McMullen v. Rossmy
| Decision Date | 12 February 2009 |
| Docket Number | No. 3:06-cv-263 (CFD).,3:06-cv-263 (CFD). |
| Citation | 600 F.Supp.2d 345 |
| Parties | Michael J. McMULLEN, Plaintiff v. Rudolph ROSSMY, Diane Wheelock and the Town of Vernon, Defendants. |
| Court | U.S. District Court — District of Connecticut |
Thomas S. O'Grady, Somers, CT, for Plaintiff.
David S. Monastersky, Martha Anne Shaw, Howd & Ludorf, Hartford, CT, Harold R. Cummings, Cummings, Lanza & Purnhagen, South Windsor, CT, Susan Boyan, Courtney Boyan & Foran, Vernon, CT, for Defendants.
RULING ON MOTION FOR SUMMARY JUDGMENT
This action arises out of the employment relationship between the town of Vernon and Michael McMullen, the former Captain of the Vernon Police Department. McMullen alleges wrongful discharge, breach of his employment contract, and deprivation of his due process and equal protection rights under the Federal and Connecticut constitutions1 arising from his termination, prior claims for additional training and equipment, and the town's failure to rehire him. These claims are brought against the town as well as against Diane Wheelock, its former mayor.2 For the following reasons, the motion for summary judgment is granted.
The town of Vernon is governed by a Charter which classifies administrative officers such as Captain of Police as "qualified officers" (those who must take a competitive examination before appointment) within the "classified service" (i.e. protected by the Charter's merit system). See Charter of the Town of Vernon, Connecticut at 33-34. The merit system provisions include a provision that "no employee in the classified service of the Town may be terminated except for cause or because of reduction in force due to necessary economics."4
McMullen was hired as Captain of Police by Vernon on March 15, 1999, following a career as a police officer for the town of Enfield. McMullen was therefore subject to termination only for cause or due to a "reduction in force due to necessary economics."5
In November 2001, McMullen requested an increase of his salary because of the "compression" between the Captain's salary and the Lieutenant's salary, and also because although McMullen was already at the top step within his pay grade, other police officers were earning higher salaries, due to their eligibility for overtime pay. The Town Administrator, Laurence Shaffer, determined after talking with Police Chief Rudolph Rossmy that the request was not justified, and it was denied.6
During his employment by the town, McMullen was provided with an unmarked police vehicle. According to Police Department policy,7 vehicles were to be replaced when they had accumulated 80,000 miles, and McMullen first requested that his vehicle be replaced in November, 2001, when his vehicle had accumulated close to 80,000 miles. Rossmy brought McMullen's request to the town's Capital Improvement Committee, but the request was denied, as were McMullen's subsequent requests. McMullen eventually accumulated in excess of 100,000 miles on the vehicle.
While Police Captain, McMullen requested additional command school training. In 2000, Rossmy and McMullen completed an application for McMullen to attend the FBI national Academy Program, but no slot in the training program was available during McMullen's employment. The town did not approve an additional budget for other command school training despite requests by Rossmy. McMullen claims that other supervisors in the police department did receive funding for command training during the time that he was denied such funding; however, McMullen had already received the types of training provided to the other police department supervisors, during his time working for the Enfield police department.8
As a result of severe revenue shortfalls for the 2003-2004 fiscal year, funding for several positions was removed from the proposed town budget. Some unfilled positions remained vacant, and some existing employees were laid off. McMullen was laid off by Mayor Wheelock in April, 2003 due to a reduction by the Vernon Town Council of $100,000 in the Police Department portion of the budget. He was informed by Chief Rossmy in a conversation on April 10, 2003 and by formal written notice on June 11, 2003 that the termination would be effective as of July 1, 2003. McMullen then filed a grievance by letter dated July 8, 2003 to Shaffer, the Town Administrator. In this letter, he alleged that he had been discriminated against by a pattern of conduct prevailing since his hire in March 1999 (and consisting of the denials of his requests for training, a new vehicle, and salary reconsideration, and finally his termination). McMullen stated that possible reasons for the discriminatory actions were (1) his decision to live out of state; (2) his age (fifty-two), (3) the fact that he was one year away from being vested in his pension at the time he was terminated.
By letter dated July 14, 2003, Shaffer responded that staffing decisions such as McMullen's layoff for economic reasons are not subject to the grievance procedure set forth in the town regulations. During his deposition, Shaffer also stated that the grievance procedure requires the employee to file the grievance while still employed (Shaffer Deposition Transcript at 71-2), and McMullen asserts that the fact that his grievance was untimely filed was another reason that he was denied access to the grievance process.9
In 2005, plans were made to readvertise the position of Police Captain. According to the defendants, funding for the position would be then available as a result of allowing the position of a retiring Lieutenant to remain unfilled. The town used a third party to assess and rank applicants for the revised position. Following the ranking of the candidates, the top three candidates for the position were interviewed. McMullen ranked fourth and was not interviewed. One of the top three candidates was selected for the position of Captain, but he was removed from the list and appointed as Police Chief instead, when the Police Chief retired.10 Neither McMullen nor any other candidate was added to the list to replace him. Instead, one of the remaining candidates on the list was offered the Captain's position in March, 2006.11
In addition to alleging violations of his rights resulting from the above-described conduct, McMullen also argues that the town's Personnel Rules and Regulations are insufficient under the Charter in that (1) the Rules fail to articulate a policy or procedure for layoffs of qualified officers within the classified service, such as the Captain of Police, and (2) there is no grievance procedure available to wrongfully-terminated employees, both deficiencies allegedly creating violations of McMullen's right to procedural due process.
In a summary judgment motion, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir.2000); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.2000) (citing Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994)). Once the moving party has met its burden, in order to defeat the motion the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 255, 106 S.Ct. 2505, and present such evidence as would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000).
In assessing the record, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Graham, 230 F.3d at 38. "This remedy that precludes a trial is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton, 202 F.3d at 134. Consistent with this standard, all evidence favorable to the nonmoving party must be credited if a reasonable jury could credit it. Evidence favorable to the moving party, on the other hand, must be disregarded unless a reasonable jury would have to credit it because it comes from a disinterested source and is uncontradicted and unimpeached. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "When reasonable persons, applying the proper legal standards, could differ in their responses to the question" raised on the basis of the evidence presented, the question must be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000).
The issue of whether McMullen was deprived of any due process rights depends on (1) whether, within the meaning of the Due Process Clause, McMullen had a "property interest" in a benefit that was entitled to constitutional protection at the time he was deprived of the benefit, and (2) whether due process required a hearing prior to or after the deprivation of the property interest. See, e.g., Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir.1985) modified, 793 F.2d 457 (2d Cir.1986); Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir.1995) (citing Brady v. Town of Colchester, 863 F.2d 205, 211-12 (2d Cir.1988) Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "Property interests are not created by the Constitution; they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Dwyer, 777 F.2d at 829 (citing Cleveland Board of Ed. v. Loudermill, ...
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