Gargiul v. Tompkins
| Decision Date | 29 March 1983 |
| Docket Number | D,No. 483,483 |
| Citation | 704 F.2d 661 |
| Parties | 10 Ed. Law Rep. 472 Lorraine GARGIUL, Plaintiff-Appellant, v. Virgil E. TOMPKINS, Individually and as District Superintendent of Liverpool Central School District, James Johnson, Individually and as Acting Superintendent of Liverpool Central School District, Dennis Jones, Individually and as Coordinator of Personnel of Liverpool Central School District, Dr. Paul Day, Individually and as Chief Medical Inspector for the Liverpool Central School District, F. Robert Kolch, Individually and as Clerk of the Board of Education of the Liverpool Central School District, Arthur D. Little, Bruce C. Vojt, Emilio Chasse, Doris Ann Connor, David A. Files, Marie Hartwell, Richard J. Hayko, Toni Anne Morris, Lloyd J. Spafford, as Individuals and as Members of the Board of Education of the Liverpool Central School District, the Board of Education of the Liverpool Central School District, Liverpool, New York, and Arnold Dettor, as Hearing Officer appointed pursuant to New York State Education Law, Defendants-Appellees. ocket 82-7482. |
| Court | U.S. Court of Appeals — Second Circuit |
Alfred R. Tyminski, Marcellus, N.Y., for plaintiff-appellant.
Kenneth A. Windstein, O'Hara, Lahm & Felice, Liverpool, N.Y., for defendants-appellees.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and TENNEY, District Judge. *
Lorraine Gargiul, formerly a tenured schoolteacher with the Liverpool Central School District, appeals from an order of summary judgment entered May 17, 1982 by Roger J. Miner, Judge, of the District Court for the Northern District of New York. Judge Miner dismissed Gargiul's Sec. 1983 action against Virgil E. Tompkins, the District Superintendent of the Liverpool Central School District, various officials of the school district, and the Board of Education and its members, on the ground that it failed to state a claim upon which relief could be granted. Gargiul contends that the School Board infringed her constitutional rights by suspending her, and subsequently by dismissing her, for refusing to be examined by a male school district physician. She seeks reinstatement, back pay, and damages for injury to her reputation. Because we conclude that Gargiul's constitutional challenge to her dismissal is barred by collateral estoppel, we affirm the district court's dismissal of that claim. However, for the reasons set forth below, we reverse with respect to the dismissal of Gargiul's constitutional challenge to her suspension without pay.
Since this is an appeal from a judgment of dismissal, we accept as true the facts alleged in the complaint. Kirshner v. United States, 603 F.2d 234, 236 (2d Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274, cert. denied, 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979); Murray v. City of Milford, 380 F.2d 468, 470 (2d Cir.1967).
Appellant Lorraine Gargiul was a tenured kindergarten teacher in the Liverpool Central School District. 1 In November 1974 she took an extended sick leave because of a back ailment. On February 5, 1975 the Superintendent of Schools, Virgil Tompkins, notified Gargiul that she should report to the school district physician, Dr. Paul Day, for a physical examination. In response, Gargiul informed Tompkins that she would be able to return to work on March 17, 1975, and submitted a certificate from her own physician. Gargiul refused, however, to make an appointment with Dr. Day. She explained that she had always gone to women physicians and that it was against her "creed" to be examined by a male physician. She offered instead to go, at her own expense, to any woman physician selected by Tompkins or recommended by a local medical society.
On March 10, 1975, the Board of Education adopted a resolution requiring Gargiul to be examined by Dr. Day if he felt that a physical examination was necessary after reviewing her medical records. The Board suspended Gargiul without pay effective March 17, 1975 until Dr. Day could determine whether she was physically able to return to her teaching position.
It was apparently not until the summer that Dr. Day decided that an examination would be necessary. Accordingly, in a letter dated July 30, 1975 James R. Johnson, the Acting Superintendent of Schools, directed Gargiul to report to Dr. Day for a physical examination. Gargiul reiterated her refusal to be examined by a male physician and repeated her offer to be examined by any woman doctor at her own expense.
On August 9, 1975, the Board of Education determined that there was probable cause to issue charges against Gargiul of insubordination, based on her refusal to be examined by Dr. Day, and incompetency, based on unfavorable supervisors' reports and parents' complaints.
Gargiul appealed her suspension without pay to the Commissioner of Education pursuant to New York Education Law Sec. 310. The Commissioner dismissed her appeal, concluding that because the Board was empowered by New York Education Law Sec. 913 2 to require Gargiul to submit to an examination by Dr. Day, it had not acted arbitrarily or capriciously in suspending her. The Commissioner also rejected Gargiul's argument that an examination by a male physician was contrary to her creed. In re Gargiul I, 15 Educ.Dept.Rep. 360 (1976). In an application to reopen the Commissioner's decision, Gargiul argued, inter alia, that requiring her to be examined by a male physician violated her constitutional right to privacy. The Commissioner denied her application. He held that Gargiul, having failed to raise her privacy claim earlier, was barred from doing so by the doctrine of res judicata. In re Gargiul II, 15 Educ.Dept.Rep. 520 (1976). Gargiul did not appeal his decision.
Between the time that the Commissioner's first and second decisions were handed down, Gargiul commenced an Article 78 proceeding in state court, challenging the Board's resolution to suspend her without pay. The Onondaga County Supreme Court dismissed the proceeding as time barred. The Appellate Division affirmed on that basis, concluding further that the due process claim Gargiul had advanced was without merit. Gargiul v. Board of Education I, 54 A.D.2d 1085, 389 N.Y.S.2d 504 (1976), leave to appeal denied, 41 N.Y.2d 802, 393 N.Y.S.2d 1026, 362 N.E.2d 626 (1977).
Meanwhile, a tenure hearing panel was convened and hearings were held concerning the charges against Gargiul. In a decision dated April 4, 1977, a majority of the panel found Gargiul guilty of incompetency and recommended that she be dismissed. The panel also recommended that she be restored to the payroll retroactive to March 17, 1975, and retained on the payroll until the termination of the proceedings against her.
In a resolution adopted May 23, 1977, the Board dismissed Gargiul on the ground of incompetency. The Board concluded that in view of its decision to dismiss Gargiul, further punishment for insubordination was unwarranted. However, the Board rejected the hearing panel's recommendation that Gargiul be paid for the period of her suspension, because her suspension without pay was the result of her refusal to be examined by Dr. Day.
Finally, Gargiul commenced a second Article 78 proceeding in state court, this time challenging the Board's resolution of May 23, 1977. The Appellate Division held that there was substantial evidence to support Gargiul's dismissal on the ground of incompetency, and thus did not reach the constitutional issues concerning the charge of insubordination. Gargiul v. Board of Education II, 69 A.D.2d 986, 416 N.Y.S.2d 119, leave to appeal denied, 48 N.Y.2d 606, 421 N.Y.S.2d 1031, 397 N.E.2d 760 (1979). The court also concluded that because Gargiul had not directly appealed the Commissioner's decision or joined him in the proceeding, she was bound by his determination and could not relitigate the constitutional issues concerning her suspension without pay. 69 A.D.2d at 986, 416 N.Y.S.2d at 120.
Early in the course of the state proceedings, Gargiul commenced this action in federal court pursuant to 42 U.S.C. Sec. 1983 and its jurisdictional counterparts, 28 U.S.C. Secs. 1331 and 1343(3). Her complaint alleges violations of her rights under the first, fourth, ninth, and fourteenth amendments to the Constitution. She claims that the Board's actions impermissibly infringed her right to substantive due process of law, and particularly, her right to privacy. This action, however, was held in abeyance until the termination of all state proceedings. After Gargiul was denied leave to appeal the Appellate Division's decision in Gargiul v. Board of Education II, supra, she moved for partial summary judgment in this action to recover back salary and benefits for the period between March 17, 1975, the date of her suspension and May 23, 1977, the date of her dismissal. In an opinion filed October 30, 1981 the district court denied her motion, on the ground that her refusal to be examined by a male physician was "a mere predilection against male physicians," not protected by her constitutional right of privacy. The court also stated that the Board's actions were not "wholly unreasonable." Defendants then moved for summary judgment on the ground that the complaint fails to state a claim upon which relief may be granted. The district court granted defendants' motion and dismissed the complaint. It is from this dismissal that Gargiul now appeals.
We consider at the outset whether Gargiul's claims are barred by the earlier state proceedings under principles of res judicata and collateral estoppel. The traditional rule of res judicata is that a final judgment on the merits of an action precludes the parties from relitigating issues actually raised and determined in that action, as well as issues that could have been, but were not, raised and determined in that action. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, ...
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