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DESIMONE v. BOARD OF EDUC.

March 22, 1985

Vincent R. DeSIMONE, Plaintiff,
v.
BOARD OF EDUCATION, SOUTH HUNTINGTON UNION FREE SCHOOL DISTRICT, and Marie Connelly, Defendants.



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

WEXLER, District Judge.

 This is an action under 42 U.S.C. § 1983.

 I. FACTS

 On May 11, 1983 defendant Board of Education abolished plaintiff's position of High School Dean, effective June 30, 1983. At the same time, the Board established a new position of High School Administrative Assistant. On May 12, 1983 the Superintendent of Schools for the district informed plaintiff of the abolition of his position, and also informed plaintiff that he would not be offered new employment for the term starting September 1983.

 It is undisputed that plaintiff held tenure pursuant to N.Y. Education Law § 3012(2). Defendant contends that the discharge was proper pursuant to Education Law § 2510(2) and (3), which provides that whenever a board of education abolishes a position the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued, and that such teacher shall be placed upon a preferred eligible list of candidates for appointment to vacancies in a similar position. Plaintiff contends that the new position of High School Administrative Assistant is essentially equivalent to plaintiff's old position of High School Dean. Under Education Law § 2510(1) if the board of education abolishes one position and creates a similar position, the person holding the old position must be appointed to the new position. Plaintiff contends that defendant has deprived plaintiff of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment.

 Defendant has moved to dismiss pursuant to Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), on the ground that the state provides adequate post-deprivation remedies for the alleged deprivation of property. Plaintiff has moved for partial summary judgment, requesting this Court to find that plaintiff has been deprived of property without due process.

 II. THE PARRATT ISSUE

 The first issue is whether this case should be dismissed pursuant to Parratt.

 In Parratt, the Court held that the loss of a prisoner's property caused by the negligent failure of prison officials to follow normal procedures for the receipt of mail packages, although constituting a deprivation of property under color of state law, did not constitute a deprivation "without due process", given the fact that (1) the loss resulted from a random unauthorized act, so that the state could not provide any pre-deprivation process, and (2) the state did provide adequate post-deprivation remedies. In Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Court applied the same reasoning to intentional deprivations of property resulting from random unauthorized acts by prison guards. In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982), the Court explained that the Parratt doctrine applies only in situations where the state could not practically have provided pre-deprivation process, as for example when the alleged deprivation results from random unauthorized acts by low level personnel.

 In the instant case, state law under Education Law § 2510 clearly gave plaintiff a substantive property right that in the event his position was abolished and replaced by an essentially equivalent position he would be allowed to occupy such new equivalent position. Plaintiff alleges that the new position created by defendant was essential equivalent to plaintiff's old position.

 If and insofar as plaintiff's contention that the positions are equivalent turns upon questions of fact, the procedural component of the Due Process Clause of the Fourteenth Amendment requires that defendant provide plaintiff with notice and a hearing before finally determining that the positions are now equivalent.Assuming for the sake of argument that the equivalency of the positions turns at least in part upon questions of fact and that such a hearing is therefore required, we hold that such hearing, or at least a preliminary hearing, should have been provided before plaintiff was discharged. Here, unlike in Parratt and Hudson, we deal not with random unauthorized acts by low level personnel which higher authorities could not have prevented by means of pre-deprivation process, but rather with an act by a Board of Education. If any hearing was required, we see no reasonn why the board could not have provided plaintiff with (at the very least) some kind of preliminary hearing before the discharge took place. We do not necessarily mean to imply that a full-scale trial type hearing was required prior to the discharge; perhaps it would have been sufficient to hold an abbreviated non-evidentiary hearing prior to the discharge, to be followed by a more elaborate evidentiary hearing after the discharge. See Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974).

 Of course, the equivalency of the positions does not necessarily turn upon issues of fact which could reasonably be disputed. It may well be that the positions were so clearly similar or so clearly dissimilar that at the time of the Board's action it could be said as a matter of law that the discharge was or was not proper under Education Law § 2510. If, at the time of the discharge, undisputed facts could establish as a matter of law that the positions were not "similar" within the meaning of the substantive law of Education Law § 2510(1), then a hearing would have served no purpose, and the Board did not violate the Due Process Clause by discharging plaintiff. On the other hand, if at the time of the discharge undisputed facts could establish as a matter of law that the positions were "similar" within the meaning of the substantive law of Education Law § 2510(1), then the Board's action in discharging plaintiff was substantively (as distinct from procedurally) defective.If the Board's action was substantively defective, then no amount of hearings on factual issues could have remedied the defect (it should be noted, however, that if state authorities determined through formal proceedings that the positions were dissimilar as a matter of substantive law, such a determination might conceivably bar the instant action, not because such a determination would remedy a substantive defect in the Board's action, but rather because such determination could conceivably have res judicata ...


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