459 F.3d 207 (2nd Cir. 2006), 05-3211, Segal v. City of New York

Docket Nº:Docket No. 05-3211-CV.
Citation:459 F.3d 207
Party Name:Sarrit SEGAL, Plaintiff-Appellant, v. CITY OF NEW YORK, Department of Education of the City of New York, Joel Klein, Chancellor of NYC Public Schools, Theresa Europe, Director of the Office of Special Investigations, Thomas Highland, Deputy Director of Special Investigations, Ness Matos, Officer of the Office of Special Investigations, Joseph Ponzo
Case Date:August 03, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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459 F.3d 207 (2nd Cir. 2006)

Sarrit SEGAL, Plaintiff-Appellant,

v.

CITY OF NEW YORK, Department of Education of the City of New York, Joel Klein, Chancellor of NYC Public Schools, Theresa Europe, Director of the Office of Special Investigations, Thomas Highland, Deputy Director of Special Investigations, Ness Matos, Officer of the Office of Special Investigations, Joseph Ponzo, Assistant Principal, Obdulia Karamanos, Guidance Counselor, John Doe, and Jane Doe, Defendants-Appellees.

Docket No. 05-3211-CV.

United States Court of Appeals, Second Circuit.

Aug. 3, 2006

Argued: June 5, 2006.

Page 208

Edward H. Wolf, Law Offices of Edward H. Wolf, P.C., Bronx, NY, for Plaintiff-Appellant.

Ann E. Scherzer, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Kristin M. Helmers, Assistant Corporation Counsel, on the brief), New York, NY, for Defendants-Appellees.

Page 209

Before WALKER, Chief Judge, NEWMAN and SOTOMAYOR, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

Not every wrong committed at the hands of the government is cognizable as a constitutional violation. In this case, we harbor little doubt that the defendants-appellees committed certain errors during the course of an investigation that ultimately led to the plaintiff-appellant's termination. Whether this constitutes a deprivation of liberty without due process of law, and is therefore cognizable in an action brought under 42 U.S.C. § 1983, is a separate question.

The undisputed facts establish that the plaintiff-appellant, an at-will government employee, had available to her an adequate post-termination hearing that accorded with the requirements of due process. Because, in our view, the availability of this post-termination name-clearing hearing is sufficient to defeat her "stigma-plus" claims, 1 the defendants are entitled to judgment as a matter of law. We therefore affirm the judgment of the district court, which rested on such a holding.

BACKGROUND

In September 2002, plaintiff-appellant Sarrit Segal was appointed a probationary teacher for the New York City Department of Education ("DOE" or "Department") and was assigned to teach kindergarten at P.S. 396 in the Bronx. By all accounts, Ms. Segal appears to have been a good teacher. On her first performance evaluation she received an above-scale rating of "satisfactory plus" and a note from the principal that indicated, "It is a pleasure to have you as a member of our school community." During the following school year, however, an incident occurred in Segal's classroom that prompted an investigation and in turn resulted in her termination.

On March 5, 2004, Assistant Principal Joseph Ponzo reported to the DOE's Office of Special Investigations that he had received information that Segal had failed to assist a student (hereinafter "Student A") when that student was attacked by other children in Segal's kindergarten classroom. Although Segal was not immediately removed from her classroom duties, the Office of Special Investigations assigned Ness Matos (a DOE confidential investigator) to investigate the incident.

According to Matos's May 6, 2004, report, Segal called the school guidance counselor, Obdulia Karamanos, to report a "riot" in her classroom after she was unable to separate a group of children who were attacking Student A. When Karamanos arrived, she found Segal standing near the children, who were in a circle attacking Student A as that child lay on the floor. Karamanos managed to separate the children and remove Student A from the classroom; she expressed shock because, from her perspective, Segal appeared to have stood by and watched the incident without intervening. In completing his report, Matos also spoke with several students, all of whom were implicated in one way or another in the attack on Student A. The children's ages ranged from five to six. Several of the children stated that Student A had hit them, and that Segal directed them to strike back. 2 Segal denied

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these allegations; she stated that she tried to stop the children from attacking Student A, and, when that proved impossible, she called for outside help, eventually reaching Karamanos after her calls to the principal and the assistant principal went unanswered. Based on these interviews, Matos chose to believe the story of some of the children; he concluded that "Ms. Segal's claim that she did not instruct the students to hit Student A, and that she did try to stop the hitting[,] is not credible and not supported by witness statements." He recommended that the Department terminate Segal's employment and place her name on the Department's Ineligible/Inquiry List, which would essentially render her ineligible for future employment with the Department.

Although the Matos report only made a recommendation, Segal did not wait until her termination but instead responded on June 16, 2004, by filing the instant lawsuit in the United States District Court for the Southern District of New York. In her complaint, she alleged that the defendants deprived her of her liberty without due process of law. She named as defendants the City of New York, the Department of Education, and various Department employees.

Shortly after filing her suit, Segal received a letter dated June 30, 2004, in which Joel DiBartolomeo, the Community Superintendent of District 10, informed Segal that he would decide, based on the recommendations in Matos's report, whether to discontinue her services as a probationary employee and terminate her license. DiBartolomeo wrote that his basis for a decision whether to terminate Segal would be the "allegations of corporal punishment inflicted on a kindergarten student"; he indicated that he would render his decision on July 12, 2004. Although Segal failed to submit direct evidence of DiBartolomeo's ultimate decision, the defendants conceded in their answer that Segal "was terminated and placed on an inquiry list." We assume these facts for purposes of deciding the instant appeal. 3

Subsequent to Segal's termination, the United Federation of Teachers, acting on Segal's behalf, filed a C-31 administrative appeal with the Department; apparently, however, the union did not inform Segal that it had done so. Segal was eventually notified of the appeal when the Department's Office of Appeals and Reviews informed her that a hearing was scheduled for December 15, 2004, at which time Segal would have been permitted to challenge her termination, be represented by an advocate selected by her union, present evidence, call witnesses, cross-examine witnesses, and make an oral presentation. On the advice of her counsel, however, Segal indicated in a letter that she had not given anyone permission to pursue the appeal and did not wish to go through with the hearing. As a result, the Department did not hold a hearing.

Meanwhile, Segal's federal lawsuit had progressed through discovery, and by December 2004 the parties were on the verge of negotiating a settlement. Negotiations broke down, however, after the New York Post

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ran a story about the classroom incident and the conclusions in the Matos report. In an affidavit, Segal stated that the article was "emblematic of the deep stigma" associated with the charges in the Matos report and "spooked the offerors from going forward with the settlement." There is no record evidence, however, to suggest that the Department was responsible for "leaking" the Matos report to the Post. The report was attached as an unsealed exhibit to Segal's complaint, filed before the Post ran its article, and thus was a matter of public record.

The defendants eventually moved for summary judgment on all three counts in Segal's complaint. The district court (Jed S. Rakoff, Judge) granted the motion. Segal v. City of New York, 368 F.Supp.2d 360 (S.D.N.Y.2005). After noting that "[t]he Due Process Clause of the Fourteenth Amendment prohibits a state actor from depriving a citizen of her life, liberty, or property without due process of law," the district court explained that "[l]oss of reputation can constitute deprivation of a liberty interest when, for example, it occurs in the course of dismissal from government employment," an action we commonly refer to as a "stigma-plus" claim. Id. at 362 (citing Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir.2004)).

The district court construed each of Segal's causes of action as predicated on the existence of a stigma-plus claim, id.; this construction has not been challenged on appeal. The district court also noted that Segal had conceded that "she has no due process claim based on any property interest, since she was a probationary employee with no constitutionally protected property interest in her employment." Id. at 362 n. 1. As a result, the district court stated that in order to avoid summary judgment Segal had to "adduce competent evidence from which a reasonable fact-finder could find, first, that the DOE, in connection with terminating Segal, made false, publicly-available statements that impugned plaintiff's professional reputation, and, second, failed to give her adequate due process to clear her name." Id. at 362 (citing Patterson, 370 F.3d at 329-30). The district court concluded that Segal could not meet this standard. Id. Even if Segal could satisfy the first requirement, the district court held she could not meet the second. Id. In the district court's view, Segal had been afforded adequate process, whether by a C-31 administrative appeal or a proceeding brought pursuant to Article 78 of the New York Civil Practice Law and Rules; Segal simply failed to avail herself of either of those options. Id. at 362-63. As a result, the district court granted the defendants' motion and...

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