Leslie Canty, Jr. v. The Board of Education of The City of New York, 448 F.2d 428, 2d Cir. (1971)
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Scribd Government DocsLeslie Canty, Jr. v. The Board of Education of The City of New York, 448 F.2d 428, 2d Cir. (1971)
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Scribd Government Docs448 F.
2d 428
Leslie CANTY, Jr., Plaintiff-Appellant,
v.
The BOARD OF EDUCATION OF the CITY OF NEW
YORK, Defendant-Appellee.
No. 992, Docket 71-1312.
United States Court of Appeals,
Second Circuit.
Argued June 23, 1971.
Decided Sept. 3, 1971.
Louis L. Hoynes, Jr., New York City (Richard A. Bertocci, Frank J.
Simone, Jr., Willkie, Farr & Gallagher, New York City, on the brief), for
appellant.
Nina G. Goldstein, New York City (J. Lee Rankin, Corporation Counsel,
City of New York, Stanley Buchsbaum, New York City, on the brief), for
appellee.
Before SMITH and HAYS, Circuit Judges, and POLLACK, District
Judge.*
HAYS, Circuit Judge:
This is an appeal from an order of the United States District Court for the
Southern District of New York, dismissing plaintiff's complaint on defendant's
motion for summary judgment. The essence of plaintiff's claim is that the
failure to provide a full trial type hearing upon his discharge from his position
as a junior high school teacher constituted a denial of due process. Jurisdiction
is asserted under the Fourteenth Amendment and under 42 U.S.C. Sec. 1983
(1964) and 28 U.S.C. Sec. 1343(3) (1964). Since we find that the complaint
does not state a claim properly cognizable in the federal court, we affirm the
determination of the district court.
Plaintiff Canty is the holder of a substitute teacher's license in the New York
City school system. In September 1969 he was engaged to teach science at
Junior High School No. 136 as a regular substitute teacher, a probationary
status. One month later, he was given an unsatisfactory performance rating and
discharged on an emergency basis, that is, without the 10 days notice and
severance pay to which he would otherwise be entitled. Plaintiff's principal
gave various reasons for this action. These included charges that plaintiff kept
children in school for several hours after class, that plaintiff used physical force
on children, that his language and grammar were deficient, that he was late for
a class and was found sleeping in the teacher's room when a pupil was
dispatched to locate him, that an inordinate number of children were referred to
the dean by plaintiff without reason for the referrals, and that plaintiff was
absent from school on two occasions for which an explanation was requested
but never given.
3
Plaintiff denies the truth of these charges and asserts that students in his class
were out to "get rid" of him and made false complaints, that he was marking
papers, not sleeping, in the teachers room, and that his absences were caused by
his being held incommunicado in a North Carolina jail, after his arrest in a local
speed trap.
Plaintiff secured a hearing before the New York City Human Rights
Commission where it was stipulated that the complaint filed with the
Commission would be dismissed if the Board of Education provided a hearing
for plaintiff. Such a hearing was granted as a "Step 1" grievance procedure
pursuant to the collective bargaining agreement between the Board of
Education and the United Federation of Teachers. The Board upheld the
principal's finding of an emergency, justifying plaintiff's discharge without
notice and pay. At the "Step 2" grievance level, however, this determination
was reversed and the plaintiff was awarded 10 additional days salary. Plaintiff's
request for a "Step 3" hearing was denied on the ground that, under the by-laws
of the Board of Education, the basis alleged for his discharge, his unsatisfactory
rating, was reviewable by the Superintendent of Schools. Although plaintiff's
request for a hearing by the Superintendent was late, the time limitation was
waived and he was granted a hearing before an Assistant Superintendent.
Plaintiff, his principal, a fellow teacher, and a union representative testified at
the hearing. Plaintiff's appeal was denied. Plaintiff alleges that it was only well
after the complaint in the instant action had been filed that he discovered that he
could appeal this determination. By this time the 30 day limit for such an
appeal had expired.
Plaintiff's complaint was properly dismissed because his claim is not
cognizable in the federal courts under 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec.
1343(3) (1964). As this court said in Tichon v. Harder, 438 F.2d 1396, 1399
(2d Cir. 1971), "the claim that appellant was denied procedural due process had
no independent jurisdictional significance." The civil rights statutes confer
jurisdiction only when "the right or immunity is one of personal liberty, not
dependent for its existence upon the infringement of property rights." Hague v.
C. I. O., 307 U.S. 496, 531, 59 S.Ct. 954, 971, 83 L.Ed. 1423 (1939); Eisen v.
Eastman, 421 F.2d 560, 566 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct.
82, 27 L.Ed. 2d 75 (1970). In a case where a denial of procedural due process is
alleged, "the Hague and Eisen test focuses on the interests claimed to be injured
by the denial of due process, because it is the character of those interests that
determines whether the suit involves a 'right of personal liberty' or not." Tichon
v. Harder, supra 438 F.2d at 1399 (footnote and citation omitted).1
6
The facts of this case are remarkably similar to those in the Tichon case. As
was true in that case, "the circumstances of appellant's dismissal involve none
of the essential elements of Sec. 1343(3) jurisdiction." Tichon v. Harder, supra
at 1401. In both cases probationary employees were discharged for
unsatisfactory work from positions of public employment. In neither case was
the capacity to hold further employment, including public employment,
impaired to any greater degree than would result from a similar rating in private
employment.
7
"Although
every dismissal for reasons other than reduction in the work force can be
said to have some impact on future employability * * * in the absence of a clear,
immediate and substantial impact on the employee's reputation which effectively
destroys his ability to engage in his occupation, it cannot be said that a right of
personal liberty is involved." Id. at 1402 (citation and footnote omitted).
8
Though plaintiff may indeed find it more difficult to obtain employment,
"Congress did not intend that every claim of unfair treatment by a state of an
employee, even accompanied by a lack of procedural due process, could be
brought to the federal courts." Id. at 1402.
The plaintiff cites Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966). In that
case it was alleged that Birnbaum, a staff physician of Coney Island Municipal
Hospital, was summarily dismissed in consequence of labor union pressures
based on a claim that he was guilty of anti-Negro bias. The complaint claimed
that Birnbaum's dismissal was followed by official blacklisting by the First
Deputy Commissioner of the New York City Department of Hospitals.2 In the
present case plaintiff's discharge was not based upon any charge that he was
guilty of discrimination on racial grounds, a charge which, as we said in
Birnbaum v. Trussell, supra at 679, "permanently brands the person accused as
one who is unable to put public and professional duty above personal bias." Nor
is there a suggestion of any such official blacklisting as would support a charge
of conspiracy by state officials to deprive Canty of rights secured by Sec. 1983.
Id. at 676-677. Birnbaum is, therefore, readily distinguishable from the present
case, and, as this court said in Tichon v. Harder, supra, 438 F.2d at 1403, "[t]he
line was drawn in Birnbaum and should remain there."
10
Since under 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec. 1343(3), the district court
had no jurisdiction of plaintiff's claim, we affirm the dismissal of the
complaint.
11
The court commends appointed counsel, Mr. Louis L. Hoynes, Jr., for his able
and conscientious representation of plaintiff-appellant in this case.
Of the United States District Court for the Southern District of New York
For a review of some of the relevant cases involving discharge from public
employment see Tichon v. Harder, 438 F. 2d 1396, 1399-1400 (2d Cir. 1971)
Although Canty makes some vague references in his brief to racial
discrimination against him, his complaint alleges no facts to support such a
claim, and, indeed, the claim was raised here for the first time
