unclear from the face of the complaint whether this remark constituted the main part or a small part of the sexual advance Cohen alleges. Without any indication of context, there is no way to know whether it amounts to more than a crude statement. Construing the complaint in the light most favorable to Cohen, however, the remark may be viewed plausibly as part of a sexual advance. Moreover, the allegation of a "sexual advance," while lacking detail as to place and circumstance, is sufficiently specific in itself to be taken as a fact and therefore, at the pleading stage, taken as true. Cohen further alleges that she did not submit to this alleged sexual advance. It was thus unwelcome and a form of harassment. She does not allege that the advance included any offensive touching or threats.
Cohen's further allegation of "another improper statement" is insufficiently specific or factual to add to the factual predicate of her claim. The allegation elsewhere in the complaint of "sexual advances" does nothing to convert the vague assertion of an "improper remark" into even the minimally factual allegation of a second "sexual advance."
Cohen alleges that her refusal to submit to what, for the purposes of judging the pleadings, was a single sexual advance caused Litt to give her an unsatisfactory rating roughly eight months later, and that the rating became the basis of her discharge. This allegation of retaliation leading to dismissal is also sufficiently specific and factual to be taken as true at this stage.
The question as to Cohen's adequately pleading a claim under § 1983 is whether the single unwelcome sexual advance factually alleged, combined with allegation of a retaliatory action by Litt leading to discharge, is sufficient to render the work environment at CS 67 hostile to Cohen. Viewed in light of the preceding discussion, Cohen's complaint is inadequate in pleading a claim of a hostile work environment violating the equal protection clause. Her allegation of a single sexual advance that did not, as pled, include physical contact or coercion, is neither severe nor pervasive in the terms the Supreme Court defined in Meritor Sav. Bank and Harris v. Forklift Sys., here adopted as a standard of reference for equal protection claims. The allegation of retaliation leading to discharge does not alter this analysis. The retaliation alleged could only have affected a minor portion of Cohen's tenure, mitigating the severity of any effect on the work environment. Cohen's complaint neither provides notice of an alleged law violation nor merits the introduction of further evidence. It thus fails adequately to plead a cause of action under § 1983 against Litt based on a hostile environment theory. The complaint against Henry, based on his allowing sexual harassment to become "an accepted practice or custom," therefore fails as well. Gierlinger v. New York State Police, 15 F.3d at 34.
IV. Cohen Inadequately Pleads Substantive Due Process Violations Under § 1983
Cohen also pleads due process violations under § 1983. The Supreme Court has announced, "the Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). In order to plead such a claim adequately, Cohen must allege facts that state sufficiently that she has been "deprived . . . of a right secured by the Constitution [and laws] of the United States, and that any such deprivation was achieved under color of law." Paul v. Davis, 424 U.S. 693, 696-97, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976) (footnotes and citation omitted). Only claims of deprivation of property or liberty are relevant here.
The defining element of a property interest in a benefit, such as continuing employment, is "a legitimate claim of entitlement to it." Bd. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Such claims must be determined according to state law. Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); Bd. of Regents v. Roth, 408 U.S. at 577 ("Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . ."). Under New York law, however, service as a provisional probationary teacher does not confer a property right. See N.Y. Educ. Law § 2590-j 7(a) (McKinney 1995); see also Castro v. New York City Bd. of Educ., 777 F. Supp. 1113, 1117 (S.D.N.Y. 1990) ("It is well settled under New York law that a probationary employee has no property rights in [her] employment . . . . A probationary employee who has been dismissed is therefore not entitled to a hearing . . ."). Cohen thus has no property right at stake that might entitle her to the substantive protections of the Fourteenth Amendment.
Cohen may also assert the deprivation of a liberty interest, based on a "charge against [her] that might seriously damage [her] standing and associations in his community," Bd. of Regents v. Roth, 408 U.S. at 573, or a "stigma or other disability that foreclose[s her] freedom to take advantage of other employment opportunities." Id.; see also Brandt v. Board of Coop. Educ. Servs., 820 F.2d 41, 43 (2d Cir. 1987) (public governmental charges accompanying dismissal that impair the opportunity to obtain other employment implicate a liberty interest). A stigmatizing charge may implicate a liberty interest either when disclosed in the course of an employee's dismissal or by being placed in an employee's personnel file in circumstances such that it is "likely to be disclosed to future employers and deprive the employee of job opportunities." Id. at 45.
The Due Process Clause protects such a liberty interest, whether claimed by a tenured or a probationary employee. As the Supreme Court has made clear, however, protection of the liberty interest of a probationary employee, who does not, after all, have a property right in the job itself, is directed to a specific, limited purpose:
The hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely to provide the person an opportunity to clear [her] name. If [she] does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result for [her]. . . . Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with [her] termination is such a hearing required.