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Tichon v. Harder

decided: February 18, 1971.


Lumbard, Chief Judge, and Smith and Anderson, Circuit Judges.

Author: Anderson

ANDERSON, Circuit Judge:

This is an appeal from the district court's determination that the complaint, seeking damages and declaratory and injunctive relief against appellant's dismissal from her position with the Connecticut Department of Welfare, failed to state a cause of action under 42 U.S.C. § 1983 or § 1985(3). The plaintiff appeals the determination that the claimed denial of procedural due process failed to state a cause of action under § 1983.*fn1

On June 27, 1969 Juliette Tichon, a recent graduate from Southern Connecticut State College where her major field of concentration was social work, commenced work as a six-months probationary employee with the Connecticut Department of Welfare as a Case Worker I in the Division of Child Welfare, New Haven District. Ultimately, she intended to pursue a professional career as a psychiatric social worker, and in carrying out that objective, she planned to work for a period of time with the Department of Welfare and then return to a university for a graduate degree in social work. As a Case Worker I she received training in and performed social case work of gradually increasing responsibility, and the first six months of her employ was a "working test period," Conn.Gen.Stats. § 5-230, during which she was a "probationary employee." Upon satisfactory completion of this period she could obtain the status of "permanent employee,"*fn2 Conn.Gen.Stats. § 5-196(r). Appellant's immediate Case Supervisor was Robert Budney whose immediate supervisor was Aldean E. Painter, the Program Supervisor. The District Director was Alice H. Sheahan.

Pursuant to Conn.Gen.Stats. § 5-230, Budney prepared a Service Rating Report on December 8, 1969, near the end of appellant's working test period. Although rating appellant's conduct and attendance "good," he rated the quantity of her work "fair" and the quality of work and her judgment "unsatisfactory." Attached to the report was a two and one-half page typed, single-spaced explanation for the evaluation, which enumerated various incidents to support the evaluation and concluded with a recommendation to dismiss the appellant from her position. Appellant was handed a copy of the report and attached explanation on December 9, 1969.

Program Supervisor Painter and District Director Sheahan reviewed the report and recommendation, and both concurred in the recommendation for dismissal. Upon Sheahan's approval, the recommendation was submitted to Agency Personnel Administrator, Charles L. Sheehan, and on December 11, 1969 he sent appellant a termination notice, effective December 26, 1969.

After her attempts to obtain a remedy through Mr. Sheehan proved unsuccessful,*fn3 appellant commenced this action in the district court. The complaint alleged a violation of substantive due process based on the alleged arbitrariness and unreasonableness of the stated grounds for dismissal and a violation of procedural due process because (1) she had received no prior notice that termination was being considered or of the reasons being considered for the dismissal, (2) she had not been judged by an impartial official or body, and (3) she was afforded no hearing at which to rebut the charges. The complaint alleged that a cause of action was provided for these violations by the Civil Rights Act, 42 U.S.C. § 1983, and further alleged a violation of § 1985(3) based on an alleged discrimination between appellant and other persons holding Case Worker I positions. Jurisdiction was claimed under 28 U.S.C. § 1343(3).*fn4

On February 9, 1970 the district court denied a motion for a temporary injunction, 308 F. Supp. 839, and on May 14, 1970 the court granted a motion to dismiss the complaint stating that "the plaintiff has failed to establish * * * that her action * * * is based on the infringement of a federally protected right * * *." Relying on the distinction articulated in its denial of the temporary injunction, the court stated that due process does not require a formal hearing and a right to appeal upon the discharge of a probationary employee, as opposed to a permanent employee. The former category of employees, having less or no reservoir of professional reputation built up through employment, possesses less of a claim to procedural rights, on the theory that interests other than continued employment at a particular job are not at stake. Freeman v. Gould Special School District, 405 F.2d 1153 (8 Cir.), cert. denied, 396 U.S. 843, 90 S. Ct. 61, 24 L. Ed. 2d 93 (1969); Medoff v. Freeman, 362 F.2d 472 (1 Cir. 1966). See generally Birnbaum v. Trussell, 371 F.2d 672 (2 Cir. 1966). The district court also dismissed the substantive due process claim and the claim based on § 1985(3), but the appeal has been limited to the question whether the allegation that the plaintiff was denied procedural due process states a claim cognizable under 42 U.S.C. § 1983. Because of the importance of Civil Rights jurisdiction under 28 U.S.C. § 1343(3) to the administration of federal jurisdiction, however, we have examined whether the complaint provides a proper basis for jurisdiction under that section, an issue not raised in the court below. For the reasons hereinafter stated, we have concluded that § 1343(3) does not provide jurisdiction and affirm dismissal of the action.

Eisen v. Eastman, 421 F.2d 560 (2 Cir. 1969), reviewed the troublesome history of Mr. Justice Stone's personal rights -- property rights formulation of § 1343(3) jurisdiction in Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), and its relationship to general federal question jurisdiction pursuant to 28 U.S.C. § 1331. Eisen adopted that formulation stating that jurisdiction would lie under § 1343(3) "'whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights.'" Eisen v. Eastman, supra, 421 F.2d at 564 n. 7, quoting 307 U.S. at 531, 59 S. Ct. 954. It is apparent, however, as Eisen recognized, that some classes of cases are not readily characterized as involving either rights of personal liberty or property rights but take on characteristics of both. Cases challenging the procedures used in a discharge from public employment are such a class. Eisen v. Eastman, supra, 421 F.2d at 565. Recently, a district court of this circuit held that a case challenging such procedures involved a right of personal liberty for purposes of § 1343(3) jurisdiction, because the loss of job and the profits derived therefrom diminished the freedom of the employee and his family. Taylor v. New York City Transit Authority, 309 F. Supp. 785 (E.D.N.Y.1970). On appeal the case was disposed of on other grounds, 433 F.2d 665 (2 Cir. 1970), and this court did not reach the question. See also Newcomer v. Coleman, 323 F. Supp. 1363 n. 5 (D.Conn.1970). The present appeal, however, requires a decision on the issue.

For purposes of § 1343(3) jurisdiction, the claim that appellant was denied procedural due process has no independent jurisdictional significance, Bradford Audio Corporation v. Pious, 392 F.2d 67, 72 (2 Cir. 1968); Roberge v. Philbrook, 313 F. Supp. 608, 612 (D.Vt.1970); rather, the Hague and Eisen test focuses on the interests claimed to be injured by the denial of procedural due process, because it is the character of those interests that determines whether the suit involves a "right of personal liberty" or not.*fn5 Bradford Audio Corporation v. Pious, supra, 392 F.2d at 72.

Discharge from employment cases have presented a variety of underlying interests allegedly injured by the discharge, ranging from those alleging specific violations of rights protected by the first eight amendments of the Constitution to those, like the present appeal, relying on general notions of due process derived from the Fourteenth Amendment. Compare, e. g., Slochower v. Board of Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956) (Exercise of Fifth Amendment privilege against self-incrimination); Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952) (First Amendment interest); Birnbaum v. Trussell, supra ; Taylor v. New York City Transit Authority, supra ; Rainey v. Jackson State College, 435 F.2d 1031 (5 Cir. 1970) (First Amendment interest). When the underlying interest allegedly injured by the discharge is one unprotected by any of the first eight amendments, exclusive of protection of property, it is difficult to characterize the claim as one involving a "right of personal liberty," because it becomes more apparent that the only interest at stake is a claimed right to a particular job, an interest easily measured in monetary terms and uneasily equated with "personal liberty." See Freeman v. Gould Special School District, supra. To construct a "right of personal liberty" out of the deprivation of profits from one's job is to misconceive the Hague and Eisen test. Eisen recognized that, viewed as a deprivation of profits, discharge from employment cases would not be cognizable under § 1343(3), and we stated in Bradford Audio Corporation v. Pious, supra, 392 F.2d at 72, that to the extent the claimed right of personal freedom is dependent for its existence on the infringement of property rights, civil rights jurisdiction will not lie. Moreover, unlike welfare recipients, who exist at a bare subsistence level, it cannot be said that an employee's rights to the profits from his job entail "some sort of right to exist in society." Johnson v. Harder, 438 F.2d 12 (2 Cir. 1971).

In applying § 1983 and § 1343, the facts of the case must be analyzed with two determinations in view: first whether the underlying interests are of sufficient moment to invoke procedural protections, see Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895-896, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961); Birnbaum v. Trussell, supra ; and, second whether those interests substantially consist of "rights of personal liberty" necessary to sustain jurisdiction under Hague and Eisen. While both property rights and rights of personal liberty can be entitled to the procedural protections provided by due process, only the latter can be asserted in the federal courts under § 1343. While Birnbaum did not necessarily stake out the boundaries of due process, see Kletschka v. Driver, 411 F.2d 436, 446 (2 Cir. 1969),*fn6 and while it did not specifically discuss § 1343(3) as Eisen did three years later, it did mark the limits of jurisdiction under that section. The appellant is now seeking an extensive enlargement of those limits.

The pertinent facts in Birnbaum were these: Dr. Birnbaum, a physician on the staff of the Coney Island Hospital, was allegedly dismissed from his position, without notice of the charges and without a hearing to which he was entitled under state law, because of pressures brought to bear by a hospital union which claimed that Dr. Birnbaum was guilty of anti-Negro bias. Following the dismissal, the First Deputy Commissioner of the New York City Department of Hospitals sent a letter to all other municipal hospitals instructing them not to hire Dr. Birnbaum. The interests at stake were two-fold: his reputation and his ability to pursue his occupation; and the action taken by the hospital officials amid charges of racial bias gave official sanction to the charges, thereby seriously damaging his professional reputation. This damage was compounded by the letter to other municipal hospitals. These two circumstances, taken together, made it apparent that more was at stake in Dr. Birnbaum's dismissal than simply his interest in a particular job; rather he was faced with the effective destruction of his capacity to continue the practice of his profession. This immediate and clear impact on Dr. Birnbaum's means of livelihood established the necessary interest to entitle him to a due process hearing and notice, and it provided the basis for § 1343(3) jurisdiction, because it involved a right of personal liberty sufficiently distinct from property interests to sustain jurisdiction.*fn7

In the present case the circumstances of appellant's dismissal involve none of the essential elements of § 1343(3) jurisdiction. There is no claim that the dismissal infringed any non-property right protected by the first eight amendments and no serious claim can be made that the circumstances surrounding the dismissal or the manner in which it was accomplished effectively deprived appellant of the established means by which she had maintained her livelihood. No charges had been made against her that were akin to the racial aspersions in Birnbaum in reputation-damaging effect, and there was no wide circulation of ...

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