No. 71-5790. CANTY v. BOARD OF EDUCATION OF THE CITY OF NEW YORK.
SUPREME COURT OF THE UNITED STATES
408 U.S. 940; 92 S. Ct. 2874; 33 L. Ed. 2d 765; 1972 U.S. LEXIS 1972
Jun. 29, 1972.

PRIOR HISTORY: C.A. 2d Cir. Reported below: 448 F. 2d 428.

OPINION
Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Perry v. Sindermann, ante, p. 593; Board of Regents of State Colleges v. Roth, ante, p. 564; and Lynch v. Household Finance Corp., 405 U.S. 538. MR. JUSTICE DOUGLAS would grant, vacate, and remand solely in light of Lynch v. Household Finance Corp., supra.

LYNCH ET AL. v. HOUSEHOLD FINANCE CORP. ET AL.
No. 70-5058
SUPREME COURT OF THE UNITED STATES
405 U.S. 538; 92 S. Ct. 1113; 31 L. Ed. 2d 424; 1972 U.S. LEXIS 153
December 7, 1971, Argued
March 23, 1972, Decided

PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT.

DISPOSITION: 318 F.Supp. 1111, reversed and remanded.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant debtor brought a class action in the United States District Court for the District of Connecticut against appellees, sheriffs and creditors who invoked pre-judgment garnishment under Conn. Gen. Stat. § 52-329, which debtor alleged was unconstitutional. A three-judge district court dismissed for lack of jurisdiction under 28 U.S.C.S. § 1343(3), and based on the anti-injunction statute, 28 U.S.C.S. § 2283. Appellant sought review.

OVERVIEW: The Court rejected cases applying a distinction between property rights and personal rights for purposes of determining whether a district court had jurisdiction of a case under 28 U.S.C.S. § 1343(3). The Court held that § 1343(3) applied to infringements of rights under color of state law; therefore, there was no necessity to use the personal/property distinction to separate that section from 28 U.S.C.S. § 1331. The Court further rejected a "personal liberties" limitation upon § 1343(3) due to the virtual impossibility of applying it. Rather, a property right was one of the personal rights protected by the Fourteenth Amendment. The Court held that the anti-injunction statute, 28 U.S.C.S. § 2283, did not prohibit the district court from entertaining debtor's 42 U.S.C.S. § 1983 action challenging Connecticut's garnishment statute, because under the statute, garnishment was an extra-judicial proceeding occurring without the intervention of any state officials.

OUTCOME: The court reversed the judgment of the district court and remanded the case for further proceedings.

Leslie CANTY, Jr., Plaintiff-Appellant, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Defendant-Appellee
No. 992, Docket No. 71-1312
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
448 F.2d 428; 1971 U.S. App. LEXIS 8211
June 23, 1971, Argued
September 3, 1971, Decided

CASE SUMMARY

PROCEDURAL POSTURE: Appellant teacher challenged a judgment from the United States District Court for the Southern District of New York, which granted appellee board's motion for summary judgment dismissing appellant's action regarding his dismissal as a substitute teacher and denial of his due process rights in accordance with U.S. Const. amend. XIV.

OVERVIEW: During a probationary period, appellant teacher was given an unsatisfactory performance rating and was dismissed by the principal on an emergency basis without notice or severance pay. Various reasons were given for appellant's dismissal, including, but not limited to, keeping students excessively after school hours, using physical force on students, and unexplained absenteeism. Appellant filed a claim and appellee board upheld the principal's decision of dismissal without pay. During the subsequent phase of the grievance procedure, appellant was awarded 10 days salary. Thereafter, the superintendent denied appellant's challenge to his dismissal. Appellant filed an action with the district court and the district court dismissed appellant's action in accordance with 42 U.S.C.S. § 1983 and 28 U.S.C.S. § 1343(3) holding that appellant did not have a cognizable claim. Appellant challenged the order and the court affirmed. The court held where appellant challenged the issue of procedural due process and where his claim did not constitute a violation of his right of personal liberty; the court lacked jurisdiction to entertain the claim and, therefore, affirmed the dismissal accordingly.

OUTCOME: The court affirmed the district court's judgment granting appellee board's motion for summary judgment and dismissing appellant teacher's action relating to his dismissal and denial of due process rights. The court concurred with the district court that the court lacked jurisdiction to entertain appellant's challenge when his complaint was based upon the issue of procedural due process and did not constitute a personal liberty violation.

CORE TERMS: teacher, personal liberty, public employment, unsatisfactory, rating, present case, probationary, cognizable, discharged, junior, bias, substitute teacher's, emergency, grievance, sleeping, notice

LexisNexis® Headnotes

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection
In the absence of a clear, immediate and substantial impact on the employee's reputation which effectively destroys his ability to engage in his occupation, it cannot be said that a right of personal liberty is involved.

JUDGES: Smith and Hays, Circuit Judges, and Pollack, District Judge. *
* Of the United States District Court for the Southern District of New York.
On Rehearing: Wisdom, Coleman and Simpson, Circuit Judges.
** This issue is decided by a quorum of the Court, Judges Coleman and Simpson. See 28 U.S.C., § 46(d).

OPINION BY: HAYS

OPINION
HAYS, Circuit Judge:
This is an appeal from an order of the United States District Court for the Southern District of New York, dismissing plaintiff's complaint on defendant's motion for summary judgment. The essence of plaintiff's claim is that the failure to provide a full trial type hearing upon his discharge from his position as a junior high school teacher constituted a denial of due process. Jurisdiction is asserted under the Fourteenth Amendment and under 42 U.S.C. § 1983 (1964) and 28 U.S.C. § 1343(3) (1964). Since we find that the complaint does not state a claim properly cognizable in the federal court, we affirm the determination of the district court.

Plaintiff Canty is the holder of a substitute teacher's license in the New York City school system. In September 1969 he was engaged to teach science at Junior High School No. 136 as a regular substitute teacher, a probationary status. One month later, he was given an unsatisfactory performance rating and discharged on an emergency basis, that is, without the 10 days notice and severance pay to which he would otherwise be entitled. Plaintiff's principal gave various reasons for this action. These included charges that plaintiff kept children in school for several hours after class, that plaintiff used physical force on children, that his language and grammar were deficient, that he was late for a class and was found sleeping in the teacher's room when a pupil was dispatched to locate him, that an inordinate number of children were referred to the dean by plaintiff without reason for the referrals, and that plaintiff was absent from school on two occasions for which an explanation was requested but never given.
Plaintiff denies the truth of these charges and asserts that students in his class were out to "get rid" of him and made false complaints, that he was marking papers, not sleeping, in the teachers room, and that his absences were caused by his being held incommunicado in a North Carolina jail, after his arrest in a local speed trap.
Plaintiff secured a hearing before the New York City Human Rights Commission where it was stipulated that the complaint filed with the Commission would be dismissed if the Board of Education provided a hearing for plaintiff. Such a hearing was granted as a "Step 1" grievance procedure pursuant to the collective bargaining agreement between the Board of Education and the United Federation of Teachers. The Board upheld the principal's finding of an emergency, justifying plaintiff's discharge without notice and pay. At the "Step 2" grievance level, however, this determination was reversed and the plaintiff was awarded 10 additional days salary. Plaintiff's request for a "Step 3" hearing was denied on the ground that, under the by-laws of the Board of Education, the basis alleged for his discharge, his unsatisfactory rating, was reviewable by the Superintendent of Schools. Although plaintiff's request for a hearing by the Superintendent was late, the time limitation was waived and he was granted a hearing before an Assistant Superintendent. Plaintiff, his principal, a fellow teacher, and a union representative testified at the hearing. Plaintiff's appeal was denied. Plaintiff alleges that it was only well after the complaint in the instant action had been filed that he discovered that he could appeal this determination. By this time the 30 day limit for such an appeal had expired.
Plaintiff's complaint was properly dismissed because his claim is not cognizable in the federal courts under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) (1964). As this court said in Tichon v. Harder, 438 F.2d 1396, 1399 (2d Cir. 1971), "the claim that appellant was denied procedural due process had no independent jurisdictional significance." The civil rights statutes confer jurisdiction only when "the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." Hague v. C. I. O., 307 U.S. 496, 531, 59 S. Ct. 954, 971, 83 L. Ed. 1423 (1939); Eisen v. Eastman, 421 F.2d 560, 566 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S. Ct. 82, 27 L. Ed. 2d 75 (1970). In a case where a denial of procedural due process is alleged, "the Hague and Eisen test focuses on the interests claimed to be injured by the denial of due process, because it is the character of those interests that determines whether the suit involves a 'right of personal liberty' or not." Tichon v. Harder, supra 438 F.2d at 1399 (footnote and citation omitted). 1

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1 For a review of some of the relevant cases involving discharge from public employment see Tichon v. Harder, 438 F.2d 1396, 1399-1400 (2d Cir. 1971).

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The facts of this case are remarkably similar to those in the Tichon case. As was true in that case, "the circumstances of appellant's dismissal involve none of the essential elements of § 1343(3) jurisdiction." Tichon v. Harder, supra at 1401. In both cases probationary employees were discharged for unsatisfactory work from positions of public employment. In neither case was the capacity to hold further employment, including public employment, impaired to any greater degree than would result from a similar rating in private employment.
"Although every dismissal for reasons other than reduction in the work force can be said to have some impact on future employability in the absence of a clear, immediate and substantial impact on the employee's reputation which effectively destroys his ability to engage in his occupation, it cannot be said that a right of personal liberty is involved." Id. at 1402 (citation and footnote omitted).
Though plaintiff may indeed find it more difficult to obtain employment, "Congress did not intend that every claim of unfair treatment by a state of an employee, even accompanied by a lack of procedural due process, could be brought to the federal courts." Id. at 1402.
The plaintiff cites Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966). In that case it was alleged that Birnbaum, a staff physician of Coney Island Municipal Hospital, was summarily dismissed in consequence of labor union pressures based on a claim that he was guilty of anti-Negro bias. The complaint claimed that Birnbaum's dismissal was followed by official blacklisting by the First Deputy Commissioner of the New York City Department of Hospitals. In the present case plaintiff's discharge was not based upon any charge that he was guilty of discrimination on racial grounds, a charge which, as we said in Birnbaum v. Trussell, supra at 679, "permanently brands the person accused as one who is unable to put public and professional duty above personal bias." Nor is there a suggestion of any such official black-listing as would support a charge of conspiracy by state officials to deprive Canty of rights secured by § 1983. Id. at 676-677. Birnbaum is, therefore, readily distinguishable from the present case, and, as this court said in Tichon v. Harder, supra, 438 F.2d at 1403, "the line was drawn in Birnbaum and should remain there."

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2 Although Canty makes some vague references in his brief to racial discrimination against him, his complaint alleges no facts to support such a claim, and, indeed, the claim was raised here for the first time.

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Since under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), the district court had no jurisdiction of plaintiff's claim, we affirm the dismissal of the complaint.
The court commends appointed counsel, Mr. Louis L. Hoynes, Jr., for his able and conscientious representation of plaintiff-appellant in this case.