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O'Connor v. Pierson
Citations: 426 F.3d 187; 202 Educ. L. Rep. 98; 10 Wage & Hour Cas.2d (BNA) 1665; 2005 U.S. App. LEXIS 21944Docket: Docket No. 04-0224-CV
Court: Court of Appeals for the Second Circuit; October 11, 2005; Federal Appellate Court
Thomas O’Connor, a teacher with tenure at the Wethersfield Board of Education, was placed on administrative leave due to multiple complaints about his conduct, including inappropriate language and behavior towards students and staff. Following an investigation initiated by the Board, which found some merit to the allegations but did not recommend termination, O’Connor was told he needed to improve his performance. He was invited to return to work contingent upon passing a psychiatric evaluation and providing past medical records. Despite a cardiologist’s assessment that O’Connor was physically well, concerns remained regarding his anxiety. O’Connor was instructed by the Superintendent to undergo an independent psychiatric evaluation after failing to confirm his fitness to return to work. This led to O’Connor filing a lawsuit claiming violations of his procedural and substantive due process rights, which resulted in the district court granting summary judgment for the Board. The appellate court affirmed in part, vacated in part, and remanded the case for further proceedings. The release form authorized the recipient to disclose O’Connor’s medical records to Schwartz and the Wethersfield Board of Education without any limitations on time or subject matter. O’Connor, through his lawyer, objected to both the psychiatric examination and the release. Despite not signing the release, he underwent an interview with Schwartz on January 4, 2000, which lasted two hours. Schwartz indicated that further interviews and psychological tests were necessary, along with a review of O’Connor’s past treatment records from Arms Acres. O’Connor was asked to sign the previously sent release form but did not do so by January 20, 2000, prompting the Board's lawyers to insist on compliance to retain his job. In response, O’Connor provided letters from his doctors attesting to his fitness to teach. O’Connor later consulted his psychiatrist, who confirmed on March 20 that he was not disabled and could return to work. On January 28, O’Connor filed a lawsuit against the Board in Connecticut Superior Court seeking an injunction against the requirement to see Schwartz and for damages, asserting a violation of his constitutional rights under 42 U.S.C. § 1983. The Board subsequently removed the case to federal court on February 22, 2000. Throughout 2000, efforts at settlement were unsuccessful, and O’Connor was informed that his sick leave would end on November 30, 2000. The Board reiterated that he could not return to work until he complied with the evaluation and signed the release. In late February 2001, Magistrate Judge Donna Martinez recommended summary judgment in favor of the defendants on the due process claims and suggested remanding the state-law claims back to Connecticut Superior Court. On March 29, 2001, Judge Chatigny adopted Judge Martinez’s recommendation regarding procedural due process claims but deferred his decision on substantive due process claims and Superintendent Pierson’s qualified immunity. By September 28, 2001, Chatigny reaffirmed his earlier ruling, concluding that Pierson was entitled to qualified immunity, a decision O’Connor did not appeal. The appeal focuses solely on claims against the Board and its employees in their official capacity. On the same date, it was agreed that O’Connor would see a new psychiatrist, Dr. Howard Zonana, after Dr. Schwartz withdrew. Zonana conducted four examinations and reviewed O’Connor's treatment records but did not receive a medical-records release from O’Connor, who only authorized release to Zonana. On December 26, 2001, Zonana informed Pierson that O’Connor had no psychiatric disability preventing him from teaching, and O’Connor resumed his teaching role on January 28, 2002. Attempts at settlement in 2002 were unsuccessful, and O’Connor filed a second state lawsuit based on state law after the first summary judgment ruling. In September 2003, he won a jury verdict for his state-law invasion-of-privacy claim. The district court proceedings resumed when, on October 31, 2003, Judge Chatigny granted summary judgment to the Board on the previously undecided substantive due process claims. A judgment favoring the Board on all of O’Connor’s federal claims was entered on December 16, 2003, and the case was remanded to state court. O’Connor is appealing this judgment. In reviewing the district court’s summary judgment grant to the Board, the court will construe the evidence in favor of O’Connor since he lost at the lower level. Summary judgment is granted only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The Board’s assertion of claim preclusion as a basis for ruling in its favor, despite not being raised in lower courts, is deemed unsupported and irrelevant to subject-matter jurisdiction. Claim preclusion must be raised as an affirmative defense in the district court, which the Board failed to do. The distinction between mootness and claim preclusion is noted, with the Board not credibly claiming that O’Connor’s case is moot. The Board's claim-preclusion argument was not referenced in the district court's record, and a letter to Judge Chatigny requesting a briefing schedule was not docketed. The district court could not have entered judgment based on claim preclusion without a formal motion from the Board, which was not made, resulting in the waiver of this defense. As a consequence, the focus shifts to O’Connor’s procedural due process claims. O’Connor presents two claims: a traditional procedural due process claim regarding deprivation of property, and a stigma-plus claim related to reputational harm. For the stigma-plus claim, O’Connor must demonstrate a tangible burden imposed by the Board and a false statement that harmed his reputation. The magistrate judge found that O’Connor failed to allege any false statement, leading the district court to grant summary judgment in favor of the Board. O’Connor’s reference to Brandt v. Board of Cooperative Educational Services is deemed irrelevant, as he does not claim that any false statements were made about him. He has instead alleged that the Board's actions caused stigma without identifying a corresponding false statement, invalidating his claim. Regarding the property-based procedural due process claim, a determination of whether O’Connor was deprived of property without due process requires identifying the relevant property interest. This involves assessing whether a non-constitutional source, such as state or federal law, grants a property right, as property interests are defined by rules from independent sources rather than the Constitution itself. Once a property right is identified, it must be evaluated to ascertain its status under the Fourteenth Amendment. O’Connor, as a tenured public-school teacher, holds a constitutionally protected property interest in his position under Connecticut law, which necessitates procedural protections if he were to be terminated. The Board placed O’Connor on sick leave instead of firing him, which complicates the due process analysis since different levels of deprivation and procedural protections apply before and after his sick pay ended. The Board contends that O’Connor was not deprived of any property rights because it kept him on sick leave per his physician's request and asserts that his actions led to the deprivation. However, once O’Connor declared himself fit to return to work, his status on sick leave became involuntary, and the Board's conditions for his return do not negate the deprivation of his property right. The analysis will evaluate the nature of O’Connor’s property rights and whether he was deprived of them without adequate constitutional process. After O’Connor’s sick leave expired, he effectively faced an unpaid suspension. Although the Supreme Court has not definitively ruled on due process protections for suspensions without termination, this circuit has recognized that such suspensions implicate protected property interests and require procedural safeguards. To assess whether O’Connor received adequate due process, the analysis will consider the private interest involved, the risk of erroneous deprivation through the employed procedures, and the government’s interests and burdens associated with alternative procedures, following the Mathews v. Eldridge framework. The analysis of procedural adequacy under the Mathews standard considers both pre- and post-deprivation procedures, often treating them separately. Pre-deprivation processes must provide notice and an opportunity for a hearing consistent with due process principles. O’Connor acknowledged that the grievance procedure in the collective bargaining agreement (CBA) offered constitutionally adequate post-deprivation process following the end of his sick leave. This acknowledgment is supported by case law indicating that CBA procedures typically satisfy post-deprivation requirements. However, if O’Connor experienced a deprivation of property interest, he was entitled to more due process than the CBA provided. His sole claim is that the pre-deprivation process was constitutionally inadequate. To succeed, he must demonstrate that the pre-deprivation process was insufficient despite the available post-deprivation grievance process. The court ruled that pre-deprivation procedures need not be elaborate but must include at least notice and an opportunity to respond. Although O’Connor contested the adequacy of his notification regarding sick leave, by the time his leave was expiring, he was aware of his status and had communicated objections. Thus, he received sufficient notice and opportunity to be heard, fulfilling constitutional requirements. Additionally, any request for a hearing was deemed futile, as the relevant parties were already aware of each other's positions, and a further hearing would have been redundant. Consequently, the court affirmed that the Board was not obligated to provide an additional face-to-face hearing, as O’Connor had already articulated his objections. O’Connor's procedural due process claim regarding the period he received sick pay was examined. The district court determined that the grievance procedure specified in the collective bargaining agreement (CBA) sufficed as a post-deprivation remedy. O’Connor contended that he had to exhaust his sick leave prior to initiating a grievance, rendering the procedure inadequate. The court countered that O’Connor's interest in sick leave was a contractual benefit recoverable through post-deprivation breach of contract actions, negating the need for a pre-deprivation hearing. It ruled that even if O’Connor could not have his sick leave restored through the grievance process, he was not entitled to more pre-deprivation process than he received, especially since his deprivation during paid sick leave was less severe than during unpaid suspension. The court acknowledged the unresolved question of whether accumulated sick leave constitutes a property right necessitating due process protection, noting conflicting case law. It argued that an employee does not experience a meaningful deprivation of sick leave until financial loss occurs due to its unavailability. An employee on paid sick leave effectively remains in the same financial position as one receiving a regular salary, making the use of sick leave a mere accounting matter without immediate financial implications. The court referenced prior rulings that rejected due process claims tied to an employee's interest in job duties rather than salary. It concluded that an employee's drawing on sick leave only becomes significant upon cessation of pay, at which point due process protections related to suspension without pay would apply. O’Connor's situation raises concerns regarding procedural due process related to his employment and sick leave. He could potentially lose pay due to illness if his sick leave is exhausted, but this case does not present that issue, nor does it address the financial loss from the inability to cash out sick leave since the collective bargaining agreement (CBA) prohibits such payouts. O’Connor's property rights were not significantly affected until his sick pay was depleted, after which he was able to file a grievance. The grievance procedure was deemed an adequate remedy for both his lost sick pay and salary during an unpaid suspension. O’Connor also asserts substantive due process claims, specifically alleging violations of his privacy rights and property interests as a tenured teacher. His primary argument is that the Board infringed on his privacy by requiring him to sign a broad medical release form as a condition for returning to work. The form lacked limitations on the scope of records to be released and included historical treatment from an alcoholism-rehabilitation facility. The legal principle at stake is that the government cannot condition benefits on the relinquishment of constitutional rights. The right to privacy, particularly regarding medical information, is protected under the Fourteenth Amendment, encompassing both personal autonomy and confidentiality. This case primarily involves the latter, as O’Connor's medical history is considered highly sensitive information. In Powell v. Schriver, it was established that postoperative transsexuals have a constitutional right to maintain medical confidentiality. Similarly, in Doe, a right to privacy concerning health status was recognized for individuals infected with HIV. Following these precedents, O’Connor possesses a protected privacy right regarding his medical records. However, this right does not prohibit disclosure; it requires that any request for records by a government employer must be justified by sufficient interest. In this case, the Board requested O’Connor to release over thirteen years of substance-abuse treatment records, not just to a doctor but also to the Board itself. The Board argued its need to review O’Connor’s records to potentially act based on a psychiatrist’s evaluation. However, the Board’s Superintendent lacks medical qualifications and cannot competently assess these records to verify any medical conclusions. The district court sided with the Board, applying intermediate scrutiny and finding a legitimate interest in reviewing the records. The appellate view disagrees, deeming the Board's request arbitrary and lacking a legitimate purpose, as laypersons are not equipped to evaluate medical fitness. The court emphasized that while psychiatry is not an exact science, it requires professional expertise that the Board does not possess. Legislation that impacts constitutionally protected privacy rights is subjected to intermediate scrutiny, requiring a substantial government interest to justify the burden on privacy. In contrast, challenges to executive actions face a higher threshold, necessitating proof that the action was not only arbitrary but “arbitrary in the constitutional sense.” Merely demonstrating irrationality is insufficient; only conduct that "shocks the conscience" can lead to liability for substantive due process violations. The determination of what constitutes conscience-shocking behavior is context-dependent and relies on the actor's state of mind. For instance, in high-speed chases, liability arises only if a police officer acts with an intent to cause harm. Conversely, "deliberate indifference" may lead to liability when a special duty of care exists, such as in cases involving prisoners. Mere negligence does not constitute a substantive due process violation. In the present case, whether the Board's actions were conscience-shocking cannot be resolved at the summary judgment stage, as the Board's and Superintendent Pierson's state of mind is critical. The lack of a special duty of care toward O’Connor suggests that deliberate indifference would not suffice for liability. However, if the Board acted with intent to harm O’Connor by imposing an overly broad medical release requirement, that intent could support liability. Conclusively ruling that the Board acted without culpable intent is not possible at this stage, given evidence that allows for reasonable inferences about the Board's motives that favor O’Connor. Superintendent Pierson's affidavit, dated August 25, 2000, asserts her lack of interest in reviewing Mr. O’Connor’s medical records, stating her request was solely to facilitate an independent examination. This declaration contradicts the Board's argument that access to O’Connor’s records was necessary for verifying a psychiatrist's conclusions. The inconsistency raises questions about the Board's motivations for insisting on the release of these records. If the Board acted out of incompetence, it would not support a substantive due process claim; however, if driven by spite or a desire to obstruct O’Connor’s teaching, it could constitute a violation of his right to privacy. The court found that the Board's intentions create a factual question that prevents summary judgment on O'Connor's claim regarding his substantive due process right to privacy. Additionally, the district court wrongly granted summary judgment in favor of the Board concerning O'Connor’s claim of unconstitutional infringement of his property rights. The substantive due process clause prohibits arbitrary governmental actions affecting property rights. O'Connor’s claim is based on the Board's demand for his medical records, which he argues is potentially conscience-shocking. This property-based claim is dependent on proving that the Board's actions were arbitrary and that he was deprived of a property right, specifically limited to the period after his sick leave expired. The court affirmed part of the district court's judgment while vacating and remanding other aspects for further consideration. The Board's attempt to amend the record on appeal is rejected, as it essentially seeks a remand to introduce a claim-preclusion defense not previously raised in the district court. This omission does not constitute the "error or accident" permitted for record supplementation under Federal Rule of Appellate Procedure 10(e)(2). O’Connor's complaint claims he suffered reputational harm due to being placed on administrative leave, leading to stigmatization and potential future employment issues. While he questions the truth of allegations made against him, his stigma-plus claim is not based on these alleged falsehoods. The Board is not required to reinstate O’Connor following his expression of desire to return to work, as involuntary sick leave may be justified. However, such leave is not permanently voluntary if initiated involuntarily. O’Connor's counsel conceded that a successful grievance could restore his status, with only his procedural due process claim for the sick leave period potentially surviving. Although tenured employees can challenge involuntary sick leave or suspension, they must establish a claim of constructive discharge to pursue a procedural due process claim. Importantly, there is no general constitutional right against arbitrary government action unless it infringes on a protected right. Illustratively, while one cannot sue for a randomly given goat, an arbitrary imposition to care for a burdensome goat may violate property and liberty rights.