and publicly accused of for example engaging in battered girlfriend syndrome and being employed or role model for students they seek to remedy and interference with their liberty interest in obtaining future employment because of the stigma they suffered from these and similar statements plaintive sica name clearing hearing in what is called the stigma plus at a name clearing hearing plaintiffs will seek to prove that the allegations against them are false so they can get a decision which will enable then to obtain future employment free from the stigmatizing statements with respect to the two elements of the stigma plus claim stigma means public disparagement the stigmatizing statements in this case include being told to members of the community the coaches had created a negative and hostile environment and that they had that the players suffered battered girlfriend syndrome as a result of the coach's conduct to an employment clearing house run by the board of cooperative educational services the defendants told the bo c's which was available to twenty four different school districts within the region that the  plaintiffs had issues as a role model which is absolutely the death knell for teachers you simply cannot get employed with such a label that they were guilty of insubordination that they do not respect adults and students  i would say however that the facts of this case are somewhat indicate more than simply a refusal to read new a contract in the sense that the the coaches were basically out in sum and substance before the school year and it was suspended with pay yes how can that is that in itself a plus they're not allowed to do their work but they were getting paid i would say not however i believe discovery would reveal the notwithstanding that formal statement that they were in effect terminated and in fact coach mclaren it is supposed discovery discovery deal that the school board after looking at these allegations the book these people are a headache i don't even care whether it's true or not with these people say who are complaining about them you know we're just going to get new people next year which will in the mean time at the center and for now we're going to suspend them but we'll pay them how is that any different from suspending with pay st and then coming to a conclusion later that they're not going to renew in both cases the two dollars decisions are for now you get paid but don't come to work and you're not going to be renewed of course as a matter of labor law they can do that the problem arises when you stigmatize the people they can make a decision look we don't like their  not just nonrenewable it's nonrenewable that was signalled by the suspension with pay earlier so with respect to substitute teaching for for coach mick care and that had nothing to do with the that's a separate story that's a separate story had nothing to do with the administrative leave of the suspension with pay or whatever you want to call it they just said no you're terminated as a substitute teacher now the case law that refers to not only the possibility of terminations of employment the case for that judge strongly was talking about indicates that any end of employment is enough in an at will employment situation and this court has repeatedly repeatedly that the remedy for stay ties ation at the in the course of at will employment is the same situation it is simply a you can be terminated at any time so our brief argues that there's actually no functional distinction between at will employment and the expiration of a period of employment in addition these coaches did have some expectation of renewable which was that as i pointed out in the collective bargaining agreements they had certain procedural rights not substantive rights to keep the position which were not followed in this court has referred to in addition to this charge as being a basis for the plus but also the loss of some tangible right or interest procedural rights y twice requested by our clients that that's when the federal right was violated the in their letter to this court the defendants say that they try to distinguish nec by saying there was no pretty deprivation remedy regardless of its preview procedural form which would have adequately protected the petitioners rights in nick that's completely inaccurate inec there were parallel opportunities under state law that would have fully protected and vindicated the interests of the plaintiffs the supreme court of the united states simply said you do not have to cases where the article seventy eight was used to determine like do you have a property interest in your employment because there are two cases discussed in our brief at length one is the siegel case where the plaintiffs were offered an administrative hearing and turned it down that is not the case here but also in the case of article seventy eight was an appropriate method to determine whether someone had a property interest or not and their rights flowed from that an article seventy eight is not a administrative hearing where the truth or falsity of things are dealt with it is a special proceeding which is done on the papers and if on the papers some issue of trial well your honor i think i would rely on the nick case it's simply not true that you can have a trial in article seventy eight dollars there is a section in article seventy eight dollars that talks about a trial but it's on a very narrow issue that might be necessary to resolve some dispute on the papers the that is an article seventy dollars is not like the hearing that was afforded the in the siegel case which was an administrative hearing where people were given full and fair opportunity to cross examine witnesses and so fat forth on the underlying facts as to whether what was said about them is true and therefore whether they should continue to bear the stigma or whether they should get a decision from the administrative hearing officer saying that no those comments were unjustified and they can then take that to a another employer and hopefully regain their rights for future employment but i think the new case is very clear on the issue between when the name hearing clearing was denied and the name clearing hearing was held as the patterson case of the circuit has said that we are entitled to and by the way that is absolutely not relief that can be obtained in an article seventy  question then is that you seeking damages how do recent merge decision affect that in terms of qualified immunity well add this case is far different from much i would say for example particular case in march there was a issue as to its conduct by the state of new york it caused other things to happen there's a line a precedent in this area which i think marge fits into which is that  e if your loss if your stigma is a result of a pre existing bad reputation then there is no need for a name calling hearing in large this court hell that the that this stigma that mr mudge was facing had to do with the suspension of his teaching license long before the employment issues came up and i think this court said that a no one based on the current law in this circuit that the defendants wouldn't have a notice that they were violating the pla as much here things like what a stigma plus claim is things like what constitutes termination of employment things of all the nature of the issues in this particular case such as whether stigma plus applies to at will employment these are all well settled principles in the circuit i think quite frankly i think it's quite a  i thought quite a stretch to depart from these principles and hold that you need a property interest to get a stigma plus claim if we had a property interest for example you would need we would need a single look this is a very low level of protection for my clients the best they do out of all of this is to get a ruling from an administrative hearing officer that says these things were untrue and that may help them get future employment it may not thank you thank you good morning many police or court my name is pat fitzgerald i represent the defendants in this case whether it's undisputed that there is no property interest in your coaching position there is no property interest in being called as a substitute teacher and that is important because if there is a property interest it's relevant in terms of whether somebody might have a pre deprivation right to some due process or a post deprivation right to some due process ok so when we're talking about liberty interests and when somebody has a post deprivation right to due process which is what the plaintiffs are seeking here they're not seeking any pre pervasion remedy it's absolutely correct that when you're at will employment with a governmental employee is terminated then if you also meet the stigma element of that test you may have a th amendment liberty interests claim i keep on hearing plaintiff's counsel referring to the fact that plaintiff's employment was terminated the plaintiff's employment was not terminated the record is abundantly clear that the plaintiff's employment was not terminated expired and was not renewed well it expired your hon there's actually nothing in the record to indicate that it was not renewed because it discouraging there now but they were for the contract to bring them back in there and they're gone when they're complaining at the time the complaint and the amended complaint was filed in this case which is the operative time the only thing that had happened is that the district posted notice for hiring of the position the following year there  nothing in this record or alleged in this complaint that they were not rehired because that decision had not been made ok and that's important and that also factors into the judge the on the st amendment claim as well putting aside that this is quintessential you know speech on a matter of private concern not public concern and she also notes there has not been any adverse action taken against  plaintiffs as a result of them commencing this lawsuit because in fact no decision had been made at the time the nd and the amended complaint was submitted to the district court with respect to any future coaching opportunity  not that they were put on the do not call list but the case law is abundantly clear that the substitute teacher has no interest in being called tomorrow or the next day or the day after that as a substitute teacher so if a district makes a decision a school district makes a decision to say we're not going to call this teacher in firm climbing anymore we have not altered any right of that teacher and  the mudge decision that was decided last week that court articulated let again yet again the importance of the plus element of a stigma plus claim that there has to be a state  imposed alteration of a plaintiff's rights and not calling somebody as a substitute teacher again and deciding not to call them again has been established over and over again that i'm not altering any right because they have no case those are cases for instance where a teacher is appointed to a probationary term that roll that is a four year probationary term and rolls over every year so i have an expectation on june th on july one i'm going to continue to be reemployed my contract is going to be renewed and there's no break there's no change in my status no anything like that ok and that is not this case in the plaintiff's talk about that fact in their brief that once of the cross season is over it's over and done with i forget the exact term they used but the time has gone by fast forward another year a district may or may not make a decision to rehire that coach different coaches additional coaches whatnot and those are vastly different than the situation in any cases where any court whether in this circuit or another circuit has found that somehow the failure to rehire can give rise to due process the liberty interest claim in fact in citing wroth this court said it would stretch the liberty interest concept too far to suggest that a person is deprived of liberty when he is simply not rehired in one job but remains as free as before to seek another davis came along and very clearly indicated in davis alone isn't that stigma alone is not enough the building upon ross kind of dealing with victor and ross and that we're off in that regard and very making making it very clear about the plus element of the stigma plus claim hence the progeny of of all the decisions of this court you would agree that the plus element can be something less than what would independently support a property interest otherwise there'd be no point to that separate cause of action so your honor in the employment context ok when you're talking about the burnt hills boston lakes central school district the rights they have to fact the plaintiffs protected interests are extremely limited where an employer they're an employee we can either fire them or not fire them we are not in the other case where you're talking about plus might mean something in different the state where some where the state is putting the plaintiffs name on a central registry for sex offenders and it's a clearing house for any employer in the state that has to hire this employee or the state department of education or the new york city department of education who we invoke a license  affectively bearing ok that plaintiff from future employment those are state imposed burdens on their on the plaintiff's employment and those are doing at least with respect to the substitute teacher story that that's exactly what the defendants did was to put him on a list and notify not just that they're not going to hire him but put him when they made that decision they also gave reasons and put him on a do not call list that was centrally maintained list as i understand it and as plaintiff's counsel points out that might be relevant to the stigma claim but it's not relevant to the plus claim because we don't have the power as a school district to do anything other than a fact the employment of the plaintiffs our school district we don't have any other control and the other respect with them otherwise every time that we stigmatize somebody one would say that ok you've also you've also hurt their chances for employment the courts have rejected that analysis was because that's where our substitute teachers come from we have to tell the boss and he's don't send this person to our school district we don't want them to substitute here pardon me other districts could look at that just like they could look at a newspaper article not relevant to  not relevant to the plus maybe relevant to the stigma claim there's nothing about that that prevents some other school district from from hiring the plaintiffs that's why as plaintiffs counsel referenced plus what would be a plus situation taking the hypothetical would be roughly the same situation what would be required in your view to reach that test so your honor when we're talking about an employer in a situation like this i think that the plus requires terminations a point requires some affirmative act employment had the employment which could be terminated and that had they been terminated that would have been adequate or meeting the test of stigma plus so if the facts in this case were such that we terminated their employment why they were coaches we said we're not paint we're not suspending you and paying you case law deals with that it's not a termination but instead see  later you're fired for the rest of the season goodbye that may have given rise to a stigma plus case i mean that's not this case let me ask you about this murder case who of course came down to recently let me give you an opportunity for a minute or so to just tell us what your view is of this either and howard helps you it's interesting because i represented the school district in that case and in which the claims against the school district were dismissed several years ago so i'm familiar with that case i think that that case may be why i'm asking i think that that case is relevant really for two reasons i already cited the portion of that case that quotes murat which i think is important that the nd circuit recognized that only a week ago and also in that case the nd circuit once again reiterated the stigma plus element putting bit of a different context your honor the remaining claim in that case is not against an employer it's against the state education department so the ability of the state education department to affect the rights of the plaintiff is different than the my client my client as i said has extraordinarily limited and extraordinary limited ability to affect the rights of the point of all we were is an employer  department went to one single employer and this court said that the subsequent newspaper article was about the prior suspension of mr mudge is employment this is  case where both the terminations of employment and the stigmatizing statements which were directed outside the particular employer in question keys is much different from much again in mileage this court said that the mere transmission of information inaccurate information to one employer was not enough it had to be broader so this case presents the broader scenario and on that point i want to refer this court back to this court's decision and do not go into not of which involved the teacher but the only difference between dano in this case is that did not know the teacher was a probationary teacher a probationary teacher may have expectations nation every teacher however can be fired in essence would some notice at any time any time during the three year period there are some procedural protections in state law but any time here mr march was immediately terminated from substitute teaching and the he was a member of the substitute teachers bargaining unit which gave him certain procedural rights which he was not given so the fact is that marge was terminated as a substitute teacher his terminations as a coach came later judge droney talked about the case law saying that the two things are equivalent but in donato that teacher just faced fairly routine performance could criticisms basically the teacher was not able to maintain control in the classroom and that was threatening the safety of the students and their learning opportunities there was no statement outside the district other than what went into the personnel file as in this case which went out in  most importantly to the bow sees attaching all these negative statements to these people in any one in the state of new york can see this anyone in the state of new york could see that their positions were vacant and that was anno before there was an appointment for the following year so we believe and i think we detailed our brief that these folks actually were terminated in sum and substance even before t consider well that is not what they'd said but in point of fact again going to the collective bargaining agreement you have to give the people notice so they can attempt to address these things that's what the collective bargaining agreements say that was not done these people were terminated and there's a very or and on page twenty three of our brief shen versus shanghai cafe where the court said that well you know there was an argument that the purple weren't really terminated but the court said hey when you tell someone you're no longer welcome on the campus of the school even when you are going there i think it's without question that you are terminated from employment and this concept that somehow a substitute teacher has no expectation of coming in for another day in this particular school district that was