that right without due process. Here, Plaintiff claims denial of
a property interest in the terms of his employment at NCMC as
well as a liberty interest in his professional reputation.
1. Property Interest
The "nature and contours" of claimed property interests are
defined not by the Constitution, but by some independent source.
Greenwood v. New York, 163 F.3d 119, 122 (2d Cir. 1998);
Ezekwo v. New York City Health & Hospitals Corp., 940 F.2d 775,
782 (2d Cir. 1991). A property interest may include any number of
interests that are secured by "existing rules or understandings,"
Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972), including those stated in a contract between
the parties. A benefit contained in a public employment contract
may be deemed a property interest under certain, but not all,
circumstances. See Ezekwo, 940 F.2d at 782.
They key to determining whether a claimed benefit rises to the
level of a Constitutionally protected property interest is not
whether the benefit is contained in a contract between the
parties. That is only the starting point because, as recognized
by the Second Circuit, not every breach of contract rises to the
level of interference with a Constitutionally protected property
right. Martz v. Village of Valley Stream, 22 F.3d 26, 30 (2d
Cir. 1994); Ezekwo, 940 F.2d at 782. A right rises to such a
level only if it can be characterized as an "entitlement."
Federal law alone determines whether a claimed interest rises to
the level of an entitlement implicating the protections of the
Due Process Clause. Ezekwo, 940 F.2d at 782; Babcock v.
Rezak, 1998 WL 543742 *3 (W.D.N.Y. August 18, 1998). Thus, "to
have a property interest in a benefit, a person must have more
than an abstract need or desire for it. . . . He must, instead,
have a legitimate claim of entitlement to it." Ezekwo, 940 F.2d
at 782, quoting, Board of Regents v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Sutton v. Village of
Valley Stream, 96 F. Supp.2d 189, 193 (E.D.N.Y. 2000).
The question of entitlement requires the court to consider the
importance of the right to the holder as well as the course of
conduct of the party offering the right. Ezekwo, 940 F.2d at
783. Where the claimed right is no more than a claim to a
particular work assignment or fringe benefit it will generally
not be found to rise to the level of a constitutionally protected
property right. See, e.g., id. at 782 ("trivial and
insubstantial" interests do not rise to the level of property
rights). On the other hand, where the right is significant and of
great importance to the holder it may rise to such a level. An
interest in a benefit is a property right if "there are such
rules ore mutually explicit understandings that support [the]
claim of entitlement to the benefit. . . ." Greenwood, 163 F.3d
at 122, quoting, Board of Regents v. Roth, 408 U.S. 564, 92
S.Ct. 2701, 33 L.Ed.2d 548 (1972).
If the right claimed is contained in a written contract and is
one that has been in existence and enforced for a period of time
it is more likely to be deemed a property right for
Constitutional purposes. See Ezekwo, 940 F.2d at 782
(recognizing that the appearance of a right in a written contract
"obviously would make the existence of the right much more
apparent . . ."). One parties' course of conduct and the other
parties' reliance thereon are significant in determining whether
a claimed benefit rises to the level of a Constitutionally
protected property interest. Ezekwo, 940 F.2d at 783.
Once it is determined that a claimed right rises to the level
of a Constitutionally protected property right, the court must
determine whether the plaintiff was afforded all the process that
was due. In making this determination, the court considers
several factors including: (1) the private interest to be
affected by the official action; (2) the risk of an erroneous
deprivation of a right; (3) the value of any additional or
substitute procedural safeguards and (4) the Government's
interests, including the function involved and the burden
presented by the imposition of additional safeguards. Ezekwo,
940 F.2d at 783; see Mathews v. Eldridge, 424 U.S. 319, 335, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976). In connection with this review,
the court also considers the necessity of a pre-deprivation
remedy as well as whether state law provides adequate
post-deprivation remedies. Id.
Where the alleged deprivation is "random" or "unpredictable," a
pre-deprivation hearing may be impossible and a post-deprivation
hearing will satisfy due process. Where, on the other hand, the
deprivation is predictable, a pre-deprivation hearing may be
necessary. See Ezekwo, 940 F.2d at 784.
2. Liberty Interest
The Constitution recognizes a government employee's "liberty"
right to be free from stigmatizing disciplinary action. Board of
Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d
548 (1972); Brandt v. Board of Cooperative Educational
Services, 820 F.2d 41, 43 (2d Cir. 1987). Stigmatizing actions
include charges that could damage the plaintiff's standing in the
community as well as those that might foreclose the opportunity
to take advantage of other employment prospects. Donato v.
Plainview-Old Bethpage Central Sch. District, 96 F.3d 623, 626
(2d Cir. 1996); Brandt, 820 F.2d at 43; see, e.g., Burka v.
New York City Transit Authority, 739 F. Supp. 814, 833 (S.D.N Y
1990) (charge of illegal drug use states a liberty claim because
such a charge "lowers one's standing in the community and
forecloses employment opportunities").
Where a liberty right is implicated, the employee is entitled,
as a matter of due process, to notice and an opportunity to be
heard. Brandt, 820 F.2d at 43. Such opportunity translates into
the right to a hearing at which the employee is given the
opportunity to clear his name so as to remove the blemish from
his record and thereby secure new employment without the
encumbrance of a damaged reputation. Donato, 96 F.3d at 626.
A claim of a deprivation of a liberty interest requires more
than a bare claim of damage to reputation. Such claims are
properly redressed under state defamation law. Donato, 96 F.3d
at 629. To state a constitutional claim, the alleged defamation
must be accompanied by some other significant deprivation, such
as termination from employment. Greenwood, 163 F.3d at 124;
Donato, 96 F.3d at 629.
Additionally, to proceed with a liberty claim a plaintiff must
allege that the charges against him will be publicly disclosed.
See Brandt, 820 F.2d at 43. The public disclosure requirement
is satisfied where charges are placed in an employee's personnel
file and are therefore likely to have an effect on future
employment possibilities. Brandt, 820 F.2d at 45. In such a
case, relief is available under Section 1983 if plaintiff can
show a likelihood of future disclosure of his personnel file or
other documents that will be provided to prospective employers.
As noted, the denial of an employee's liberty right to her good
reputation results in an order that an appropriate name-clearing
hearing be held. If the charges are proved false, the court
considers the claim for damages. If the charges are shown to be
accurate, "that ends the matter." Donato, 96 F.3d at 633.
3. Substantive Due Process
Substantive due process rights are violated only by conduct "so
outrageously arbitrary as to constitute a gross abuse of
governmental authority." Natale, 170 F.3d at 263. The mere
violation of state law is not sufficient to demonstrate conduct
so outrageous as to violate the substantive component of the due
process clause. See Natale, 170 F.3d at 262.
Indeed, even a state court ruling that state law has been
violated is not, standing alone, sufficient to constitute a
substantive due process violation. RRI Realty v. Incorporated
Village of Southampton, 870 F.2d 911, 912 (2d Cir. 1989)
(violation of state zoning laws does not necessarily constitute a
substantive due process violation), cert. denied, 493 U.S. 893,
110 S.Ct. 240, 107 L.Ed.2d 191 (1989).
To state a claim of denial of substantive due process in
connection with the termination of public employment, the
employer's conduct must be shown to be arbitrary and
intentionally abusive. McClary v. O'Hare, 786 F.2d 83, 88 (2d
Cir. 1986); Schwartz v. Brown, 857 F. Supp. 291, 298 (S.D.N Y
II. Disposition of the Motions
Application of the aforementioned principles of law to the
undisputed facts herein leads the court to conclude as follows.
A. Plaintiff Possessed A Property Right To A Hearing Prior To
As a threshold matter, the court holds that Plaintiff possessed
a Constitutionally protected property right not to be terminated
without a due process hearing in accordance with the procedures
set forth in the Contract. The court reaches this conclusion not
because of principles of res judicata and collateral estoppel, as
argued by Plaintiff, but as a matter of application of the
principles referred to above.