Appeal from a grant of summary judgment by the United States District Court for the Northern District of New York, Roger J. Miner, Judge, dismissing a complaint under 42 U.S.C.§ 1983 for failure to state a claim upon which relief could be granted. The complaint alleges violations of plaintiff's constitutional right to privacy and to substantive due process of law. Affirmed in part, reversed in part and remanded.
FEINBERG, Chief Judge, OAKES, Circuit Judge, and TENNEY, District Judge.*fn*
Lorraine Gargiul, formerly a tenured schoolteacher with the Liverpool Central School District, appeals from an order of summary judgment entered May 17, 1982 by Roger J. Miner, Judge, of the District Court for the Northern District of New York. Judge Miner dismissed Gargiul's § 1983 action against Virgil E. Tompkins, the District Superintendent of the Liverpool Central School District, various officials of the school district, and the Board of Education and its members, on the ground that it failed to state a claim upon which relief could be granted. Gargiul contends that the School Board infringed her constitutional rights by suspending her, and subsequently by dismissing her, for refusing to be examined by a male school district physician. She seeks reinstatement, back pay, and damages for injury to her reputation. Because we conclude that Gargiul's constitutional challenge to her dismissal is barred by collateral estoppel, we affirm the district court's dismissal of that claim. However, for the reasons set forth below, we reverse with respect to the dismissal of Gargiul's constitutional challenge to her suspension without pay.
Since this is an appeal from a judgment of dismissal, we accept as true the facts alleged in the complaint. Kirshner v. United States, 603 F.2d 234, 236 (2d Cir. 1978), cert. denied, 442 U.S. 909, 61 L. Ed. 2d 274, 99 S. Ct. 2821, cert. denied, 444 U.S. 995, 62 L. Ed. 2d 426, 100 S. Ct. 531 (1979); Murray v. City of Milford, 380 F.2d 468, 470 (2d Cir. 1967).
Appellant Lorraine Gargiul was a tenured kindergarten teacher in the Liverpool Central School District.*fn1 In November 1974 she took an extended sick leave because of a back ailment. On February 5, 1975 the Superintendent of Schools, Virgil Tompkins, notified Gargiul that she should report to the school district physician, Dr. Paul Day, for a physical examination. In response, Gargiul informed Tompkins that she would be able to return to work on March 17, 1975, and submitted a certificate from her own physician. Gargiul refused, however, to make an appointment with Dr. Day. She explained that she had always gone to women physicians and that it was against her "creed" to be examined by a male physician. She offered instead to go, at her own expense, to any woman physician selected by Tompkins or recommended by a local medical society.
On March 10, 1975, the Board of Education adopted a resolution requiring Gargiul to be examined by Dr. Day if he felt that a physical examination was necessary after reviewing her medical records. The Board suspended Gargiul without pay effective March 17, 1975 until Dr. Day could determine whether she was physically able to return to her teaching position.
It was apparently not until the summer that Dr. DAy decided that an examination would be necessary. Accordingly, in a letter dated July 30, 1975 James R. Johnson, the Acting Superintendent of Schools, directed Gargiul to report to Dr. Day for a physical examination. Gargiul reiterated her refusal to be examined by a male physician and repeated her offer to be examined by any woman doctor at her own expense.
On August 9, 1975, the Board of Education determined that there was probable cause to issue charges against Gargiul of insubordination, based on her refusal to be examined by Dr. Day, and incompetency, based on unfavorable supervisors' reports and parents' complaints.
Gargiul appealed her suspension without pay to the Commissioner of Education pursuant to New York Education Law § 310. The Commissioner dismissed her appeal, concluding that because the Board was empowered by New York Education Law § 913*fn2 to require Gargiul to submit to an examination by Dr. Day, it had not acted arbitrarily or capriciously in suspending her. The Commissioner also rejected Gargiul's argument that an examination by a male physician was contrary to her creed. In re Gargiul I, 15 Educ. Dept. Rep. 360 (1976). In an application to reopen the Commissioner's decision, Gargiul argued, inter alia, that requiring her to be examined by a male physician violated her constitutional right to privacy. The Commissioner denied her application. He held that Gargiul, having failed to raise her privacy claim earlier, was barred from doing so by the doctrine of res judicata. In re Gargiul II, 15 Educ. Dept. Rep. 520 (1976). Gargiul did not appeal his decision.
Between the time that the Commissioner's first and second decisions were handed down, Gargiul commenced an Article 78 proceeding in state court, challenging the Board's resolution to suspend her without pay. The Onondaga County Supreme Court dismissed the proceeding as time barred. The Appellate Division affirmed on that basis, concluding further that the due process claim Gargiul had advanced was without merit. Gargiul v. Board of Education I, 54 A.D.2d 1085, 389 N.Y.S.2d 504 (1976), leave to appeal denied, 41 N.Y.2d 802, 393 N.Y.S.2d 1026 (1977).
Meanwhile, a tenure hearing panel was convened and hearings were held concerning the charges against Gargiul. In a decision dated April 4, 1977, a majority of the panel found Gargiul guilty of incompetency and recommended that she be dismissed. The panel also recommended that she be restored to the payroll retroactive to March 17, ...