Verger v. City of Winooski
| Decision Date | 03 April 2013 |
| Docket Number | Case No. 5:08-cv-246 |
| Court | U.S. District Court — District of Vermont |
| Parties | JOSHUA HANDVERGER, Plaintiff, v. CITY OF WINOOSKI, VERMONT, Defendant. |
JUDGMENT AND GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(Docs. 70, 71)
This matter arises out of the September 30, 2008 termination of Plaintiff Joshua Handverger by the City Council for Defendant City of Winooski, Vermont ("Winooski"). Before the court are the parties' cross motions for summary judgment (Docs. 70, 71) with regard to Mr. Handverger's Third Amended Complaint. Mr. Handverger alleges Winooski failed to accommodate his religious belief in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e-2(a)(1), and Vermont's Fair Employment Practices Act ("FEPA"), 21 V.S.A. § 495(a)(1).1 He also asserts claims under 42 U.S.C. § 1983, alleging that Winooski deprived him of his constitutionally protected property and liberty interests without procedural due process.
Mr. Handverger is represented by John L. Franco, Jr., Esq. Winooski is represented by Kaveh S. Shahi, Esq.
For the reasons set forth below, the court hereby DENIES Mr. Handverger's motion for summary judgment and GRANTS in part and DENIES in part Winooski's motion for summary judgment.
Joshua Handverger was hired as Winooski's City Manager after his contract with the Town of Sutton, Massachusetts as its town administrator was not renewed. He and Winooski entered into a three-year Employment Agreement (the "Employment Agreement"), executed on October 3, 2007 and effective October 1, 2007 which provided in relevant part:
Employee agrees to remain in the exclusive employ of Employer until October 1, 2010, and neither to accept other employment nor to become employed by any other employer until said termination date, unless said termination date is affected as hereinafter provided.
. . .
During the first year, the employee is considered an "at will" employee, and just cause is not required by the employer to terminate the employee. After the first anniversary of the execution of the original contract, employer is obligated to determine "just cause" prior to terminating employee.
. . .
All provisions of the City Charter . .. as they now exist or hereafter may be amended, also shall apply to Employee as they would to other employees of the Employer, in addition to said benefits enumerated specifically for the benefit of Employee except as herein provided.
Winooski's City Charter (the "Charter") provides that the City Manager must be appointed for "an agreed-upon term," 24 V.S.A. App § 17-3.2, and may be removed from office by the City Council as follows:
On September 19, 2008, eighteen Winooski employees, officials, and department heads signed a letter, on City of Winooski letterhead, calling for Mr. Handverger's resignation. The letter indicated that the signatories had lost the ability to work with Mr. Handverger as City Manager and asserted, among other things, that they believed he lacked "[professionalism" and "maturity," "[reasonable ethical and moral standards required for leadership," "[b]asic people or managerial skills," and "[fiduciary responsibility." (Doc. 70-6 at 1.) The letter also stated that "[b]ecause of your lack of understanding of the City's true financial situation and your refusal to ask questions or listen to the staffs advice prior to making important decisions, both financial and otherwise, you have made some grave errors that will have lasting impacts on this community." Id. at 2. The signatories noted that many of them had individually approached Mr. Handverger during the preceding twelve months to urge him to adopt a "more team oriented style and compromising approach," id. at 1, and stated that their advice had been ignored. They demanded Mr. Handverger's immediate resignation and advised Mr. Handverger that they would issue a press release if he did not tender it. In response, Mr. Handverger refused to resign. The signatories to the letter jointly issued a press release on the same day, stating that:
During the "public comment" period of the regular City Council meeting on September 22, 2008, the undersigned department heads for the City of Winooski will present to the Mayor and City Council a copy of a letter that had been delivered to the City Manager, demanding his immediate resignation.
(Doc. 70-1.) In response, Mr. Handverger contacted members of the City Council and discovered that three of the five City Council members would likely not support his continued employment.
At the City Council's September 22 meeting, Mr. Handverger was represented by Attorney Franco who acted as his primary spokesperson.2 Mr. Handverger's removal was raised during the public comment period during which the employees' letter was presented and read aloud. Mayor Michael R. O'Brien, a member of the City Council, asked Mr. Handverger if he wished to respond. Mr. Handverger replied that he was surprised by the accusations in the letter, that he believed the letter included some "false statements," and that he would welcome a discussion of the referenced concerns with the department heads at a "later point." (Doc. 71-3 at 00:13:45) (Winooski City Council television broadcast Sept. 22, 2008). The City Council subsequently opened the floor to the public, during which, among other comments, numerous Winooski employees and members of the public addressed the City Council in support of Mr. Handverger's removal. While some members of the public and certain employees spoke in support of Mr. Handverger, many more spoke in favor of his removal including members of the public who also criticized the City Council for its handling of the matter. The meeting was at times raucous but the City Council quickly restored order.3
After the public comment portion of the meeting concluded, Attorney Franco addressed the City Council, asking "[w]hen are you proposing to have a hearing aboutwhether or not [Mr. Handverger] ought to be removed?" Id. at 00:40:50. Mayor O'Brien responded:
[T]his is not a hearing, we have just heard from employees, from citizens, both ways. I think we have to come to a decision tonight, a final decision. We have discussed in executive session where we were going, [but] we have not made a decision in public session as to how we are going to move forward.
Id. at 00:40:50. Attorney Franco responded that a determination regarding Mr. Handverger's removal would be inappropriate, because no proceeding regarding Mr. Handverger's removal had been noticed by the City Council as part of its agenda. He nevertheless stated that if the City Council was going to take up the issue of Mr. Handverger's removal, Mr. Handverger would prefer that the City Council proceed in open session rather than in executive session. The City Council agreed to discuss Mr. Handverger's removal in open session.
Thereafter, Attorney Franco stated that to legally remove Mr. Handverger under the Charter, the City Council would be required to vote for a preliminary removal resolution, afford Mr. Handverger five days to request a hearing, and then schedule a hearing no less than fifteen and no more than thirty days after his request. Mayor O'Brien replied that the City Council would defer to the City Attorney William O'Brien, as to the Council's legal obligations. Attorney O'Brien stated that because Mr. Handverger's contract with Winooski specified that he was an at-will employee until October 1, 2008, the City Council was not required to comply with the Charter. However, he further stated that "despite that, I would recommend that you provide [Mr. Handverger] the charter protection, which says a public hearing if he should so request." Id. at 1:44:34.
In response, the City Council decided to vote on a preliminary removal resolution in accordance with the Charter. Before voting on the resolution, the City Council gave Mr. Handverger another opportunity to respond. Attorney Franco stated that "I think enough has been said for tonight" and "I want to thank the Council for agreeing to follow the procedure in the Charter, I think that is very important." Id. at 2:03:15. MayorO'Brien replied that if the City Council voted for Mr. Handverger's preliminary removal, Mr. Handverger would have five days to file a written hearing request through Attorney O'Brien, after which "we will schedule the hearing as appropriate." Id. at 2:04:23.
The City Council then voted in favor of the preliminary removal resolution, placed Mr. Handverger on paid suspension, and removed him from...
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