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22-447-cv

Kennedy v. Bethpage Union Free School District

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 6th day of February, two thousand twenty-three.

PRESENT: JOSÉ A. CABRANES,

GERARD E. LYNCH,

BETH ROBINSON,

Circuit Judges.

CHRISTINE KENNEDY,

Plaintiff-Appellant, 22-447-cv

v.

BETHPAGE UNION FREE SCHOOL DISTRICT,

Defendant-Appellee,

THOMAS KENNY, DIRECTOR OF GUIDANCE, 

MICHAEL SPENCE, PRINCIPAL, CAROLINE E. 

LAVELLE, ASST. SUPERINTENDENT, TERRENCE 

CLARK, FORMER SUPERINTENDENT, DAVID 

SCHNEIDER, SUPERINTENDENT,

Defendants.

FOR PLAINTIFF-APPELLANT: VESSELIN MITEV, Mitev Law Firm, PC, 

Stony Brook, NY.
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FOR DEFENDANT-APPELLEE: CHELSEA WEISBORD, Sokoloff Stern LLP, 

Carle Place, NY.

Appeal from a memorandum and order dismissing, with prejudice, the Second Amended 

Complaint of Plaintiff-Appellant, Christine Kennedy, entered on February 9, 2022, in the United 

States District Court for the Eastern District of New York. (Pamela K. Chen, District Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

AFFIRMED.

Plaintiff-Appellant Christine Kennedy (“Kennedy”), a school social worker, appeals from a 

memorandum and order, entered on February 8, 2022, granting the motion to dismiss the Second 

Amended Complaint (“SAC”) filed by her employer, Defendant-Appellee Bethpage Union Free 

School District (the “District”). The District Court determined that Kennedy could not maintain 

her First Amendment or due process claims against the District under 42 U.S.C. § 1983 because the 

SAC failed to sufficiently allege liability under Monell v. Department of Social Services against the District 

in connection with its allegedly adverse employment actions—including an involuntary transfer of 

Kennedy within the District. 436 U.S. 658 (1978). Because the District was the sole defendant 

named in the SAC and the District Court found that Kennedy had failed to plead facts sufficient to 

establish Monell liability, the Court did not “address the sufficiency of Plaintiff’s amended First 

Amendment and due process claims.” Spec. App’x 5. We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal. 

We review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), accepting all factual allegations in the complaint as true and drawing all 

reasonable inferences in the plaintiff’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset 

Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).

With respect to Plaintiff’s First Amendment claims based on alleged suppression of speech 

or retaliation for her engaging in protected activity, we affirm the District Court’s dismissal on the 

ground that Plaintiff failed to show either a policy or custom under Monell. The pertinent 

allegations in the SAC were conclusory and insufficient. See, e.g., SAC ¶ 108 (“Each of the aforesaid 

acts or omissions on behalf of the District were undertaken pursuant to a policy or custom of the 

District, enacted by and carried out by Schneider, as Superintendent, with the tacit approval and 

authority of the Board of Education and carried out via his direct reports . . . .”); Id. at ¶ 125

(“Plaintiff was advised that the policy [requiring District approval before she spoke at PTA 

meetings] was directed solely at her and was done so at the direction of Mr. Schneider with the 

knowledge, condolence, and approval of the District.”). Accordingly, the SAC failed to sufficiently 

plead Monell liability against the District related to any alleged First Amendment harm arising from 
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either a suppression of speech concerning the youth mental health crisis harm or retaliation for 

Plaintiff engaging in a protected workplace activity. The District Court therefore correctly dismissed 

these claims on Monell grounds.

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Although the District Court also dismissed Plaintiff’s due process claim on Monell grounds, 

we affirm the dismissal on an alternative basis: Plaintiff failed to articulate a constitutionally 

protected property interest necessary for her due process claim. See Cox v. Onondaga County Sheriff’s 

Dep’t, 760 F.3d 139, 145 (2d Cir. 2014) (“We may . . . affirm on any ground with support in the 

record.”). The SAC alleges that “[a]t all relevant times, Plaintiff had property interests in her 

working as a High School Social Worker, with the SADD club, the PAL program, and the benefits 

and interests that arose out of the same.” SAC ¶ 135. Nowhere, however, does Plaintiff even 

attempt to identify the source of these asserted property interests, and her allegation amounts to a 

conclusory legal assertion rather than an allegation of fact that supports her claim. See Ciambriello v. 

County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002) (“Property interests are not created by the 

Constitution; rather, ‘they are created and their dimensions are defined by existing rules or 

understandings that stem from an independent source such as state law-rules or understandings that 

secure certain benefits and that support claims of entitlement to those benefits.’” (quoting Bd. of 

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972))).

Plaintiff’s other professed property interests fare no better. Although she is correct that 

“due process protects the freedom to engage in any of the common occupations of life,” Donato v. 

Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 632 (2d Cir. 1996) (cleaned up), that protection is 

triggered only “when a plaintiff is completely prohibited from engaging in his or her chosen 

profession,” Hu v. City of New York, 927 F.3d 81, 102 (2d Cir. 2019) (cleaned up). That did not occur 

here; Kennedy was merely moved from her preferred social worker position to another social 

worker position she desired less. Similarly, although Kennedy claims her reputation suffered after 

her transfer, reputational loss does not implicate the Fourteenth Amendment unless “that loss is 

coupled with the deprivation of a more tangible interest, such as government employment.” 

1 To the extent Plaintiff’s bid for municipal liability relies upon the so-called final policymaker 

strain of Monell liability, it falls short because Plaintiff has failed to plead any non-conclusory 

allegations that any person or entity vested with final policymaking authority played any role in the 

alleged First Amendment violations in this case. Direct involvement by the Board is not alleged, and 

although Schneider is implicated in the SAC, Plaintiff has failed to show that he had been delegated 

the authority to make final policy in the relevant areas. See Agosto v. New York City Dep’t of Educ., 982 

F.3d 86, 101 (2d Cir. 2020) (“This court has explained that even when the official is the apex of a 

bureaucracy, that merely makes the decision ‘final’ but does not forge a link between ‘finality’ and 

‘policy.’” (cleaned up)).
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Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004). Once again, nothing of the sort is alleged

here.

Kennedy could have added allegations to support her due process claim when she filed an 

amended complaint in response to the District Court’s specific invitation to do so, and could have 

subsequently moved for leave to amend a second time. She did not do so in the District Court, and 

her request to this Court is not properly made for the first time on appeal. See Kosovich v. Metro 

Homes, LLC, 405 F. App’x 540, 542 (2d Cir. 2010) (citing In re Nortel Networks Corp. Sec. Litig., 539 

F.3d 129, 132 (2d Cir. 2008)).

CONCLUSION

For the foregoing reasons, we AFFIRM the February 9, 2022 judgment of the District 

Court granting Bethpage Union Free School District’s motion to dismiss the Second Amended 

Complaint with prejudice.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk