Slegeski v. Ilg

• Decision Date: 13 May 1975
• Docket Number: Civ. No. H-74-283.
• Citation: 395 F. Supp. 1253
• Court: U.S. District Court — District of Connecticut
• Parties: Edward SLEGESKI v. Albert G. ILG et al.

395 F. Supp. 1253

Edward SLEGESKI v. Albert G. ILG et al.

Civ. No. H-74-283.

United States District Court, D. Connecticut.

May 13, 1975.

Henry D. Marcus, Hartford, Conn., for plaintiff.

Vincent W. Oswecki, Jr., Windsor, Conn., Edmund T. Curran, Hartford, Conn., for defendants.

RULING ON MOTIONS TO DISMISS

BLUMENFELD, District Judge.

This suit, another of an increasing number brought to the federal courts by a plaintiff who claims that his dismissal from government employment has been in violation of his constitutional rights, is brought by a former employee in the Windsor, Connecticut, police department who was fired during the period when he was serving as a probationary police officer. He alleges that his termination was without due process and brings this action under 42 U.S.C. §§ 1983,¹ 1985 (3), 1986 (1970).

During the six months' probationary period of Slegeski's employment he was accused of having a female traffic violator in his police cruiser in violation of departmental rules and of deliberate untruthfulness. He was afforded a hearing which resulted in his being cleared of both of these charges.² Nevertheless, he was dismissed for having exercised poor judgment, which was equated to a failure to meet a prescribed standard of work, viz., to satisfactorily perform the duties of a police officer.³ Thereafter, the defendant Glass, the town's personnel officer, filed a separation notice with the state labor department stating as the reason for Slegeski's separation from employment: "Unsatisfactory performance during the probationary period." In the "remarks" section of the notice Glass wrote: "Because of his conduct on 4/29/74, it was determined that Slegeski failed to meet the prescribed standards of work. The separation was with prejudice & the maximum penalty should apply." When Slegeski contested the penalty, which resulted in his temporary exclusion from state unemployment benefits,⁴ the Town, per Glass, submitted a supplemental statement that outlined the charges that had been made against Slegeski and indicated that he had been dismissed for failure to meet prescribed standards of work (implicitly indicating that the charge of deliberate untruthfulness had been dropped, cf. note 2 supra).⁵

Slegeski has alleged that the defendants Glass, Darman, Ilg, and Anderson⁶ thereafter told Slegeski's prospective and actual employers that he was "no good" and "unfit for any job, of lousy character and attitude."⁷

I.

This case is presently before the court on the motions of the defendants, all officials of the Town of Windsor, to dismiss for failure to state a claim upon which relief may be granted, see Fed.R. Civ.P. 12(b)(6). Since matters outside the pleadings have been presented to and not excluded by the court, the motions will be treated as ones for summary judgment as provided in Rule 56. See Fed.R.Civ.P. 12(b).

II.

Two of Slegeski's contentions may be disposed of summarily. First, it is clear that no case has been made under § 1985(3).⁸ Slegeski alleges a denial of due process, and § 1985(3) does not forbid conspiracies to deny due process. See, e. g., Lewis v. Brautigam, 227 F.2d 124, 127-128 (5th Cir. 1955); Dunn v. Gazzola, 216 F.2d 709, 711 (1st Cir. 1954); Collins v. Bensinger, 374 F. Supp. 273, 277 (N.D.Ill.1974); Lombardi v. Peace, 259 F.Supp. 222, 225 (S.D. N.Y.1966). Moreover, Slegeski does not claim that he was the victim of any class-based discrimination, an omission that renders § 1985(3) inapplicable. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Nugent v. Guida, Civ.No. N-74-275 (D.Conn. Mar. 25, 1975). Second, it is clear that no case has been made under § 1986,⁹ for that section applies only when violations of § 1985 have been shown. See Johnston v. National Broadcasting Co., 356 F.Supp. 904, 909-910 (E.D.N.Y.1973); Post v. Payton, 323 F.Supp. 799, 802 (E.D.N.Y.1971). Thus only the § 1983 claims need be considered at any length.

III.

In evaluating the claims of Slegeski under § 1983 the initial inquiry is whether the interests allegedly injured by his dismissal fall within the concepts of "property" or "liberty" protected by the due process clause of the fourteenth amendment. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L. Ed.2d 548 (1972). Slegeski contends (1) that his status as an employee constituted a sufficient property interest and (2) that the charges which accompanied his dismissal adversely implicated a sufficient liberty interest to merit protection under the Constitution.

The Property Interest

There is no basis for plaintiff's contention that he had a property interest in his continued employment. In Roth the Court held that:

"To 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 a legitimate claim of entitlement to it . . . ."

408 U.S. at 577, 92 S.Ct. at 2709. In Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), the Court made clear that such a legitimate claim could be predicated on something other than a formal tenure contract; it could also be based upon "rules or mutually explicit understandings that support his claim of entitlement to the benefit."

In this case, there was neither a formal contract of tenure nor such mutually explicit understandings. The plaintiff was hired and was immediately placed upon probationary status for a period of six months. Section 8-4 of the Town of Windsor Personnel Rules states:

"At any time during the probationary period, the department head may recommend in writing to the Town Manager, the removal of an employee, if in his opinion the working test indicates that such employee is unable or unwilling to perform the duties of the position satisfactorily or that his habits and dependability do not merit his continuance in the service. Such recommendation of the department head and the reasons therefor, shall be in writing to the Town Manager with a copy to the employee. No employee shall be removed from a position during his probationary period without the approval of the Town Manager . . . ."

During the probation period the department head, with the approval of the Town Manager, is given great discretion to dismiss an employee. There is no requirement that the dismissal be for cause. Thus, any expectation of continued employment that Slegeski might have had under the Windsor Personnel Rules could only be unilateral and subjective and thus not entitled to the protection of a due process hearing. See Calo v. Paine, 385 F.Supp. 1198 (D.Conn.1974), appeal docketed, No. 75-7028, 2d Cir., Jan. 7, 1975. "Where Executive discretion is not limited, there is no need for a hearing." Arnett v. Kennedy, 416 U.S. 134, 181, 94 S.Ct. 1633, 1657, 40 L.Ed.2d 15 (1974) (separate opinion of White, J.).¹⁰

The Liberty Interest

Under the standards established in Roth, to show an interest protectible under the rubric of "liberty" a complainant must demonstrate that the reasons given for his dismissal would "seriously damage his standing and associations in his community" or foreclose "his freedom to take advantage of other employment opportunities." 408 U.S. at 573, 92 S.Ct. at 2707.

Certainly the charge against Slegeski that he had a female traffic violator in his cruiser in violation of departmental rules cannot be regarded as resulting in injury to his "good name, reputation, honor, or integrity." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). The charge that he had been deliberately untruthful in the context of being questioned about this incident might be regarded as having "a clear, immediate and substantial impact on the employee's reputation which effectively destroys his ability to engage in his occupation," Tichon v. Harder, 438 F.2d 1396, 1402 (2d Cir. 1971). However, the plaintiff was afforded a hearing that resulted in his being cleared of both charges.¹¹ Thus the desideratum of the due process clause in this context — the clearing of one's good name, see Board of Regents v. Roth, 408 U.S. 564, 573 n.12, 92 S.Ct. 2701 (1972) — has here been achieved. Slegeski has no constitutional ground of complaint left with respect to the charges made against him on which he was afforded a hearing. The charge for which Slegeski was ultimately dismissed — "failure to meet prescribed standards of work" — did not implicate any liberty interest and did not, therefore, require that Slegeski be afforded a hearing in order to provide due process protection. Ergo, this court need not examine the hearing which was provided Slegeski to determine whether it conformed to due process standards in all respects.

It follows that Slegeski's rights have not been violated by the communications by defendant Glass to the state labor department which simply described the events related above. Cf. Calo v. Paine, 385 F.Supp. 1198 (D.Conn.1974), appeal docketed, No. 75-7028, 2d Cir., Jan. 7, 1975.

IV.

The remaining claim of the plaintiff is that subsequent to his dismissal the defendants Glass, Darman, Ilg, and Anderson told prospective and actual employers that he was "no good" and "unfit for any job, of lousy character and attitude."

Section 1983 creates a cause of action for the deprivation of federal constitutional rights which may be brought in the federal courts without regard to the amount in controversy.¹² It does not create a federal remedy for ordinary state law claims; federal law is not violated by defamatory statements. If the derogatory statements alleged may be construed as defamatory, the plaintiff has stated an ordinary state law tort claim.

The line of demarcation between state tort claims and federal constitutional claims is sometimes difficult to draw. In this case there were statements allegedly made that concern Slegeski's "good name, reputation, honor, or integrity," ...