13‐4305‐cv Broomer, et al. v. Huntington Union Free School District, et al.

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 19th day of May, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR., ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges. ______________________

MARILYN BROOMER, KRISTIN KOPF,

Plaintiffs‐Appellants,

‐v.‐ No. 13‐4305‐cv

HUNTINGTON UNION FREE SCHOOL DISTRICT, CARMEN CASPER, JOHN FINELLO, JOSEPH GIANI, JAMES POLANSKY,

Defendants‐Appellees.

______________________

1 FOR APPELLANTS: Steven A. Morelli, The Law Offices of Steven A. Morelli, P.C., Garden City, NY.

FOR APPELLEES: Steven C. Stern (Melissa L. Holtzer, on the brief), Sokoloff Stern LLP, Carle Place, NY.

Appeal from the United States District Court for the Eastern District of New York (Hurley, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Marilyn Broomer and Kristin Kopf (collectively, “Plaintiffs”) appeal from

the October 11, 2013 judgment of the United States District Court for the Eastern

District of New York (Hurley, J.), granting Defendants‐Appellees’ motion to

dismiss.

On appeal, Plaintiffs argue that the district court erred in dismissing their

procedural due process claim.1 Specifically, they contend that Defendants‐

Appellees violated their procedural due process rights by failing to provide

evidentiary hearings prior to excessing Plaintiffs. Plaintiffs ground this claim on

New York Education Law Section 2510(1), which some courts have suggested

may require a predeprivation hearing when a tenured teacher’s position is

abolished and a similar position is concurrently created. See, e.g., DeSimone v. Bd.

Plaintiffs do not challenge the dismissal of their claims alleging violations of the Equal 1

Protection Clause of the Fourteenth Amendment and various state and local laws.

2 of Educ., S. Huntington Union Free Sch. Dist.,

, 1570–71 (E.D.N.Y.

1985).

Even were we to conclude that Plaintiffs were terminated and that a

pretermination hearing is required when a tenured teacher’s position is

abolished and a similar post is concurrently created – two issues we do not reach

– Plaintiffs fail to plausibly plead that the newly created positions in this case

were similar to their old positions.

We have also analyzed Plaintiffs’ due process claim under the framework

set forth in Mathews v. Eldridge,

(1976). Weighing all of the Mathews

factors in the balance, Plaintiffs have not plausibly alleged a procedural due

process violation.

We have considered Plaintiffs’ remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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