virtually disqualifying. And plaintiff, by undergoing two
additional drug tests, one of which allegedly had the capacity to
detect drug use going back many, many months and both of which
came back negative for THC, has certainly raised the at least
arguable possibility that her drug test results were false.
Therefore, for purposes of this motion, I will proceed on the
basis that plaintiff had a liberty interest that could be
violated if defendants made a wrongful and defamatory statement
in connection with her termination.
Plaintiff submits that numerous persons knew why she had been
terminated, and this Court has no doubt that numerous persons
did. The question is whether plaintiff has offered any evidence
that Commissioner Carroll or Deputy Commissioner Carboni advised
anyone other than persons in their inner circle as to whom such a
disclosure would be privileged,*fn2 of the reason why they had
terminated plaintiff. The answer is no, plaintiff has offered no
such evidence. Instead, she asks this Court to rule that a jury
could conclude that the individual defendants were the source
of the leak.
But of course a summary judgment motion cannot be defeated by
speculation or conjecture. See Western World Ins. Co. v. Stack
Oil, Inc. 922 F.2d 118, 121 (2d Cir. 1990). As defendants note,
some 19 persons, outside the circle of senior New Rochelle
officials who had a "need to know," were deposed in this action.
All became aware at some point of the nature of plaintiff's
problem. Most asserted that this information was "common
knowledge." Not a single one identified either of the defendants
or members of their inner circle as the source of their
information. Several swore that plaintiff herself had advised
them of her adverse drug test results.
That someone talked about what should have been kept
confidential information is indisputable. But the absence of so
much as a shred of evidence indicating that Carroll or Carboni
were the leakers — especially since there is ample evidence that
plaintiff herself told any number of individuals — compels
dismissal of this claim. The fact that the rumor about
plaintiff's drug test was widespread proves nothing about who
originated it. The record contains literally no evidence that
defendants Carroll or Carboni or members of their inner circle
made any statements to third parties concerning plaintiff's
failure to pass her random drug test. There is, therefore, no
basis for a jury to draw the inference that would allow plaintiff
Plaintiff also claims that New Rochelle can be held liable to
her for the leak, because someone obviously did it, and that
person was a policy-maker who was acting on behalf of the City of
New Rochelle in wrongfully leaking her drug test results.
Plaintiff urges the Court to infer that the leaker was Sgt.
Fortunato. As with the Commissioner and Deputy Commissioner, she
offers no proof that Fortunato in fact discussed the drug test
results with anyone who was not authorized to have the
information. But if he did, it appears from this record that he
was acting in violation of New Rochelle's employment policies,
not in accordance with them. That alone would compel dismissal of
the claim against New Rochelle under Monell v. Dept. of Soc.
Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978), since there is no evidence that the
leak was made pursuant to any policy or practice of the City of
New Rochelle. Moreover, plaintiff has not offered any evidence to
establish that either of the individual defendants or Sgt.
Fortunato was in a position to make employment
policy for the City of New Rochelle (as opposed to making
individual employment decisions pursuant to policies set by
someone else), so she is in no position to raise an issue of
material fact with respect to her Pembaur argument, see
Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986) — assuming such a claim could be argued where,
as here, the alleged "policy" or "practice" is actually a
violation of policy and contrary to practice.
2. Plaintiff's second claim is for violation of her right to
procedural due process, although it is not formally denominated
as such in the complaint. However, a contention that plaintiff
was erroneously fired on the basis of a flawed drug test can only
be read as a procedural due process claim, especially as the
first cause of action is a substantive due process claim.
Of course, plaintiff, as a probationary employee, had no right
to due process before losing her job. See Finley v. Giacobbe,
79 F.3d 1285 (2d Cir. 1996). Since, as noted above, plaintiff has
not put in any evidence that defendants wrongfully disseminated
her drug test results in connection with her termination to
anyone who was not privileged to learn of them, any right she
might have had to a name clearing hearing under O'Neill v.
Auburn, 23 F.3d 685, 691 (2d Cir. 1994) never attached. This is
because that right depends on a finding that defendants made
stigmatizing disclosures about her that were at least arguably
false. See Paul v. Davis, 424 U.S. 693, 708-09, 96 S.Ct. 1155,
47 L.Ed.2d 405 (1976); Poole v. Board of Trustees of Cayuga
Community College, No. Civ.A. 96-CV-0681, 1998 WL 661540
(N.D.N.Y. Sep.25, 1998); Kennedy v. City of New York, No. 94
Civ. 2886, 1996 WL 711505 (S.D.N.Y. Dec.10, 1996). There being
absolutely no evidence that defendants made the stigmatizing
disclosures complained of here, plaintiff's claim for a
name-clearing hearing fails.
However, for purposes of this prong of the motion, let me
assume (contrary to my prior ruling) that plaintiff had a right
to a name-clearing hearing. Even if she did, her procedural due
process claim lacks merit and must be dismissed. The State of New
York provides a dismissed municipal employee with an avenue for
clearing her name — a proceeding challenging her termination as
arbitrary and capricious and contrary to law pursuant to CPLR
Article 78. It is well settled that the availability of an
Article 78 proceeding bars a municipal employee from maintaining
a Section 1983 procedural due process claim. The availability of
an adequate post-deprivation procedure for reviewing the
propriety of the dismissal means that there has been no
constitutional violation. See Parratt v. Taylor, 451 U.S. 527,
101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); HANAC v. City of New
York, 101 F.3d 877, 882 (2d Cir. 1996). Indeed, Article 78
proceedings have been held to be adequate post-deprivation
procedures, and they frequently function as name clearing
hearings. See, e.g., Blum v. Quinones, 139 A.D.2d 509, 510,
526 N.Y.S.2d 611 (2d Dept. 1988); Merhige v. Copiague School
District, 76 A.D.2d 926, 927, 429 N.Y.S.2d 456 (2d Dept. 1980).
Plaintiff argues, citing Heck v. Humphrey, 512 U.S. 477, 480,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), that one need not exhaust
one's state remedies before commencing a Section 1983 action. But
that argument is misdirected. The issue here is whether a due
process claim for effecting plaintiff's termination without due
process of law exists under 42 U.S.C. § 1983 in the face of an
adequate post-deprivation procedure. There is no such claim,
because Heck did not purport to overrule Parratt.
Plaintiff's claim would fail in any event, because she has had
a post-deprivation name clearing hearing within the meaning of
the law. It is well settled that such a hearing need not comport
with any particular procedural requirements;
for example, permitting a former employee the opportunity to send
in letters and submit to an interview satisfies any
constitutional due process requirements. Baden v. Koch,
799 F.2d 825, 831-32 (2d Cir. 1986); Fleming v. Kerlikowske, 1999
WL 307696 (W.D.N.Y. May 7, 1999). In this case, plaintiff
notified the Commissioner, by letter, of her reasons for
disputing the results of her drug tests, and offered
countervailing evidence. The Commissioner considered that
evidence; he ordered a subordinate, the Head of Internal Affairs,
to investigate it and to report back to him. The subordinate did
so, and the Commissioner decided to affirm his earlier decision.
No doubt the evidence she submitted to the Commissioner was
highly persuasive to plaintiff; it was less so to defendants.
However, the fact that plaintiff's name was not cleared does not
mean that she did not receive a name-clearing hearing. Neither
does the fact that the Commissioner chose not to act on
plaintiff's suggestion that he consult yet another toxicologist
if the evidence she submitted did not suffice to change his mind
— there being no requirement, at law or under the Due Process
Clause, that the process due plaintiff take any particular form.
This leaves me with a claim challenging plaintiff's dismissal
as arbitrary and capricious or contrary to law pursuant to
Article 78 — the very claim that should have forestalled this
lawsuit in the first place. While it would be easy enough for me
to dispose of this claim on the merits, I feel very strongly, as
an institutional matter, that parties whose recourse is Article
78 ought not be encouraged to bypass the New York State Supreme
Court, where such claims are rightfully brought. I therefore
decline to exercise supplemental jurisdiction over this claim and
remit plaintiff to her New York State forum.
This constitutes the decision and order of the Court