14-3958-cv
Coles v. Erie County


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 21st day of October, two thousand fifteen.

PRESENT: JON O. NEWMAN,
                 ROBERT D. SACK,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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GERALDINE COLES,
                                 Plaintiff-Appellant,

                        v.                                                    No. 14-3958-cv

ERIE COUNTY, JOHN ANTHONY, MICHAEL REARDON,
MARK WIPPERMAN, ROBERT KOCH,
                     Defendants-Appellees,

ANTHONY REARDON,
                                 Defendant.
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 FOR PLAINTIFF-APPELLANT:                                RICHARD J. PERRY (Lindy Sue Korn, on the
                                                         brief), Law Office of Lindy Korn PLLC,
                                                         Buffalo, NY.




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    FOR DEFENDANTS-APPELLEES:                        MICHELLE PARKER, First Assistant County
                                                     Attorney, for Michael A. Siragusa, Erie
                                                     County Attorney, Buffalo, NY.

      Appeal from a September 25, 2014 judgment of the United States District Court for
the Western District of New York (Arcara, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

      Plaintiff-Appellant Geraldine Coles, a former Sheriff’s Deputy Female Escort at the
Erie County Holding Center, appeals from a judgment of the district court denying her
motion for summary judgment and granting Defendants-Appellees’ motion to dismiss
Coles’s constitutional claims brought pursuant to 42 U.S.C. § 1983. Coles alleged that
Defendants Erie County and various individuals employed thereby (collectively, “the
County”) violated her constitutional due process rights by failing to provide a
pre-deprivation hearing in accordance with the procedures set forth in New York Civil
Service Law Section 72 pertaining to disability leave prior to terminating her
employment. 1 We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

       “We review de novo a district court’s dismissal of a complaint pursuant to Rule
12(b)(6), construing the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation omitted).

       Coles’s “constitutional claim depends on [her] having had a property right in
continued employment” with the County; if such a right exists, Coles could not be deprived
of it “without due process.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985). “Property interests are not created by the Constitution, they are created and their
dimensions are defined by existing rules or understandings that stem from an independent
source such as state law.” Id. (quotation omitted). The parties do not dispute that Coles
alleged a constitutionally protected property interest in her civil service appointment under
New York law and that she therefore could not be terminated from that position without
adequate process. See Gilbert v. Homar, 520 U.S. 924, 928-29 (1997).
1
  Coles’s complaint also alleged constitutional violations under 42 U.S.C. §§ 1985 and 1986 that were
dismissed by the district court and are not at issue on appeal.


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        Having “determined that the Due Process Clause applies, the question remains what
process is due.” Loudermill, 470 U.S. at 541 (quotation omitted). While the contours of
the property interest are defined by an independent source such as state law, “[f]ederal
constitutional standards rather than state statutes define the requirements of procedural due
process.” Robison v. Via, 821 F.2d 913, 923 (2d Cir. 1987). Thus, the question in a
§ 1983 suit claiming deprivation of a property interest without due process is not whether
state procedural law was correctly followed or applied, but whether the process actually
provided satisfies the requirements imposed by the Constitution. See Loudermill, 470
U.S. at 541 (“[O]nce it is determined that the Due Process Clause applies, . . . [t]he answer
to th[e] question [of what process is due] is not to be found in the [state] statute.”). States
are indeed “free to create procedural safeguards that exceed the minimum required by the
[C]onstitution,” Pl.’s Br. 15, but a violation of those excess procedural safeguards does not
itself give rise to a constitutional violation because constitutional and state law claims are
not inherently coextensive. Cf. McDarby v. Dinkins, 907 F.2d 1334, 1337-38 (2d Cir.
1990) (“When the minimal due process requirements of notice and hearing have been met,
a claim that an agency’s policies or regulations have not been adhered to does not sustain
an action for redress of procedural due process violations.”); Bolden v. Alston, 810 F.2d
353, 358 (2d Cir. 1987) (“State procedural requirements do not establish federal
constitutional rights. At most, any violation of state procedural requirements would
create liability under state law . . . .” (citations omitted)).

       Constitutional due process requires, prior to being deprived of a significant property
interest such as permanent civil service employment: (1) “oral or written notice of the
charges against [the employee]”; (2) “an explanation of the employer’s evidence”; and
(3) “an opportunity to present [the employee’s] side of the story” and “to present reasons,
either in person or in writing, why [the] proposed action should not be taken.”
Loudermill, 470 U.S. at 546; see also Locurto v. Safir, 264 F.3d 154, 174 (2d Cir. 2001).
The facts set forth in Coles’s complaint and the documents attached thereto do not
plausibly suggest that those requirements were not met here. By letter dated October 21,
2011, the County informed Coles that she was being placed on an immediate involuntary
leave of absence after she suffered a petit mal seizure while an inmate was under her
supervision.2 The County advised Coles that she could use accrued time during this leave
and that she could return to work once a medical examination determined that she was fit to
perform the duties of her position. By letter dated December 28, 2011, the County
informed Coles that she would be placed on unpaid sick leave on January 11, 2012, and
that she had a right to a hearing. By letter dated November 7, 2012, the County informed
2
  Coles does not allege that the County lacked cause to place her on the initial leave of absence after her
seizure caused her to lose control of an inmate she was escorting, only that the County did not follow the
procedural requirements set forth in New York Civil Service Law Section 72 in doing so.


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Coles that she would be terminated effective December 7, 2012, due to her inability to
perform the duties of her job because of a disability lasting more than a year. The County
advised Coles of her right to “submit . . . information or reasons why you believe you
should not be terminated,” such as “that your absence has not been one continuous year or
that you are medically cleared and able to return to your position with no restrictions.”
J.A. 29. The County’s letter explained that “[i]f you do not submit any information or
contact this office before December 7, 2012, your employment will be terminated.” Id.
Coles does not allege that she provided the County any such information or that she
contacted the County or requested a hearing prior to her termination.

       These letters were sufficient to notify Coles of the factual basis for the County’s
charges that she was unfit to perform her job duties, and to afford Coles an opportunity to
respond to the County’s charges and proposed termination of her employment. See
Loudermill, 470 U.S. at 546. The district court properly dismissed Coles’s due process
claim.

       We have considered Coles’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.

                                  FOR THE COURT:
                                  Catherine O’Hagan Wolfe, Clerk of Court




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