390 F. Supp. 3d 382
E.D.N.Y2019Background
- John D. Walter, an adjunct lecturer at Queens College for ~9 years, was terminated after a student alleged he engaged in sexual misconduct during an off‑campus private lesson held at his apartment.
- The alleged facts (as pleaded): student voluntarily applied brief therapeutic pressure to Walter’s neck once, Walter asked her to apply pressure a second time for <1 minute; student later complained of sexual comments and that Walter asked for a massage while lying on a couch (Walter disputes the ‘‘massage’’ allegation).
- Title IX coordinator Rountree summoned Walter to an in‑person meeting with minimal advance notice, did not provide a written summary of allegations, and did not inform him termination was possible; she then investigated, interviewed complainant’s witnesses, did not obtain alleged recordings the complainant referenced, and produced a report two weeks later.
- Walter was terminated the day after Rountree’s written report; he pursued and lost a three‑step contractual grievance/arbitration process.
- Walter sued under 42 U.S.C. § 1983 asserting (1) substantive due process, (2) as‑applied vagueness of the College’s Sexual Misconduct Policy, and (3) denial of constitutionally adequate pre‑ and post‑deprivation procedural process; CUNY moved to dismiss (Eleventh Amendment and failure to state claims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eleventh Amendment sovereign immunity (claims vs. CUNY) | Claims may proceed against Queens College | CUNY is an arm of the State and immune from § 1983 suits | Dismissed: CUNY immune under Eleventh Amendment |
| Substantive due process (state action "shocks the conscience") | Defendants’ actions were arbitrary, used state power to harm Walter | Termination and investigatory acts are ordinary employment actions, not uniquely governmental | Dismissed: plaintiff failed to allege conduct that is ‘‘uniquely governmental’’ or conscience‑shocking |
| Vagueness of Sexual Misconduct Policy (as‑applied) | Policy’s terms (e.g., "sexual", "sexual nature") are too vague to notify a reasonable person that brief therapeutic neck pressure could be prohibited | Policy proscribes unwelcome sexual physical conduct (touching, groping, etc.) and covers Walter’s conduct | Claim survives: pleaded facts permit reasonable inference policy is unconstitutionally vague as applied (lack of clarity re: therapeutic touching; risk of arbitrary enforcement) |
| Pre‑deprivation procedural due process (notice & opportunity to be heard) | Walter received vague advance notice and only simultaneous verbal notice and opportunity to respond; no written summary, no time to gather witnesses or evidence before termination | Post‑termination grievance/arbitration suffices; limited pre‑deprivation process is acceptable in public employment | Claim survives: pleading adequately alleges constitutionally inadequate pre‑termination notice/opportunity to be heard under Mathews/Loudermill (post‑deprivation process did not cure inadequate pre‑termination procedure) |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (standards for pleading plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading requirements; conclusory allegations insufficient)
- McClary v. O'Hare, 786 F.2d 83 (2d Cir. 1986) (limits on substantive due process for employment actions)
- Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2005) (substantive‑due‑process "shocks the conscience" standard)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (pre‑termination notice and opportunity to respond required for public employees)
- Mathews v. Eldridge, 424 U.S. 319 (balancing test for procedural due process)
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (vagueness doctrine and tolerance for civil/regulatory breadth)