17‐3564‐cv Tooly v. Schwaller

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term 2018 6 7 (Argued: October 11, 2018 Decided: March 20, 2019) 8 9 Docket No. 17‐3564‐cv 10 11 12 PAUL TOOLY, 13 14 Plaintiff‐Appellee, 15 16 – v. – 17 18 JOHN F. SCHWALLER, 19 20 Defendant‐Appellant, 21 22 STATE UNIVERSITY OF NEW YORK AT POTSDAM, MARY DOLAN, 23 24 Defendants. 25 26 27 Before: WALKER, CALABRESI, and LIVINGSTON, Circuit Judges. 28 29 Appeal from the judgment of the United States District Court for the Northern 30 District of New York (Hurd, J.) granting in part and denying in part Defendants’ 31 motion for summary judgment. Plaintiff was an employee of Defendant State 32 University of New York at Potsdam (“SUNY”). Defendants placed Plaintiff on 33 involuntary leave and required Plaintiff to undergo a medical evaluation. Plaintiff

1

1 twice failed to appear for the medical evaluation, and Defendants eventually 2 terminated Plaintiff’s employment. 3 Plaintiff sued Defendants SUNY, Mary Dolan, and John Schwaller for (1) 4 deprivation of due process in violation of the Fourteenth Amendment, (2) 5 violation of the Equal Protection Clause of the Fourteenth Amendment, (3) 6 disability discrimination in violation of the New York State Human Rights Law, 7 and (4) retaliation in violation of the New York State Human Rights Law. The 8 district court granted summary judgment to SUNY and Dolan on all of Plaintiff’s 9 claims. It allowed Plaintiff’s disability discrimination claim against Schwaller to 10 proceed under the New York State Human Rights Law, but it dismissed Plaintiff’s 11 equal protection and retaliation claims against Schwaller. The appeal before us 12 being interlocutory and all the above decisions not being intertwined with this 13 appeal, the validity of these judgments is not before us and remains to be decided 14 in possible appeals when a final judgment in Plaintiff’s suit has been issued. 15 The district court also denied summary judgment to Defendant Schwaller 16 on Plaintiff’s procedural due process claim against him. In doing this, it rejected, 17 on the grounds that Schwaller violated some requirements of the New York Civil 18 Service Law, Schwaller’s claim that he was entitled to qualified immunity. This 19 was error. Because we further conclude that Schwaller’s conduct did not violate 20 clearly established law, and that he therefore is entitled to qualified immunity, we 21 REVERSE the district court’s decision in this respect and REMAND with 22 instructions to dismiss the procedural due process claim against Schwaller. 23 24 25 Matthew J. Blit, Levine & Blit, PLLC, New York, 26 NY, for Plaintiff‐Appellee. 27 28 Joseph M. Spadola, Assistant Solicitor General of 29 Counsel (Barbara D. Underwood, Solicitor 30 General; Andrea Oser, Deputy Solicitor General; 31 and Eric T. Schneiderman, then Attorney General 32 of the State of New York; on the brief), Albany, 33 NY, for Defendant‐Appellant. 34 35 36

2

1 GUIDO CALABRESI, Circuit Judge:

2 On December 23, 2013, Paul Tooly sued the State University of New York at

3 Potsdam (“SUNY”); Mary Dolan, Director of Human Resources at SUNY; and

4 John Schwaller, then‐President of SUNY. Tooly claimed, inter alia, that the

5 defendants violated his procedural due process rights under the Fourteenth

6 Amendment when they placed him on involuntary leave and later terminated his

7 employment. The defendants moved for summary judgment, which the district

8 court granted in part and denied in part. In relevant part, the district court denied

9 summary judgment to Schwaller on Tooly’s procedural due process claim, holding

10 that Schwaller was not entitled to qualified immunity. In doing so, the district

11 court relied heavily on its finding that Schwaller had violated the requirements of

12 the New York Civil Service Law. Schwaller now brings an interlocutory appeal

13 from that denial.

14 The only issue in this appeal is whether the district court erred in denying

15 summary judgment to Schwaller on the ground of qualified immunity. We hold

16 that it did. Failure to comply with a state procedural requirement—such as the

17 New York Civil Service Law—does not necessarily defeat a claim for qualified

18 immunity under federal law. Moreover, because Schwaller’s conduct did not

3

1 violate clearly established federal law, we further hold that he is entitled to

2 qualified immunity as a matter of law. Accordingly, we reverse this portion of the

3 district court’s decision and remand with instructions to dismiss the due process

4 claim against Schwaller.

5 BACKGROUND

6 Facts

7 Paul Tooly had been employed by SUNY as a motor vehicle operator

8 beginning in February 2000. On May 13, 2011, Melissa Proulx, Assistant Director

9 of Human Resources, wrote to the Employee Health Services division of the New

10 York State Department of Civil Service to request a mental stability evaluation of

11 Tooly. In the letter, Proulx identified a number of incidents that prompted the

12 request, including, inter alia, (1) that Tooly had interrupted a private meeting to

13 deliver a letter that made no sense to Schwaller, then‐President of SUNY; (2) that,

14 while driving his truck, Tooly had swerved toward two employees and driven

15 through a narrow gap between them; (3) that Tooly had grabbed a report out of

16 another employee’s hands and added information to the report, even after he had

17 been told he could not do so; and (4) that Tooly became agitated at work on

4

1 multiple occasions, including May 11, 2011,1 when he walked off the job without

2 permission. Tooly alleges that he was not provided with a copy of the letter

3 requesting the medical evaluation and was never made aware of its contents prior

4 to this litigation.

5 On May 17, 2011, Schwaller sent Tooly a letter informing him that he was

6 being placed on an involuntary leave of absence effective the following day. This

7 letter stated that Schwaller believed Tooly’s continued presence on the job severely

8 interfered with the operations of the department. Schwaller directed Tooly to

9 undergo a medical examination and advised him that “failure to attend this

10 medical examination may subject [him] to disciplinary action.” Joint Appendix

11 (hereinafter “J.A.”) 55. The letter indicated that, while on leave, Tooly could draw

12 on his accrued leave days, and, when those were exhausted, he would be eligible

13 for sick leave at half‐pay.

14 On May 24, 2011, Dolan sent Tooly a letter informing him that he must

15 appear for a medical evaluation on June 6, 2011. On June 3, Tooly sent Schwaller a

16 letter requesting a written statement of facts as to why he was placed on

1 Dolan’s letter actually identified May 10 as the date that Tooly abandoned his job. But other record evidence, including Tooly’s termination letter, see J.A. 70, consistently states that this event occurred on May 11. 5

1 involuntary leave and required to undergo a medical evaluation. On June 7,

2 Schwaller responded with a letter denying Tooly’s request. Tooly did not attend

3 the medical evaluation scheduled for June 6. The evaluation was then rescheduled

4 for June 27, and Proulx sent Tooly a letter on June 9 to inform him of the new date.

5 The letter again advised Tooly that “failure to keep this appointment may result

6 in disciplinary action.” J.A. 59. Tooly again failed to appear on this second

7 rescheduled date.

8 On June 30, 2011, Dolan sent Tooly a letter directing him to report to the

9 Office of Human Resources for a disciplinary interrogation meeting on July 6,

10 2011. The letter stated that Dolan had received a report indicating that Tooly “may

11 have committed acts for which formal disciplinary action may be initiated.” J.A.

12 60. It added that the purpose of the disciplinary interrogation meeting was to

13 question him concerning this matter. The letter again advised that “failure or

14 refusal to report as directed may, in itself, be grounds for disciplinary action.” Id.

15 To allow Tooly time to consult with an attorney, the disciplinary

16 interrogation meeting was subsequently postponed to July 8, 2011. On July 6,

17 Tooly’s attorney, James D. Hartt, sent a letter to Dolan requesting information

18 about the purpose of the meeting and a general description of Tooly’s alleged

6

1 disciplinary issues. Twice—once on July 11 and again on July 12—Dolan called

2 and left a message with Hartt’s office, asking Hartt to call her back to discuss the

3 upcoming meeting. But Dolan never received a return call or any communication

4 from Hartt.

5 On July 12, the disciplinary interrogation meeting was again rescheduled,

6 this time for July 18, 2011. On July 14, Tooly requested that the meeting be

7 postponed a third time. Dolan declined to reschedule the meeting and sent Tooly

8 letters on July 14 and 15 to remind him that he needed to appear on July 18. The

9 July 15 letter additionally stated:

10 If you fail to apply [sic] with this directive you are 11 waiving your right to provide information about 12 potential disciplinary action that could be issued against 13 you. Your failure or refusal to report as directed may, in 14 itself, be grounds for disciplinary action against you. 15 Any disciplinary action taken against you will proceed 16 without the interrogation.

17 J.A. 68. Tooly did not appear at the disciplinary interrogation.

18 On July 18, 2011, after Tooly failed to appear, SUNY sent Tooly a Notice of

19 Discipline, informing him that he would be fired. The Notice included three

20 charges of misconduct: (1) abandoning his job on May 11, 2011; (2) failing to report

21 for medical examinations on June 6, 2011 and June 27, 2011; and (3) failing to report

22 to the disciplinary interrogation meeting on July 18, 2011. A letter from Dolan, 7

1 included with the Notice, stated that the termination would be effective 14 days

2 after receipt of the Notice and that Tooly could challenge the Notice by filing a

3 grievance form within those 14 days. But the Notice itself and an additional

4 accompanying letter from Schwaller stated that the termination would be effective

5 on July 18, 2011 at the close of business.

6 SUNY noticed the inconsistent effective dates, and, on August 8, 2011,

7 Proulx sent Tooly a letter withdrawing the Notice of Discipline issued on July 18,

8 2011. The letter also suspended Tooly without pay, effective August 8, and issued

9 a new Notice of Discipline. The new Notice of Discipline included eight charges of

10 misconduct, all of which concerned the same incidents as the prior Notice. The

11 new Notice also informed Tooly that he would be fired effective 14 days after his

12 receipt of the Notice.

13 Tooly asserts that he attempted to file a grievance to challenge the

14 termination, but that he was unable to do so because he was provided with the

15 wrong address. And, as a result, he claims, grievance procedures were never

16 initiated. On August 21, 2011, Tooly instead submitted a complaint to the Public

17 Integrity Bureau of the Office of the Attorney General. That complaint alleged that

18 Tooly had reported to SUNY an instance of workplace violence committed by

8

1 another employee and that the disciplinary actions taken against him were in

2 retaliation for this action. The complaint was referred to the SUNY Auditor’s

3 Office for investigation, and the Auditor’s Office determined that there was no

4 evidence to support Tooly’s allegations.

5 Tooly asserts that he was fired in August 2011 and that he has not received

6 any paychecks or benefits since.2

7 Proceedings Below

8 On December 23, 2013, Tooly filed a complaint in the United States District

9 Court for the Northern District of New York, asserting four claims against SUNY,

10 Dolan, and Schwaller: (1) deprivation of due process in violation of the Fourteenth

11 Amendment; (2) violation of the Equal Protection Clause of the Fourteenth

12 Amendment; (3) disability discrimination in violation of the New York State

13 Human Rights Law; and (4) retaliation in violation of the New York State Human

14 Rights Law. The defendants moved for summary judgment, which the district

15 court granted in part and denied in part. Specifically, the district court granted

2 Before the district court, Schwaller stated that Tooly is still an employee of SUNY and is currently suspended without pay pending termination, despite the fact that the August 8, 2011 Notice of Discipline stated that Tooly would be terminated 14 days after receipt of that Notice. For purposes of this appeal, however, Schwaller accepts Tooly’s allegations that he was fired in August 2011. 9

1 summary judgment to SUNY and to Dolan on all claims. The district court also

2 granted summary judgment to Schwaller on Tooly’s equal protection and

3 retaliation claims. The district court denied summary judgment and permitted

4 Tooly to proceed, however, on his due process claim and his state law disability

5 discrimination claim against Schwaller. At this time, Schwaller appeals only the

6 district court’s decision on the due process claim, asserting that he is entitled to

7 qualified immunity and hence permitted to make an interlocutory appeal.

8 The district court based its ruling allowing Tooly’s procedural due process

9 claim to proceed against Schwaller on the ground that a reasonable jury could find

10 that, because Schwaller had failed to comply with some requirements of the New

11 York Civil Service Law, Tooly had not been afforded adequate process. Tooly v.

12 Schwaller, No. 7:13‐CV‐1575,

, at *6‐*7 (N.D.N.Y. Oct. 2, 2017). In

13 doing so, the court further found that, because a reasonable jury could find that

14 Schwaller had violated New York state law, he was not entitled to qualified

15 immunity. Id. at *8.

16 The New York Civil Service Law requires that, prior to ordering a medical

17 examination, an employer must give its employee “[w]ritten notice of the facts

18 providing the basis for the judgment . . . that the employee is not fit to perform the

10

1 duties of his or her position.”

(1). It also requires that, prior

2 to taking disciplinary action, the employer must provide the employee with

3 “written notice thereof and of the reasons therefor,” as well as a “copy of the

4 charges preferred against him,” and allow the employee “at least eight days for

5 answering the same in writing.” N.Y. Civ. Serv. Law

6 § 75(2). Because the district court found that Schwaller had not satisfied these

7 requirements, it held that a genuine dispute of material fact existed as to whether

8 Tooly’s due process rights had been violated.

9 Moreover, on largely the same basis, the district court then rejected

10 Schwaller’s claim that he was entitled to qualified immunity:

11 As a reasonable juror could conclude that Schwaller’s 12 failure to follow the clear requirements of New York 13 Civil Service Law would lead to the deprivation of 14 Tooly’s procedural due process rights under the 15 Fourteenth Amendment, such actions would violate 16 clearly established constitutional rights and it would not 17 be objectively reasonable to believe their acts did not 18 violate plaintiff’s rights.

19 Tooly,

, at *8. In short, the district court concluded that, since a

20 reasonable jury could find that Schwaller’s violation of the New York Civil Service

21 Law deprived Tooly of his due process rights, Schwaller was not entitled to

22 qualified immunity.

11

1 DISCUSSION

2 The only issue before us on this interlocutory appeal is whether the district

3 court erred in denying summary judgment to Schwaller on the basis of qualified

4 immunity. We hold that the district court erred in relying on the violation of a state

5 statute to defeat qualified immunity. We further hold that, because Schwaller’s

6 conduct did not violate clearly established federal law, he is entitled to qualified

7 immunity as a matter of law.

8 Jurisdiction

9 This court has jurisdiction to review an interlocutory appeal of a denial of

10 qualified immunity “when the underlying issues raise only questions of law.”

11 Bryant v. Egan,

(2d Cir. 2018). If “a factual determination is a

12 necessary predicate to the resolution of whether . . . immunity is a bar, review is

13 postponed and we dismiss the appeal.”

(internal quotation marks and citation

14 omitted). Thus, an interlocutory appeal is only appropriate to determine whether

15 the defendant is entitled to qualified immunity as a matter of law “on stipulated

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

17 the plaintiff that the trial judge concluded the jury might find.” Bolmer v. Oliveira,

18

(2d Cir. 2010) (internal quotation marks and citation omitted).

12

1 “[W]here the district court denied immunity on summary judgment because

2 genuine issues of material fact remained, we have jurisdiction to determine

3 whether the issue is material, but not whether it is genuine.”

at 140‐41 (emphasis

4 in original).

5 Tooly argues that Schwaller’s interlocutory appeal is not properly before

6 this Court because it turns on the district court’s determination of whether genuine

7 issues of material fact exist. Schwaller agrees, however, for purposes of this appeal,

8 to rely “only upon facts plaintiff has alleged or admitted.” Appellant’s Br. at 3 n.1;

9 see Bolmer,

. Therefore, this court has jurisdiction to decide whether,

10 on the facts alleged by Tooly, Schwaller is entitled to qualified immunity as a

11 matter of law. Our review thus cabined, we assess the district court’s denial of

12 summary judgment de novo. Lauro v. Charles,

(2d Cir. 2000).

13 Standard for Qualified Immunity

14 A defendant is entitled to qualified immunity under federal law if “(1) [the

15 defendant’s] conduct does not violate clearly established statutory or

16 constitutional rights of which a reasonable person would have known, or (2) it was

17 objectively reasonable for [the defendant] to believe that his actions were lawful at

13

1 the time of the challenged act.” Cerrone v. Brown,

(2d Cir. 2001)

2 (internal quotation marks and citations omitted).

3 Schwaller’s Defense

4 Schwaller asserts qualified immunity solely against Tooly’s procedural due

5 process claim. The Due Process Clause is violated when a claimant is deprived of

6 a protected liberty or property interest without adequate process. See Ciambrello v.

7 Cty. of Nassau,

(2d Cir. 2002). In determining how much process

8 is adequate, we look to “[f]ederal constitutional standards rather than state

9 statutes [to] define the requirements of procedural due process.” Robison v. Via,

10

(2d Cir. 1987). “[T]he fact that the State may have specified its

11 own procedures that it may deem adequate for determining the preconditions to

12 adverse official action . . . does not settle what protection the federal due process clause

13 requires.” Russell v. Coughlin,

, 78 n.1 (2d Cir. 1990) (emphasis added)

14 (internal quotation marks and citation omitted); see also Coles v. Erie Cty.,

App’x 41, 42‐43 (2d Cir. 2015) (summary order).

16 It follows, and we have repeatedly held, that a state statute does not serve

17 as “clearly established law” for purposes of qualified immunity. Since a violation

18 of state law does not per se result in a violation of the Due Process Clause, it cannot

14

1 per se defeat qualified immunity. See Brown v. City of New York,

(2d

2 Cir. 2015) (“A defense of qualified immunity is not displaced by a violation of state

3 law requirements.”); see also, e.g., Robison,

. To determine whether a

4 violation of state law overcomes federal qualified immunity, then, the court must

5 determine whether the conduct that violated the state statute also violates clearly

6 established federal law, and this is a distinct and separate inquiry. And, although

7 there may be some overlap, the requirements of federal due process law are “not

8 inherently coextensive” with those of the New York Civil Service Law. See Coles,

9 629 F. App’x at 43. Consequently, a defendant who violates the New York Civil

10 Service Law has not necessarily violated clearly established federal due process

11 law.

12 In this case, the district court appears initially to have recognized “that the

13 failure to comply with all or any requirements of New York State Civil Service

14 Law may not per se result in a violation of the due process clause of the Fourteenth

15 Amendment.” Tooly,

, at *5. But, despite this statement, the

16 district court based its holding almost exclusively on Schwaller’s failure to comply

17 with the New York State Civil Service Law. Significantly, the district court did not

15

1 assess whether Schwaller’s conduct violated the procedural guarantees of the

2 federal Due Process Clause, as laid out by the Supreme Court.

3 This was legal error. But, whether this error justifies a remand, supports a

4 reversal, or is harmless depends on whether, accepting Tooly’s version of the facts,

5 Schwaller’s actions violated clearly established federal law. It is to this that we now

6 turn.

7 A procedural due process claim requires the plaintiff to establish (1)

8 possession by the plaintiff of a protected liberty or property interest, and (2)

9 deprivation of that interest without constitutionally adequate process. See

10 O’Connor v. Pierson,

, 195‐96 (2d Cir. 2005). Tooly claims that he was

11 twice deprived of a protected property interest: first, when he was placed on

12 involuntary leave in May 2011 and, second, when his employment was terminated

13 in August 2011. The district court did not distinguish between the two

14 deprivations—termination and involuntary leave—and simply found that Tooly

15 had a protected property interest in his continued employment.

16

1 Tooly’s Involuntary Leave

2 Assessing separately whether, in the actual circumstances of his case,

3 Tooly’s placement on involuntary leave was a deprivation of a property interest

4 sufficient to trigger due process requirements, we conclude that it was not.

5 Under this Circuit’s precedents, an employee who is placed on unpaid leave

6 has been deprived of a protected property interest, but “an employee who is on

7 leave and receiving his normal salary” has not. O’Connor, 426 F.3d at 199. And this

8 remains so even though the employee is required to draw upon leave accruals,

9 such as sick leave, to maintain that salary. “As long as the employee is receiving a

10 paycheck equivalent to his normal salary, that the employee is drawing down his

11 sick leave is a bookkeeping entry with no pecuniary effect.” Id. at 200. Such an

12 employee has only been deprived of a property interest triggering due process

13 when “he suffers a financial loss because of that leave’s unavailability,” e.g., when

14 the employee runs out of leave accruals while still on leave. Id. at 199.

15 On the facts before us, Schwaller did not deprive Tooly of a protected

16 property interest when he placed Tooly on involuntary leave on May 17.

17 Schwaller’s letter to Tooly expressly stated: “While you are on this leave, you may

18 charge any of your accruals. When these are exhausted, you will be eligible for sick

17

1 leave at half‐pay.” J.A. 55. Tooly has not argued that his accruals were insufficient

2 to cover his full salary during his period of involuntary leave.3 Thus, Tooly was

3 not deprived of a protected interest. It follows that Schwaller did not violate a

4 clearly established due process right by placing Tooly on involuntary leave, and

5 that doing so did not deprive Schwaller of qualified immunity.

3 Accordingly, we express no opinion as to whether sick leave at half pay would be a deprivation triggering due process requirements. We also note that Tooly’s Counterstatement of Material Facts contains an inconsistency regarding the date on which Tooly stopped being paid. In one place, Tooly states that he stopped being paid in April 2011 while, elsewhere, he states that he stopped being paid in August 2011. Compare J.A. 159, with, e.g., J.A. 147. Schwaller states that the reference to April 2011 is a typographical error, as Tooly’s own deposition testimony confirms that he stopped being paid after his termination in August 2011. See J.A. 137‐38. Schwaller also argues that, in context, April 2011 would make no sense because it predates Tooly’s involuntary leave, which began on May 18, 2011. Tooly does not contest Schwaller’s characterization of the April 2011 date as a typographical error. To the contrary, Tooly’s brief on appeal makes no reference to any due process violation occurring before his May 18 placement on involuntary leave. See, e.g., Appellee’s Br. at 2 (“Beginning in May 2011, Tooly was subjected to a series of [c]onstitutional deprivations.”). Accordingly, while we accept ”the facts that plaintiff alleges are true” on interlocutory appeals from a denial of qualified immunity, see Bolmer,

, we construe Tooly to be alleging that he stopped being paid in August 2011.

18

1 Tooly’s Termination

2 1. The Loudermill Requirements

3 The district court, however, did correctly determine that Tooly’s

4 termination was a deprivation of a protected property interest requiring due

5 process. See O’Connor, 426 F.3d at 196. The remaining issue, then, is whether

6 Schwaller provided Tooly with adequate process prior to firing him.

7 The Supreme Court in Cleveland Board of Education v. Loudermill held that

8 pre‐deprivation process requires: (1) “oral or written notice of the charges against

9 [the employee]”; (2) “an explanation of the employer’s evidence”; and (3) “an

10 opportunity to present [the employee’s] side of the story” and “to present reasons,

11 either in person or in writing, why [the] proposed action should not be taken.” 470

, 546 (1985). In the case before us, the question presented is whether there

13 is clearly established federal law holding that the Due Process Clause is violated

14 when the employer has provided the plaintiff with an opportunity to receive the

15 process required by Loudermill, but the plaintiff, for possibly proper reasons, has

16 not made use of that process by appearing or responding.

19

1 2. The Relevant Facts in Tooly’s Case

2 When Tooly was instructed to appear for his two scheduled medical

3 examinations, he was advised both times that “failure to attend this medical

4 examination may subject you to disciplinary action.” J.A. 55; see also J.A. 59.

5 Admittedly, however, Dolan’s June 30, 2011 letter, which informed Tooly about

6 his disciplinary interrogation meeting, did not mention either of the missed

7 medical examinations as the reason for the disciplinary hearing. The letter stated

8 only that Tooly “may have committed acts for which formal disciplinary action

9 may be initiated” and that the purpose of the interrogation meeting would be to

10 question him concerning this matter. J.A. 60. The letter did clearly advise him that

11 “failure or refusal to report as directed may, in itself, be grounds for disciplinary

12 action.”

13 While Dolan’s June 30, 2011 letter did not specify the charges against Tooly,

14 his attorney, Hartt, requested that information from Dolan, and Dolan called Hartt

15 twice in an effort to respond to his request. Dolan left messages with Hartt’s office,

16 but she never received a return call or any other communication from Hartt. J.A.

17 48.

20

1 Additionally, Schwaller argues that, at the proposed disciplinary meeting,

2 Tooly would have received all of the procedural protections required by

3 Loudermill. Moreover, Tooly was advised that failure to attend the meeting would

4 “waiv[e] [his] right to provide information about potential disciplinary action that

5 could be issued against [him],” and that “[a]ny disciplinary action taken against

6 [him would] proceed without the interrogation.” J.A. 68. As we have held, a

7 “failure to submit to the [disciplinary] procedures precludes consideration of the

8 fairness of those proceedings in practice.” Narumanchi v. Bd. of Trustees of Conn.

9 State Univ.,

, 72 (2d Cir. 1988). Because Tooly never appeared for the

10 interrogation meeting, we cannot say with certainty what would have occurred at

11 the meeting, or whether the meeting would or would not have been fair. However,

12 as discussed below, we do not need to decide whether the procedures afforded

13 Tooly were constitutionally adequate because we can resolve the issue on “clearly

14 established law” grounds. See Cerrone,

.

15 3. The Lack of Clearly Established Law

16 For qualified immunity to apply, it is sufficient that no clearly established

17 law has held that “an officer acting under similar circumstances” violated an

18 employee’s due process rights. See White v. Pauly,

(2017). Clearly

21

1 established law should not be defined “at a high level of generality,” but “must be

2 particularized to the facts of the case.”

(internal quotation marks and citations

3 omitted); City & Cty. of San Francisco v. Sheehan,

, 1775‐76 (2015). No

4 case, in this Circuit or elsewhere, that has been cited to us has held that, where the

5 defendant provides an opportunity for the plaintiff to receive due process at a

6 meeting and the plaintiff, even for potentially valid reasons, fails to appear, the

7 defendant must provide alternative procedures. Nor has any case established that

8 the procedures required by Loudermill may not be provided at that same hearing

9 or that they must be provided in a particular manner not satisfied here.

10 Accordingly, we need not decide whether, in the circumstances of this case,

11 the notices given satisfy the requirements of due process. And we conclude that,

12 since Schwaller has not violated Tooly’s clearly established rights, he is entitled to

13 qualified immunity.

14 CONCLUSION

15 For the foregoing reasons, the district court’s decision is REVERSED, and

16 the case is REMANDED with instructions to dismiss the due process claim against

17 Schwaller.

22