The opinion of the court was delivered by: Trager, J.
The Board of Education for the City School District of the City of New York, the Office of the Special Commissioner of Investigations for the New York City School District, and the City of New York (together "defendants") have filed a motion for summary judgment on Maurice Grunberg's ("Grunberg" or "plaintiff") federal claims that he was denied procedural due process and procedural due process in violation of the Fourteenth Amendment to the United States Constitution under 42 U.S.C. § 1983 and his state law claims of defamation and breach of contract. Plaintiff has withdrawn his state law defamation claims. Therefore, summary judgment is granted as to that claim.
Maurice Grunberg was hired by the Board of Education ("BOE") as a teacher in September 1969, and appointed an Educational Evaluator in 1988. Kousoulas Dec. Ex. 3, Grunberg Dep. ("Grunberg Dep.") at 24-25. As an Educational Evaluator, Grunberg worked as a member of a support team for students in the special education program in District 23. Id. Grunberg received satisfactory reviews and maintained an excellent professional reputation. Grunberg Aff. ¶ 6.
a. The 1991 Arrest and Settlement
In December 1991, the BOE learned that Grunberg had been arrested on February 22, 1991 in a park for "abusive sexual contact" with an undercover U.S. Park Service park ranger. Grunberg Aff. ¶ 8. Grunberg paid the fine associated with the summons he received, and was later told that payment was the equivalent of a guilty plea.*fn1 Grunberg Aff. ¶ 8.
Plaintiff and defendants contest whether plaintiff was obligated to inform defendants of the arrest. As evidence that Grunberg should have provided information to his employer of the arrest, defendants have provided a regulation for the City School District for the City of New York which states:
Any employee of the Board of Education who has been arrested and charged with a felony, misdemeanor or violation must immediately notify the OPI [Office of Personnel Investigation] in writing.
Klepfish Decl., Ex. J, Chancellor's Regulation C-105. However, this version of the Chancellor's Regulation went into effect on March 23, 1992, a year after Grunberg's 1991 arrest. Id. Grunberg disputes that he was obligated to inform the BOE of the arrest.
In any case, after the BOE became aware of the arrest, the BOE Office of Legal Services ("OLS") investigated the arrest and in July 1992 negotiated a settlement with Grunberg which allowed him to remain in his position as an Educational Evaluator. Klepfish Decl., Ex. F, G. Under the terms of the agreement, Grunberg admitted that he had been convicted of the charge and that the arrest and conviction constituted "conduct unbecoming the position of an educational evaluator." Klepfish Decl., Ex. G. Grunberg "commit[ed] never to engage in such conduct in the future" and to pay a $500 fine. Id. In exchange, the BOE agreed not to bring disciplinary charges against Grunberg for the conviction. Id.
In addition to these provisions, the agreement had two provisions related to its confidentiality:
9. Copies of this settlement may be maintained by the Chancellor, the Office of Legal Services, and the Executive Director of Special Education. No other copy will be on file nor shall a copy follow Respondent to his assigned school.
10. This stipulation and its contents will be treated as confidential and not released to anyone except as required by law.
Id. The agreement could be used in assessing a penalty, if Grunberg were later found guilty of violating Education Law § 3020-a. Id. The agreement was signed by Grunberg, his attorney, the Chancellor for the BOE and the attorney for the Board of Education. Id.
b. Grunberg's Discrimination Complaint and the Abuse Accusation
Grunberg continued to work as an Educational Evaluator after signing the agreement without incident for five years until 1997. In November 1997, Grunberg complained to the school district that another employee, Khalema Mohamed called him "Mr. Jew" at work. Grunberg Aff., Ex. 1. After an investigation, the Local Equal Opportunity Coordinator wrote Grunberg summarizing its findings:
[Community School District] 23 has reviewed the statements and evidence you presented as well as the statements of witnesses. Based on your allegations and the evidence obtained during the investigation, it is determined that there is reasonable cause to find that you were referred to as "Mr. Jew". [Mohamed] will be reprimanded.
Id. On August 14, 1998, Mohamed received a formal written reprimand from the Local Equal Opportunity Coordinator in a letter which described her statement as "both insensitive and unfortunate." Id. The letter further stated that such comments "will not be condoned in our schools" and "any repeat of this conduct will result in appropriate disciplinary action." Id.
On November 24, 1997, prior to this formal reprimand, but after Grunberg had made his initial complaint about the antiSemitic comment, Mohamed accused Grunberg of putting his hand on the shoulder of a six year old first grade student at the school and insinuated that the touch was inappropriate. Klepfish Decl., Ex K. This accusation prompted an investigation by the New York City School District Special Commissioner of Investigation ("SCI") which was assigned to Investigator Louis Torrellas, a former New York City Police Officer. Kousoulas Decl, Ex. 4 ("Torrellas Dep.") 5-7. As a result of the allegation, on November 25, 1997, Grunberg was removed from his position in the school, and assigned to the Brooklyn East Regional Office of the Board of Education. Klepfish Decl., Ex. L.
In addition, the mother of the student was notified by letter that an investigation was taking place because of an accusation of "unethical or suspicious conduct" and that the employee was being transferred out of the school "[u]ntil this matter has been fully investigated." Grunberg Aff., Ex. 5. Grunberg was not identified in this letter. Id.
As a result of the transfer to the Brooklyn East Regional Office, Grunberg was no longer eligible for per session assignments which he had previously been assigned because of his seniority. Grunberg Aff., Ex. 11. Per session work is work available outside of the regular school day such as evening school or summer school and is assigned based on criteria set out in the union contract. Id. Grunberg's loss of this additional work resulted in a commensurate loss of salary: approximately $14,000 per year. Grunberg Aff. ¶ 25. In addition, Grunberg was ...