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WATKINS v. MCCONOLOGUE

April 13, 1992

DODGE WATKINS, Plaintiff, against ROSEMARY McCONOLOGUE, et al. Defendants.

BRODERICK


The opinion of the court was delivered by: VINCENT L. BRODERICK

VINCENT L. BRODERICK, U.S.D.J.

 I

 This case involves a dispute between a local school board and a superintendent who was suspended with pay. No public announcement was made and no charges of personal wrongdoing were involved.

 Disputes over problems arising in the district led to dissatisfaction on the part of a majority of the board with plaintiff, possibly enhanced by preference of some for a superintendent with greater experience. Plaintiff was suspended with pay but then reinstated on state procedural grounds by the State Commissioner of Education, after which a new suspension with pay was imposed and a formal proceeding with written notice initiated which the Commissioner found proper.

 Plaintiff alleges a violation of Fourteenth Amendment due process and has filed pendent state claims for breach of contract and infliction of emotional distress. Both sides have moved for summary judgment; plaintiff's motion is for a declaration of liability on the due process claim.

 The matter was referred to United States Magistrate Judge Mark D. Fox, who filed a Report and Recommendation on February 25, 1992, making detailed factual findings. The facts I find dispositive are undisputed: that plaintiff held a high supervisory position, that plaintiff was suspended with pay in a dispute with the school board over what it regarded as proper functioning of the district, that no defamatory announcement was made, and that no charges of personal wrongdoing were made or circulated.

 While Judge Fox recommended only denial of plaintiff's motion, the facts he found and his legal analysis, both of which I adopt, and which I amplify as discussed below, lead to the conclusion that plaintiff's Fourteenth Amendment claim cannot be upheld. *fn1" Consequently, defendants' motion for summary Judgment dismissing plaintiff's Fourteenth Amendment claim is granted. Under these circumstances, it would be inappropriate to retain the pendent state claims, which are accordingly dismissed without prejudice. *fn2"

 II

 This case presents only claims of denial of procedural due process. It involves no First Amendment or other independent federally protected rights. Under the circumstances described above, the only cognizable loss to plaintiff was in the ability to fulfill the function of superintendent for a limited period, and no liberty or property interest was infringed. *fn3" Loss of prestige due to the dispute with the school board cannot be recognized without permitting as bases for federal litigation, every up and down in the fortunes of highly visible public servants who are, by the very nature of their activities, subject to criticism. *fn4"

 Plaintiff lost no money and was not defamed by any negative announcement, *fn5" or a dismissal for harmful reasons. In the context of a dispute between a public sector employee and a governing body, the Supreme Court has specifically suggested the course taken by the defendants as a way appropriately to discharge their own duty to supervise the large-scale activities within their charge, while avoiding harm to liberty or property of their employees:

 ". . . in . . . situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 544-45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).

 As indeed foreshadowed by Loudermill, it has been specifically indicated that "suspension with pay does not raise due process concerns," Hicks v. City of Watonga, 942 F.2d 737, 746 n. 4 (10th Cir. 1991). A similar ruling was made by Judge Leisure of this court in Weg v. Macchiarola, 729 F. Supp. 328, 338 (S.D.N.Y. 1990).

 Insofar as the non-financial harm alleged by plaintiff, the administrative remedy available was in fact used. It led to a favorable result with respect to the suspension and whatever aura it may have projected. Moreover, a formal hearing was scheduled, providing further opportunity for plaintiff to refute any charges. And most pertinently, as explained by Judge Leisure in some detail in Weg at 338-39, the sting sufficient to infringe a liberty interest has been found only where harmful criticism was ...


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