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FAIRBAIRN v. BOARD OF EDUC. OF SOUTH COUNTRY CENT.

January 11, 1995

LAILE E. FAIRBAIRN, Plaintiff, against BOARD OF EDUCATION OF SOUTH COUNTRY CENTRAL SCHOOL DISTRICT, JOSEPH A. LARIA, AS SUPERINTENDENT OF SCHOOLS AND INDIVIDUALLY; MARY JO FARRELL, AS PRINCIPAL OF GRANTS/SPECIAL PROJECTS AND INDIVIDUALLY; HARVEY PALMORE, AS ASSISTANT PRINCIPAL OF BELLPORT MIDDLE SCHOOL AND INDIVIDUALLY; JAMES BANKS, AS BOARD MEMBER AND INDIVIDUALLY; MARY JANE CULLEN, AS BOARD MEMBER AND INDIVIDUALLY; GEORGE R. ELEAZER, JR., AS BOARD MEMBER AND INDIVIDUALLY; ELIZABETH M. GARDNER, AS BOARD MEMBER AND INDIVIDUALLY; ELEANOR MAHONEY, AS FORMER BOARD MEMBER AND INDIVIDUALLY; JOANN NEAL, AS BOARD MEMBER AND INDIVIDUALLY; WILLIAM J. SELLS, AS BOARD MEMBER AND INDIVIDUALLY; SHELDON STIEFELD, AS PRINCIPAL OF BELLPORT MIDDLE SCHOOL AND INDIVIDUALLY; KENNETH D. SWANER, JR., AS BOARD MEMBER AND INDIVIDUALLY; MARIANNE TATE, AS BOARD MEMBER AND INDIVIDUALLY; AND JOSEPH P. ZAFFUTO, AS BOARD MEMBER AND INDIVIDUALLY, Defendants.


The opinion of the court was delivered by: DAVID G. TRAGER

 TRAGER, District Judge:

 The plaintiff in this case, Laile E. Fairbairn, previously was employed as an assistant superintendent of schools for educational services by the defendant Board of Education of South Country Central School District ("Board"). Her job was eliminated on June 30, 1992, apparently for budgetary reasons. Fairbairn has contended that the Board authorized in August 1992 another position, administrative assistant to the superintendent, which covered many of the duties she had performed. This new position was given to another employee, Mary Jo Farrell, and plaintiff has asserted that Farrell de facto had been given the duties of administrative assistant to the superintendent in July 1992, before the post was created formerly in August 1992. Furthermore, around the time she had learned in the spring of 1992 that her job would be eliminated, Fairbairn also had applied for an open assistant principal position at Bellport Middle School, which was within the school district. That post was awarded to another school employee, Harvey Palmore.

 Fairbairn brings this lawsuit under multiple employment discrimination and civil rights statutes to challenge these two employment decisions. She has moved for partial summary judgment on her claims for the administrative assistant post, and to strike defendants' affirmative defenses; and the defendants -- the Board, its members, and other individuals sued both in their official and individual capacities -- have moved for summary judgment. For the reasons set forth below, the court grants in part and denies in part both motions.

 I. The Appointment of Farrell as Administrative Assistant to the Superintendent

 A. Procedural Due Process

 The law has been well-settled that an individual who had a property or liberty interest deprived by governmental action, was entitled to due process. Winston v. City of New York, 759 F.2d 242, 245 (2d Cir. 1985). Indeed, defendants have conceded that Fairbairn had a property interest, as she had tenure, and she lost her job as a result of governmental action.

 In count I of her amended complaint, Fairbairn claimed that she should have been provided a pre-termination hearing, and in count VIII she maintained that pursuant to New York Education Law § 2510, she had the right to succeed to the position of administrative assistant to the superintendent. In Education Law § 2510, New York has required that discharged teachers be placed on a preferred eligibility list for jobs that became available which were similar to their abolished posts. In two cases, DeSimone v. Bd. of Educ., 612 F. Supp. 1568 (E.D.N.Y. 1985), and Goldberg v. Bd. of Educ., 777 F. Supp. 1109 (E.D.N.Y. 1991), the courts held that a school employee should have been provided a pre-termination hearing if there was an apparent possibility that a new post, created concurrently with the abolishment of an old post, was similar to the eliminated post. *fn1"

 After a review of the duties performed under each job, the court has concluded that plaintiff has demonstrated, in accordance with DeSimone and Goldberg, that the duties performed pursuant to the new administrative assistant job, possibly shared some similarity with the duties that Fairbairn had performed. However, plaintiff has not shown an absence of genuine dispute which would permit this court to grant her summary judgment on her claim that this new administrative assistant post was created concurrently with the abolishment of her former job, as insufficient evidence was submitted on the time Farrell began to perform the duties of the new post. Thus, the court denies summary judgment to plaintiff on her claim in count I for procedural due process.

 Moreover, it should be noted that under Carey v. Piphus, 435 U.S. 247, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978), only nominal damages can be obtained under 42 U.S.C. § 1983 for a procedural breach if the decision itself was proper, unless the plaintiff suffered damages specifically caused by a procedural infirmity, as opposed to the loss of her job. Absent such evidence, thus, to recover compensatory damages under § 1983, assuming arguendo a procedural breach did occur, Fairbairn would have to show that the decision not to give her the job of administrative assistant to the superintendent was improper on substantive grounds; that is, she would have to prove that the two jobs were in fact similar as required by § 2510, see supra note 1, and that her right to the job superseded Farrell's. The Board has contended that Fairbairn has not met the test for similarity under § 2510, and that moreover, Farrell in any event has more tenure than Fairbairn. Because these two issues have been disputed, summary judgment will not be granted to either party on count VIII with respect to the propriety of the Board's judgment to not offer Fairbairn the new administrative assistant position.

 B. Substantive Due Process

 Plaintiff claimed in count II of her complaint that the Board's award of the administrative assistant post to Farrell, and not to her, violated her substantive due process rights. "Substantive due process protects individuals against government action that is arbitrary, . . . conscience-shocking, . . . or oppressive in a constitutional sense . . . but not against government action that is 'incorrect or ill-advised.'" Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (quoting Bishop v. Wood, 426 U.S. 341, 350, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976)). "Indeed, it is axiomatic that the doctrine of judicial restraint requires courts 'to exercise the utmost care' when presented with a request to define or develop rights in this area." Local 342, Long Island Public Service Employees v. Town Bd. of the Town of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992)).

 At oral argument, plaintiff's attorney admitted that he could cite no authority in support of the claim that plaintiff's substantive due process rights were violated. The judgment made by the Board in this case, to award the administrative assistant post to another school employee, hardly amounted to arbitrary, conscience-shocking, or oppressive government action ...


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