Zinker v. Doty

• Decision Date: 29 June 1990
• Docket Number: D,1253,Nos. 1252,s. 1252
• Citation: 907 F.2d 357
• Parties: Joseph ZINKER, as Executor of the Estate of Nancy Zinker, Deceased, Plaintiff-Appellee, Cross-Appellant, v. J. Paul DOTY, Director of Operations and Contract Administration for the Department of Income Maintenance of the State of Connecticut, individually and in his official capacity; Judith A. Kemp, Agency Personnel Administrator, individually and in her official capacity; Stephen B. Heintz, Commissioner, Department of Income Maintenance of the State of Connecticut, in his official capacity; and Elisha Freedman, Commissioner of the Department of Administrative Services of the State of Connecticut, Defendants, J. Paul Doty and Judith A. Kemp, Defendants-Appellants, Cross-Appellees. ockets 89-9122, 89-9124.
• Court: U.S. Court of Appeals — Second Circuit

Page 357

907 F.2d 357

Joseph ZINKER, as Executor of the Estate of Nancy Zinker Deceased, Plaintiff-Appellee, Cross-Appellant, v. J. Paul DOTY, Director of Operations and Contract Administration for the Department of Income Maintenance of the State of Connecticut, individually and in his official capacity; Judith A. Kemp, Agency Personnel Administrator individually and in her official capacity; Stephen B Heintz, Commissioner, Department of Income Maintenance of the State of Connecticut, in his official capacity; and Elisha Freedman, Commissioner of the Department of Administrative Services of the State of Connecticut, Defendants J. Paul Doty and Judith A. Kemp, Defendants-Appellants, Cross-Appellees.

Nos. 1252, 1253, Dockets 89-9122, 89-9124.

United States Court of Appeals, Second Circuit.

Argued April 23, 1990.

Decided June 29, 1990.

Kathleen Eldergill, Manchester, Conn. (Beck & Eldergill, Manchester, Connecticut, of counsel), for plaintiff-appellee, cross-appellant.

Hugh Barber, Asst. Atty. Gen., Hartford, Conn. (Clarine Nardi Riddle, Atty. Gen., Richard J. Lynch, Asst. Atty. Gen., Hartford, Conn., of counsel), for defendant-appellant, cross-appellee J. Paul Doty, individually.

Robert A. Nagy, Asst. Atty. Gen., Hartford, Conn. (Clarine Nardi Riddle, Atty. Gen., Hartford, Conn., of counsel), for defendant-appellant, cross-appellee Judith A. Kemp, individually.

Before VAN GRAAFEILAND, NEWMAN and KEARSE, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

J. Paul Doty and Judith A. Kemp appeal from an amended judgment of the United States District Court for the District of Connecticut which followed a jury trial before Judge Cabranes. The original judgment awarded Nancy Zinker $675,000 in compensatory damages against Doty and Kemp individually and $50,000 in punitive damages against each of them. The amended judgment, entered in response to the defendants' motion for judgment n.o.v., eliminated the punitive damage awards. Zinker cross-appealed from the district court's order eliminating the punitive damage awards. ¹ We reverse the amended judgment on the ground of qualified immunity and remand to the district court with instructions to dismiss the fourth amended complaint.

In 1984, Zinker was a civil service employee of Connecticut's Department of Income Maintenance. Doty was her immediate supervisor, and Kemp was a personnel officer in the Department. The Department had a program pursuant to which employees could earn extra vacation time by working authorized overtime hours. During June of 1984, Doty had several conferences with Zinker, in the course of which he expressed his belief that she was falsifying her work records in order to qualify for unwarranted time off. When Zinker was unable to demonstrate that Doty was mistaken, he told her that he would recommend that strong disciplinary action be taken.

On July 6, 1984, Zinker met with both Doty and Kemp. Although the parties disagree as to what was said at that meeting, it culminated in the following letter addressed to Zinker and signed by Stephen Heintz, Commissioner of the Department of Income Maintenance:

Pursuant to Section 5-240(c) of the Connecticut General Statutes, you are hereby dismissed from State service effective the close of business, Friday, July 20, 1984. However, you should not report for work during the two-week notice period. The Department of Income Maintenance is compelled to take this action for the good of the service as a result of your misconduct as a manager in our Data Processing Unit.

Specifically, you have willfully violated Agency policy regarding prior approval and use of accrued time. You have perpetrated deliberate and serious misrepresentations on your official time sheets, resulting in payment for time not earned and/or not accrued as authorized compensatory time. When given an opportunity by your supervisor to correct the official records, you further exacerbated the situation by presenting documentation which appears to have been fabricated in your attempt to substantiate such use of alleged earned compensatory time. This documentation cannot be verified by any of the Department's checks and balances, nor is it consistent with any of the explanations offered by you to your supervisor.

The Department of Income Maintenance expects its managerial staff to withstand the most stringent scrutiny during the course of their employment with us. Your gross deviation from acceptable conduct in an area of particular sensitivity has significantly impaired our ability to entrust to you Agency managerial functions and responsibility.

You have the right to appeal this decision by filing a grievance directly to the Commissioner of Administrative Services within twenty-one (21) calendar days of the effective date of the dismissal.

It is with deep regret that we terminate your services with the Department.

Section 5-240(c), referred to in the foregoing letter, reads in pertinent part as follows:

An appointing authority may dismiss any employee in the classified service when he considers the good of the service will be served thereby. A permanent employee shall be given written notice The Connecticut statutes also provide that a dismissed employee such as Zinker may appeal her dismissal directly to the "third level of preliminary review", i.e., the "commissioner of administrative services or his designated representative." Conn.Gen.Stat.Ann. Sec. 5-202(a) and (i). Following the July 6, 1984 meeting, Zinker promptly retained an attorney and appealed her dismissal in accordance with this statutory provision. The appeal was heard by Theodore Sulla, an experienced labor relations officer, acting as the commissioner's designee. Following a hearing at which the parties were represented by counsel and testimony was taken from witnesses on both sides, Sulla held that "the action taken by the agency was for reasonable cause" and dismissed the appeal.

of such dismissal at least two weeks in advance of his dismissal, except as hereinafter provided, and a copy of the same shall be filed with the commissioner of administrative services. Such notice shall set forth the reasons for dismissal in sufficient detail to indicate whether the employee was discharged for misconduct, incompetency or other reasons relating to the effective performance of his duties and shall be prepared in such form and given in such manner as the commissioner prescribes.

Although Zinker was authorized by section 5-202(a) to appeal this adverse decision to the employees' review board, a seven member panel organized pursuant to section 5-201, and to have an adverse decision by that board reviewed in the Connecticut courts, see section 4-183, she failed to pursue these remedies. Instead, on April 22, 1985, she instituted the instant action, asserting, among other things, a violation of her constitutional right to procedural due process. ² Adopting Zinker's argument concerning the requirements of due process, the district court charged the jury that if Zinker "was not provided oral or written notice of the charges against her, an explanation of the employer's evidence, and an opportunity to present her side of the story prior to her discharge," her employment was terminated without due process of law. In so charging, the district court rejected the defendants' affirmative defense of qualified immunity, which was based upon their contention that the requirements of due process applicable to the termination of a state employment were not clearly established in July of 1984. We hold that the defendants' motions for summary judgment that were based on their claims of qualified immunity should have been granted.

DISCUSSION

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court discussed the competing societal interests that led to the adoption of the doctrine of qualified immunity. Id. at 813-15, 102 S.Ct. at 2735-37. The Court concluded that, if public officials are not to be dissuaded from the "unflinching discharge of their duties," they must be shielded from liability in performing their discretionary functions so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 814, 818-19, 102 S.Ct. at 2736, 2738-39. Because the test of reasonableness thus prescribed is an objective one, the Court held further that, in most cases, the defense of qualified immunity properly lends itself to summary disposition. Id. at 818, 102 S.Ct. at 2738. In subsequent decisions, the Court enlarged upon and refined the rule thus expressed. See, e.g., Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (qualified immunity defense protects "all but the plainly incompetent or those who knowingly violate the law"); Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) ("The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.").

The Second Circuit has followed the teachings of the above cases and consistently has recognized the defense of qualified immunity where officials operate in an area in which the law has not been charted clearly. See, e.g., Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir.1988); Giacalone v. Abrams, 850 F.2d 79, 85-88 (2d Cir.1988); Krause v. Penny, 837 F.2d 595 (2d Cir.1988); Security and Law Enforcement Employees v. Carey, 737 F.2d 187, 211 (2d Cir.1984); O'Hagan v. Soto, 725 F.2d 878, 879 (2d Cir.1984).

Prior to defendants' complained of actions, the Connecticut Supreme Court of Errors had held that "[w]hen the procedure for the removal of an officer is defined by statute, it is exclusive." McNamara v. City of New Britain, 137 Conn. 616, 619, 79 A.2d 819 (1951); see also Gilbert v. Civil Service Commission, 158 Conn. 578, 581-82, 265 A.2d 67 (1969). In accordance with these holdings, the defendants...