Ruth E. Buck, Plaintiff-Appellant-Appellee v. The Board of Education of the City of New York, Defendant-Appellant-Appellee, Dr. Bernard E. Donovan

553 F.2d 315, 15 Empl. Prac. Dec. (CCH) 8048

• Court: Court of Appeals for the Second Circuit
• Decided: April 20, 1977
• Docket: 216, 372, Dockets 75-7583, 75-7636
• Status: Published

Opinions

MOORE, Circuit Judge:

Plaintiff Ruth E. Buck, formerly a tenured guidance counselor employed by the Board of Education of the City of New York (“the Board”), commenced this action in 1971, pursuant to 42 U.S.C. §§ 1983, 1985 and-1986, against the Board and numerous other defendants, alleging that her discharge from school employment in 1969 deprived her of her civil rights. On December 2, 1974, the late Judge Judd of the Eastern District of New York entered a judgment in plaintiff’s favor, and after further hearings determined to require the Board to pay Mrs. Buck $62,324.23 in back salary plus interest. The judgment was based on a finding that the administrative hearing procedure that resulted in Mrs. Buck’s dismissal violated her right to procedural due process of law. Both Mrs. Buck and the Board appeal from differing aspects of the district court’s decision.

I.

Mrs. Buck had been employed for over ten years in the New York City public school system before the events leading to her dismissal, serving most recently as a tenured guidance counselor at Franklin K. Lane High School in Brooklyn, New York.

In June, 1968, defendant Morton Selub, Principal of that High School, submitted a report to Dr. Sidney Leibowitz, Medical Director of the Board of Education, requesting that plaintiff be given a medical, i. e., psychiatric, examination. Mr. Selub asserted that plaintiff had refused to follow the instructions of her supervisor, defendant Mary Cohen, the Administrative Assistant in charge of Guidance. The report also described several incidents of allegedly strange behavior by Mrs. Buck observed by Mr. Selub, Mrs. Cohen, and defendant Sheldon Wein, the school’s Assistant Dean of Boys. Dr. Leibowitz agreed that plaintiff should be given the medical examination.

There followed an extended series of attempts to have Mrs. Buck undergo the examination. On July 25,1968, Dr. Leibowitz asked her to appear on August 1. Mrs. Buck refused, saying that she had a prior engagement. On August 6, she was sent a notice of an appointment scheduled for August 27; she replied that she could not attend because she was planning to be out of town. The next notice scheduled the appointment for September 5, but Mrs. Buck responded that any appointment would have to await the opening of the school term.

On September 6, Mrs. Buck, represented by counsel, commenced a proceeding in New York state court seeking to rescind the order for the examination. The Superintendent of Schools, defendant Bernard Donovan, as a party to that state proceeding, agreed by stipulation not to compel the medical examination until the termination of the litigation. As it happened, it was not until May 21, 1969 that the New York Supreme Court dismissed Mrs. Buck’s petition, holding that the Board’s examination request was not arbitrary, capricious or unreasonable.

The futile procession of scheduling notices was thereupon renewed. Mrs. Buck received notice of an examination scheduled for September 24,1969, but replied that she would not attend because the notice had not been signed “by hand”. The other notices called for an examination on October 15, a “Vietnam Moratorium” day; Mrs. Buck responded that she intended to “take that day off”. A seventh notice dated October 16 was also unavailing, and an eighth notice called for Mrs. Buck’s appearance on November 6, 1969.

After last-minute attempts to avoid the November 6 appointment, plaintiff went to the Board Medical Office, ostensibly to submit to the examination. But on her arrival she refused to sign in or fill out any forms until she had seen a supervisor. After waiting for a physician for approximately a half hour, she departed, saying that because it was three o’clock her working hours were over.

On the basis of these repeated refusals to appear for the medical examination, on December 5, 1969, the Acting Supervisor of Schools, defendant Nathan Brown, charged Mrs. Buck with insubordination and suspended her without pay.

The Board thereupon appointed a trial examiner to hear the case and to recommend what Board action, if any, was required. At the several hearings held by the examiner Mrs. Buck was represented by counsel (defendant David Lubash) and presented her case through witnesses, exhibits, and cross-examination of those witnesses called by the Superintendent. The trial examiner’s findings are best summarized in his conclusion that plaintiff’s

“intransigent defiance of authority, dictatorial attitude toward supervision, [and] continued evasion of a directive for medical examination which was issued in the prescribed and proper manner, are inexcusable.” (Board’s App. at 73.)

The examiner recommended that the Board permanently discharge Mrs. Buck from further employment, though he suggested that it first consider offering her one last chance to retain her job by submitting to the examination.

Mrs. Buck was informed by letter that the Board would consider the matter of her suspension at its public meeting on July 22, 1970. She decided to attend the Board’s meeting, apparently against the advice of her counsel, but her tardy arrival meant that she missed the Board’s consideration of her case and its publicly-announced decision to make her discharge permanent.

On July 23, 1971, appearing pro se, Mrs. Buck commenced the instant action in the district court. Her original complaint included as defendants virtually everyone with whom she had been in contact in connection with the proposed medical examination. The thrust of her complaint was that the direction to report for a medical examination was an instance of harassment directed at her by the largely Jewish hierarchy in the city school system because of her white, Anglo-Saxon, Protestant ancestry and her refusal to participate in teacher strikes during 1967 and 1968.

On pretrial motions, Judge Judd dismissed the complaint as against most of the named defendants and sua sponte added as an issue for trial, inter alia, the question of whether Mrs. Buck was denied due process by the Board’s reaching its decision prior to providing her with a copy of the trial examiner’s report.

On December 2, 1974, Judge Judd rendered his decision, holding that Mrs. Buck had failed to prove that the request for a medical examination was in any way prompted by ethnic prejudice or retaliation for her anti-strike attitude. But the court also found that the administrative hearing procedure followed by the Board violated Mrs. Buck’s right to procedural due process. She was subsequently awarded over $60,000 in back pay plus interest. The Board appeals from the finding of a due process violation and the fixing of liability upon it. Mrs. Buck also appeals, appearing pro se to contend, inter alia, that the district court erred in dismissing the complaint against many of the original defendants and in computing the damage award.

II.

Mrs. Buck’s position as a tenured guidance counselor is indisputably a property interest encompassed within the fourteenth amendment’s due process protection. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). Thus, the parties to this case agree that she could not be permanently discharged from employment without adherence to the procedural protections which are guaranteed her by the due process clause.

At issue here, rather, is the exact measure of procedural protection to be accorded Mrs. Buck. The district court reasoned that her failure to receive a copy of the trial examiner’s report before the Board meeting at which the final decision in her case was rendered in itself amounted to a constitutional violation. As the court below reasoned,

“a person who faces dismissal should have a right to see the report before the Board acts on it and to argue with respect to the action to be taken on it.” (Board’s App. at 124, as modified at 130.)

However, the district court erred by placing excessive emphasis on the particular course of the report of the trial examiner. In reviewing state action in the area of procedural due process, federal courts must look to the whole substance of a proceeding, not merely to its bare form, in determining whether the process at issue abides by the constitutional minimum of protection. Bell v. Burson, 402 U.S. 535, 541, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). In that analysis the courts must “fully [realize] . . . that the interpretation and application of the Due Process Clause are intensely practical matters,” Goss v. Lopez, 419 U.S. 565, 577-78, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975), and must be mindful of

“the importance of not imposing upon the States or the Federal Government . any procedural requirements beyond those demanded by rudimentary due process.” Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970).

The exact procedures mandated by due process will vary from one context to another, Bell v. Burson, supra, 402 U.S. at 540, 91 S.Ct. at 1748, for the “very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Of course, it has long been recognized that the fundamental requisite is that the person who is to be deprived of a protected interest be given adequate notice of the proceeding and the charges alleged, as well as afforded a fair opportunity to be heard. Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233, 17 L.Ed. 531 (1863); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In the specific context of educational employment, the Supreme Court has expressed the due process standard as requiring a hearing where the employee can be informed of the grounds for his or her possible discharge and can challenge their sufficiency. Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Cf. Goss v. Lopez, supra, 419 U.S. at 579, 95 S.Ct. 729, 738 (public high school students facing suspension entitled to “some kind of notice and . some kind of hearing”) (emphasis in original).

The facts of this singular case reveal that the Board’s procedure satisfied this standard with regard to Mrs. Buck. Mrs. Buck was afforded explicit notice of the allegations raised against her. She received a complete written statement of the Superintendent’s charges and specifications as early as the decision to suspend her, and she confronted the full case against her later in the hearings before the trial examiner. Moreover, she was given ample opportunity by the trial examiner to explain or contradict the charges in an adversarial context. She was represented by counsel, who took full advantage of the chance to present her defense, using witnesses, exhibits, and extensive cross-examination of those who testified for the Superintendent.

In addition, the meeting at which the Board formally made its decision was open to the public and offered Mrs. Buck another effective opportunity to contest the charges against her. It was Mrs. Buck’s absence, not Board procedure, which prevented her inclusion in the discussion of the matter at that time of final decision.

We also note that, at the time, neither Mrs. Buck nor her lawyer seemed to place great significance on the trial examiner’s report; they did not request a copy of it from either the Board or the examiner, nor did they make any effort to learn the substance of its recommendations.¹ At no time in these proceedings has Mrs. Buck pointed to any evidentiary or conclusory irregularity in the examiner’s report or recommendation. We have held in the context of selective service regulations that such a failure to establish any harm or prejudice will preclude a finding of procedural violation. Nurnberg v. Froehlke, 489 F.2d 843, 848 (2d Cir. 1973). See also United States v. Bellmer, 404 F.2d 132, 135 n. 6 (3d Cir. 1968); United States v. Ford, 478 F.2d 169, 174-75 (1st Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 113, 38 L.Ed.2d 91 (1973).

The district court cited only two federal cases in support of a finding of a procedural defect here. Both concern procedures established by statute and regulation to govern selective service classifications, and both fail to lend precedential credence to the determination below. In Rohe v. Froehlke, 500 F.2d 113 (2d Cir. 1974), a member of the United States National Guard failed to report for a required training session, claiming that he had been ill and confined to his home. His unit commander disbelieved the excuse and ordered that Rohe be called for active duty. Rohe was advised that, pursuant to Army regulations, he could appeal his commander’s decision to the Assistant Adjutant General. He did, but he received no evidentiary hearing at all, and was not even informed of relevant factual allegations which his commanding officer was, without his knowledge, continually supplying the Assistant Adjutant General. This court held that the Army regulations which provided Rohe with the opportunity to appeal his commander’s decision implicitly required that the appellate process allow Rohe some opportunity to respond to his commander’s ex parte allegations. Here, by contrast, Mrs. Buck not only had a full, adversarial evidentiary hearing, but had available to her the opportunity to respond to the trial examiner’s recommendation at the Board’s public meeting.

The second case cited, but not discussed, by the district court is Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), where the Supreme Court held as a matter of statutory construction that the Military Selective Service Act in effect at that time, 62 Stat. 604 et seq. (1948), as amended, 50 U.S.C.App. § 451 et seq., required that a candidate whose application for conscientious objector status was being considered be afforded an opportunity to present a reply to the Justice Department’s recommendation of denial in his case. Gonzales, a Jehovah’s Witness, was denied conscientious objector status by his local draft board. He duly appealed to the Appeals Board of the Selective Service, which referred his case to the Justice Department for an investigation. An informal hearing was held before a Department hearing officer who recommended a denial of conscientious objector status. The Department of Justice in its report to the Appeals Board made the same recommendation and the Appeals Board approved the denial.

The significant failure of this procedure, the defect which the Supreme Court considered fatal and which is crucial to our understanding of that case’s relevance here, is that, under the statutory scheme before the Court, Gonzales was at no time either notified of the Appeals Board’s renewed consideration of his case after receipt of the Department’s report, or given an opportunity to appear or file a reply in response to the Department’s recommendation. 348 U.S. at 410-11, 75 S.Ct. 409. The Court’s reasoning made clear that it was primarily the regulatory scheme’s failure to allow for an effective opportunity for Gonzales to appear before the Board to dispute the Department’s recommendation which rendered his classification invalid. 348 U.S. at 412-13, 75 S.Ct. 409.

The circumstances of the case before us show that Mrs. Buck was not deprived of an opportunity to rebut the recommendation of the trial examiner. She was informed fully one week in advance that her case would be considered at an upcoming public meeting of the Board of Education. There is no evidence in the record suggesting that had Mrs. Buck been present when her dismissal was discussed she would not have been afforded a full opportunity to present her views in response to the trial examiner’s recommendation. She cannot reasonably claim that the procedural treatment accorded her failed to guarantee that fundamental fairness which is the heart of due process.

Mrs. Buck’s interest in retaining her job was obviously a strong one. But there was little practical risk that she would be erroneously discharged after the full evidentiary hearing before the trial examiner and an opportunity to state her case in public before the Board. Thus, we cannot say that in this case the due process clause mandated a rigid rule requiring the Board to provide Mrs. Buck with the trial examiner’s report prior to the Board’s public meeting.

In a recent opinion concerning the scope of procedural due process in the context of public education, the Supreme Court repeated an admonition against excessive judicial interference with any local procedure which, under the circumstances presented, provides the constitutional minimum of protection:

“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. ... By and large, public education in our Nation is committed to the control of state and local authorities.” Goss v. Lopez, supra, 419 U.S. at 578, 95 S.Ct. at 738, quoting from Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

The facts of this case reveal that Mrs. Buck was afforded clear notice of the charges being brought against her and was allowed ample opportunity to present her views in rebuttal. The due process clause, in this case, requires no more.

In light of our holding, it is not necessary for us to consider the other issues raised on appeal. The judgment of the district court finding a violation of the fourteenth amendment is reversed. The district court’s pretrial dismissal of defendants is affirmed.

1 . The dissent makes much of the “risk” that Mrs. Buck had “no idea” of the contents of the trial examiner’s report. Mrs. Buck did make the allegation of lack of knowledge in her affidavit of May 7, 1974. But Judge Judd carefully avoided endorsing her assertion; he noted only that there was nothing in the record expressly contradicting it. His caution was well-taken, for common sense belies any assertion that one who participates in a fully adversarial, evidentiary hearing regarding her own conduct would not be familiar with the basic substance of the trial examiner’s report. See Blanton v. State University of New York, 489 F.2d 377, 385-86 (2d Cir. 1973). Indeed, an assumption of lack of knowledge makes entirely unintelligible the failure of Mrs. Buck or her attorney to request a copy of the report prior to the public Board meeting.