Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, July 21, 2011

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Edward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*

Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions. They also alleged that their termination was in retaliation for reporting misconduct within the department in violation of the First, Fifth, and Fourteenth Amendments and that certain of the defendants made “derogatory statements” about them.

The federal district court ruled that Carter’s claims failed as a matter of law, concluding that Carter did not engage in “constitutionally protected speech” and thus could not establish First Amendment claims. The court said that “even if [Carter's] factual claims were credited in full, they established only that [Carter] spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.”

The district court also ruled that Carter had not suffered a deprivation of either a protected liberty or property interest.

The Court of Appeals affirmed the lower court’s decision, holding that Carter’s allegations establish no more than that [the plaintiffs] reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.”

Speech, said the court, “that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties.” Accordingly, the Circuit Court concluded, Carter was not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

As to Carter’s claim that he was deprived of a protected property interest without due process of law, the Circuit Court of Appeals said that “To state a claim for deprivation of property without due process of law, a plaintiff must, as a preliminary matter, ‘identify a property interest protected by the Due Process Clause,’” citing Harrington v County of Suffolk, 607 F.3d 31.

However, to demonstrate a property interest in public employment, the plaintiff must have “more than a unilateral expectation of” continued or future employment but instead “a legitimate claim of entitlement to it.”

Carter, said the court, established no such “claim of entitlement” in that the record establishes that all of the plaintiffs in this action were all at-will, part-time, seasonal employees who had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Carter had also contended that he was entitled to a preterminationhearing in accordance with Civil Service Law §75(1)(c). However, said the court, only certain individuals who have “completed at least five years of continuous service” are entitled to such administrative due process by operation of law. In this instance, said the Circuit Court, the district court had determined that no plaintiff was employed “continuously” for a five year period, and, accordingly, that §75(1)(c) provides no support for plaintiffs’ claims.”

Finally, as to Carter’s allegations of a so-called “stigma plus” deprivation of constitutionally protected right, stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma) coupled with the "deprivation of some ‘tangible interest’ or property right (the plus), without adequate process."

The Circuit Court of Appeals agreed with the district court’ holding that even assuming a “deprivation” occurred in this instance – "that is, assuming plaintiffs could establish the 'stigma' and the 'plus' – the claims would nonetheless fail because plaintiffs were afforded 'adequate process' in the form of a post-deprivation Article 78 hearing in state court."

The Circuit Court explained that “where, as here, plaintiffs are ‘at will’ government employees raising stigma-plus claims, our law makes clear that 'due process does not require a pre-termination hearing,' and access to post-termination process, such as an Article 78 hearing, is sufficient to satisfy constitutional requirements."

* N.B. This ruling is a Summary Order. Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:

reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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