Gallipo v. City of Rutland, No. 91-320

Docket NºNo. 91-320
Citation163 Vt. 83, 656 A.2d 635
Case DateDecember 16, 1994
CourtUnited States State Supreme Court of Vermont

Page 635

656 A.2d 635
163 Vt. 83, 6 NDLR P 48
Raymond F. GALLIPO
v.
CITY OF RUTLAND, Fire Chief Gerald Lloyd, and Gerald Lancour.
No. 91-320.
Supreme Court of Vermont.
Dec. 16, 1994.

Page 637

[163 Vt. 85] Andrew Jackson, Middlebury, for plaintiff-appellant.

Samuel Hoar, Jr., and Susan J. Flynn of Dinse, Erdmann & Clapp, Burlington, for defendants-appellees.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiff Raymond F. Gallipo appeals a grant of summary judgment in favor of defendants City of Rutland and Rutland Fire Chief Gerald Lloyd, and the denial of his motion to disqualify the trial judge. We affirm summary judgment in part and reverse in part, and we affirm the decision of the administrative trial judge denying the motion to disqualify.

Plaintiff joined the Rutland Fire Department in 1962. In November 1985, when plaintiff was the most senior firefighter, a lieutenant's position opened up in the department. Chief Gerald Lloyd posted a notice of requirements for the position, which included responsibility for supervision of the fire alarm and traffic system--a responsibility

Page 638

not included in the job description set forth in the personnel manual. Plaintiff was not selected for the position, nor was he selected for two subsequent promotions, notices for which also included job requirements not listed in the personnel manual.

In September 1987, plaintiff filed a complaint under the Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495-496, alleging handicap discrimination because the department had not promoted him due to his known reading problem. Plaintiff subsequently was assigned to menial tasks at the firehouse, and for the first time in his career, received disciplinary memoranda in his personnel file. In January 1988, plaintiff filed a complaint in superior court, alleging that defendants' failure to promote him deprived him of a property right under 42 U.S.C. § 1983, was an unlawful employment practice under 21 V.S.A. § 495, violated provisions of the City charter and the City's personnel regulations, interfered with his contractual and business relations, and intentionally inflicted emotional distress upon him. An additional count alleging that a fellow firefighter assaulted [163 Vt. 86] plaintiff has been stayed by stipulation of the parties pending resolution of this appeal.

Defendants moved for summary judgment, which the trial court granted on all counts. Plaintiff thereafter filed a motion to disqualify Judge Richard W. Norton, who had heard the summary judgment motion, and for a rehearing of the summary judgment motion. Administrative Judge Stephen B. Martin denied the motion, and this appeal followed.

Summary judgment will be granted if, after an adequate time for discovery, a party fails to make a showing sufficient to establish an essential element of the case on which the party will bear the burden of proof at trial. Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326, 1329 (1989). In reviewing a grant of summary judgment, we will affirm if there is no dispute as to a genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. See Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985) (Supreme Court will apply same standard as trial court in considering correctness of disposition of summary judgment motion).

I.

Plaintiff's major contention is that the standard practice in the Rutland Fire Department was to promote the most senior candidate unless that person did not want the job or had an alcohol problem. He contends that this policy established a property right protected under 42 U.S.C. § 1983, 1 which the department violated when it passed him over for promotion in favor of persons less senior than he. The trial court found that plaintiff had not established such a protected property right. We agree.

Section 1983 does not create substantive rights--"it merely provides remedies for deprivations of rights established elsewhere." Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). Further, "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). A legitimate entitlement may arise from existing rules or understandings[163 Vt. 87] that come from an independent source such as state law. Id.; see also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699-70, 33 L.Ed.2d 570 (1972) (benefit may be property interest under due process if rules or mutually explicit understandings support claim of entitlement to benefit that party may invoke at hearing). Cf. Roth, 408 U.S. at 578, 92 S.Ct. at 2709-10 (where one-year employment contract was not renewed, there was no deprivation of property interest).

Page 639

Plaintiff has not cited, nor do we find, any cases holding that, absent statutory or regulatory provisions, a right to promotion is a property right. See Bigby v. City of Chicago, 766 F.2d 1053, 1056-57 (7th Cir.1985) (where statute provided for promotion of police officers based on merit, seniority and examination, choice between highest-ranking candidates remained discretionary and was not a matter of right); Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.1980) (police officer's expectation of promotion not a property interest where state law permitted consideration of subjective factors).

Plaintiff contends that a genuine issue of material fact exists as to whether it was the department's policy to promote solely on the basis of seniority. He asserts in his deposition that such was the case, while Chief Lloyd, himself a firefighter since 1974, asserts in an affidavit that this was not the case. These assertions alone, however, are insufficient to raise a question of fact regarding the department's policy, particularly when they are considered in light of the entire record.

Relevant documents contained in the record include the City's personnel manual and the City Charter. Section IV of the personnel manual provides:

1. Promotion Policy

A. Vacancies in positions above the lowest rank in any category in the classified service shall be filled as far as practical by the promotion of employees in the service. Promotion in every case must involve a definite increase in duties and responsibilities and shall not be made merely for the purpose of effecting an increase in compensation.

City of Rutland, Vermont, Personnel Rules & Regulations (1978). The City Charter sets forth the powers of the fire chief in appointing subordinates:

The [fire chief] shall appoint ... two (2) Lieutenants. The Chief may make such other appointment of subordinate Officers as he [163 Vt. 88] or she deems necessary. All qualifications being equal, the Chief shall appoint senior Officers in the time of service to said subordinate offices.

Revised Charter of the City of Rutland § 23-1 (1987) (emphasis added).

Thus, under the charter, seniority serves only as a tie-breaker, "[a]ll qualifications being equal." The job description for the position of fire lieutenant, as set forth in the personnel manual, includes a list of educational and other minimum requirements in addition to five years of successful experience as a firefighter. We conclude that plaintiff had no property right to promotion based on seniority alone.

Nor is plaintiff's evidence sufficient to raise a genuine issue of an implied contractual provision justifying an expectation of promotion based on seniority. An implied contractual provision may arise through "established past practices," Burlington Area Pub. Employees Union v. Champlain Water Dist., 156 Vt. 516, 521, 594 A.2d 421, 424 (1991), where " 'the conduct of the parties ... encompass[es] a continuity, interest, purpose and understanding which elevates a course of action to an implied contractual status.' " Id. at 525, 594 A.2d at 426 (Dooley, J., concurring) (quoting General Comm. of Adj. v. Burlington Northern, 620 F.2d 161, 163 (8th Cir.1980)).

Here, plaintiff offers the deposition of former Fire Chief Gerald Moore, who, when asked if officers had been appointed on the basis of seniority, replied: "In a general way. Not necessarily all the time." Plaintiff acknowledges that on more than one occasion within his memory the most senior firefighter at the department was passed over for promotion. He attributes these exceptions to the candidates' alcohol problems or their lack of desire for the promotion, but he fails to demonstrate a course of conduct on the part of defendants that an implied contractual provision existed for promotion based solely upon seniority. A bare allegation that seniority was routinely the determining factor in promotions will not suffice. See id. Plaintiff's evidence does not raise a genuine issue of material fact precluding judgment for defendants as a matter of law.

II.

Plaintiff also asserts that Chief Lloyd interfered with his implied contract

Page 640

with the City for promotion according to seniority. We have held that interference with a contractual relation may be found even [163 Vt. 89] where the contract itself is unenforceable. Mitchell v. Aldrich, 122 Vt. 19, 23, 163 A.2d 833, 836 (1960). Nevertheless, the plaintiff must have a reasonable expectancy of gain, a "rightful interest in having the ... promise performed free from other outside interference." Id. As stated above, plaintiff's evidence is insufficient to show a property interest or an implied contract, or even to show a reasonable expectancy that he would be promoted solely on the basis of his seniority. Plaintiff's claim must therefore fail.

III.

Plaintiff next alleges violations of Vermont's Fair Employment Practices Act (VFEPA). 21...

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54 practice notes
  • Price v. Delta Airlines, Inc., No. 2:97-CV-12.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • May 8, 1998
    ...possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized community." Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635, 643 (1994) (internal quotation marks As a threshold matter, this Court must determine whether the conduct alleged, if taken as t......
  • Raymond v. International Business Machines Corp., No. 2:95-CV-158.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • January 27, 1997
    ...connection between [them]." Murray v. St. Michael's College, 164 Vt. 205, ___, 667 A.2d 294, 300 (1995) (citing Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635, 642 (1994)).5 In this breach of contract case, the Court will adopt the same rule: the timing of the complaint and the allege......
  • Robertson v. Mylan Laboratories, Inc., No. 01-466.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 6, 2004
    ...and (4) there was a causal connection between the protected activity and the adverse employment action. Gallipo v. City of Rutland, 163 Vt. 83, 92, 656 A.2d 635, 642 (1994); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995). If the plaintiff establishes a prima facie case, the burden ......
  • Gadbois v. Rock-Tenn Co., Mill Div. Inc., No. 2:96-CV-176.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • November 5, 1997
    ...VII. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985); Gallipo v. City of Rutland, 163 Vt. 83, 89, 656 A.2d 635, 640 (1994). In evaluating claims brought under Title VII, the Court follows the allocation of burdens of proof set forth in......
  • Request a trial to view additional results
54 cases
  • Price v. Delta Airlines, Inc., No. 2:97-CV-12.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • May 8, 1998
    ...possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized community." Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635, 643 (1994) (internal quotation marks As a threshold matter, this Court must determine whether the conduct alleged, if taken as t......
  • Raymond v. International Business Machines Corp., No. 2:95-CV-158.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • January 27, 1997
    ...connection between [them]." Murray v. St. Michael's College, 164 Vt. 205, ___, 667 A.2d 294, 300 (1995) (citing Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635, 642 (1994)).5 In this breach of contract case, the Court will adopt the same rule: the timing of the complaint and the allege......
  • Robertson v. Mylan Laboratories, Inc., No. 01-466.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 6, 2004
    ...and (4) there was a causal connection between the protected activity and the adverse employment action. Gallipo v. City of Rutland, 163 Vt. 83, 92, 656 A.2d 635, 642 (1994); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995). If the plaintiff establishes a prima facie case, the burden ......
  • Gadbois v. Rock-Tenn Co., Mill Div. Inc., No. 2:96-CV-176.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • November 5, 1997
    ...VII. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985); Gallipo v. City of Rutland, 163 Vt. 83, 89, 656 A.2d 635, 640 (1994). In evaluating claims brought under Title VII, the Court follows the allocation of burdens of proof set forth in......
  • Request a trial to view additional results

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