DeMichele v. Greenburgh Central School Dist. No. 7

• Decision Date: 17 February 1999
• Docket Number: Docket No. 98-7081
• Citation: 167 F.3d 784
• Parties: 132 Ed. Law Rep. 632 Robert DeMICHELE, Plaintiff-Appellant, v. GREENBURGH CENTRAL SCHOOL DISTRICT NO. 7, and Arnold B. Green, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 784

167 F.3d 784

132 Ed. Law Rep. 632

Robert DeMICHELE, Plaintiff-Appellant, v. GREENBURGH CENTRAL SCHOOL DISTRICT NO. 7, and Arnold B.

Green, individually, Defendants-Appellees.

Docket No. 98-7081

United States Court of Appeals, Second Circuit.

Argued Oct. 16, 1998.

Decided Feb. 17, 1999.

Craig T. Dickinson, Lovett & Gould, White Plains, New York, for Plaintiff-Appellant.

Vincent P. D'Andrea, D'Andrea & Goldstein, Scarsdale, New York, James P. Drohan, Donoghue, Thomas, Auslander & Drohan, Scarsdale, New York, for Defendants-Appellees.

Jay Worona, General Counsel, New York State School Boards Association, Inc., Albany, New York, for Amicus Curiae New York State School Boards Association, Inc.

Before: OAKES, WALKER, Circuit Judges, and KAPLAN, District Judge. ^*

JOHN M. WALKER, JR, Circuit Judge:

Plaintiff appeals from an order of the United States District Court for the Southern District of New York (Charles L. Brieant, District Judge ) granting defendants' motion for summary judgment and dismissing plaintiff's claims under 42 U.S.C. § 1983. In his complaint, plaintiff alleges that (1) defendants violated his right to due process, secured by the Fourteenth Amendment, when he was subjected to a disciplinary hearing and subsequently terminated from his position as a tenured physical education teacher for acts that occurred approximately twenty-four years earlier, and (2) he was deprived of a liberty interest when defendant Arnold Green, the prosecutor at the disciplinary hearing, disclosed the disciplinary decision to the media. We affirm.

BACKGROUND

First Disciplinary Proceeding

Robert DeMichele was first employed as a physical education teacher at the Woodlands High School by the Greenburgh Central School District in 1972. In April of 1993, the District found probable cause to bring charges against DeMichele pursuant to New York State Education Law § 3020-a. The charges, filed under the general rubric of "Immoral Conduct and Conduct Unbecoming a Teacher," involved allegations that, during the 1991-92 and 1992-93 school years, DeMichele had engaged in inappropriate conduct with female students. After a hearing, DeMichele was found guilty of five of twelve specific allegations, or "specifications," against him, and was suspended without pay for one and one-half years beginning January 1, 1994. The hearing officer's decision was appealed to the Commissioner of Education, who ultimately sustained the hearing panel's findings of guilt and upheld the suspension. Among the findings of misconduct sustained by the Commissioner of Education were that DeMichele used sexually provocative language with students, touched them on the hip, waist, and buttocks, and had them sit on his lap.

Second Disciplinary Proceeding

In February 1996, after learning from local newspaper articles the circumstances of DeMichele's suspension, two women contacted the District Superintendent and reported that DeMichele had sexually abused or molested them when they had been students at Woodlands decades earlier during the 1972-73 and 1974-75 school years. There is no evidence in the record that the District was ever aware of these allegations prior to the February 1996 reports.

Further investigation led the District to institute a second disciplinary proceeding against DeMichele under § 3020-a on March 11, 1996. By that time, DeMichele had resumed teaching at Woodlands following his suspension. DeMichele was again charged with Immoral Conduct and Conduct Unbecoming a Teacher. Each charge contained four specifications. In substance, the specifications alleged that:

(1) During the 1972-73 school year, prior to February 28, 1973, DeMichele engaged in sexual intercourse with a sixteen-year-old student named Corinna Bekiers;

(2) During the same time period, DeMichele subjected Bekiers to "sexual contact"; and (3) During the 1974-75 school year, DeMichele subjected a different sixteen-year-old student named Ellen Jazzo to "sexual contact."

Consistent with his response to the first disciplinary charges, DeMichele requested a full hearing on the new charges before a hearing officer pursuant to § 3020-a(2)(c).

At the proceeding, during which DeMichele was represented by counsel, the hearing officer heard testimony from Bekiers and Jazzo in support of the specifications, and accepted into evidence portions of a diary which the hearing officer found--after hearing testimony from a forensic and handwriting expert--had been written by Bekiers at the time of DeMichele's alleged misconduct. The diary corroborated many of Bekiers's allegations and included entries which referenced her relationship with DeMichele. One entry included the date and details of a sexual act between DeMichele and Bekiers, and the name of a restaurant to which Bekiers stated DeMichele had taken her for her birthday.

DeMichele denied the charges made by the two women and asserted that their testimony was not credible. In particular, he contended that the lapse of more than two decades and each woman's admitted drug and alcohol use during the relevant period had impaired their memories. DeMichele also argued that the witnesses' incomplete recollections discredited their entire testimony.

Though permitted to do so by § 3020-a(3)(c), DeMichele sought no discovery from the school district, either before or during the hearing, and called no witnesses in his defense. However, his attorney conducted extensive cross-examination of both Bekiers and Jazzo and challenged the introduction of the Bekiers diary on several grounds.

In addition to challenging the charges on their merits, DeMichele contended that the charges were time-barred. The hearing officer rejected that defense, citing § 3020-a(1), which provides that:

no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

§ 3020-a(1)(emphasis added). The parties do not dispute that each instance of misconduct alleged in the second disciplinary proceeding constituted a crime when committed. ¹ It is also undisputed that the provision does not require that the misconduct actually be the subject of a criminal prosecution.

The hearing officer, in a written decision, found DeMichele guilty of three of the four specifications of Immoral Conduct and all four specifications of Conduct Unbecoming a Teacher, and recommended DeMichele's termination and loss of tenure. One specification of Immoral Conduct--inflation of Jazzo's physical education grades--was found not to have been proven. Shortly after the hearing officer's decision, DeMichele's prosecutor, defendant Green, disclosed the results of the proceeding to the press.

DeMichele's Federal Claims

Rather than exercising his right to appeal the hearing officer's decision to New York State Supreme Court, see § 3020-a(5), DeMichele filed this action, under 42 U.S.C. § 1983. In it, he has alleged (1) that the school district violated his right to due process of law under the Fourteenth Amendment by forcing him to defend against charges arising out of conduct which occurred more than two decades ago, and which left him unable to defend himself effectively, and (2) that he was deprived of his liberty interest without due process under the Fourteenth Amendment when Green disclosed the results of the hearing to the media.

In an unpublished decision, the district court granted summary judgment to the defendants on both claims pursuant to Fed.R.Civ.P. 56. The district court rejected DeMichele's due process claim on the basis that, under New York law, DeMichele had to, but could not, demonstrate "actual prejudice"

                stemming from the passage of time.  The district court also identified the government's interest in bringing the termination proceeding as "that of keeping the faculty free from sexual predators and ensuring the well-being of the children."   These two findings, taken together, supported the district court's conclusion that DeMichele had failed to establish a due process violation.  As to DeMichele's claim against Green, the district court held that Green's disclosure of the disciplinary proceeding was not actionable because the results of the proceeding were a matter of public record.  Judgment was entered dismissing the complaint, and this appeal followed
                

DISCUSSION

On appeal, DeMichele contends that the district court erred (1) when it rejected DeMichele's due process claim on the basis that DeMichele had suffered no "actual prejudice" as a result of the twenty-four year lapse between the alleged wrongdoing and the commencement of disciplinary proceedings and (2) when the district court held that DeMichele's liberty interest was not violated when Green publicized his disciplinary conviction. We consider each contention in turn.

I. Due Process Claim

DeMichele argues that since § 3020-a fails to specify a statute of limitations for conduct that is exempt from the three year limitation because it constitutes a crime at the time of its commission, due process considerations compel the conclusion that New York's general statute of limitation for actions and special proceedings contained in CPLR § 213 should be read into § 3020-a, and should govern his claim. This contention is unavailing.

First, under New York law there is no general statute of limitations governing the initiation of a disciplinary proceeding, see Monti v. Chassin, 237 A.D.2d 738, 655 N.Y.S.2d 145, 147 (3d Dep't 1997), and to prevail on the basis of delay the subject of a disciplinary hearing must demonstrate actual prejudice, see id.; Lawrence v. De Buono, 673 N.Y.S.2d 773, 774 (3d Dep't 1998) (citing cases); see also Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 177, 495 N.Y.S.2d 927, 486 N.E.2d 785 (1985) ("The passage of time, standing alone, does not ... serve as a basis for judicial intervention ... into the administrative process."); Gold...