18‐1298‐cv Mudge v. Zugalla, Harder
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2018 (Argued: March 28, 2019 Decided: September 12, 2019) Docket No. 18‐1298‐cv
RANDY A. MUDGE, Plaintiff‐Appellee,
v.
ANNE M. ZUGALLA, DANIEL HARDER, Defendants‐Appellants.
Before: SACK, HALL, AND DRONEY, Circuit Judges.
The plaintiff‐appellee, Randy Mudge, was terminated from his position as
a substitute teacher in the Middleburgh Central School District, a public‐school
district located in Middleburgh, New York, after the defendants‐appellants,
Anne Zugalla and Daniel Harder, employees of the New York State Department
of Education, informed the School Districtʹs superintendent that they had opened
an ethics investigation into Mudgeʹs conduct. The plaintiff brought suit in the
The Clerk of Court is respectfully directed to amend the caption as set out above. No. 18‐1298‐cv Mudge v. Zugalla, Harder
United States District Court for the Northern District of New York, pursuant to
42 U.S.C. § 1983, alleging in relevant part procedural due process and stigma‐
plus claims related to the termination of his employment. The defendants
asserted a qualified immunity defense. The district court (David N. Hurd, Judge)
denied the defendantsʹ motion for summary judgment, but did not address the
defendantsʹ qualified immunity defense. On a motion for reconsideration, the
district court, addressing that issue for the first time, concluded that the
defendants were not entitled to qualified immunity because the plaintiff had
demonstrated that the defendants had violated clearly established law. On
appeal, the defendants argue that the district court erred in denying their motion
for summary judgment based on qualified immunity. We agree. With respect to
the plaintiffʹs due process claim, we conclude that Mudge has failed to establish a
clearly established right to the meaningful opportunity to utilize his teaching
license. He has also failed to demonstrate that the defendantsʹ conduct was
sufficiently stigmatizing under clearly established law so as to give rise to a
ʺstigma‐plusʺ claim. The defendants are, therefore, entitled to qualified
2 No. 18‐1298‐cv Mudge v. Zugalla, Harder
immunity, and the district court erred in denying summary judgment as to both
claims. The judgment of the district court is therefore:
REVERSED and REMANDED with instruction.
JENNIFER L. CLARK (Barbara D. Underwood, Andrea Oser, on the brief), New York State Office of the Attorney General, Albany, NY, for Defendants‐Appellants, BRIAN D. DEINHART (Phillip G. Steck, on the brief), Cooper Erving & Savage LLP, Albany, NY, for Plaintiff‐Appellee. SACK, Circuit Judge:
The plaintiff‐appellee, Randy Mudge, is a physical education teacher and
school administrator licensed by New York State. In 2008, Mudge was
investigated and charged by the New York State Education Department for
committing acts of sexual misconduct with former students, resulting in a one‐
year suspension of his state licenses.
Mudge subsequently obtained employment as a substitute teacher in the
Middleburgh Central School District. Shortly thereafter, however, defendants‐
appellants, Anne Zugalla and Daniel Harder, employees of the New York State
Department of Education, informed the School Districtʹs superintendent that
they were instituting an investigation into Mudgeʹs conduct. Although the
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defendants ultimately concluded that there were no grounds for an investigation,
the plaintiff was terminated from his teaching position.
The plaintiff brought suit against the defendants pursuant to 42 U.S.C.
§ 1983, alleging procedural due process and so‐called ʺstigma‐plusʺ claims
related to the termination of his employment. The defendants asserted a
qualified immunity defense.
The district court denied the defendantsʹ motion for summary judgment
but did not address the defendantsʹ qualified immunity defense. On a motion for
reconsideration, the district court, addressing that issue for the first time,
concluded that the defendants were not entitled to qualified immunity.
On appeal, the defendants argue that the district court erred in denying their
motion for summary judgment based on qualified immunity. For the reasons
that follow, we agree. The plaintiffʹs procedural due process claim cannot stand
because he has failed to establish a clearly established right to the meaningful
opportunity to utilize his teaching license. He has also failed to demonstrate that
the defendantsʹ conduct was sufficiently stigmatizing under clearly established
law so as to give rise to a ʺstigma‐plusʺ claim. We therefore reverse the judgment
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and remand the case with instruction to the district court to enter summary
judgment in favor of the defendants.
BACKGROUND
General Factual Background
The plaintiff‐appellant Randy Mudge is a physical education teacher and
school administrator licensed in New York State.1 He brings this suit against two
employees of the New York State Education Department (the ʺNYSEDʺ): Anne
Zugalla, a senior professional conduct investigator, and Daniel Harder, a senior
attorney in the Office of School Personnel Review and Accountability (ʺOSPRAʺ).
OSPRA is the department within the NYSED charged with investigating
allegations concerning the moral character of New York State teaching license‐
holders.
From 1987 to 2010, the plaintiff worked in the Hunter‐Tannersville Central
School District (ʺHTCʺ) as a physical education teacher and athletic coach. In
2006, HTC received complaints that some twenty years before, the plaintiff had
engaged in sexual behavior with two students. The school reported these
1Because this case was decided on a motion for summary judgment, we view the facts in the light most favorable to the non‐moving party—in this case, the plaintiff. Anthony v. City of New York, 339 F.3d 129, 134 (2d Cir. 2003). 5 No. 18‐1298‐cv Mudge v. Zugalla, Harder
complaints to OSPRA. Between 2006 and 2008, OSPRA prosecuted the plaintiff
in a Part 83 proceeding, a hearing before an administrative panel to determine
whether a claim of misconduct against a teaching‐license holder raises a
reasonable question of moral character. See 8 NYCRR § 83.1 et seq. Defendant
Harder was the OSPRA attorney responsible for the plaintiffʹs prosecution. The
administrative panel determined that, in 1989 and 1992, Mudge ʺgroomedʺ two
students for sexual activity while they were in high school and had sexual
relationships with them shortly after they graduated. It recommended a one‐
year suspension of the plaintiffʹs teaching licenses. Mudge served his suspension
from May 2009 to May 2010. He subsequently resigned from his position at
HTC.
In the autumn of 2011, the plaintiff applied for a middle school principal
position in the Middleburgh Central School District (ʺMiddleburghʺ). The
application did not require Mudge to report his prior teaching suspension. The
interview committee became aware of it nonetheless as a result of an online
search by committee members into each of the candidates, including Mudge. As
a result, Middleburghʹs superintendent, Michele Weaver, informed Mudge that
he would not be considered for the position. She subsequently had a ʺfull and
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frankʺ conversation with him about his suspension. Plaintiff Affidavit in
Response to Summary Judgment at 2 (Joint Appendix (ʺJ.A.ʺ) 300 ¶ 9).
Thereafter, Mudge applied for a position as a Middleburgh substitute teacher. In
December 2011, the Middleburgh Board of Education (ʺthe Boardʺ) hired him
notwithstanding its knowledge of his prior suspension. Mudge began serving as
the substitute for a physical education teacher who had taken a medical leave of
absence.
In early 2012, Harder, the OSPRA lawyer who had prosecuted the Part 83
proceeding that resulted in Mudgeʹs suspension, received a phone call from a
member of the public, unidentified in the record, informing him that the plaintiff
had obtained employment at Middleburgh. Harder thought that a failure to
truthfully reveal prior discipline or professional certificate history raised a
question of moral character that could subject a license‐holder to a Part 83
proceeding. See 8 NYCRR § 83.1 et seq.; Harder Declaration at 46 ¶ 22 (J.A. 46).
Harder therefore decided to review Mudgeʹs employment application to
Middleburgh to see whether that information had been accurately reported. To
do so, he requested that Investigator Zugalla acquire a copy of Mudgeʹs
Middleburgh employment application.
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On February 2, 2012, Zugalla telecopied a form letter (the ʺFebruary 2012
Letterʺ) to Superintendent Weaver seeking the plaintiffʹs Middleburgh
employment application. In relevant part, the letter stated that the NYSED had
ʺcommenced an investigationʺ against Mudge. February 2012 Letter at 2 (J.A.
172). It continued:
Pursuant to Department authority to investigate such matters as set forth in 8 NYCRR §83.2, I am requesting that you provide this office with a complete copy of [Middleburghʹs] investigation (audit) pertaining to Mr. Mudge including but not limited to: employment status and length of employment (start and end dates), application for employment, and resume.
Id. (emphasis omitted). Later that day, Harder received a copy of Mudgeʹs
employment application from Middleburgh. Harder noted that the application
had not, in fact, required the plaintiff to report his discipline or certificate history.
Harder therefore concluded that there was no ground for an investigation into
Mudgeʹs conduct. But the NYSED did not inform Middleburgh that they would
not be pursuing the investigation further.
Although Superintendent Weaver was aware of Mudgeʹs previous
suspension, the report that the NYSED was initiating an investigation into his
conduct worried her. She reported the matter to the Board. She also asked
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Mudge whether he was, at the time, under investigation by the NYSED. Mudge
responded that he had no knowledge of such an investigation. At about the
same time, Zugalla also called Superintendent Weaver to question
Middleburghʹs decision to employ Mudge, plainly suggesting that because of his
suspension, the plaintiff should not have been hired.
On February 10, 2012, Superintendent Weaver filed a request with the
NYSED under New Yorkʹs Freedom of Information Law, N.Y. Public Officers
Law §§ 84‐90, for copies of ʺall documents regarding complaints, investigations
and/or determinations of any misconduct or alleged misconductʺ pertaining to
the plaintiff. Defendantsʹ Statement Pursuant to Rule 7.1(a)(3) at 11 ¶ 72 (J.A.
132). In late February, Superintendent Weaver received a response to her request
from the NYSED, which included documents pertaining to the plaintiffʹs initial
suspension. It contained no information about a subsequent investigation.
In June 2012, the Board appointed Mudge as a permanent substitute
teacher, a title that applied retroactively to the start of his employment.
Nevertheless, when the physical education teacher he was covering for requested
an extension of her leave, requiring the Board to hire a permanent substitute
teacher for the subsequent school year, Mudge was not given the opportunity to
9 No. 18‐1298‐cv Mudge v. Zugalla, Harder
interview to continue in the position. In August 2012, the Board approved a list
of proposed substitute teachers for the 2012‐13 school year, which included
Mudge. But the following month, in a public session, the Board unanimously
voted to remove Mudge from the list. There had been no criticism of Mudgeʹs
performance before his termination. There is persuasive evidence in the record,
however, that pressure from the NYSED was a significant factor in the Boardʹs
decision to remove him.
In October 2012, an article appeared in a local newspaper reporting that
Middleburgh had removed ʺex‐teacherʺ Mudge from the substitute‐teacher list.
David Avitabile, MCS Removes Ex‐Teacher from Substitute List, SCHOHARIE TIMES
JOURNAL, Oct. 3, 2012, at 9 (J.A. 397). It linked Mudgeʹs removal from the
substitute‐teacher list to his earlier suspension for sexual misconduct but made
no mention of a new or pending investigation into his behavior. Since the
publication of that article, the plaintiff has been unable to obtain employment as
a substitute teacher, teacher, or administrator in the State of New York or
elsewhere, so far as the record discloses. Mudge has been told by prospective
public‐school employers that they would not hire him because of the negative
effect on public opinion engendered by that article.
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Procedural History
In July 2013, Mudge filed a civil rights action for damages and injunctive
relief, pursuant to 42 U.S.C. § 1983, in the Northern District of New York against
defendants Harder and Zugalla, as well as additional individual and institutional
defendants who are not parties to this appeal.2 In March 2015, he filed an
amended complaint, the operative pleading with respect to this appeal, asserting
two causes of action related to his Middleburgh employment: (1) a procedural
due process claim alleging that the defendants denied him the meaningful
opportunity to use his teaching license; and (2) a ʺstigma‐plusʺ claim alleging
that the defendantsʹ statements to Middleburgh harmed his reputation, led to his
termination, and continue to prevent him from obtaining reemployment. In June
2015, the defendants filed a motion for summary judgment, arguing that they
were entitled to qualified immunity as to both claims as a matter of law.
In January 2016, the district court (David N. Hurd, Judge) denied summary
judgment for the defendants on the plaintiffʹs Middleburgh claims. The court
concluded that the plaintiff had sufficiently established a procedural due process
claim. It noted that a teaching license ʺentitles its holder to a ʹmeaningful
2All of Mudgeʹs claims, aside from those arising from his employment at Middleburgh, were dismissed by the district court and have not been appealed. 11 No. 18‐1298‐cv Mudge v. Zugalla, Harder
opportunity to seek employment pursuant to the license.ʹʺ Mudge v. Zugalla, No.
13 Civ. 891, Dkt. #59, at 7 (N.D.N.Y. Jan. 6, 2016) (quoting Lombard v. Bd. of Educ.,
645 F. Supp. 1574, 1577 (E.D.N.Y. 1986)). It further reasoned that the ʺvague
wordingʺ of the February 2012 Letter coupled with the defendantsʹ failure to
inform Middleburgh that they had concluded their investigation ʺcould
easily [have] been interpreted as an indication of new misconductʺ engaged in by
Mudge. Id. at 10. The court therefore concluded that a trier of fact could find
that the defendantsʹ actions ʺnegatively impacted Mudgeʹs employment statusʺ
and ʺdenied [him] a meaningful opportunity to utilize his teaching license
without due process.ʺ Id. at 11.
The district court also concluded that the plaintiff had established a
ʺstigma‐plusʺ claim. The court decided that the defendantsʹ statements in the
February 2012 Letter were stigmatizing because they ʺeasily might have been
interpreted as an allegation of new misconduct on the part of plaintiff unrelated
to his prior suspensionʺ and ʺcould be viewed as sufficient[ly] derogatory to
injure plaintiffʹs reputation.ʺ Id. at 15. It further reasoned that the plaintiff had
demonstrated that the stigmatizing statements were false, publicized, and
temporally proximate to his dismissal. The district court concluded that a trier of
12 No. 18‐1298‐cv Mudge v. Zugalla, Harder
fact could find that the plaintiffʹs termination resulted from these statements. It
did not address the defendantsʹ qualified immunity defense as to either claim.
In January 2016, the defendants filed a motion for reconsideration as to
both claims on the ground that the district court ʺcompletely overlookedʺ their
qualified immunity defense. Dist. Ct. Dkt. #60‐2 at 2. In March 2018, the district
court denied the defendantsʹ motion in its entirety. The court concluded that
ʺ[a]t the time of Mudgeʹs employment at the Middleburgh District, it was well
established that a state actor could not interfere with an individualʹs teaching
license.ʺ Mudge v. Zugalla, 13 Civ. 891, Dkt. #70, at 11 (N.D.N.Y. Mar. 31, 2018).
On that basis alone, the district court concluded that the defendants ʺwould have
been aware that they were violating plaintiffʹs constitutional rights if they did
interfere.ʺ Id. The district court further determined that the defendantsʹ decision
to ʺinterject themselves into [Mudgeʹs] existing employment with the
Middleburgh District,ʺ by sending the February 2012 Letter, was not ʺobjectively
reasonable.ʺ Id. Accordingly, the district court denied the defendantsʹ motion
for reconsideration.
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DISCUSSION
On appeal, the defendants argue that the district court erred by deciding
that they were not entitled to qualified immunity. Specifically, they argue that
even accepting Mudgeʹs allegations as true, as we and the district court must at
this stage of the proceedings, he has failed to allege sufficiently that they violated
his clearly established rights so as to defeat a qualified immunity defense. For
the following reasons, we agree. The plaintiff has failed to establish that the right
to the meaningful use of his teaching license was clearly established at the time.
He has also failed to demonstrate that the defendantsʹ conduct was sufficiently
stigmatizing under clearly established law so as to give rise to a ʺstigma‐plusʺ
claim. We therefore reverse the judgment and remand the case with instruction
to the district court to enter summary judgment in favor of the defendants.
I. Jurisdiction and Standard of Review
We have jurisdiction to review the denial of qualified immunity on
interlocutory appeal ʺto the extent it can be resolved on stipulated facts, or on the
facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff
that the trial judge concluded the jury might find.ʺ Terebesi v. Torreso, 764 F.3d
217, 222 (2d Cir. 2014) (internal quotation marks omitted). We review a district
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courtʹs decision on a motion for summary judgment de novo to determine
whether there was ʺno genuine dispute as to any material fact, such that the
moving party was entitled to judgment as a matter of law.ʺ Myers v. Patterson,
819 F.3d 625, 632 (2d Cir. 2016). We do so ʺresolving all ambiguities and drawing
all factual inferences in plaintiff[ʹs] favor as the non‐moving party.ʺ Anthony v.
City of New York, 339 F.3d 129, 134 (2d Cir. 2003).
II. Qualified Immunity
Qualified immunity protects public officials from legal actions brought
under 42 U.S.C. § 1983 if their behavior does not violate ʺclearly established
statutory or constitutional rights of which a reasonable person would have
known.ʺ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ʺThe issues on qualified
immunity are: (1) whether plaintiff has shown facts making out [a] violation of a
constitutional right; (2) if so, whether that right was clearly established; and
(3) even if the right was clearly established, whether it was objectively reasonable
for the officer to believe the conduct at issue was lawful.ʺ Gonzales v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (internal quotation marks omitted).
We are ʺpermitted to exercise [our] sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light
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of the circumstances in the particular case at hand.ʺ Pearson v. Callahan, 555 U.S.
223, 236 (2009).
For a right to be clearly established, its ʺcontours . . . must be sufficiently
clear [such] that a reasonable official would understand that what he is doing
violates that right.ʺ Anderson v. Creighton, 483 U.S. 635, 640 (1987). That
generally entails looking to ʺSupreme Court decisions, our own decisions, and
decisions from other circuit courts.ʺ Simon v. City of New York, 893 F.3d 83, 92 (2d
Cir. 2018); see also Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (ʺWhen neither
the Supreme Court nor this court has recognized a right . . . the holdings of
district courts cannot act to render that right clearly established within the
Second Circuit.ʺ).
1. Procedural Due Process Claim
The defendants argue that the district court erred in denying their
qualified immunity defense as to the plaintiffʹs procedural due process claim.
We agree.
Multiple district and state courts have expressed the view that New York
State recognizes that a teaching‐license holder is entitled to a ʺmeaningful
opportunityʺ to seek employment pursuant to that license, and that denial of
16 No. 18‐1298‐cv Mudge v. Zugalla, Harder
such an opportunity constitutes a constructive revocation without due process.
See Rogovin v. N.Y. City Bd. Educ., No. 99 Civ. 3382 (ERK), 2001 WL 936191, at *4,
2001 U.S. Dist. LEXIS 11923, at *13 (E.D.N.Y. Aug. 17, 2001) (explaining that
ʺNew York State recognizes that a teaching license entitles its holder to a
meaningful opportunity to seek employment pursuant to that licenseʺ); accord
Lombard v. Bd. of Educ. of City of New York, 645 F. Supp. 1574, 1578‐79 & n. 5
(E.D.N.Y. 1986) (citing cases). The plaintiff contends that the defendants violated
his procedural due process rights by denying him a meaningful opportunity to
seek employment pursuant to his teaching license.3
Assuming arguendo that a constitutional violation did, in fact, take place,
the plaintiff has failed to establish that the right was clearly established at the
time of the defendantsʹ conduct. The constitutional right to the meaningful use
of a teaching license has not been recognized by the Supreme Court or by this
Court; it has, as noted, been adopted by federal‐district and state courts only. In
the qualified immunity context, that is insufficient to constitute ʺclearly
3Mudge did not otherwise have a property interest in his Middleburgh employment because he was an at‐will employee. See Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (ʺEmployees at will have no protectable property interest in their continued employment.ʺ).
17 No. 18‐1298‐cv Mudge v. Zugalla, Harder
establishedʺ law. Pabon, 459 F.3d at 255; Simon, 893 F.3d at 92. And although
state law may create property interests, it cannot, of its own force, create a clearly
established substantive federal constitutional right. See Memphis Light, Gas and
Water Div. v. Craft, 436 U.S. 1, 9 (1978) (ʺAlthough the underlying substantive
interest is created by an independent source such as state law, federal
constitutional law determines whether that interest rises to the level of a
legitimate claim of entitlement protected by the Due Process Clause.ʺ (internal
quotation marks omitted)).4
Because the plaintiff has failed to establish that the defendants violated his
clearly established due process right, the district court erred in denying the
4 The plaintiff cites Palkovic v. Johnson, 281 F. Appʹx 63, 64 (2d Cir. 2008), a non‐ precedential summary order, for the proposition that ʺreinitiating removal proceedings against a teacher after failing to achieve termination in [a] prior proceeding, where no new grounds for termination [a]re identified, create[s] a legally cognizable due process violation.ʺ Pl. Br. 17. But even were we to treat Palkovic as persuasive and accept the plaintiffʹs characterization of its holding, it still would not support Mudgeʹs argument in this regard. That is because Palkovic did not involve circumstances ʺsimilar,ʺ White v. Pauly, 137 S. Ct. 548, 552 (2017), to those presented here. There, the plaintiff alleged that the defendants initiated three proceedings, based upon the same evidence, in order to achieve their desired result. Palkovic, 281 F. Appʹx at 65‐66. Here, by contrast, the defendants did not attempt to relitigate the plaintiffʹs first administrative proceeding, in which they prevailed. Instead, they were considering whether to charge the plaintiff with a wholly separate offense: the failure to report a prior suspension. 18 No. 18‐1298‐cv Mudge v. Zugalla, Harder
defendants qualified immunity as to that claim and declining to grant summary
judgment with respect to it.
2. Stigma‐Plus Claim
The defendants also argue that the district court erred in denying them
qualified immunity as to the plaintiffʹs ʺstigma‐plusʺ claim. Here too, we agree
with them.
Under ʺlimited circumstances,ʺ government employees may have a cause
of action for defamation in the course of, or in connection with, dismissal from
government employment. Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010). To prevail
on such a ʺstigma‐plusʺ claim, a plaintiff must demonstrate ʺ(1) the utterance of a
statement sufficiently derogatory to injure his or her reputation, that is capable of
being proved false, and that he or she claims is false, and (2) a material state‐
imposed burden or state‐imposed alteration of the plaintiffʹs status or rights.ʺ
Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (internal quotation marks
omitted). The relevant state‐imposed burden must be separate from the
stigmatizing statement and may take the form of a ʺdeprivation of a plaintiffʹs
propertyʺ or the ʺtermination of a plaintiffʹs government employment.ʺ Id.
While there is ʺno rigid requirement [] that both the ʹstigmaʹ and the ʹplusʹ must
19 No. 18‐1298‐cv Mudge v. Zugalla, Harder
issue from the same government actor or at the same time,ʺ they must be
ʺsufficiently proximate.ʺ Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). And the
statement ʺmust be sufficiently public to create or threaten a stigma.ʺ Id. at 87.
An alleged statement may satisfy the ʺstigmaʺ requirement if it ʺcall[s] into
question plaintiffʹs good name, reputation, honor, or integrity.ʺ Patterson v. City
of Utica, 370 F.3d 322, 330 (2d Cir. 2004) (internal quotation marks and citation
omitted). ʺStatements that ʹdenigrate the employeeʹs competence as a
professional and impugn the employeeʹs professional reputation in such a
fashion as to effectively put a significant roadblock in that employeeʹs continued
ability to practice his or her professionʹ may also fulfill this requirement.ʺ Id.
(quoting Donato v. Plainview‐Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630‐31 (2d
Cir. 1996)); see also Huntley v. Cmty. Sch. Bd. of Brooklyn, 543 F.2d 979, 985 (2d Cir.
1976) (impairment of future employment found where stigmatizing statements
made it ʺunlikely that [the plaintiff] would ever have a chance to obtain another
supervisory position in the public schools or elsewhereʺ), cert. denied, 430 U.S. 929
(1977).
Mudge contends that the defendantsʹ statement that they had ʺopened an
investigationʺ into his conduct ʺnecessarily call[ed] into question his ʹgood name,
20 No. 18‐1298‐cv Mudge v. Zugalla, Harder
reputation, honor, or integrityʹʺ because it falsely ʺsuggest[ed] that [he] was
sexually predating on students.ʺ Pl. Br. 24‐25. He further argues that the
defendantsʹ statement was sufficiently stigmatizing because it ʺimpugn[ed] [his]
moral characterʺ and, therefore, ʺeffectively put a significant roadblock in [his]
continued ability to practice his [] professionʺ because of the ʺnature of the
statement . . . combined with the wide publicity that [it] receivedʺ when it was
repeated by the Board in a public session. Pl. Br. 24‐25. That publicity led to
publication in a local newspaper of an article about his suspension history, which
he argues continues to prevent him from gaining reemployment as an educator.
Again, the plaintiff may or may not have made out a constitutional claim,
but he has in any event failed to establish that the defendantsʹ conduct violated a
clearly established right. At the time of the defendantsʹ alleged violation, at least,
it was not clearly established that notice of the mere existence of an internal
investigation into a license holderʹs behavior, without some detail as to the
possible misconduct being investigated, could give rise to a stigma‐plus claim.
See McGuire v. Warren, 207 F. Appʹx 34, 37 (2d Cir. 2006) (summary order)
(concluding that ʺinnuendo,ʺ even if it carries a ʺfalse implication,ʺ cannot
support a stigma‐plus claim); see also Sadallah, 383 F.3d at 38 (plaintiff asserting
21 No. 18‐1298‐cv Mudge v. Zugalla, Harder
stigma‐plus claim must show ʺthe utterance of a statement sufficiently
derogatory to injure his or her reputation, that is capable of being proved false,
and that he or she claims is falseʺ) (internal quotation marks omitted) . The
plaintiff has demonstrated at most that the defendants interfered with his
relationship, actual and potential, with a single employer: Middleburgh. That
falls decidedly short of demonstrating under clearly established law that the
defendants created a significant roadblock to his ability to practice his profession.
See Donato, 96 F.3d at 630‐31; see also Bishop v. Wood, 426 U.S. 341, 348 (1976) (ʺ[I]t
would stretch the [liberty interest] concept to[o] far to suggest that a person is
deprived of liberty when he simply is not rehired in one job but remains as free
as before to seek another.ʺ (citing Bd. of Reagents v. Roth, 408 U.S. 564, 575 (1972)
(internal quotation marks omitted)). Further, although the defendantsʹ statement
was repeated by the Board in a public session, the plaintiff fails to explain how
the ensuing article, and the statements therein, are ʺsufficiently proximateʺ to the
actions of the defendants under clearly established law. Velez, 401 F.3d at 89.
The article in question does not repeat the defendantsʹ allegedly
stigmatizing statements; indeed, it makes no mention of any new or ongoing
investigation of Mudgeʹs conduct. Thus, even if Mudge had shown facts making
22 No. 18‐1298‐cv Mudge v. Zugalla, Harder
out a stigma‐plus claim, it was objectively reasonable for the defendants to
conclude, in light of then existing law, that their conduct was lawful at the time
they engaged in it. The defendants are, therefore, entitled to qualified immunity
as to the plaintiffʹs stigma‐plus claim and summary judgment in the defendantsʹ
favor on that claim should, on remand, be granted too.
CONCLUSION We are not unsympathetic to the plaintiff, who may have been unfairly
treated by the defendants with unfortunate results. But for the reasons set forth
above, their behavior did not give rise to a cause of action under section 1983 that
could survive the defendantsʹ qualified immunity defense. We therefore
REVERSE the judgment of the district court, and REMAND the matter to the
district court, directing it to enter summary judgment in favor of the defendants.