411 F.3d 306 (2nd Cir. 2005), 04-0905, Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free School Dist.

Docket Nº:04-0905-CV.
Citation:411 F.3d 306
Party Name:Sharon BURKYBILE, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE HASTINGS-ON-HUDSON UNION FREE SCHOOL DISTRICT and John J. Russell, Individually and in his Official Capacity as Superintendent of the Hastings-on-Hudson Union Free School District, Defendants-Appellees.
Case Date:June 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 306

411 F.3d 306 (2nd Cir. 2005)

Sharon BURKYBILE, Plaintiff-Appellant,


BOARD OF EDUCATION OF THE HASTINGS-ON-HUDSON UNION FREE SCHOOL DISTRICT and John J. Russell, Individually and in his Official Capacity as Superintendent of the Hastings-on-Hudson Union Free School District, Defendants-Appellees.

No. 04-0905-CV.

United States Court of Appeals, Second Circuit

June 15, 2005

Argued: Nov. 8, 2004.

Page 307

Robert F. Hellmann, Terre Haute, IN, for Plaintiff-Appellant.

Joan M. Gilbride, Kaufman Borgeest & Ryan, LLP, Valhalla, NY, for Defendants-Appellees.

Before: WALKER, Chief Judge, and POOLER and WESLEY, Circuit Judges.

POOLER, Circuit J.

The facts in this case are largely uncontested. However, where facts are contested, we accept the plaintiff's account because this is an appeal from a grant of summary judgment.

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Dr. Sharon Burkybile appeals from the January 5, 2004 order of the United States District Court for the Southern District of New York (Charles L. Brieant, J.) granting summary judgment to defendants-appellees Board of Education ("Board") of the Hastings-on-Hudson Union Free School District ("District") and John Russell, Superintendent of the District. The district court held that Burkybile's suit, brought under 42 U.S.C. § 1983, 1 was precluded by an earlier hearing conducted pursuant to Section 3020-a of the New York Education Law and dismissal of her petition for review of that hearing in New York Supreme Court under Section 7511 of the New York Civil Practice Law and Rules. Burkybile contends that the Section 3020-a hearing was a labor arbitration, and should not have any preclusive effect under the rule of McDonald v. City of West Branch, 466 U.S. 284, 292, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). We hold that the Section 3020-a hearing is a quasi-judicial administrative action whose findings are entitled to preclusive effect under University of Tennessee v. Elliott, 478 U.S. 788, 796-99, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). We further hold that Burkybile waived any argument that her retaliation claim survived the Section 3020-a hearing, which resulted in a finding of just cause for Burkybile's termination. In any case, Burkybile failed to demonstrate a causal nexus between the exercise of her First Amendment rights and the initiation of the Section 3020-a hearing. We therefore affirm.


Burkybile was employed by the District beginning in 1991. For the next ten years, she served variously as Records Maintenance Officer, Assistant Superintendent for Business and Personnel, Deputy Superintendent and Purchasing Agent. During her tenure, Burkybile won numerous accolades and awards from independent organizations for her performance as a school administrator.

Burkybile and her immediate supervisor, defendant-appellee Russell, had a history of conflict. In October 2000, Burkybile received a poor performance evaluation from Russell, which Burkybile later rebutted in writing and at length. On December 1, 2000, Burkybile and Russell had a dispute at an official District dinner. Burkybile later filed a police report alleging that Russell grabbed her arm and shook her while verbally abusing her. Russell responded that an argument had arisen when Burkybile unreasonably refused to assist Russell with an emergency and potential crisis, but denied touching Burkybile. Later in December, Burkybile refused to approve a purchasing order for a replacement cell phone for Russell and cancelled a business credit card, primarily in her name and secondarily in Russell's name, without notifying Russell.

On January 8, 2001, Burkybile spoke during a meeting of the defendant-appellee Board to accuse Russell of improper governmental actions. In response, the Board asked Burkybile not to attend future Board sessions and retained special counsel Ricki Roer to investigate Burkybile's accusations. Between January 8, 2001, and March 31, 2001, Burkybile conducted a vigorous campaign to support her accusations.

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This campaign included meeting with Roer, writing letters and providing documentation to Roer and the Board, and filing complaints with the New York State Attorney General and Comptroller.

On April 2, 2001, the Board decided to support Russell. Concerned by Burkybile's behavior and possible mental instability, the Board placed Burkybile on paid leave on the same day. Roer submitted her investigation report on April 26, essentially clearing Russell of fault and questioning Burkybile's job performance and professional judgment. On May 21, 2001, the Board ordered Burkybile to submit to medical examination pursuant to New York Education Law § 913. Three doctors chosen by the Board conducted a series of examinations of Burkybile between August 21, 2001, and February 25, 2002, and between them diagnosed narcissistic disorder, borderline personality disorder, language problems, and possible indication of a degenerative brain condition known as Pick's Disease. These findings were controverted by Burkybile's three doctors, who diagnosed a depressive episode due to stress, adjustive disorder, and possible post-traumatic stress disorder, with significant improvement in symptoms over time. Two of Burkybile's doctors and her lawyer were permitted to observe the examinations by the Board's doctors, and questioned the methodology of certain of those examinations.

The final medical report was completed on February 25, 2002. The next day, the Board found probable cause to bring a disciplinary proceeding against Burkybile based on charges brought by Russell, pursuant to Section 3020-a of the New York Education Law, which lays out extensive hearing and appeal procedures for disciplining tenured teachers and administrators in the New York state school system. Probable cause was found for additional charges on June 24, 2002. In total, Burkybile faced eight charges, covering several dozen incidents and 154 specifications. The charges included mental disability, incompetence, insubordination, neglect of duty, conduct unbecoming an administrator, and misconduct. A finding of probable cause initiates a disciplinary action under Section 3020-a. See N.Y. Educ. Law § 3020-a(2)(a). Upon receipt of the disciplinary charges, Burkybile requested a hearing under New York Education Law § 3020-a(3). Meanwhile, she filed the instant action on March 15, 2002, alleging, inter alia, infringement of her First Amendment rights in the form of retaliation by Russell and the Board for her accusations against Russell. Defendants subsequently moved for summary judgment. At Burkybile's request, the response to the motion was held in abeyance pending the outcome of the Section 3020-a hearing.

Burkybile and the Board proceeded to a Section 3020-a...

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