Ventetuolo v. Burke, No. 78-1305

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, CAMPBELL and BOWNES; BOWNES
• Citation: 596 F.2d 476
• Parties: Donald VENTETUOLO, Plaintiff-Appellant, v. Dr. Fred BURKE, Commissioner of Education, State of Rhode Island and Dr. Rudolfo Martinez, Individually and as Director of Northeast Area Manpower Institute for Development of Staff, Defendants-Appellees.
• Docket Number: No. 78-1305
• Decision Date: 25 April 1979

Page 476

596 F.2d 476 Donald VENTETUOLO, Plaintiff-Appellant,
v.
Dr. Fred BURKE, Commissioner of Education, State of Rhode
Island and Dr. Rudolfo Martinez, Individually and as
Director of Northeast Area Manpower Institute for
Development of Staff, Defendants-Appellees. No. 78-1305. United States Court of Appeals,
First Circuit. Argued Dec. 5, 1978.
Decided March 30, 1979.
As Amended April 25, 1979.

Page 477

Ralph J. Gonnella, Providence, R. I., for plaintiff-appellant.

J. Peter Doherty, Sp. Asst. Atty. Gen., Providence, R. I., with whom Julius C. Michaelson, Atty. Gen., Providence, R. I., was on brief, for defendants-appellees.

Page 478

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This 1983 civil rights case represents a valiant but vain attempt to establish a constitutionally protected liberty and/or property interest for a state employee who suffered a temporary suspension with pay. The case also involves a pendent state defamation claim.

Donald Ventetuolo and Alfred Santaniello, employees of the Northeast Area Manpower Institute for the Development of Staff (NEAMIDS), ¹ brought suit against the Commissioner of Education for the State of Rhode Island, Dr. Fred Burke, and the former Director of NEAMIDS, Dr. Rudolfo Martinez. Plaintiffs claimed that Burke and Martinez deprived them of their liberty interest in their reputations and a property interest in continued employment with NEAMIDS without procedural or substantive due process. They also allege defamation under Rhode Island law. In a thoughtful and comprehensive but unfortunately unpublished opinion, the district court found for the defendants on all claims. Only Ventetuolo has appealed.

Martinez, whose whereabouts were unknown, was not present at the trial. Since appellant and Santaniello were the only ones who testified, there can be no dispute about the facts which require a detailed exposition. Appellant, prior to 1971, was employed as the State Director of Manpower Development Training Program by the Rhode Island Department of Education (RIDE). He, along with others participated in drafting the initial 1971 NEAMIDS proposal. It provided that, although the NEAMIDS' director had the responsibility of selecting, supervising, and terminating personnel, he was to be responsible to the University of Rhode Island's (URI) vice-president, and the employment of personnel was to be in accordance with all URI state and federal laws, regulations and policies. The program was administered by URI at Kingston in 1971.

NEAMIDS' first director was Dr. Rudolfo Martinez. He recruited appellant to work for NEAMIDS in 1971 and offered him the assistant directorship. At the time, appellant was employed by the State of Rhode Island under a union contract which provided that he could be fired only for just cause, and he expressed concern to Martinez about the apparent lack of job security he would have were he to accept the assistant directorship. Appellant testified that Martinez "told me I had nothing to worry about; that as long as he was Director that he had authority and responsibility for this program, and I would have no problem with security." He further testified that Martinez said he could continue in his job "as long as funds were available." ²

Appellant accepted the proffered position and signed a contract with URI, which expired on December 31, 1973. ³ He was not offered nor did he enter into any other written contract with URI. The administration of NEAMIDS was transferred to the Rhode Island Department of Education in January, 1972, where it remained through 1973. Appellant entered into no written contract with RIDE, but received an "appointment sheet" to his position.

Operations at NEAMIDS apparently flowed smoothly until the fall of 1971 when

Page 479

it was beset by internal factionalism apparently fomented by a power struggle between native Rhode Islanders and those from outside the state. Appellant represented the natives, while Martinez led the outlanders. Many of the staff's complaints, which centered primarily on their overburdened schedules, were brought to appellant rather than Martinez. Appellant and Martinez discussed these internal difficulties with various officials on the national and regional levels of the Area Manpower Institute for the Development of Staff (AMIDS) program outside of the Rhode Island base. Appellant wrote to Burke in July of 1972 to request a meeting to definitely establish his role, responsibilities, and authority, but no meeting was held.

The boiling point was reached at a national AMIDS conference in Kansas in late August, 1972, attended by appellant, Santaniello, Martinez, and other NEAMIDS employees. At a staff meeting held on the evening of August 21, the personnel freely and frankly aired their grievances to Martinez who became so upset that he left the meeting. The next morning, August 22, Martinez hand delivered letters of termination to appellant and Santaniello as they were standing in a breakfast line at the conference. Martinez orally told appellant: "You're terminated. You have to leave immediately." The letter of termination, set out fully in the margin, ⁴ listed as reasons for the dismissal appellant's "blatant insubordination," "open hostility and complete refusal to accept the commands of the director" and because appellant "observably defied the directives of the national concept." The letter indicated that copies of it were also sent to two administrators of the United States Office of Education in charge of the AMIDS program. ⁵

Before appellant left the conference, he tried unsuccessfully to contact Burke, and he wrote Burke on August 28 requesting a hearing, but received no response.

By letter dated September 6, Martinez rescinded the termination and, instead, suspended appellant with pay for an indefinite period. ⁶

Appellant filed suit against Martinez and Burke in the district court on November 10. He sought preliminary and permanent injunctive relief from his suspension or termination without a procedural due process hearing. The complaint was amended on November 20, and a motion for a preliminary injunction filed on November 27.

In a letter to Burke on November 27, Martinez enumerated the grounds upon which he felt that appellant's employment should be terminated. That letter indicated that copies were sent to the individuals listed in Martinez's August 22 letters of termination and, in addition, to two other national officers of AMIDS. ⁷ A copy of the

Page 480

letter was placed in appellant's personnel file. Burke forwarded Martinez's letter to appellant by letter dated November 29, and also offered appellant an opportunity to be heard on the charges, although stating that he did not believe appellant was entitled to a hearing because he was a nonclassified employee.

Appellant requested a hearing, and a trial type hearing was held before an associate commissioner of RIDE, at which appellant was represented by counsel. The associate commissioner concluded, by decision dated February 7, 1973, that only one of the charges was substantiated; that appellant had, in a heated exchange in Martinez's office, called Martinez a "mouse," for which there was an immediate apology. The associate commissioner found there was no just cause for the termination. ⁸

Appellant was reinstated by Commissioner Burke on February 8. Martinez was terminated as of the same date.

NEAMIDS severed its association with the State of Rhode Island in March of 1973 and relocated at Temple University in Philadelphia, Pennsylvania. Appellant applied for the position of assistant director, but was turned down. Most of the other Rhode Island NEAMIDS' employees were rehired in Pennsylvania.

Appellant obtained employment with the State of Rhode Island as the Director of Education with the Rhode Island Department of Corrections about six months later. During the interim, he worked part-time as a consultant to various educational institutions in Rhode Island.

PROPERTY INTEREST

We first address appellant's claim of property interest in his employment. To have a property interest that is constitutionally protected by due process, appellant must have had a legitimate claim of entitlement to continued employment arising out of Rhode Island law. A unilateral expectation is not sufficient. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Willens v. University of Massachusetts, 570 F.2d 403 (1st Cir. 1978); Mack v. Cape Elizabeth School Board, 553 F.2d 720 (1st Cir. 1971). A property interest in the context of appellant's claim was defined as follows:

We have made clear in Roth, Supra, at 571-572, 92 S.Ct. 2701, 2709, that "property" interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, "property" denotes a broad range of interests that are secured by "existing rules or understandings." Id. at 577, 92 S.Ct. 2701, 2709. A person's interest in a benefit is a "property" interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Ibid.

Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

A claim of entitlement may be established not only on express statutory grounds and by express contractual provisions, but also by agreements implied from the promisor's words and conduct in light of

Page 481

the surrounding circumstances. Id. at 602, 92 S.Ct. 2694. A property interest has been found where, by statute, rules, or contract the employee can be fired only for cause. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). A constitutionally protected property interest has not been recognized where the employee serves at the will and pleasure of the public employer. Bishop v. Wood, 426 U.S. 341, 343-47, ...