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SHUB v. HANKIN

November 30, 1994

MICHAEL SHUB, Plaintiff, against JOSEPH N. HANKIN, individually and in his capacity as President of Westchester Community College, WESTCHESTER COMMUNITY COLLEGE, and THE COUNTY OF WESTCHESTER, Defendants.


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Plaintiff charges that he was denied procedural due process when he was suspended improperly from teaching duties, pending the outcome of an investigation of possible sexual harassment of female students, and other conduct unbecoming a member of the College staff. Plaintiff seeks compensatory damages and punitive damages, as well as attorney fees and costs.

 Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants have moved to dismiss the complaint for failure to state a claim. The facts set forth below are uncontested and appear from the Complaint as amplified at the hearing held October 28, 1994 (see transcript) and by affidavits submitted by the parties.

 Plaintiff is a tenured Associate Professor of Mathematics at Westchester Community College, and as such is a member represented by the Westchester Community College Federation of Teachers, a collective bargaining unit.

 In September, 1989, Plaintiff was charged with conduct unbecoming a member of the staff. The 1989 charges involved allegations of sexual harassment of female students. By decision dated May 9, 1990, a neutral arbitrator, Howard C. Edelman, Esq., appointed pursuant to the provisions of the Collective Bargaining Agreement between Westchester County and the Westchester Community College Federation of Teachers ("Collective Bargaining Agreement") (Def. Ex. A. to Motion), determined that Plaintiff was guilty of conduct unbecoming a member of the staff. As a result, Plaintiff was suspended from teaching for one semester.

 On July 1, 1994, Plaintiff was served with Notice of Charges dated June 28, 1994, again for conduct unbecoming a member of the staff. The current allegations involve improper contacts with students, including (1) inviting a female student for a drink and telling her that he wanted to see her off campus; (2) inviting a female student for a drink, asking questions about her personal life, and making remarks about her perfume; (3) inviting a female student for a drink; (4) requesting home telephone numbers of students and inviting them to go sailing on his boat; (5) sexually harassing a female student by inviting her for a drink, touching her, asking her questions about her personal life, and raising one of her grades without justification; (6) keeping objects in his office suggesting that female students were more likely than male students to receive an "A"; (7) informing a female student that she was "not [his] type"; (8) giving preferential treatment to one female student while refusing to help another female student when they both went to his office for help with their course work.

 On August 23, 1994, Plaintiff was suspended from classroom teaching, pending the outcome of the charges, and was informed that for the Fall, 1994 semester, he will be reassigned to "several curriculum/syllabus projects," apparently the academic equivalent of the rubber gun squad, *fn1" with no diminution in his basic salary.

 The Complaint in the instant case seeks to (1) enjoin Defendants from prosecuting Plaintiff on the 1994 disciplinary charges pursuant to the Collective Bargaining Agreement; (2) set aside and void the 1990 disciplinary conviction; *fn2" (3) award compensatory damages, punitive damages and attorneys fees.

 This Court recognizes that on a motion of this sort, we are "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The court must accept as true the factual allegations made in the Complaint, as amplified by the affidavits and documents received without objection, and concessions of fact made at the October 28, 1994 hearing. The Complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 The Issue Presented

 Plaintiff contends that he was denied procedural due process when Defendants brought charges pursuant to the College's Collective Bargaining Agreement for "conduct unbecoming," which included accusations of sexual harassment, rather than invoking the "Westchester Community College Procedure on Discrimination" and the "Westchester Community College Policy and Procedure on Sexual Harassment" (collectively "the College Policy") (Def. Ex. E to Motion), established by the College pursuant to the United States Code of Federal Regulations, 34 C.F.R. § 106.8 et seq. (see infra). Plaintiff argues that Defendants must proceed under the College Policy rather than the Collective Bargaining Agreement.

 A tenured public employee has a property right in continued employment and cannot be terminated without first receiving notice and an opportunity to be heard. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). The law is less clear concerning personnel actions short of termination. See, e.g., Maples v. Martin, 858 F.2d 1546, 1550 (11th Cir. 1988) (no property interest when tenured university professors transferred from mechanical engineering department to other engineering departments with no diminution in salary or rank); Garvie v. Jackson, 845 F.2d 647, 651 (6th Cir. 1988) (no property interest when university department head reassigned to regular teaching duties); Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. 1981) (protectible property interest where county engineer demoted to position of greatly reduced responsibilities).

 Our Court of Appeals has not addressed the issue of whether temporary suspension of a tenured professor's teaching duties constitutes deprivation of a property right. However, in Ezekwo v. N.Y.C. Health & Hospitals Corp., 940 F.2d 775, 783 (2d Cir.), cert. denied, 502 U.S. 1013,, 112 S. Ct. 657, 116 L. Ed. 2d 749 (1991), the court held that a physician possessed a property interest in the opportunity to serve as Chief Resident -- withdrawal of which was an action short of termination. The court recognized that "not every contractual benefit rises to the level of a constitutionally protected property interest." Id. at 782. "In determining which interests are afforded such protection, a court must look to whether the interest involved would be protected under state law and must weigh 'the importance to the holder of the right.'" Id. The court then determined that the policy and practice of the institution was well-established and that the right had important professional and financial value to the plaintiff.

 Here, Plaintiff alleges that the suspension of his teaching duties pending a disciplinary investigation and hearing deprived him of a significant source of compensation because he was precluded from teaching "overload" courses, voluntarily, for which extra pay is awarded. Plaintiff also claims and the Court assumes that revelation of the sexual harassment charges to the college community stigmatized him.

 Even assuming that the temporary suspension of Plaintiff's teaching duties under the circumstances of this case constitutes deprivation of a property right, Plaintiff has failed to show that the post-suspension due process to be given by Defendants in compliance with the Collective Bargaining Agreement violates the Fourteenth Amendment's guaranty of due process.

 In order to determine whether a pre-deprivation hearing, as opposed to a post-deprivation hearing, is due, the court must balance the private interest against the government interest. Mathews v. Eldridge, 424 U.S. 319, 340, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). Where a valid government interest militates toward immediate action, a post-deprivation hearing is sufficient to satisfy due process. Ezekwo, 940 F.2d at 785. (In situation where "the residency program administrators believed that plaintiff presented a threat to patient safety. . . . the program administrators would be justified in immediately removing [plaintiff] subject to some post-removal review.").

 Here, the College reasonably believed that Plaintiff presented a threat to the well-being of its students. Sexual harassment damages the educational environment and destroys the trust that is a necessary component in the teacher-student relationship. The college administrators were justified in taking a temporary measure -- reassigning this allegedly recidivist teacher pending the outcome of disciplinary proceedings -- in order to protect the well-being of the student body.

 The only remaining issue here as presented by Professor Shub is a pure question of law: was Plaintiff denied procedural due process because Defendants followed the agreed due process procedures contained in the Collective Bargaining Agreement rather than the due process procedures which the College had adopted in accordance with 34 C.F.R. § 106.8 (b) for sexual harassment.

 This Court concludes that there is no requirement pursuant to the Fourteenth Amendment, that a specific procedure be used, nor is a plaintiff entitled to the procedure of his or her choice. Plaintiff is entitled only to notice and "an opportunity [to be heard] . . . at a meaningful time in a meaningful manner." Boddie v. Connecticut, 401 U.S. 371, 378, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1970). It is not a Constitutional violation if a defendant chooses to follow ...


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