Does a voluntary retirement while an OSI investigation is pending which results on being placed on the ineligible list preclude the maintenance of a federal claim against the DOE for violating plaintiff’s due process rights?

Yes. Plaintiff, a tenured administrator assigned to the Committee on Preschool Education, brought a federal due process claim against the DOE for placing her on the ineligible list without her knowledge or consent. While an OSI investigation was pending as to whether plaintiff followed proper procedure in connection with a complaint on how she had handled an IEP, she voluntarily retired.

Several months later OSI substantiated the investigation and recommended that she be placed on the ineligible list and barred from future employment with the DOE.

Over 2 years later plaintiff applied for an educational position with a private company and first learned she had been placed on the ineligible list.

The DOE argued that there was no protected property interest involved, an essential element of a due process claim, since she voluntarily retired.

The Court agreed. “There is no constitutionally protected property interest in prospective government employment.” [citation omitted]

ROSEMARIE RICHARDSON, Plaintiff, v. CARMEN FARINA, et al., Defendants. No. 16-CV-1364 (JPO). United States District Court, S.D. New York. February 23, 2017.

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