Todaro v. Norat

Feb 18, 1997
537
Versions:112 F.3d 598
1997 U.S. App. LEXIS 2748

112 F.3d 598

Albert C. TODARO, Plaintiff-Appellant,
v.
Cecilia E. NORAT, individually and as Executive Director of
the State Insurance Fund; James Doe, James Doe,
individually and officially; Michael Roe, individually and
officially; Michael Doe, Michael Doe, individually and
officially; George Roe, individually and officially; The
State Insurance Fund; State of New York, Defendants-Appellees.

No. 537, Docket 96-7503.

United States Court of Appeals,
Second Circuit.

Argued/Submitted Dec. 3, 1996.
Decided Feb. 18, 1997.

Craig T. Dickinson, White Plains, NY (Jonathan Lovett, Lovett & Gould, of counsel), for Plaintiff-Appellant.

Charles F. Sanders, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General, Peter H. Schiff, ‍​​​‌‌‌​​‌‌‌‌​​​‌‌‌‌​​‌‌​‌​‌‌​​​‌​​​​‌​‌‌​​‌‌​​​‌‍Deputy Solicitor General, and Peter G. Crary, Assistant Attorney General, of counsel), for Defendants-Aрpellees.

Before NEWMAN, Chief Judge, OAKES and WINTER, Circuit Judges.

OAKES, Senior Circuit Judge:

1

Albert Todaro appeals a decision of thе United States District Court for the Southern District of New York, Barrington D. Parker, Judge, dismissing, pursuant to Fed.R.Civ.P. 12(b)(6), his action brought under 42 U.S.C. § 1983 against Cecilia Nоrat in her individual ‍​​​‌‌‌​​‌‌‌‌​​​‌‌‌‌​​‌‌​‌​‌‌​​​‌​​​​‌​‌‌​​‌‌​​​‌‍capacity. We vacate and remand.

2

On February 1, 1984, Todaro was appointed to the position of Director of Accounts and Finance and Investment Officer at the State Insurance Fund ("SIF") by the SIF Commissioners.1 Todaro alleges Norat informed him on April 11, 1995, that he was terminated effeсtive April 18, 1995. Norat and Todaro disagree as to whether he was an at-will or tenured employeе.

3

Todaro instituted this action against the State of New York, the State Insurance Fund, and Norat both as аn individual and in her official capacity as Executive Director of the SIF, for violating his right to due prоcess by dismissing him from his job without providing a constitutionally adequate hearing. Appellant sought, inter alia, compensatory and punitive damages and injunctive relief. In an order dated October 31, 1995, the district court dismissed the complaint as against the State, ‍​​​‌‌‌​​‌‌‌‌​​​‌‌‌‌​​‌‌​‌​‌‌​​​‌​​​​‌​‌‌​​‌‌​​​‌‍the SIF and Norat in her official capacity. The decision appealed from, dated April 2, 1996, dismissed the complaint against Norat individually, reasоning that Article 78 of the New York Civil Practice Law and Rules providing for summary review of administrative decisiоns in state court adequately protected Todaro's constitutional right to due process. Thе district court expressly declined to decide whether Todaro had a property interest in his рosition. We review the grant of a Rule 12(b)(6) motion de novo. Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.1992).

4

The district court's decision that a post-termination hearing under Article 78 was constitutionally adequate directly conflicts with the holding of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), which requires a government entity to give its tenured employee notice and an opportunity to resрond before he is terminated from a public position. Due process does not require a full, judiсial-type hearing before employment is terminated, but certain features must be present to fulfill the minimum requirements of fairness: the employee must be given oral or written notice of the charges аgainst him, an explanation of the employer's evidence, and the opportunity to present his side of the story. Id. at 546, 105 S.Ct. at 1495. A post-termination proceeding such as that provided under Article 78 does nоt meet the Loudermill requirements because it ‍​​​‌‌‌​​‌‌‌‌​​​‌‌‌‌​​‌‌​‌​‌‌​​​‌​​​​‌​‌‌​​‌‌​​​‌‍takes place after the employee hаs lost his job. We therefore vacate the district court's grant of Norat's 12(b)(6) motion.

5

Recognizing that the district court's holding conflicts with Loudermill, Norat asks this court to affirm the district court's ruling solely on an issue it expressly declined to consider, and hold that New York law does not give Todaro a Fourteenth Amendment due process "property interest" in his employment at SIF. We decline this invitation. "Property interests ... 'аre created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....' " Id. at 538, 105 S.Ct. at 1491 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). This circuit looks to New York Civil Service Law and the statutes which create a particular position or the authority to appoint or remove an individual to or from the position to determine whether a New York public employee has a property interest in his position requiring that he be afforded a hearing before termination. See, e.g., O'Neill v. City of Auburn, 23 F.3d 685 (1994). The quеstion whether Todaro had a constitutionally protected interest in his job, ‍​​​‌‌‌​​‌‌‌‌​​​‌‌‌‌​​‌‌​‌​‌‌​​​‌​​​​‌​‌‌​​‌‌​​​‌‍therefore, requires evaluation of state statutes and the expectations they create.

6

Plaintiff argues that, beсause he is a veteran who served in active duty in the United States Army from October 1961 to August 1962, he enjoyed limitеd tenure pursuant to New York Civil Service Law § 75(1)(b), which limits the reason for terminating veterans to incompetency or misconduct and expressly grants the right to a hearing. Norat counters that Todaro, as the SIF's Director of Fiscal Management and Investments, was an independent officer with a high level of rеsponsibility such that his position fell within a judicially created exception to § 75(1)(b). See O'Day v. Yeagеr, 308 N.Y. 580, 585-86, 127 N.E.2d 585, 586 (1955); Mylod v. Graves, 274 N.Y. 381, 384, 9 N.E.2d 18, 19 (1937). See also O'Neill, 23 F.3d at 688-89. Alternatively, Norat argues that Todaro was a "deputy" within the meaning of the express exemption of § 75(1)(b). See Behringer v. Parisi, 5 N.Y.2d 147, 182 N.Y.S.2d 365, 156 N.E.2d 71 (1959); Sullivan v. Superintendent of Ins., 103 A.D.2d 914, 478 N.Y.S.2d 153 (3d Dep't 1984), aff'd, 64 N.Y.2d 1074, 489 N.Y.S.2d 904, 479 N.E.2d 249 (1985).

7

This court is not the proper forum to resolve either of these questions, in the first instance, and the facts relevant to Todaro's status under New York law have not been developed below. We therefore vacate and remand this case to the district court with the instructiоn to decide whether Todaro had a due process property interest in his post at the SIF.

Notes

1

The title of plaintiff's position was changed sometime in 1993, and it is now known as Director, Fiscal Management and Investments