Giglio v. Dunn

Citation732 F.2d 1133
Decision Date20 April 1984
Docket NumberNo. 708,D,708
Parties17 Ed. Law Rep. 460 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.ocket 83-7871.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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

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 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 and a post-deprivation hearing is meaningful, the State satisfies its constitutional obligations by providing the latter. Id. at 541-42, 101 S.Ct. at 1916; see Engblom v. Carey, 677 F.2d 957, 964-66 (2d Cir.1982).

A tenured teacher always has the option of resigning. Abramovich v. Board of Educ., supra, 46 N.Y.2d at 455, 414 N.Y.S.2d 109, 386 N.E.2d 1077. It follows that a school board has the option of accepting the resignation. Neither the New York Education Law nor the Constitution which looks to that Law, see Goetz v. Windsor Central School Dist., 698 F.2d 606, 608 (2d Cir.1983), insists that the Board first must conduct a hearing. Where, as here, Article 78 gave the employee a meaningful opportunity to challenge the voluntariness of his resignation, he was not deprived of due process simply because he failed to avail himself of the opportunity. 1

Because we hold that appellant was not deprived wrongfully of a hearing, we need not consider appellees' alternate contention that, when a teacher's services are terminated because of the abolishment of his office or position, there is no requirement that a hearing be held. See Mitchell v. Board of Educ., 40 N.Y.2d 904, 905, 389 N.Y.S.2d 354, 357 N.E.2d 1008 (1976); Beers v. Nyquist, 72 Misc.2d 210, 212, 338 N.Y.S.2d 745 (1972).

The judgment of the district court is affirmed.

CARDAMONE, Circuit Judge, dissenting:

For the sake of comprehensiveness, the facts of this case, as alleged in plaintiff Anthony Giglio's complaint, may be restated as follows. Plaintiff was employed by the Mt. Morris Central School District as a tenured high school principal. Beginning in April 1981, defendant John Dunn, Superintendent of the Mt. Morris School District, intentionally began to harass plaintiff and pressure him into a nervous breakdown. Plaintiff did suffer such a breakdown in November or December of 1981 and, as a result, commenced full time disability leave.

On June 28, 1982, while under intensive medical care and psychiatric treatment, plaintiff was informed by defendants Dunn and Charles Holowach, Superintendent of Schools for the Livingston-Steuben-Wyoming Board of Cooperative Educational Services, that his position as high school principal would be abolished immediately unless he agreed to return to work by July 1. When plaintiff replied that he could not return in three days, Dunn and Holowach then told plaintiff that unless he agreed to resign, his position would be abolished that evening. Later that day, and as a direct result of these threats, plaintiff tendered his letter of resignation. On information and belief, plaintiff asserts that the School District's Board of Education never planned to abolish his position on June 28 and did not actually do so until September 8, 1982 when it created a new position of K-12 principal--a position in which more than 50 percent of the duties were previously performed by the high school principal.

Plaintiff claims, in effect, that defendants coerced him into resigning and that a coerced resignation is equivalent to being fired. Accordingly, he brought this action, pursuant to 42 U.S.C. Sec. 1983, seeking damages (backpay), injunctive relief (reinstatement) and a declaratory judgment that his due process rights had been violated. The essence of the complaint is that plaintiff was forced from his tenured position, and thus deprived of a fundamental property right, without first having received notice and a hearing.

Upon defendants' motion, Judge Telesca dismissed the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). He reasoned, in light of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that it would have been virtually impossible to give plaintiff a pre-deprivation hearing and that the post-deprivation remedy of an Article 78 proceeding would have satisfied the requisites of due process. For the reasons discussed below, I believe the decision of the district court was incorrect as a matter of law and, therefore, that this matter should be reversed and remanded for further proceedings.

I

The issue in this case is whether Giglio's complaint stated a claim under 42 U.S.C. Sec. 1983 of deprivation of property without due process of law. Since dismissal below was premised on Fed.R.Civ.P. 12(...

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