Calo v. Paine, Civ. No. H-74-269.

• Decision Date: 27 November 1974
• Docket Number: Civ. No. H-74-269.
• Citation: 385 F. Supp. 1198
• Parties: Francis X. CALO v. R. Morris PAINE, Chairman of the Waterbury Parking Authority, Individually and in his official capacity, et al.
• Court: U.S. District Court — District of Connecticut

385 F. Supp. 1198

Francis X. CALO v. R. Morris PAINE, Chairman of the Waterbury Parking Authority, Individually and in his official capacity, et al.

Civ. No. H-74-269.

United States District Court, D. Connecticut.

November 27, 1974.

COPYRIGHT MATERIAL OMITTED

Raphael L. Podolsky, Victor M. Ferrante, Jr. Waterbury, Conn., for plaintiff.

John D. Mahaney, John F. Phelan, Waterbury, Conn., for defendants.

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS

BLUMENFELD, District Judge.

This is an action brought by plaintiff Francis X. Calo, former probationary Executive Director of the parking authority of the City of Waterbury, pursuant to 42 U.S.C. § 1983 (1970) and 28 U.S.C. § 1343(3) (1970) against the chairman and members of the Parking Authority and the city Civil Service Commission and the mayor alleging that he was dismissed from his position without a prior hearing in violation of his rights to procedural due process and in retaliation for political activities in opposition to the mayor of the city. The matter is currently before the Court on plaintiff's motion for a preliminary injunction, which was denied following a hearing, and defendants' motion to dismiss the complaint. It is unnecessary to detail the reasons for denying the preliminary injunction as such denial was based upon a failure to show irreparable injury and, in addition, must follow from this ruling on defendants' motion to dismiss.

The defendants' motion to dismiss is somewhat ambiguous in that it states that the complaint does not allege a "substantial federal question." Although this could be construed as a motion to dismiss for a lack of federal jurisdiction under 28 U.S.C. § 1343(3), the Court chooses to construe it as a motion to dismiss for failure to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6); Sheahan v. White, Civ.No. 14,986 (D.Conn. May 31, 1972). Additionally, as testimony was presented at the hearing on plaintiff's motion for a preliminary injunction and other materials, including affidavits of the defendants, were submitted by the defendants and not objected to by the plaintiff, the motion will be treated as one for summary judgment. Fed.R.Civ. P. 12(b); Fed.R.Civ.P. 56.

I.

In October 1973 plaintiff Calo took a competitive civil service examination, offered by the Civil Service Commission of the City of Waterbury, for the position of Executive Director of the Waterbury Parking Authority. On March 6, 1974, his name was certified by the acting director of the Civil Service Commission to the Parking Authority as the highest ranking name on the list of eligibles for that position. On March 11 he commenced employment as Executive Director, but pursuant to the applicable Civil Service Rules and Regulations of the City of Waterbury he was placed on probationary status for the first six months of his employment.

During the next few months, Mr. Calo met with members of the Parking Authority on several occasions and received some evaluation of his performance. There is dispute between the parties as to the frequency of these meetings, whether they were conducted on a regular basis, and the content and scope of the evaluative discussions which took place. However, for the purposes of defendants' motion it may be assumed that there were only three brief meetings and that no detailed criticisms, pointing to specific incidents of poor job performance, were presented to the plaintiff.

On June 13, 1974, plaintiff was asked by defendant Parking Commissioner Giannemore to consider resigning, a course of action which the plaintiff rejected. The request was renewed at an "evaluation" session on June 27, 1974, and once again the plaintiff expressed his intent to remain in his position. The members of the Parking Authority then informed the plaintiff that unless he submitted his resignation by noon of the following day, he would be fired. At the request of plaintiff's attorney who was present at part of the meeting, the issue was deferred and a meeting was scheduled for July 2. On that date, plaintiff, with his attorney present, stated his objection to the Parking Authority's proposed course of action, based upon their failure to detail the reasons for his dismissal and to provide him with an opportunity to refute those charges. Defendant Paine, Chairman of the Parking Authority, offered to detail the basis of the Authority's decision, but the plaintiff refused the offer because of the informal nature of the meeting.

A formal public meeting was held to consider the issue of Mr. Calo's dismissal on July 5. At that meeting the members of the Parking Authority voted to request permission of the director of the Civil Service Commission to remove the plaintiff from his position. In addition, at the plaintiff's insistence, a letter from the Authority to the Acting Director of Personnel of the Waterbury Civil Service Commission, setting forth the grounds for his dismissal, was read into the record. The relevant portions of that letter stated:

"During this probationary period, due to his lack of tact, his abrasive personality, his lack of respect and consideration for the knowledge, ability, time and interest of personnel of the Parking Authority, his over-reacting to unfamiliar situations, his making moves and statements without sufficient knowledge or background of matter under consideration, have caused employee relations to deteriorate very markedly with the result that performance has suffered and public relations have suffered.

"Lacking cooperation, credibility and respect, there is no way in which the operation of the Authority can continue to be successful. No purpose would be served in continuing the probationary period, since the situation has already become intolerable and is not one which can be remedied by additional exposure and/or training. The many incidents of conflict involve not only personnel of the Authority but members of the public and others with whom the Authority has relations. Irreparable damage may have been done already."

There is no dispute, and the minutes of the meeting reflect, that the defendants were hesitant to publicize the reasons for the dismissal, but deferred to the plaintiff's request. It is clear from the minutes of the meeting that the plaintiff was not provided an opportunity to respond to the charges in any way and that, in fact, the vote on his removal took place prior to the arrival of his attorney at the meeting.

On July 5 the Civil Service Director ratified the Authority's decision and plaintiff was dismissed from his position, subject to his right to receive pay for the next two weeks. Subsequent to his dismissal, plaintiff made several requests for a hearing before the Civil Service Commission, but was refused. There is no dispute that at no time either before or after July 5 did the defendants provide the plaintiff with notice of the specific charges against him, an opportunity to confront witnesses or to refute the generalized charges contained in the July 5 letter.

Mr. Calo is a political figure of sorts in the City of Waterbury, having served on the Board of Tax Review and having sought the nomination for Comptroller of the City of Waterbury in September 1973 on a Democratic primary slate in opposition to the slate headed by the current mayor of Waterbury, a defendant in this action. Mr. Calo and his slate lost that election.

Probably as a result of his political activity, the events surrounding his dismissal were the subject of fairly substantial coverage in the local newspapers. He has attached to his complaint copies of 14 articles which appeared in the newspapers. Most of them detail the developing procedural status of his dismissal and his subsequent efforts to obtain review of the decision of the Civil Service Commission. Only two of the articles mention the reasons for the dismissal, as set out in the letter of July 5. However, the defendants admit that the dismissal did receive considerable publicity and was a matter of substantial public interest.

Finally, there is no dispute that plaintiff Calo has remained unemployed since the date of his dismissal midway through his probationary period. The extent of his efforts to obtain employment, however, remains substantially undisclosed.

II.

Defendants first argue that their action in dismissing the plaintiff was not under color of state law as required by 42 U.S.C. § 1983 (1970). They acted pursuant to the Civil Service Rules and Regulations of the City of Waterbury which were adopted in 1962 following an amendment to the City Charter providing for the creation of a civil service system. From this they draw the conclusion that they were acting pursuant to municipal, not state, law.

This is not a case in which a municipality or agency thereof is named as a defendant. The plaintiff is properly suing individual members of the Parking Authority, members of the Civil Service Commission and the mayor in their individual and official capacities. Thus, no issue is presented as to whether a governmental entity is a "person" for the purposes of 42 U.S.C. § 1983 (1970). City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Rather, the question presented is whether individuals who act pursuant to regulations promulgated by a city civil service commission are acting under color of state law.

Regardless of what the situation might be in other cases, it is clear that at least here the defendants' action was under color of state law. In State ex rel. Sloane v. Reidy, 152 Conn. 419, 209 A.2d 674 (1965), the Connecticut Supreme Court discussed and upheld as valid the Waterbury civil service system. At issue in that case was whether the procedure established under the Connecticut Home Rule Act for creating municipal civil service systems preempted the preexisting authority contained in the Waterbury City Charter. The...