Matson v. Bd. of Educ. of The City Sch. Dist. of N.Y.

Decision Date11 January 2011
Docket NumberDocket No. 09–3773–cv.
Citation631 F.3d 57
PartiesDorrit MATSON, Plaintiff–Appellant,v.BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF NEW YORK, The City of New York, Richard J. Condon, Defendants–Appellees.*
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Barry D. Haberman, New City, NY, for PlaintiffAppellant.Ronald E. Sternberg, (on behalf of Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, and Christopher A. Seacord, of counsel), New York, NY, for DefendantsAppellees.Before: MINER, CABRANES, and STRAUB, Circuit Judges.STRAUB, Circuit Judge, filed opinion concurring in part and dissenting in part.MINER, Circuit Judge:

Plaintiff-appellant Dorrit Matson appeals from a judgment entered in the United States District Court for the Southern District of New York (Crotty, J.), dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), her civil rights action, brought under 42 U.S.C. § 1983, against defendants-appellees, the Board of Education of the City School District of New York (the BOE), the City of New York (the City), and Richard J. Condon (collectively, the defendants). In the action, Matson alleged that the BOE had publicly disclosed that she suffers from fibromyalgia, in violation of her constitutional right to privacy. The disclosure occurred when, in connection with an investigation of her purported use of sick leave, the BOE made available to the public on the website of the Special Commissioner of Investigation for the New York City School District (“SCI”) a report that included Matson's medical condition. On appeal, Matson claims: (1) the District Court erred in concluding that she failed to establish that the defendants' disclosure of her medical condition implicated a protected privacy interest; (2) the District Court incorrectly found the BOE to be an improper party; and (3) the District Judge should have recused himself, pursuant to 28 U.S.C. § 455.

For the reasons that follow, we affirm.

BACKGROUNDI. Matson as Teacher and Conductor

Matson was employed as a music teacher at Bayard Rustin Educational Complex (Bayard Rustin), a Manhattan public school. She also founded and serves as director and conductor of the New York Scandia Symphony (the “Scandia Symphony”), an orchestra based at Trinity Church in lower Manhattan. Beginning in at least 2003 and continuing through February 2005, Matson began taking sick leave from her duties as a music teacher. Her multiple requests for sick days did not go unnoticed by Bayard Rustin's administration.

In November 2004, after Matson had requested three days of sick leave, Bayard Rustin's principal, John Angelet, reminded Matson by telephone that she was scheduled to direct a school orchestra concert that week. Matson nonetheless insisted that she needed the sick leave and that she would have to miss the school orchestra concert because she was ill. She subsequently took the sick leave that she had requested. After Matson returned to school, Angelet confronted her. He stated that he knew Matson had conducted the Scandia Symphony's concert while on sick leave because he had heard the performance broadcast on public radio. Matson, in response, “after a period of silence ... asked the principal to deduct the days from her pay and then inquired whether Angelet ‘knew what it was like to conduct a concert ill.’

In January 2005, Matson was away from school on authorized medical leave for “continued therapy for recurrent bacteria infection.” During her absence, Angelet filed a complaint with the DOE's legal department, accusing her of “theft of services.” An assistant principal at Bayard Rustin also took action, informing Condon, the SCI, that he suspected that Matson was improperly claiming sick leave in order to work as a conductor of a symphony orchestra at Trinity Church. Condon subsequently began an investigation.

In February 2005, Matson submitted an Application for Leave Without Pay for Restoration of Health (the “Application”), which was marked as confidential. Her Application was granted for a period from February 5, 2005, through June 30, 2005, and “was approved by the principal based on the physician's certification section completed by an unnamed doctor with an illegible signature.” According to the physician's certification, Matson suffered from fibromyalgia, which involves “neck, shoulders, and upper and lower back pain.” 1

After Matson submitted her Application, SCI investigators visited the office of the physician whose address was listed on the certification and spoke with the office manager for Dr. Tsai Chung Chao, who had completed the physician's certification for Matson's request for leave. Chao verified that the signature on the physician's certification was his. Chao later spoke to one of Condon's investigators by telephone and explained that Matson suffered from fibromyalgia, a condition brought on by physical or emotional stress. He added that Matson had complained that her professional relationship with school administrators was strained and caused her stress. Chao informed the investigator that Matson needed time off from her DOE position but explained that she could be able to conduct an orchestra—even though she was suffering from fibromyalgia—because she would be away from the environment which caused the stress that resulted in the onset of her condition.

Following his investigation, Condon issued a letter report on August 16, 2005, (the “Report”) to then New York City School District Chancellor Joel I. Klein confirming that Matson had repeatedly taken paid sick leave on days when she conducted the New York Scandia Symphony at Trinity Church. The Report verified Angelet's claim that Matson conducted the Scandia Symphony on November 18, 2004, while away from school on sick leave and detailed a number of other occasions over a period of two years from 2003 to 2005 where Matson claimed paid sick leave on days when she either rehearsed or conducted the Scandia Symphony. It also noted that according to the Operations Manager for Trinity Concerts, Matson “never missed a rehearsal or a performance” of the Scandia Symphony.

The specific references in the Report to fibromyalgia included the following:

Dr. Chao explained that Matson suffered from chronic fatigue syndrome, known as fibromyalsia [sic]. He added that the teacher's condition was brought on by physical or emotional stress and that Matson had complained that her professional relationship with school administrators was strained and caused her stress. The physician informed the investigator that Matson needed time off from her DOE position and that the pain caused by fibromyalsia [sic] could take months to subside. According to Dr. Chao, Matson could be able to conduct an orchestra with fibromyalsia [sic] because she would be away from the environment which caused her the stress that resulted in the onset of the condition.

Based on Condon's investigation, the Report concluded that Matson abused the DOE's sick leave policy. Accordingly, it recommended that Matson's employment be terminated and that she be directed to repay any salary to which she was not entitled. Disciplinary charges later were lodged against Matson.

The SCI publicly issued its report, in accordance with its specific authority to issue reports of investigations where it would be in the best interest of the school district. See The Special Comm'r of Investigation for the New York City Sch. Dist., Exec. Order No. 11 (June 28, 1990), available at http:// www. nycsci. org/ public/ Executive% 20Order.pdf (giving the Deputy Commissioner authority to “issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district”). The Report was made available to the public on the SCI's internet website in August 2005, and the investigation and the Report were covered by the local press.2

On August 22, 2005, while disciplinary charges were pending, Matson was involved in a car accident, suffering a cervical sprain and injuries to her back and shoulders. Apparently, she continued on unpaid medical leave after her accident, following a January 10, 2006 determination by the DOE that she was “not fit” to return to work. In March 2006, Matson applied for disability retirement. With her application, she submitted a medical report of Dr. Daniel J. Powsner, who concluded that

Matson is suffering from psychiatric illness, post-traumatic stress disorder, which is likely to remain chronic.... Recovery from this illness is not to be expected in the foreseeable future. This illness has rendered her unable to pursue her occupation as a teacher. I do not believe that any type of accommodations that could be made at her place of employment would improve her ability to work. She is totally and permanently disabled from her occupation as a teacher.

Powsner's ultimate diagnosis was “Post–Traumatic Stress Disorder.”

The record before us does not reveal how Matson's employment with the school district ultimately came to an end. Apparently a disciplinary hearing had been scheduled but was terminated as indicated by an October 18, 2006 intra-departmental memorandum, which stated: “Please be advised that the Dorrit Matson disciplinary hearing has been resolved. As a result the DOE is withdrawing the charges previously preferred against Ms. Matson. Please adjust your records accordingly.” There is no indication from the parties or the record as to the disposition of Matson's disability retirement application following Powsner's report or as to why, according to DOE attorney Susan Jalowski, Matson's “disciplinary hearing ha[d] been resolved.”

II. Proceedings in the District Court

On August 14, 2008, Matson commenced this action by filing a complaint...

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