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finding that placing the plaintiff's name on the DOE's "ineligible list" and noting the charges in her personnel file, neither of which was disclosed, was not sufficiently public to create a stigma
Summary of this case from Ingber v. N.Y.C. Dep't of Educ.Opinion
No. 04 Civ. 6929 (RMB).
December 20, 2005
DECISION AND ORDER
I. Background
In her complaint, first filed on August 26, 2004, and amended on January 3, 2005, Margaret Koehler ("Plaintiff") alleged that New York City, the New York City Department of Education ("DOE"), Joel Klein, Chancellor of the DOE, Maria DiStefano, principal of Public School 108 in South Ozone, New York, and Theresa Europe, Director of Special Investigations at the DOE (together, "Defendants") denied her "a meaningful opportunity to be heard in refutation of charges of corporal punishment" such that she was deprived of "her constitutionally protected liberty interest [because Defendants] . . . plac[ed] stigmatizing information in her personnel file that would reasonably be expected to be disclosed on inquiry imposing upon the Plaintiff a substantial disability with respect to her ability to gain future employment." (Amended Complaint, dated January 3, 2005, ¶¶ 22, 34.)
In its May 11, 2005 Order ("May 11, 2005 Order"), the Court granted Defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, finding,inter alia, that Plaintiff "failed to show a deprivation of due process" because she "was provided with (at least) three different procedural opportunities and fora to air her complaints." (May 11, 2005 Order at 9-10.) Plaintiff was granted leave to amend. (Id. at 14 (citations omitted).)
The Court assumes familiarity with the facts. (See May 11, 2005 Order, at 3-6.)
On or about June 13, 2005, Plaintiff filed a second amended complaint ("Second Amended Complaint"), which is nearly identical to Plaintiff's first amended (January 3, 2005) complaint. The Second Amended Complaint added allegations that (1) "[t]he act of the defendant's principal was neither random nor unauthorized," and (2) "[a]n administrative appeal exists from a termination of a probationary employee pursuant to Chancellor's regulation 31 and [New York Civil Practice Laws and Rules ("CPLR")] Article 78 which are wholly inadequate by federal standards to provide the relief guaranteed pursuant to Federal Law." (Second Amended Complaint ¶¶ 23, 29, 30.)
Defendants have moved (again) for judgment on the pleadings pursuant to Rule 12(c), arguing, inter alia, that "Plaintiff fails to state a claim for a due process violation under 42 U.S.C. § 1983." (See Memorandum of Law in Support of Defendants' Motion for Judgment on the Pleadings to Dismiss the Second Amended Complaint ("Def. Mem."), dated August 11, 2005, at 8.) On or about September 20, 2005, Plaintiff opposed the motion, arguing, inter alia, that "the remedies available under state law are inadequate." (See Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings to Dismiss the Second Amended Complaint, dated September 20, 2005 ("Pl. Opp."), at 2.) On or about October 7, 2005, Defendants filed their reply. (See Defendants' Reply Memorandum of Law in Further Support of Defendants' Motion for Judgment on the Pleadings, dated October 7, 2005 ("Def. Reply").) For the reasons stated below, Defendants' motion for judgment on the pleadings is granted.
II. Legal Standard
"The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed.R.Civ.Proc. 12(b)(6)." Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). In reviewing a motion to dismiss, "the court must accept as true the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995). Dismissal of the claim is proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his [or her] claim which entitle him [or her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996). "[T]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims."Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quotations omitted).
"In deciding a motion for judgment on the pleadings, a court may consider the pleadings and exhibits attached thereto, and statements or documents incorporated by reference in the pleadings." Withrow v. Donnelly, 333 F. Supp. 2d 108, 110 (W.D.N.Y. 2004); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
III. Analysis
Defendants argue that Plaintiff's allegation that "[t]he act of the defendant's principal was neither random nor unauthorized" is an "attempt to argue that [Plaintiff] was entitled to a pre-deprivation hearing," (Def. Mem. at 9; Second Amended Complaint ¶¶ 23, 30), and that because "a non-tenured employee does not have a property interest in her employment[,] . . . [Plaintiff] is not entitled to a pre-deprivation hearing." (Def. Mem. at 9.) Plaintiff responds that "the Constitution requires some kind of a hearing before the State deprives a person of liberty or property" and that "it is feasible to provide untenured teachers with a pre-deprivation hearing as the defendant DOE [Department of Education] already does so with tenured teachers accused of corporal punishment." (Pl. Opp. at 9-10.)
When due process violations stem from "random, unauthorized acts by state employees . . . the Due Process Clause of the Fourteenth Amendment is not violated . . . so long as the State provides a meaningful postdeprivation remedy." Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 880 (2d Cir. 1996); see Hudson v. Palmer, 468 U.S. 517, 532, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Parratt v. Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). "When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process." Id.; see Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982).
The May 11, 2005 Order determined that Plaintiff, as a probationary employee, did not "possess a property interest in continued employment." (May 11, 2005 Order at 9); see also McDonald v. Bd. of Educ. of N.Y., No. 01 Civ. 1991, 2001 U.S. Dist. LEXIS 10325, at *15 (S.D.N.Y. July 25, 2001). "[A] non-tenured employee is not entitled to a pre-deprivation hearing because such an employee does not have a property interest in her position." Newell v. City of N.Y., 2002 U.S. Dist. LEXIS 4634, at *8 (S.D.N.Y. Mar. 19, 2002).
With respect to her Second Amended Complaint, Plaintiff has not adequately plead a liberty interest, i.e., (1) "that her employer published `stigmatizing' information which is arguably false," and (2) "that as a result of the stigma, she has been foreclosed from a range of other employment opportunities." McDonald, 2001 U.S. Dist. LEXIS at **20-21; see also O'Neill v. City of Auburn, 23 F.3d 685, 693 (2d Cir. 1994); Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994).
First, Plaintiff fails to allege that Defendants published stigmatizing statements. "Stigmatizing statements by the government upon her discharge only implicate a liberty interest when there is also public disclosure." Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 631 (2d Cir. 1996) (citations omitted). Plaintiff alleges that her name was "placed on an ineligible list so that she can not be employed anywhere else in the DOE." (Second Amended Complaint ¶ 26.) "Nowhere does she assert that the [ineligible] List disclosed the stigmatizing grounds for her dismissal or that inclusion on the List gives rise to a per se inference that plaintiff was terminated for a reason sufficiently `stigmatizing' to state a due process claim." McDonald, 2001 U.S. Dist. LEXIS at *23 (finding that plaintiff had not properly alleged a liberty interest). Nor does Plaintiff allege that Defendants' statements were false. Although she alleges that "pinning a note on a student . . . does not constitute Corporal Punishment," Plaintiff does not contest that she did "pin the note and the failed quiz onto the T-shirt of Student A to be taken home." (Second Amended Complaint ¶¶ 16, 32.) "If the truth of the statements is not contested, there is nothing to have a hearing about." O'Neill, 23 F.3d at 693.
Second, Plaintiff does not allege that she has been foreclosed from a range of other employment opportunities. See McDonald, 2001 U.S. Dist. LEXIS at **23-24. While Plaintiff states that "the incident and her rating for 2003-2004 was placed in her personnel file," that her personnel file is "subject to public disclosure on inquiry," and that it is "likely" or could "reasonably be expected to be disclosed to prospective employers," (Second Amended Complaint ¶¶ 27, 37), she does not allege that her personnel file actually was disclosed to the public or to any prospective employer. See McDonald, 2001 U.S. Dist. LEXIS at *23 (dismissing claim where plaintiff "fail[ed] to assert that defendants published a stigmatizing statement that interfered with her ability to obtain new employment"); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 n. 13 (1985) (upholding dismissal of liberty claim due to failure to allege publication). Allegations that Plaintiff's "chances for equivalent future employment anywhere else are thin to none," without more, are insufficient to show that Plaintiff has been "foreclosed from a range of other employment opportunities." (Second Amended Complaint ¶ 28);McDonald, 2001 U.S. Dist. LEXIS at **20-21.
Even assuming, arguendo, that Plaintiff had properly alleged a liberty interest, she was still not deprived of due process. As the May 11, 2005 Order makes clear, "Plaintiff was provided with (at least) three different procedural opportunities and fora to air her complaints." (May 11, 2005 Order at 10.) Before she was terminated, Plaintiff(1) "was provided by DiStefano [the principal of Plaintiff's school] with both oral and written notice of the charges against her and an explanation of the evidence of DiStefano's investigation," (2) "was also afforded [an opportunity] to present her version of the facts . . . at the June 1, 2004 meeting with DiStefano," and (3) participated in an "appeal to the DOE Community Superintendent." (Id. at 10-11.)
After Plaintiff was terminated, although Plaintiff was entitled to "a formal review hearing to consider her discontinuance" pursuant to Section 3 of Circular-31, in which she could "be represented by an advocate selected by the Union, present all relevant evidence, call witnesses in [her] behalf, and cross-examine witnesses," Plaintiff "waived her right to participate in the review hearing." (Id. at 11-12 (citations omitted).) And, Plaintiff (1) "pursued — but then waived — available union grievance procedures" and (2) did not initiate a state court Article 78 proceeding, which "is the customary procedural vehicle for review of administrative determinations." (Id. at 12-13 (citing Mitchell v. Fishbein, 377 F.3d 157, 170 (2d Cir. 2004).)
Although Plaintiff now alleges that the administrative appeal to which she was entitled under Circular-31 is "wholly inadequate by federal standards to provide the relief guaranteed pursuant to Federal Law," (Second Amended Complaint ¶ 29), "[i]n light of the availability of several appeals mechanisms — none of which Plaintiff pursued to completion — Plaintiff's arguments regarding the alleged inadequacy of C-31 procedures are unpersuasive." (May 11, 2005 Order at 14); see also Rivera v. Cmty. Sch. Dist. Nine, 145 F. Supp. 2d 302, 308 (S.D.N.Y. 2001) ("New York's general procedures for terminating probationary teachers have already been upheld against due process challenges by both federal and New York state courts."). Similarly, Plaintiff's allegation that "CPLR Article 78 [is also] wholly inadequate" is unpersuasive because Article 78 affords "all of the process that [Plaintiff] was due under the Constitution [by providing] an opportunity to compel the [DOE] to comply with any procedures required under state law." Verri v. Nanna, 20 F. Supp. 2d 616, 622 (S.D.N.Y. 1998) (citations omitted); see Rivera v. Cmty. Sch. Dist. Nine, Nos. 00 Civ. 8208, 01 Civ. 1976, 2002 WL 1461407, at *7 (S.D.N.Y. July 8, 2002) ("Because the State provided [Plaintiff] with notice of the charges against her and an opportunity to clear her name through an Article 78 proceeding, her due process rights were not violated."); Ludd v. Rockville Ctr. Union Free Sch. Dist., No. 89 Civ. 2413, 1990 WL 31650, at *12 (E.D.N.Y. Mar. 9, 1990) ("Because of the availability of Article 78, this court dismisses plaintiffs' procedural due process claim for failure to demonstrate inadequate state procedural remedies.").
IV. Conclusion
For the reasons stated above, Defendants' motion for judgment on the pleadings is granted, and the Second Amended Complaint is dismissed with prejudice. The Clerk of the Court is respectfully requested to close this case.