severely handicapped students. He is still currently employed by the School Board. During the relevant time period in this case, he worked at Neva King Cooper Educational Center, a school serving about 120 students ranging from ages 3-22, all of whom receive special education services because of profound intellectual disabilities.

         1. Massa Reports Alleged Misconduct and Testifies in Other Retaliation Proceedings

         In early March 2013, fellow teacher Luz Morales told Massa that she had been threatened with a poor evaluation by Neva King Cooper's recently appointed principal, Dr. Tracy Roos, unless her students were retested and given higher scores on the Florida Alternate Assessment Test. In early April 2013, Massa met with school administration on Morales' behalf and expressed Morales' concern that she felt pressured to give students favorable test scores that they had not earned. In the ensuing months, Massa and fellow teacher Tebelio Diaz were approached by several other teachers with similar stories. In December 2013, Massa and Diaz wrote a letter to Commissioner Pam Stewart of the Florida Department of Education alleging that Principal Roos was pressuring teachers to inflate students' grades.

         Around the same time, in January and February 2014, the Division of Administrative Hearings conducted an unrelated hearing pertaining to allegations that the School Board had violated a Florida statute by allegedly retaliating against former Neva King Cooper principal, Dr. Alberto Fernandez, and two other employees-then-Assistant Principal Henny Cristobol and Patricia Ramirez-who had tried to organize a charter school conversion at Neva King Cooper. Massa testified on behalf of Dr. Fernandez, Cristobol, and Ramirez in that hearing. The administrative law judge found that the School Board had indeed retaliated against the employees.

         On February 22, 2014, Massa and Diaz filed a complaint with the Florida Department of Education Inspector General re-alleging grading improprieties against Principal Roos, and Massa met with a special agent from the Office. Massa and Diaz also sent a copy of the complaint to Miami-Dade County Public Schools Superintendent Alberto Carvalho. A few weeks later, on March 9, 2004, Principal Roos angrily approached Massa after finding out about the investigation. Four days after this encounter, Massa met with an investigator for the Miami-Dade County Public Schools Civilian Investigative Unit about the same allegations. The Civilian Investigative Unit eventually determined that the allegations against Principal Roos were unfounded.[1]

         2. First Alleged Retaliatory Actions

         a. Performance Evaluation

         On May 27, 2014, Principal Roos gave Massa a performance evaluation with eight standards of performance measurement. For several of the observational standards, Principal Roos rated Massa as "effective." In prior years, other principals had rated Massa as "highly effective" in the same categories. Irritated, Massa met with Principal Roos about the evaluations. During this meeting, Principal Roos told Massa: "You know why you did not get any 'highly effective' ratings; you know what's been going on." But, Principal Roos then changed one or two of the categories from "effective" to "highly effective, " also claiming that she had not entered the "effective" scores, and that her computer must have been hacked by someone else. Massa still was dissatisfied with the overall evaluation, but it did not materially impact his compensation or any other terms and conditions of his employment.

         b. Reassignment of Classroom Personnel and Students

         In August 2014, at the start of the new school year, Assistant Principal Alician Fernandez and Principal Roos reassigned several paraprofessionals and students to different classrooms at Neva King Cooper, including Massa's paraprofessional. Massa was assigned an inexperienced paraprofessional and a new group of students with severe behavioral disorders and violent tendencies. Principal Roos and Assistant Principal Fernandez believed the changes would better meet the students' needs.

         3. Massa Prepares to Testify Again

         On January 14, 2015, Massa was subpoenaed to testify at a disciplinary administrative hearing on behalf of Morales, the teacher who had originally raised concerns with Principal Roos' alleged grade inflation. Morales had been disciplined by the School Board for failing to properly supervise a disabled student during community-based instruction. Principal Roos saw Massa waiting in the hall to testify, but Massa never was called to give testimony and did not participate in the hearing in any way.

         4. Continued Alleged Retaliatory Actions

         a. Testing Incident

         In February 2015, Massa attended a Florida Alternate Assessment training session conducted by Assistant Principal Fernandez. In March 2015, Massa administered a test to a student. Approximately one-third of the way through the exam, Massa noticed that the test booklet contained "X" and "O" markings. After the test, Massa returned the testing materials to Assistant Principal Fernandez, who also served as the school's testing chairperson. Massa told Assistant Principal Fernandez about the marks in the response booklet. Under Miami-Dade County Public Schools Standards, Guidelines, and Procedures for Test Administration and Test Security, the markings were a testing irregularity, and Massa should have immediately sought Assistant Principal Fernandez's assistance. Because Massa did not immediately report the markings, but instead finished administering the test, Assistant Principal Fernandez reported the alleged breach in procedure to the appropriate Miami-Dade County Public Schools authorities. Ultimately, the Civilian Investigative Unit determined that Massa had violated testing procedures. For the infraction, Massa received a written reprimand on his permanent record. But, it did not affect his pay or any other terms and conditions of his employment.

         b. Choking Incidents, Bathroom Incident, and Summer Employment

         Between February and April 2015, there were three incidents of students choking on food in Massa's classroom. Concerned, Principal Roos called the incidents in to the Miami-Dade County Public Schools Office of Professional Standards.[2] The Office instructed Principal Roos to perform an administrative review of the incidents. After her own investigation, Principal Roos determined that there was no probable cause that Massa had violated any School Board policies, and Massa was not disciplined in any way.

         The choking incidents also were reported to the Department of Children and Families, as required by statute and School Board policy. In April 2015, a Department investigator visited Neva King Cooper and conducted a separate investigation. Like Principal Roos, that investigator also found no wrongdoing. However, during the investigation, one of the paraprofessionals in Massa's classroom shared that Massa had been taking one of the male students into the bathroom with him. Indeed, Massa had informed Principal Roos in October 2014 that his practice was to take this particularly aggressive student into the bathroom with him because Massa's paraprofessional was afraid of the student and could not handle him. Massa's practice was to have the student stand directly behind him against the wall, shielding the urinal from the student's view. The investigator notified Principal Roos, and also advised that the School Board investigate further. Principal Roos alerted the Office of Professional Standards.

         In May 2015, school police initiated an investigation. Miami-Dade County Public School policy mandates that employees under investigation are not to be hired for extra summer employment assignments. Indeed, the governing Summer Implementation Document stated: "Any personnel in a pending investigative status or on a performance improvement plan are not eligible for summer employment." As a result, Principal Roos did not hire Massa for summer school in 2015, and Massa missed out on the extra compensation. The school police investigation eventually uncovered no wrongdoing and Massa was not disciplined in any way. Principal Roos hired Massa for 2016 summer employment.

         c. Massa's Transfer is Denied

         In August 2016, Massa attempted to transfer from Neva King Cooper to work under former principal Dr. Fernandez again. His transfer request was briefly approved, but was then disapproved by "much higher authority."

         B. Procedural History

         On August 7, 2015, Massa sued the School Board in state court. The School Board removed the case to this Court. On March 15, 2016, Massa filed his Second Amended Complaint, which is now the operative complaint. The School Board moved for summary judgment, and this Court referred the motion to United States Magistrate Judge William C. Turnoff. On August 17, 2017, Magistrate Judge Turnoff issued a Report and Recommendation that recommends denying summary judgment. Both sides filed objections, which this Court now reviews de novo.

         II. L ...

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