51 F. Supp.2d 115 (1999) | Cited 0 times | D. Rhode Island | June 10, 1999


Matthew Faerber, Jr. ("Faerber") worked 23 years for the City ofNewport where he reached the position of Deputy Utilities Directoroverseeing the Water Division. He was suspended without pay on November4, 1997 and terminated from his job later that month. He has sued theCity of Newport, Newport Director of Utilities Roy B. Anderson andNewport City Manager Martin Malikoff (collectively "defendants") in aten-count complaint.

This case is before the Court on defendants' motion for summaryjudgment. Faerber has alleged a motley list of counts includingviolations of the state and federal constitutions, the violation of astate statute, breach of contract and abuse of discretion. Defendantsseek summary judgment on all counts. The problem with this motion is thatdefendants' arguments are as motley as Faerber's allegations. Neitherside cited authorities sufficient to support their positions, so thisCourt addresses each count in an attempt to limit the issues andconfusion at trial.

At the heart of Faerber's case is the claim that he was fired forexpressing his opinion to three city council members. He alleges that hisrights were violated both procedurally and substantively. All federalclaims except for the First Amendment count are flawed, and as explainedbelow, this Court grants summary judgment to defendants on the proceduraldue process, equal protection and substantive due process claims. Thestate-law claims, at this point, are a distraction, and this Court willsever them for a separate trial. This will expedite the case and promoteboth economy and convenience.

In sum, this Court grants the summary judgment motion in part anddenies it in part as explicated below.

I. Facts

This case arose because Newport needed to hire someone to fill theposition of Deputy Utilities Director-Wastewater. The job became vacant inSeptember 1995, and it stayed open for years because the only internalcandidate who had a Grade 4 State Wastewater Certificate would not takethe job because of the low pay scale and all external candidates couldnot pass the test for the Certificate.

The position was listed at Salary Grade 13 ("S-13") on the City'sClassification Plan for Executive, Administrative and ProfessionalEmployees. In 1997, it was advertised and posted at the S-13 pay levelwith the requirement of a Grade 4 Wastewater Certificate. No qualifiedperson applied for the position.

Therefore, the City Council decided to change the position to S-16,which meant that the job would pay more. The City did not readvertise theposition to publicize the higher pay. Instead, the City proposed to hire aperson from a private company even though that person did not have theCertificate.

On the evening of October 7, 1997, plaintiff telephoned three membersof the City Council to lobby them against making the hire. Plaintiff wasnot eligible or interested in the opening, but he says he called thecouncilors because the City was not following the Personnel Code. TheCouncil was to consider the issue the next day, and plaintiff says hewanted the City to follow lawful procedures.

Malikoff and Anderson heard about the phone calls, and over the nexttwo months, they engineered plaintiffs dismissal. On October 10, 1997,Anderson sent plaintiff a disciplinary notice. On November 4, 1997,Anderson and plaintiff met, and plaintiff was placed on unpaid leave. OnNovember 13, 1997, Malikoff sent plaintiff a letter, terminating hisemployment effective November 21, 1997. That letter states, among otherthings, that plaintiff was being fired for:

various acts of insubordination when ignoring direct orders from your Director, stemming from your acts against the proposed upgrade of the Deputy Utilities Director-Wastewater.

A Newport City Ordinance states that a fired employee can appeal to thePersonnel Appeals Board [the "Appeals Board"]. The Appeals Board reviewsthe City Manager's decision, and its decision is final. See Newport CityOrdinance 3.36.020(F) (attached as Exhibit E to D.'s Mem. of Law inSupp. of Their Mot. For Summ.J).

However, no members were sitting on the Appeals Board in December1997. See Letter of Behan to Scott of Dec. 31, 1997 at 1 (assistant citysolicitor noting that "the Personnel Appeals Board has not been inexistence for a number of years"). Since then, Newport has apparentlyappointed three members to the Appeals Board, and plaintiff has appealedhis dismissal to the Board in addition to filing this case. It is unclearwhen the Board was reborn or when that appeal was filed.

Plaintiff filed this suit in the Rhode Island Superior Court sitting inNewport County on December 22, 1997, certainly before the Appeals Boardwas reborn. The Complaint sets forth nine separate causes of action.(Count X contains the prayers for relief.) In Count I, plaintiff allegesthat defendants violated the grievance procedure set forth in the CityPersonnel Code. In Count II, plaintiff avers that defendants abused theirdiscretion by wrongfully dismissing him in violation of the PersonnelCode. In Count III, plaintiff charges that defendants committed a breachof the implied contract he has with the City. In Count IV, plaintiffmakes a claim under 42 U.S.C. § 1983 that his due process rightsunder the 14th Amendment of the federal Constitution have been violated.In Count V, plaintiff claims a violation of the state Whistleblower'sProtection Act, R.I.Gen.Laws § 28-50-1 et. seq. In Count VI,plaintiff makes a claim under Section 1983 that his First Amendment rightof free speech has been abridged. In Count VII, he makes a Section 1983claim of violation of his equal protection rights under the FourteenthAmendment of the federal Constitution. In Count VIII, plaintiff makesanother claim under Section 1983, this time that defendants violated hissubstantive due process rights as provided in the federal Constitution.Finally, in Count IX, he claims a violation of the due process, freedomof speech and equal protection clauses in the Rhode Island Constitution.

Defendants removed the case to this Court based on the federal questiondoctrine. This Court can hear the state-law claims by virtue ofsupplemental jurisdiction.

II. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure sets forth thestandard for ruling on summary judgment motions:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). The critical inquiry is whether a genuine issue ofmaterial fact exists. "Material facts are those "that might affect theoutcome of the suit under the governing law." Morrissey v. Boston FiveCents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 1995) (quoting Anderson v.LibertyLobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,91 L.Ed.2d 202 (1986)). "A dispute as to a material fact is genuine`if the evidence is such that a reasonable jury could return a verdictfor the nonmoving party.'"Id.

On a motion for summary judgment, the Court must view all evidence andrelated inferences in the light most favorable to the nonmoving party.See Springfield Terminal Ry. Co. v. Canadian Pac. Ltd., 133 F.3d 103, 106(1st Cir. 1997). "[W]hen the facts support plausible but conflictinginferences on a pivotal issue in the case, the judge may not choosebetween those inferences at the summary judgment stage." Coyne v. TaberPartners I, 53 F.3d 454, 460 (1st Cir. 1995). Similarly, "[s]ummaryjudgment is not appropriate merely because the facts offered by themoving party seem more plausible, or because the opponent is unlikely toprevail at trial." Gannon v. Narragansett Elec. Co., 777 F. Supp. 167, 169(D.R.I. 1991).

III. The Federal Counts

A. Count IV. Procedural Due Process Claim

This Court cannot hear a procedural due process claim unless aplaintiff alleges that the state provides no constitutionally-adequateremedy. See Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 108L.Ed.2d 100 (1990); Rumford Pharmacy, Inc. v. City of East Providence,970 F.2d 996, 999 (1st Cir. 1992); Roy v. City of Augusta, 712 F.2d 1517,1522-23 (1st Cir. 1983). A plaintiff must also take advantage of allstate process — a doctrine known as exhaustion of state remedies.See D'Ambra v. City of Providence, 21 F. Supp.2d 106, 110-11 (D.R.I.1998).

The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort.

Zinermon, 494 U.S. at 125-26, 110 S.Ct. 975.

By definition, Faerber's procedural due process claim fails because hehas not exhausted his state remedies. This suit is his state remedy.Counts I-III ask this Court to reverse Newport's decision as arbitraryand capricious. This Court is sitting in the place of a state SuperiorCourt justice because the case was removed. Faerber cannot pursue in asingle lawsuit both the appeals process offered to him by the state and aclaim that the same process is constitutionally insufficient. A federalcourt cannot judge the process to know whether it is constitutional untilthat process has come to an end.

To summarize, Faerber has not exhausted his state process. Until thestate has had an opportunity to provide a remedy, Faerber cannot allegethat the state provides no constitutionally-adequate remedy. Therefore,the due process claim in Count IV must be dismissed.

B. Count VI: First Amendment Claim

Exhaustion of remedies does not apply to the freedom of speech claimbecause such a claim is viable as soon as the wrongful action is taken.See Zinermon, 494 U.S. at 125, 110 S.Ct. 975; D'Ambra, 21 F. Supp.2d at111.

A public employee has a First Amendment right to speak out, as acitizen, on matters of public concern. See O'Connor v. Steeves,994 F.2d 905, 912 (1st Cir. 1993); Providence Firefighters Local 799 v.City of Providence, 26 F. Supp.2d 350, 356 (D.R.I. 1998). The FirstCircuit recently restated the steps that a district court should take:

First, the court must determine whether [the plaintiff] made her statements as a citizen upon matters of public concern. If the speech involved matters not of public concern, but instead of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Second, the court must weigh the strength of the employee's and the public's First Amendment interests against the government's interest in the efficient performance of the workplace.

Third, if the employee's and the public's First Amendment interests outweigh a legitimate governmental interest in curbing the employee's speech, [the plaintiff] must show that the protected expression was a substantial or motivating factor in an adverse employment action.

Tang v. Rhode Island, 163 F.3d 7, 12 (1st Cir. 1998) (citations omittedand paragraphs added). See also O'Connor, 994 F.2d at 912-13.

Defendants argue that Faerber's claim fails the first prong. They arguethat Faerber called the City Council members out of personal interest,because he personally disagreed with the decision to hire someone fromprivate industry.1 They say that his personal opinion or his concernfor friends who worked in the sewer plant does not qualify as an "issueof public concern."

The First Circuit has established a two-step process to decide whetherspeech involves an "issue of public concern." To begin, this Court looksat the topic of the speech to decide whether it is "clearly a legitimatematter of inherent concern to the electorate." O'Connor, 994 F.2d at913-14 (noting that fire chiefs commentary on available fire protectionwas plainly a matter of inherent concern). If the topic was not ofinherent concern, then this Court makes a more-detailed analysis into theform and context of the employee's expression as revealed by the wholerecord. See id. at 914 (noting that internal working conditions affectingonly the speaker and co-workers would not be a matter of inherentconcern). This analysis centers on whether the community has manifested alegitimate concern in the internal workings of the particular agencyand, if so, whether the form of the employee "s expression suggests asubjective intent to contribute to any such public discourse. See id.Using this test, Faerber's calls to the City Council members were clearlyabout an issue of public concern.

Because this Court does not know exactly what Faerber said during thecalls, it cannot decide whether the conversations were of "inherentconcern." Certainly the City's hiring policy and the hiring of a majorcity administrator would be of interest to the citizens of the City,especially when the City Council was about to vote to place an unlicensedperson in a job sensitive enough to require a state certificate. However,defendants point to evidence in Faerber's deposition that suggests thathe was concerned, at least in part, with grumbles from his friends. Afinding on this issue would depend on facts not in evidence because acity's personnel policies are not automatically of "inherent concern" tocitizens in the way that fire safety would be.

The issue, however, is immaterial, because Faerber's actions and speechcome within the public concern doctrine under the more completeanalysis of the circumstances. To emphasize some materialfacts: Faerber was not applying for the vacant job. He had no personalstake in the selection. The City Council was voting on whether to hire aperson without the previously-required certificate, and it was actingafter failing to advertise the higher pay rate. Faerber objected to theprocedure and thought the Council would be violating its own hiringordinance. And, most importantly, Faerber voiced his opinion todemocratically-elected city leaders concerning a public vote that wasscheduled to be taken the next day.

This case is about a city employee who called city council members todiscuss a proposed hiring that touched both on the city's hiringprocedures and state licensing requirements. He had no personal stake, andhe was speaking to the elected representatives of the public. Lobbyingelected members of the government, to be plain, is precisely the kind ofcommunication that the First Amendment was written to protect. Thecitizens of Newport have a legitimate interest in the City's hiring ofnew administrators, and Faerber was lobbying politicians to get them tochange their minds — a basic form of contribution to publicdiscourse.

This Court notes that Faerber was not complaining about how hisemployer was treating him. Cf. Tang, 163 F.3d at 12-13 (employeecomplaining about her personal situation). Faerber did not complain byposting his opinion on a bulletin board. Cf. Alinovi v. Worcester SchoolCommittee, 777 F.2d 776, 786-77 (1st Cir. 1985) (teacher posted her owndisciplinary letter on Parents' Night). Faerber expressed his viewsdirectly to elected City Council members. They were free to ignoreFaerber's lobbying, but the City Manager could not fire him because of itwithout proving that the City had some outweighing interest to protect.

Of course, whether Faerber was fired because of his speech is adisputed issue. Faerber still must satisfy both the second and thirdprongs of the test outlined in Tang at trial. Defendants' motion forsummary judgment is denied as to Count VI.

C. Count VII: Equal Protection Claims

Defendants admit that plaintiff may prove an equal protection violationby demonstrating disparate treatment and supplying evidence of maliciousor bad faith intent to injure. See Yerardi's Moody Street Restaurant& Lounge, Inc. v. Town of Randolph, 932 F.2d 89, 92 (1st Cir. 1991)[hereinafter Yerardi's III]. The First Circuit emphasized that this is atwo-part test and that evidence of the malicious or bad faith intent toinjure cannot be inferred from the disparate treatment. See id. at92-94. The plaintiff must offer independent evidence of malice, notmerely disprove the rationale for the decision offered by thedefendants. See id.

This is a lofty bar to cross, but defendants make no showing thatFaerber will fail. At oral arguments, defendants' counsel stated thatequal protection claims can only be brought by members of protectedgroups. Yet, Yerardi's III and defendants' own memorandum in support ofthis motion explain why that is not so. In the memorandum, defendantsnote that these "bad faith" cases are rare. Yet, novelty is certainly notgrounds for summary judgment.

In fact, the flaw in Faerber's claim is far more fundamental. Faerbercannot win an equal protection claim because he has not alleged factsthat support the "different treatment" portion of his claim. In hisComplaint, Faerber alleges that:

the defendants have treated him differently from other similarly situated City employees on the basis of the content and purpose of his communication.

(Complaint, at ¶ 59.) Yet in the same Complaint, Faerber allegesthat another city employee telephoned a City Councilmember the same night as Faerber to express the same concerns about theimminent hiring. That employee was not fired. (See Complaint, at ¶57-58.)

Even assuming that defendants treated Faerber differently, theComplaint establishes that the different treatment was not based on the"content and purpose of his communication." The communication is whatmakes Faerber similar to the other employee, not different. This is thesame as if Faerber claimed to have been fired based on his gender andthen offered evidence that another male employee was not fired. Tosustain the equal protection claim alleged in the Complaint, Faerberwould have had to allege that there was an employee who was similar tohim except for the communication that the Complaint alleges was the keyto the disparate treatment. He has not. This failure would be evident ona motion to dismiss, so it is certainly dispositive on a motion forsummary judgment.

In essence, Faerber claims that he was singled out because he spokeout. That sets forth a First Amendment claim, but it fails under theequal protection clause. Defendants' motion for summary judgment on CountVII is granted.

D. Count VIII: Substantive Due Process Claim

Defendants are correct that this kind of injury would never qualify forsubstantive due process protection. To sustain a suit based on asubstantive due process violation, a plaintiff must allege facts thatshow:

(1) that a specific liberty or property interest protected by the federal due process clause has been violated; or

(2) that the state's behavior shocks the conscience.

See Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir. 1992).

As to the first possibility, the First Circuit has adopted thereasoning that "the substantive Due Process Clause affords only to thoseinterests `so rooted in the traditions and conscience of our people as tobe ranked as fundamental.'" Coyne v. City of Somerville, 770 F. Supp. 740,747 (D.Mass. 1991) (quoting Michael H. v. Gerald D., 491 U.S. 110, 122,109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)) (adopted by the First Circuit atCoyne, 972 F.2d at 443-44). In the trial court opinion cited by the FirstCircuit, Magistrate Judge Lawrence B. Cohen noted that substantive dueprocess covers matters such as procreation, marriage and family life. SeeCoyne, 770 F. Supp. at 748. Both Judge Cohen and the First Circuit panelagreed that the right to a promotion was not the sort of property rightto which the Constitution attaches. See Coyne, 972 F.2d at 443-44;Coyne, 770 F. Supp. at 748.

Similarly, the right not to be fired without certain procedures is nota fundamental right that raises issues of substantive due process.Faerber's firing may raise procedural due process concerns where thestate has mandated a termination process, see Coyne, 770 F. Supp. at 748(noting the difference), but it does not reach the higher threshold of afundamental right.

As to "shocks the conscience," the First Circuit is clear thatviolations of state law — even where arbitrary, capricious orundertaken in bad faith — do not, without more, give rise to adenial of substantive due process under the federal Constitution. SeeCoyne, 972 F.2d at 444. Faerber has not alleged anything that would"shock the conscience" under First Circuit precedent. He claims that hewas fired in violation of Newport's ordinances. The First Circuit was notshocked that the City of Somerville may have hired uncertified teacherscontrary to state law in Coyne. Violating hiring regulations does notrise to the level of substantive due process. Certainly, Faerber'sallegation is no more robust. Therefore, defendants' motion for summaryjudgment on Count VIII is granted.

IV. The State Counts

A. Counts I, II, III: Reviewing the City's Action

Defendants argue that plaintiffs appeal is still pending before theAppeals Board and that this case thus is not ripe. The issue is whetherthis Court may hear the case while the appeal is still pending. ThisCourt rules that there are disputed facts that preclude summary judgmentat this time. However, the issue does not control at this point becausethis Court chooses to sever all the state counts in order to try theFirst Amendment claim.

1. The Law of Ripeness

Generally, this Court lacks jurisdiction over cases that are not "ripe"because the Constitution seeks to "prevent the courts, through avoidanceof premature adjudication, from entangling themselves in abstractdisagreements." Ernst & Young v. Depositors Economic ProtectionCorp., 45 F.3d 530, 535 (1st Cir. 1995). For the most part, a plaintiffsclaim concerning a prospective action, such as the Appeals Board'spossible rejection of his appeal, would lack ripeness because "the claiminvolves uncertain and contingent events that may not occur asanticipated or may not occur at all." Riva v. Massachusetts, 61 F.3d 1003,1009 (1st Cir. 1995) (outlining test for ripeness).

However, Faerber cannot be required to undergo some sham process, andthere is a factual dispute about whether the Appeals Board existed tohear an administrative appeal of the City Manager's decision to fireFaerber. Newport ordinances provided that Faerber could appeal to theAppeals Board, but Newport did not have an active Appeals Board whenFaerber was fired. This Court does not know whether the Appeals Boardpresents a legitimate opportunity to have someone review the firingdecision or merely a Potemkin village that Newport erected to forestalljudicial scrutiny. That decision would depend on facts such as when theBoard was reconstituted, what kind of hearing it held and why it has notruled for 18 months after the firing. Because this Court must draw allinferences in favor of the non-moving party, defendants cannot prove thatthe Appeals Board proceeding is an actual appeal that would make judicialreview unavailable at this point.

2. All state-law counts will be severed

The ripeness issue is not crucial at this point because this Courtchooses to sever the state-law claims and try the First Amendment countfirst.

This Court may sever counts into separate trials "in the furtherance ofconvenience or to avoid prejudice, or when separate trials will beconducive to expedition and economy." Fed.R.Civ.P. 42(b). Rule 42(b)places this decision soundly within this Court's discretion. SeeGonzalez-Marin v. Equitable Life Assurance Society, 845 F.2d 1140, 1145(1st Cir. 1988). See also Lieberman-Sack v. Harvard Community Health Planof New England, Inc., 882 F. Supp. 249, 257 (D.R.I. 1995) (applying therule).

Faerber's First Amendment claim is clear, and it is certainly ripe.Although the facts necessary to prove the federal and state countsoverlap, they are not a perfect match, and trying the state-law claimsconcurrently would introduce delay and inefficiency that may impede theexecution of justice. Faerber should muster his facts in support of hisFirst Amendment claim. If he is successful, the remedies available to himmay make the state-law claims moot. If he is unsuccessful, then thestate-law claims can be heard by this Court or returned to the SuperiorCourt for trial. Certainly by then, the Personnel Appeals Board shouldhave rendered its decision and thus caused the ripeness issue to becomemoot.

B. Counts V & IX: Whistleblower's Protection Act and State Constitution

For the reasons outlined above, this Court severs and stays both thestate statutory and constitutional claims until after it has heard thefederal First Amendment claim.


This Court believes Faerber has offered sufficient evidence to survivesummary judgment on the First Amendment count. This count incorporatesthe grist of Faerber's allegations and offers remedies that would makehim, for the most part, whole. Faerber has been out of work for 18months. It is in the interest of both sides to put the issue to trial. Noone prospers by complicating the case with state-law claims that may beprocedurally flawed or may duplicate the First Amendment claim.

Therefore, this Court grants summary judgment to defendants on CountsIV, VII, and VIII. It denies summary judgment on all other counts, but itsevers Count VI from the state-law claims in order to expedite a trial onthat First Amendment claim. The state-law claims will be put on the backburner and be resolved at a later time if necessary. It is so Ordered.

1. In his Complaint, Faerber also alleges that Newport's undeclaredreasons for firing him include his frequently-expressed opinions onunionization of city employees and privatization of its waterfacilities. (See Complaint, at ¶ 54.)

Neither party raised this communication in its memorandum, and thisCourt believes that the calls to the City Council were sufficient tocarry the First Amendment claim past summary judgment.

However, these additional allegations may he fleshed out attrial.

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