541 F.2d 949 (2nd Cir. 1976), 563, diLeo v. Greenfield

Docket Nº:563, Docket 75-7316.
Citation:541 F.2d 949
Party Name:Roger diLEO, Appellant, v. Richard GREENFIELD, et al., Appellees.
Case Date:September 01, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 949

541 F.2d 949 (2nd Cir. 1976)

Roger diLEO, Appellant,

v.

Richard GREENFIELD, et al., Appellees.

No. 563, Docket 75-7316.

United States Court of Appeals, Second Circuit

September 1, 1976

        Argued May 13, 1976.

Page 950

[Copyrighted Material Omitted]

Page 951

        Karl Fleischmann, Hartford, Conn. (Fleischmann & Sherbacow, Hartford, Conn., on the brief), for appellant.

        Leo Rosen, Hartford, Conn., for appellees.

        Before LUMBARD and TIMBERS, Circuit Judges, and NEWMAN, District Judge. [*]

        LUMBARD, Circuit Judge:

        Roger diLeo, formerly a teacher of French and Spanish in a Bloomfield, Connecticut junior high school, appeals from an order of the District Court of Connecticut that upheld his dismissal by the Bloomfield Board of Education. The district court found that notification to diLeo of the basis for his termination had cured any vagueness in the provisions of the statute under which he had been dismissed. We hold that the statute at issue is not unconstitutionally vague as applied and therefore affirm the result reached by the district court.

        Prior to June 1973, diLeo taught in the Bloomfield school system for longer than three years and thereby acquired tenure under Conn.Gen.Stat. § 10-151. As a tenured teacher, diLeo could be terminated only after opportunity for a hearing at which the Board of Education had to prove that he had demonstrated:

"(1) inefficiency or incompetence;

(2) insubordination against reasonable rules of the board of education;

(3) moral misconduct;

(4) disability, as shown by competent medical evidence;

(5) elimination of the position to which the teacher was appointed, if no other position exists to which he may be appointed if qualified; or

(6) other due and sufficient cause . . ."

        Conn.Gen.Stat. § 10-151(b).

        On June 21 and July 2, 1973, the Board of Education notified diLeo that his employment would be terminated because he had exhibited "improper conduct towards students on several occasions" sufficient to constitute "other due and sufficient cause" under the statute. After a hearing at which parents testified to diLeo's alleged misconduct, the Board of Education officially terminated appellant's employment.

        Thereafter, on September 11, 1973, diLeo instituted a civil rights action against appellees under 42 U.S.C. § 1983. He claimed that § 10-151(b)(6) was unconstitutionally vague, that the notification he had received on June 21 and July 2 failed to give him sufficient notice of the charges against him, and that the hearing that preceded his dismissal had been tainted by hearsay. On motion for summary judgment, the district court found that hearsay had been admitted in violation of diLeo's right to due process and ordered a new hearing. The court did not, at that time, address appellant's other claims or order his reinstatement.

        New hearings were held May 20 and June 5, 1974. 1 The Superintendent of Schools testified that he had received numerous complaints concerning appellant's classroom conduct and apparent lack of concern for the education or emotions of his pupils. Delegations of students had visited the Superintendent to inform him of the deteriorating conditions in appellant's classes and sixty-two students had signed a petition, which was submitted to the principal of the school, stating that they were not learning anything from diLeo. Meetings between school administrators and appellant failed to ameliorate the situation. One student testified that after his mother had complained to school administrators, diLeo derided him in front of his classmates and

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on other occasions refused to assist the student with classwork. There was also testimony that on several occasions appellant made comments with sexual connotations to students, thereby embarrassing students before their peers. Further evidence revealed that diLeo had not completed a lesson plan book and consistently refused to answer students' questions or to explain ambiguous textbook material. DiLeo did not testify at the hearing and refused the offer of a continuance to prepare a response.

        On the basis of this testimony, the Board of Education, by decision of June 18, 1974, again terminated appellant. Appellant then renewed his motion for summary judgment of the claim that the statute on which appellees had based the dismissal was so vague that he could not have known the standard to which his conduct had to conform. In an order of February 4, 1975, the district court rejected this contention. The court held that while § 10-151(b)(6) standing alone is vague, the prehearing notification received by diLeo sufficiently informed him of the acts that served as the basis for his dismissal so that he could prepare a defense at the hearing.

        The court further found that the Board of Education had improperly deprived appellant of his teaching position for the year between the first and second hearings. After a hearing on damages, the court entered judgment of $6327 for diLeo. This amount was paid by the Board of Education and retained in a separate bank account by diLeo's attorney. DiLeo then entered this appeal from the holding that § 10-151(b)(6) was not unconstitutionally vague.

Appealability

        Appellees claim that acceptance of the damage awarded by the district court constitutes satisfaction of a judgment based on all diLeo's claims and thereby precludes an appeal from that judgment. Appellees maintain that payment of the judgment was made only in the expectation that a satisfaction of judgment would be forthcoming from appellant and that, although no document of satisfaction was received, appellant is now estopped from appealing those portions of the judgment decided against him. We hold that the claim for which diLeo recovered damages is so unrelated to his claim of unconstitutional vagueness that he is not estopped from bringing this appeal.

        DiLeo received judgment based on one year's salary because the Board of Education terminated him after a hearing that was tainted by hearsay. He was not reinstated pending a rehearing that comported with due process. The Board of Education did not appeal from this determination and thus the question of whether diLeo should have been retained as a teacher for the 1973-1974 school year has been finally settled in his favor notwithstanding any question of the validity of § 10-151(b)(6). The money judgment that is thus conceded to be due to diLeo for that period bears no relation to the controversy which is the subject of this appeal and it grants to diLeo "only that to which he is entitled in any event." Allen v. Bank of Angelica, 34 F.2d 658, 659 (2d Cir. 1929). See Embry v. Palmer, 107 U.S. 3, 8, 2 S.Ct. 25, 27 L.Ed. 346 (1882); In re Electric Power & Light Corp., 176 F.2d 687, 690 (2d. Cir. 1949).

        Even if this is considered a case in which a litigant accepts the benefits of a judgment on which his appeal is based, see Wilson v. Pantasote Co., 254 F.2d 700 (2d Cir. 1958), we do not believe that an appeal is precluded. Subsequent to the decision of this court in Wilson, the Supreme Court espoused the principle that "where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the unsatisfactory judgment does not, standing alone, amount to an accord and satisfaction of the entire claim." United States v. Hougham, 364 U.S. 310, 312, 81 S.Ct. 13, 16, 5 L.Ed.2d 8 (1960). The good sense of that rule is apparent in this case. DiLeo cannot have considered an award for the 1973-1974 school year to have constituted adequate damages when it is clear that the purpose of his lawsuit was to regain his employment as a teacher and he had already been terminated

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for the 1974-1975 and succeeding school years.

        We also note that we would reach the same result by applying the test of appealability which recently has been adopted by at least three other circuits. Under this test, a party who accepts the benefits of a judgment is foreclosed from taking an appeal only if the circumstances indicate a mutual intent finally to settle all claims in dispute and thereby to terminate the litigation. See United States for Use and Benefit of H & S Industries, Inc. v. F. D. Rich Co., 525 F.2d 760, 764-65 (7th Cir. 1975); Hawaiian Paradise Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 752 (9th Cir. 1969); Gadsden v. Fripp, 330 F.2d 545, 548 (4th Cir. 1964). See also 9 Moore, Federal Practice P 203.06 at 719 (1975). Termination of diLeo for "improper conduct towards students" will undoubtedly cause him difficulty in securing future teaching positions. Therefore, diLeo cannot be said to have intended a $6300 judgment to have settled...

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