Ohland v. City of Montpelier

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Citation467 F. Supp. 324
Docket NumberCiv. A. No. 75-167.
PartiesHenry OHLAND v. CITY OF MONTPELIER, and the following named Individuals in their official capacity cited herein and as Individuals, Arthur McLellan, Police Chief, City of Montpelier, Roland Dubay, City Manager, City of Montpelier.
Decision Date26 February 1979




John A. Burgess, Burgess & Normand, Montpelier, Vt., for plaintiff.

W. Edson McKee, McKee, Giuliani & Cleveland, Montpelier, Vt., for defendants.


COFFRIN, District Judge.

In this action the plaintiff seeks money damages against the City of Montpelier, its police chief and city manager. The plaintiff alleges that rights guaranteed to him by the first and fourteenth amendments to the Constitution were violated by his discharge as a policeman on March 29, 1974. Plaintiff brought his claim against the individual defendants under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343. His direct constitutional claim against the city was brought under the general federal question statute. 28 U.S.C. § 1331. Before addressing the issues and arriving at its decision the court deems a chronological review of the proceedings will be helpful because of the length of time the case has been under advisement following trial on the merits and because of the manner in which the parties have chosen to raise the various issues presented.

I. Procedural History of the Case

Plaintiff filed his complaint on July 2, 1975, and the defendants answered on July 17, 1975. Plaintiff moved for summary judgment under Fed.R.Civ.P. 56(c) on August 11, 1975 arguing that since defendants admitted discharging plaintiff without a hearing after he had served for eleven months there was no genuine issue of material fact. He contended that defendants' failure to provide him a hearing violated his fourteenth amendment due process rights, because the City Charter set the probationary period for policemen at six months. On March 26, 1976 the City of Montpelier moved to dismiss the action "since this is a civil rights action and such action does not lie against a municipality." The defendants also raised an alternative defense, claiming that plaintiff had been a probationary employee when discharged, because he was hired pursuant to the city's Personnel Plan, which provided that classified employees could be hired on a probationary status for up to twelve months. Plaintiff's motion for summary judgment and defendants' motion to amend answer were denied following argument at a hearing on March 30, 1976. Counsel for the parties jointly prepared a proposed pre-trial conference order and presented it to the court on April 26, 1976 for consideration; counsel waived a pre-trial conference scheduled for May 3, 1976. The court accepted the proposal as the pre-trial conference order in the case and it was filed on August 11, 1976. The order limited the issues of fact for determination by the court to:

A. Was the plaintiff employed as a regular police officer;
B. Was the plaintiff discharged as a result of the exercise of his rights under the first amendment to organize a union and to voice opinions; and
C. What damages, if any, is the plaintiff entitled to?

The issues of law were stated to be:

A. Whether a municipal corporation is amenable to federal jurisdiction for violation of constitutional rights pursuant to 28 U.S.C. § 1331(a);
B. Whether the acts of the individual defendants are actionable under 42 U.S.C. § 1983; and
C. Whether res judicata or collateral estoppel bars the plaintiff from raising his claims in this action.1

On September 28, 1976, after the pre-trial order was filed, the defendants moved to dismiss the action for lack of jurisdiction, claiming that the Supreme Court's ruling in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), barred this court's consideration of plaintiff's employment status. By written order and opinion filed February 10, 1977 we denied this motion but granted the City of Montpelier's motion to dismiss the action as to it. The court relied on the holdings in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and Mitchell v. Libby, 409 F.Supp. 1098 (D.Vt.1976), that a cause of action against a municipality for damages due to a constitutional violation did not lie either under 42 U.S.C. § 1983 or directly under the Constitution and 28 U.S.C. § 1331. At that time the court also held that the decision of the Vermont Supreme Court in Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975), did not bar us from determining whether plaintiff was a probationary employee or whether he had a cognizable property interest in continued employment.

By order of January 27, 1977, the court allowed amendments to plaintiff's complaint and defendants' answer requesting an award of attorney's fees to the prevailing party pursuant to 42 U.S.C. § 1988.

On February 17, 1977 the plaintiff filed a motion in which he sought to have the court amend its order dismissing the City of Montpelier to enable him to take an immediate appeal therefrom pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5. This motion was denied on March 9, 1977 for reasons stated in a written opinion.

Trial commenced by court on March 15, 1977 and the taking of evidence was completed that day. The court granted leave for the parties to take and file the deposition of defendant McLellan who was ill, and deferred hearing evidence on the question of damages to a date subsequent to the filing of the McLellan deposition. On July 6, 1977 this deposition was filed and the court received evidence on the question of damages. Decision on the merits was reserved at the conclusion of the trial and the parties subsequently filed requests for findings and post-trial memoranda as requested by the court.

In the interval between the commencement and conclusion of the taking of evidence, defendants McLellan and Dubay filed a motion requesting the court to reconsider its February 10, 1977 holding that plaintiff had been a regular employee of the city with a continued expectation of employment. Defendants advanced the argument that in Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975), "the following issues were litigated:

(1) Dismissal for union activity.
(2) Dismissal for activities in bringing about an investigation of the Police Department.
(3) That the dismissal was for inability to perform routine police work in a competent fashion."

Motion to Reconsider and Memorandum in Support of Defendants' Motion Concerning Res Judicata, filed March 23, 1977. Defendants asserted that evidence with respect to those allegations should not have been received in the instant action under principles of res judicata and collateral estoppel. A discussion of these claims will follow below.

On November 3, 1977, with the case still under advisement, the plaintiff filed a motion to reinstate the City of Montpelier as a party defendant, following the Second Circuit's decision in Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977), holding that a complaint setting forth a denial of due process by a municipal corporation stated a cause of action directly under the fourteenth amendment. We withheld decision on this motion pending the en banc decision of the Second Circuit in Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), which was expected to address the same question. Turpin was decided on June 5, 1978. A divided court held that a damage action could be maintained against a municipality to redress injuries resulting from the actions of its employees that have been authorized, sanctioned or ratified by municipal officials or bodies functioning at a policy-making level. The following day, June 6, 1978, the United States Supreme Court decided the case of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which held that local governments were "persons" to whom the provisions of 42 U.S.C. § 1983 apply.

On June 19, 1978 the court met with counsel and requested additional memoranda of law concerning the effect of Turpin and Monell on the present case. On June 28, 1978 the parties stipulated to the reinstatement of the City of Montpelier as a party defendant. Based thereon, it is now so ordered. In the same stipulation the parties agreed that "for all purposes, including that of determining the liability of the City of Montpelier, this action may be submitted to the Court on the basis of the facts which are already of record, and further taking of evidence being waived by all parties." The court now undertakes an examination of those facts.

II. Findings of Fact

On April 15, 1973, the individual defendants, acting jointly and severally in their official capacities and as representatives of the City of Montpelier, hired plaintiff as a police officer. At the time he was hired, plaintiff was advised that he would be on the "usual" probationary status. It is unclear what the parties had in mind at that time with regard to the period or terms of probation but it is likely that no specific consideration was given to either.

At that time the Montpelier City Charter provided for a six-month probationary period for newly-appointed regular police officers, during which period the chief of police could summarily revoke an appointment. Thereafter an officer could be discharged only for incompetence, neglect of duty or misconduct, and would be entitled to a hearing on those charges before the city council.

The City of Montpelier had also adopted a personnel policy pursuant to a legislative grant of authority, Vt.Stat.Ann. tit. 24, §§ 1121-22 (1975), which policy was in effect at the time plaintiff was hired. Section 2-703 of that Personnel Plan reads:

All appointments of classified employees shall be, in the first instance, made for a minimum probationary period of six months and a maximum period of twelve months.

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