Looney v. Black

Citation702 F.3d 701
Decision Date21 December 2012
Docket NumberDocket No. 11–3486.
PartiesPatrick LOONEY, Plaintiff–Appellee, v. William BLACK, Riva R. Clark, and Joseph LaBella, Defendants–Appellants, Town of Marlborough, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

OPINION TEXT STARTS HERE

Jacques J. Parenteau (Justin E. Theriault, on the brief), Madsen, Prestley & Parenteau, LLC, New London, CT, for PlaintiffAppellee.

Michael J. Rose (Robin B. Kallor and Johanna G. Zelman, on the brief), Rose Kallor LLP, Hartford, CT, Andrew L. Houlding, Rome McGuigan, P.C., Hartford, CT, for DefendantsAppellants.

Before: JACOBS, Chief Judge, STRAUB and DRONEY, Circuit Judges.

Judge DRONEY dissents in a separate opinion.

STRAUB, Circuit Judge:

Plaintiff Patrick Looney served as the Building Official for the Town of Marlborough, Connecticut from 1994 until 2010. He now sues Marlborough as well as three members of Marlborough's Board of Selectmen, DefendantsAppellants William Black, Riva Clark, and Joseph LaBella, under 42 U.S.C. § 1983, alleging that he was deprived of his procedural due process and free speech rights when his position was reduced from full to part time after he made certain statements regarding the use of wood-burning stoves, as well as when he subsequently was not reappointed as the town's Building Official.

For the reasons that follow, we hold that the District Court erred in determining that DefendantAppellant Black was not entitled to qualified immunity as to Looney's Fourteenth Amendment procedural due process claim, as Looney has not adequately alleged that he had a constitutionally protected property right in full-time employment. We hold also that the District Court erred in determining that DefendantsAppellants Black, Clark, and LaBella were not entitled to qualified immunity as to Looney's First Amendment claim, as Looney does not adequately allege that he spoke in his capacity as a private citizen. Accordingly, we REVERSE the order of the District Court, and REMAND the case with the direction that the District Court enter judgment for DefendantsAppellants.

BACKGROUND

The following facts are drawn from the allegations in Looney's Second Amended Complaint (“SAC”) and are assumed true for purposes of this appeal.

The position of Building Official is established in the town of Marlborough, Connecticut's Town Charter (“Charter”). The Charter notes that the powers and duties of the position are prescribed by ordinance and the Connecticut General Statutes. The Charter also gives Marlborough's Board of Selectmen the power to appoint all officers set forth therein, including the Building Official.

Connecticut law provides that a Building Official is appointed to a “term of four years and until his successor qualifies....” Conn. Gen.Stat. § 29–260(a). A Building Official may be “dismissed” under the procedures set forth in Connecticut General Statutes § 29–260(b) and (c) if and when he “fails to perform the duties of his office.” Id. § 29–260(b), (c). The Charter notes that approval of the entire Board of Selectmen is needed to discharge or remove any appointed official or employee of the town, including the Building Official.

Looney was appointed as Marlborough's Building Official on August 15, 1994. He learned of the position from a public notice that quoted a salary and stated that the position included a pension and benefits package, both of which are available only to full-time employees. Prior to his accepting the job, Marlborough's then-First Selectman Howard Dean told Looney that he would be given full-time, salaried employment at $33,000 per year, along with a full benefits package.

Subsequently, Looney was reappointed as Marlborough's Building Official four times, in November 1995, November 1999, February 2004, and April 2006. At this last reappointment, Marlborough's Board of Selectmen “decided to ‘continue [his] appointment per C.G.S. Sec. 29–260(a) for an additional four years.’ (JA–90, ¶ 17.) No other conditions or terms of this last reappointment were noted by the Board of Selectmen at that time.

Throughout these appointments, and until February 2, 2010, Looney was always a “full[-]time employee entitled to all benefits provided to full-time employees according to Section 1.1 C of the Town's Personnel Rules and Regulations. These benefits included, but were not limited to, group health and dental insurance, group life insurance, long term disability insurance, contributions to retirement, bereavement leave, personal days, leave of absence with pay for jury duty, reimbursement/ accumulated sick leave, holiday pay, and vacation pay.” (JA–90–91, ¶ 19.) A collective bargaining agreement (“CBA”) entered into between the town and Local 1303–433 of Council 4 AFSCME, AFL–CIO (“Union”) on July 1, 2007 recognized the position of Building Official as full time.

In October 2009, Looney filed a grievance relating to a purported infringement of his First Amendment rights by his supervisor Peter Hughes, who served as Marlborough's Planning & Development Director. Hughes allegedly attempted “to limit [Looney's] communication of information to a Town resident regarding wood burning boiler/stove and smoke discharge as public health concerns.” (JA–91–92, ¶ 23.)

After Looney filed his grievance against Hughes, matters escalated. Hughes again requested that Looney not “engage in discussions of substantive matters outside his job duties concerning other Town agenc[ies] or jurisdiction[s].” (JA–92, ¶ 24.) Looney continued to protest Hughes's attempts to limit his communication with the public and ultimately retained counsel. His counsel sent Black a letter on December 23, 2009 advising him that Hughes's restriction was an “illegal prior restraint on speech in violation of the First Amendment.” (JA–92, ¶¶ 25, 26.) Marlborough announced a week later that it would not remove the restriction Hughes had placed on Looney's speech, and threatened to discipline or discharge Looney. On January 4, 2010, Marlborough's counsel informed the Union that certain of its members would be laid off or have their hours reduced, and that the Building Official position would be reduced to 20 hours a week.

Looney then received a letter from Black on January 28, 2010, confirming the reduction in his hours, and stating that he would be paid “$33 per hour with no additional compensation for loss of benefits.” (JA–93, ¶ 29.) On April 5, 2010, Looney notified Marlborough that he intended to file suit against the town for the events that had transpired. He then commenced this litigation on June 14, 2010, asserting claims pursuant to 42 U.S.C. § 1983 based on violations of the First Amendment and the Fourteenth Amendment procedural due process guarantee.

After the lawsuit had commenced, Black announced that he planned to post a notice seeking to fill the Building Official position. LaBella and Clark, as Selectmen, were included in the search committee that interviewed candidates for the position. Looney applied to be reappointed during the application period, and during his interview LaBella noted “that he had brought a lawsuit against” Marlborough. (JA–94, ¶ 39.) Clark also stated during the interview that she had “serious issues recommending someone who is suing the Town.” (JA–94, ¶ 40.) Black, Clark, and LaBella all voted for a candidate other than Looney to fill the position. Looney was not reappointed.

On September 30, 2010, Black, Clark, and Labella moved to dismiss Looney's complaint on the grounds that, inter alia, all three individual defendants were entitled to qualified immunity as to the applicable claims. 1 Looney then sought leave to file the SAC. The District Court granted Looney's motion to file the SAC, and denied defendants' motion to dismiss in its entirety.

In rejecting the argument made by Black that he was entitled to qualified immunity as to Looney's Fourteenth Amendment due process claim, the District Court held that Looney had adequately alleged a valid property interest in full-time employment. Looney v. Town of Marlborough, No. 3:10–cv–1068, 2011 WL 3290202, at *8 (D.Conn. July 30, 2011). It based this determination on its understanding that while Looney's alleged right to “full-time employment with pension and benefits was not memorialized in a written contract,” there was a sufficiently “consistent course of conduct over a period of more than fifteen years,” and Looney had “relied upon those benefits to secure medical coverage for himself and his disabled spouse.” Id. Thus, the District Court determined that Looney had a constitutionally protected property right under the Fourteenth Amendment. Id.

From this determination, the District Court further concluded that “the law was defined with reasonable clarity and that, based upon the allegations of the [SAC], Black's conduct in reducing Looney's hours was not objectively reasonable.” Id. at *9. Accordingly, it denied the motion to dismiss to the extent that Black argued he was entitled to qualified immunity as to Looney's procedural due process claims.

The District Court then considered Black, Clark, and LaBella's arguments that they were entitled to qualified immunity as to Looney's First Amendment claim. The court denied the motion to dismiss on this ground as well, holding that defendants “appear[ed] to concede that Looney spoke as a citizen instead of pursuant to his official duties,” and that Looney's allegations regarding the speech at issue adequately established that it touched on a matter of public concern. Id. at *10.

Based on this determination, the District Court held that the SAC adequately alleged both a violation of Looney's clearly established First Amendment rights, and that Black, Clark, and LaBella had committed acts of retaliation against Looney for his speech, such that they did not act in an objectively reasonable manner. Id. at *14. Accordingly, the District Court held that the individual defendants were not entitled to qualified immunity...

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