761 F.3d 212 (2nd Cir. 2014), 13-4156, Mirabilio v. Regional School District 16

Docket Nº:13-4156
Citation:761 F.3d 212
Opinion Judge:DENNIS JACOBS, Circuit Judge:
Party Name:CATHERINE A. MIRABILIO, Plaintiff-Appellant, - v. - REGIONAL SCHOOL DISTRICT 16, Defendant-Appellee
Attorney:MELANIE I. KOLEK, Connecticut Education Association, Hartford, CT, for Appellant. NICOLE D. DORMAN, Rose Kallor LLP, Hartford, CT, for Appellee.
Judge Panel:Before: JACOBS, CALABRESI, and LIVINGSTON, Circuit Judges. Judge CALABRESI dissents in a separate opinion. Calabresi, Circuit Judge, dissenting:
Case Date:July 30, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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761 F.3d 212 (2nd Cir. 2014)

CATHERINE A. MIRABILIO, Plaintiff-Appellant, -


- REGIONAL SCHOOL DISTRICT 16, Defendant-Appellee

No. 13-4156

United States Court of Appeals, Second Circuit

July 30, 2014

Argued April 10, 2014.

Appeal from a judgment of the United States District Court for the District of Connecticut (Chatigny, J.), dismissing appellant Catherine Mirabilio's claims that she was entitled to notice and a hearing prior to the regional school board's reduction of her teaching position to half-time. Because Mirabilio was not " terminated" under Connecticut law, she was not deprived of any due process right. We therefore affirm. Judge CALABRESI dissents in a separate opinion.

MELANIE I. KOLEK, Connecticut Education Association, Hartford, CT, for Appellant.

NICOLE D. DORMAN, Rose Kallor LLP, Hartford, CT, for Appellee.

Before: JACOBS, CALABRESI, and LIVINGSTON, Circuit Judges. Judge CALABRESI dissents in a separate opinion.


DENNIS JACOBS, Circuit Judge:

Catherine Mirabilio, a tenured culinary arts teacher, alleges that the regional school board failed to provide notice and a

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hearing before reducing her full-time position to half-time. She appeals from a judgment of the United States District Court for the District of Connecticut (Chatigny, J.), dismissing her claim that the school board thereby deprived her of her due process rights under the Fourteenth Amendment and violated Connecticut General Statute § 10-151. Because the reduction in hours and salary does not constitute a " termination" under Connecticut law, we conclude that Mirabilio was not entitled to notice or a hearing before the school board's decision.


Mirabilio was employed by Connecticut Regional School District 16 (" board" ) as a full-time teacher. In May 2011, the superintendent of schools informed her by letter that, under the recently-adopted school district budget, her position had been reduced to half-time, " commencing with the 2011-2012 school year." Rather than contesting the board's decision by requesting an administrative hearing, Mirabilio filed a lawsuit in Connecticut Superior Court in September 2011, alleging that the board violated her due process and equal protection rights by failing to provide her with notice and a hearing prior to reducing her work hours. She sought full reinstatement to her former full-time position, reimbursement of lost salary and benefits, and other money damages.

The board removed the case to federal court and soon after filed a motion to dismiss for failure to sufficiently allege a constitutional or statutory violation or, in the alternative, for lack of subject matter jurisdiction. The board's motion was granted; the equal protection claim was dismissed with prejudice and the due process claim was dismissed without prejudice. Mirabilio's amended complaint, filed in October 2012, reasserted her due process claim, and the board again moved to dismiss on the same grounds as before. The district court granted the motion and dismissed the complaint, holding that, under settled Connecticut law, (i) only a " termination" of a teaching position triggers a right to prior notice and a hearing, and (ii) reduction of hours from full-time to half-time did not constitute such a " termination." This appeal followed.


" We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead " enough facts to state a claim to relief that is plausible on its face," Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and " allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although all allegations contained in the complaint are assumed to be true, this tenet is " inapplicable to legal conclusions." Id.

Connecticut law requires that, " [p]rior to terminating a [tenured teacher's employment] contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher's contract is under consideration" and the teacher must be given the opportunity to file " a written request for a hearing," which will be held shortly thereafter. Conn. Gen. Stat. § 10-151(d). " It is clear that section 10-151 . . . create[s] a protectable property interest." Zimmerman v. Bd. of Educ. of Town of Branford, 597 F.Supp. 72, 76 (D. Conn. 1984). Although

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" [t]he right to continued employment is a property right protected under the due process clause", see Sekor v. Bd. of Educ. of the Town of Ridgefield, 240 Conn. 119, 129, 689 A.2d 1112 (1997) (citations and alterations omitted), " personnel decisions short of termination do not constitute a deprivation of a property interest" cognizable under the Fourteenth Amendment. Wargat v. Long, 590 F.Supp. 1213, 1215 (D. Conn. 1984) (emphasis added).

The Connecticut Supreme Court has consistently held that " [t]he administrative remedy provided in General Statutes § 10-151(d) does not apply to . . . plaintiffs whose positions were being eliminated but whose employment with the board continued." School Administrators Ass'n of New Haven v. Dow, 200 Conn. 376, 384 n.6, 511 A.2d 1012 (1986) (citing Candelori v. Bd. of Educ. of the City of New Britain, 180 Conn. 66, 69, 428 A.2d 331 (1980); Delagorges v. Bd. of Educ. of the Town & City of West Haven, 176 Conn. 630, 636-37, 410 A.2d 461 (1979). An employee reassigned to a lower-paying position is not considered " terminated" for purposes of the statute even if the pay cut is " substantial." See, e.g., Candelori, 180 Conn. at 67-69 (new teaching positions resulting in substantially lower salary were not classified as terminations).

The plain text of the statute supports this view. Section 10-151 defines " full-time employment," " [f]or the purposes of this section," as " a teacher's employment in a position at a salary rate of fifty per cent or more of the salary rate of such teacher in such position if such position were full-time." Conn. Gen. Stat. § 10-151(a). Since Mirabilio's salary was reduced by exactly 50 percent, her new position is still deemed " full-time employment" under the statute. Because she remains a " full-time" employee despite the reductions in time and salary, Mirabilio was not " terminated" and no due process right was triggered.

Mirabilio was therefore not deprived of her right to continued employment, and was not entitled to notice and a hearing before her hours and salary were reduced.

* * *

Our colleague, deploring " activism," dissents on the procedural issue of whether federal courts are obliged to certify questions of state law that have not been answered " definitely" by the state's highest court (consigning competing values to a footnote). With respect, deciding this case is activity, not activism. The dissent is expressly agnostic as to the merits, but the answer that the dissent would seek by certification has already been given, as the following analysis demonstrates.

The dissent distinguishes Delagorges and Candelori on the sole ground that the plaintiffs were administrators, not teachers. However, the Connecticut Supreme Court has clarified that the decisive point in those cases was that the plaintiffs remained employed notwithstanding the substantial pay reduction. See Cimochowski v. Hartford Pub. Schs.., 261 Conn. 287, 293-94, 802 A.2d 800 (2002) (" We held [in Delagorges] that, when administrators are reassigned to classroom teaching positions rather than being fired outright, the [Teacher Tenure Act] does not apply." ); id. at 297 (" [I]n Delagorges . . . we concluded that, because the two plaintiffs had not been terminated, the [Teacher Tenure Act] did not apply." ); see also Conn. Educ. Ass'n v. State Bd. of Labor Relations, 5 Conn.App. 253, 498 A.2d 102, 111 (Conn.App. 1985) (" In Delagorges, the court held that the transfer of two high school administrators to classroom positions was merely a reassignment which did not entitle the administrators to judicial review of the board of education's decision under the Teacher Tenure Act." ).

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The dissent relies on Cimochowski's observation that administrators and teachers have " differing levels of protection." 261 Conn. at 302. But this distinction has no bearing on whether reassignment constitutes a termination. The very passage quoted by the dissent explains that administrators also enjoy a property right in a teaching position. And (citing Delagorges) Cimochowski observes that " [j]udicial interposition into every reassignment of teaching or administrative personnel would carry substantial potential for administrative chaos." Id. at 300 (emphasis added). Cimochowski's conclusion that not all reassignments of teachers or administrators constitute a " termination" under the Teacher Tenure Act follows...

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