MacInnis v. Town of Orange , 421 F. App'x 36 ( 2011 )

09-4081-cv
MacInnis v. Town of Orange
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29 th day of April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 Circuit Judge,
10 MARK R. KRAVITZ, *
11 District Judge.
12
13
14 - - - - - - - - - - - - - - - - - - - -X
15 DONALD MACINNIS,
16
17 Plaintiff-Appellant,
18
19 -v.- 09-4081-cv
20
21 TOWN OF ORANGE,
22
*
The Honorable Mark R. Kravitz, of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1 Defendant-Appellee.
2 - - - - - - - - - - - - - - - - - - - -X
3
4 FOR APPELLANT: TARA L. SHAW (Thomas G. Parisot, of
5 counsel), Secor, Cassidy & McPartland,
6 P.C., Waterbury, CT.
7
8 FOR APPELLEE: DAVID S. MONASTERSKY, Howd & Ludorf, LLC,
9 Hartford, CT.
10
11 Appeal from a judgment of the United States District
12 Court for the District of Connecticut (Thompson, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED.
17
18 Plaintiff-Appellant Donald MacInnis appeals from a
19 September 11, 2009 judgment of the United States District
20 Court for the District of Connecticut (Thompson, J.),
21 granting summary judgment for Defendant-Appellee Town of
22 Orange (the “town”) on MacInnis’s procedural due process
23 claim brought under 42 U.S.C. § 1983 regarding his dismissal
24 from the position of Director of Park and Recreation. We
25 assume the parties’ familiarity with the underlying facts,
26 the procedural history, and the issues presented for review.
27
28 A grant of summary judgment is reviewed de novo,
29 “resolv[ing] all ambiguities and draw[ing] all permissible
30 factual inferences in favor of the party against whom
31 summary judgment is sought.” Terry v. Ashcroft, 336 F.3d
32 128, 137 (2d Cir. 2003) (internal quotation marks omitted).
33
34 MacInnis alleges that his termination deprived him of a
35 constitutionally protected property interest without due
36 process of law, in violation of 42 U.S.C. § 1983. See
37 McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir.
38 2001). Property interests “are defined by existing rules or
39 understandings that stem from an independent source such as
40 state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577
41 (1972). “In the employment context, a property interest
42 arises only where the [employer] is barred, whether by
43 statute or contract, from terminating (or not renewing) the
44 employment relationship without cause.” S & D Maint. Co. v.
45 Goldin, 844 F.2d 962, 967 (2d Cir. 1988) (emphasis omitted).
46 Under Connecticut law, courts “have occasionally found an
2
1 implied promise to discharge only for cause in the
2 circumstances of particular employment relationships,”
3 including “in the representations contained in an employee
4 relations manual or handbook.” See Magnan v. Anaconda
5 Indus., Inc., 193 Conn. 558, 564 (1984).
6
7 MacInnis argues that the interplay among several
8 dismissal provisions in the town’s Rules and Regulations
9 handbook raises an implied promise to discharge him only for
10 cause, thereby creating a property interest. We disagree.
11
12 First, MacInnis’s belief that he could be fired only
13 for cause is a “unilateral expectation” that is insufficient
14 to establish “a legitimate claim of entitlement” to a
15 property interest. Roth, 408 U.S. at 577.
16
17 Second, the handbook contains many strictures and
18 provisions bearing upon employees subject to it, such as a
19 six-month “probationary period” (during which a prospective
20 employee must be approved, in writing, by the department
21 head before “retain[ment] as a regular employee in the
22 position,” Joint Appendix at 112). MacInnis’s claim that he
23 is protected by the handbook’s limitations on dismissal is
24 weakened because he offered no evidence that the town
25 followed these other handbook procedures with him.
26
27 Third, a town officer sent letters informing MacInnis
28 that his reappointment was being considered (in December
29 1999) and that he had been reappointed (in February 2000).
30 The letters, which reflect the town’s understanding that
31 MacInnis was an appointed official and an intent that he be
32 subject to appointment, negative any possible promise of
33 tenure implied in the handbook. MacInnis neither protested
34 nor sought clarification of these clear indications that the
35 town considered him an appointed official.
36
37 Fourth, the town’s distribution of the handbook to
38 MacInnis proves nothing, because according to its terms it
39 must be distributed to all employees, not just those whose
40 employment it governs. In any event, one would expect
41 MacInnis to need a copy of the handbook to discharge his
42 supervisory duties over employees covered by its terms.
43
44 Because MacInnis had no protected property interest in
45 his employment, his termination did not violate his due
46 process rights. We need not consider MacInnis’s argument
47 that Director of Park and Recreation is not an Appointed
3
1 Office under Article IX of the town’s charter, because the
2 town’s belief to the contrary sufficed to negative any
3 implied offers of tenure, and any property right that may
4 have arisen if the position were an Appointed Office under
5 the charter would have lapsed when MacInnis’s formal term
6 ended in 2001--over six years before his termination.
7
8 We have considered all of MacInnis’s arguments and conclude
9 that they lack merit. For the foregoing reasons, we hereby
10 AFFIRM the judgment of the district court.
11
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
15 By:
16
17
4