Appeal from a judgment of the District Court for the Northern District of New York (Roger J. Miner, Judge) dismissing, on res judicata grounds, plaintiff's civil rights action seeking damages for suspension form her position as a school teacher from 1975 to 1977. Affirmed. Judge Oakes dissents from opinion.
Before OAKES and NEWMAN, Circuit Judges, and POLLACK, District Judge.*fn*
JON O. NEWMAN, Circuit Judge:
This appeal presents, in a complex setting, issues concerning application of the doctrine of res judicata to a claim under 42 U.S.C. § 1983 (1982). Lorraine Gargiul appeals from a judgment of the District Court for the Northern District of New York (Roger J. Miner, Judge) dismissing her complaint for damages suffered because of her suspension from her position as a school teacher from 1975 to 1977, at which time she was terminated for incompetence. The termination is not challenged; only the denial of suspension pay is in issue. For reasons that follow, we affirm.
Lorraine Gargiul was a tenured kindergarten teacher in the Liverpool Central School District. She took an extended sick leave due to a back ailment in November 1974 and sought to return to work the following March. Virgil Tompkins, the Superintendent of Schools, ordered Gargiul to report to Dr. Paul Day, the school district physician, for a physical examination. Gargiul refused because it was against her "creed" to be examined by a male physician. She offered to be examined, at her own expense, by any female physician selected by Tompkins or a local medical society. Declining this offer, the Liverpool Board of Education suspended Gargiul without pay effective March 17, 1975, until Dr. Day could determine her physical fitness to resume her teacher duties.
At that point New York law afforded Gargiul two procedural routes for challenging the Board's suspension decision. A teacher can appeal a Board's decision either to the New York State Commissioner of Education, N.Y. Educ. Law § 310 (McKinney Supp. 1984), or to the state courts by initiating an Article 78 proceeding in the New York Supreme Court, N.Y. Civ. Prac. Law & R. § 7801 (McKinney 1981). See also N.Y. Educ. Law § 3020-a(5) (McKinney 1981). If a teacher appeals the Board's decision to the Commissioner, an adverse decision by the Commissioner may then be appealed to the courts in an Article 78 proceeding.*fn1 However, if a teacher appeals the Board's decision to the Commissioner, the right to appeal the Board's decision directly to the courts is forfeited. See Karin v. Board of Education, 56 A.D.2d 721, 393 N.Y.S.2d 135, level to appeal denied, 41 N.Y.2d 806, 364 N.E.2d 850, 396 N.Y.S.2d 1025 (1977) (Karin II); Karin v. Board of Education, 65 Misc. 2d 179, 317 N.Y.S.2d 465 (Sup. Ct. 1970 (Karin I).*fn2
Gargiul elected to appeal the Board's suspension decision to the Commissioner of Education. The Commissioner dismissed her appeal because N.Y. Educ. Law § 913 (McKinney Supp. 1984) explicitly empowered the Board to required Gargiul to submit to a physical examination to certify her fitness. The Commissioner also rejected Gargiul's argument that an examination by a male physician could not be required because it was against her creed. Gargiul applied to reopen the Commissioner's decision on the ground that her constitutional right of privacy permitted her to refuse to be examined by a physician of the opposite sex. The Commissioner refused to consider Gargiul's constitutional clam because it had not been raised in the prior proceeding before him.
Gargiul did not exercise her right to challenge the Commissioner's adverse decision in an Article 78 proceeding in the state court. Instead, in the period between the Commissioner's original decision and the Commissioner's decision not to reopen the proceedings, Gargiul initiated an Article 78 proceeding against the Board to challenge her suspension without pay. However, perhaps cognizant of Karin I, she sought pay during suspension primarily on grounds unrelated to the merits of the Board's suspension decision. She claimed that as a tenured teacher she had a right under state law to be paid while suspended, regardless of whether the suspension was proper. See Jerry v. Board of Education, 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106 (1974). She also claimed that the suspension without pay was improper under the Due Process Clause. The State Supreme Court dismissed her complaint as time-barred under N.Y. Civ. Prac. Law & R. § 217 (McKinney 1972), which requires suit against a school board to be brought within four months of the effective date of the challenged action. The Appellate Division affirmed the dismissal, ruling that the suit was time-barred and that the due process claim, which the Court viewed as procedural, lacked merit. Gargiul v. Board of Education, 54 A.D.2d 1085, 389 N.Y.S.2d 504 (1976), leave to appeal denied, 41 N.Y.2d 802, 393 N.Y.S.2d 1026 (1977) (Gargiul I). The preclusive effect of the decision in Gargiul I will ultimately be our concern on this appeal, but that issue will be better understood after explication of all the administrative and judicial developments pertinent to Gargiul's claim.
On August 9, 1975, the Board determined that there was probable cause to seek Gargiul's dismissal for insubordination in refusing to be examined by Dr. Day and for incompetence based on parents' complaints and unfavorable supervisors' reports. A tenure hearing panel was convened pursuant to N.Y. Educ. Law § 3020-a(3) (McKinney 1981). After hearings were held, the panel recommended that Gargiul be dismissed for incompetence but that she receive her salary from March 17, 1975, the effective date of her suspension, until the date of her termination. On May 23, 1977, the Board dismissed Gargiul but rejected the recommendation to pay her for the suspension period.*fn3
Gargiul then commenced a second Article 78 proceeding, challenging both her termination and the Board's denial of suspension pay. The State Supreme Court denied relief. The Appellate Division affirmed, upholding her termination for incompetence as supported by substantial evidence and refusing to consider her claim for suspension pay because she had not appealed the Commissioner's earlier decision on the validity of her suspension in an action to which the Commissioner was a party. Gargiul v. Board of Education, 69 A.D.2d 986, 416 N.Y.S.2d 119, leave to appeal denied, 48 N.Y.2d 606, 421 N.Y.S.2d 1031 (1979) (Gargiul II).
Gargiul brought this action in the District Court pursuant to 42 U.S.C. § 1983 challenging the constitutionality of both her termination and her suspension without pay. The federal action was held in abeyance pending conclusion of the state proceedings. The District Court dismissed the complaint. On appeal, we considered the preclusive effects of Gargiul I and Gargiul II under our then prevailing rule that state court judgments would bar relitigation in section 1983 suits only of claims actually litigated, i.e., applying collateral estoppel but no res judicata. See Lombard v. Board of Education, 502 F.2d 631, 635-37 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975). We held that Gargiul II barred relitigation of Gargiul's challenge to her termination and that Gargiul I barred her claim for suspension pay based on denial of procedural due process. Gargiul v. Tompkins, 704 F.2d 661 (2d Cir. 1983). However, we refused to bar her substantive due process claim for suspension pay based on both denial of her constitutional right to privacy and the arbitrary nature of the Board's decision because that claim had not been litigated in either state court action. We also refused to give preclusive effect to the Commissioner's rejection of her suspension pay claim because of the informal nature of that proceeding. Reaching the merits, we held that the Board had acted arbitrarily in suspending Gargiul for refusing examination by a male physician when she was willing to pay the expenses of a female physicial selected by the Board. Since her suspension without pay was therefore improper, even though the subsequent termination for incompetence was valid, we remanded for determination of damages.
While the defendants' appeal to the United States Supreme Court was pending, the Court decided Migra v. Warren City School District Board of Education, 465 U.S. 75, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984), and held that 28 U.S.C. § 1738 (1982) requires a federal court in a section 1983 action to give the same preclusive effect to a state court judgment as would the courts of the rendering state, regardless of whether the issues in the federal action had actually been litigated in a prior state action. The Court remanded this case to us for reconsideration in light of Migra. Tompkins v. Gargiul, 465 U.S. 1016, 79 L. Ed. 2d 670, 104 S. Ct. 1263 (1984). We remanded the case to the District Court for a determination of whether New York would accord preclusive effect to Gargiul I or Gargiul II with respect to Gargiul's constitutional challenge ...