Losada-Zarate v. Gilbert

Filing 44

MEMORANDUM DECISION granting 36 Motion for Summary Judgment. Signed by Judge Mark R. Kravitz on 11/21/11. (Brown, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GLORIA LOSADA-ZARATE,
Plaintiff,
v.
JAN GILBERT,
Defendant.

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No. 3:10cv700 (MRK)

MEMORANDUM OF DECISION
Plaintiff Gloria Losada-Zarate, a psychologist, conducted consultative examinations for
Connecticut's Bureau of Rehabilitation Services ("BRS") for years, until its Director of Support
Services, Defendant Jan Gilbert, decided in February 2010 to stop utilizing Dr. Losada-Zarate's
services. In this case, brought under 42 U.S.C. § 1983, Dr. Losada-Zarate alleges that Ms.
Gilbert deprived her of property without providing due process, in violation of the Fourteenth
Amendment. Ms. Gilbert has now moved for summary judgment. Because nothing in the
record suggests that Dr. Losada-Zarate's relationship with BRS constituted a property right
protectable under the Constitution, Ms. Gilbert's Motion for Summary Judgment [doc. # 36] is
GRANTED.

I.
"[P]roperly employed, summary judgment is a useful device for unmasking frivolous
claims and putting a swift end to meritless litigation." Quinn v. Syracuse Model Neighborhood
Corp., 613 F.2d 438, 445 (2d Cir. 1980). Summary judgment is appropriate when "the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
323-25 (1986). "A dispute regarding a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Williams v. Utica Coll. of
Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). "The substantive
law governing the case will identify those facts that are material, and '[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d
Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
If the moving party—here, Ms. Gilbert—shows that no facts are contested, "the
opposing party must come forward with specific evidence demonstrating the existence of a
genuine dispute of material fact." Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011).
The opposing party "must do more than simply show that there is some metaphysical doubt as
to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). "Where no rational finder of fact could find in favor of the nonmoving party because
the evidence to support its case is so slight, summary judgment must be granted." Brown, 654
F.3d at 358 (quotation marks omitted).
When considering a motion for summary judgment, the Court must resolve "all
permissible inferences and credibility questions in favor of the party against whom judgment is
sought." Kayton v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010).

II.
Dr. Losada-Zarate provided psychological and mental status evaluations for
Connecticut Disability Determination Services, an office within the BRS, for a number of
years—whether thirteen and a half, see Mot. for Summ. J. [doc. # 36-3] Ex. 2 (Gilbert Aff.) ¶ 8,

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or "almost twenty," see Pl's Local R. 56 Statement [doc. # 37-1] at 4, makes no difference here.
Dr. Losada-Zarate performed as many as ten examinations per week and was paid a fixed fee
for each one. According to Dr. Losada-Zarate's deposition testimony, "[t]here was an implicit
assumption that [her] involvement would continue indefinitely unless told otherwise. . . . There
was no yearly contract to sign." Mot. for Summ. J. [doc. # 36-3] Ex. 2 (Losada-Zarate Dep.) at
72 (emphasis added).
BRS ceased referring examinations to Dr. Losada-Zarate in February 2010. There are
disputes in the record as to whether BRS had good reason to stop working with Dr. LosadaZarate and whether it provided her with notice of its decision. For the sake of this motion, the
Court can assume that BRS had no reason to stop working with Dr. Losada-Zarate, that it
provided her with no notice of its decision, and that no process was afforded whereby Dr.
Losada-Zarate could contest the decision. Summary judgment in this case does not hinge on
any of these questions, however. While the Court is sympathetic to Dr. Losada-Zarate's desire
to be heard before losing a significant portion of her income, BRS's failure to give her that
opportunity does not, in itself, violate the Constitution. The Fourteenth Amendment requires
due process only when a person has a property interest in the benefit being terminated. Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972). This is the threshold question to which the Court
now turns.

III.
"To have a property interest in a benefit, a person . . . must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S.
at 577; see also Ansell v. D'Alesio, 485 F. Supp. 2d 80, 86 (D. Conn. 2007) ("[A] unilateral
expectation cannot establish a property interest protected by the Constitution, and this is true

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regardless of whether the contract at issue is construed as a contract for services or an
employment contract."). "In the employment context, a property interest arises only where the
state is barred, whether by statute or contract, from terminating (or not renewing) the
employment relationship without cause." S & D Maint. Co. v. Goldin, 844 F.2d 962, 967 (2d
Cir. 1988) (emphasis in original). Contracts with the state give rise to constitutionally protected
property interests only if a statute or the contract itself conditions the contract's termination, or
if the contract or a person acting for the state explicitly or implicitly assures the plaintiff that
the contractual relationship will continue. See S & D, 844 F.2d at 967-68; Ansell, 485 F. Supp.
2d at 86.
Dr. Losada-Zarate's claimed property interest in her contractual relationship with the
state is complicated by the fact she does not have a copy of her contract and did not obtain one
through discovery. See Mot. for Summ. J. [doc. # 36-3] Ex. 2 (Losada-Zarate Dep.) at 82
("[T]here may be a contract in existence that I signed early on."); id. at 72 ("I believe . . . that I
may have signed something for them, but I don't recall there being a copy given to me, and I
don't have one in my possession."). Nonetheless, the Court accepts Dr. Losada-Zarate's
contention that a contract did exist between the parties, even if it was an oral contract. See Br.
in Opp. [doc. # 37] at 6.
What the Court cannot accept is Dr. Losada-Zarate's argument that "[s]ince . . . a
contract . . . existed, the plaintiff had a property right of some sort in the continuation of that
contract." Id. This simply does not follow. As the four decades of case law since Roth have
made clear, a plaintiff needs more than a contract to have a property right; she needs a contract
that can only be terminated upon certain limiting conditions.

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In the record currently before the Court, Dr. Losada-Zarate has provided no evidence—
and has not even alleged—that her relationship with the state could only be terminated for
cause. Quite the opposite: in her deposition, Dr. Losada-Zarate claimed repeatedly that her
work with the state would continue indefinitely "unless told otherwise." Mot. for Summ. J.
[doc. # 36-3] Ex. 2 (Losada-Zarate Dep.) at 59, 72. As she said at one point: "The consulting
relationship continues indefinitely unless told otherwise, which is what occurred to me back in
February of 2010." Id. at 59 (emphasis added). Given Dr. Losada-Zarate's own admission that
her contract would continue until she was told otherwise, the fact that at some point she was
"told otherwise" just shows that her contract was eventually terminated in the way the Parties
envisioned.
At oral argument, Plaintiff's counsel argued that having worked with BRS for so long,
Dr. Losada-Zarate had a reasonable expectation that BRS would provide some sort of notice or
process before cutting off its relationship with her. No case law has been offered, however, to
show that this expectation gives rise to any constitutional obligations. In fact, the Second
Circuit has said in an analogous context that "[i]f the simple fact that [plaintiffs] worked at the
Javits Center for a number of years gave them a claim of entitlement, nearly every government
employee could claim a property interest in employment." Abramson v. Pataki, 278 F.3d 93,
101 (2d Cir. 2002). The Constitution does not protect longstanding employment or consulting
practices, but rather "contracts with tenure provisions and the like, or . . . clearly implied
promise[s] of continued employment." Id. at 100-01 (quotation marks omitted).
Dr. Losada-Zarate has not offered evidence of a tenure or "for cause" provision in her
contract, or of a clearly implied promise of continued employment. Because she has not alleged
or offered evidence to show anything more than a "unilateral expectation" of continued

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contractual work with the state, Roth, 408 U.S. at 577, Dr. Losada-Zarate's constitutional due
process claim must fail as a matter of law.
For this reason, the Court GRANTS Defendant's Motion for Summary Judgment [doc.
# 36]. The Clerk is directed to enter judgment in favor of the Defendant and close this file.

IT IS SO ORDERED.

/s/ Mark R. Kravitz
United States District Judge

Dated at New Haven, Connecticut: November 21, 2011.

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