Ezekwo v. NYC Health & Hospitals Corp.

TIMBERS, Circuit Judge,

concurring in part and dissenting in part:

To the extent that the majority affirms the district court’s rejection of appellant’s first amendment claim, I concur. To the extent that it reverses the district court’s holding that appellant was not denied due process, I dissent.

In reversing the district court today on the due process claim, the majority holds that a medical resident was due “some modicum of process” before supervisors of a medical residency program changed the way they chose chief residents. Because I agree with the district court that the chief residency decision was a purely academic one for which no additional process was required, and because I further believe that appellant Ezekwo had no constitutionally protected property interest in the first instance, I respectfully dissent from that portion of the majority opinion that reverses the district court on the ground that Ezek-wo was denied due process.

I.

Turning first to the factual findings made by the district court, while the majority gives lip-service to the oft-quoted standard that a district court’s findings of fact will not be set aside unless “clearly erroneous,” Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866 , 871 (2 Cir.1985), it gives short shrift to the district court’s explicit finding that the chief residency determination “was academic and not disciplinary in nature” — a distinction that is critical in assessing Ezekwo’s due process claim. The majority states that “the injection of entirely new selection criteria at the eleventh hour casts some doubt on the truly ‘academic’ nature of the decision.”

In my view, the majority gives insufficient weight to the findings of the district court. The Supreme Court has admonished that “[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) (emphasis added). After hearing testimony and reviewing evidence during a four-day bench trial, the district court specifically found that:

“The determination not to appoint plaintiff as Chief Resident during the second trimester was based on deficiencies in *787 her performance in the residency, particularly in the area of interpersonal relationships, and on her lower OKAP scores. The determination was not the result of any charge of misconduct against her. Accordingly, the determination was academic and not disciplinary in nature and is akin to cases involving dismissal from school programs for academic reasons.”

These findings are “thorough, careful and comprehensive. They come to us ‘well armed with buckler and shield.’ ” DeGuio v. United States, 920 F.2d 103, 106 (1 Cir.1990) (quoting Horton v. United States Steel Corp., 286 F.2d 710, 713 (5 Cir.1961)). Far from being clearly erroneous, the district court’s findings here are solidly supported by the record. There simply is no basis in the record for the majority’s “doubt” with respect to the accuracy of those findings.

II.

Turning next to the majority’s statement that “[ejven assuming the academic nature of the decision, we are of the opinion that Ezekwo was due some modicum of process”, I agree with the district court that appellees were constitutionally permitted, in the manner in which they did, to make an academic change in the criteria used for selecting chief residents.

Before addressing the question of the process due Ezekwo, it is necessary to inquire whether she had a constitutionally protected property interest in serving a term as chief resident. “The question whether there was a deprivation of property is logically prior to the question whether there was a denial of due process.... ” Brown v. Brienen, 722 F.2d 360, 363 (7 Cir.1983). I think the majority rushed too quickly to answer in the affirmative the question whether Ezekwo had such a property interest.

In Board of Regents v. Roth, 408 U.S. 564, 577 (1972), the Supreme Court held that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” While “the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978).

The district court held that “[pjlaintiff had more than a unilateral expectation of being Chief Resident; the position was offered to applicants as a consideration for applying for the [residency] position.” Likewise, the majority held that, even though Ezekwo’s “right” to be chief resident was expressed in neither her individual contract nor the residents’ collective bargaining agreement, her “expectation of performing the duties of Chief Resident was reasonable and well founded and rose to the level of a property interest entitled to the protections of the Due Process Clause.”

Both the district court and the majority appear to rely largely on implied elements of her contract in holding that Ezekwo had a protectible property interest in the position of chief resident. As the majority itself recognized, however, not every contractual benefit rises to the level of a constitutionally protected property interest. Rather, “[a] mere breach of a contractual right is not a deprivation of property, and thus is not actionable under § 1983. There is a distinction between contract interests and protectible property interests.” Walentas v. Dipper, 636 F.Supp. 331, 335 (S.D.N.Y.1986). Even where a public employment contract is involved, “not every breach ... is a deprivation of property within the meaning of the due process clause.” Brown, supra, 722 F.2d at 364 ; see also Costello v. Town of Fairfield, 811 F.2d 782, 784 (2 Cir.1987) (“A contract dispute ... does not give rise to a cause of action under section 1983.”). Thus, even if one assumes that appellees breached a contractual obligation, it does not necessarily follow that they deprived Ezekwo of a constitutionally protected property interest.

*788 In Rode v. Dellarciprete, 646 F.Supp. 876, 880 (M.D.Pa.1986), vacated in part on other grounds, 845 F.2d 1195 (3 Cir.1988), the court held that “personnel decisions short of termination do not constitute deprivations of a property interest under the Fourteenth Amendment.” See also Parrett v. City of Connersville, 737 F.2d 690, 693 (7 Cir.1984) (“we [have] expressed doubt whether a lateral transfer, involving no loss of pay, could ever be sufficient deprivation to violate the Fourteenth Amendment. A contrary conclusion would subject virtually all personnel actions by state and local government agencies to potential federal damage suits under 42 U.S.C. § 1983 — a breathtaking expansion in the scope of that already far-reaching statute, and one remote from the contemplation of its framers”); Brown, supra, 722 F.2d at 364-65 (“A breach of contract that does not terminate the employment relationship is different_ [T]he Constitution must not be trivialized by being dragged into every personnel dispute in state and local government. Disputes over overtime, over work assignments, over lunch and coffee breaks do not implicate the great objects of the Fourteenth Amendment.”); Lewandowski v. Two Rivers Public School Disk, 711 F.Supp. 1486, 1495 (E.D.Wis.1989) (“mere transfers and reassignments have generally not been held to constitute a constructive discharge or to implicate a constitutionally protected property interest”) (collecting cases); Wargat v. Long, 590 F.Supp. 1213, 1215 (D.Conn.1984) (following analysis of Brown and specifically holding that decisions involving plaintiff state trooper’s “transfer [with loss in pay] from one position to another and the failure to promote him ... are not of a magnitude requiring the plaintiffs employer to afford him due process of law”).

“Only interests substantial enough to warrant the protection of federal law and federal courts are Fourteenth Amendment property interests. Whether an interest is that substantial depends on the security with which it is held under state law and its importance to the holder.” Brown, supra, 722 F.2d at 364 (citation omitted). In holding that Ezekwo’s interest in being chief resident rose to such a level, the majority invokes the Supreme Court’s decision in Perry v. Sindermann, 408 U.S. 593, 602-03 (1972), where the Court held that respondent was entitled to prove that he had a "legitimate claim of entitlement to continued employment” based on the policies and practices of the college by which he was employed. The majority also relies on Roth, supra, which, while holding that an “abstract concern” in being rehired did not constitute a property interest, 408 U.S. at 578, articulated the familiar standard that a “legitimate claim of entitlement” can give rise to a property interest. Id. at 577. Both Roth and Sindermann involved the right to employment itself. Cf. Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (due process requires some kind of hearing “prior to the discharge of an employee who has a constitutionally protected property interest in his employment”), aff 'g 721 F.2d 550 (6 Cir.1983). Outside the employment context, the Supreme Court has held that due process applies to the withdrawal of welfare benefits, Goldberg v. Kelly, 397 U.S. 254, 261-62 (1970), and to the termination of Social Security disability benefits. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). As the Court explicitly stated in Mathews , “the interest ... in ... these benefits is a statutorily created ‘property’ interest protected by the Fifth Amendment.” Id.

I have difficulty in equating the non-realization of Ezekwo’s expectation of serving a term as chief resident with the loss of employment or of subsistence benefits. As we have stated, “[t]hus far, the course of the law in this Circuit has not moved beyond according procedural due process protection to interests other than those well within the contexts illustrated by Goldberg and Roth.” S & D Maintenance Co. v. Goldin, 844 F.2d 962, 967 (2 Cir.1988). In that case, we held that S & D’s “right” to continue a contract with the City “would not be a [constitutionally] protected right, even if we were to analogize S & D’s service contract to an employment contract.” Id.; see also Walentas v. Lipper, 862 F.2d 414, 419 (2 Cir.1988) (“[T]he Court *789 has carefully limited the rule to situations which involve contracts with tenure provisions and the like, or where a clearly implied promise of continued employment has been made. Courts have accordingly been wary of the consequences that might arise if section 1983 were expanded to encompass substantially all public contract rights.” (citations omitted)), cert. denied, 490 U.S. 1021 (1989). It is just such expansion which concerns me today.

It should be borne in mind that Ezekwo was not terminated from her position as an ophthalmology resident. Rather, she was simply not permitted to serve a four-month term as chief resident. Appellees made this decision based strictly on academic criteria. While I agree with the majority that Ezekwo’s interest in serving as chief resident was not “such a trivial and insubstantial interest as the purported right to a specific vacation period,” see Altman v. Hurst, 734 F.2d 1240, 1242 (7 Cir.), cert. denied, 469 U.S. 982 (1984), I do equate her interest with that of an employee who has been denied a promotion or a specific job assignment. See Lewandownski, supra, 711 F.Supp. at 1495 ; Wargat, supra, 590 F.Supp. at 1215 ; see also Brown, supra, 722 F.2d at 365 . The majority points to no court which has yet held that such an interest rises to the level of a protected property interest. Rather, I find persuasive the reasoning of those courts which have found that employment decisions short of termination do not involve property rights. As the Supreme Court has cautioned, “[t]he federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Bishop v. Wood, 426 U.S. 341, 349 (1976).

Moreover, in an academic context such as this case presents, I think we should be particularly wary of finding property rights that are not firmly grounded in state law. See Board of Curators v. Horowitz, 435 U.S. 78, 82 (1978) (involving dismissal from medical school) (“Respondent has never alleged that she was deprived of a property interest. Because property interests are creatures of state law, Perry v. Sinder-mann, 408 U.S. 593, 599-603 (1972), respondent would have been required to show at trial that her seat at the Medical School was a ‘property’ interest recognized by Missouri state law. Instead, respondent argued that her dismissal deprived her of ‘liberty’ by substantially impairing her opportunities to continue her medical education or to return to employment in a medically related field.”) (holding process sufficient, even if a protected liberty or property interest were assumed). If every change in academic policy that affected students’ expectations were found to implicate property interests, schools might well be reluctant to upgrade standards or to make other decisions that traditionally have been left largely to the discretion of academic decisionmakers. While the majority states that “the adverse action taken in this case was not the product of routine discipline,” I believe that, consistent with the factual findings of the district court, it was the product of legitimate academic de-cisionmaking and not, for example, a retaliatory decision that might implicate due process concerns on that basis. Cf. Brown, supra, 722 F.2d at 365 (“A public employer who harassed an employee in order to induce him to give up a substantive constitutional right, such as freedom of speech, would be violating the Fourteenth Amendment and section 1983.”).

I would hold that appellees made an academic decision to change the policy with respect to the position of chief residency, and that this decision did not implicate a protected property interest of appellant Ez-ekwo.

III.

Even if I were to agree with the majority that Ezekwo’s interest in the chief residency position rose to the level of a protected property interest, I would hold, as did the district court, that she was given all the process that was due. It is to this question of “due process” that I now turn.

In determining what procedural protections are required by the Constitution, I consider the factors articulated by the Court in Mathews, supra:

*790 “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

424 U.S. at 335 .

As in Brown, supra, “the ‘property’ of which [Ezekwo was] deprived, if property it is in a Fourteenth Amendment sense ..., is far down on the scale of Fourteenth Amendment interests.” 722 F.2d at 366 . Moreover, in the wake of the Supreme Court’s decision in Horowitz, supra, I think it is treading on thin ice to impose additional procedural requirements in the context of an academic decision such as this one.

In Horowitz , a case involving an outright dismissal from medical school and thus implicating an interest far greater than Ezek-wo’s in simply serving as chief resident, the Supreme Court indicated a strong reluctance to interfere in academic affairs. In that case, the Court held that academic dismissal decisions, unlike disciplinary dismissal decisions, were not amenable to a hearing requirement:

“Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative factfinding proceedings to which we have traditionally attached a full-hearing requirement_ The decision to dismiss respondent ... rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.

Under such circumstances, we decline to ignore the historic judgment of educators and therefore formalize the academic dismissal process by requiring a hearing_ We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship.”

435 U.S. at 89-90 .

The majority attempts to distinguish Horowitz on the ground that the institution involved there had “long established academic criteria and repeatedly had advised the student involved that her performance was not meeting those standards”, whereas:

“The decision to pass over Ezekwo directly resulted from HHC’s decision to adopt entirely new selection criteria [which] were not made known to residents in the program until after the final decision on Ezekwo had been made. Such conduct is insufficient to satisfy due process. While a medical residency program is largely an academic undertaking, it also is an employment relationship.”

I do not find the majority’s attempts to distinguish Horowitz to be persuasive. Although arguably more process was accorded Horowitz than Ezekwo, Horowitz’s interest was substantially greater. Moreover, there is nothing in Horowitz to suggest that the “process” afforded Horowitz represented some type of constitutional minimum. The school in that case informed Horowitz that her clinical progress was unsatisfactory, warned her that there was a danger that she would not graduate, allowed her to be examined by seven physicians, and then ultimately made a “careful and deliberate” decision to dismiss her. Horowitz, supra, 435 U.S. at 85 . In this case, the majority itself states that “HHC’s residency directors and doctors carefully deliberated about changing the method of *791 selection for Chief Resident before deciding to apply that new standard.” The mere fact that Ezekwo was not warned in advance of the change or given an opportunity to argue about it does not represent a denial of due process.

As the district court stated, we held in Campo v. New York City Employees’ Retirement System, 843 F.2d 96, 103 (2 Cir.), cert. denied, 488 U.S. 889 (1988), that an Article 78 proceeding in a New York State court offered a due process hearing “at a meaningful time and in a meaningful manner” in a case involving rights to survivor’s benefits under a pension. The district court held that Ezekwo “failed to avail herself of the available process to air her claim.” In addition to having had the opportunity to commence an Article 78 proceeding, Ezekwo may well have a legitimate contract action. See Campo, supra, 843 F.2d at 103 n. 7. These postdeprivation remedies are relevant in assessing the process that Ezekwo had available to her.

The majority states that in Zinermon v. Burch, 110 S.Ct. 975 (1990), the Supreme Court recently held that the availability of postdeprivation state remedies will not bar a § 1983 claim in cases other than those in which the alleged deprivation is so random and unpredictable that the provision for predeprivation proceedings is impossible. E.g., Parratt v. Taylor, 451 U.S. 527, 541-44 (1981) (state tort action sufficient protection for alleged intentional destruction of prisoner’s property), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). In Burch , however, the Court limited itself to assessing the propriety of a Rule 12(b)(6) dismissal, and held that respondent had adequately alleged a claim for relief in a case involving the involuntary commitment of a mentally ill person. 110 S.Ct. at 977 . The Court held that the case was not precluded by Parratt. Id. at 989 .

I do not read Burch as suggesting that predeprivation remedies are always required in cases other than those involving random and unpredictable deprivations such as that at issue in Parratt . Nor do I read Burch as making irrelevant the consideration of other postdeprivation remedies in assessing the adequacy of constitutional process. Indeed, the Court explicitly acknowledged that “[i]n some circumstances, ... the Court has held that a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process.” Id. at 984 ; see also Loudermill, supra, 470 U.S. at 542 n. 7 (“There are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements.”). An example cited in Burch is Ingraham v. Wright, 430 U.S. 651, 682 (1977), where the Court held that the due process clause does not require notice and a hearing before the imposition of corporal punishment in public schools “as that practice is authorized and limited by the common law”. The Court held that “imposing additional administrative safeguards as a constitutional requirement might reduce [the] risk [of violating a child’s rights] marginally, but would also entail a significant intrusion into an area of primary educational responsibility.” Id.

Burch simply held that the facts of that case did not fall within the reach of those cases not requiring a prior hearing under the special rationale of Parratt. Burch involved the alleged involuntary confinement of an individual, which confinement the Court described as implicating a “substantial liberty interest”. Id. at 986 . In this case, where only an insubstantial, if any, property interest was involved, the existence of postdeprivation remedies in the wake of a legitimate academic decision afforded Ezekwo all the process that was due. As the court held in Ramsey v. Board of Educ. of Whitley County, 844 F.2d 1268 , 1272 (6 Cir.1988), “an employee deprived of a property interest in a specific benefit, term, or condition of employment, suffers a loss which is defined easily ... and therefore, any interference with that interest is redressed adequately in a state breach of contract action.” (Emphasis added.)

Finally, in the context of considering the Mathews factors, I agree with the majority that “it is unlikely that the administrators would have reversed the decision to change *792 the selection criteria” even if additional process had been accorded Ezekwo. This serves to support my view that any additional “process” requirements would represent only an unnecessary administrative burden.

IY.

To summarize:

The district court properly rejected appellant’s first amendment claim.

The district court finding that the chief residency decision was an academic decision is amply supported by the record and is not clearly erroneous. Ezekwo’s interest in the position did not rise to the level of a constitutionally protected property interest but, even if it did, Ezekwo was afforded all the process that she was due.