17-695-cv
Richardson v. New York City Board Of Education

                           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 TO 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
2nd day of October, two thousand seventeen.

Present:
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                    Circuit Judges,
            JED S. RAKOFF,
                    District Judge.*
_____________________________________

ROSEMARIE RICHARDSON,

                         Plaintiff-Appellant,

                 v.                                                    17-695-cv

NEW YORK CITY BOARD OF EDUCATION, NEW
YORK CITY DEPARTMENT OF EDUCATION,

                         Defendants-Appellees,

CARMEN FARIÑA, KATHERINE G. RODI, CANDACE R.
MCLAREN, MYRIAM M BERARDINO, ANNA STEEL, CITY
OF NEW YORK,

                         Defendants.**
*
  Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
**
     The Clerk of the Court is respectfully directed to amend the caption as set forth above.
_____________________________________

For Plaintiff-Appellant:                  JAY B. ITKOWITZ (Ashley Winters, on the brief),
                                          Itkowitz PLLC, New York, New York.

For Defendants-Appellees:                 MERYL HOLT (Richard Dearing, Jeremy W. Shweder,
                                          on the brief), for Zachary W. Carter, Corporation
                                          Counsel of the City of New York, New York, New
                                          York.

        Appeal from a judgment of the United States District Court for the Southern District of

New York (Oetken, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Rosemarie Richardson appeals from a February 24, 2017 judgment of

the United States District Court for the Southern District of New York (Oetken, J.) granting a

motion to dismiss Richardson’s Complaint, which alleged that Defendants-Appellees, her former

employers, violated the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution and New York law.     In addition to her appeal, Richardson asks the Court to take

judicial notice of three documents: a publicly available city regulation, the New York City Board

of Education’s (“BOE”) Regulation of the Chancellor C-205; and two publicly available

collective bargaining agreements between the Board of Education of the City School District of

the City of New York and the Council of Supervisors and Administrators of the City of New

York.   We presume the parties’ familiarity with the underlying facts, the procedural history, and

the issues presented for review.

I.      Background

        Until her July 2012 retirement, Richardson had been a tenured administrator in the New

York City Department of Education’s (“DOE”) Committee on Preschool Special Education


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(“CPSE”). CPSE makes decisions regarding DOE services for children with special needs

between three and five years old.      At the time of her retirement, Richardson was under

investigation by the DOE’s Office of Special Investigations (“OSI”), based on a complaint by a

parent of one of Richardson’s special needs students, claiming that Richardson had falsely

documented the parent’s telephonic participation in a June 28, 2011 review of the student’s

individualized education program (“IEP”).    An IEP details a specific educational program for a

special needs student. The parent was adamant that she did not participate, telephonically or

otherwise, in the June 28, 2011 review of her child’s IEP.

       As the investigation progressed, the OSI learned of additional allegations that Richardson

failed to: (1) respond to repeated requests from the parent and the student’s service provider to

change the student’s IEP; (2) contact the parent to schedule the June 28, 2011 review and ensure

that the parent could attend; (3) contact the student’s service provider to schedule the June 28,

2011 review and ensure that the service provider could attend; and (4) follow certain mandated

timelines, by not responding to at least three letter requests from the parent and others that the

child’s IEP be re-evaluated and by not scheduling an appointment with the parent for the

student’s IEP review.

       On November 29, 2011, an OSI investigator told Richardson that she was the subject of

an investigation.   On December 16, 2011, the OSI investigator interviewed Richardson,

accompanied by her union representative.        During the interview, Richardson denied the

allegations against her. On July 1, 2012, before any disciplinary charges were brought against

her, Richardson retired.

       Approximately six weeks after Richardson retired, another OSI investigator substantiated

all of the above allegations against Richardson in an OSI Investigative Report dated August 14,


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2012.   The OSI report recommended that Richardson “be placed on the Ineligible List and not

be considered for future employment with the DOE.”      The Director of OSI approved the report.

Richardson became aware of her placement on the Ineligible List in connection with her 2015

application for an educational position with Manual Therapy Center, Inc., a DOE vendor. As

part of the vetting process, her name was submitted to the DOE for security clearance. In a

letter dated July 28, 2015, the DOE denied Richardson’s application, based upon the OSI

report’s findings.   Richardson retained counsel and requested that the DOE reconsider its

decision. After reviewing Richardson’s request and her “entire file,” the Director of the DOE’s

Office of Employee Relations affirmed the original findings in a letter dated October 20, 2015.

II.     Procedural History

        Richardson brought this action in the United States District Court for the Southern

District of New York, alleging violations of the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution and New York law. The three entity defendants—the

DOE, the BOE, and the City of New York1—moved to dismiss.                   The five remaining

defendants, all individuals, have never appeared.       The district court granted the motion,

dismissing Richardson’s procedural due process claim and declining to exercise supplemental

jurisdiction over her state-law claims.   Finding that the reasoning as to the entity defendants

applied to the individual defendants, the district court also dismissed the claims against the

individual defendants.

III.    Discussion

        We begin with Richardson’s pending motion for judicial notice.           In reviewing a


1
 In her opposition to defendants’ motion to dismiss below, Richardson conceded that the City of
New York was not properly a party to this case and consented to its dismissal as a defendant.


                                                4
complaint on appeal from a motion to dismiss, we are not precluded “from taking notice of items

in the public record.” Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986).            Courts may take

judicial notice “at any stage of the proceeding.” Fed. R. Evid. 201(d). Under Federal Rule of

Evidence 201(b)(2), courts may judicially notice facts that are “not subject to reasonable dispute

because [they] . . . can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Here, the three documents at issue (a city regulation and two

collective bargaining agreements between the BOE and a teachers union) are all public

documents, promulgated by or binding on a government agency, and not subject to reasonable

dispute, as their contents “can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).         Accordingly, the Court

GRANTS Richardson’s unopposed motion for the Court to take judicial notice of the three

public documents cited above.

          Moving on to the merits of the present appeal, we review de novo a district court’s grant

of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), accepting all factual

allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff.

See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). For motion to dismiss purposes, a

complaint is deemed to include “any written instrument attached to it as an exhibit.” Rothman

v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.

1989)).     “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Although a court must accept as true all the factual allegations in the complaint, that requirement

is “inapplicable to legal conclusions.” Id.


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         Upon review, substantially for the reasons stated by the district court, we conclude that

Richardson failed plausibly to allege violations of the Due Process Clause. “A procedural due

process claim is composed of two elements: (1) the existence of a property or liberty interest that

was deprived and (2) deprivation of that interest without due process.” Bryant v. N.Y. State

Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012). In the absence of a protected property interest,

a procedural due process claim must fail.

         Under this Circuit’s precedent in Finley v. Giacobbe, and various New York state court

decisions, Richardson’s voluntary retirement “foreclose[d]” her from “seek[ing] the protections

of her previous rights as an employee.” Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996)

(quoting Girard v. Bd. of Educ., 168 A.D.2d 183, 186 (4th Dep’t 1991)) (second alteration in

original). As the Court explained in Finley, a public employee “cannot complain of procedural

defects and omissions[] because she resigned before her employer took all the steps necessary to

fire her,” and this resignation “makes it impossible for her to demonstrate that she would not

have received the[] [procedural protections] prior to her actual firing.”        Id.   The public

employee in Finley, we said, “short-circuited the process by tendering her resignation” and thus

the “claim that she was not given procedural rights to which she was entitled accordingly must

fail.”   Id.

         Richardson asserts that Finley is distinguishable because the public employee there was

an at-will employee, whereas Richardson had tenure at the time of her retirement.        However,

nothing in Finley suggests that its reasoning was cabined to at-will employees; its logic is

equally applicable to tenured and at-will employees.      As in Finley, Richardson’s retirement

“short-circuited the [disciplinary] process” and “ma[d]e[] it impossible for her to demonstrate

that she would not have received” the procedural protections she cites, such as a disciplinary


                                                 6
hearing following the DOE’s investigation.        Id.   Indeed, the at-will status of the public

employee in Finley was seemingly irrelevant to the Court’s analysis, as the Court did not

highlight the employee’s at-will status when rejecting her procedural due process claim.

Furthermore, the court in Finley explicitly cited and relied on Girard, a Fourth Department case

brought by a tenured assistant superintendent (which itself quoted Matter of Cannon v. Ulster

Cty. Bd. of Coop. Educ. Servs., 155 A.D.2d 846, 847 (3d Dep’t 1989), an action brought by a

tenured guidance counselor), for the central holding relevant here: that, by retiring, the employee

was “foreclose[d]” from “seek[ing] the protections of her previous rights as an employee.”

Finley, 79 F.3d at 1296 (quoting Girard, 168 A.D.2d at 186).     Thus, Richardson’s tenure status

does not fundamentally alter the inquiry; Finley still governs (and largely disposes of)

Richardson’s case.

        Additionally, Richardson is unable to point to a statutory or contractual source that

provides retired employees with a protected property interest in future DOE employment.        The

default rule in this Circuit is that prospective government employment is not a protected property

interest.   Abramson v. Pataki, 278 F.3d 93, 100 (2d Cir. 2002); MacFarlane v. Grasso, 696

F.2d 217, 221 (2d Cir. 1982).      For an applicant to have a protected property interest in a

government position, “the applicant ‘clearly must have more than an abstract need or desire for

it.   He must have more than a unilateral expectation of it. He must, instead, have a legitimate

claim of entitlement to it.’” MacFarlane, 696 F.2d at 221–22 (quoting Bd. of Regents v. Roth,

408 U.S. 564, 577 (1972) (emphasis added by the court in MacFarlane)).

        Richardson asserts that (1) state law procedural protections; (2) the Chancellor’s

Regulations (for the first time on appeal); and (3) the union’s collective bargaining agreement

(also for the first time on appeal) endow her—as a retired tenured employee—with a


                                                7
constitutionally protected property interest in DOE employment.      Even if Richardson did not

waive the latter two arguments, all three lack merit.

       First, Richardson argues that she was “explicitly protected” by Section 3020-a of the New

York Education Law, which she asserts entitled her to a “hearing” and “a right and opportunity

to contest charges . . . before disciplinary action may be taken,” such as deprivation of her

employment.      Pl.-Appellant Br. 5 (emphasis in original).    But the statute applies only to

employees “enjoying the benefits of tenure” and confronting formal disciplinary charges. See

N.Y. Educ. Law § 3020-a(1).          As noted above in the discussion of Finley, absent explicit

statutory or contractual rights to the contrary, tenure status does not persist beyond an

employee’s resignation or retirement. See Springer v. Bd. of Educ. of City Sch. Dist. of City of

New York, 27 N.Y.3d 102, 108 (2016); Girard, 168 A.D.2d at 184–85; Matter of Cannon, 155

A.D.2d at 847.    Here, in August 2012, when the OSI recommended that the DOE not consider

Richardson for future employment, Richardson had already retired and thus was no longer

“enjoying the benefits of tenure.”     Therefore, as soon as she retired, Richardson relinquished

Section 3020-a’s procedural protections.       And, in any event, Section 3020-a’s procedural

protections do not create a protectable, substantive property interest in DOE employment.

       Second, Richardson, for the first time on appeal, contends that under the BOE’s

Regulation of the Chancellor C-205, retirees “continue to possess rights of employment with the

DOE,” namely: (1) the right to “perform substitute service”; and (2) the “right to reinstatement.”

Pl.-Appellant Br. 18.    Richardson points to paragraph 32 of the Regulation for the right to

“perform substitute service,” which allows that “a retired employee may perform substitute

service after resignation . . . .”    A-119 at ¶ 32 (emphasis added).         For the “right to

reinstatement,” Richardson cites paragraph 33 of the Regulation, which provides that “a retired


                                                  8
pedagogical employee may, at the discretion of the Executive Director of the Division of Human

Resources and after written request, be permitted to terminate retirement if” no fewer than four

specific requirements are met.    A-120 at ¶ 33 (emphasis added).        These provisions, with their

permissive and conditional language, plainly afford the DOE significant discretion in employing

retirees.   Accordingly, Regulation of the Chancellor C-205 does not give Richardson a

“legitimate claim of entitlement” to future employment with a DOE vendor rising to the level of

a constitutionally protected property interest.

        Third, Richardson, also for the first time on appeal, argues that the union’s collective

bargaining agreement requires that, prior to her retirement: (1) the OSI investigation “should

have been concluded”; and (2) she should have been notified of the OSI investigation’s results.

Pl.-Appellant Br. 17.    Specifically, Richardson references paragraph 7.A., which says that the

“DOE shall review each open investigation open longer than 180 days within 30 days from the

180th day,” and paragraph 7.D., which notes that “[e]mployees who are the subject of an

investigation by the Office of Special Investigations . . . shall be notified of the result of the

investigation 30 days after the investigation is completed.”           A-239; A-240.     Under these

timelines, Richardson submits, 180 days from the investigation’s opening was April 10, 2012,

thirty days from that was May 10, 2012, and thirty days from that was June 9, 2012.             Since

Richardson retired on July 1, 2012, she contends that the investigation should have concluded

and she should have been notified of its results prior to her retirement.

        This argument fails for several reasons.       First, these provisions do not mandate that OSI

investigations conclude within 180 or 210 days from commencement; rather, they merely

provide that the DOE “shall review” investigations open for 180 days “within 30 days from the

180th day.” A-239. Richardson has never alleged nor is there anything in the record to


                                                   9
suggest that the DOE failed to perform such a “review” of the OSI investigation. Second, to the

extent that Richardson claims that—even following her retirement—she was entitled to notice of

the OSI investigation’s results within 30 days after completion, the collective bargaining

agreement grants this right only to “[e]mployees,” A-240, a category that no longer included

Richardson once she retired. See Finley, 79 F.3d at 1296 (quoting Girard, 168 A.D.2d at 186).

Additionally, although the term “employee” is undefined in the collective bargaining agreement,

the agreement distinguishes between active “employees” and “retirees” in various provisions.

See, e.g., A-149 (“With respect to any retiree who returns to temporary or part-time employment

with the DOE without rescinding his/her retirement, the DOE . . . shall not be required to make

payments on such retiree’s behalf to an active employees’ welfare fund.”); A-223 (separately

referring to “employees” and “retirees”).     Therefore, once Richardson retired, the DOE had no

contractual obligation to notify her of the investigation’s results.   And, regardless, the collective

bargaining agreement’s procedural protections do not generate a protectable, substantive

property interest in DOE employment.

         In sum, because Richardson cannot plausibly allege the existence of a protected property

interest of which she was deprived, her procedural due process claim fails.        And, because the

district court was correct in dismissing Richardson’s lone federal claim—the procedural due

process claim—it did not err in declining to exercise supplemental jurisdiction over Richardson’s

state-law claims.   See 28 U.S.C. § 1367(c)(3); Delaney v. Bank of Am. Corp., 766 F.3d 163, 170

(2d Cir. 2014).

         We have considered Richardson’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

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