18‐1298‐cv
Mudge v. Zugalla, Harder

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                               August Term, 2018
          (Argued: March 28, 2019            Decided: September 12, 2019)
                             Docket No. 18‐1298‐cv



                               RANDY A. MUDGE,
                                Plaintiff‐Appellee,

                                        v.

                      ANNE M. ZUGALLA, DANIEL HARDER,
                           Defendants‐Appellants.


Before:     SACK, HALL, AND DRONEY, Circuit Judges.

      The plaintiff‐appellee, Randy Mudge, was terminated from his position as

a substitute teacher in the Middleburgh Central School District, a public‐school

district located in Middleburgh, New York, after the defendants‐appellants,

Anne Zugalla and Daniel Harder, employees of the New York State Department

of Education, informed the School Districtʹs superintendent that they had opened

an ethics investigation into Mudgeʹs conduct. The plaintiff brought suit in the



 
  The Clerk of Court is respectfully directed to amend the caption as set out
above.
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                                                                  Mudge v. Zugalla, Harder

United States District Court for the Northern District of New York, pursuant to

42 U.S.C. § 1983, alleging in relevant part procedural due process and stigma‐

plus claims related to the termination of his employment. The defendants

asserted a qualified immunity defense. The district court (David N. Hurd, Judge)

denied the defendantsʹ motion for summary judgment, but did not address the

defendantsʹ qualified immunity defense. On a motion for reconsideration, the

district court, addressing that issue for the first time, concluded that the

defendants were not entitled to qualified immunity because the plaintiff had

demonstrated that the defendants had violated clearly established law. On

appeal, the defendants argue that the district court erred in denying their motion

for summary judgment based on qualified immunity. We agree. With respect to

the plaintiffʹs due process claim, we conclude that Mudge has failed to establish a

clearly established right to the meaningful opportunity to utilize his teaching

license. He has also failed to demonstrate that the defendantsʹ conduct was

sufficiently stigmatizing under clearly established law so as to give rise to a

ʺstigma‐plusʺ claim. The defendants are, therefore, entitled to qualified




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immunity, and the district court erred in denying summary judgment as to both

claims. The judgment of the district court is therefore:

      REVERSED and REMANDED with instruction.

                                         JENNIFER L. CLARK (Barbara D. Underwood,
                                         Andrea Oser, on the brief), New York State
                                         Office of the Attorney General, Albany,
                                         NY, for Defendants‐Appellants,
                                         BRIAN D. DEINHART (Phillip G. Steck, on the
                                         brief), Cooper Erving & Savage LLP,
                                         Albany, NY, for Plaintiff‐Appellee.
SACK, Circuit Judge:

      The plaintiff‐appellee, Randy Mudge, is a physical education teacher and

school administrator licensed by New York State. In 2008, Mudge was

investigated and charged by the New York State Education Department for

committing acts of sexual misconduct with former students, resulting in a one‐

year suspension of his state licenses.

      Mudge subsequently obtained employment as a substitute teacher in the

Middleburgh Central School District. Shortly thereafter, however, defendants‐

appellants, Anne Zugalla and Daniel Harder, employees of the New York State

Department of Education, informed the School Districtʹs superintendent that

they were instituting an investigation into Mudgeʹs conduct. Although the




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defendants ultimately concluded that there were no grounds for an investigation,

the plaintiff was terminated from his teaching position.

      The plaintiff brought suit against the defendants pursuant to 42 U.S.C.

§ 1983, alleging procedural due process and so‐called ʺstigma‐plusʺ claims

related to the termination of his employment. The defendants asserted a

qualified immunity defense.

      The district court denied the defendantsʹ motion for summary judgment

but did not address the defendantsʹ qualified immunity defense. On a motion for

reconsideration, the district court, addressing that issue for the first time,

concluded that the defendants were not entitled to qualified immunity.

On appeal, the defendants argue that the district court erred in denying their

motion for summary judgment based on qualified immunity. For the reasons

that follow, we agree. The plaintiffʹs procedural due process claim cannot stand

because he has failed to establish a clearly established right to the meaningful

opportunity to utilize his teaching license. He has also failed to demonstrate that

the defendantsʹ conduct was sufficiently stigmatizing under clearly established

law so as to give rise to a ʺstigma‐plusʺ claim. We therefore reverse the judgment




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and remand the case with instruction to the district court to enter summary

judgment in favor of the defendants.

                                BACKGROUND

      General Factual Background

      The plaintiff‐appellant Randy Mudge is a physical education teacher and

school administrator licensed in New York State.1 He brings this suit against two

employees of the New York State Education Department (the ʺNYSEDʺ): Anne

Zugalla, a senior professional conduct investigator, and Daniel Harder, a senior

attorney in the Office of School Personnel Review and Accountability (ʺOSPRAʺ).

OSPRA is the department within the NYSED charged with investigating

allegations concerning the moral character of New York State teaching license‐

holders.

      From 1987 to 2010, the plaintiff worked in the Hunter‐Tannersville Central

School District (ʺHTCʺ) as a physical education teacher and athletic coach. In

2006, HTC received complaints that some twenty years before, the plaintiff had

engaged in sexual behavior with two students. The school reported these




1Because this case was decided on a motion for summary judgment, we view the
facts in the light most favorable to the non‐moving party—in this case, the
plaintiff. Anthony v. City of New York, 339 F.3d 129, 134 (2d Cir. 2003).
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complaints to OSPRA. Between 2006 and 2008, OSPRA prosecuted the plaintiff

in a Part 83 proceeding, a hearing before an administrative panel to determine

whether a claim of misconduct against a teaching‐license holder raises a

reasonable question of moral character. See 8 NYCRR § 83.1 et seq. Defendant

Harder was the OSPRA attorney responsible for the plaintiffʹs prosecution. The

administrative panel determined that, in 1989 and 1992, Mudge ʺgroomedʺ two

students for sexual activity while they were in high school and had sexual

relationships with them shortly after they graduated. It recommended a one‐

year suspension of the plaintiffʹs teaching licenses. Mudge served his suspension

from May 2009 to May 2010. He subsequently resigned from his position at

HTC.

       In the autumn of 2011, the plaintiff applied for a middle school principal

position in the Middleburgh Central School District (ʺMiddleburghʺ). The

application did not require Mudge to report his prior teaching suspension. The

interview committee became aware of it nonetheless as a result of an online

search by committee members into each of the candidates, including Mudge. As

a result, Middleburghʹs superintendent, Michele Weaver, informed Mudge that

he would not be considered for the position. She subsequently had a ʺfull and



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frankʺ conversation with him about his suspension. Plaintiff Affidavit in

Response to Summary Judgment at 2 (Joint Appendix (ʺJ.A.ʺ) 300 ¶ 9).

Thereafter, Mudge applied for a position as a Middleburgh substitute teacher. In

December 2011, the Middleburgh Board of Education (ʺthe Boardʺ) hired him

notwithstanding its knowledge of his prior suspension. Mudge began serving as

the substitute for a physical education teacher who had taken a medical leave of

absence.

      In early 2012, Harder, the OSPRA lawyer who had prosecuted the Part 83

proceeding that resulted in Mudgeʹs suspension, received a phone call from a

member of the public, unidentified in the record, informing him that the plaintiff

had obtained employment at Middleburgh. Harder thought that a failure to

truthfully reveal prior discipline or professional certificate history raised a

question of moral character that could subject a license‐holder to a Part 83

proceeding. See 8 NYCRR § 83.1 et seq.; Harder Declaration at 46 ¶ 22 (J.A. 46).

Harder therefore decided to review Mudgeʹs employment application to

Middleburgh to see whether that information had been accurately reported. To

do so, he requested that Investigator Zugalla acquire a copy of Mudgeʹs

Middleburgh employment application.



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      On February 2, 2012, Zugalla telecopied a form letter (the ʺFebruary 2012

Letterʺ) to Superintendent Weaver seeking the plaintiffʹs Middleburgh

employment application. In relevant part, the letter stated that the NYSED had

ʺcommenced an investigationʺ against Mudge. February 2012 Letter at 2 (J.A.

172). It continued:


             Pursuant to Department authority to investigate such
             matters as set forth in 8 NYCRR §83.2, I am requesting
             that you provide this office with a complete copy of
             [Middleburghʹs] investigation (audit) pertaining to Mr.
             Mudge including but not limited to: employment status
             and length of employment (start and end dates),
             application for employment, and resume.

Id. (emphasis omitted). Later that day, Harder received a copy of Mudgeʹs

employment application from Middleburgh. Harder noted that the application

had not, in fact, required the plaintiff to report his discipline or certificate history.

Harder therefore concluded that there was no ground for an investigation into

Mudgeʹs conduct. But the NYSED did not inform Middleburgh that they would

not be pursuing the investigation further.

      Although Superintendent Weaver was aware of Mudgeʹs previous

suspension, the report that the NYSED was initiating an investigation into his

conduct worried her. She reported the matter to the Board. She also asked


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Mudge whether he was, at the time, under investigation by the NYSED. Mudge

responded that he had no knowledge of such an investigation. At about the

same time, Zugalla also called Superintendent Weaver to question

Middleburghʹs decision to employ Mudge, plainly suggesting that because of his

suspension, the plaintiff should not have been hired.

      On February 10, 2012, Superintendent Weaver filed a request with the

NYSED under New Yorkʹs Freedom of Information Law, N.Y. Public Officers

Law §§ 84‐90, for copies of ʺall documents regarding complaints, investigations

and/or determinations of any misconduct or alleged misconductʺ pertaining to

the plaintiff. Defendantsʹ Statement Pursuant to Rule 7.1(a)(3) at 11 ¶ 72 (J.A.

132). In late February, Superintendent Weaver received a response to her request

from the NYSED, which included documents pertaining to the plaintiffʹs initial

suspension. It contained no information about a subsequent investigation.

      In June 2012, the Board appointed Mudge as a permanent substitute

teacher, a title that applied retroactively to the start of his employment.

Nevertheless, when the physical education teacher he was covering for requested

an extension of her leave, requiring the Board to hire a permanent substitute

teacher for the subsequent school year, Mudge was not given the opportunity to



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interview to continue in the position. In August 2012, the Board approved a list

of proposed substitute teachers for the 2012‐13 school year, which included

Mudge. But the following month, in a public session, the Board unanimously

voted to remove Mudge from the list. There had been no criticism of Mudgeʹs

performance before his termination. There is persuasive evidence in the record,

however, that pressure from the NYSED was a significant factor in the Boardʹs

decision to remove him.

      In October 2012, an article appeared in a local newspaper reporting that

Middleburgh had removed ʺex‐teacherʺ Mudge from the substitute‐teacher list.

David Avitabile, MCS Removes Ex‐Teacher from Substitute List, SCHOHARIE TIMES

JOURNAL, Oct. 3, 2012, at 9 (J.A. 397). It linked Mudgeʹs removal from the

substitute‐teacher list to his earlier suspension for sexual misconduct but made

no mention of a new or pending investigation into his behavior. Since the

publication of that article, the plaintiff has been unable to obtain employment as

a substitute teacher, teacher, or administrator in the State of New York or

elsewhere, so far as the record discloses. Mudge has been told by prospective

public‐school employers that they would not hire him because of the negative

effect on public opinion engendered by that article.



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       Procedural History

      In July 2013, Mudge filed a civil rights action for damages and injunctive

relief, pursuant to 42 U.S.C. § 1983, in the Northern District of New York against

defendants Harder and Zugalla, as well as additional individual and institutional

defendants who are not parties to this appeal.2 In March 2015, he filed an

amended complaint, the operative pleading with respect to this appeal, asserting

two causes of action related to his Middleburgh employment: (1) a procedural

due process claim alleging that the defendants denied him the meaningful

opportunity to use his teaching license; and (2) a ʺstigma‐plusʺ claim alleging

that the defendantsʹ statements to Middleburgh harmed his reputation, led to his

termination, and continue to prevent him from obtaining reemployment. In June

2015, the defendants filed a motion for summary judgment, arguing that they

were entitled to qualified immunity as to both claims as a matter of law.

      In January 2016, the district court (David N. Hurd, Judge) denied summary

judgment for the defendants on the plaintiffʹs Middleburgh claims. The court

concluded that the plaintiff had sufficiently established a procedural due process

claim. It noted that a teaching license ʺentitles its holder to a ʹmeaningful


2All of Mudgeʹs claims, aside from those arising from his employment at
Middleburgh, were dismissed by the district court and have not been appealed.
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opportunity to seek employment pursuant to the license.ʹʺ Mudge v. Zugalla, No.

13 Civ. 891, Dkt. #59, at 7 (N.D.N.Y. Jan. 6, 2016) (quoting Lombard v. Bd. of Educ.,

645 F. Supp. 1574, 1577 (E.D.N.Y. 1986)). It further reasoned that the ʺvague

wordingʺ of the February 2012 Letter coupled with the defendantsʹ failure to

inform Middleburgh that they had concluded their investigation            ʺcould

easily [have] been interpreted as an indication of new misconductʺ engaged in by

Mudge. Id. at 10. The court therefore concluded that a trier of fact could find

that the defendantsʹ actions ʺnegatively impacted Mudgeʹs employment statusʺ

and ʺdenied [him] a meaningful opportunity to utilize his teaching license

without due process.ʺ Id. at 11.

      The district court also concluded that the plaintiff had established a

ʺstigma‐plusʺ claim. The court decided that the defendantsʹ statements in the

February 2012 Letter were stigmatizing because they ʺeasily might have been

interpreted as an allegation of new misconduct on the part of plaintiff unrelated

to his prior suspensionʺ and ʺcould be viewed as sufficient[ly] derogatory to

injure plaintiffʹs reputation.ʺ Id. at 15. It further reasoned that the plaintiff had

demonstrated that the stigmatizing statements were false, publicized, and

temporally proximate to his dismissal. The district court concluded that a trier of



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fact could find that the plaintiffʹs termination resulted from these statements. It

did not address the defendantsʹ qualified immunity defense as to either claim.

      In January 2016, the defendants filed a motion for reconsideration as to

both claims on the ground that the district court ʺcompletely overlookedʺ their

qualified immunity defense. Dist. Ct. Dkt. #60‐2 at 2. In March 2018, the district

court denied the defendantsʹ motion in its entirety. The court concluded that

ʺ[a]t the time of Mudgeʹs employment at the Middleburgh District, it was well

established that a state actor could not interfere with an individualʹs teaching

license.ʺ Mudge v. Zugalla, 13 Civ. 891, Dkt. #70, at 11 (N.D.N.Y. Mar. 31, 2018).

On that basis alone, the district court concluded that the defendants ʺwould have

been aware that they were violating plaintiffʹs constitutional rights if they did

interfere.ʺ Id. The district court further determined that the defendantsʹ decision

to ʺinterject themselves into [Mudgeʹs] existing employment with the

Middleburgh District,ʺ by sending the February 2012 Letter, was not ʺobjectively

reasonable.ʺ Id. Accordingly, the district court denied the defendantsʹ motion

for reconsideration.




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                                     DISCUSSION

          On appeal, the defendants argue that the district court erred by deciding

that they were not entitled to qualified immunity. Specifically, they argue that

even accepting Mudgeʹs allegations as true, as we and the district court must at

this stage of the proceedings, he has failed to allege sufficiently that they violated

his clearly established rights so as to defeat a qualified immunity defense. For

the following reasons, we agree. The plaintiff has failed to establish that the right

to the meaningful use of his teaching license was clearly established at the time.

He has also failed to demonstrate that the defendantsʹ conduct was sufficiently

stigmatizing under clearly established law so as to give rise to a ʺstigma‐plusʺ

claim. We therefore reverse the judgment and remand the case with instruction

to the district court to enter summary judgment in favor of the defendants.

     I.      Jurisdiction and Standard of Review

          We have jurisdiction to review the denial of qualified immunity on

interlocutory appeal ʺto the extent it can be resolved on stipulated facts, or on the

facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff

that the trial judge concluded the jury might find.ʺ Terebesi v. Torreso, 764 F.3d

217, 222 (2d Cir. 2014) (internal quotation marks omitted). We review a district



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courtʹs decision on a motion for summary judgment de novo to determine

whether there was ʺno genuine dispute as to any material fact, such that the

moving party was entitled to judgment as a matter of law.ʺ Myers v. Patterson,

819 F.3d 625, 632 (2d Cir. 2016). We do so ʺresolving all ambiguities and drawing

all factual inferences in plaintiff[ʹs] favor as the non‐moving party.ʺ Anthony v.

City of New York, 339 F.3d 129, 134 (2d Cir. 2003).


    II.      Qualified Immunity

          Qualified immunity protects public officials from legal actions brought

under 42 U.S.C. § 1983 if their behavior does not violate ʺclearly established

statutory or constitutional rights of which a reasonable person would have

known.ʺ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ʺThe issues on qualified

immunity are: (1) whether plaintiff has shown facts making out [a] violation of a

constitutional right; (2) if so, whether that right was clearly established; and

(3) even if the right was clearly established, whether it was objectively reasonable

for the officer to believe the conduct at issue was lawful.ʺ Gonzales v. City of

Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (internal quotation marks omitted).

We are ʺpermitted to exercise [our] sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light


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of the circumstances in the particular case at hand.ʺ Pearson v. Callahan, 555 U.S.

223, 236 (2009).

      For a right to be clearly established, its ʺcontours . . . must be sufficiently

clear [such] that a reasonable official would understand that what he is doing

violates that right.ʺ Anderson v. Creighton, 483 U.S. 635, 640 (1987). That

generally entails looking to ʺSupreme Court decisions, our own decisions, and

decisions from other circuit courts.ʺ Simon v. City of New York, 893 F.3d 83, 92 (2d

Cir. 2018); see also Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (ʺWhen neither

the Supreme Court nor this court has recognized a right . . . the holdings of

district courts cannot act to render that right clearly established within the

Second Circuit.ʺ).

    1. Procedural Due Process Claim

      The defendants argue that the district court erred in denying their

qualified immunity defense as to the plaintiffʹs procedural due process claim.

We agree.

      Multiple district and state courts have expressed the view that New York

State recognizes that a teaching‐license holder is entitled to a ʺmeaningful

opportunityʺ to seek employment pursuant to that license, and that denial of



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such an opportunity constitutes a constructive revocation without due process.

See Rogovin v. N.Y. City Bd. Educ., No. 99 Civ. 3382 (ERK), 2001 WL 936191, at *4,

2001 U.S. Dist. LEXIS 11923, at *13 (E.D.N.Y. Aug. 17, 2001) (explaining that

ʺNew York State recognizes that a teaching license entitles its holder to a

meaningful opportunity to seek employment pursuant to that licenseʺ); accord

Lombard v. Bd. of Educ. of City of New York, 645 F. Supp. 1574, 1578‐79 & n. 5

(E.D.N.Y. 1986) (citing cases). The plaintiff contends that the defendants violated

his procedural due process rights by denying him a meaningful opportunity to

seek employment pursuant to his teaching license.3


      Assuming arguendo that a constitutional violation did, in fact, take place,

the plaintiff has failed to establish that the right was clearly established at the

time of the defendantsʹ conduct. The constitutional right to the meaningful use

of a teaching license has not been recognized by the Supreme Court or by this

Court; it has, as noted, been adopted by federal‐district and state courts only. In

the qualified immunity context, that is insufficient to constitute ʺclearly



3Mudge did not otherwise have a property interest in his Middleburgh
employment because he was an at‐will employee. See Abramson v. Pataki, 278
F.3d 93, 99 (2d Cir. 2002) (ʺEmployees at will have no protectable property
interest in their continued employment.ʺ).

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establishedʺ law. Pabon, 459 F.3d at 255; Simon, 893 F.3d at 92. And although

state law may create property interests, it cannot, of its own force, create a clearly

established substantive federal constitutional right. See Memphis Light, Gas and

Water Div. v. Craft, 436 U.S. 1, 9 (1978) (ʺAlthough the underlying substantive

interest is created by an independent source such as state law, federal

constitutional law determines whether that interest rises to the level of a

legitimate claim of entitlement protected by the Due Process Clause.ʺ (internal

quotation marks omitted)).4

      Because the plaintiff has failed to establish that the defendants violated his

clearly established due process right, the district court erred in denying the




4 The plaintiff cites Palkovic v. Johnson, 281 F. Appʹx 63, 64 (2d Cir. 2008), a non‐
precedential summary order, for the proposition that ʺreinitiating removal
proceedings against a teacher after failing to achieve termination in [a] prior
proceeding, where no new grounds for termination [a]re identified, create[s] a
legally cognizable due process violation.ʺ Pl. Br. 17. But even were we to treat
Palkovic as persuasive and accept the plaintiffʹs characterization of its holding, it
still would not support Mudgeʹs argument in this regard. That is because
Palkovic did not involve circumstances ʺsimilar,ʺ White v. Pauly, 137 S. Ct. 548, 552
(2017), to those presented here. There, the plaintiff alleged that the defendants
initiated three proceedings, based upon the same evidence, in order to achieve
their desired result. Palkovic, 281 F. Appʹx at 65‐66. Here, by contrast, the
defendants did not attempt to relitigate the plaintiffʹs first administrative
proceeding, in which they prevailed. Instead, they were considering whether to
charge the plaintiff with a wholly separate offense: the failure to report a prior
suspension.
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defendants qualified immunity as to that claim and declining to grant summary

judgment with respect to it.


    2. Stigma‐Plus Claim

      The defendants also argue that the district court erred in denying them

qualified immunity as to the plaintiffʹs ʺstigma‐plusʺ claim. Here too, we agree

with them.

      Under ʺlimited circumstances,ʺ government employees may have a cause

of action for defamation in the course of, or in connection with, dismissal from

government employment. Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010). To prevail

on such a ʺstigma‐plusʺ claim, a plaintiff must demonstrate ʺ(1) the utterance of a

statement sufficiently derogatory to injure his or her reputation, that is capable of

being proved false, and that he or she claims is false, and (2) a material state‐

imposed burden or state‐imposed alteration of the plaintiffʹs status or rights.ʺ

Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (internal quotation marks

omitted). The relevant state‐imposed burden must be separate from the

stigmatizing statement and may take the form of a ʺdeprivation of a plaintiffʹs

propertyʺ or the ʺtermination of a plaintiffʹs government employment.ʺ Id.

While there is ʺno rigid requirement [] that both the ʹstigmaʹ and the ʹplusʹ must


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issue from the same government actor or at the same time,ʺ they must be

ʺsufficiently proximate.ʺ Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). And the

statement ʺmust be sufficiently public to create or threaten a stigma.ʺ Id. at 87.

      An alleged statement may satisfy the ʺstigmaʺ requirement if it ʺcall[s] into

question plaintiffʹs good name, reputation, honor, or integrity.ʺ Patterson v. City

of Utica, 370 F.3d 322, 330 (2d Cir. 2004) (internal quotation marks and citation

omitted). ʺStatements that ʹdenigrate the employeeʹs competence as a

professional and impugn the employeeʹs professional reputation in such a

fashion as to effectively put a significant roadblock in that employeeʹs continued

ability to practice his or her professionʹ may also fulfill this requirement.ʺ Id.

(quoting Donato v. Plainview‐Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630‐31 (2d

Cir. 1996)); see also Huntley v. Cmty. Sch. Bd. of Brooklyn, 543 F.2d 979, 985 (2d Cir.

1976) (impairment of future employment found where stigmatizing statements

made it ʺunlikely that [the plaintiff] would ever have a chance to obtain another

supervisory position in the public schools or elsewhereʺ), cert. denied, 430 U.S. 929

(1977).

      Mudge contends that the defendantsʹ statement that they had ʺopened an

investigationʺ into his conduct ʺnecessarily call[ed] into question his ʹgood name,



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reputation, honor, or integrityʹʺ because it falsely ʺsuggest[ed] that [he] was

sexually predating on students.ʺ Pl. Br. 24‐25. He further argues that the

defendantsʹ statement was sufficiently stigmatizing because it ʺimpugn[ed] [his]

moral characterʺ and, therefore, ʺeffectively put a significant roadblock in [his]

continued ability to practice his [] professionʺ because of the ʺnature of the

statement . . . combined with the wide publicity that [it] receivedʺ when it was

repeated by the Board in a public session. Pl. Br. 24‐25. That publicity led to

publication in a local newspaper of an article about his suspension history, which

he argues continues to prevent him from gaining reemployment as an educator.

      Again, the plaintiff may or may not have made out a constitutional claim,

but he has in any event failed to establish that the defendantsʹ conduct violated a

clearly established right. At the time of the defendantsʹ alleged violation, at least,

it was not clearly established that notice of the mere existence of an internal

investigation into a license holderʹs behavior, without some detail as to the

possible misconduct being investigated, could give rise to a stigma‐plus claim.

See McGuire v. Warren, 207 F. Appʹx 34, 37 (2d Cir. 2006) (summary order)

(concluding that ʺinnuendo,ʺ even if it carries a ʺfalse implication,ʺ cannot

support a stigma‐plus claim); see also Sadallah, 383 F.3d at 38 (plaintiff asserting



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stigma‐plus claim must show ʺthe utterance of a statement sufficiently

derogatory to injure his or her reputation, that is capable of being proved false,

and that he or she claims is falseʺ) (internal quotation marks omitted) . The

plaintiff has demonstrated at most that the defendants interfered with his

relationship, actual and potential, with a single employer: Middleburgh. That

falls decidedly short of demonstrating under clearly established law that the

defendants created a significant roadblock to his ability to practice his profession.

See Donato, 96 F.3d at 630‐31; see also Bishop v. Wood, 426 U.S. 341, 348 (1976) (ʺ[I]t

would stretch the [liberty interest] concept to[o] far to suggest that a person is

deprived of liberty when he simply is not rehired in one job but remains as free

as before to seek another.ʺ (citing Bd. of Reagents v. Roth, 408 U.S. 564, 575 (1972)

(internal quotation marks omitted)). Further, although the defendantsʹ statement

was repeated by the Board in a public session, the plaintiff fails to explain how

the ensuing article, and the statements therein, are ʺsufficiently proximateʺ to the

actions of the defendants under clearly established law. Velez, 401 F.3d at 89.

      The article in question does not repeat the defendantsʹ allegedly

stigmatizing statements; indeed, it makes no mention of any new or ongoing

investigation of Mudgeʹs conduct. Thus, even if Mudge had shown facts making



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                                                                         No. 18‐1298‐cv
                                                                Mudge v. Zugalla, Harder

out a stigma‐plus claim, it was objectively reasonable for the defendants to

conclude, in light of then existing law, that their conduct was lawful at the time

they engaged in it. The defendants are, therefore, entitled to qualified immunity

as to the plaintiffʹs stigma‐plus claim and summary judgment in the defendantsʹ

favor on that claim should, on remand, be granted too.

                                 CONCLUSION
      We are not unsympathetic to the plaintiff, who may have been unfairly

treated by the defendants with unfortunate results. But for the reasons set forth

above, their behavior did not give rise to a cause of action under section 1983 that

could survive the defendantsʹ qualified immunity defense. We therefore

REVERSE the judgment of the district court, and REMAND the matter to the

district court, directing it to enter summary judgment in favor of the defendants.




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