# Birnbaum v. Trussell

> Court of Appeals for the Second Circuit · December 28, 1966 · 371 F.2d 672

URL: https://www.frixlaw.com/law-library/cases/8876673

## Case

- **Full name:** Morton BIRNBAUM v. Ray E. TRUSSELL, Commissioner of the Department of Hospitals of the City of New York, Robert J. Mangum, First Deputy Commissioner of the Department of Hospitals of the City of New York, and William Lewis, President, Local 237, International Brotherhood of Teamsters
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** December 28, 1966
- **Citations:** 371 F.2d 672
- **Precedential status:** Published
- **Opinion:** Concurrence by Hays
- **Judges:** Anderson, Hays
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8876673

## How later opinions describe it (automated extraction)

- acknowledging a “substantial interest[]” in the ability to dispel allegations of racial bias that can cause one’s “reputation [to] suffer[] material damage”

## Opinion text

HAYS, Circuit Judge
(concurring):
I concur in the result.
It cannot strictly be said that Dr. Birnbaum's complaint claims that he was *680 denied a hearing. It appears that he declined to attend a hearing unless he was furnished with a copy of the charges against him. In view of the fact that the charges had received a wide airing and had been the subject of discussion between Dr. Birnbaum and various of his superiors, it is difficult to believe that Dr. Birnbaum was seriously prejudiced by the refusal to provide him with a copy. He could have attended the scheduled hearing and, if any of the charges or of the testimony against him took him by surprise, requested a continuance to prepare himself to meet the new matter.
I believe, however, that Dr. Birnbaum may properly claim a deprivation of his rights in spite of his failure to attend the scheduled hearing. The hearing was to be conducted by Mangum who, Birnbaum alleges, was one of those engaged in a conspiracy against him. A claimant for relief under the Civil Rights laws need not always exhaust his administrative remedies and is to be excused from doing so when the effectiveness of such remedies is questionable. McNeese v. Board of Education, 373 U.S. 668 , 83 S.Ct. 1433 , 10 L.Ed.2d 622 (1963); Powell v. Workmen’s Compensation Board, 327 F.2d 131 (2d Cir. 1964).
1't is my view that Dr. Birnbaum’s complaint sufficiently states a claim of deprivation of his constitutional right to the equal protection of the laws within the meaning of Sections 1983 and 1985(3).
Dr. Birnbaum alleges that he was discharged from his position in the employ of the city because of his race. Whatever validity there may be to the view of the majority that public employment is in some sense a privilege, it is certain that the Constitution provides protection against denial of such employment on the ground of race.
“We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” Wieman v. Updegraff, 344 U.S. 183, 192 , 73 S.Ct. 215, 219 , 97 L.Ed. 216 (1952); Torcaso v. Watkins, 367 U.S. 488, 496 , 81 S.Ct. 1680 , 6 L.Ed.2d 982 (1961); Cramp v. Board of Public Instruction, 368 U.S. 278, 288 , 82 S.Ct. 275 , 7 L.Ed.2d 285 (1961); Franklin v. County School Board, 360 F.2d 325 (4th Cir. 1966); Keyishian v. Board of Regents, 345 F.2d 236 (2d Cir. 1965), on remand, 255 F.Supp. 981 (W.D.N.Y. 1966), prob.juris, noted, 384 U.S. 998 , 86 S.Ct. 1921 , 16 L.Ed.2d 1012 (1966) (No. 1226, 1965 Term; renumbered No. 105, 1966 Term).
My brethren reject Dr. Birnbaum’s claim that he was deprived of equal protection because other white doctors were not discharged. There is nothing in the record which establishes that other white doctors were not discharged. 1 But whether or not there were others is irrelevant. It requires no citation of authority to show that any individual against whom discrimination is directed can properly complain of deprivation of equal protection, regardless of whether others are subjected to the same discriminatory treatment.
. Indeed Birnbaum’s complaint alleges that “Lewis and his agents” conducted “campaigns of racial hatred and discrimination” against two other white employees, one of them a physician.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8876673. Public record. Not legal advice.