failing to provide him with a chance to respond to the Hearing
Officer's recommendation before terminating him, the Board
deprived him of procedural due process. Id. at 5.
To the extent that Chaffer is arguing that the Board failed to
follow appropriate Section 75 procedures in terminating him, his
claim necessarily fails because of the availability of Article
78 review. That is, even assuming arguendo that Section 75 did
require the Board to give Chaffer an opportunity to respond to
the hearing officer's recommendation before terminating him,
which the Board failed to do, Chaffer's Section 1983 claim
cannot stand. As the Second Circuit explained in Hellenic
American Neighborhood Action Committee v. City of New York,
when procedural due process is denied because of a random,
unauthorized act by a state employee, no constitutional
violation occurs as long as the state provides an adequate
postdeprivation remedy. 101 F.3d 877, 880 (2d Cir. 1996)
(citing Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194,
82 L.Ed.2d 393 (1984)). An Article 78 proceeding is clearly
recognized as such a remedy. Id. at 881. Thus, because Chaffer
could have brought an Article 78 proceeding challenging the
Board's termination of him, see, e.g., Garayua v. Board of
Education of the Yonkers City School District, 248 A.D.2d 714,
671 N.Y.S.2d 278 (2d Dep't 1998), he cannot allege a
constitutional violation on the ground that the Board deviated
from the standard Section 75 procedures in terminating him.
See, e.g., Rafiy v. Nassau County Medical Center,
218 F. Supp.2d 295, 304 (E.D.N.Y. 2002).
Chaffer also alleges, however, that to the extent that the
procedures used to terminate him were in full compliance with
Section 75, Section 75 is itself unconstitutional because it
fails to provide employees with sufficient procedural due
process. Am. Compl. ¶ 26. This is not a claim based on a random,
unauthorized act by a state employee. Rather, it is a challenge
to an established state procedure — Section 75. As the Second
Circuit stated in Hellenic, 101 F.3d at 880, "[w]hen the
deprivation occurs in the more structured environment of
established state procedures, rather than random acts, the
availability of postdeprivation procedures will not, ipso facto,
satisfy due process." Accordingly, the fact that Chaffer could
have brought an Article 78 proceeding does not dispose of this
argument, and the Court must consider it.
Under Cleveland Board of Education v. Loudermill
470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), procedural
due process requires that an employee with a constitutionally
protected property interest in his employment, such as Chaffer,
be provided with "some kind of hearing" before being terminated.
The employee is "entitled to oral or written notice of the
charges against him, an explanation of the employer's evidence,
and an opportunity to present his side of the story." Id. at
546, 105 S.Ct. 1487. No more than this is necessary when
provisions for full post-termination hearings exist. Id.
The pre-termination hearing procedure outlined in Section 75,
particularly when taken in combination with the availability of
post-termination review through Article 78, clearly meets the
Loudermill standard. Under Section 75, before being
terminated, civil service employees such as Chaffer are entitled
to, among other things, a written copy of the charges against
them, an opportunity to respond in writing, an opportunity to
attend the pretermination hearing with counsel (or union
representative), and the opportunity to call witnesses at the
hearing. Accordingly, in
Anderson v. Dolce, 653 F. Supp. 1556, 1566 (S.D.N.Y. 1987), the
court concluded that "[s]upplemented with Article 78 review,
Section 75 satisfies the Loudermill requirements of due
process in employment deprivation cases." This Court agrees, and
thus rejects Chaffer's procedural due process claim.
Chaffer also argues that the Board violated his substantive
due process rights in terminating him for excessive absences
when all of his absences were taken as paid entitlements under
his employment contract. Pl.'s Mem. at 5-7. This argument is
clearly without merit. As the Second Circuit held in McClary v.
O'Hare, 786 F.2d 83, 89 (2nd Cir. 1986), the substantive due
process prong of the due process clause protects citizens only
from abuses of governmental authority, and "does not provide a
remedy to a public employee that would not be available to a
private employee subject to identical conduct by his employer."
Although a substantive due process claim may be available
against a government employer who is intentionally abusing
persons under his control, see Dillon v. Boyce, 1995 WL
116476, *5 (E.D.N.Y. 1995), McClary 786 F.2d at 88, a mere
"contract dispute . . . does not give rise to a cause of action
under Section 1983." Costello, 811 F.2d at 784. Accordingly,
Chaffer's argument that he was denied due process is entirely
B. Equal Protection
Chaffer next charges that the Board's termination of him
deprived him of equal protection of the laws. Am. Compl. ¶ 41,
Pl. Mem. at 7-8. He alleges that the "policy that the [Board]
applied to [him] in finding that he had taken `excessive
absences' was individually, separately and inequitably applied
to him." Am. Compl. ¶ 39. In support of this contention, Chaffer
offers the affidavit of his counsel, who has been the attorney
for the labor union representing the plaintiff for over twenty
years. Friedman Affidavit, ¶ 3. Chaffer's counsel states that no
permanent employee of Chaffer's union has ever been sanctioned
on charges of "excessive absenteeism," and that Chaffer's
termination was a "one of a kind exclusive action" by the Board.
Id. Chaffer also points to Berger's testimony (at the Section
75 hearing) that there is no official District policy regarding
excessive absences,*fn2 and that prior to Chaffer's case, she
had never been a party to a disciplinary proceeding regarding an
employee's excessive absences. Pl.'s Mot. Ex. 5, pp. 114-15.
Nowhere does Chaffer contend that he was treated differently
on the basis of his race, gender, or membership in any other
protected class, such that the Board's termination of him should
be subject to strict scrutiny. Rather, Chaffer seems to be
suggesting that the Board selectively applied an "excessive
absenteeism" policy against him in a way that resulted in his
termination, and thereby violated his rights to equal protection
under the law — in short, a claim of selective enforcement.
To make out such a selective enforcement argument, Chaffer
must show that:
(1) a group of similarly-situated individuals exists;
(2)[he] was treated differently from that group; (3)
the decision-maker intentionally treated him
differently; and (4) the motivation for the disparate
treatment was (a) based on impermissible reasons such
as race; (b) based on ill will or personal animosity;
or (c) made for wholly arbitrary reasons lacking any
Payne v. Huntington Union Free School District, 219 F. Supp.2d 273,
278 (E.D.N.Y. 2002).
Chaffer fails to meet these criteria. In his deposition, he
testified to his belief that he was treated differently than the
other members of the grounds crew, and speculated that "maybe
someone on the school board didn't like [him]." Def.'s Mot., Ex.
E — Chaffer Deposition, October 16, 2001, p. 23. Chaffer
refused, however, to identify any people who were treated
differently from him with respect to a comparable record of
absences. Indeed, he failed to offer any basis whatsoever for
his suspicion that he was treated particularly harshly, other
than referring to "a gut feeling." Id. Given this lack of
evidence, particularly in juxtaposition with Berger's testimony
that Chaffer had the worst attendance record of all 700
employees in the District, the Board's decision to terminate
Chaffer in response to his absences cannot be considered a case
of selective enforcement.
C. Contracts Clause
Finally, Chaffer argues that the Board, acting under color of
state law, violated the contracts clause of the United States
Constitution in terminating him for taking absences that were
authorized under his employment contract. Am. Comp. ¶ 41, Pl.
Mem. at 8-10. The contracts clause provides that "No State shall
. . . pass any . . . Law impairing the Obligation of Contracts."
U.S. Const. art. I, § 10. As the Second Circuit stated in TM
Park Avenue Associates v. Pataki, "[a]n individual breach of
contract . . . does not reach constitutional dimensions and
create a cause of action based on the contracts clause."
214 F.3d 344, 348 (2d. Cir. 2000) (citing Jackson Sawmill Co. v.
United States, 580 F.2d 302, 311-12 (8th Cir. 1978)). Rather, a
federal cause of action based on the contracts clause can only
be brought "when one alleges that he or she has a contract with
the state, which the state, through its legislative authority,
has attempted to impair." E & E Hauling, Inc. v. Forest
Preserve District of Du Page County, 613 F.2d 675, 678 (7th
Cir. 1980) (emphasis added). Chaffer's allegation does not
satisfy this criterion, as he has rot alleged that any state
legislative action interfered with his employment contract.
Accordingly, the contracts clause is inapplicable here.
Chaffer's procedural due process, substantive due process,
equal protection, and contracts clause claims are all without
merit. Accordingly, pursuant to rule 58, the Court enters
judgment in favor of the defendant Board of Education of the
Long Beach City School District.
*fn2 Berger testified that the District's general practice is
"that we warn people and those people that are absent for a long
period of time, we do some — at times we do terminate them."
Pl's Mot., Ex. 5, p. 114.
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