Tichon v. Harder

• Decision Date: 18 February 1971
• Docket Number: No. 222,Docket 35151.,222
• Citation: 438 F.2d 1396
• Parties: Juliette A. TICHON, Plaintiff-Appellant, v. John F. HARDER, Acting Commissioner of Welfare of the State of Connecticut; Charles J. Sheehan, Agency Personnel Administrator of the Department of Welfare of the State of Connecticut; Alice H. Sheahan, individually and as District Director of the New Haven District of the Department of Welfare of the State of Connecticut; Aldean E. Painter, individually and as Program Supervisor, Division of Child Welfare Department of Welfare of the State of Connecticut; and Robert Budney, individually and as Case Supervisor, Division of Child Welfare, Department of Welfare of the State of Connecticut, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 1396 (1971)

Juliette A. TICHON, Plaintiff-Appellant, v. John F. HARDER, Acting Commissioner of Welfare of the State of Connecticut; Charles J. Sheehan, Agency Personnel Administrator of the Department of Welfare of the State of Connecticut; Alice H. Sheahan, individually and as District Director of the New Haven District of the Department of Welfare of the State of Connecticut; Aldean E. Painter, individually and as Program Supervisor, Division of Child Welfare Department of Welfare of the State of Connecticut; and Robert Budney, individually and as Case Supervisor, Division of Child Welfare, Department of Welfare of the State of Connecticut, Defendants-Appellees.

No. 222, Docket 35151.

United States Court of Appeals, Second Circuit.

Argued November 13, 1970.

Decided February 18, 1971.

Charles A. Pulaski, Jr., New Haven, Conn., for plaintiff-appellant.

F. Michael Ahern, Asst. Atty. Gen. of Conn. (Robert K. Killian, Atty. Gen. of Conn., on the brief), for defendants-appellees.

Before LUMBARD, Chief Judge, and SMITH and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

This is an appeal from the district court's determination that the complaint, seeking damages and declaratory and injunctive relief against appellant's dismissal from her position with the Connecticut Department of Welfare, failed to state a cause of action under 42 U.S. C. § 1983 or § 1985(3). The plaintiff appeals the determination that the claimed denial of procedural due process failed to state a cause of action under § 1983.¹

On June 27, 1969 Juliette Tichon, a recent graduate from Southern Connecticut State College where her major field of concentration was social work, commenced work as a six-months probationary employee with the Connecticut Department of Welfare as a Case Worker I in the Division of Child Welfare, New Haven District. Ultimately, she intended to pursue a professional career as a psychiatric social worker, and in carrying out that objective, she planned to work for a period of time with the Department of Welfare and then return to a university for a graduate degree in social work. As a Case Worker I she received training in and performed social case work of gradually increasing responsibility, and the first six months of her employ was a "working test period," Conn.Gen.Stats. § 5-230, during which she was a "probationary employee." Upon satisfactory completion of this period she could obtain the status of "permanent employee,"² Conn.Gen.Stats. § 5-196(r). Appellant's immediate Case Supervisor was Robert Budney whose immediate supervisor was Aldean E. Painter, the Program Supervisor. The District Director was Alice H. Sheahan.

Pursuant to Conn.Gen.Stats. § 5-230, Budney prepared a Service Rating Report on December 8, 1969, near the end of appellant's working test period. Although rating appellant's conduct and attendance "good," he rated the quantity of her work "fair" and the quality of work and her judgment "unsatisfactory." Attached to the report was a two and one-half page typed, single-spaced explanation for the evaluation, which enumerated various incidents to support the evaluation and concluded with a recommendation to dismiss the appellant from her position. Appellant was handed a copy of the report and attached explanation on December 9, 1969.

Program Supervisor Painter and District Director Sheahan reviewed the report and recommendation, and both concurred in the recommendation for dismissal. Upon Sheahan's approval, the recommendation was submitted to Agency Personnel Administrator, Charles L. Sheehan, and on December 11, 1969 he sent appellant a termination notice, effective December 26, 1969.

After her attempts to obtain a remedy through Mr. Sheehan proved unsuccessful,³ appellant commenced this action in the district court. The complaint alleged a violation of substantive due process based on the alleged arbitrariness and unreasonableness of the stated grounds for dismissal and a violation of procedural due process because (1) she had received no prior notice that termination was being considered or of the reasons being considered for the dismissal, (2) she had not been judged by an impartial official or body, and (3) she was afforded no hearing at which to rebut the charges. The complaint alleged that a cause of action was provided for these violations by the Civil Rights Act, 42 U.S.C. § 1983, and further alleged a violation of § 1985(3) based on an alleged discrimination between appellant and other persons holding Case Worker I positions. Jurisdiction was claimed under 28 U.S.C. § 1343(3).⁴

On February 9, 1970 the district court denied a motion for a temporary injunction, 308 F.Supp. 839, and on May 14, 1970 the court granted a motion to dismiss the complaint stating that "the plaintiff has failed to establish * * * that her action * * * is based on the infringement of a federally protected right * * *." Relying on the distinction articulated in its denial of the temporary injunction, the court stated that due process does not require a formal hearing and a right to appeal upon the discharge of a probationary employee, as opposed to a permanent employee. The former category of employees, having less or no reservoir of professional reputation built up through employment, possesses less of a claim to procedural rights, on the theory that interests other than continued employment at a particular job are not at stake. Freeman v. Gould Special School District, 405 F.2d 1153 (8 Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed. 2d 93 (1969); Medoff v. Freeman, 362 F.2d 472 (1 Cir. 1966). See generally Birnbaum v. Trussell, 371 F.2d 672 (2 Cir. 1966). The district court also dismissed the substantive due process claim and the claim based on § 1985(3), but the appeal has been limited to the question whether the allegation that the plaintiff was denied procedural due process states a claim cognizable under 42 U.S.C. § 1983. Because of the importance of Civil Rights jurisdiction under 28 U.S.C. § 1343(3) to the administration of federal jurisdiction, however, we have examined whether the complaint provides a proper basis for jurisdiction under that section, an issue not raised in the court below. For the reasons hereinafter stated, we have concluded that § 1343(3) does not provide jurisdiction and affirm dismissal of the action.

Eisen v. Eastman, 421 F.2d 560 (2 Cir. 1969), reviewed the troublesome history of Mr. Justice Stone's personal rights — property rights formulation of § 1343(3) jurisdiction in Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), and its relationship to general federal question jurisdiction pursuant to 28 U.S.C. § 1331. Eisen adopted that formulation stating that jurisdiction would lie under § 1343(3) "`whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights.'" Eisen v. Eastman, supra, 421 F.2d at 564 n. 7, quoting 307 U.S. at 531, 59 S.Ct. 954. It is apparent, however, as Eisen recognized, that some classes of cases are not readily characterized as involving either rights of personal liberty or property rights but take on characteristics of both. Cases challenging the procedures used in a discharge from public employment are such a class. Eisen v. Eastman, supra, 421 F.2d at 565. Recently, a district court of this circuit held that a case challenging such procedures involved a right of personal liberty for purposes of § 1343(3) jurisdiction, because the loss of job and the profits derived therefrom diminished the freedom of the employee and his family. Taylor v. New York City Transit Authority, 309 F.Supp. 785 (E.D.N.Y.1970). On appeal the case was disposed of on other grounds, 433 F.2d 665 (2 Cir. 1970), and this court did not reach the question. See also Newcomer v. Coleman, 323 F.Supp. 1363 n. 5 (D.Conn.1970). The present appeal, however, requires a decision on the issue.

For purposes of § 1343(3) jurisdiction, the claim that appellant was denied procedural due process has no independent jurisdictional significance, Bradford Audio Corporation v. Pious, 392 F.2d 67, 72 (2 Cir. 1968); Roberge v. Philbrook, 313 F.Supp. 608, 612 (D.Vt.1970); rather, the Hague and Eisen test focuses on the interests claimed to be injured by the denial of procedural due process, because it is the character of those interests that determines whether the suit involves a "right of personal liberty" or not.⁵ Bradford Audio Corporation v. Pious, supra, 392 F.2d at 72.

Discharge from employment cases have presented a variety of underlying interests allegedly injured by the discharge, ranging from those alleging specific violations of rights protected by the first eight amendments of the Constitution to those, like the present appeal, relying on general notions of due process derived from the Fourteenth Amendment. Compare, e. g., Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (Exercise of Fifth Amendment privilege against self-incrimination); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (First Amendment interest); Birnbaum v. Trussell, supra; Taylor v. New York City Transit Authority, supra; Rainey v. Jackson State College, 435 F.2d 1031 (5 Cir. 1970) (First Amendment interest). When the underlying interest allegedly injured by the discharge is one unprotected by any of the first eight amendments, exclusive of protection of property, it is difficult to characterize the claim as one involving a "right of personal liberty," because it becomes more apparent that the only interest at stake is a claimed right to a particular job, an interest easily measured in monetary terms and uneasily equated with "personal liberty." See Freeman v. Gould Special School District, supra. To construct a "right of personal liberty" out of the deprivation of profits from one's job is to misconceive the Hague and Eisen test. Eisen recognized that, viewed as a...