Thursday, October 5, 2017

No due process violation for tenured ex-City employee

We are all familiar with the concept of due process, a right embedded in the Constitution. Due process means the government cannot deprive you of a liberty or property interest without "due process," or a fair shake. That right, however, is not always vindicated in court. There are numerous defenses available to the government in these cases, including this case.

The case is Richardson v. New York Board of Education, a summary order decided on October 2. Plaintiff worked for BoE, handling special education matters. After a parent complained about plaintiff, the BoE investigated and reached adverse findings against plaintiff. By then, plaintiff had resigned her position and was placed on the Ineligible List, which means she cannot work for the BoE -- or any related vendors -- again.

Plaintiff says she was denied due process. The Court of Appeals (Livingston, Lynch and Rakoff [D.J.]) says she was not. In 1996, the Court of Appeals held in Finley v. Giacobbe, 79 F.3d 1285 (2d Cir. 1996), that public employees "cannot complain of procedural defects and omissions because she resigned before her employer took all the steps necessary to fire her,"and the resignation "makes it impossible for her to demonstrate that she would not have received the procedural protections prior to her actual firing." In other words, the public employee cannot short-circuit the process by resigning and then turn around and claim she was not given procedural rights to which she was entitled. That reasoning applies to this case.

While plaintiff says Finley is distinguishable because plaintiff was a tenured administrator and the plaintiff in Finely was an at-will employee, "nothing in Finley suggests that its reasoning was cabined to at-will employees." Plaintiff's tenure status does not affect the due process analysis.

The Second Circuit strikes down plaintiff's various other arguments. As a retired employee, plaintiff does not have a protected property interest under the Due Process Clause for purposes of finding other government employment. "Prospective government employment is not a protected property interest," the Second Circuit held in Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002). She only had an abstract need or desire for a future position. That will not cut it.

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