292 F.3d 307 (2nd Cir. 2002), 01-7556, Ciambriello v. County of Nassau

Docket Nº:01-7556.
Citation:292 F.3d 307
Party Name:Daniel J. CIAMBRIELLO, Plaintiff-Appellant, v. COUNTY OF NASSAU, Civil Service Employees Association, Inc., Russell Rinchiuso, Richard Cotugno and Ron Roeill, Defendants-Appellees.
Case Date:June 04, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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292 F.3d 307 (2nd Cir. 2002)

Daniel J. CIAMBRIELLO, Plaintiff-Appellant,


COUNTY OF NASSAU, Civil Service Employees Association, Inc., Russell Rinchiuso, Richard Cotugno and Ron Roeill, Defendants-Appellees.

No. 01-7556.

United States Court of Appeals, Second Circuit

June 4, 2002

Argued: Jan. 11, 2002.

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Lewis M. Wasserman, Wasserman & Steen, Patchogue, NY, for Plaintiff-Appellant Daniel J. Ciambriello.

Peter A. Bee, Bee, Eisman & Ready, LLP, Mineola, NY (W. Matthew Groh, on the brief), for Defendants-Appellees County of Nassau, Russell Rinchiuso, and Richard Cotugno.

William A. Herbert, Albany, NY (Leslie C. Perrin, on the brief), for Defendants-Appellees Civil Service Employees Association, Inc. and Ron Roeill.

Before: SACK, E.D. PARKER, and B. FLETCHER,[*] Circuit Judges.

Judge SACK concurs in part and dissents in part in a separate opinion.

B.D. PARKER, JR., Circuit Judge.

Plaintiff Daniel J. Ciambriello, an employee of defendant County of Nassau (the "County") and a member of defendant Civil Service Employees Association, Inc. ("CSEA"), brought this action under 42 U.S.C. § 1983, alleging that his demotion from one civil service position to another deprived him of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution. Ciambriello also asserted a claim for unlawful conspiracy in violation of § 1983, as well as several state law claims. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court (Leonard D. Wexler, Judge) granted the motion, dismissing Ciambriello's § 1983 claims because he failed to allege a property interest in his position and declining to exercise supplemental jurisdiction over the state law claims. Ciambriello v. County of Nassau,

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137 F.Supp.2d 216 (E.D.N.Y.2001). Ciambriello appealed. We affirm in part, vacate in part, and remand.


Ciambriello began working for the County's Department of Public Works in November 1992 as an Equipment Operator I ("EO-I"), a position that the County assigns to the "non-competitive class" of its classified civil service. He worked as an EO I until August 1997, when he was promoted to the position of Plant Maintenance Mechanic II ("PMM-II"), also in the non-competitive class. Following Ciambriello's promotion to PMM-II, CSEA filed a grievance with the County on behalf of four employees—defendant Ron Roeill, Eugene Romanger, Anthony Saponaro, and Joseph Scali—arguing that the County had promoted Ciambriello to PMM-II in violation of the collective bargaining agreement between the County and CSEA (the "CBA"). Pursuant to the CBA's grievance procedures, CSEA's grievance culminated in an arbitration hearing on January 7, 1999, in which the County and CSEA participated. Ciambriello did not receive notice of the grievance, the arbitration, or any of the intervening steps, and as a result he did not participate in any of the grievance proceedings. At the January 7, 1999 hearing, the County and CSEA both presented evidence and argument. The County and CSEA stipulated that the issues to be determined in the arbitration were:

Did the County violate the Collective Bargaining Agreement when it promoted Daniel Ciambrello [sic] to the position of Plant Maintenance Mechanic II? If so, what is the appropriate recommended remedy? Following the hearing, the arbitrator issued an advisory award on February 1, 1999 stating that (1) the County had violated the CBA in promoting Ciambriello to PMM-II, (2) Ciambriello's position must be vacated and refilled within sixty days, and (3) the County must consider Roeill, Romanger, Saponaro, and Scali for the PMM-II position. CSEA commenced an action in New York Supreme Court seeking confirmation of the arbitrator's award. The County defaulted in the state court action, and the Supreme Court confirmed the award. On March 6, 2000, Ciambriello received notice that he had been discharged from the PMM-II position and would be reassigned to the EO-I position—the position that he had occupied prior to his promotion—effective March 10, 2000. On March 10, 2000, Ciambriello was reassigned to EO I and Roeill was appointed to PMM-II in his place. As a result of the reassignment, Ciambriello suffered a demotion in grade and a reduction in salary and benefits.

Ciambriello did not pursue a grievance in accordance with the procedures outlined in the CBA. Instead, he commenced this action in July 2000, alleging four claims: denial of procedural due process in violation of the Fourteenth Amendment, conspiracy to deny procedural due process in violation of the Fourteenth Amendment, breach of CSEA's duty of fair representation, and breach of the CBA. The defendants moved to dismiss under Rule

After reviewing the allegations of Ciambriello's complaint and reciting the standard applied to a Rule 12(b)(6) motion, the District Court examined whether Ciambriello had alleged a property interest in his pre-demotion position. The court observed that any property interest that Ciambriello might have "must incorporate the terms of the CBA that apply to the factual situation at hand." Ciambriello, 137 F.Supp.2d at 223. In particular, the

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District Court found the seniority provision of the CBA to be relevant, stating that, while Ciambriello would otherwise have a property interest in continued employment at the PMM-II level, this interest was "necessarily limited by the seniority terms of the CBA." Id. at 222-23. The court ultimately determined that Ciambriello's promotion violated the CBA's seniority provision, concluding, "Because the right sought to be protected here is a right finding no support in the CBA, it is not a right to which Plaintiff had a 'legitimate claim of entitlement' and therefore, not a property right upon which a Section 1983 claim can be sustained." Id. at 223. Having concluded that Ciambriello failed to allege a property interest in his position, the District Court dismissed the § 1983 claims and declined to exercise supplemental jurisdiction over the state law claims. Id. Ciambriello timely appealed.


We review de novo a district court's dismissal pursuant to Rule 12(b)(6). Bernheim v. Lilt, 79 F.3d 318, 321 (2d Cir. 1996). Accepting all factual allegations in the complaint as true, the court should not dismiss unless Ciambriello can prove no set of facts which would entitle him to relief. Chambers v. Time Warner, Inc., 282 F.3d 147,152 (2d Cir. 2002).

I. Due Process Claim

In reviewing the dismissal of Ciambriello's § 1983 claim for violation of his Fourteenth Amendment procedural due process rights, we apply the familiar two-step inquiry. We must determine (1) whether Ciambriello possessed a liberty or property interest and, if so, (2) what process he was due before he could be deprived of that interest. Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995).

A. Property Interest

The threshold questions are whether Ciambriello has alleged a state law property interest, and whether the Fourteenth Amendment protects that interest. Because Ciambriello was demoted from the PMM-II position to the EO-I position, and not terminated altogether, the question is not whether he possessed a property interest in employment generally, but whether he possessed a property interest in the PMM-II position in particular. Property interests are not created by the Constitution; rather, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In order to have had a property interest in the PMM-II position, Ciambriello must have had "a legitimate claim of entitlement to it." Id, A public employee has a property interest in continued employment if the employee is guaranteed continued employment absent "just cause" for discharge. Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991). While state law determines whether a public employee has a property interest in continued employment, "federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause." Ezekwo v. NYC Health & Hasps. Corp., 940 F.2d 775, 782 (2d Cir. 1991) (citation and internal quotation marks omitted) (noting that "not every contractual benefit rises to the level of a constitutionally protected property interest").

Ciambriello argues that New York Civil Service Law Section 75 is the source of his property interest in continued employment

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at the PMM-II position. Section 75 states that a covered employee "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section." N.Y. Civ. Serv. L. § 75(1) (McKinney 1999). We have recognized that " § 75 gives covered employees a property interest in their employment, so that they may not be terminated without notice and hearing." O'Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994). Section 75 rights, however, may be modified or replaced by a collective bargaining agreement. N.Y. Civ. Serv. Law § 76(4) (McKinney 1999). Here, § 10-1 of the CBA replaced whatever rights Ciambriello would otherwise have derived from § 75, providing:

Except where an accrediting agency regulating a County department requires otherwise, the provisions of this...

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