Petition — Tompkins v. Gargiul
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FLLEO
83-208 AUG 8 1983
ALEXANDER L. STEVAS,
In The
Supreme Court of the United States
October Term, 1983
No.
VIRGIL E. TOMPKINS, Individually and as District Superin-
tendent of Liverpool Central School District, JAMES
JOHNSON, Individually and as Acting Superintendent of
Liverpool Central School District, DENNIS JONES, In-
dividually and as Coordinator of Personnel of Liverpool
Central School District, DR. PAUL DAY, Individually and
as Chief Medical Inspector for the Liverpool Central School
District, F. ROBERT KOLCH, Individually and as Clerk of
the Beard of Education of the Liverpool Central School
District, ARTHUR D. LITTLE, BRUCE C. VOGT,
EMILIO CHASSE, DORIS ANN CONNOR, DAVID A.
FILES, MARIE HARTWELL, RICHARD J. HAYKO,
TONI ANNE MORRIS, LLOYD J. SPAFFORD, as In-
(OVER)
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
O’HARA, LAHM & FELICE
Counsel for Petitioners
1020 Seventh North Street
Liverpool, New York 13088
(315) 451-3810
Dennis G. O’Hara, Esq.
Of Counsel
Kenneth A. Windstein, Esq.
On the Petition
July 26, 1983
Rochester.New York (9733) Syracuse, New York
dividuals and as Members of the Board of Education of the
Liverpool Central School District, THE BOARD OF EDU-
CATION OF THE LIVERPOOL CENTRAL SCHOOL
DISTRICT, Liverpool, New York, and ARNOLD DET-
TOR, as Hearing Officer appointed pursuant to New York
State Education Law,
Petitioners,
LORRAINE GARGIUL,
Respondent.
ma
ay pe e
Fe Aaa
INDEX
RIPE EIOOIND PRESENTED, . 0. cc cscscccccsscces
1. — WHETHER PRINCIPLES OF RES JUDICATA
BAR THE FEDERAL COURTS FROM DETER-
MINING ISSUES RAISED IN ACTIONS
BROUGHT PURSUANT TO 42 U.S.C. §1983,
WHEN SUCH ISSUES COULD HAVE BEEN
LITIGATED IN EARLIER STATE COURT PRO-
CEEDINGS BETWEEN THE SAME PARTIES
. — WHETHER THE SECOND CIRCUIT COURT
OF APPEALS MISAPPLIED NEW YORK LAW IN
INTERPRETING SECTION 913 OF THE STATE
EDUCATION LAW AS EMPOWERING A
TEACHER TO REQUIRE A BOARD OF EDUCA-
TION TO DELEGATE THE RESPONSIBILITIES
OF THE SCHOOL DISTRICT PHYSICIAN TO
ANOTHER DOCTOR OF THE SAME GENDER AS
A: SR rp eee ee ee
. — WHETHER A BOARD OF EDUCATION ACTS
ARBITRARILY, IN VIOLATION OF A FEMALE
TEACHER’S RIGHT TO SUBSTANTIVE DUE
PROCESS OF LAW, WHEN IT REQUIRES THAT
TEACHER TO ATTEND A MEDICAL EXAMINA-
TION WITH THE MALE SCHOOL DISTRICT
PHYSICIAN BEFORE PERMITTING THE
TEACHER TO RETURN TO CLASSROOM
TEACHING FOLLOWING AN EXTENDED SICK
STATUTORY PROVISIONS INVOLVED.........
DEPRESS GOP Ble CASE ccs ccccssecseVaees
Ma FP NO TP VOCUES 6 6 Sic ec ccc icccviwess
B. The Federal Proceedings .........ccccsueee08
REASONS FOR GRANTING THE WRIT..........
POINT I — THE DECISION BELOW CONFLICTS
WITH DECISIONS BY MOST OF THE OTHER
CIRCUIT COURTS REGARDING THE APPLICA-
BILITY OF RES JUDICATA PRINCIPLES TO
FEDERAL ACTIONS UNDER §1983 ON ISSUES
WHICH COULD HAVE BEEN LITIGATED IN
EARLIER STATE COURT PROCEEDINGS BE-
Pe ee
POINT II — CERTIORARI SHOULD BE GRAN-
TED TO RECONCILE THE CONFLICTING IN-
TERPRETATIONS OF NEW YORK EDUCATION
LAW §913 WHICH HAVE BEEN RENDERED BY
THE STATE AND FEDERAL COURT IN THIS
CAGES situ '5. 0s ho Sn to been Cees eke ckaees
POINT III — CERTIORARI SHOULD BE
GRANTED TO REVIEW THE IMPORTANT
QUESTION OF WHETHER A BOARD OF
EDUCATION ACTS’ ARBITRARILY, IN
VIOLATION OF A FEMALE TEACHER’S RIGHT
TO SUBSTANTIVE DUE PROCESS OF LAW,
WHEN IT REQUIRES THAT TEACHER TO
ATTEND A MEDICAL EXAMINATION WITH
THE MALE SCHOOL DISTRICT PHYSICIAN,
BEFORE PERMITTING THE TEACHER TO
RETURN TO CLASSROOM TEACHING
FOLLOWING AN EXTENDED SICK LEAVE
CAUSED BY A BACK AILMENT ..............
4 + ,» WW
10
10
15
17
21
A-l
iv
CITATIONS
Cases
Allen v McCurry, 449 U.S. 90, 101 S. Ct. 441, 66 L Ed
EE eis cdc Wek cee wes oa woke Uh ewes
Bartholomew v Fischi, 534 F Supp 161 (E.D. Pa., 1981)
Bishop v Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L Ed
CE. Wil hlby Cas che aeiw iA awa e ew wd
Board of Regents of State Colleges v Roth, 408 U.S.
564, 92S. Ct. 2701, 33 L Ed 2d 548 (1972). ........
Board of Trustees of Carpenters Pension v Reyes, 688
Cis sd ku) diene teen actavaes
Brown v St. Louis Police Dept., Etc., 691 F2d 393 (8th
PHS Uae (pa acre ae er ae
Castorr v Brandage, Etc., et al., __. U.S. ___, 103
Re Fe ee ke BU
Cleveland Board of Education et. al. v LaFleur, 414
U.S. 632, 94S. Ct. 791, 39 L Ed 2d 52(1974).......
Coogan v Cincinnati Bar Association, 431 F2d 1209 (6th
tee ba 5 be wis ti ce Raitt aie’ 6 4 ble cle mes
Cromwell v County of Sac, 94 U.S. 351, 24 L Ed 195
NS Sas tea Ou Wik Bn ew ois bie Gas anes a
Elrod v Burns, 427 U.S. 347, 96S. Ct. 2673, 49 L Ed 2d
ED occa ncadascconnnae pea Qeawestcaay
Flores v Edinburg Consolidated Independent School
District, 554 F Supp 974 (D.Ct., Texas, 1983) ......
Gargiul v Board of Education I, 54 AD2d 1085, 389
NYS2d 504 (4th Dept. 1976), /v. app. den. 41 NY2d
802, 393 NYS2d 1026 (1977)... 2... ccc ccc eee
Page
9,10
Gargiul v Board of Education II, 69 AD2d 986, 416
NYS2d 119 (4th Dept 1979), /v. app. den. 48 NY2d
606, 421 NYS2d 1031 (1979)... 0... eee eee eee
Gargiul v Tompkins, 525 F Supp 795 (N.D.N.Y. 1981),
po FD, ee
Harrington v Inhabitants of the Town of Garland,
Maine, 551 F Supp 1371 (D.Ct. Maine, 1982).......
Jones v Gann, 703 F2d 513 (11th Cir., 1983) .........
Kelley v Johnson, 425 U.S. 238, 96S. Ct. 1440, 47 L Ed
aU... dine ane Os b6 ee vies
Keyishian v Board of Regents, 385 U.S. 589, 87 S. Ct.
ee a PRB OT Dc.n s claweees ccpeacecece
Kremer v Chemical Construction Corporation, _
U.S.___, 102 S. Ct. 1883, 72 L Ed 2d 262 (1982)...
Lee v City of Peoria, 685 F2d 196 (7th Cir., 1982) .....
Lombard v Board of Education, 502 F2d 631 (2d Cir.,
1974), cert. den. 420 U.S. 976, 95 S. Ct. 1400, 43
EE. 5 a ss oc. b.cn bbws wdepeciedic
Manego v Cape Cod Five Cents Savings Bank, 692 F2d
G05 sale ocho alia op. miniae Se mow oo a
Matter of Gargiul, 15 Ed. Dept. Rep. 360 (1976) reh.
den. 15 Ed. Dept. Rep. 520 (1976) ............44.
Matter of Grasso, 4 Educ. Dept. Rep. 174(1965)......
New Jersey Educational Association v Burke, 579 F2d
764, (3d Cir., 1977), cert. den. 439 U.S. 894, 99S. Ct.
OE eae Vt) ee
New State Ice Co. v Liebmann, 285 U.S. 262, 52S. Ct.
371, 76 L Ed 747 (J. Brandeis, dissenting) (1932)... .
11
pe
vi
Perry v Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33
ee Py re Seem. eres Sep nave. 17
Pickering v Board of Education, 391 U.S. 563, 88S. Ct.
5990: SOE, DADA C CHOON. oso oko dca dees: 17
Ramirez Pluguez v Cole, 571 F2d 70(ist Cir., 1978)... 11
Sachetti v Blair, 536 F Supp 636 (S.D.N.Y., 1982)... .. 12
Slochower v Board of Higher Education, 350 U.S. 551,
76 S. Ct. 637, 100 L Ed 2d 692, reh. den. 351 U.S.
944, 76S. Ct. 843, 100 L Ed 1470(1956) .......... 17
Southern Jam, Inc. v Robinson, 675 F2d 94 (Sth Cir.,
I! (aa sad adaisa: ath p 60:4 ch) 6 Oke 6.0 n MRL eae hs 11
Spence v Latting, 512 F2d 93 (10th Cir., 1975), cert. den.
423 U.S. 896, 96S. Ct. 198, 46 L Ed 2d 129(1975)... 11
Whalen v Roe, 429 U.S. 589, 97 S. Ct. 869, 61 L Ed 2d
ERO FTR. oc kc bial o wane 60.09 tk De Ceee eee é 18
Williamson v Lee Optical, Inc., 348 U.S. 483, 75 S. Ct.
461, 99 L Ed 563, reh. den. 349 U.S. 925, 75 S. Ct.
G57, FOL Ed 1256. (1955S) 2. cccccsccccessscvss 18
Wolff v McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41
By Th errs ee yor Tr 17
United States Constitution
SPP PPER TEER ee 17, 18
PE ASROMOMIORE, 2.0. pc ccccacswocesageot ns 6, 18
Federal Statutes
SR MURS gs ob 0 6.0.0 0.0 én bhinin tidioe ny 6 pa DEED 3, 16
JL Ey Sr pret res errecr et ST 3,15
- OB Rat >.” | | Tr reer ceric sl 3
MRD Ms BONE Ms bs 00 65.0.0 nt ubed ode ies mae 2,8, 10, 11
vii
Pad
New York Statutes
Ty CR, . sc ccctenwe dee unioneneae 6
Education Law §913 ........ccccccees 2,3, 7,9, 15, 16, 17
Treatises
18 C. Wright, A. Miller & E. Cooper, Federal Practice
and Procedure §4471, at 719-20 (1981)............ 12
a
«“
all
viii
APPENDIX
Gargiul v Tompkins, 704 F 2d 661 (2d Cir., 1983) .....
Gargiul v Tompkins, Order of Second Circuit Denying
Petition for Rehearing and Suggestion for Rehearing
a cons ahs ad 5 bE gi atularkne % De eie Meee
Gargiul v Tompkins, 525 F Supp 795 (N.D.N.Y., 1981).
Gargiul vy Tompkins, Order of Federal District Court
I os ow bb boa b'd 6s Wee ee Naw ns
Gargiul v Board of Education I, 54 AD2d 1085, 389
Pemaes See Cane Breet, 19TE)... ccc cnccccccecces
Gargiul v Board of Education I, lv. app. den. 41 N.Y .2d
en PUREE BOD CIDTT). ccc cnc cdcevesesess
Gargiul v Board of Education II, 69 AD2d 986, 416
NYS2d 119 (4th Dept. 1979)... 0... ccc cece ee eeee
Gargiul v Board of Education II, lv. app. den. 48 NY2d
Ge A EY OT 1) oe
Matter of Gargiul, 15 Ed. Dept. Rep. 360(1976)......
Matter of Gargiul, reh. den. 15 Ed. Dept. Rep. 520
RSS ia ws ho whte.e 40,6 WED AY wee
Matter of Grasso, 4 Ed. Dept. Rep. 174(1965)........
In The
Supreme Court of the United States
October Term, 1983
No.
VIRGIL E. TOMPKINS, Individually and as District Superin-
tendent of Liverpool Central School District, JAMES
JOHNSON, Individually and as Acting Superintendent of
Liverpool Central School District, DENNIS JONES, In-
dividually and as Coordinator of Personnel of Liverpool
Central School District, DR. PAUL DAY, Individually and
as Chief Medical Inspector for the Liverpool Central School
District, F. ROBERT KOLCH, Individually and as Clerk of
the Board of Education of the Liverpool Central School
District, ARTHUR D. LITTLE, BRUCE C. VOGT,
EMILIO CHASSE, DORIS ANN CONNOR, DAVID A.
FILES, MARIE HARTWELL, RICHARD J. HAYKO,
TONI ANNE MORRIS, LLOYD J. SPAFFORD, as In-
dividuals and as Members of the Board of Education of the
Liverpool Central School District, THE BOARD OF*EDU-
CATION OF THE LIVERPOOL CENTRAL SCHOOL
DISTRICT, Liverpool, New York, and ARNOLD DET-
TOR, as Hearing Officer appointed pursuant to New York
State Education Law,
Petitioners,
LORRAINE GARGIUL,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
The petitioners respectfully pray that a writ of certiorari issue
to review the judgment and opinion of the United States Court
of Appeals for the Second Circuit entered in this proceeding on
March 29, 1983, to the extent that it reversed and remanded in
part the judgment of the United States District Court for the
Northern District of New York.
*
; a
be Fae
QUESTIONS PRESENTFD
1. Whether principles of res judicata bar the federal courts
from determining issues raised in actions brought pursuant to
42 U.S.C. §1983, when such issues could have been litigated in
earlier state court proceedings between the same parties and
involving the same facts?
2. Whether the Second Circuit Court of Appeals misap-
plied New York law in interpreting Section 913 of the State
Education Law as empowering a teacher to require a board of
education to delegate the responsibilities of the school district
physician to another doctor of the same gender as the teacher?
3. Whether a board of education acts arbitrarily, in
violation of a female teacher’s right to substantive due process
of law, when it requires that teacher to attend a medical
examination with the male school district physician, before
permitting the teacher to return to classroom teaching follow-
ing an extended sick leave caused by a back ailment?
OPINIONS BELOW
The opinion of the Second Circuit Court of Appeals is
reported at 704 F2d 661 (1983) and is printed in Appendix A
hereto, infra, page A-1. The opinion of the United States
District Court for the Northern District of New York, denying
the respondent’s motion for partial summary judgment, is
reported at 525 F. Supp. 795 (1981), and is printed in Appendix
A hereto, infra, page A-12. The judgment of the United States
District Court fur the Northern District of New York,
dismissing the respondent’s complaint, is unreported, and is
printed in Appendix A hereto, infra, page A-16.
JURISDICTION Cis
The judgment of the Second Circuit Court of Appeals was
entered on March 29, 1983. A timely petition for rehearing and
a suggestion that the action be reheard in banc was denied on
May 9, 1983, and this petition for certiorari is being filed within
90 days of said date. This Court’s jurisdiction is invoked under
28 U.S.C., §1254(1).
STATUTORY PROVISIONS INVOLVED
United States Code, Title 28:
§1652
The laws of the several states, except where the Con-
stitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be regarded
as rules of decision in civil actions in the courts of the
United States, in cases where they apply.
United States Code, Title 28:
§1738
The Acts of legislature of any State, Territory, or
Possession of the United States, or copies thereof, shall
be authenticated by affixing the seal of such State,
Territory or Possession thereto.
The records and judicial proceedings of any court of any
such State, Territory or Possession, or copies thereof,
shall be proved or admitted in other courts within the
United States and its Territories and Possessions by the
attestation of the clerk and seal of the court annexed, if
a seal exists, together with a certificate of judge of the
court that the said attestation is in proper form.
Such Acts, records, and judicial proceedings or copies
thereof, so authenticated, shall have the same full faith
and credit in every court within the United States and its
Territories and Possessions as they have by law or usage
in the courts of such State, Territory or Possession from
which they are taken.
New York Education Law:
§913 (McKinney’s 1981)
In order to safeguard the health of children attending
the public schools, the board of education or trustees of
4
any school district or a board of cooperative educational
services shall be empowered to require any person
employed by the board of education or trustees or board
of cooperative educational services to submit to a
medical examination by a physician of his choice or
school medical inspector of the board of education or
trustees or board of cooperative educational services, in
order to determine the physical or mental capacity of
such person to perform his duties. The person required
to submit to such medical examination shall be entitled
to be accompanied by a physician or other person of his
own choice. The findings upon such examination shall
be reported to the board of education or trustees or
board of cooperative educational services and may be
referred to and considered for the evaluation of service
of the person examined or for disability retirement.
STATEMENT OF THE CASE
A. The State Proceedings*
Lorraine Gargiul (‘‘Gargiul’’) was a tenured kindergarten
teacher employed by the Liverpool Central School District. On
November 27, 1974, she commenced an extended sick leave
from her teaching duties due to a pre-existing back condition.
On February 5, 1975, the Superintendent of Schools, Virgil
Tompkins (‘‘Tompkins’’), notified Gargiul that she should
make arrangements for a medical examination by the school
district physician, Dr. Paul Day (‘‘Dr. Day’’), before at-
tempting to return to work.
Through a letter dated March 6, 1975, Gargiul expressed her
intention to return to her teaching position on March 17, 1975,
but refused to be examined by Dr. Day. She indicated that her
personal creed precluded her from being examined by a male
physician. By subsequent correspondence, Tompkins sought to
obtain Gargiu!’s medical records for evaluation by Dr. Day asa
possible alternative to her attendance at a medical examina.ion.
On March 10, 1975, the Board of Education (the ‘‘Board’’)
*A copy of all related state court and administrative decisions are included
in Appendix A.
* 4)
« BERS
adopted a resolution which directed Gargiul to attend a medical
examination by the school district physician before returning to
her teaching responsibilities, if the physician should determine
that such an examination was necessary after reviewing
Gargiul’s medical records.
Effective March 17, 1975, the Board placed Gargiul on a
leave of absence without pay until such time as the questions
regarding her medical status were clarified. After Gargiul’s
medical records were finally supplied, Dr. Day determined that
an examination would be necessary, and Gargiul was so in-
formed.
It is uncontroverted that Gargiul never appeared at the office
of Dr. Day and continuously failed and refused to attend an
examination with him during this period.
On August 9, 1975, Gargiul commenced an administrative
appeal to the New York Commissioner of Education (the
**Commissioner’’) which challenged the Board’s resolution of
March 10, 1975 on constitutional and statutory grounds.
Matter of Gargiul 15 Ed. Dept. Rep. 360 (1976). The Com-
missioner rejected Gargiul’s appeal and held that, under the
circumstances, the Board did noi act arbitrarily or capriciously
in requiring her to be examined by the male school district
physician and that her wish to be attended by only women
physicians is not entitled to protection under the First and
Fourteenth Amendments of the United States Constitution.
Matter of Gargiul, supra. In an application to reopen this
decision, Gargiul argued that the Commissioner’s ruling
permitted an invasion of her constitutional right to personal
and sexual privacy. The Commissioner then held that based
upon the prior proceeding, this argument was barred by the
doctrine of res judicata. Matter of Gargiul 15 Ed. Dept. Rep.
520 (1976). Gargiul never sought judicial review of the
Commissioner’s decisions.
On April 13, 1976, Ms. Gargiul commenced an extraordinary
writ proceeding in state court against the Board, seeking a
declaration that the Board’s action of March 17, 1975, placing
her on a leave of absence without pay for failure to comply with
the Board’s directive regarding a medical examination by the
school district physician, violated her rights under the New
York Education Law and the Fourteenth Amendment to the
United States Constitution. Gargiul v Board of Education I, 54
AD2d 1085, 389 NYS2d 504 (4th Dept. 1976), /v. app. den. 41
NY2d 802, 393 NYS2d 1026 (1977). The Onondaga County
Supreme Court dismissed the proceeding as time-barred, and
the Appellate Division affirmed, adding that Gargiul’s due
process claims were without merit. Gargiul v Board of
Education I, supra.
In the meantime, on September 9, 1975, the Board deter-
mined that there was probable cause to instituie dismrssal
proceedings against Gargiul under State law (New York
Education Law, §3020-a) on the independent grounds of in-
subordination and incompetency. The charges of in-
subordination were based on Gargiul’s repeated failure and
refusal to comply with the Board’s directive requiring at-
tendance at a medical examination by the school district
physician. The charges of incompetency were based upon
unfavorable supervisory reports and parental complaints
regarding Gargiul’s teaching performance.
In due course, a three member hearing panel was convened
and a statutory hearing was held on these charges. In its
decision, a majority of the hearing panel found Gargiul guilty
of both insubordination and incompetency, and recommended
dismissal for incompetency.
After reviewing the decision of the hearing panel, the Board,
on May 24, 1977, unanimously resolved that Gargiul be
dismissed for incompetency. The Board also unanimously
resolved that Gargiul was not entitled to back pay for the
period of March 17, 1975 to the date of her dismissal on May
24, 1977, since the withholding of compensation during this
period was a direct result of her refusal to attend a physical
examination as required by Education Law §913.
Gargiul then commenced another extraordinary writ
proceeding in state court seeking to annul the Board resolution
of May 25, 1977 relating to dismissal and back pay. See,
Gargiul v Board of Education 11 69 AD2d 986, 416 NYS2d 119
(4th Dept 1979), /v. app. den. 48 NY2d 606, 421 NYS2d 1031
(1979). Upon review, the Appellate Division, confirming the
Onondaga County Supreme Court’s determination, held that
the Board’s finding of incompetency was supported by sub-
stantial evidence, and that her dismissal was not ‘‘shocking to
one’s sense of fairness’’. The Court also held that the Board has
a statutory right to order an employee to submit to a medical
examination and may withhold pay from an employee who
refuses to undergo such an examination. Gargiul v Board of
Education II, supra.
B. The Federal Proceedings
Failing to prevail on any of her state judicial and ad-
ministrative claims, Gargiul turned her attention to pursuit of
the instant case, which had been commenced in 1976 but held in
abeyance pending the outcome of the above-described State
proceedings.
The crux of Gargiul’s federal claim is that the petitioners
have impermissively infringed upon her alleged constitutional
right of privacy to refuse to undergo a medical examination by
a male school district physician, and that this infringement has
resulted in a deprivation of her right to substantive due process
of law.
On August 20, 1981, Gargiul commenced .a Motion for
Partial Summary Judgment in District Court to recover back
salary and benefits for the period between March 17, 1975 (the
commencement date of her leave of absence without pay) and
May 23, 1977 (the date of her termination). In support of this
motion, she alleged that there were no material issues of fact in
dispute with respect to this claim. It was uncontroverted that
Gargiul had not been compensated during this period because
of her refusal to attend the examination with the male school
district physician.
Honorable Roger J. Miner, Federal District Judge, rendered
a memorandum decision and order on October 30, 1981, which
denied Gargiul’s motion as a matter of law, on the basis that
there is no constitutionally recognized right of privacy which
would permit her to decline a required medical examination by
a male school district physician. This decision also noted that it
is not wholly unreasonable for a school district to order an
employee to consult a male school district physician. Gargiul v
Tompkins 525 F Supp’795 (N.D.N.Y. 1981).
In the aftermath of Judge Miner’s decision, the Board moved
for summary judgment on the ground that, as a matter of law,
Gargiul’s complaint fails to state a claim upon which relief may
be granted. The Court granted the Board’s motion and
dismissed Gargiul’s complaint by a Final Order dated May 17,
1982.
Gargiul then appealed this dismissal to the Second Circuit
Court of Appeals. Following oral argument, the Court issued
an opinion by Charles H. Tenney, Senior District Judge, which
affirmed that Gargiul’s claim for wrongful termination is
without merit. However, the Court also held that principles of
res judicata do not preclude Gargiul from continuing to litigate
her claim that the Board violated her right to substantive due
process when it suspended her without pay for failure to attend
an examination with the school district physician. The Court
stated that the doctrine of res judicata has only limited ap-
plication in §1983 actions and that only matters which are
actually litigated and determined in prior state proceedings
become barred from federal court review under §1983. In
reaching this conclusion, the Court stated that it declined to
follow the Supreme Court's ‘‘suggestion’’ in A/len v McCurry
449 U.S. 90, at 96-97, 101 S Ct 441, 66 L Ed 2d 308 (1980) that
the principles of res judicata are fully applicable in §1983
actions.
From this premise, the Court opined that the New York
Courts have never actually determined the validity of Gargiul’s
substantive due process claim even though she attempted to
raise these claims in that forum. The Court added that the
express state court rejection of Gargiul’s procedural due
process claims was not dispositive of the substantive due
process issue.
The Court also determined that it would not follow the
unappealed decision of the Commissioner, which ruled that
Gargiul’s substantive due process rights had not been violated
by the Board’s actions. The Court stated that even though New
York Courts afford preclusive effect to the Commissioner's
decisions, the federal courts are not bound to follow suit.
Finally, the Court addressed the merits of Gargiul’s sub-
stantive due process claim. After interpreting Section 913 of
New York’s Education Law as empowering a teacher to require
a board of education to delegate the responsibilities of the
school district physician to another doctor of the same gender
as the teacher, the Court held that the Board acted arbitrarily in
requiring Gargiul to attend a medical examination with the
male school doctor physician. The Court then remanded this
matter to the District Court. Petitioner’s motion for rehearing
was denied on May 9, 1983.
Petitioners now seek Supreme Court review of those portions
of the Second Circuit’s decision which reversed the District
Court's dismissal of Gargiul’s complaint.
ss
10
REASONS FOR GRANTING THE WRIT
POINT I
THE DECISION BELOW CONFLICTS WITH DECI-
SIONS BY MOST OF THE OTHER CIRCUIT COURTS RE-
GARDING THE APPLICABILITY OF RES JUDICATA
PRINCIPLES TO FEDERAL ACTIONS UNDER §1983 ON
ISSUES WHICH COULD HAVE BEEN LITIGATED IN
EARLIER STATE COURT PROCEEDINGS BETWEEN
THE PARTIES.
The traditional rule of res judicata in the federal-state
context is that when the parties have had a full and fair oppor-
tunity to litigate an issue in state court, a final judgment on the
merits of the action precludes the parties from relitigating in
federal court those issues that (1) were actually raised and
determined in the earlier proceedings and (2) could have been,
but were not, actually raised and determined in the earlier pro-
ceedings. Allen vy McCurry, supra, 449 US 90, at 94, Cromwell
v County of Sac, 94 US 351, 352, 24 L Ed 195 (1877). In Allen v
McCurry, supra, the Court indicated that the first prong of this
principle is fully applicable to actions brought under 42 U.S.C.
§1983. After examining the legislative history of §1983, the
Court concluded that there is no evidence that Congress in-
tended to allow relitigation of federal issues simply because the
state court’s decision may have been erroneous. Allen v Mc-
Curry, supra, 449 U.S., at 101. However, the A//len Court did
not address the second question of whether issues that could
have been but which were not litigated and determined in earlier
proceedings are also barred from §1983 review. Allen v Mc-
Curry, supra, 449 US, at 97, f.n. 10. The instant case presents
the Court with an opportunity to squarely decide this issue, and
thereby eliminate the uncertainty and conflict that exists among
the lower courts in the aftermath wf the Allen decision.
Consistent with the Allen rationale, most Circuit Courts
11
considering the question have adopted the position that res
judicata bars the determination of §1983 claims that could have
been but were not litigated in earlier state court proceedings.
See, Ramirez Pluguez v Cole, 571 F2d 70 (ist Cir., 1978);
Manego v Cape Cod Five Cents Savings Bank, 692 F2d 174 (ist
Cir., 1982); Southern Jam, Inc. v Robinson, 675 F2d 94 (Sth
Cir., 1982); Coogan v Cincinnati Bar Association, 431 F2d
1209 (6th Cir., 1970); Lee v City of Peoria, 685 F2d 196 (7th
Cir., 1982); Brown v St. Louis Police Dept., Etc., 691 F2d 393
(8th Cir., 1982); Board of Trustees of Carpenters Pension v
Reyes, 688 F2d 671 (9th Cir., 1982); Spence v Latting, 512 F2d
93 (10th Cir., 1975), cert den 423 US 896, 96S Ct 198, 46 L Ed
2d 129 (1975); and Jones v Gann, 703 F2d 513 (11th Cir., 1983).
See also, Harrington vy Inhabitants of the Town of Garland,
Maine, 551 F Supp 1371 (D.Ct. Maine, 1982), Flores v
Edinburg Consolidated Independent School District, 554
F Supp 974 (D.Ct., Texas, 1983).
Nevertheless, the Second Circuit continues to adhere to the
contrary rule originally enunciated in the case of Lombard v
Board of Education, 502 F2d 631 (2d Cir., 1974), cert. den. 420
US 976, 95 S Ct 1400, 43 L Ed 2d 656 (1975). As the Court
below stated:
. . . [W]e have held that a prior state court proceeding
does not bar federal court consideration of constitu-
tional claims not actually litigated and determined in
that proceeding. . . 704 F2d, at 666.
The Third Circuit is the only other Circuit that appears to be in
accord with the Lombard rule. In a pre-Allen case entitled New
Jersey Educational Association v Burke, 579 F2d 764, 774 (3d
Cir., 1977), cert. den. 439 US 894, 99 S Ct 252, 58 L Ed 2d 239
(1978), that Court held that a state court judgment forecloses a
§1983 litigant from raising grievances in federal court only if
such claims have been pressed before, and decided by, a state
tribunal. See also, Bartholomew v Fischl, 534 F Supp 161 (E.D.
Pa., 1981).
12
In the wake of Allen, even district courts within the Second
Circuit have questioned the viability of the Lombard rule. For
example, in Sachetti v Blair, 536 F Supp 636 (S.D.N.Y., 1982),
the Court stated:
.. . [T]he Lombard rule appears to be so clearly con-
trary to statements by the Supreme Court in the recent
case of Allen vy McCurry that Lombard can no longer be
regarded as controlling authority even in this circuit.
One leading commentator has severely criticized the continuing
vitality of this minority rule with the following comments:
The Second Circuit refusal to apply claim preclusion
seems inconsistent with the Allen opinion in several
ways. The full faith and credit statute [28 U.S.C. 1738]
applies to claim preclusion as well as issue preclusion.
There is no more apparent reason to find special rules of
claim preclusion in the legislative history of §1983 than
to find special rules as to issue preclusion. And freedom
to go to federal court in defiance of state claim
preclusion rules and at the expense of orderly state
procedure can be justified most easily by relying on
propositions rejected by the [Allen] Court — that state
courts cannot be trusted to adjudicate federal rights, or
that every person asserting a federal right should have
an opportunity to advance it in federal court. 18 C.
Wright, A. Miller & E. Cooper, Federal Practice and
Procedure §4471, at 719-20 (1981).
Nevertheless, the Second Circuit applied the Lombard rule to
the facts of the instant case as follows:
... In neither judicial proceeding did the state court
address the merits of her substantive due process claims.
In Gargiul v Board of Education I, supra, Gargiul
argued that the due process clause of the fourteenth
amendment protected her, a tenured teacher, from
suspension without pay prior to a final determination of
the charges against her. The Appellate Division rejected
Gargiul’s claim that her due process rights had been
violated. 54 AD2d at 1087, 389 NYS2d at 506. While
13
that decision clearly bars Gargiul from relitigating her
claim that her suspension without pay violated her
procedural due process rights, it is not dispositive of h
substantive due process claims, which she did not rajfSe
in that.proceeding.
Gargiul did attempt to raise her substantive due process
claims in Gargiul v Board of Education II, supra. The
Appellate Division upheld her suspension without pay
on statutory grounds. However, the court concluded
that Gargiul’s failure to appeal the Commissioner of
Education’s determination of the constitutionality of
her suspension or to join the Commissioner as a party
precluded her from relitigating the constitutionality of
her suspension without pay. 69 AD2d at 986, 416 NYS2d
at 120. Thus, in neither case did the state court deter-
mine the merits of Gargiul’s substantive due process
claims...
Under the rationale of Lombard v Board of Education,
supra, and its progeny, Gargiul’s privacy claim — never
actually litigated and determined — should not be
precluded 704 F2d, at 666.
It is inequitable for defendants in the Second Circuit to be
required to relitigate issues in multiple forms while similarly
situated defendants throughout most of the rest of the country
enjoy judicial protection from fractious, resurrected claims.
The instant case, for example, has been in litigation for almost
nine years. It continues forward, primarily because the Second
Circuit is unwilling to conclude that state court rejection of
Gargiul’s statutory and procedural due process claims has
subsumed resolution of her substantive due process claim. Such
judicial hair-splitting is certain to promote multi-forum
lawsuits by litigious plaintiffs and extinguish the faint hope that
overburdened District Courts in this Circuit will someday
regain control of their dockets. This issue cries out for Supreme
Court attention and we beseech the Court to intervene. As
Justice White wrote last October:
14
... The issue of whether constitutional claims not
actually litigated in earlier state proceedings are barred
in a subsequent federal suit is of considerable im-
portance to §1983 litigants and has divided the federal
courts of appeal. . . . | would grant certiorari. Castorr v
Brandage, etc., et al., _._ U.S. ___, 103 S. Ct. 240, 74
L Ed 2d 189 (1982) (dissenting opinion from denial of
certiorari).
Even if the Supreme Court is willing to countenance further
Second Circuit experimentation with the Lombard rule, the
instant case presents an ideal opportunity for the Court to
clarify the difference between a claim that has been actually
litigated and one that has not.
In holding that res judicata principles do not preclude
Gargiul from challenging her suspension without pay on sub-
stantive due process grounds, the Court below concluded that
the New York Courts have never determined the question of her
substantive due process rights. While it may be true that
Gargiul did not have the validity of her initial suspension
reviewed from this perspective in the state court, this con-
clusion overlooks the fact that she did have state judicial review
of the Board’s subsequent determination that she was not
entitled to back pay during the suspension period. In Gargiul v
Board of Education, II, 69 AD2d 986, 416 NYS2d 119 (4th
Dept., 1979), the New York State Appellate Division (Fourth
Department) held:
We do not agree with [Gargiul’s] contention that she
should be awarded back pay from March 17, 1975, the
date on which she was suspended for refusing to submit
to the physical examination directed by the Board, to the
date of her dismissal. A Board of Education has a
statutory right to order an employee to submit to a
medical examination (Education Law §913) and may
dismiss an employee who refuses to undergo such an
examination (Matter of Grasso, 4E.D.R. 174).
In other words, the Appellate Division upheld the Jeason-
15
ableness of the Board’s determination that Gargiul be dis-
missed from her employment retroactive to March 17, 1975,
without back pay. Under 28 U.S.C. §1738, the federal courts
are bound to accede to this state court decision.
This Court is therefore urged to accept certiorari to at least
determine the extent to which the Lombard rule should apply to
the instant case. We submit that the Board’s initial directive
suspending Gargiul without pay was examined and upheld by
the state court on its merits when it reviewed the Board’s later
determination that she was not entitled to back pay for the
period of suspension prior to her dismissal. Substantive due
process claims were raised by Gargiul in this proceeding, and
were necessarily subsumed within the Court’s determination.
With respect at least to back pay, the plaintiff has crossed the
line at which res judicata attaches. See, Kremer v Chemical
Construction Corporation, US , 102 S. Ct. 1883, 72
L Ed 2d 262 (1982).
POINT Il
CERTIORARI SHOULD BE GRANTED TO RECONCILE
THE CONFLICTING INTERPRETATIONS OF NEW
YORK EDUCATION LAW §913 WHICH HAVE BEEN
RENDERED BY THE STATE AND FEDERAL COURTS IN
THIS CASE.
The Court below concluded that Section 913 of the New
York Education Law sanctions Gargiul’s demand for an alter-
native to an examination by the school district physician — an
examination by some other physician who is female. This mis-
apprehends the law concerning this state statute. In Matter of
Grasso, 4 Educ. Dept. Rep. 174 (1965), New York’s Commis-
sioner of Education stated:
This statute clearly gives to a board of education the
right to order an employee to a medical examination by
a physician of the employee’s choice or, if the board so
EPO AA
16
desires, by the board’s medical inspector. The board
may make demand for either type of examination as it
chooses. If this were not so, the remaining language of
the section would be meaningless. (Emphasis added).
The Commissioner’s interpretation of Section 913 in Grasso
was followed by the Commissioner in Matter of Gargiul, supra,
and again by the state court in Gargiul v Board of Education,
IT, supra. State courts are the final arbiters of the state’s own
laws, and federal courts are duty bound to follow state ap-
pellate court interpretations of statutory language. Rules of
Decision Act, 28 U.S.C. §1652. There is absolutely no state
court authority which supports the conclusion that Education
Law §913 enables a teacher to require a board of education to
delegate the responsibilities of the office of school physician to
another doctor. This contrary interpretation of Education Law
§913 adversely affects every board of education in the State of
New York by eradicating its longstanding prerogative to ap-
point and rely upon one particularly qualified expert to act as
the district physician.
Moreover, it is state law which defines the scope of a
teacher’s property rights to compensation. See, Bishop v
Wood, 426 US 341, at 344, 96 S Ct 2074, 48 L Ed 2d 684
(1976), Board of Regents of State Colleges v Roth, 408 US 564,
577, 92 S Ct 2701, 33 L Ed 2d 548 (1972). When a board of
education acts in accordance with a valid state law, it cannot be
said to have violated a teacher’s constitutional rights. Since the
Commissioner and the New York Courts have both determined
that the petitioner Board has acted in conformity with
Education Law §913, and since that statute was not declared
unconstitutional as applied in the Court below, the conclusion
is inescapable that the Second Circuit interpreted Education
Law §913 in a way which directly contradicts the meaning
ascribed by the state appellate court. The petitioners thus
contend that the Second Circuit has violated the Rules of
Decision Act in this case.
17
The Supreme Court should accept certiorari to reconcile the
conflicting interpretations of Education Law §913 rendered by
the state and federal courts.
POINT Ill
CERTIORARI SHOULD BE GRANTED TO REVIEW
THE IMPORTANT QUESTION OF WHETHER A BOARD
OF EDUCATION ACTS ARBITRARILY, IN VIOLATION
OF A FEMALE TEACHER’S RIGHT TO SUBSTANTIVE
DUE PROCESS OF LAW, WHEN IT REQUIRES THAT
TEACHER TO ATTEND A MEDICAL EXAMINATION
WITH THE MALE SCHOOL DISTRICT PHYSICIAN, BE-
FORE PERMITTING THE TEACHER TO RETURN TO
CLASSROOM TEACHING FOLLOWING AN EXTENDED
SICK LEAVE CAUSED BY A BACK AILMENT.
Substantive due process is the constitutional guarantee that
no person shall be deprived of his or her life, liberty, or
property by arbitrary governmental action. Wolff v Mc-
Donnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974),
Slocho wer v Board of Higher Education, 250 US 551, 76S Ct
637, 100 L Ed 2d 692, reh. den. 351 US 944, 76 S Ct 843, 100
L Ed 1470 (1956). Under this guarantee, the government ma,
not place an arbitrary condition upon the continued enjoyment
of a property interest. This protection extends to tenured public
employment. See, Elrod v Burns, 427 US 347, 360-61, 96 S Ct
2673, 49 L Ed 2d 547 (1976), Perry v Sindermann, 408 US 593,
597, 92 S Ct 2694, 33 L Ed 2d 570 (1972); Pickering v Board of
Education, 391 US 563, 88 S Ct 1731, 20 L Ed 2d 811 (1968).
The incentive of employment is a powerful one which cannot be
used to abridge the exercise of constitutional freedoms.
Keyishian v Board of Regents, 385 US 589, 605-06, 87 S Ct 675,
17 L Ed 2d 629 (1967).
However, governmental actions that have some effect on
individual liberty or privacy may not be held unconstitutional
18
simply because a court finds them unnecessary in whole or in
part. Whalen v Roe, 429 U.S. 589, 597, 97S Ct 869, 61 L Ed 2d
64 (1977). It is axiomatic that an exercise of governmental
power need only bear some rational relationship to a legitimate
governmental interest in order to pass constitutional muster.
See, Williamson v Lee Optical, Inc., 348 US 483, 488-91, 75
S Ct 461, 99 L Ed 563, reh. den. 349 US 925, 75 S Ct 657, 99
L Ed 1256 (1955); and the states have broad latitude in experi-
menting with possible solutions to problems of vital local
concern. Whalen v Roe, supra, quoting New State Ice Co. v
Liebmann, 285 US 262, 311, 52 S Ct 371, 76 L Ed 747 (J.
Brandeis, dissenting) (1932).
The government’s power to set forth work requirements for
its own employees is much broader than its power to rule the
citizenry at large. Kelley v Johnson, 425 US 238, 244, 96S. Ct.
1440, 47 L Ed 2d 708 (1976). In Kelley, the Court stated:
. . . [W]e have sustained comprehensive and substantial
restrictions upon activities of both federal and state
employees lying at the core of the First Amendment . . .
If such state regulations may survive challenges based on
the explicit language of the First Amendment, there is
surely even more room for restrictive regulations of state
employees where the claim implicates only the more
general contours of the substantive liberty interest
protected by the Fourteenth Amendment. 425 U.S. at
245. (citations omitted).
In the instant case, the New York Appellate Division upheld
the Board’s position that the directive regarding Gargiul’s
attendance at a medical examination by the school district
physician was an entirely reasonable attempt to safeguard the
health, education and welfare of the kindergarten children who
would have been in her class.
Despite this finding, the Court below determined that the
Board acted arbitrarily in requiring that the medical
examination be accomplished by the school district physician.
19
It is difficult to understand how the Court could reach this
conclusion, since the Board was merely acting in accordance
with prevailing state law in demanding that an employee permit
an appointed official to perform one of the responsibilities of
his office. In Cleveland Board of Education et. al. v LaFleur,
414 U.S. 632, 94 S Ct 791, 39 L Ed 2d 52 (1974), the Court
suggested that board of education action requiring teachers to
submit to a medical examination by the school district
physician was a reasonable method of determining their fitness
to return to the classroom. /d, at f.n. 14.
The Board has an interest in maintaining uniformity and
achieving equity in the evaluation of the fitness of teachers.
Such uniformity can reasonably be achieved by giving the
responsibility to conduct medical examinations to one par-
ticularly qualified expert who fully understands both the job-
related physical requirements which the employees must
satisfy, and the scope of the duties which the employees must
perform. This objective would be defeated if private doctors
were permitted to usurp the role of the school district physician
in every individua! case.
The Board’s interest in ensuring high quality education for
the children in the school district depends upon maintaining
continuity in the delivery of educational services. Cleveland
Board of Education et. al. v LaFleur, supra. The expertise of
the school district physician may be relied upon to ensure that a
teacher returning to the classroom is able to perform the duties
of that position for a substantial period of time; and only a
physician familiar with the various positions available in the
school district could accomplish this objective.
We submit that the Board was under no constitutional
obligation to delegate this responsibility to another doctor.
Moreover, the Court’s conclusion that the Board’s actions
with respect to Gargiul’s suspension were arbitrary, is based
upon the assumption that Gargiul’s appearance before the
20
school district physician would have required her to disrobe
and submit to an intrusive (‘Shands on’’) physical examination
by the school district physician. This assumption is completely
unwarranted by the record in this case. In an October 16, 1981
affidavit, submitted in opposition to Gargiul’s motion for
summary judgment, the school district physician, Dr. Day,
stated:
I testified under oath at the Section 3020-a hearing
requested by the plaintiff (Gargiul). I stated at that time
and I reaffirm now that I did not know if a ‘‘hands on’”’
examination of the plaintiff would have _ been
necessary...
. At this point, I can only speculate as to what would have
been required because the plaintiff refused throughout
these proceedings to report to my office for the initial
meeting, thereby preventing me from obtaining a full
history and reaching any preliminary conclusions.
In short, we contend that requiring an employee to attend a
medical examination of a back ailment does not ipso facto
entail a violation of substantive due process. The employee
should be obligated to at least attend the examination and
participate in any aspect of an examination that is not con-
stitutionally objectionable.
We urge this Court to accept certiorari te correct the error of
the Court below on this important question.
age
21
CONCLUSION
For these reasons, a writ of certiorari should issue to review
the judgment and opinion of the Second Circuit.
Respectfully submitted,
Dennis G. O’Hara
O’HARA, LAHM & FELICE
1020 Seventh North Street
Liverpool, New York 13088
(315) 451-3810
Of Counsel for Petitioners
Kenneth A. Windstein
O’HARA, LAHM & FELICE
1020 Seventh North Street
Liverpool, New York 13088
(315) 451-3810
22
In The
Supreme Court of the United States
October Term, 1983
No.
VIRGIL E. TOMPKINS, Individually and as District Superin-
tendent of Liverpool Central School District, JAMES
JOHNSON, Individually and as Acting Superintendent of
Liverpool Central School District, DENNIS JONES, In-
dividually and as Coordinator of Personnel of Liverpool
Central School District, DR. PAUL DAY, Individually and
as Chief Medical Inspector for the Liverpool Central School
District, F. ROBERT KOLCH, Individually and as Clerk of
the Board of Education of the Liverpool Central School
District, ARTHUR D. LITTLE, BRUCE C. VOGT,
EMILIO CHASSE, DORIS ANN CONNOR, DAVID A.
FILES, MARIE HARTWELL, RICHARD J. HAYKO,
TONI ANNE MORRIS, LLOYD J. SPAFFORD, as In-
dividuals and as Members of the Board of Education of the
Liverpool Central School District, THE BOARD OF EDU-
CATION OF THE LIVERPOOL CENTRAL SCHOOL
DISTRICT, Liverpool, New York, and ARNOLD DET-
TOR, as Hearing Officer appointed pursuant to New York
State Education Law,
Petitioners,
LORRAINE GARGIUL,
Respondent.
23
CERTIFICATE OF SERVICE
I hereby certify that on this __ __. day of July, 1983, three
copies of the Petition for Writ of Certiorari were mailed,
postage prepaid, to Alfred R. Tyminski, Esq., P.O. 181,
Marcellus, New York 13108, Counsel for the Respondent. |
further certify that all parties required to be served have been
served.
Dennis G. O’Hara
O’HARA, LAHM & FELICE
1020 Seventh North Street
Liverpool, New York 13088
Counsel for Petitioners
A-l
GARGIUL v. TOMPKINS 661
Cite as 704 F.2d 661 (1983)
Lorraine GARGIUL, Plaintiff-Appellant,
V.
Virgil E. TOMPKINS, Individually and as District Superinten-
dent of Liverpool Central School District, James Johnson,
Individually and as Acting Superintendent of Liverpool
Central School District,,Dennis Jones, Individually and as
Coordinator of Personnel of Liverpool Central School
District, Dr. Paul Day, Individually and as Chief Medical.
Inspector for the Liverpool Central School District, F.
Robert Kolch, Individually and as Clerk of the Board of
Education of the Liverpool Central School District, Arthur
D. Little, Bruce C. Vojt, Emilio Chasse, Doris Ann Connor,
David A. Files, Marie Hartwell, Richard J. Hayko, Toni
Anne Morris, Lloyd J. Spafford, as Individuals and as
Members of the Board of Education of the Liverpool Central
School District, the Board of Education of the Liverpool
Central School District, Liverpool, New York, and Arnold
Dettor, as Hearing Officer appointed pursuant to New York
State Education Law, Defendants-Appellees.
No. 483, Docket 82-7482.
United States Court of Appeals,
Second Circuit.
Argued Nov. 19, 1982.
Decided March 29, 1983.
Former kindergarten teacher appealed from an order of the
United States District Court for the Northern District of New
York, Roger J. Miner, J., which dismissed her complaint under
section 1983 which alleged violations of her constitutional
rights
A-2
662 704 FEDERAL REPORTER, 2d SERIES
to privacy and to substantive due process of law. The Court of
Appeals, Tenney, Senior District Judge, sitting by designation,
held that: (1) kindergarten teacher’s claim that school board
violated her constitutional rights in dismissing her for in-
competency was barred by collateral estoppel; (2) where kin-
dergarten teacher’s challenge to her suspension on substantive
due process grounds was determined adversely to her in a state
administrative proceeding and where New York state court
never reviewed Commissioner of Education’s legal deter-
mination but merely held that teacher was bound by Commis-
sioner’s decision because she had not challenged it on direct
appeal or joined Commissioner in that proceeding, kinder-
garten teacher was not precluded from challenging her
suspension without pay on substantive due process grounds ina
section 1983 action; and (3) if tenured kindergarten teacher
offered to go at her own expense to any female physician
selected by school board rather than to submit to a physical
examination by male school district physician, and if school
board suspended her without pay for her failure to submit to
examination by school district physician, then board’s action
would be considered arbitrary and violate teacher’s substantive
due process rights.
Affirmed in part, reversed in part and remanded.
Oakes, Circuit Judge, filed separate opinion concurring in
the judgment.
1. Judgment — 828(3.42)
While a section 1983 plaintiff may not relitigate constitu-
tional claims actually determined in a prior state court proceed-
ing, prior state court proceeding does not bar federal court
consideration of constitutional claims not actually litigated and
determined in that proceeding. 42 U.S.C.A. § 1983.
" A-3
2. Judgment — 828(3.41)
Kindergarten teacher’s claim that school board violated her
constitutional rights in dismissing her for incompetency
because that charge was allegedly motivated by her refusal to be
examined by a male school district physician, was barred by
collateral estoppel since state court had found that teacher
would have ber: dismissed for a constitutionally permissible
reason regardless of her refusal to be examined by the male
physician; thus, kindergarten teacher could not relitigate the
basis, and, in consequence, the constitutionality of her
dismissal in her section 1983 action. 42 U.S.C.A. § 1983.
3. Judgment — 828(3.9)
Where kindergarten teacher’s challenge to her suspension on
substantive due process grounds was determined adversely to
her in a state administrative proceeding and where New York
state court never reviewed Commissioner of Education’s legal
determination but merely held that teacher was bound by
Commissioner’s decision because she had not challenged it on
direct appeal or joined Commissioner in that proceeding,
kindergarten teacher was not precluded from challenging her
suspension without pay on substantive due process grounds ina
section 1983 action. 42 U.S.C.A. § 1983.
4. Judgment — 828(3.9)
Even where res judicata effect can attach to state administra-
tive proceedings, doctrine is not mechanically applied as appli-
cation depends on a number of factors, including: (1) effect
which such determinations are accorded by courts of the juris-
diction within which they are made; (2) type of hearing which is
held and the procedures which are followed by the agency; and
(3) intention of administrative body and expectations of the
parties before it on the question of finality.
A-4
5. Constitutional Law — 278.5(3)
If tenured kindergarten teacher, who took an extended sick
leave because of a back ailment, offered to go at her own ex-
pense to any female physician selected by school board rather
than to submit to a physical examination by male school district
physician, and if school board suspended her without pay for
her failure to submit to examination by school district
physician, then board’s action would be considered ar-
A-3
GARGIUL v. TOMPKINS 663
Cite as 704 F.2d 661 (1983)
bitrary and violate teacher’s substantive due process rights.
U.S.C.A. Const. Amend. 14; N.Y. McKinney’s Education Law
§ 913.
Alfred R. Tyminski, Marcellus, N.Y., for plaintiff-
appellant.
Kenneth A. Windstein, O’Hara, Lahm & Felice, Liverpool,
N.Y., for defendants-appellees.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge,
and TENNEY, District Judge.*
TENNEY, Senior District Judge.
Lorraine Gargiul, formerly a tenured schoolteacher with the
Liverpool Central School District, appeals from an order of
summary judgment entered May 17, 1982 by Roger J. Miner,
*Honorable Charles H. Tenney, Senior District Judge of the Southern
District of New York, sitting by designation.
A-5
Judge, of the District Court for the Northern District of New
York. Judge Miner dismissed Gargiul’s § 1983 action against
Virgil E. Tompkins, the District Superintendent of the Liver-
pool Central School District, various officials of the school
district, and the Board of Education and its members, on the
ground that it failed to state a claim upon which relief could be
granted. Gargiul contends that the School Board infringed her
constitutional rights by suspending her, and subsequently by
dismissing her, for refusing to be examined by a male school
district physician. She seeks reinstatement, back pay, and
damages for injury to her reputation. Because we conclude that
Gargiul’s constitutiona! challenge to her dismissal is barred by
collateral estoppel, we affirm the district court’s dismissal of
that claim. However, for the reasons set forth below, we
reverse with respect to the dismissal of Gargiul’s constitutional
challenge to her suspension without pay.
Since this is an appeal from a judgment of dismissal, we
accept as true the facts alleged in the complaint. Kirshner v.
United States, 603 F.2d 234, 236 (2d Cir. 1978), cert. denied,
442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274, cert. denied, 444
U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979); Murray v. City
of Milford, 380 F.2d 468, 470 (2d Cir. 1967).
Background
Appellant Lorraine Gargiul was a tenured kindergarten
teacher in the Liverpool Central School District.! In November
1974 she took an extended sick leave because of a back ailment.
On February 5, 1975 the Superintendent of Schools, Virgil
Tompkins, notified Gargiul that she should report to the school
district physician, Dr. Paul Day, for a physical examination. In
LGargiul had requested assignment to a first grade teaching position for the
1974-75 school year. However, because there were no openings for first
grade teachers at Liverpeol Elementary School, where she wanted to teach,
she continued as a kindergarten teacher.
A-6
response, Gargiul informed Tompkins that she would be able to
return to work on March 17, 1975, and submitted a certificate
from her own physician. Gargiul refused, however, to make an
appointment with Dr. Day. She explained that she had always
gone to women physicians and that it was against her ‘‘creed’’
fo be examined by a male physician. She offered instead to go,
at her own expense, to any woman physician selected by
Tompkins or recommended by a local medical society.
On March 10, 1975, the Board of Education adopted a
resolution requiring Gargiul to be examined by Dr. Day if he
felt that a physical examination was necessary after reviewing
her medical records. The Board suspended Gargiul without pay
effective March 17, 1975 until Dr. Day could determine
whether she was physically able to return to her teaching
position.
It was apparently not until the summer that Dr. Day decided
that an examination would be necessary. Accordingly, in a
letter dated July 30, 1975 James R. Johnson, the Acting
Superintendent of Schools, directed Gargiul to report to Dr.
Day for a physical examination. Gargiul reiterated her refusal
to be examined by a male physi
A-4
664 704 FEDERAL REPORTER, 2d SERIES
cian and repeated her offer to be examined by any woman
doctor at her own expense.
On August 9, 1975, the Board of Education determined that
there was probable cause to issue charges against Gargiul of
insubordination, based on her refusal to be examined by Dr.
Day, and incompetency, based on unfavorable supervisors’
reports and parents’ complaints.
A-7
Gargiul appealed her suspension without pay to the Commis-
sioner of Education pursuant to New York Education Law
§ 310. The Commissioner dismissed her appeal, concluding
that because the Board was empowered by New York
Education Law § 913- to require Gargiul to submit to an
examination by Dr. Day, it had not acted arbitrarily or
capriciously in suspending her. The Commissioner also rejected
Gargiul’s argument that an examination by a male physician
was contrary to her creed. /n re Gargiul I, 15 Educ. Dept. Rep.
360 (1976). In an application to reopen the Commissioner’s
decision, Gargiul argued, inter alia, that requiring her to be
examined by a male physician violated her constitutional right
to privacy. The Commissioner denied her application. He held
that Gargiul, having failed to raise her privacy claim earlier,
was barred from doing so by the doctrine of res judicata. Jn re
Gargiul II, 15 Educ. Dept. Rep. 520 (1976). Gargiul did not
appeal his decision.
Between the time that the Commissioner’s first and second
decisions were handed down, Gargiul commenced an Article 78
proceeding in state court, challenging the Board’s resolution to
suspend her without pay. The Onondaga County Supreme
Court dismissed the proceeding as time barred. The Appellate
Division affirmed on that basis, concluding further that the due
process claim Gargiul had advanced was without merit. Gargiul
v. Board of Education I, 54 A.D.2d 1085, 389 N.Y.S.2d 504
(1976), leave to appeal denied, 41 N.Y.2d 802, 393 N.Y.S.2d
1026, 362 N.E.2d 626 (1977).
2N.Y. Educ. Law § 913 (McKinney 1982-83 Supp.), in effect at the time of
Gargiul’s suspension, provides in pertinent part that:
In order to safeguard the health of children attending the public
schools, the board of education or trustees of any school district . . .
shall be empowered to require any person employed by the board of
education or trustees . . . to submit to a medical examination by a
physician of his choice or school medical inspector for the board of
education or trustees ... in order to determine the physical or
mental capacity of sucn person to perform his duties.
A-8
Meanwhile, a tenure hearing panel was convened and hear-
ings were held concerning the charges against Gargiul. In a
decision dated April 4, 1977, a majority of the panel found
Gargiul guilty of incompetency and recommended that she be
dismissed. The panel also recommended that she be restored to
the payroll retroactive to March 17, 1975, and retained on the
payroll until the termination of the proceedings against her.
In a resolution adopted May 23, 1977, the Board dismissed
Gargiul on the ground of incompetency. The Board concluded
that in view of its decision to dismiss Gargiul, further punish-
ment for insubordination was unwarranted. However, the
Board rejected the hearing panel’s recommendation that
Gargiul be paid for the period of her suspension, because her
suspension without pay was the result of her refusal to be
examined by Dr. Day.
Finally, Gargiul commenced a second Article 78 proceeding
in state court, this time challenging the Board’s resolution of
May 23, 1977. The Appellate Division held that there was
substantial evidence to support Gargiul’s dismissal on the
ground of incompetency, and thus did not reach the constitu-
tional issues concerning the charge of insubordination. Gargiul
v. Board of Education II, 69 A.D.2d 986, 416 N.Y.S.2d 119,
leave io appeal denied, 48 N.Y .2d 606, 421 N.Y.S.2d 1031, 397
N.E.2d 760 (1979). The court also concluded that because
Gargiul had not directly appealed the Commissioner’s decision
or joined him in the proceeding, she was bound by his deter-
mination and could not relitigate the constitutional issues
concerning her suspension without pay. 69 A.D.2d at 986, 416
N.Y.S.2d at 120.
A-9
GARGIUL v. TOMPKINS 665
Cite as 704 F.2d 661 (1983)
Early in the course of the state proceedings, Gargiul com-
menced this action in federal court pursuant to 42 U.S.C.
§ 1983 and its jurisdictional counterparts, 28 U.S.C. §§ 1331
and 1343(3). Her complaint alleges violations of her rights
under the first, fourth, ninth, and fourteenth amendments to
the Constitution. She claims that the Board’s actions im-
permissibly infringed her right to substantive due process of
law, and particularly, her right to privacy. This action,
however, was held in abeyance until the termination of all state
proceedings. After Gargiul was denied leave to appeal the
Appellate Division’s decision in Gargiul v. Board of Education
II, supra, she moved for partial summary judgment in this
action to recover back salary and benefits for the period be-
tween March 17, 1975, the date of her suspension and May 23,
1977, the date of her dismissal. In an opinion filed October 30,
1981 the district court denied her motion, on the ground that
her refusal to be examined by a male physician was ‘‘a mere
predilection against male physicians,’’ not protected by her
constitutional right of privacy. The court also stated that the
Board’s actions were not ‘‘wholly unreasonable.”’ Defendants
then moved for summary judgment on the ground that the
complaint fails to state a claim upon which relief may be
granted. The district court granted defendants’ motion and
dismissed the complaint. It is from this dismissal that Gargiul
now appeals.
Discussion
We consider at the outset whether Gargiul’s claims are
barred by the earlier state proceedings under principles of res
judicata and collateral estoppel. The traditional rule of res
judicata is that a final judgment on the merits of an action
precludes the parties from relitigating issues actually raised and
A-10
determined in that action, as well as issues that could have
been, but were not, raised and determined in that action. A//en
v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d
308 (1980) (citing Cromwell v. County of Sac, 94 U.S. 351, 352,
24 L.Ed. 195 (1877)); Saylor v. Lindsley, 391 F.2d 965, 968 (2d
Cir. 1968). The traditional rule of collateral estoppel precludes
a party from relitigating issues already litigated and determined
adversely to him in a prior action, where the adverse deter-
mination was necessary to the judgment in that action. Allen v.
McCurry, supra, 449 U.S. at 94, 101 S.Ct. at 414 (citing
Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970,
973, 59 L.Ed.2d 210 (1979)).
[1] Because 28 U.S.C. § 17383 requires a federal court to
give a state court judgment ‘‘the same force and effect as it has
in the state in which it was rendered,’’ Mitchell v. National
Broadcasting Co., 553 F.2d 265, 274 (2d Cir. 1977) (citations
omitted), we would ordinarily apply the traditional rule of res
judicata — the rule applied by New York courts, Winters v.
Lavine, 574 F.2d 46. 5§-50 (2d Cir. 1978) (collecting cases) —
to determine whether Gargiul’s claims are precluded. However,
this court for policy reasons had declined, in civil rights cases,
to apply the ‘‘traditional Draconian formulation of the rule of
328 U.S.C. § 1738 provides:
The Acts of the legislature of any State, Territory, or Possession
of the United States, or copies thereof, shall be authenticated by
affixing the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such
State, Territory or Possession, or copies thereof, shall be proved or
admitted in other courts within the United States and its Territories
and Possessions by the attestation of the clerk and seal of the court
annexed, if a seal exists, together with a certificate of a judge of the
court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so
authenticated, shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as they
have by law or usage in the courts of such State, Territory or
Possession from which they are taken.
A-11
res judicata,”’ id. at 56, despite the Supreme Court’s suggestion
that the principles of res judicata may be fully applicable in
§ 1983 actions, Allen v. McCurry, supra, 449 U.S. at 96-97, 101
S.Ct. at 415-16. Thus, while a § 1983 plaintiff may not
relitigate constitutional claims actually determined in a prior
state court proceeding, Allen v. McCurry, supra; Win-
A-6
666 704 FEDERAL REPORTER, 2d SERIES
ters v. Lavine, supra, we have held that a prior state court
proceeding does not bar federal court consideration of constitu-
tional claims not actually litigated and determined in that
proceeding. Ornstein v. Regan, 574 F.2d 115, 117 (2d
Cir. 1978); Newman v. Board of Education, 508 F.2d 277, 278
(2d Cir.), cert. denied, 420 U.S. 1004, 95 S.Ct. 1447, 43
L.Ed.2d 762 (1975); Lombard v. Board of Education, 502 F.2d
631, 635-37 (1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400,
43 L.Ed.2d 656 (1975). See Winters v. Lavine, supra, 574 F.2d
at 57 (res judicata, applied in this context, ‘‘displays the
predominant characteristic of the rule of collateral estoppel’’).
In this case, Gargiul claims that the Board violated her
constitutional rights by suspending her without pay for refusing
to be examined by Dr. Day. She also claims that the Board
violated her constitutional rights in dismissing her for in-
competency, because the charge of incompetency was
motivated by her refusal to be examined by Dr. Day.
{2} Gargiul’s latter claim is clearly barred by collateral
estoppel. She raises here the same argument that she raised
before the Appellate Division in Gargiul v. Board of Education
II, supra. The Appellate Division concluded that there was
substantial evidence to support her dismissal on the in-
A-12
dependent ground of incompetency. 69 A.D.2d at 986, 416
N.Y.S.2d at 120. The court found, essentially, that Gargiul
would have been dismissed for a constitutionally permissible
reason regardless of her refusal to be examined by Dr. Day.
Therefore, Gargiul may not relitigate the basis, and, in con-
sequence, the constitutionality of her dismissal. See Winters v.
Lavine, supra, 574 F.2d at 63-66.
{3} Gargiul’s challenge to the constitutionality of her
suspension without pay stands on somewhat different footing,
however. In neither judicial proceeding did the state court
address the merits of her substantive due process claims. In
Gargiul v. Board of Education I, supra, Gargiul argued that the
due process clause of the fourteenth amendment protected her,
a tenured teacher, from suspension without pay prior to a final
determination of the charges against her. The Appellate
Division rejected Gargiul’s claim that her due process rights
had been violated. 54 A.D.2d at 1087, 389 N.Y.S.2d at 506.
While that decision clearly bars Gargiul from relitigating her
claim that her suspension without pay violated her procedural
due process rights, it is not dispositive of her substantive due
process claims, which she did not raise in that proceeding.
Gargiul did attempt to raise her substantive due process
claims in Gargiul v. Board of Education II, supra. The Ap-
pellate Division upheld her suspension without pay on statutory
grounds. However, the court concluded that Gargiul’s failure
to appeal the Commissioner of Education’s determination of
the constitutionality of her suspension or to join the Commis-
sioner as a party precluded her from relitigating the constitu-
tionality of her suspension without pay. 69 A.D.2d at 986, 416
N.Y.S.2d at 120. Thus, in neither case did the state court
determine the merits of Gargiul’s substantive due process
claims.
The decision of the Commissioner of Education, by which
the state court held Gargiul bound, rejected most of Gargiul’s |
A-13
constitutional arguments on their merits. /n re Gargiul I, supra.
However, the Commissioner never addressed the merits of
Gargiul’s claim that her actions were protected by her constitu-
tional right of privacy. She did not raise her privacy claim at the
hearing before the Commissioner, and when she advanced it as
a basis for reopening his decision, he held that the claim was
barred under the doctrine of res judicata. /n re Gargiul I/,
supra. Under the rationale of Lombard v. Board of Education,
supra, and its progeny, Gargiul’s privacy claim — never ac-
tually litigated and determined — should not be precluded.
The remaining question, then, is whether this adverse ad-
ministrative determination of Gargiul’s other constitutional
claims precludes their relitigation in federal court. In Mitchell
v. National Broadcasting Co., supra, we drew a distinction be-
tween the res
A-7
GARGIUL v. TOMPKINS 667
Cite as 704 F.2d 661 (1983)
judicata effect accorded to state judicial proceedings and that
accorded to state administrative proceedings. We held that res
judicata attaches when a claimant ‘‘crosses the line between
state agency and state judicial proceedings,’’ and pursues his
claim ‘‘to a final judicial determination.’’ 553 F.2d at 276; see
Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 n. 1 (2d
Cir. 1978). Although Mitchell involved a § 1981 action,
considerations that support this distinction — particularly, the
desirability of having state administrative agencies attempt
conciliation of claims before a lawsuit is filed in federal court
— are no less valid here.
The facts of this case differ significantly from those of
A-14
Mitchell, however. In Mitchell, we gave preclusive effect to a
state agency determination that had been directly appealed by
the plaintiff and affirmed by the state court. We pointed out
that
[i]t is reasonable to question whether . . . a legal deter-
mination ... made only by administrative officials,
should bar consideration of the complaint by a federal
court. But in this case, five judges of New York State’s
second highest court reviewed the agency’s legal finding.
553 F.2d at 276. Gargiul, on the other hand, never directly
appealed the adverse administrative determination. And,
unlike the state court in Mitchell, the state court here never
reviewed the Commissioner’s legal determination. The state
court merely held that Gargiul was bound by the Commis-
sioner’s decision, because she had not challenged it on direct
appeal or joined the Commissioner in that proceeding. Under
these circumstances, Gargiul cannot be said to have ‘‘crossed
the line’’ at which res judicata attaches.
[4] Furthermore, even where res judicata effect can attach
to state administrative proceedings, the doctrine is not
mechanically applied. Its application depends on a number of
factors, including
(1) the effect which such determinations are accorded
by the courts of the jurisdiction within which they are
made; (2) the type of hearing which is held and the
procedures which are followed by the agency; and (3) the
intention of the administrative body and the ex-
pectations of the parties before it on the question of
finality. See Restatement, Judgments § 4 (1942); ALI,
Restatement 2d, Conflicts of Laws § 92, and Reporter’s
Note, at 341 (P.O.D., Pt. I 1967).
Mitchell v. National Broadcasting Co., supra, 553 F.2d at 269
(quoting Taylor v. New York City Transit Authority, 309
F.Supp. 785, 791 (E.D.N.Y.), aff'd, 433 F.2d 665 (2d
Cir. 1970)). Although New York courts would — and did —
—— - > ~~ ——
A-15
accord the Commissioner’s unappealed decision preclusive
effect, other factors would argue against our following suit. In
Plano v. Baker, 504 F.2d 595 (2d Cir. 1974), we noted that a
hearing before the Commissioner of Education is little more
than a round table discussion, and we discussed its procedural
inadequacies, which include the inability to examine or cross-
examine witnesses. /d. at 598 & n.5. These procedural
inadequacies, which led us in Plano to conclude that the § 1983
plaintiff was not required to exhaust his administrative remedy
of appeal to the Commissioner, argue against giving his deter-
mination preclusive effect. More significant, however, is that
here, as in Plano, the constitutional issues raised ‘‘lie within the
expertise of courts, not the expertise of administrators.’’ Jd. at
599 (footnote omitted). Finally, in view of the nature of
Gargiul’s claim and her employment status at the time of her
appeal to the Commissioner, it is doubtful that either party
expected that the Commissioner would have the final word on
Gargiul’s constitutional claims. Accordingly, we hold that
Gargiul is not precluded from challenging her suspension
without pay on substantive due process grounds.
[5] We turn then to the merits of Gargiul’s claim. The
fourteenth amendment prevents the state from depriving any
person of liberty or property without due process of law.
Protected property interests are defined not by the Con-
stitution, but by ‘‘existing rules or understandings that stem
from an independent source such as state law... .’’ Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33
L.Ed.2d
A-16
668 704 FEDERAL REPORTER, 2d SERIES
548 (1972). Gargiul’s position as a tenured teacher was in-
disputably a property interest protected by the Fourteenth
amendment. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694,
33 L.Ed.2d 570 (1972). Gargiul was entitled, under New York
law, to certain substantive and procedural safeguards against
deprivation of that interest. See N.Y. Educ. Law §§ 3012,
3020, 3020-a (McKinney 1981). Accordingly, principles of
substantive due process require that the Board’s actions im-
pairing that interest have a rational relation to a proper govern-
mental purpose. See Koch v. Yunich, 533 F.2d 80, 84 (2d Cir.
1976). If Gargiul’s lengthy suspension without pay resulted
from an arbitrary or capricious exercise of the Board’s power,
-her due process rights were violated. See Brenna v. Southern
Colorado State College, 589 F.2d 475 (10th Cir. 1978); Simard
v. Boar of Education, 473 F.2d 988, 994 (2d Cir. 1973).
Appel ant maintains that a strict standard of constitutional
scrutiny should be applied. She argues that the physician-
patient relationship is one of particular intimacy; that her
request for an examination by a physician of the same sex was
protected by her fundamental, constitutional right to privacy;
and that the Board’s directive interfering with that right can be
justified only by a compelling state interest. We recognize that,
in view of the intimate nature of a physical examination by a
physician, Gargiul’s preference for a physician of the same sex
must be considered more than a ‘‘mere personal predilection.”’
Consequently, the nature of her preference is necessarily ac-
corded some weight in our determination of the reasonableness
of the Board’s actions. However, we find it unnecessary to
determine whether there is a ‘* ‘fundamental’ ’’ right to be
examined by a physician of the same sex ‘‘ ‘implicit in the
concept of ordered liberty.’ ’’ Roe v. Wade, 410 U.S. 113, 152,
93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973) (quoting Palko v.
Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed.
288 (1937)), that may be infringed only with compelling
A-17
justification. We conclude, in the particular circumstances of
this case, that the Board’s actions with respect to Gargiul were
so unreasonable as to be arbitrary.
Appellees maintain that the Board’s directive was an entirely
reasonable attempt to safeguard the health and welfare of
Gargiul’s students. There can be no dispute that safeguarding
the health and welfare of students is a legitimate governmental
objective, and that requiring a medical appraisal of a teacher’s
physical or mental fitness is rationally related to that objective.
Nevertheless, we are convinced that in this instance the Board
acted unreasonably in insisting that the medical appraisal be
made by Dr. Day. Gargiul notified the Board at the outset that
she would not be examined by a male physician. She suggested
two alternatives, either of which was sanctioned by New York
Education Law § 913. She offered to provide certification of
her medical condition from her own physician, or to be
examined, at her own expense, by any female physician selected
by the Board, or recommended by a loca! medical society. Thus
the Board’s interest in getting an independent medical appraisal
of Gargiul’s condition rather than rely on the reports of
Gargiul’s own physician could have been served at least as well
had it directed Gargiul to a specialist who was female rather
than to Dr. Day.* Appellees argue further that the Board’s
insistence that Gargiul be examined by Day was reasonable
because the Board has an interest in requiring teachers to be
examined by one ‘“‘particularly qualified expert’? who un-
derstands the job-related physical requirements which teachers
must meet. We find this argument to be without merit, for we
are not persuaded that any particular expertise is necessary to
understand the physical requirements of a kindergarten or first-
grade teacher.
4The Board’s refusal to permit Gargiul to be examined by a female doctor
rather than by its own male physician is even more unreasonable in light of
the fact that the Board employs far more female than male teachers.
Statistics submitted by counsel for the appellees indicate that in January
1975, 414 of the 636 teachers employed by the Board were women.
ot A
A-18
GARGIUL v. TOMPKINS 669
Cite as 704 F.2d 661 (1983)
In view of Gargiul’s offer to go at her own expense to any
female physician selected by the Board, rather than to submit to
a physical examination by the school district physician, who
was male, the Board’s actions with respect to Gargiul must be
considered arbitrary. Therefore, we conclude that Gargiul’s
complaint does state a claim against defendants for violation of
her substantive due process rights in connection with her
suspension without pay.°
Accordingly, we reverse and remand the judgment of
dismissal with respect to this claim. However, we affirm on
collateral estoppel grounds the dismissal of Gargiul’s constitu-
tional claims concerning her dismissal.
OAKES, Circuit Judge (concurring in the judgment):
While I concur with Judge Tenney in the result his opinion
reaches, I do so on a different ground. I would not reach the
substantive due process question but would hold that the
plaintiff's complaint that she was suspended for refusal to be
examined by a male doctor alleges a violation of her con-
stitutional right to privacy, a right I believe is part of a larger
SWe note, however, that Gargiul may not be entitled to recover for the entire
period of her suspension. In Kurzius v. Board of Education, 8\ A.D.2d
827, 438 N.Y.S.2d 824, appeal discontinued, 54 N.Y .2d 1027 (1981), the
Appellate Division held that a teacher whose return to classroom duties was
delayed by her own failure to have a previously requested report from her
personal physician promptly transmitted to the school district physician
was not entitled to back pay. Kurzius suggests that Gargiul is not entitled to
be paid for any period during which her own failure to have her medical
records sent promptly to Dr. Day delayed his decision concerning her
fitness to return to work, and the necessity for a personal examination.
A-19
constitutional right of ‘‘personhood.’’! The right of privacy,
first recognized by the Supreme Court in Griswold v. Con-
necticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),
has been fleshed out to some extent on an ad hoc basis, | N.
Dorsen, P. Bender, & B. Neuborne, Political and Civil Rights
in the United States 1008-23 (1976), with the result that its
borders are not well defined. See Henkin, Privacy and
Autonomy, 74 Colum.L.Rev. 1410, 1430 (1974). But while the
contours of this protected sphere can be defined only with time
and trial, the Constitution as we prize it is unthinkable without
a right of privacy — a right to be let alone — and its entail-
ments. And all our powers of privacy, whether they be our
Fourth Amendment control over our property, control over the
informational portrait of us available to the government and
others, see, e.g., Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51
L.Ed.2d 64 (1977), or control over the thoughts we may have,
see, e.g., Sobell v. Reed, 327 F.Supp. 1294, 1305 (S.D.N.Y.
1971), doubtless have their ©. igin in experience and in law in
the person’s control over her own body.
This right — to the dignity of one’s bodily integrity — is as
old as the common law and has been mentioned as being in-
corporated in the right of personal security identified in the
39th Article of Magna Charta. See Davis v. Hubbard, 506
F.Supp. 915, 931 (N.D. Ohio 1980). And the doctrine of in-
formed consent, see generally, W. Prosser, The Law of Torts
§ 18, at 104-05 (4th ed. 1971), is an entire field of tort law that
is related to the right to bodily integrity in the doctor’s office.?
1 See Craven, Personhood: The Right to be Let Alone, 76 Duke L.J. 699
(1976). There are, of course, those who argue that privacy and personhood
are merely a species of substantive due process. See Monaghan, Our
Perfect Constitution, 56 N.Y .U.L. Rev. 353, 354 (1981),
2One supposes that bodily integrity in a medical sense is involved at the -oot
of the underlying rationale of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L..Ed.2d 147 (1973). See also Hawaii Psychiatric Society v. Ariyoshi, 481
F.Supp. 1028, 1043-45 (D. Hawaii 1979).
A-20
Although compulsory vaccinations, Jacobson v. Massa-
chusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), com-
pelled blood tests, Schmerber v. California, 384 U.S. 757, 86
S.Ct. 1826, 16 L.Ed.2d 908 (1966), and rectal cavity searches,
Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert.
denied, 386 U.S. 945, 87 S.Ct. 980, 17
A-10
670 704 FEDERAL REPORTER, 2d SERIES
L.Ed.2d 875 (1967), have from time to time been upheld where
there is clear necessity, procedural regularity, and little or no
physical risk, see L. Tribe, American Constitutional Law 914-
15 (1978), ‘tin each case . . . [the] government’s burden was to
provide more than minimal justification for its action.’’ /d. at
915.
Yet, even in prison, the social context where the govern-
ment'’s prerogatives are most routinely upheld and the in-
dividuai’s liberties and decencies most routinely neglected, we
have assumed that inmates have a right not to be viewed un-
clothed by guards of the opposite sex. See Forts v. Ward, 471
F.Supp. 1095 (S.D.N.Y. 1978), rev’d on other grounds, 621
F.2d 1210, 1214 & n. 6 (2d Cir. 1980) (female inmates). Hudson
v. Goodlander, 494 F.Supp. 890, 893 (D.Md. 1980) (male
inmates). A fortiori, complainants at a police station have been
held to enjoy bodily privacy rights. York v. Story, 324 F.2d
450, 455 (9th Cir. 1963), cert. denied, 376 U.S. 939, 84 S.Ct.
794, 11 L.Ed.2d 659 (1964). Here, the State’s reasons for
disregarding Gargiul’s rights are far less persuasive than in
these other contexts, and I fail to see how a right shared by
prisoners and arrestees cannot be enjoyed by a schoolteacher. It
is true that the Supreme Court has never held whether a person
has a constitutionally protected right to decline a physical
A-21
examination by a member of the opposite sex. But the Court
has spoken broadly of the ‘‘protected intimate relationship”’
which ‘‘extends to the doctor’s office.’ See Paris Adult
Theatre I v. Slaton, 413 U.S. 49, 66 n. 13, 93 S.Ct. 2628. 2640
n. 13, 37 L.Ed.2d 446 (1973). Moreover, there would be naked
irony in the Court’s protection of those who disrobe publicly to
express themselves, see Schad v. Borough of Mount Ephraim,
452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981),
alongside a refusal to protect those who express a desire to keep
their clothes on. Even the Second Circuit’s decision in East
Hartford Education Association v. Board of Education, 562
F.2d 838, 856 (2d Cir. 1977) (en banc), permitting a school
board to force teachers to adhere to a dress code, said nothing
of a power to compel teachers to submit to examinations by
physicians of the opposite sex.
Here the State’s interests in a teacher’s physical well-being
primarily involve safeguarding the health and welfare of
students, which can readily be served by an examination by a
physician of the teacher’s own sex. Uniform or consistent
application of standards might be a reason for having
examination of all teachers by one physician but surely the
standards of the medical profession are sufficiently uniform
that this interest does not outweigh the individual teacher's
above-minimal interest in bodily integrity. And, interestingly,
the alternative solutions suggested by appellant Gargiul would,
had the Board been flexible, have satisfied the statute under its
terms.
All of this is not, of course, to say that a teacher has a right
to examination by a physician of choice —- only an option to
examination by a physician who is of the same sex as the
teacher and who is otherwise competent and apt, where bodily
integrity is threatened by the very act of examination. If this
gives too much recognition to individual sensibilities or sen-
sitivities, | would err on that side rather than on the side of an
A-22
all powerful state. See Oakes, The Proper Role of the Federal
Courts in Enforcing the Bill of Rights, 54 N.Y.U.L. Rev. 911,
922, 931-32 (1979).
A-ll
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court-
house, in the City of New York, on the ninth day of May, one
thousand nine hundred and eighty-three.
(SEAL)
LORRAINE GARGUIL,
Plaintiff-Appellant,
v.
VIRGIL E. TOMPKINS, ef ai.,
Defendants-Appellees.
No. 82-7482
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the defendant-appellee, Virgil E. Tompkins,
Upon consideration by the panel that heard the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
A-23
service and to any other judge on the panel that heard the
appeal and that no such judge has requested that a vote be
taken thereon.
A. Daniel Fusaro, Clerk
by
/s/ FRANCIS X. GINDHART,
Chief Deputy Clerk
A-12
GARGIUL v. TOMPKINS 795
Cite as 525 F.Supp. 795 (1981)
Lorraine GARGIUL, Plaintiff,
v.
Virgil E. TOMPKINS, Individually and as District Superinten-
dent of Liverpool Central School District, James Johnson,
Individually and as Acting Superintendent of Liverpool
Central School District, Dennis Jones, Individually and as
Coordinator of Personnel of Liverpool Central School
District, Dr. Paul A. Day, Individually and as Chief Medical
Inspector for the Liverpool Central School District, F.
Robert Kolch, Individually and as Clerk of the Board of
Education of the Liverpool Central School District, Arthur
D. Little, Bruce C. Vojt, Emilio Chasse, Doris Ann Connor,
David A. Files, Marie Hartwell, Richard J. Jayko, Toni
Anne Morris, Lloyd J. Spafford, as Individuals and as
Members of the Board of Education of the Liverpool Central
School District, the Board of Education of the Liverpool
A-24 v
Central School District, Liverpool, New York, and Arnold
Dettor, as Hearing Officer appointed pursuant to the New
York State Education Law, Defendants.
No. 76-CV-233.
United States District Court,
N. D. New York.
Oct. 30, 1981.
Female kindergarten teacher brought civil rights action
arising out of her dismissal for refusal to submit to physical
examination by male physician employed by school district.
The District Court, Miner, J., held that teacher did not have
constitutional right of privacy to refuse to submit to required
physical examination by district-employed male physician since
teacher’s alleged interest in not being examined by male
physician was neither fundamental nor implicit in concept of
ordered liberty, but was mere personal predilection against
male physicians.
Teacher’s motion for partial summary judgment denied.
A-13
796 525 FEDERAL SUPPLEMENT
1. Federal Civil Procedure — 2544
Plaintiff which moves for summary judgment has dual
burden of demonstrating that no genuine issue of material fact
exists and that she is entitled to judgment as matter of law.
Fed.Rules Civ.Proc. Rule 56(a, b), 28 U.S.C.A.
A-25
2. Constitutional Law — 82(11)
Schools — 127
Female kindergarten teacher did not have constitutional right
of privacy to refuse to submit to required school district
physical examination by district-employed male physician since
teacher’s alleged interest in not being examined by male
physician was neither fundamental nor implicit in concept of
ordered liberty, but was mere personal predilection against
male physicians. 42 U.S.C.A. § 1983; N.Y.Education Law
§§ 913, 3020-a; U.S.C.A.Const. Amends. 1, 3, 4, 9, 14.
3. Constitutional Law — 82(7)
Right to personal privacy is fundamental only when it is of
such character that it cannot be denied without violating the
fundamental principles of liberty and justice which lie at base
of civil and political institutions; it must not be merely a
personal opinion or predilection. U.S.C.A.Const. Amends. 1,
3,4, 9, 14.
Bernard F. Ashe, Albany, N.Y., for plaintiff; Rocco A.
Solimando, J. Michael Eadry, Albany, N.Y., of counsel.
O’Hara & O’Hara, Liverpool, N.Y., for defendants; Edward
A. O’Hara, III, Liverpool, N.Y., of counsel.
MEMORANDUM-DECISION
AND ORDER
MINER, District Judge.
This civil rights action arises out of the dismissal of plaintiff,
for insubordination and incompetency, from her position as a
tenured school teacher in the Liverpool Central School District.
Jurisdiction is founded upon the provisions of 28 U.S.C. secs.
A-26
133! and 1343 and 42 U.S.C. sec. 1983. Before the Court is
plaintiff's motion for partial summary judgment awarding
**. . . all back salary and benefits due her from the time of her
suspension for refusal to take the physical examination by a
male physician on March 17, 1975 until the date of her
dismissal by the defendant Board on May 24, 1977.”’ (par. 25,
Affidavit of J. Michael Eadry in support of motion.)
In September of 1974 plaintiff commenced to perform her
duties as a kindergarten teacher for the 1974-75 school year. On
November 27, 1974, she took a sick leave from her employment
and thereafter informed school district officials that she would
be able to return to her employment on March 17, 1975.
On February 5, 1975, the Superintendent of Schools notified
plaintiff that, pursuant to both the teachers’ collective
bargaining agreement and sec. 913 of New York’s Education
Law, she should report to the chief school district physician,
Dr. Paul Day, for physical examination. By further correspon-
dence, the school district sought to obtain plaintiff’s private
medical records for evaluation by Dr. Day.
On March 10, 1975, the Board of Education adopted a
resolution requiring plaintiff to submit to a_ physical
examination by the school district physician, should the
physician determine a physical examination was necessary after
reviewing the plaintiff’s medical records. After the medical
records were supplied, Dr. Day determined that an examination
would be necessary, and the plaintiff was so informed.
However, the physician did not decide whether a ‘‘hands on’’
examination would be required, reserving decision on that
question until plaintiff reported to his office for the initial
meeting. It is uncontroverted that plaintiff never appeared at
the office of Dr. Day and that she refused to be examined by
him.
A-27
Shortly after March 10, 1975, the District placed plaintiff on
a leave of absence without pay until such time as the questions
A-14
GARGIUL v. TOMPKINS 797
Cite as 525 F.Supp. 795 (1981)
regarding her medical status were clarified. On September 5,
1975, plaintiff was charged by defendant Johnson, Acting
Superintendent of Schools, with incompetency as a teacher and
with insubordination for her refusal to be examined by Dr.
Day. On May 24, 1977, after a hearing pursuant to sec. 3020-a
of New York’s Education Law, plaintiff was dismissed on
grounds of insubordination and incompetency. In its deter-
mination, the Board of Education denied an allowance of back
pay from March 17, 1975 on the ground that the suspension
was due solely to plaintiff’s refusal to be examined by the
district physician and was not related to the later charges of
incompetency. An appeal from the decision of the School
Board was dismissed by the Commissioner of Education on
February 24, 1976.
Plaintiff Gargiul claims that she did not refuse to be
examined by a physician. She asserts that defendants demanded
that she be examined by a male physician, Dr. Day, and that an
examination by a male physician violated her sense of privacy
and was anathema to her private creed. Plaintiff is seeking
partial summary judgment on the issue of back pay and
benefits claimed to be due to her from March 17, 1975 until
May 24, 1977. Plaintiff contends that her suspension without
pay, based on her refusal to submit to an examination by a
male physician, is a violation of privacy rights under the first,
” %;
ree |
A-28
fourth, ninth and fourteenth amendments to the U.S. Con-
stitution. Plaintiff further contends that there are no disputes
of fact concerning plaintiff's suspension without pay.
IV.
{1} Subdivisions (a) and (b) of Rule 56 Fed.R.Civ.P.
authorize a motion for summary judgment ‘‘upon all or any
part’’ of aclaim by a claimant or a defending party. See Wright
and Miller, Federal Practice and Procedure, sec. 2736.
However, summary judgment is a drastic remedy which should
be granted only when it is clear that the requirements of Rule 56
of the Fed.R.Civ.P. have been satisfied. United States v.
Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976). ‘‘{S}ummary
judgment is to be used not as a substitute for trial, but only
when ‘... it is quite clear what the truth is [and] that no
genuine issues remain for trial.’ Sartor v. Arkansas Natural
Gas Corp., 321 U.S. 620, 627 [64 S.Ct. 724, 729, 88 L.Ed. 967]
(1944).’’ Pfizer, Inc. v. International Rectifier Corp., 538 F.2d
180, 184-85 (8th Cir. 1976), cert. denied, 429 U.S. 1040, 97
S.Ct. 738, 50 L.Ed.2d 751 (1977). Indeed, the reviewing court
must accept as true factual statements in the opposing party’s
affidavits; draw all permissible inferences in that party’s favor,
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438
(2d Cir. 1980), see also Hill v. A-T-O, Inc., 535 F.2d 1349 (2d
Cir. 1976); and resolve any doubts in favor of the latter,
American Mfrs. Mutual Ins. Co. v. American Broadcasting-
Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967). In
short, plaintiff here has the dual burden of demonstrating that
no genuine issue of material fact exists and that she is entitled
to judgment as a matter of law. Adickes v. S. H. Kress & Co.,
389 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Plaintiff's
motion for summary judgment niust be denied because she has
failed to establish that she is entitled to judgment as a matter of
law.
A-29
Vv.
{2} The crux of plaintiff's argument is that plaintiff's
constitutional right to privacy has been impermissibly violated
by the defendants. While there is no ‘‘right to privacy’’ found
in any specific guarantee of the Constitution, the Supreme
Court has recognized that ‘‘zones of privacy,’’ created by
specific constitutional guarantees, impose limits upon govern-
ment power. See Roe v. Wade, 410 U.S. 113, 153-155, 93 S.Ct.
705, 726-28, 35 L.Ed.2d 147 (1973), see also Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
(1965) (establishing that the right to privacy emanates from the
**penumbras’’ of the first, third, fourth and ninth amendments
to the Constitution); see, e.g., Katz v. United States, 389 U.S.
A-15
798 525 FEDERAL SUPPLEMENT
347, 351, 88 S.Cr. 507, 511, 19 L.Ed.2d 576 (1967), Schmerber
v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966). Moreover, the Supreme Court in Roe v. Wade, 410 U.S.
113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), held that the consti-
tutional protection of privacy was founded in the fourteenth
amendment’s due process guarantee of liberty. In Roe the
Court pointed out that the personal rights found in this
guarantee must be limited to those which are ‘‘fundamental’’ or
‘implicit in the concept of ordered liberty’’ as described in
Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82
L.Ed. 288 (1937). The activities detailed as being within this
privacy definition are matters relating to ‘*... marriage,
procreation, contraception, family relationship and child rear-
ing and education. . . . [In] these areas it has been held that
there are limitations on the state’s power to substantively
regulate conduct.’’ Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct.
A-30
1155, 47 L.Ed.2d 405 (1976). The real question here is whether
there exists a constitutional right for a female tenured teacher
- to refuse to submit to a required school district physical
examination by a district-employed male physician. There does
not. Plaintiff Gargiul’s alleged interest is neither fundamental
nor implicit in the concept of ordered liberty. It is a mere
personal predilection against male physicians.
{3] A right to personal privacy is ‘‘fundamental only when
it is of such character that it cannot be denied without violating
the fundamental principles of liberty and justice which lie at the
base of civil and political institutions.’’ Griswold, supra, 381
U.S. at 493, 85 S.Ct. at 1686. It must not be a ‘‘personal
opinion or predilection.’’ Roe v. Wade, supra, 410 U.S. at 152,
93 S.Ct. at 726. Plaintiff does not allege that the School
District’s order of a physical examination by a male physician
violates some ‘‘... marriage, procreation, contraception,
family relationship[s] . . . or education interest .. .”’ Paul v.
Davis, supra, 424 U.S. at 713, 96 S.Ct. at 1166. Instead
plaintiff argues that an examination by a male physician would
violate her sense of privacy and personal creed. Her argument
is based on personal preference, not upon a well recognized
principle of liberty and justice.'! There simply is no constitu-
IThe Supreme Court has recognized that the breadth of constitutional
protection afforded the public is much greater than the protection afforded
public servants. See, e.g., Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440,
47 L.Ed.2d 708 (1976) (where police departments were allowed to
promulgate regulations governing the appearance of its officers); cf.
Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39
L.Ed.2d $2 (1974) (where the court struck down school regulations which
required mandatory commencement of maternity leave during carly
months of pregnancy; however, the court noted that certain reasonable
regulations are enforceable, including reliance on a school district
physician to determine the ability of a teacher to teach during early months
of preg ancy). Along these lines it is not wholly unreasonable for the
School District to order an employee to consult a physician — even a male
one — to determi: ‘ve statvs of a disability claim under New York's
Education Law, sec. 913. See Brodsky v. Board of Education of Brent-
wood, 64 A.D.2d 611, 406 N.Y.S.2d 533 (2nd Dept. 1978) for an inter-
pretation of sec. 913 constitutionality.
A-31
tionally recognized right to refuse a medical examination be-
cause the physician is a male.
In light of the foregoing, plaintiff's motion for partial
summary judgment hereby is denied.
It is so Ordered.
LORRAINE GARGIUL,
Plaintiff,
-against-
VIRGIL E. TOMPKINS, Individually and as District Superin-
tendent of Liverpool! Central School District, JAMES
JOHNSON, Individually and as Acting Superintendent of
Liverpool Central School District, DENNIS JONES, In-
dividually and as Coordinator of Personnel of Liverpool
Central School District, DR. PAUL A. DAY, Individually
and as Chief Medical Inspector for the Liverpool Central
School District, F. ROBERT KOLCH, Individually and as
Clerk of the Board of Education of the Liverpool Central
School District, ARTHUR D. LITTLE, BRUCE C. VOJT,
EMILIO CHASSE, DORIS ANN CONNOR, DAVID A.
FILES, MARIE HARTWELL, RICHARD J. HAYKO,
TONI ANNE MORRIS, LLOYD J. SPAFFORD, as In-
dividuals and as Members of the Board of Education of the
Liverpool Central School District, THE BOARD OF
EDUCATION OF THE LIVERPOOL CENTRAL
SCHOOL DISTRICT, Liverpool, New York, and ARNOLD
DETTOR, as Hearing Office appointed pursuant to New
York State Education Law,
Defendants.
A-32
FINAL ORDER
Index No. 76-CV-233
Defendants having moved for Summary Ju“*a@ment in this
cause, pursuant to Rule 56(b) of the Federal Rules of Civil
Procedure, and
The said motion having been brought on for argument at a
Term of this Court held at the United States Courthouse in the
City of Albany, New York on the 10th day of May, 1982,
O’Hara, Lahm & Felice, Kenneth A. Windstein, Esq. of
Counsel, appearing on behalf of the defendants in support of
the motion and Joseph F. Falco, Esq. appearing on behalf of
the plaintiff in opposition thereto,
Now, upon reading and filing the Notice of Motion for
Summary Judgment, the Supporting Affidavit of Dennis G.
O’ Hara, sworn to on the 2nd day of March 1982, with exhibits
annexed, the Memorandum of Law in Support of the Motion,
dated April 26, 1982, the Memorandum of Law in Opposition
to the Motion, dated April 21, 1982, and the other records,
files, and proceedings in this action, and due deliberation
having been had thereon,
Now, upon the motion of O’Hara, Lahm & Felice, Kenneth
A. Windstein, Esq., of Counsel, attorneys for the defendants,
it is
ORDERED that the defendants’ motion for summary judg-
ment be, and hereby is, granted on the ground that the plaintiff
has failed to put forth a claim upon which relief can be granted
under Title 42, Section 1983 of the United States Code, and it is
further
ORDERED that this action be, and hereby is dismissed upon
the merits.
A-33
ENTER:
Dated May 17, 1982.
Albany, NY
Submitted By:
/s/ KENNETH A. WINDSTEIN, ESQ.
O’Hara, Lahm & Felice
1020 Seventh North Street
Liverpool, New York 13088
Telephone: (315) 451-3810
/s/ ROGER J. MINER
U.S. District Judge
**I certify that
This is a true copy
Attest May 17, 1982
J.R. TULLY
Clerk, U.S. District Court
By: Frank S. Haker (???)
Deputy
54 A.D.2d 1085
Application of Lorraine GARGUIL,
Appellant,
v.
BOARD OF EDUCATION OF ‘the
LIVERPOOL CENTRAL SCHOOL
DISTRICT, Respondent.
Supreme Court, Appellate Division,
Fourth Department.
Nov. 5, 1976.
A-34
Tenured teacher who had been suspended without pay
because of her refusal to submit to a physical examination by
the school district medical inspector brought proceeding
against the board of education for a declaration that the
suspension violated the Education Law. The Supreme Court,
Onondaga County, Donald A. Miller, J., dismissed the
proceeding as time barred, and the teacher appealed. The
Supreme Court, Appellate Division, held that the proceeding
was time barred under the applicable statute of limitations and
on account of laches.
Judgment and order affirmed.
1. Mandamus — 143(1)
Four-month statute of limitations applicable to proceeding:
against a body or an officer begins to run after determination
to be reviewed becomes final and binding on the petitioner, i.e.,
when the decision or action has an actual impact on petitioner.
CPLR 217.
2. Mandamus — 143(1)
In an Article 78 proceeding in the nature of mandamus,
period of limitations runs from the respondent’s refusal, on
petitioner’s demand, to perform its duty; however, demand
must be made within a reasonable time. CPLR 217, 7801 et seq.
3. Schools and School Districts — 141(5)
Where tenured teacher who was suspended without pay did
not commence proceeding against board of education until
almost 13 months after the suspension and more than four
months after the board of education moved to dismiss a
previous proceeding by the teacher, which motion
unequivocally indicated the board’s refusal to pay the teacher’s
salary, action was time barred. CPLR 217, 7801 et seq.
ee
A-35
4. Schools and School Districts — 141(5)
Even if tenured teacher who was suspended without pay
made demand on April |, 1976, proceeding commenced on
April 13, 1976, was time barred on account of laches where,
inter alia, teacher had been suspended on March 17, 1975, and
teacher’s delay in making demand was, under the cir-
cumstances, unreasonably protracted. CPLR 217, 7801 et seq.;
Education Law § 913.
Bernard F. Ashe, Richard C. Heffern, Albany, for ap-
pellant.
O’Hara, O'Hara & Vars, Michael J. Kawa, Liverpool, for
respondent.
Before MOULE, J. P., and CARDAMONE, SIMONS,
MAHONEY and DILLON, JJ.
MEMORANDUM:
In this Article 78 proceeding against the respondent Board of
Education of Liverpool Central School District, the appellant,
Lor-
A-19
GARGIUL v. BD. OF ED. OF
LIVERPOOL CENT. SCH. 505
Cite as 389 N.Y.S.2d 504
raine Garguil, who seeks a declaration that her suspension
without pay as a tenured school teacher was a violation of
section 3020-a of the Education Law, has appealed an order
and judgment at Special Term which dismissed her proceeding
as time-barred under CPLR 217.
A-36
Appellant, a tenured teacher, employed by respondent for
fifteen years suffered a back ailment in 1974 and asked for a
first grade position where she believed there would be less
stress. Respondent did not have an opening and instead offered
her a kindergarten position on June 18, 1974. Appellant
refused respondent’s request, however, to have a physical
examination by the School District physician prior to the
beginning of the 1974 school year. Appellant was out on sick
leave throughout the late fall of 1974 and the early winter of
1975 and advised respondent in February of her intent to return
to work on March 17, 1975. In response to respondent’s
repeated requests that she submit to the required physical
examination, appellant stated that she had always gone. to
women physicians and that it was against her ‘‘creed’’ to be
examined by a male physician.
On March 10, 1975 the respondent Board adopted a
resolution which directed appellant to submit to a physical
examination by the School District medical inspector and
advised her that without such examination she would not be
permitted to return to her teaching position. This resolution
was adopted pursuant to the respondent’s power under section
913 of the Education Law and a copy of the resolution was
forwarded to appellant on March 17, 1975. Thereafter, on
March 21, 1975 the appellant was notified that as a result of the
March 10, 1975 resolution, she was being placed on a leave of
absence without pay, pending a decision as to her medical
problems. At approximately two week intervals, from March
24, 1975 until June 27, 1975 (the end of that school year),
appellant wrote letters to the Co-ordinator of Personnel of the
School District, the Accounting Department, and the Treasurer
of the School District, demanding that she be paid her salary
during the period of her leave of absence.
{1} The four-month Statute of Limitations begins to run
after the determination to be reviewed becomes final and
A-37
binding tik" agen i.e., when the decision or action has an
actual impact on appellant (8 Weinstein-Korn-Miller, N.Y.
Civ. Prac., para. 7804.02; 24 Carmody-Wait 2d, N.Y. Prac.,
§145:239). It has been held that ‘‘where a determination is
made on one date to be effective at a later date, the deter-
mination does not become ‘fina! and binding’ for purposes of
the Statute of Limitations (CPLR 217) until the date it becomes
effective’ (Matter of Wininger v. Williamson, 46 A.D.2d 689,
360 N.Y.S.2d 262; Gates v. Walkley, 41 A.D.2d 319, 342
N.Y.S.2d 490). Were the instant proceeding to be categorized
as one to review a determination (i.e., in the nature of cer-
tiorari}, CPLR 217 would bar the proceeding because
respondent Board suspended appellant without pay effective
March 17, 1975. The petition, however, was not served until
April 13, 1976, more than twelve months later, and well beyond
the applicable four-month period of limitations.
{2} This proceeding, however, seems best classified as one
where there is a failure of the body or an officer to perform its
duty (Matter of Soucy v. Board of Education, 51 A.D.2d 628,
378 N.Y.S.2d 500; Matter of Ferro v. Lavine, 46 A.D.2d 313,
362 N.Y.S.2d 591). In an Article 78 proceeding in the nature of
mandamus the period of limitations runs from ‘‘the respon-
dent’s refusal, upon the demand of the petitioner ..., to
perform its duty’’ (CPLR 217), but the demand must be made
within a reasonable time or the petitioner will be barred (see,
Austin v. Board of Higher Educ. of City of N.Y., 5 N.Y.2d
430, 442-443, 186 N.Y.S.2d 1, 10-12, 158 N.E.2d 681, 687-688).
In Matter of Sirles v. Cordary, 49 A.D.2d 330, 332, 374
N.Y.S.2d 793, 795, the Court held that: ‘‘(t)}he weight of
authority . . . supports the proposition that an employee. . .
who is discharged from his governmental position without a
hearing is not required to seek reinstatement within four
months from discharge, but
A-38
506 389 NEW YORK SUPPLEMENT, 2d SERIES
may delay until such time as he has demanded reinstatement
and has been refused, provided he has not so unduly delayed
seeking reinstatement as to be guilty of laches (Matter of Burke
v. Village of Johnson City, 36 A.D.2d 202, 319 N.Y.S.2d 788,
affd. 29 N.Y.2d 846, 328 N.Y.S.2d 1, 277 N.E.2d 923; see also,
Austin v. Board of Higher Education of City of N.Y., 5 N.Y.2d
430, 186 N.Y.S.2d 1, 158 N.E.2d 681)’’. (See also, Mtr. of
Johnson vy. Downstate Med. Center, State Univ. of N.Y., 52
A.D.2d 357, 361-362, 384 N.Y.S.2d 189, 192-193; Flomen-
baum v. Drug Abuse Control Comm., 50 A.D.2d 20, 377
~ N.Y.S.2d 211; Matter of Durham v. Amico, 52 A.D.2d 724,
382 N.Y.S.2d 169).
{3,4} Appellant variously demanded her salary in (1) letters
written between March 24, 1975 and June 27, 1975; (2) a
formal grievance demanding her salary (April 10, 1975); (3) an
appeal to the Commissioner (August 9, 1975); (4) an Article 78
petition against respondent (November 25, 1975, withdrawn on
December 12, !975) and (5) a letter from her attorney (April 1,
1976). Respondent throughout this period steadfastly refused
to pay appellant her salary. Such, in our view, constituted at
least an informal refusal to act. Respondent Board's formal
‘*refusal’’ was its motion to dismiss dated December 6, 1975 in
appellant’s previous Article 78 petition which she subsequently
withdrew. The instant proceeding was not commenced until
April 13, 1976 almost thirteen months after the March 17, 1975
suspension and more than four months after respondent
board’s motion to dismiss the previous proceeding which
unequivocally indicated its refusal to act to pay appellant’s
salary. It is also, therefore, time-barred.
Even were we to find that appellant’s demand was made on
A-39
April 1, 1976, the date of her attorney’s letter, we would also
conclude that it is barred on account of her laches because her
delay in making the demand, under the circumstances of this
case, was unreasonably protracted (cf. Matter of Perry v. Blair,
49 A.D.2d 309, 314-315, 374 N.Y.S.2d 850, 855-857). Finally,
we have considered appellant’s argument that she was denied
due process and find it to be without merit (Matter of O’Keefe
v. Murphy, 38 N.Y .2d 563, 381 N.Y.S.2d 821, 345 N.E.2d 292;
Matter of Perry, supra).
Judgment and order unanimously affirmed without costs.
A-21
1026 393 NEW YORK SUPPLEMENT, 2d SERIES
Decided february 15, 1977 — Continued
41 N.Y.2d 801 — Continued
Shea v. Ross,
385 N.Y.S.2d 417, 53 A.D.2d945...........4. ,. denied
Van Camp v. Weitz,
388 N.Y.S.2d 1009, 54 A.D.2d 884 ............4.. denied
ND, 6 ab ob a:2 00.6 o swible once Web 60. emne denied
Decided February 17, 1977.
41 N.Y.2d 802
ATI, Inc. v. Ruder & Finn, Inc.
389 N.Y.S.2d 540, 55 A.D.24 540 ............. granted
Bender v. State of New York,
388 N.Y.S.2d 47, 54 A.D.2d 809............. dismissed
Lefkowitz v. Leigh Realty Co., Inc.,
387 N.Y.S.2d 465, 54 A.D.2d 718 ..... 0... 0055. denied
A-40
Preisch v. Continental Casualty Company,
Pls Fee PU SO Pace ONT cc ccd ccctenes denied
Sunbeam Corporation v. Morris
Distributing Company, Inc.,
Serr denied
Tuttle v. Juanis,
ge? N.Y 9.20 167, S4A.D.20 SOD. soc cc cccane dismissed
Decided February 22, 1977.
41 N.Y.2d 802
Axelsen v. Department of Personnel
of City of New York,
hee ee hs rn denied
Brogan, Matter of,
Sees Wee By SO PR SON cc cccecncvses denied
Callagy v. New York City Employee’s
Reticement System,
387 N.Y.S.2d 397, $4 A.D.2d 622... 1... .ceeee denied
Edgar v. Harris,
Jan. ¥ 2.20 631, SS A.D.20 S97... ce wccses dismissed
Farmers National Bank of Malone v. Tulloch,
309 N.Y.S.20 494, SS A.D.20 773 . wc cccccvccncs denied
Flushing National Bank v. Pinetop Buidling Corp.,
Cog Ae ee | me rer rare granted
Gargiul v. Board of Education of
Liverpool Central School District,
389 N.Y.S.2d 504, 54 A.D.2d 1085 ............. denied
Greater New York Savings Bank v. Boothe,
387 N.Y.S.2d 998, 54 A.D.2d900.............. denied
Jamaica Buses, Inc. v. Moran,
387 N.Y.S.2d 1021, 54 A.D.2d934............. denied
Larkin v. Farrell,
384 N.Y.S.2d 605, 52 A.D.2d 1069 ............. denied
A-41
Larkin v. Town Board of Town of Fleming,
384 N.Y.S.2d 603, 52 A.D.2d 1068 ............. denied
Rosano v. Steinway & Sons,
387 N.Y.S.2d 730, 54 A.D.2d 800.............. denied
Tandem Holding Corp. v. Board of Zoning
Appeals of Town of Hempstead,
565 Fe. ¥ 3.20 119, 33 A:D.20 GST 2 wc ccccccerc granted
69 A.D.2d 986
In the Matter of the Application of
Lorraine M. GARGIUL, Petitioner,
Vv.
BOARD OF EDUCATION OF the
LIVERPOOL CENTRAL SCHOOL
DISTRICT et al., Respondents.
Supreme Court, Appellate Division,
Fourth Department
April 6, 1979.
Article 78 proceeding seeking to annul dismissal of school
employee was transferred by order of the Onondaga Supreme
Court, George G. Inglehart, J. The Supreme Court, Appellate
Division, held that: (1) finding that school employee was in-
competent was supported by substantial evidence, and punish-
ment of dismissal was not so disproportionate as to be shocking
to one’s sense of fairness; (2) board of education may dismiss
employee who refuses to undergo a medical examination, and
(3) petitioner could not relitigate propriety of suspension
without pay where she had not sought review of the deter-
mination of Commissioner of Education dismissing appeal
therefrom nor joined the Commissioner in the Article 78
proceeding.
Determination confirmed.
A-42
1. Schools — 63(1)
Finding that school employee was incompetent was sup-
ported by substantial evidence, and punishment of dismissal
was not so disproportionate as to be shocking to one’s sense of
fairness.
A-23
120 416 NEW YORK SUPPLEMENT, 2d SERIES
2. Schools — 63(1)
A board of education has statutory right to order an em-
ployee to submit to a medical examination, and may dismiss an
employee who refuses to undergo such an examination.
Education Law § 913.
3. Schools — 63(1)
Where dismissed school employee neither sought review of
determination of the Commissioner of Education upholding
her suspension without pay nor joined the Commissioner as
party in Article 78 proceeding seeking to annul her subsequent
dismissal, she was bound by the determination of the Com-
missioner as to questions which should have been raised on
direct proceeding for review of his determination and could not
relitigate the propriety of her suspension without pay in the
Article 78 proceeding. CPLR 7801 et seq.; Education Law
§ 310.
Bernard F. Ashe, Albany, for petitioner, arg by Richard E.
Casagrande, Albany.
O’Hara, O’Hara & Vars, Liverpool, for respondents, arg by
Dennis G. O’ Hara, Liverpool.
A-43
Before DILLON, P. J., and CARDAMONE, SIMONS,
DOERR and MOULE, JJ.
MEMORANDUM:
In this CPLR article 78 proceeding petitioner seeks to annul
the determination of the Board of Education of the Liverpool
Central School District which found that she was insubordinate
and incompetent and dismissed her from her employment
retroactive to March 17, 1975.
{1} The Board’s finding that petitioner was incompetent is
supported by substantial evidence and the punishment imposed
is not so disproportionate ‘‘as to be shocking to one’s sense of
fairness’’ (Matter of Pell v. Board of Educ. of Union Free
School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833,
834, 313 N.E.2d 321).
{2,3} We do not agree with petitioner’s contention that she
should be awarded bac pay from March 17, 1975, the date on
which she was suspended for refusing to submit to the physical
examination directed by the Board, to the date of her dismissal.
A Board of Education has a statutory right to order an em-
ployee to submit to a medical examination (Education Law,
§ 913) and may dismiss an employee who refuses to undergo
such an examination (Matter of the Appeal of Frank Grasso, 4
E.D.R. 174). Further, petitioner appealed from her suspension
without pay for refusing to submit to a medical examination
under section 310 of the Education Law (15 Ed Dept 360,
applic. for reopening den. 15 Ed Dept Rep 520). The Com-
missioner dismissed the appeal, finding that the Board was
authorized under section 913 of the Education Law to require
such an examination and that the Board’s action was neither
arbitrary nor capricious. The Commissioner also rejected
petitioner’s claim that her desire to be attended only by a
woman physician was protected by section 296 of the Executive
Law and the Federal Constitution. Petitioner neither sought
Tf *
A-44
review of the Commissioner’s determination nor joined the
Commissioner as a party in this article 78 proceeding; ac-
cordingly, petitioner is bound by the determination of the
Commissioner as to questions which should have been raised
on a direct proceeding for review of his determination and she
may not relitigate the propriety of her suspension without pay
in this article 78 proceeding (see Matter of Chapin v. Board of
Educ., City of Buffalo, 291 N.Y. 241, 52 N.E.2d 113; Matter
of Karin v. Board of Educ. of Cent. School Dist. No. 1 of
Towns of New Hartford, Kirkland & Paris, 56 A.D.24 721, 393
N.Y.S.2d 135, mot. for lv. to app. den. 41 N.Y.2d 806, 396
N.Y.S.2d 1025, 364 N.E.2d 850; Anken v. Bd. of Educ. of
Cent. School Dist. No. 1 of Town of Sandy Creek, 42 A.D.2d
1031, 348 N.Y.S.2d 610).
Finally, the several constitutional issues that petitioner has
raised concerning the charge of insubordination are not reached
or determined in this case because we have concluded that there
is substantial evidence in the record to support the dismissal on
the independent ground of incompetency.
A-25
MOTIONS FOR LEAVE TO APPEAL 1031
Decided Oct. 11, 1979 —- Continued
48 N.Y.2d 606 — Continued
Siebert (Citizens Savings & Loan
Association of New York), Matter of
SSW. BAAS, TO A.A SIS 6c cc cavesseuee denied
Sweet v. Glantz,
416 N.Y.S.2d 160, 69 A.D.2d 1025 ............. denied
Talarico v. Kroneiss,
Poa ||} ee |} ES denied
A-45
Wasserman v. Malcolm & Hayes, Inc.,
oe Fee ee | re denied
Decided Oct. 16, 1979
48 N.Y.2d 606.
Bainer, Matter of
419 N.Y.S.2d 228, ph ROMER a ey es Oo denied
Basile v. Levitt,
417 N.Y.S.2d 811, 70A.D.2d 999 ..........006. denied
Flynn v. Bates,
413 N.YS.2d 446, 67 A.D.2d975..........00058: denied
Fritz v. Board of Education of
Union Free School District No. 22,
416 N.Y.S.2d 74, 70 A.D.2d 593...........4.. dismissed
Gargiul v. Board of Education of
Liverpool Central School District,
417 N.Y.S.2d 119, 69 A.D.2d 986...........06, denied
Gyder v. Blum,
418 N.Y.S.2d 715,68 A.D.2d714..........006. denied
Miracle Mile Associates v. Yudelson,
417 N.Y.S.2d 142,68 A.D.2d 176............44. denied
Pigno v. Bunim,
415 N.Y.S.2d 50,69 A.D.2d 814...........005. denied
Rodriguez v. Meyerson,
418 N.Y.S.2d 936, 69 A.D.2d 162...........06. denied
In the Matter of the appeal of LORRAINE GARGIUL from
action of the Board of Education of the Liverpool Central
School District and James P. Johnson, Acting Superin-
tendent of Schools, regarding medical examination.*
Decision No. 9210
(February 24, 1976)
*For a reopening of this appeal, see p. 520.
A-46
Bonnie Strunk, Esq., attorney for petitioner
O’Hara, O’Hara & Vars, Esqs., attorneys for respondents,
Dennis G. O’ Hara, Esa., of counsel
NYQUIST, Commissioner. — Petitioner appeals from
respondents’ directive that she be examined by the district’s
physician prior to resuming her teaching duties.
Petitioner is a tenured teacher employed by respondent
district to teach kindergarten. By letter dated June 13, 1974,
petitioner requested a change of assignment, for medical
reasons, to a first-grade class. No opening was available at the
time, and petitioner was offered two half-time kindergarten
positions. When it was determined that petitioner intended to
remain in respondent’s employ, she was directed by the
superintendent of schools, Virgil Tompkins, to make an ap-
pointment to be examined by the school district’s physician
prior to returning to school. On August 19, 1974, the field
representative of New York State United Teachers, Inc. wrote
to Superintendent Tompkins stating in part that petitioner
would be willing to have a physical examination by her
physician, Dr. Marie Wasileska, or any woman physician
named by the district. Respondents’ attorney contacted the
A-27
361
NYSUT field representative by letter on September 3, 1974 and,
citing Education Law § 913, informed the representative that
petitioner would be required to submit to a medical
examination by the school district’s physician, Dr. Paul Day. It
is alleged by respondents’ attorney that the NYSUT field
representative informed him that petitioner was willing to be
examined by Dr. Day. However, petitioner returned to work in
A-47
September 1974 without having been examined. On November
27, 1974, petitioner commenced a sick leave.
Petitioner’s private physician wrote respondents on
December 7, 1974 certifying that petitioner was under her care
and would not be able to return to work for several weeks. No
reason was given for the absence. By letter dated February §,
1975, Superintendent Tompkins renewed the directive that
petitioner be examined by the school district’s physician. On
February 11, Superintendent Tompkins provided petitioner
with medical authorizations to enable her private physicians to
release her medical records to the district’s physician.
Petitioner informed Superintendent Tompkins, by letter, on
February 24, 1975 of her intention to return to work on March
17, 1975. Superintendent Tompkins wrote on February 27
directing that petitioner make an appointment to see Dr. Day
and enclosing additional medical authorizations, since the
earlier ones had not been returned by petitioner. By letter dated
February 28, 1975 and several succeeding letters, petitioner
informed Superintendent Tompkins that she has been treated
exclusively by women physicians and did not wish to be
examined by Dr. Day. Petitioner stated she would be willing to
be examined by any woman physician designated by respon-
dents.
At its March 10, 1975 meeting, respondent board of
education adopted a resolution requiring that petitioner by
examined by Dr. Day, if found to be necessary, in accordance
with Education Law § 913 before being permitted to return to
her teaching duties. Petitioner was placed on leave of absence
without pay. :
On March 13, 1975, Superintendent Tompkins wrote
petitioner to advise that Dr. Day indicated a physical
examination might not be necessary, depending upon the
medical reports supplied by petitioner’s physicians. It was
A-48
requested that petitioner execute the medical authorizations
that had been supplied to her. The necessary authorizations
were forwarded to the district during the latter part of March.
Dr. Day determined that a physical examination would be
necessary, and on July 30, 1975 petitioner was informed by
respondent Johnson that the board of education directed that
she be examined by Dr. Day.
On April 10, 1975, petitioner instituted a grievance, which
A-28
resulted in a decision by Justice Edward F. McLaughlin,
Supreme Court, Onondaga County, dated October 30, 1975,
permanently staying arbitration of this matter.
Petitioner contends that respondents are acting in an ar-
bitrary and capricious manner in requiring petitioner to submit
to a medical examination by their school district physician, a
male, since they know petitioner will only be attended by
women physicians. Petitioner also contends that such action
infringes her constitutional rights under the First and Four-
teenth Amendments of the United States Constitution and
violates her statutory rights under Executive Law § 296. The
statutory claim is based on petitioner’s position that it is against
her creed to be seen by a male physician.
Respondents contend that they are acting within their
authority under Education Law § 913 in directing the medical
examination by the school district’s physician and that
petitioner’s personal preference in this regard does not con-
stitute a creed.
Education Law § 913 provides in part:
In order to safeguard the health of children attending
the public schools, the board of education or trustees of
A-49
any school district or a board of cooperative educational
services shall be empowered to require any person
employed by the board of education or trustees or board
of cooperative educational services to submit to a
medical examination by a physician of his choice or
school medical inspector . . . in order to determine the
physica! or mental capacity of such person to perform
his duties.
By its language, this section authorizes the employing board
to determine if the individual is to be examined by his private
physician or the school district’s physician. Admittedly,
respondents could have accepted the medical opinion of
petitioner’s own physicians as to her readiness to return to her
teaching duties, but their decision to designate the school
district’s physician for this purpose is clearly within their
authority and cannot be held arbitrary or capricious.
As interpreted, the statute empowers the board of education
to require medical examination either by its own physician or a
private physician chosen by the employee, as the board wishes
(Matter of Grasso, 4 Ed Dept Rep 174 (1965). Respondents
may reasonably prefer to accept the report or opinion of their
own medical experts over those of another physician (Matter of
Jacobs, 8 Ed Dept Rep 12 (1968); Matter of Lifson, 14 id. 93,
pet to rev dis sub nom Bad. of Ed. v. Nyquist et al., Albany Co
Sup Ct, 6/3/75, n.o.r.; Matter of Katz, 15 Ed Dept Rep 145
(1975). Where
[362]
A-29
this is the case and the teacher refuses to submit to the medical
examination, he prevents the district from performing an
essential statutory duty in protecting students from teachers
A-50
medically unable to perform their duties (Matter of Sasso, 14
Ed Dept Rep 130 (1974).
Consequently, I do not find that respondents acted ar-
bitrarily or capriciously in requiring petitioner to be examined
by the school district’s physician, once their physician advised
them as to the necessity of such examination.
Petitioner’s contention that her wish to be attended by only
women physicians is a creed protected by the Constitution and
Executive Law § 296 is without merit. According to the
transcipt of the grievance proceeding held on June 2, 1975,
petitioner’s objection to being examined by a male physician is
based on a ‘“‘personal belief’? and it is not a tenet of any
organized moral or religious group. This personal preference,
as termed by respondents’ counsel, is not tantamount to a
*“‘creed.’’ Although petitioner states she has always been at-
tended by women doctors, her June 13, 1974 letter to
Superintendent Tompkins states that she has ‘‘been informed
by Doctors Robert A. Bornhurst & Samuel Gingold and Dr.
Marie C. Wasileska that there is a rotational SCOLIOSIS,
convexity to the left, in the mid-lumbar area of my spine.’’ It is
not clear what role was played by the male physicians named by
petitioner, but it appears that they did attend her. Petitioner
also does not deny respondents’ allegation that during the fall
of 1974 petitioner consented, through her NYSUT field
representative, to the examination by the school district’s
physician, a male.
THE APPEAL IS DISMISSED.
In the Matter of the application to reopen the appeal of
LORRAINE GARGIUL from action of the Board of
Education of the Liverpool Central School District and
James P. Johnson, Superintendent of Schools, regarding
medical examination.
A-51
Decision No. 9270
(June 15, 1976)
Bernard F. Ashe, Esq., attorney for petitioner, Richard C.
Heffern, Esa., of counsel
O’Hara, O’Hara & Vars, Esqs., attorneys for respondent,
Dennis G. O’ Hara, Esq., of counsel
NYQUIST, Commissioner. — This is an application by
petitioner to reopen Matter of Gargiul (15 Ed Dept Rep 360
(1976) on the grounds of misapprehension of fact and
misapprehension of law.
In my prior decision, I found that respondent was authorized
by Education Law § 913 to require petitioner to submit to a
medical examination by the school medical officer. I also held
that petitioner’s refusal to be examined by male physicians was
not based upon any right protected by the United States
Constitution or by Executive Law § 296.
As a basis for reconsideration of my prior decision,
petitioner contends that she was never examined by Drs. Robert
Bornhurst and Samuel Gingold but that they reviewed x-rays
taken by female x-ray technicians. Petitioner also contends that
she never consented to an examination by the school medical
officer. In support of this contention, petitioner submits the
affidavit of a field representative of New York State United
Teachers in which he denies ever indicating petitioner’s consent
to such examination.
Althouth I referred to both incidents in my previous decision,
they did not constitute the sole basis for my determination.
Petitioner’s contention was that her personal practice of being
attended by female physicians only constituted a ‘‘creed.”’ This
practice was found not to be a tenet of any organized moral or
=
bs.
os ae
A-52
religious group and was therefore not accorded the same pro-
[520]
A-31
tection as a creed. My observations as to Drs. Bornhurst and
Gingold and alleged prior consent to an examination by the
school physician were addressed to the intensity of this per-
sonal belief and not to whether such a belief constituted a
creed.
I would also note that upon an application to reopen, there
must be new material evidence not available at the time of the
original proceeding. Petitioner had ample opportunity to
present evidence of the field representative in order to rebut
respondent’s allegation as to prior consent to examination by
the school physician. No reason is offered upon this application
for petitioner’s failure to present this information in the initial
proceeding.
Petitioner aserts, as a further basis for her application, that
the previous decision permits an invasion of ‘‘petitioner’s
personal and sexual privacy”’ that is guaranteed by the United
States Constitution. Once again, petitioner seeks to introduce
matter that could have been raised in the initial proceeding.
Petitioner’s appeal to the Commissioner included the con-
stitutional argument that respondent’s order for a medical
examination by the school physician ‘‘violates her creed in not
being attended by male physicians (Executive Law section 296.
and Fourteen Amendment and First Amendment’’ (sic).
Petitioner did not raise the privacy issue and is barred by the
doctrine of res judicata from doing so now.
THE APPLICATION FOR A REOPENING IS DENIED.
—
,
.
Pre Sees iil
A-53
A-32
In the Matter of the Appeal of Frank Grasso from Action of
the Board of Education, Central School District No. 1,
Towns of Orangetown and Clarkstown, Rockland County,
in Relation to His Dismissal.
Decision No. 7509
(May 27, 1965)
TEACHERS (tenure) — BOARD OF EDUCATION (powers
and duties) — EDUCATION LAW, §§913, 3012
Appellant tenure teacher — dismissed on formal charges
— charges were insubordination, neglect of duty, inef-
ficiency — proper hearing held — charge of insubordination
based on refusal of appellant to submit to medical
ex-mination by Board doctor although so ordered by Board
— clear guilt of insubordination — sufficient basis for
dismissal — not necessary to reach other charges — appeal
dismissed.
Tobias & Vogel, Esqs., attorneys for appellant, Jerome Tobias,
Esq., of counsel
Marshall K. Lynch, Esq., attorney for respondent
Allen, Jr., Commissioner. — The appellant herein was a
teacher on tenure in the employ of the respondent school
district. He was dismissed upon formal charges by action of the
respondent Board on or about October 12, 1964.
Charges were brought against and served upon the appellant
by the respondent Board pursuant to section 3012 of the
Education Law. Such charges were (a) insubordination, (b)
neglect of duty, and (c) inefficiency.
A-54
A hearing on the charges was had on October 1, 1964 before
a committee appointed by the respondent Board. Both ap-
pellant and respondent herein were represented by
[174]
A-33
counsel. The record indicates that witnesses were presented, the
opportunity for cross-examination was available and testimony
was recorded and a transcript made of the proceeding.
The charge of insubordination was based on the fact that the
respondent board ordered the appellant, pursuant to authority
granted to the Board of Education by section 913 of the
Education Law to submit to a medical examination by the
medical inspector of the Board of Education. This order was
issued on or about March 20, 1964 and has never been complied
with.
a
Section 913 of the Education Law reads in part as follows:
‘** * * the ‘board of education * * * shall be em-
powered to require any person employed * * * to submit
to a medical examination by a physician of his choice or
school medical inspector of the board of education * * *
in order to determine the physical or mental capacity of
such person to perform his duties. The person required
to submit * * * shall be entitled to be accompanied by a
physician or other person of his own choice. * * *
This statute clearly gives to a board of education the right to
order an employee to a medical examination by a physician of
the employee’s choice or, if the board so desires, by the board’s
medical inspector. The board may make demand for either type
of examination as it chooses. If this were not so, the remaining
language of the section would be meaningless.
The appellant, therefore. is clearly guilty of a deliberate
:
J
~ rm.
A-55
refusal to carry out a direct order of the Board of Education to
submit to a medical examination to which the statute requires
the teacher to submit.
The appellant is, therefore, guilty of insybordination. Such
insubordination is a sufficient basis for the dismissal of a
teacher. This statutory requirement of medical examination
was deliberately placed in the statute so that boards of
education could protect the children of the district and the
education systems of this State from school employees
medically unfit to carry out their duties.
Where a teacher refuses to report for such an examination,
and thus thwarts the board in carrying out an essential
[175]
A-34
statutory duty and where the teacher then is dismissed after a
proper hearing and presentation of formal charges, I cannot
find that a board of education ha: acted in a manner which can
be considered arbitrary, capricious, or legally unreasonable.
Since this single specification, standing alone, is sufficient
basis for the action of the respondent Board, it is not necessary
to reach a determination relating to the other charges.
THE APPEAL IS DISMISSED.
,
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