Brandt v. Board of Co-op. Educational Services, Third Supervisory Dist., Suffolk County, N.Y.

• Decision Date: 29 May 1987
• Docket Number: No. 981,D,981
• Parties: 40 Ed. Law Rep. 56, 3 Indiv.Empl.Rts.Cas. 439 Wayne BRANDT, Plaintiff-Appellant, v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES, THIRD SUPERVISORY DISTRICT, SUFFOLK COUNTY, NEW YORK, Edward J. Murphy and Dominick Morreale, Defendants-Appellees. ocket 86-9053.
• Court: U.S. Court of Appeals — Second Circuit

Page 41

820 F.2d 41

40 Ed. Law Rep. 56, 3 Indiv.Empl.Rts.Cas. 439

Wayne BRANDT, Plaintiff-Appellant, v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES, THIRD SUPERVISORY

DISTRICT, SUFFOLK COUNTY, NEW YORK, Edward J.

Murphy and Dominick Morreale,

Defendants-Appellees.

No. 981, Docket 86-9053.

United States Court of Appeals, Second Circuit.

Argued April 1, 1987.

Decided May 29, 1987.

Barbara J. Johnson, Mineola, N.Y. (Kaplowitz, Galinson & Johnson, Alexander J. Wulwick, of counsel), for plaintiff-appellant.

Warren H. Richmond, III, Northport, N.Y. (Ingerman, Smith, Greenberg, Gross & Richmond, of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, and TIMBERS and ALTIMARI, Circuit Judges.

FEINBERG, Chief Judge:

This appeal concerns whether appellant Wayne Brandt, after his dismissal as a public school teacher, was entitled to a name-clearing hearing pursuant to 42 U.S.C. Sec. 1983 based on the presence of allegedly false and defamatory charges in his personnel file. In October 1980, the Board of Cooperative Educational Services, Third Supervisory District, Suffolk County, New York (the Board), appointed Brandt as a substitute teacher of autistic children at the James E. Allen Learning Center operated by the Board. Brandt's students were 16 to 19 years old with I.Q. scores ranging from 10 to 25. In a series of meetings held in March and April 1981, appellees--the Board; Edward J. Murphy, the Superintendent of Schools; and Dominick Morreale, the principal of the Learning center--charged Brandt with various acts of sexual misconduct involving his students. Despite pressure from appellees, Brandt refused to resign. His demand for a hearing to clear himself of the charges was denied. He was discharged in April 1981, in the middle of his term.

In August 1981, Brandt commenced a proceeding in state court pursuant to Article 78 of the New York Civil Practice Law and Rules. Brandt sought reinstatement to his position, back pay and other benefits and removal from his personnel file of all references to his termination and the charges made against him. By unpublished order in April 1982, the New York Supreme Court ruled that Brandt was not entitled to reinstatement but was entitled to a name-clearing hearing. This order was amended in May to indicate that the hearing was to be held in court. The decision was affirmed on appeal in January 1983, 91 A.D.2d 1043, 458 N.Y.S.2d 892 (2d Dep't 1983), and leave to appeal to the New York Court of Appeals was denied in September 1983, 60 N.Y.2d 661, 467 N.Y.S.2d 833, 455 N.E.2d 486 (1983). As of the date of oral argument before this court, the name-clearing hearing had not been held.

In February 1984, Brandt sought relief in federal court pursuant to 42 U.S.C. Sec. 1983, claiming that appellees had violated his right to liberty under the Fourteenth Amendment. In this complaint, Brandt sought a name-clearing hearing, damages, attorney's fees for the federal suit and attorney's fees for the state proceedings. Brandt did not request reinstatement in the federal complaint.

At a pre-trial conference in November 1986, Judge Leonard D. Wexler of the United States District Court for the Eastern District of New York heard argument on a motion for summary judgment by appellees. The district court ruled that, in order for Brandt to establish his liberty interest, he had to prove that the sexual allegations about him were false and that there was actual disclosure of them to individuals other than those involved in the investigation. Finding that Brandt was unable to prove actual disclosure of the allegations, the district court granted summary judgment to appellees and dismissed Brandt's complaint. This appeal followed.

A government employee's liberty interest is implicated where the government dismisses him based on charges "that might seriously damage his standing and associations in his community" or that might impose "on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). For example, charges that the employee is guilty of dishonesty or immorality are stigmatizing because they call into question the person's "good name, reputation, honor, or integrity." Id. In addition, the charges against the employee must be made "public" by the government employer, Bishop v. Wood, 426 U.S. 341, 348-49, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446-47 (2d Cir.1980), and the employee must allege that the charges are false, Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 883, 51 L.Ed.2d 92 (1977). Where the employee's liberty interest is implicated, he is entitled under the due process clause to notice and an opportunity to be heard. Roth, 408 U.S. at 573, 92 S.Ct. at 2707.

The issue before us is whether the district court properly granted summary judgment to appellees based on its ruling that Brandt must prove that appellees had actually disclosed false allegations of sexual misconduct. As a preliminary matter, it is not clear whether the district court ruled that Brandt had to prove the falsity of the charges in order to establish his right to a name-clearing hearing or only in order to establish damages. While we do not take issue with the latter proposition, we have no doubt that the former is erroneous. The Supreme Court has required only that a plaintiff raise the issue of falsity regarding the stigmatizing charges--not prove it--in order to establish a right to a name-clearing hearing. See Codd, 429 U.S. at 627, 97 S.Ct. at 883. Here, Brandt satisfied that requirement by alleging in his complaint that the charges were false. The truth or falsity of the charges would then be determined at the hearing itself. If Brandt had to prove the falsity of the charges before he could obtain a hearing, there would be no need for the hearing.

Appellees do not contest that point but they argue that under Bishop, 426 U.S. at 348, 96 S.Ct. at 2079, no liberty interest is implicated where there has been no public disclosure of the reasons for the discharge. See also Gentile v. Wallen, 562 F.2d 193, 197 (2d Cir.1977). Brandt has conceded that appellees have disclosed the charges against him only to those involved in the investigation. Brandt argues, however, that the presence of the charges in his personnel file satisfies the "public disclosure" requirement because there is a likelihood that these charges may be disclosed in the future. He claims that prospective employers will want to know about his qualifications as a teacher, will gain access to the file and "will most certainly not hire him" when they learn of the charges.

It is important to emphasize that we are reviewing a grant of summary judgment. If there was any genuine issue of material fact before the district court, then the grant of summary judgment was improper. See Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir.1986). At the conference before Judge Wexler in November 1986, the Board did not stipulate that it would never disclose the charges to Brandt's prospective employers. The Board's counsel stated that he believed the Board's policy was to not disclose but Brandt vigorously contested this representation. Thus, there was a genuine issue of fact regarding the likelihood of disclosure to Brandt's prospective employers. The question now is whether the likelihood of such disclosure is material to Brandt's claim, and we conclude that it is.

The Supreme Court set forth the "public disclosure" requirement in Bishop, 426 U.S. at 348, 96 S.Ct. at 2079. In that case, the reasons for the employee's termination were communicated orally to the employee in private, and prior to litigation, the reasons had not been made public. With respect to the impact on the discharged employee's future employment opportunities, the Court concluded that despite termination, the employee "remain[ed] as free as before to seek another" job where there had been no public disclosure of the reasons for the discharge. Id. (quoting Roth, 408 U.S. at 575, 92 S.Ct. at 2708). The Court also concluded that because the communication was not made public, "it cannot properly form the basis for a claim that [the employee's] interest in his 'good name, reputation, honor, or integrity' was thereby impaired." Id.

Similarly, in Gentile, 562 F.2d at 197, this court held that the discharged government employee failed to establish that she had been deprived of a liberty interest because there had been no public disclosure of the reasons for her discharge. The reasons had been disclosed to plaintiff through letters and conferences in private, and there was no claim that these communications were ever published to potential employers by the defendant...