426 F.3d 187 (2nd Cir. 2005), 04-0224, O'Connor v. Pierson

Docket Nº:04-0224-CV.
Citation:426 F.3d 187
Party Name:Thomas O'CONNOR, Plaintiff-Appellant, v. Lynne B. PIERSON, Ellen C. Healy, Christopher A. Dumas, Patricia Strong, Christine T. Fortunato, Donna T. Hemmann, Stacey Hodges, John F. Morris, Frederick E. Petrelli, Jr., Penny H. Stanziale, and Wethersfield Board of Education, Defendants-Appellees.
Case Date:October 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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426 F.3d 187 (2nd Cir. 2005)

Thomas O'CONNOR, Plaintiff-Appellant,

v.

Lynne B. PIERSON, Ellen C. Healy, Christopher A. Dumas, Patricia Strong, Christine T. Fortunato, Donna T. Hemmann, Stacey Hodges, John F. Morris, Frederick E. Petrelli, Jr., Penny H. Stanziale, and Wethersfield Board of Education, Defendants-Appellees.

No. 04-0224-CV.

United States Court of Appeals, Second Circuit.

October 11, 2005.

Argued Feb. 2, 2005.

Appeal from a judgment of the United States District Court for the District of Connecticut (Robert N. Chatigny, Chief Judge) granting defendants-appellants' motion for summary judgment.

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LEON M. ROSENBLATT, West Hartford, Connecticut, for Plaintiff-Appellant.

MICHAEL J. ROSE, Howd & Ludorf (Alexandria L. Voccio, John J. Radshaw, III, on the brief), Hartford, Connecticut, for Defendants-Appellees.

Before: WALKER, Chief Judge, HALL and GIBSON, [*] Circuit Judges.

JOHN M. WALKER, JR., Chief Judge:

After being placed on administrative leave pending an investigation, plaintiff-appellant Thomas O'Connor, a teacher working for the Wethersfield Board of Education, was invited back to work conditioned on a psychiatric examination and his release of past medical records. O'Connor's lawsuit in state court, removed to federal court, asserted procedural and substantive due process claims in opposition to the Board's conditions. The district court granted summary judgment for the Board. We affirm in part, vacate in part, and remand.

I. BACKGROUND

Thomas O'Connor, an English teacher and track coach, started teaching in the Wethersfield public schools in 1982 and achieved tenure under the Connecticut Teacher Tenure Act, Conn. Gen. Stat. § 10-151, before this case began. In early 1999, the Wethersfield Board of Education received a number of complaints from students, their parents, and other teachers about O'Connor's behavior. These complaints included allegations that O'Connor used foul language and made sexual remarks to students, yelled at a fellow teacher, and breached school security. After meeting with O'Connor on March 25, 1999, the Assistant Superintendent of Schools, Robert Buganski, placed him on "administrative leave with pay and without prejudice" pending the outcome of an investigation into the complaints.

A few days later, O'Connor's cardiologist, Dr. Fred Rubin, wrote to Buganski that O'Connor was ill with chest pain, anxious, and depressed, and that Rubin had advised O'Connor to take an indefinite leave of absence. O'Connor remained suspended with full pay.

During the summer and into the fall, the Board investigated the charges against O'Connor. As the investigation was nearing completion in late October, Buganski wrote to O'Connor requesting the medical assessment of O'Connor's fitness to resume teaching that O'Connor had promised to provide during a meeting with Buganski in August. On October 25, 1999, Rubin wrote to Buganski that

Mr. O'Connor is doing well from a cardiac standpoint and, from that view, he could return to work. However, I am extremely concerned about his severe

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anxiety and worry that this will affect his health problems. However, I am not a psychiatrist nor am I his general physician. I would strongly suggest that these issues be directed to his general physician.

On November 4, 1999, Lynne B. Pierson, Ed.D., the Superintendent of Schools, issued a report summarizing the results of the Board's investigation into O'Connor's conduct. Although the investigation did not bear out all of the initial allegations, Superintendent Pierson concluded that O'Connor had "violated the standards of conduct for a teacher in many respects." Pierson did not recommend firing O'Connor. Instead, she informed O'Connor that he would, on pain of termination, have to work with the administration to improve his performance. Pierson instructed O'Connor to schedule a meeting to develop a remediation plan; the record does not indicate whether he did so.

On November 5, 1999 (the day after Pierson issued the report), Assistant Superintendent Buganski wrote to O'Connor that "it appears that you are medically cleared to return to work" but requested that O'Connor contact Buganski immediately to confirm his ability to return to work. Buganski further noted, "If, however, your health prevents you from returning to work at this time, you will be placed on sick leave pending review of documentation concerning any such health issues." O'Connor informed the Board that he had an appointment with Dr. Rubin on November 22, 1999, and expected Rubin to certify the next day that he could return to work.

No letter from Rubin was immediately forthcoming. Superintendent Pierson decided that in light of both O'Connor's failure to certify that he could return to work and the contents of Rubin's October 25, 1999, letter (which adverted to O'Connor's "severe anxiety"), O'Connor should submit to an independent psychiatric evaluation. In a letter dated December 7, 1999, Pierson instructed O'Connor to schedule an appointment with Dr. Harold Schwartz, a psychiatrist, and enclosed a medical-records release form for O'Connor to sign. The release form would have authorized the recipient to release O'Connor's medical records to Schwartz and to "the Wethersfield Board of Education ... or any of [its] representatives." It placed no time or subject-matter limitations on the records to be released.

O'Connor hired a lawyer, who objected by letter to both the psychiatric examination and the release form. Without signing the release, O'Connor scheduled the examination. On January 4, 2000, Schwartz interviewed O'Connor for approximately two hours. Schwartz told O'Connor that he would need to conduct more interviews, administer psychological tests, and review records from O'Connor's treatment for alcoholism some thirteen years earlier at a facility called Arms Acres. These records included O'Connor's written responses to questions like the following: "How did you learn about sex? Explain"; "Have you ever masturbated?"; "At what age did you begin masturbation?"; "How had you been taught to feel about masturbation? Explain"; "Have you ever had significant problems with sexuality or sexual functioning?" Schwartz asked O'Connor to sign the release form that Superintendent Pierson had sent O'Connor in December.

As of January 20, 2000, O'Connor had neither seen Schwartz again nor executed the medical-records release form when the Board's lawyers wrote to him insisting that he do both if he wanted to keep his job. O'Connor responded within the week with letters to the Board from both Dr. Rubin and Dr. Eric Shore, O'Connor's primary-

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care doctor, attesting that O'Connor was healthy enough to teach. On January 26, O'Connor went to his own psychiatrist, Dr. Les Smith, who wrote a letter much later, on March 20, stating that O'Connor "is not currently disabled by a psychiatric disorder and is able to return to work at this time."

O'Connor next sued the Board and its various employees in Connecticut Superior Court on January 28 seeking, under federal and state law, an injunction against being sent to Dr. Schwartz and money damages. That same day, O'Connor's lawyer wrote the Board's attorneys that, in light of the Board's threat to discipline O'Connor for insubordination if he did not see Schwartz, O'Connor had scheduled an appointment with Schwartz and would allow Rubin to speak with Schwartz about O'Connor's cardiac condition. In response, Superintendent Pierson wrote O'Connor insisting that he see Schwartz and sign the release form. She also noted that because of O'Connor's lawsuit challenging the Board's requirement that he see Schwartz, "I have advised Dr. Schwartz not to proceed further with his evaluation until the Superior Court has ruled on your motion for a permanent injunction. You will remain on medial [sic] leave until the issue has been resolved."

O'Connor's state-court complaint contained a claim under 18 U.S.C. § 1983 for violation of his constitutional rights. Based on this federal claim, on February 22, 2000, the Board removed the case to the United States District Court for the District of Connecticut (Robert N. Chatigny, Chief Judge) pursuant to 28 U.S.C. § 1441 (b) .

As discovery and briefing on cross-motions for summary judgment proceeded throughout the year 2000, settlement conferences overseen by the district court were fruitless. Meanwhile, on November 1, 2000, Buganski advised O'Connor by letter that O'Connor had been using up sick leave since November 5, 1999, and that his sick pay would run out on November 30, 2000, which it did. On December 4, 2000, the Board's lawyer reiterated to O'Connor that he could not return to work until he saw Dr. Schwartz and signed the medical-records release "with no restrictions on the records to be reviewed and conversely, on the information that [Schwartz] may share with Dr. Pierson."

In late February 2001, Magistrate Judge Donna Martinez, upon referral from Judge Chatigny of cross-motions for summary judgment, recommended (1) summary judgment in the defendants' favor on the two procedural due process and the two substantive due process claims that she deemed raised by the complaint, and (2) remanding the state-law claims to the Connecticut Superior Court.

On March 29, 2001, Judge Chatigny adopted Judge Martinez's recommendation as to the procedural due process claims, but deferred ruling on the substantive due process claims and declined to decide whether Superintendent Pierson, the only defendant sued in her individual capacity, was entitled to qualified immunity. On September 28, 2001, Judge Chatigny, upon reconsideration, adhered to his earlier ruling, but found that Superintendent Pierson was entitled to qualified immunity, a ruling that O'Connor has...

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