Tuesday, February 10, 2009
Rosa v. CUNY, ___F.3d___(2d Cir. Jan. 13, 2009), is an interesting public sector employment law case. A tenured faculty member was convicted of a felony crime and ultimately his termination was upheld by an arbitrator. Here, the plaintiff claimed that she was deprived of due process because she was not afforded a pre-deprivation hearing. In rejecting that argument, the court stated:
The Supreme Court has “described ‘the root requirement’ of the Due Process Clause as
being ‘that an individual be given an opportunity for a hearing before he is deprived of any
significant property interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); see Ciambriello, 292 F.3d at 319.
However, a pre-deprivation hearing is not required where, as here, an employee is suspended
without pay after having been convicted of a felony, because that conviction (1) “‘demonstrate[s] that the [deprivation] is not arbitrary’” and (2) “serve[s] to assure that the . . . employer’s decision . . . is not ‘baseless or unwarranted.’” Gilbert v. Homar, 520 U.S. 924, 933 (1997)
Mitchell H. Rubinstein