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A high school principal allegedly forced out of his job for commenting on the inebriation of a school superintendent at a school function will be allowed to take his case to trial. Ronald DePace sufficiently alleged retaliation for expressing his opinion under the First Amendment, and also charged enough facts to support an equal protection violation, U.S. District Judge Lewis Kaplan ruled Tuesday. Kaplan, of the Southern District of New York, also said in DePace v. Flaherty, 00 Civ. 4000, that Maureen E. Flaherty, school superintendent of the Florida Union Free School District, could not avoid suit on the basis of qualified immunity at this stage of the proceedings. The dispute began when DePace was called, along with police, to the Golden Hill Elementary School Costume Bash on Oct. 29, 1999. Several parents had witnessed a parent striking and threatening to kill a child, and when DePace arrived at the scene, he asked a parent to locate Flaherty. Although DePace believed the superintendent was at another school system event, the parent located Flaherty at a bar where, Judge Kaplan noted, it was alleged “she had been drinking heavily.” According to the lawsuit, Flaherty drove to the school drunk, was briefed on the situation by DePace, and left the scene. DePace claimed that in the days following the incident, Flaherty expressed her displeasure that DePace had tried to locate her, and said that he had placed her job in jeopardy. She also told DePace he should look for work elsewhere. DePace told Flaherty her intoxication and drunk driving was inappropriate. He said Flaherty responded by enlisting staff members and members of the Board of Education in a campaign to force his resignation based on trumped up charges of sexual harassment. DePace was suspended while the charges were pending. During that suspension, school officials learned that a female student had made allegations of sexual harassment against a male gym teacher. Because the gym teacher was not suspended, DePace said he was the victim of an equal protection violation. A hearing officer later found in DePace’s favor, and he has been reinstated as principal of Golden Hill Elementary in Orange County. Arguing that DePace had failed to state a claim upon which relief could be granted, Flaherty moved to dismiss the case. But Judge Kaplan said that DePace had stated a prima facie case. While there are some limitations on speech for public employees, he said, their speech is “constitutionally protected if it relates to a matter of legitimate public concern.” “Certainly the propriety of a superintendent’s public drinking, drinking and driving, and appearance at a school event, in an allegedly intoxicated state is a matter of ‘political, social or other concern to the community,’” Kaplan said. “In expressing his view on the subject, DePace was not voicing concern over internal office affairs nor, for the most part, with Flaherty’s treatment of him generally.” Flaherty argued that DePace’s First Amendment right to make the comments was “entitled to little weight” because the comments were made as part of an effort to save his job. “In this case, however, the fact that DePace’s comment about Flaherty’s drinking was followed by a comment about his own employment does not so alter the context of his telling his superintendent his views on her alleged public drunkenness as to take those comments out of the realm of public concern,” he said. Kaplan said that courts employ a balancing test in determining whether an adverse employment action is permissible following the exercise of First Amendment rights. Those factors are whether the employer’s prediction of disruption is reasonable, the potential disruption of the speech is enough to outweigh the value of the speech, and “the employer took action against the employee based on this disruption and not in retaliation for the speech.” “The complaint here does not even begin to suggest that defendants thought that plaintiff’s comments to Flaherty presaged disruption, much less that they acted on a threat of such disruption rather than in retaliation for the comments themselves,” Kaplan said. “Plaintiff’s First Amendment claim therefore is legally sufficient.” In seeking dismissal of the equal protection claim, Flaherty argued that DePace and the male gym teacher were not “similarly situated” because there are different means for disciplining principals and non-tenured teachers. “This argument is far from compelling, as it focuses on the procedural protections afforded to educators rather than on the standards of conduct for which they are held,” Kaplan said, He added that a jury could find that it was DePace’s comments that led to him being treated differently than the gym teacher. Finally, Judge Kaplan rejected Flaherty’s qualified immunity claim. He said that the First Amendment and the Equal Protection Clause protections afforded DePace were “clearly established long before” the incident. “In light of the law that antedated the events of this case, the unlawfulness of the disciplining of or discrimination against a public employee as a result of speech such as this was apparent,” he said. The judge ended by noting that Flaherty’s actions, if proven true, were not “objectively reasonable,” but that “further development of the case may reveal facts upon which a defense of qualified immunity might be based.” Jane Bilus Gould of Lovett & Gould in White Plains, N.Y., represented DePace. Mark C. Rushfield of Shaw & Perelson represented Flaherty and the school district.

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