Grasson v. Board of Education
Grasson v. Board of Education
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
Robert Grasson alleges that defendants
II. BACKGROUND
1. The Transportation Contract
On May 15, 2004, the Board and Gras-son entered into a contract for the transportation of elementary and kindergarten school children in the Town of Orange.
This contract is to take effect July 1, 2004 and is to continue until June 30, 2009 with the understanding that the contract may be cancelled by either party by giving ninety days written notice to the other party of intent to cancel. In the case of the Board, the 90 day notice may be given by the Superintendent to the Owner-Driver. The Board of Education agrees that no Owner-Driver’s contract will be cancelled except for just cause as voted by a majority of the Orange Board of Education during said 90 day period. The Board of Education reserves the right, under the “just cause” clause to cancel this contract if a decline in school population makes a bus unnecessary.
The Superintendent may suspend without compensation an Owner-Driver’s services for any material breach of this Contract or for a serious safety violation, pending the Board’s consideration of a Contract cancellation vote. In such case, at the time of such vote, the Board shall also, by majority vote, determine whether the contract breach or safety violation warrants forfeiture of compensation during all or part of the 90 day period.6
Grasson claims, but defendants dispute, that the contract was automatically renewable upon expiration.
2. The Incident
On September 17, 2007, Grasson was driving three female kindergarten students from .school to their homes.
3. James’s Investigation
Superintendent James spoke with one of the parents of the children on the day of the incident, and the parents of the other two children the following day.
Grasson and James met on September 20, 2007, and three members of the Winkle family appeared at the meeting in support of Grasson.
4. The Board Meetings
On September 26, 2007, the Board held a special meeting to discuss Grasson’s
The Board met again on October 9, 2007.
The Board moves to terminate for just cause the contract between the Board and Mr. Robert Grasson for the transportation of elementary and kindergarten school children of the Town of Orange, effective July 1, 2004 through June 30, 2009. Further, the Board moves that compensation for said transportation services shall not be provided to Mr. Grasson during that contractually mandated 90-day notice period, except for money already paid during that period of time.32
The minutes indicate that the vote passed 9-0.
On October 11, 2007, James sent Gras-son “notice of the termination of the Contract.”
Such notice is being served in accordance with Section C of the Contract, which states, in part, the “contract may be cancelled by either party by giving ninety days written notice to the other party of intent to cancel.” The board may terminate the contract “for just cause as voted by a majority of the Orange Board of Education.” Additionally, [t]he Board may, by a majority vote, “determine whether the contract breach or safety violation warrants forfeiture of compensation during all or part of the 90 day period.”
The letter describes James’s investigation, and asserts that during the telephone conversation on September 19, 2007, Grasson “admitted to having made inappropriate comments to students ..., including asking said students if they could, ‘keep a secret.’ ” It further states that “[biased on your inappropriate comments to students on or around September 17, 2007, the Board unanimously voted on October 9, 2007 to cancel the-Contract, effective at the end of the ninety (90) day notice period, or January 10, 200[8].”
According to Grasson:
Prior to the termination of my contract by the [Board], I was not given notice of the specific grounds for termination[. T]he evidence against me, including the written complaints on which the action was based, were not disclosed to me[J I was not given an opportunity to be heard in my defense personally or by*144 counsel at a public hearing before an impartial tribunal^] I was not afforded an opportunity to examine those persons who[se] complaints were the basis for the action against me, nor was I provided with a post deprivation hearing.35
Following his termination, the Winkles, as well as the Amity school district, continue to permit Grasson to drive for them, despite knowing why his contract with the Board was cancelled.
III. LEGAL STANDARDS
A. Summary Judgment
“Summary judgment is appropriate ‘only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party’s favor, there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.’ ”
“The burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists.”
In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”
Whether contract language is plain or ambiguous is to be determined by a court as a matter of law.
IV. APPLICABLE LAW
A. Breach of Contract
Under Connecticut law, the elements of a breach of contract claim are: “(1) formation of an agreement; (2) performance by one party; (3) breach of the agreement; and (4) damages.”
B. Section 1983
“To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) ‘that some person has deprived him of a federal right,’ and (2) ‘that the person who has deprived him of that right acted under color of state ... law.’ ”
A plaintiff asserting a section 1983 claim must show the defendant’s “personal involvement ... in [an] alleged constitutional deprivation[ ].”
C.Substantive and Procedural Due Process Claims
1. Substantive Due Process
“[T]he Due Process Clause of the Fourteenth Amendment embodies a
2. Procedural Due Process
“Procedural due process requires that ‘a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ”
Notice must be “‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ”
3. Stigma-Plus Claims
A “stigma-plus” claim is a subset of procedural due process. It is “brought for injury to one’s reputation (the stigma) coupled with the deprivation of some ‘tangible interest’ or property right (the plus), without adequate process.”
V. DISCUSSION
A. Breach of Contract
Grasson argues that the Board breached the transportation contract in three different ways: (1) terminating it without “just cause;” (2) suspending it in the absence of a “serious safety violation” or “material breach;” and (3) terminating it without first providing him with 90-days notice of intent to cancel.
1. Just Cause
Defendants first claim that “a plain reading of the contract establishes that either party could cancel the contract so long as” 90-days written notice is provided.
Defendants’ fallback argument is that even if just cause was required, Gras-son’s conduct constitutes just cause.
2. Material Breach
Defendants contend that the safety violation and material breach language are not relevant because they relate only to suspensions without pay, and Grasson was suspended with pay.
3. Notice of Intent to Cancel
Finally, defendants argue that Grasson was given the required 90-day written notice in the October 11 Termination Letter, which provided that the cancellation is “ ‘effective at the end of the ninety (90) day notice period, or January 10, 200[8].’ ”
B. Substantive Due Process
1. Grasson’s Claim Is Not Supported by a Sufficient Interest
Courts have distinguished the rights or interests that provide the basis for substantive and procedural due process claims, and a far narrower range of such rights or interests are protected under the former. Substantive due process protections extend only to those interests that are “implicit in the concept of ordered liberty,”
In essence, Grasson asserts that he had a property or liberty interest arising from his contract and a liberty interest in his continued employment as a bus operator.
Moreover, even if the rights and interests asserted by Grasson were considered fundamental, “the defendants’ alleged conduct in depriving him of that right [or interest] was not ‘so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.’”
C. Procedural Due Process
1. Property Interest
As a general matter, property interests may be created by statute or contract.
Courts in the Second Circuit have been reluctant to expand due process protections to ordinary commercial contracts. As explained in S & D Maintenance Co., Inc. v. Goldin:
[Wjhenever a person contracts with a state, breach by the state can be considered a denial of his entitlement to performance of the contract. If the concept*151 of ‘entitlement’ were this expansive, federal courts could be asked to examine the procedural fairness of every action by a state alleged to be in breach of its contracts.97
Instead, “the type of interest a person has in the enforcement of an ordinary commercial contract often ‘is qualitatively different from the interests the Supreme Court has thus far viewed as ‘property’ entitled to procedural due process protection.’ ”
Grasson argues that he had a “property interest in his continued employment providing transportation for children” because “he could only be terminated by the defendants for just cause as voted by a majority of the Orange Board of Education during said 90-day period.”
2. Liberty Interest
Grasson’s procedural due process claim amounts to a stigma-plus claim.
Grasson argues that the Board’s statements “have destroyed [his] earning capacity because his livelihood as a bus driver requires contact with children.”
Defendants argue that because the Complaint is brought against the individual defendants in their official capacities only, the individual defendants are entitled to governmental immunity.
Grasson does not deny that the individual defendants were sued in their official capacities. By failing to address defendants’ contention, Grasson has waived any argument to the contrary.
“It is well settled law that an action against a government official in his or her official capacity is not an action against the official, but instead, is one against the official’s office and, thus, is treated as an action against the entity itself:”
Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
Judge Dorsey’s determination that the intentional tort claims are barred by section 52-557n(a)(2)(A) and the conversion and negligent infliction of emotional distress claims are barred by section 52-557n(a)(2)(B) applies to the claims asserted against the individual defendants in their official capacities.
Grasson argues that section 52-557n(c) provides a basis for liability because- it permits a lawsuit agaipst a board member acting in his official capacity if injury was caused by his reckless, wilful, or wanton misconduct.
YI. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is GRANTED as to the substantive and procedural due process claims against the Board and the individual defendants,' GRANTED as to the tort claims against the individual defendants, and DENIED as to the breach of contract claim against the Board. In addition, all claims are DISMISSED as to defendant Joseph Marulli, who was not personally involved in any of the conduct alleged in the Complaint.
. The defendants are the Board of Education of the Town of Orange (the “Board”); Tim James, the Superintendent of Schools for the Town of Orange ("James”); Alfred Pullo, the business manager for the Board ("Pullo”); and the members of the Board at the time of the events described in the Complaint. See Complaint ¶¶ 1-5. James, Pullo, and the Board members are referred to collectively as the "individual defendants.”
. This action was originally filed in the Superior Court of Connecticut, Judicial District of New Haven. It was removed by defendants based on the assertion of claims under section 1983 of Title 42 of the United States Code ("section 1983”).
. The tort claims are for conversion, defamation, invasion of privacy, negligent infliction of emotional distress, and tortious interference with business expectancy. On April 12, 2010, United States District Judge Peter C. Dorsey granted in part and denied in part defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Grasson v. Board of Educ. of Town of Orange, No. 09 Civ. 1584, 2010 WL 1444570 (D.Conn. Apr. 12, 2010) ("Grasson I”). Grasson’s tort claims against the Board were dismissed pursuant to Connecticut General Statute § 52-557n(a)(2) ("section 52-557n(a)(2)”), which provides for governmental immunity for intentional tort and negligence claims. See id. at *3. His breach of contract and covenant of good faith and fair dealing claims were dismissed as to the individual defendants because they were not parties to the contract between Grasson and the Board. See id. at
. The following facts are derived from the Complaint, the parties’ Local Rule 56(a) statements, and supporting documents. The facts are undisputed unless otherwise noted. Where disputed, they are construed in the light most favorable to the plaintiff. See, e.g., Federal Ins. Co. v. American Home Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).
. See Local Rule 56(a)l Statement in Support of Defendants' Motion for Summary Judgment ("Def. 56(a)l”) ¶ 1. In this opinion, I only cite to paragraphs in Defendants’ Local Rule 56(a)l Statement to which Grasson responded “Admitted” in his Local Rule 56(a)2 Statement in Opposition to Defendants' Motion for Summary Judgment.
. 5/15/04 Contract for Transportation of Elementary and Kindergarten School Children of the Town of Orange, Ex. A to Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Mem.”), § C.
. See 12/6/11 Affidavit of Robert Grasson ("Grasson Aff.”), Ex. 8 to Memorandum of Law in Support of Plaintiff’s Objection to Defendants' Motion for Summary Judgment ("PL Mem.”), ¶ 6.
. See PL Mem. at 2-3.
. Id. at 3.
. See Grasson Aff. ¶ 13.
. See id. n 14-16.
. See Def. 56(a)l ¶ 7.
. Id. ¶ 13.
. See id. 1Í14. Grasson worked part time for Winkle both as a driver and a driver trainer, but not in connection with his contract with the Board. See PL Mem. at 1.
. See Def. Rule 56(a)! ¶ 15.
.See id. ¶ 16.
. See id. ¶ 17.
. See id. ¶ 19.
.See id. ¶ 21.
. See id. ¶ 22.
. Grasson Aff. ¶ 20.
. See Def. Rule 56(a) 1 ¶ 27.
. See id. ¶ 28.
. See id ¶ 31.
. See id.
. See id. ¶ 37.
. See 1/4/11 Affidavit of Plaintiff Robert M. Grasson in Support of Objection to Disqualify Counsel ¶ 10.
. See Def. Rule 5 6(a) 1 ¶ 3 9.
. See id. ¶ 40.
. See id. ¶ 41.
. See id. ¶ 42.
. 10/9/07 Executive Meeting Minutes of the Board, Ex. 20 to PL Mem.
. See id.
. See Def. Rule 56(a)l ¶ 47; 11/10/07 Letter from James to Grasson, Ex. W to Def. Mem. ("Termination Letter”).
. Grasson Aff. ¶ 26.
. See Def. Rule 56(a)l ¶ 52.
. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d Cir. 2014) (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009)) (other quotations omitted).
. Benn v. Kissane, 510 Fed.Appx. 34, 36 (2d Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 78, 187 L.Ed.2d 30 (2013) (quoting General Star Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009)) (other quotations omitted).
. Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012) (quoting Bessemer Trust Co. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010)).
. Mavrommatis v. Carey Limousine Westchester, Inc., No. 10 Civ. 3404, 2011 WL 3903429, at *1 (2d Cir. Sept. 7, 2011) (citing Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)).
. Valenti v. Penn Mut. Life Ins. Co., 511 Fed.Appx. 57, 58 (2d Cir. 2013) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Northeast Research, LLC v. One Shipwrecked Vessel, 729 F.3d 197, 214 (2d Cir. 2013) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).
. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir. 2012).
. Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
. Samowitz v. Homes For America Holdings, Inc., No. 05 Civ. 22, 2006 WL 1980311, at *2 (D.Conn. July 13, 2006) (citing Schiavone v. Pearce, 79 F.3d 248 (2d Cir. 1996)). "Where the language of the contract is clear and un
. Elm Haven Constr. Ltd. P'ship v. Neri Const., LLC, 281 F.Supp.2d 406, 408 (D.Conn. 2003) (citing Sobering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983)).
. Id. (citing Thompson v. Gjivoje, 896 F.2d 716, 721 (2d Cir. 1990)). Accord A.T. Clayton & Co. v. Hachenberger, 920 F.Supp.2d 258, 263-64 (D.Conn. 2013).
. Mahon v. Chicago Title Ins. Co., 296 F.R.D. 63, 78 (D.Conn. 2013) (quotation marks omitted).
. Lar-Rob Bus Corp. v. Town of Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1975).
. Id. at 406-07, 365 A.2d 1086.
. Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)).
. Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).
. Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992).
. Martinsky v. City of Bridgeport, 504 Fed.Appx. 43, 46 (2d Cir. 2012) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted).
. Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (quotation marks omitted).
. Royal Crown Day Care LLC v. Department of Health and Mental Hygiene of City of New York, 746 F.3d 538, 545 (2d Cir. 2014) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 784 (2d Cir. 2007)).
. County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)).
. Bolmer v. Oliveira, 594 F.3d 134, 142 (2d Cir. 2010) (quoting Lewis, 523 U.S. at 847 n. 8, 118 S.Ct. 1708). "The shock the conscience standard is not easily met; the plaintiff must show the government conduct was egregious' and outrageous, not merely incorrect or ill-advised.” Schultz v. Incorporated Village of Bellport, No. 08 Civ. 930, 2010 WL 3924751, at *6 (E.D.N.Y. Sept. 30, 2010) (citing Okin v. Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir. 2009) and Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006)) (quotation marks omitted), aff'd, 479 Fed.Appx. 358 (2012).
. Ceja v. Vacca, 503 Fed.Appx. 20, 22 (2d Cir. 2012) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)).
. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
. Narumanchi v. Board of Trs. of Connecticut State Univ., 850 F.2d 70, 72 (2d Cir. 1988).
. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
. Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
. Mathews, 424 U.S. at 333, 96 S.Ct. 893 (discussing how to determine what process is due when a plaintiff has been deprived of a valid property interest).
. Otero v. Bridgeport Housing Auth., 297 F.3d 142, 151 (2d Cir. 2002) (quoting Loudermill, 470 U.S. at 545, 105 S.Ct. 1487). Accord Faghri v. University of Connecticut, 621 F.3d 92, 99 (2d Cir. 2010) ("The requisite hearing is a minimal one.”).
. Otero, 297 F.3d at 151 (quoting Loudermill, 470 U.S. at 546, 105 S.Ct. 1487).
. See Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 468 n. 12 (2d Cir. 2006).
. DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003) (quotation marks omitted). Accord S & D Maintenance Co., Inc. v. Goldin, 844 F.2d 962, 970 (2d Cir. 1988) ("A government employee’s liberty interest is implicated where the government dismisses him based on charges that might seriously damage his standing and associations in his community or that might impose on him a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities.”) (quotation marks and alterations omitted).
. With regard to the publication requirement, "[t]he defamatory statement must be sufficiently public to create or threaten a stigma; hence, a statement made only to the plaintiff, and only in private, ordinarily does not implicate a liberty interest.” Velez, 401 F.3d at 87.
. Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004) (quotation marks omitted).
. PL Mem. at 11-12.
. Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Reply Mem.”), at 5.
. See id. at 5-6 ("If just cause were required for all terminations, as suggested by the plaintiff, then the language 'during said 90 day period,’ would be rendered meaningless.”).
. Contract § C.
. See PL Mem. at 14-15; Minutes; Termination Letter.
. See Reply Mem. at 4.
. See Grasson Aff. ¶ 13.
. See id. ¶¶ 14-16.
. See PL Mem. at 15.
. The parties cite to cases discussing just cause in the context of termination of an employee. See, e.g., Reply Mem. at 4; PL Mem. at 14. But as noted by Judge Dorsey, Grasson was not an employee. See Grasson I, 2010 WL 1444570, at *5 (noting, however, that "the cancelling of [Grasson's] contract was akin to a discretionary personnel decision”). However, even under the employment cases cited by defendants, when just cause is required, an employer must offer a "proper reason for dismissal....” Slifkin v. Condec Corp., 13 Conn.App. 538, 538 A.2d 231 (App.Ct. 1988). Whether the reason offered by defendants for Grasson’s dismissal was “proper” cannot, on this record, be determined as a matter of law.
. See Reply Mem. at 3.
. See Termination Letter (stating that Gras-son would not be receiving compensation "during the contractually mandated 90-day notice period, excepting money already paid for that period of time”).
. Reply Mem. at 3 (quoting Termination Letter).
. Contract § C (emphasis added). It may be that a Board vote is required to issue a notice, but even if it was, nothing precluded the Board from voting first on whether to issue the notice of its intent to cancel the contract and then holding a separate vote, during the 90-day period, on whether it had just cause to terminate the contract.
. Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937).
. Reno v. Flores, 507 U.S. 292, 303, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (quotation marks omitted).
. Local 342, Long Island Public Service Employees, UMD, ILA, AFL-CIO v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994) (“Local 342") (quotation marks omitted).
. See PL Mem. at 26-27.
. Tessler v. Paterson, 451 Fed.Appx. 30, 32-33 (2d Cir. 2011) (citing Local 342, 31 F.3d at 1196) (quotation marks omitted).
. Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1978). Accord McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) ("Because employment rights are state-created rights and are not 'fundamental' rights created by the Constitution, they do not enjoy substantive due process protection.”).
. Tessler, 451 Fed.Appx. at 33 (quoting Anthony v. City of New York, 339 F.3d 129, 143 (2d Cir. 2003)).
. Compare Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002) ("Striking a student without any pedagogical or disciplinary justification” does not shock the conscience.); Scotti v. County of Nassau, No. 02 Civ. 3685, 2005 WL 3670913, at *7-8 (E.D.N.Y. Sept. 13, 2005) (videotaping and visiting disabled correctional officer’s home was not "so brutal and offensive to human dignity as to shock the conscience”) with Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcibly pumping suspect's stomach to obtain evidence was conscience-shocking governmental action); Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 249-52 (2d Cir. 2001) (finding a teacher's violent assault of an eighth grade student, including choking the student, punching him in the face, and ramming the student's head into hard objects shocks the conscience).
. See generally Local 342, 31 F.3d at 1194—95 ("In order for a person to have a property interest in a benefit such as the right to payment under a contract, he must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. When determining whether a plaintiff has a claim of entitlement, we focus on the applicable statute, contract or regulation that purports to establish the benefit. We note that although a public contract can confer a protectible benefit, not every contract does so, and the type of interest a person has in the enforcement of an ordinary commercial contract often is qualitatively different from the interests the Supreme Court has thus far viewed as 'property' entitled to procedural due process protection.”) (quotation marks, citations, and alterations omitted).
. S & D Maintenance Co., 844 F.2d at 967.
. See Grasson I, 2010 WL 1444570, at *5. Grasson also admits that he was not an employee. See PL Mem. at 28 (stating that "the documentary evidence produced by the Plaintiff establishes that there was no employer/employee relationship between the parties and that the Plaintiff was an independent contractor”).
. Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 30 (2d Cir. 1994) (quoting S & D Maintenance Co., 844 F.2d at 966).
. S & D Maintenance Co., 844 F.2d at 965 (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)).
. See id. (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
. See id. (citing Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and Roth, 408 U.S. at 577, 92 S.Ct. 2701).
. See id. (citing Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974)).
. Id.
. PL Mem. at 25. Grasson does not have a property right created by statute, because Connecticut General Statute 10-220, which authorizes the Board to enter into transporta- • tion contracts, does not state that contractors can only be terminated for just cause or that they have the right to notice and a hearing. Cf. J.O.M. Corp. v. Department of Health, 697 F.Supp. 720, 724-25 (S.D.N.Y. 1988) (where state regulations require hearing to be held prior to disqualification of plaintiff from federally funded program, plaintiff had protecti-ble property interest in receiving hearing).
. See, e.g., San Bernardino Physicians’ Servs. Med. Grp., Inc. v. County of San Bernardino, 825 F.2d 1404 (9th Cir. 1987) (denying due process protection for contractual right to supply medical services for four-year term).
. See, e.g., Malapanis v. Regan, 340 F.Supp.2d 184, 192 (D.Conn. 2004) ("S & D Maintenance's holding is not so broad as to transform any contractual provision allowing termination for nonperformance, or failing to provide for unconditional termination, into a property right.”).
. S & D Maintenance, 844 F.2d at 968. Accord id. at 967 (“Other courts of appeals have also been reluctant to surround the entire body of public contract rights with due process protections.”) (citing San Bernardino Physicians’ Servs. Med. Grp., Inc., 825 F.2d 1404; Brown v. Brienen, 122 F.2d 360, 364 (7th Cir. 1983) (expressing doubt that due process protection extends to contractual right to compensatory time off and stating that "[w]e must bear in mind that the Fourteenth Amendment was not intended to shift the whole of the public law of the states into the . federal courts.”); Casey v. Depetrillo, 697 F.2d 22, 23 (1st Cir. 1983) (per curiam) (same); Manning v. Lockhart, 623 F.2d 536, 538 (8th Cir. 1980) (per curiam) (same)).
. See, e.g., Complaint ¶ 17 ("Plaintiff had a legal entitlement to and a legal interest in his good name, reputation, honor and integrity, to continue and engage in his occupation, and avoiding a stigma or other disability that foreclose other employment opportunities.”).
. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980). Accord Patterson, 370 F.3d at 330 ("For a government employee, a cause of action under § 1983 for deprivation of a liberty interest without due process of law may arise when an alleged government defamation occurs in the course of dismissal from government employment.”).
. Toussie v. County of Suffolk, 806 F.Supp.2d 558, 579-80 (E.D.N.Y. 2011) (citing Rodriguez v. Margotta, 71 F.Supp.2d 289, 296 (S.D.N.Y. 1999) (substantive due process); Schultz v. Incorporated Vill. of Bellport, No. 08 Civ. 0930, 2010 WL 3924751, at *7 (E.D.N.Y. Sept 30, 2010) (substantive due process)).
. Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630-31 (2d Cir. 1996).
. PL Mem. at 22.
. See Def. Rule 56(a)! ¶ 52.
. 11/2/10 Deposition Transcript of Robert Grasson, Ex. B to Def. Mem., at 22.
. See Def. Mem. at 13-15.
. See id. at 14.
. See id. at 15.
. See, e.g., Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y. 2003) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing judgment fails to address the argument in any way.”).
. 2010 WL 1444570, at *5 (emphasis added). Following Grasson I, defendants filed an answer asserting as a second affirmative defense that plaintiff's claims were barred by governmental immunity. See Docket No. 39.
. Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005). Accord Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("Official-capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (quotation marks omitted).
. Avoletta v. City of Torrington, 133 Conn.App. 215, 221, 34 A.3d 445 (App.Ct. 2012) ("The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n.”).
. Grasson I, 2010 WL 1444570, at *2. Gras-son has not suggested any reason why Judge Dorsey’s determinations should not be adhered to in the context of defendants’ motion for summary judgment. See Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (“The law of the case doctrine commands that ‘when a court has ruled on an issue, that decision should generally be adhered to by the court in subsequent stages in the same case’ unless ‘cogent and compelling reasons militate otherwise’ ”) (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)).
. See Grasson /, 2010 WL 1444570, at *2-3.
. Section 52-557n(c) provides that:
Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for -such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury ... resulting from any act, error or omission made in the exercise of such person’s policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person’s official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person.... The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.
.See South Lyme Prop. Owners Ass’n, Inc. v. Town of Old Lyme, 539 F.Supp.2d 547, 561 (D.Conn. 2008) (“[Section] 52-557n(c) does not apply to official-capacity suits.”).
. Plaintiff did not respond to defendants’ motion for summary judgment as to Marulli, who was not present at either board meeting. See Def. Mem. at 31-32.
. See Gonzalez v. Micelli Chocolate Mold Co., 514 Fed.Appx. 11, 12 (2d Cir. 2013) (“[W]here the federal claims are dismissed before trial, the state claims should be dismissed as well.”); Selinger v. City of New York, 453 Fed.Appx. 93, 96 (2d Cir. 2011) ("Because [defendant] was entitled to summary judgment on [ ] federal claims, the district court was within its discretion to decline exercising supplemental jurisdiction over [] remaining state law claims.”).
Reference
- Full Case Name
- Robert M. GRASSON v. BOARD OF EDUCATION OF TOWN OF ORANGE, Tim James, Kimberly Altschuler, Jeanne Consiglio, Joseph Marulli, David Pite, Kristen C. Powell, Ernie Robear, Ron Ruotolo, Larry Schwartz, Toni Vitti, Patricia P. Ziman and Alfred Pullo
- Cited By
- 8 cases
- Status
- Published