Leary v. Civil Service Employees Ass'n Region 3

516 F. App'x 42

• Court: Court of Appeals for the Second Circuit
• Decided: March 26, 2013
• Docket: 12-2359-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff-appellant Valerie V. Leary brought this suit pro se, alleging federal constitutional violations relating to her termination as a probation officer for the Westchester County Department of Probation. 1 In an opinion and order dated May 9, 2012, the District Court dismissed all of Leary’s claims pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Leary v. Civil Serv. Emps. Ass’n, No. 11-CV-716 (CS), 2012 WL 1622611 (S.D.N.Y. May 9, 2012).

As relevant to this appeal, Leary asserts that her pre-termination hearing pursuant to New York’s Civil Service Law § 75 did not satisfy due-process requirements, principally because the disciplinary hearing officer at her pre-termination hearing was purportedly biased, having been appointed and paid by her employer. Having reviewed the complaint de novo, accepting all well-pleaded factual allegations as true and drawing all reasonable inferences in Leary’s favor, see Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.2009), we affirm the judgment of the District Court for substantially the reasons stated in its thorough and well-reasoned opinion and order of May 9, 2012.

The entire basis of this appeal is foreclosed by precedents of this Circuit and of the Supreme Court, and Leary does not offer any basis for distinguishing or departing from those precedents. In Locurto v. Safir, 264 F.3d 154 (2d Cir.2001), for example, we explicitly rejected a virtually identical argument, explaining that a pre-termination hearing for public employees does not require a neutral adjudicator. Id. at 174. Rather, “as the Supreme Court explained in [Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)], a pre-termination hearing does not purport to resolve the propriety of the discharge, but serves mainly as a check against a mistake being made by ensuring there are reasonable grounds to find the charges against an employee are true and would support his termination.” Id. at 174-75. Employees who wish to challenge the basis for their termination before a neutral adjudicator may do so in a post-termination proceeding under Article 78 of New York’s Civil Practice Law and Rules, which we described as “a wholly adequate post-deprivation hearing for due process purposes.” Id. at 175.

CONCLUSION

We have considered all of Leary’s arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.

By separate order of this date, we order appellant’s counsel to show cause why we should not impose sanctions for his conduct in pursuing this appeal.

1 . On appeal, Leary does not dispute the District Court’s conclusion that her claim under Title VII was abandoned, see Leary, 2012 WL 1622611, at *2, or the District Court’s conclusion that she failed to state a plausible claim of a violation of her right to equal protection under the law, id. at *9-10, or various other aspects of the District Court’s opinion and order. Accordingly, we consider only her due-process claim. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir.1995) (issues not raised in appellate brief are waived).