Russell v. Hodges

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: FRIENDLY, , and MANSFIELD and TIMBERS, Circuit
• Citation: Russell v. Hodges, 470 F.2d 212 (2nd Cir. 1972)
• Decision Date: 06 December 1972
• Docket Number: Docket 71-2176.,No. 136,136
• Parties: Ignatius RUSSELL et al., Plaintiffs-Appellants, v. Virgil HODGES, as Director of the Mt. Morris Community Based Center, a Division of the Narcotic Addiction Control Commission, State of New York, et al., Defendants-Appellees.

470 F.2d 212 (1972)

Ignatius RUSSELL et al., Plaintiffs-Appellants, v. Virgil HODGES, as Director of the Mt. Morris Community Based Center, a Division of the Narcotic Addiction Control Commission, State of New York, et al., Defendants-Appellees.

No. 136, Docket 71-2176.

United States Court of Appeals, Second Circuit.

Argued November 6, 1972.

Decided December 6, 1972.

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Dennis R. Yeager (Robert P. Roberts, Marttie L. Thompson, Community Action for Legal Services, Inc., Edward F. Green, Theodore Wagner, New York City, Oscar G. Chase, Brooklyn, N. Y., Richard Huffman, and Douglas J. Kramer, New York City, of counsel), for plaintiffs-appellants.

Joel Lewittes, New York City (Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and Irving L. Rollins, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees Virgil Hodges, Charles D. King and William J. Murray.

Leonard Koerner, New York City (J. Lee Rankin, Corp. Counsel, and Stanley Buchsbaum, New York City, of counsel), for defendant-appellee Murphy.

Helen R. Cassidy, Brooklyn, N. Y. (John G. De Roos, Brooklyn, N. Y., of counsel), for defendant-appellee William J. Ronan, as Chairman and Chief Executive Officer of the New York City Transit Authority.

Before FRIENDLY, Chief Judge, and MANSFIELD and TIMBERS, Circuit Judges.

FRIENDLY, Chief Judge:

Plaintiffs in this civil rights action under 42 U.S.C. § 1983 are four former state or city employees who claim that their dismissals were unconstitutional because they were not first given "a hearing upon stated charges." Their complaint, filed in the District Court for the Southern District of New York, made the following allegations of fact:

(1) Plaintiff Russell, a veteran of the United States Army who enlisted on April 19, 1954 and was discharged on October 25, 1957, was employed as a "cleaner," a position in the labor class of the New York State Civil Service, by the State Narcotic Addiction Control Commission for two years and four months. His employment was terminated without any statement of reasons or a hearing.¹

(2) Plaintiff Fletcher, who was in the United States military service from August, 1966 to August, 1968, was employed as a provisional narcotics correction officer by the Narcotic Addiction Control Commission on May 18, 1970. On July 17, 1970, he received a statement of charges against him² and a notice that he was being terminated. His requests for hearings before the Commission and the State Department of Civil Service were denied.

(3) Plaintiff Gonzalez was hired as a provisional hostler by the New York City Police Department on May 8, 1967, was laid off between July 17 and November 20, 1967, but then worked continuously until October 14, 1970, when his employment was orally terminated, without a statement of reasons or a hearing.

(4) Plaintiff Walsh became a trainee of the New York City Transit Police Academy, a division of the New York City Transit Authority, in May, 1969. On September 11, 1970, two weeks before he was due to complete his training program, he was injured in a class demonstration of a police tactic. After medical examinations he was orally notified that his employment would be terminated, which it was on October 23, 1970.³

The availability of a hearing upon stated charges prior to dismissal of government employees in New York is governed by section 75(1) of the New York Civil Service Law, McKinney's Consol. Laws 7, which provides as follows:

Removal and other disciplinary action. A person described in paragraph (a), or paragraph (b), or paragraph (c), or paragraph (d) of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.

(a) A person holding a position by permanent appointment in the competitive class of the classified civil service, or

(b) a person holding a position by permanent appointment or employment in the classified service of the state or in the several cities, counties, towns, or villages thereof, or in any other political or civil division of the state or of a municipality, or in the public school service, or in any public or special district, or in the service of any authority, commission or board, or in any other branch of public service, who is an honorably discharged member of the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter, or who is an exempt volunteer fireman as defined in the general municipal law, except when a person described in this paragraph holds the position of private secretary, cashier or deputy of any official or department, or

(c) an employee in the state service holding a position in the non-competitive class other than a position designated in the rules of the state civil service commission as confidential or requiring the performance of functions influencing policy, who since his last entry into state service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy, or

(d) an employee in the service of the City of New York holding a position as Homemaker or Home Aide in the non-competitive class, who since his last entry into city service has completed at least three years of continuous service in such position in the non-competitive class.

Plaintiffs do not contend that they come within any of the quoted provisions. Their complaint is two-fold. They urge that the statute violates the due process clause of the Fourteenth Amendment by not providing them with a hearing upon stated charges before termination of their employment, and that it violates the equal protection clause of that amendment by failing to provide them with the hearing upon stated charges accorded to the employees therein described. Plaintiffs sought an injunction requiring that they be reinstated pending such a hearing and restraining defendants from dismissing any employees without a similar hearing, and requested the convening of a three-judge court to consider their claims that § 75(1) is unconstitutional. Judge Bonsal dismissed the complaint for failure to state a substantial constitutional question, thereby mooting the request for a three-judge court. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). This appeal followed.

I. Due Process

Since the decision of the district court, the Supreme Court has delivered two opinions seeking to clarify what interests of government employees constitute "liberty" and "property" within the meaning of the Fourteenth Amendment so as to require such procedural due process protections as a statement of charges and an opportunity for a hearing prior to the termination of their employment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). As we understand these opinions, an employee seeking to show, absent any claim of First Amendment violations, that his termination was a deprivation of "liberty" must demonstrate that the government had made a charge "that might seriously damage his standing and associations in his community" or had imposed "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." 408 U.S. at 573, 92 S.Ct. at 2707. The Court made clear that by the latter phrase it meant something more than the disadvantage inevitably entailed when a person "simply is not rehired in one job but remains as free as before to seek another." 408 U.S. at 575, 92 S.Ct. at 2708. "Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of `liberty.'" 408 U.S. at 574 n. 13, 92 S.Ct. at 2708. "Property" interests, the Court held, include not merely contractual or statutory rights to continued employment but rights acquired under a "de facto tenure program," resulting from "the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment," 408 U.S. at 600, 602, 92 S.Ct. at 2700. But the Court explained that a mere "unilateral expectation" of continued employment was not sufficient "property" to trigger due process guarantees. 408 U. S. at 577, 603, 92 S.Ct. at 2701.

It is plain that none of the plaintiffs had any "property" interest in continued employment. They clearly had no contractual or statutory claim, and none made any allegations sufficient to demonstrate a plausible claim to de facto tenure. Gonzalez and Fletcher were provisional employees who, by the very terms of New York Civil Service Law § 65(1), hold their positions only until a permanent appointment can be made after competitive examination.⁴ Walsh was a trainee who would have become a probationary employee had he completed his training program; his employment was specifically conditioned on his being able to pass the physical examination at the end of the training period. Russell, though a "permanent" appointee, was entitled to none of the protections of tenure afforded by statute and alleged nothing to show de facto tenure.

It is equally plain that Russell, Gonzalez and Walsh did not bring themselves within the criteria established by the Court for showing a deprivation of "liberty." Russell and Gonzalez were told nothing; for all that appears their terminations may have been due simply to reduction in force. Walsh's termination was for an injury incurred in the course of training. While his dismissal may seem harsh, especially if the claim...