Kando v. Rhode Island State Board of Elections
Opinion
This case begins with a termination. Plaintiff-appellant Robert Kando, a quondam employee of the Rhode Island State Board of Elections (the Board), alleges in relevant part that his constitutional rights were violated by the manner in which his employment was brought to an abrupt end. Concluding that the plaintiff had not shown a deprivation of any constitutionally protected interest, the district court granted the Board’s motion for judgment on the pleadings with respect to the plaintiffs claims under
I. BACKGROUND
Since this case was decided on a motion for judgment on the pleadings, see Fed. R. Civ. P. 12(c), we assume the accuracy of the well-pleaded facts adumbrated in the complaint and “supplement those facts by reference to documents incorporated in the pleadings,” Jardín De Las Catalinas Ltd. P’ship v. Joyner,
*57 At some point prior to January 11, 2016, the Board tentatively decided to terminate the plaintiffs employment. At its January 11 meeting, though, the Board changed course and voted to treat its previous termination decision as “null and void.” The Board proceeded to suspend the plaintiff without pay for fifteen days and directed him to enroll in the next three semesters of management courses at an educational facility of his choosing. The Board stated that it would review the plaintiffs role as the Board’s executive director and his working relationship with its members at the end of the third semester of coursework. Apart from this statement, nothing in the minutes of the meeting indicates that the Board set a deadline for the plaintiff either to enroll in or to complete the required courses.
Eight days later, the Board sent the plaintiff a letter over the signature of its acting chair. The January 19 letter purported to summarize what had transpired at the January 11 meeting and elaborated on the “management courses” requirement. The letter instructed the plaintiff to take two courses per semester (starting “this month”), to notify the Board of his chosen courses, and to keep the Board advised of his progress (by, for example, informing the Board of grades received). Among other things, the letter also stated that, after the plaintiff had completed the third semester of management courses, his employment status would be “subject to review by the Board.”
The complaint alleges that, by the time of the Board’s next meeting (March 16, 2016), the plaintiff had enrolled in management courses at Johnson & Wales University (JWU). The plaintiff concedes, however, that he did not enroll in these courses prior to the end-of-January deadline limned in the January 19 letter (which he characterizes as arbitrary and unreasonable). Noting that he had failed to enroll by the deadline, the Board suspended him for 'six weeks without pay.
On August 31, 2016, the Board held a special meeting. Without allowing the plaintiff to speak, the Board voted to terminate his. employment. At that time, the plaintiff was still enrolled at JWU and had not yet completed the required three semesters of management courses.
The plaintiff repaired to the federal district court and brought suit against the Board and its members. His complaint contained an array of claims under both federal and state law, including (as relevant here) claims for alleged deprivation of due process under
*58 II. ANALYSIS
We review the entry of judgment on the pleadings de novo. See Pérez-Acevedo v. Rivero-Cubano,
A motion for judgment on the pleadings bears a strong family resemblance to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and these two types of motions are .treated in much the same way. See Aponte-Torres v. Univ. of P.R.,
When all is said and done, this standard requires us to “separate wheat from chaff; that is, [to] separate the complaint’s factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Morales-Cruz v. Univ. of P.R.,
The statutory anchor , for the plaintiffs federal claims is
A. The Loss-of-Employment Claim.
We start with the plaintiffs claim that he was deprived of his employment without due process- of law. In order to mount a successful due process claim stemming from the loss of public employment, an employee must demonstrate that he has a cognizable property interest in his continued employment. See Bd. of Regents v. Roth,
The Supreme Court has made pellucid that cognizable property interests
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may come in various shapes and sizes. See
Viewed against this backdrop, it is readily apparent that, to prevail on his deprivation-of-property claim, the plaintiff must show that he “had a legitimate claim of entitlement to continued employment arising out of Rhode Island law.” Ventetuolo v. Burke,
Here, the plaintiff faces a steep uphill climb. Rhode Island law denominates most positions in the state service as either “classified” or “unclassified,” and all “[ejection officials and employees” are categorized as unclassified employees. R.I. Gen. Laws § 36-4-2(a)(12). Making the matter doubly clear, a separate statute, R.I. Gen. Laws § 17-7-6, explicitly places the plaintiffs position in the unclassified service.
2
The Rhode Island Supreme Court repeatedly has held that unclassified employees serve at the pleasure of the appointing authority and ordinarily can be dismissed for any reason other than a dis-erimihatory one. See Blanchette v. Stone,
The plaintiff argues that, notwithstanding his unclassified status, he had a protected property interest in his continued employment. To begin, he asserts that the Board’s actions at its January 11 meeting created a contract that guaranteed him continued employment while he'was pursing the required management courses. This assertion rims headlong into the pronouncements of the Rhode Island Supreme Court, which :has héld that “alleged ... promises [of continued employment], even if presumed to have been made, cannot, as a matter of law, expand the; limits imposed by the Legislature upon the termination rights of unclassified. state employees.” Salisbury,
In an effort to blunt the, force of this reasoning, the plaintiff serves up a salma-gundi of counter-arguments. First, he. invokes a statutory provision directed to the Rhode Island Council on Elementary and Secondary Education (the Council), which allows the Council to enter into an employment contract of up to three years with an employee in the unclassified service.. See R.I. Gen. Laws § 16-60-6. His argument, in effect, is that the Board possesses comparable authority.
We have seen this movie before: in Hawkins,
So, too, the plaintiffs attempt to draw sustenance from a line of Rhode Island Supreme Court decisions that includes Castelli v. Carcieri,
Next, the plaintiff suggests that another statute indicates that only employment contracts of more than three years in duration are forbidden for employees,in the unclassified service. See R.I. Gen. Laws § 36-16-1. In the plaintiffs view, the Board had plenary authority to enter into an employment contract of any shorter length. The statute, though, cannot bear the weight that the plaintiff loads upon it.
Section 36-16-1 prohibits state agencies from entering into “a contract term in excess of three (3) years” with anyone “upon termination of employment.” This provision, properly read, precludes state agencies (including the Board) from entering into contracts of more than three years in duration with former employees. We have said before that “irony is no stranger to the law,” Amanullah v. Nelson
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Finally, the plaintiff adverts to dictum that suggests some possible play in the joints with respect to unclassified employees. See Lynch,
The short of it is that the plaintiff, as án unclassified employee simpliciter, served at the pleasure of the Board and had no reasonable expectation of continued public employment. Thus, he has failed to allege facts sufficient fo show a constitutionally protected property interest in his job. See Roth,
B. The Stigmatization Claim.
The plaintiff has a second federal claim. He submits that the Board stigmatized him through public shaming, discipline, and the eventual termination of his employment, without giving him an opportunity for a name-clearing hearing. This conduct, he says, transgressed his rights under the Due Process Clause and, thus, supports a cause of action under section 1983. The district court concluded that the lack of a constitutionally protected property interest frustrated this claim. See Kando,
We .do not agree with the district court’s rationale. Even where, as here, a public employee has no constitutionally protected property interest in continued government employment, there are
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circumstances in which his dismissal may, so damage his reputation .that his liberty interest, separately protected under the Due Process Clause, is infringed. See Paul v. Davis,
Despite its imperfect rationale, the district court’s conclusion that the plaintiffs complaint did not make out .a viable stigmatization claim is unimpugna-ble. A name-clearing hearing is not available on demand: “defamation, .even from the lips of a government actor, does not in and of itself transgress constitutionally assured rights.” Pendleton v. Haverhill,
A plaintiff who pursues a stigmatization claim against a public employer must satisfy a five-part test. The challenged statements must be false, they must have seriously damaged the employee’s reputation and standing in the-community, they must have been intentionally publicized by the government employer, they must have been made in conjunction with the employee’s termination, and the government must have denied the employee’s post-termination request for a name-clearing hearing. See Bishop,
, As this case comes to us on a motion for judgment on the pleadings, we turn to the complaint’s factual allegations to determine if these, five criteria have been met. See García-Catalán v. United States,
46. At all relevant times, the Board and Defendant Members thereof routinely and regularly portrayed Plaintiffs role and actions in various controversies inaccurately and falsely.
47. Further, after defaming and tarnishing, him and his reputation, the Board denied Plaintiff a full and fan- opportunity to respond and clear his name and reputation.
The' complaint does not- disclose what statements were actually made. Nor does it say when the challenged statements were voiced.
Taken in the light most favorable to the plaintiff, see R.G. Fin. Corp.,
At any rate, the plaintiffs claim founders because he never alleged that the challenged statements were intentionally publicized or disseminated by the Board. This omission is fatal: to give rise to a stigmatization claim, the employer must have taken deliberate steps to publicize or disseminate the false statements. See Silva,
If more were needed—and we do not think that it is—the plaintiffs stigmatization claim also fails because his complaint never alleges that the challenged statements were made in conjunction with his termination. Although he alleges that the Board “routinely and regularly” portrayed him in a false and inaccurate manner, that is not the same as alleging that those depictions were either directly connected to his dismissal or uttered in the course of that dismissal. See Wojcik,
At the expense of carting coal to Newcastle, we note that a request for a name-clearing hearing is likewise an essential element of a stigmatization claim. See Buntin,
The plaintiff suggests that we should read between the lines and assume that he can prove the various elements needed for a successful stigmatization claim. But to survive a motion for judgment on the pleadings—just as to survive a motion to dismiss—the allegations of the complaint must be plausible on their face. See Ashcroft v. Iqbal,
III. CONCLUSION
We need go no further. For the reasons elucidated above, the judgment of the district court is
Affirmed.
. We take no view of the plaintiffs.state-law claims. The district court dismissed those claims without prejudice, see Kando,
. It is undisputed that the official title of the plaintiff’s executive director position is "see-retary” of the Board, and, section 17-7-6 refers specifically, tó this job title.
. In all events, the minutés of the January 11 meeting (incorporated by reference in the complaint) are conspicuously silent on the issue of whether the Board intended to alter the plaintiffs at-will employment status for the duration of his college coursework. The minutes merely state that after he has completed his three semesters, the Board will conduct a review of the plaintiff’s employment and working relationship with the Board.
. If what the plaintiff really is seeking is for this court to blaze a new trail in Rhode Island jurisprudence, he has come to the wrong place. State courts possess concurrent jurisdiction over section 1983 claims, see Felder v. Casey,
. As part of his asseverational array, the plaintiff contends that the district court decided this case on a ground that was neither briefed nor argued by the parties. This contention depends on what the plaintiff perceives to be the district court’s reliance on the Board’s January 19 letter. Because our reasoning does not rest in any way on that letter, we need not pursue the point.
. - While a third paragraph (paragraph 50) also relates to this claim, that paragraph is limited to a statement of the damages that the plaintiff allegedly sustained-in consequence of the stigmatization, No useful purpose would be served by reprinting those allegations here.
. To be sure, the complaint does allege that the plaintiff unsuccessfully requested an opportunity to speak before he was terminated. The complaint does not suggest, though, that he asked for a name-clearing hearing at any time after he was terminated.
Reference
- Full Case Name
- Robert KANDO, Plaintiff, Appellant, v. RHODE ISLAND STATE BOARD OF ELECTIONS Et Al., Defendants, Appellees
- Cited By
- 81 cases
- Status
- Published