09-1316-cv
Palkovic v. Johnson
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF TH AT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PAR TY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A D ATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9 th day of December, two thousand nine.

PRESENT:
                 JOHN M. WALKER, JR.,
                 JOSEPH M. McLAUGHLIN,
                 REENA RAGGI,
                                 Circuit Judges.
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MARCINE PALKOVIC,
                                 Plaintiff-Appellant,

                      v.                                                   No. 09-1316-cv

MICHAEL J. JOHNSON, AVERILL PARK
CENTRAL SCHOOL DISTRICT BOARD OF
EDUCATION, AVERILL PARK CENTRAL
SCHOOL DISTRICT,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                          PHILLIP G. STECK, Cooper Erving & Savage
                                                  LLP, Albany, New York.

APPEARING FOR APPELLEES:                          EILEEN M. HAYNES, Bartlett, Pontiff, Stewart
                                                  & Rhodes, P.C., Glens Falls, New York.
       Appeal from the United States District Court for the Northern District of New York

(David N. Hurd, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on March 25, 2009, is AFFIRMED.

       Marcine Palkovic, formerly a tenured teacher with the Averill Park Central School

District (“School District”), appeals from a grant of summary judgment in favor of

defendants on her claim, pursuant to 42 U.S.C. § 1983, that the School District violated due

process in terminating her employment. Summary judgment is proper only if “there is no

genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). We review an award of summary judgment de novo,

“examining the facts in the light most favorable to the non-moving party and resolving all

factual ambiguities in that party’s favor.” Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009).

In applying this standard, we assume familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our ruling.

       The due process clauses of the Fifth and Fourteenth Amendments require that “no

person . . . be deprived of life, liberty, or property without reasonable notice and an

opportunity to be heard . . . ‘at a meaningful time and in a meaningful manner.’” Karpova

v. Snow, 497 F.3d 262, 270 (2d Cir. 2007) (internal citation omitted) (quoting Mathews v.

Eldridge, 424 U.S. 319, 333 (1976)). This constitutional guarantee pertains when public

entities propose to dismiss a tenured teacher. See Strong v. Bd. of Educ. of Uniondale Union

Free Sch. Dist., 902 F.2d 208, 211 (2d Cir. 1990).

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       The gravamen of Palkovic’s due process claim is that the School District was so

determined to fire her that it instituted successive disciplinary proceedings pursuant to New

York Education Law § 3020-a until it achieved the desired result. She asserts that the 2001

proceeding that resulted in her dismissal based on mental incompetence – the third such

proceeding instituted against her – subverted the outcome of the first, at which a similar

charge was dismissed. The third proceeding was a sham, she contends, because the School

District adduced no evidence beyond that introduced or available at the first hearing,

conducted in 1998-99.1

       We agree with the district court that Palkovic failed to raise a triable question of fact

on her due process claim. The record demonstrates that the School District did adduce

evidence at the third hearing that was not available at the first, notably (1) reports by two

mental health professionals who examined Palkovic after the first hearing and concluded,

based on those examinations, that she was then unfit to teach, and (2) testimony and reports

that in the summer of 2000, Palkovic engaged in a disturbing campaign to persuade witnesses

who had testified at the first hearing to recant their testimony. As the third hearing officer

aptly observed, while the campaign may not have qualified as misconduct, it was further



       1
         Palkovic advanced the related but distinct argument that the third hearing was barred
by res judicata in a separate lawsuit filed in state court and ultimately dismissed. See
Palkovic v. Averill Park Cent. Sch. Dist., No. 41-0770-2001 (N.Y. Sup. Ct. Nov. 15, 2001).
In rejecting Palkovic’s claim, the state court relied on the fact that the arbitrator at the third
hearing “was not merely re-sifting the evidence considered by the prior arbitrators, but was
evaluating new evidence and found that especially in light of the old evidence it
demonstrated petitioner’s unfitness to teach.” Id., slip op. at 2-3.

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evidence of a troubled mental state. Even if we were to accept Palkovic’s contention that this

evidence did not show a deterioration in her mental state between the first and third hearings,

we would not find the summary judgment award unwarranted. Because the hearing officer

was presented with, and relied upon, new evidence of Palkovic’s unfitness for the classroom,

a factfinder could not conclude that the third hearing was “a sham or a pretense.” Joint Anti-

Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164 (1951) (Frankfurter, J., concurring)

(internal quotation marks omitted).

       To the extent Palkovic suggests that our prior rulings in this case compel a different

result, see Palkovic v. Johnson, 281 F. App’x 63 (2d Cir. 2008); Palkovic v. Johnson, 150

F. App’x 35 (2d Cir. 2005), we do not agree. In 2008, we held that Palkovic had sufficiently

stated a claim for relief precluding dismissal, but we expressly declined to reach the issue of

whether Palkovic could adduce evidence sufficient to succeed on a procedural due process

claim. See Palkovic v. Johnson, 281 F. App’x at 66. On summary judgment review of the

evidence now adduced, we conclude, like the district court, that she has failed to raise a

material issue of fact supporting her due process claim.

       We have considered Palkovic’s other arguments on appeal, and we conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court


                                    By:_______________________



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