732 F.2d 1133 (2nd Cir. 1984), 708, Giglio v. Dunn

Docket Nº:Cal. No. 708, Docket 83-7871.
Citation:732 F.2d 1133
Party Name:Anthony F. GIGLIO, Plaintiff-Appellant, v. John P. DUNN, Individually and as Superintendent of Schools of Mt. Morris Central School District, Charles Hollowach, Individually and as Superintendent of Mt. Morris Central School District, Robert Bishop, Individually and as Trustee, Glenn Dalrymple, Individually and as Trustee, Ronald Hallinen, Individu
Case Date:April 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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732 F.2d 1133 (2nd Cir. 1984)

Anthony F. GIGLIO, Plaintiff-Appellant,

v.

John P. DUNN, Individually and as Superintendent of Schools

of Mt. Morris Central School District, Charles Hollowach,

Individually and as Superintendent of Mt. Morris Central

School District, Robert Bishop, Individually and as Trustee,

Glenn Dalrymple, Individually and as Trustee, Ronald

Hallinen, Individually and as Trustee, Michael MacArthur,

Individually and as Trustee, Ann Crowley, Individually and

as Trustee, Beatrice Palermo, Individually and as Trustee,

and Mt. Morris Central School District, Defendants-Appellees.

Cal. No. 708, Docket 83-7871.

United States Court of Appeals, Second Circuit

April 20, 1984

Argued Jan. 30, 1984.

Eileen M. Kelley, Albany, N.Y. (Hinman, Straub, Pigors & Manning, P.C. and Donald T. Kinsella, Albany, N.Y., of counsel), for plaintiff-appellant.

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James A. Spitz, Jr., Rochester, N.Y. (Harris, Beach, Wilcox, Rubin & Levey and Angela J. Panzarella, Rochester, N.Y., of counsel), for defendants-appellees.

Before VAN GRAAFEILAND and CARDAMONE, Circuit Judges, and BONSAL, [*] District Judge.

VAN GRAAFEILAND, Circuit Judge:

On June 28, 1982, appellant, Anthony Giglio, resigned from his position as a tenured high school principal in the Mount Morris Central School District. In this action brought in the United States District Court for the Western District of New York, Giglio contends that his resignation was coerced and that he was denied due process because a hearing did not precede the coercion. Judge Telesca dismissed Giglio's complaint for failure to state a claim, holding that a pre-coercion hearing would have been "not only impractical but virtually impossible" and that appellant's post-deprivation remedy under Article 78 of N.Y.Civ.Prac.Law was adequate to satisfy the requisites of due process. We affirm.

According to the allegations of Giglio's complaint which must be accepted here as true, Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975), appellee Dunn, the District Superintendent, began to harass Giglio in 1981 with the intent of pressuring him into a nervous breakdown. By November 1981, Giglio's mental problems had become sufficiently severe that he began to work only part time. After December 30, 1981, he went on full-time disability leave.

On June 28, 1982, appellees, Hollowach, Superintendent of the Board of Cooperative Educational Services for the District, and Dunn, met with Giglio. The two men, acting at the direction of the other individual appellees, told Giglio that the Board of Education would abolish his position at a meeting that evening unless Giglio agreed to return to work by July 1, 1982. When Giglio told Dunn and Hollowach that his psychiatric problems prevented him from doing so, they told him that his position would be abolished at the Board meeting unless he agreed to resign. Giglio tendered his resignation a few hours later. On July 12, 1982, Giglio requested that his resignation be withdrawn, but, the resignation having been accepted and acted upon, his request was denied. See Zarada v. Board of Educ., 42 Misc.2d 509, 510, 248 N.Y.S.2d 619 (1963).

Assuming, as appellant alleges, that his resignation was coerced, Article 78 of N.Y.Civ.Prac.Law, which is an amalgam of the common law writs of certiorari to review, mandamus, and prohibition, made available to Giglio both a hearing and a means of redress. See Willis v. VonHolden, 67 A.D.2d 810, 413 N.Y.S.2d 47 (1979). Had an Article 78 hearing been held, the court, with all the facts before it, could have determined whether appellant's resignation was coerced and, avoiding the constitutional thicket, could have ordered such reinstatement and monetary relief as was appropriate. See id. For reasons best known to his attorney, appellant abjured this readily available remedy, preferring to base his claim on an alleged due process right to a pre-coercion hearing. We agree with the district court that, in a case such as this, a pre-coercion hearing was neither feasible nor constitutionally required.

Although a resignation ostensibly voluntary may not be such at all, it nonetheless differs from an ordinary firing in two ways. First, it is not a unilateral act on the part of the employer, and, second, it does not purport to be for cause. Instead, it is a much-used, face-saving device designed to avoid the stigma of being fired. See Abramovich v. Board of Educ., 46 N.Y.2d 450, 455, 414 N.Y.S.2d 109, 386 N.E.2d 1077, cert. denied, 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58 (1979); Irish, If Things Don't Improve Soon, I May Ask You To Fire Me 9 (Anchor Press/Doubleday 1975). A school teacher, for example, may resign and avoid the filing of written charges against him with the clerk or secretary

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of the school district. See N.Y.Educ.Law Sec. 3020-a.

A coerced resignation does not involve a showing of cause; it is simply the submission by an employee to pressure exerted by a superior. For this reason, it is hard to visualize what sort of prior hearing the Constitution would require the employer to conduct. If there is no factual dispute between the employer and the employee, a hearing is meaningless. See Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977) (per curiam). When an employee resigns, the only possible dispute is whether the resignation was voluntary or involuntary, and this cannot be determined in advance.

Due process requires only that a hearing be held at a meaningful time and in a meaningful manner. Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981). Where a pre-deprivation hearing is impractical...

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