Miley v. Housing Authority of the City of Bridgeport et al
Filing
39
ORDER granting in part and denying in part 13 Motion to Remand to State Court; granting in part and denying in part 17 Motion to Dismiss; granting in part and denying in part 21 Motion to Dismiss. See attached memorandum of decision. The Co urt hereby severs Plaintiff's workers' compensation claim from the action and remands that claim back to Connecticut Superior Court. The Court dimisses the Plaintiff's Monell and the stigma-plus due process claims. The Court grants t he Plaintiff leave to amend his procedural due prcoess claim by 3/15/2013 to add allegations as to Defendant Calace's personal involvement or to name an appopriate individual capacity defendant. Signed by Judge Vanessa L. Bryant on 2/25/2013. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RONDELL MILEY
PLAINTIFF,
v.
HOUSING AUTHORITY OF THE CITY OF,
BRIDGEPORT AND NICHOLAS CALACE
DEFENDANTS.
:
:
: CIVIL ACTION NO. 3:12cv519(VLB)
:
: FEBRUARY 25, 2013
:
:
:
:
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO REMAND AND GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO DISMISS [Dkt. ##13, 17, 21]
Before the Court is the Plaintiff’s, Rondell Miley (“Miley”), motion to
remand this action to Connecticut Superior Court, asserting that his claim under
the Connecticut Workers’ Compensation Act is non-removable. Also before the
Court is the motions to dismiss the Plaintiff’s amended complaint, filed pursuant
to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, by the Defendants, the
Housing Authority of the City of Bridgeport (the “Housing Authority”) and its
Executive Director, Nicholas Calace (“Calace”). The amended complaint
advances a state statutory claim for retaliation under the Connecticut Workers’
Compensation Act, Conn. Gen. Stat. §31-290(a) and three federal law claims, two
under 42 U.S.C. §1983 claims for violation of procedural due process by virtue of
the manner in which his employment was terminated by and one stigma-plus due
process claim. For the reasons articulated below, the Court GRANTS IN PART
AND DENIES IN PART Plaintiff’s motion to remand and GRANTS IN PART AND
DENIES IN PART Defendants’ motions to dismiss. The Court severs the Plaintiff’s
1
Workers’ Compensation Act claim and remands that claim back to Connecticut
Superior Court.
Factual Allegations
The Plaintiff’s amended complaint alleges the following facts. In October
2006, Miley commenced employment with the Housing Authority as a
maintenance aide. [Dkt. #20, Amended Complaint, ¶1]. Miley alleges that on
September 20, 2011, he was injured in the course of his employment. Id. at ¶3.
Miley sought workers’ compensation benefits. Id. at ¶4. Miley alleges that the
Defendants discriminated against him for exercising his rights under the
Workers’ Compensation Act when they discharged him on March 5, 2012. Id. at
¶5.
Miley alleges that the Housing Authority and Nicholas Calace conducted an
investigation into his compensation claim on February 23, 2012. Id. at Count II,¶4.
Miley contends that Defendants accused him of having falsified Housing
Authority records, defrauding the workers’ compensation benefit program and
violating the public trust. Id. at Count II,¶5. Miley alleges that Defendants’
accusations interfered with his employment reputation “in such a manner to
interfere with his continued ability to seek and obtain employment.” Id. at Count
II,¶6. Miley further alleges that the “Defendants’ accusations against the Plaintiff
resulted in his wrongful discharge of employment” and “impinged his good
name, reputation, honor and integrity and denigrated the Plaintiff’s competence
in his employment field.” Id. at Count II,¶7. Miley asserts that Defendants knew
2
that his “treating physician indicated that the Plaintiff sustained a work related
injury” and nonetheless “accused him of fraud, dishonesty and violation of public
trust.” Id. at Count II,¶7.
Miley further alleges that the “accusation of intentional misconduct
published by the Defendants concerning the Plaintiff’s occupation resulted in his
wrongful discharge of his employment, stigmatized and effected the competency
of the Plaintiff, and will preclude him from obtaining other job opportunities in his
employment field.” Id. at Count II,¶8. Miley further alleges that the Defendants’
action in “accusing the Plaintiff of fraud…was irrational and wholly arbitrary
without any proper basis” and ignored or failed to consider that Miley was treated
for a work related injury by his physician who confirmed it was work related. Id. at
Count II,¶10.
Miley also alleges that he was denied a full and fair pre-termination hearing
in violation of due process. Id. at Count III,¶9. In particular, Miley contends that
the Defendants failed to provide him with all the evidence they allegedly had
pertaining to the basis of his termination and as a result he did not have an
adequate opportunity to respond to the charges against him. Id. Miley claims that
the “Defendants during the course of their investigation against [him] concerning
his claim for workers’ compensation benefits…obtained and/or were aware of
statements from co-workers of the Plaintiff and had in their possession an
investigation conducted by the Defendants’ workers compensation administrator
Chartis, but failed to provide such evidence to the Plaintiff, thereby precluding
3
the Plaintiff from having a reasonable opportunity to respond.” Id. at Count
III,¶10.
A. Motion to Remand
Miley argues that the entire action must be remanded because 28 U.S.C.
§1445(c) provides that “[a] civil action in any State court arising under the
workmen's compensation laws of such State may not be removed to any district
court of the United States.” 28 U.S.C. §1445(c). Defendants argue that remand is
not appropriate under 28 U.S.C. §1445(c) because Miley has also asserted federal
claims over which this Court has original federal question jurisdiction.
Defendants point out that “Connecticut [federal] courts routinely exercise
jurisdiction over Connecticut workers’ compensation claims when such claims
are brought with federal claims over which the court has original question
jurisdiction.” In support of this proposition the defense cites to six District of
Connecticut cases in support. [Dkt. #14, Def. Mem., p. 14-15].
Defendants’ arguments are unavailing. All of the cases cited by the
Defendant are distinguishable as all involve cases which were filed by the
plaintiffs in and were not removed to federal court. This distinction is critical as it
implicates the subtle distinction between removal jurisdiction and supplemental
jurisdiction as well as the fact that Section 1445(c) operates as a “choice of forum
privilege” for plaintiffs and not for defendants. See Wilson v. Lowe’s Home
Center, Inc., 401 F.Supp.2d 186, 193-94 (D. Conn. 2005). To elaborate, federal
courts can consider workers’ compensation claims pursuant to their authority to
4
exercise supplemental jurisdiction where a plaintiff files his complaint directly in
federal court. As noted above, this is illustrated by the six cases Defendants cite
in their memorandum in opposition to the Plaintiff’s motion to remand, as the
plaintiffs in all six cases cited had filed suit directly in federal court. Thus the
court’s removal jurisdiction was never implicated. See Santiago v. Butler Co.,
3:08-cv-1297; Hubbard v. Total Communications, 3:05-cv-1514; Hill v. Pfizer, 3:01cv-1546; Lajeunesse v. Great Altantic & Pacific Tea Co., 3:99-cv-1630; Dupee v.
Klaff’s, Inc., 3:05-cv-344; Venterina v. Cummings & Lockwood, 3:98-cv-849.
Section 1445(c) pertains only to removing workers’ compensation claims from
state to federal court and thus it is not triggered where a plaintiff files suit directly
in federal court. Had Miley chosen to file his complaint directly in federal court,
this Court could have considered his workers’ compensation claim pursuant to
this Court’s authority to exercise supplemental jurisdiction. However because
Miley choose to file in state court, §1445(c)’s bar on removal of workers’
compensation claims has been triggered.
The parties do not appear to dispute that Miley’s retaliatory discharge claim
under Conn. Gen. Stat. §31-290(a) arises under the workers’ compensation laws
of Connecticut for purposes of §1445(c). In a matter of first impression, another
court in this district persuasively held that such a claim does arise under such
laws. Wilson, 401 F.Supp.2d at 190-91. The Wilson court explained that “the
application of § 1445(c) to Connecticut state law is a question of federal law” and
noted that courts have interpreted the phrase “arising under” in § 1445(c) as
having “the same meaning as the identical phrase in the closely related federal
5
question statute, 28 U.S.C. § 1331, which provides that the district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States.” Id. at 190 (internal quotation marks and citations
omitted). The Wilson court observed that “[a]pplying this test, courts have
reached differing conclusions on the issue of removability, depending primarily
on whether the plaintiff's cause of action for retaliatory discharge was created by
statute or case law.” Id. (collecting cases). Based on these cases, the Wilson
court reasoned that a retaliatory discharge claim under §31-290(a) arises under
Connecticut workers’ compensation laws for purposes of § 1445(c) because such
a claim is “explicitly created by §31-290(a)” and an integral part of Connecticut’s
scheme for compensating employees for work-related injuries. Id. at 191. This
Court agrees with the Wilson court’s analysis that a retaliatory discharge claim
under §31-290(a) arises under the workers’ compensation laws of Connecticut for
purposes of §1445(c).
The Defendants contend that the prohibition on removal in §1445(c) applies
only to cases which were removed on the basis of diversity jurisdiction and
should not extend to cases which were removed on the basis of federal question
jurisdiction. The Wilson court only addressed whether §1445(c) permitted
removal of an entire action where there was diversity of citizenship and did not
consider whether it also prevented removal of an action where a workers’
compensation claim was joined with related federal claims. In addressing the
question with respect to diversity jurisdiction, the Wilson court examined 28
U.S.C. §1441(a), which “confers a general right to remove ‘any civil action’ within
6
the ‘original jurisdiction’ of the district courts unless Congress has ‘otherwise
expressly provided.’” Id. at 192. In particular, the court considered “[w]hether
this provision confers a right to remove an action in which a nonremoveable
claim is joined with otherwise removable diversity claims.” Id. After an analysis
of the meaning of the language of §1441(a) and the Second Circuit’s opinion in an
analogous context, Gonsalves v. Amoco Shipping Co., 733 F.2d 1020 (2d Cir.
1984), the Wilson court held that removal of the entire action was not appropriate
under §1441(a) in light of § 1445(c)’s prohibition. Id. at 195-96.
In coming to this conclusion, the Wilson court explained that reading
§1441(a) to permit removal “would undermine the policies motivating § 1445(c).
The legislative history of § 1445(c) shows that Congress enacted the statute to
serve two objectives. Congress's primary objective was to reduce the number of
diversity cases in federal court by preventing removal of workers' compensation
claims against nonresident employers. At the same time, Congress wanted to
relieve workers of the expense and delay associated with litigation in federal
court.” Id. at 196 (citing S.Rep. No. 85-1830 (1958), reprinted in 1958 U.S.C.C.A.N.
3099, 3106; Horton, 367 U.S. at 351-52, 81 S.Ct. 1570 (noting congressional
concern for federal court congestion and potential burdens on workers'
compensation plaintiffs if forced to litigate in federal courts); 14C Wright et al.,
supra, § 3729, at 215 (explaining that Congress sought to “limit[ ] the flow of
these essentially local disputes into the federal courts”)).
The Wilson court acknowledged that it did not address the complicated
question of “whether § 1445(c) prevents removal of an action when a workers'
7
compensation claim is joined with related federal law claims” but noted that
courts faced with this scenario “have remanded the workers' compensation claim
only, retaining jurisdiction over the federal claim.” Id. at 197 n.13 (collecting
cases). Those courts which have concluded that § 1445(c) prevents removal in
an action where there are related federal claims cite many of the same reasons as
the Wilson court in support of their conclusion. For example, the Fifth Circuit
explained that it would “broadly interpret § 1445(c) in order to further
Congressional intent toward maintaining state court jurisdiction over workers’
compensation cases filed in state court.” Sherrod v. American Airlines, Inc., 132
F.3d 1112, 1118 (5th Cir. 1998). The Fifth Circuit explained that there was no
reason to distinguish between removal based on diversity or federal question
jurisdiction when construing § 1445(c). Id. Consequently, the Fifth Circuit in
Sherrod adopted its prior reasoning regarding removal under § 1445(c) in Jones
v. Roadway Exp., Inc., 931 F.2d 1086 (5th. Cir. 1991) which involved removal
based on diversity jurisdiction. Id. at 1118-1119. The Fifth Circuit noted that its
analysis in Jones did not distinguish between diversity and federal question
jurisdiction when construing § 1445(c) and instead focused on the language of §
1445(c) which broadly prohibits removal of a civil action in any State court arising
under the workmen's compensation laws of such State. Id. The Fifth Circuit in
Sherrod emphasized that “[a] plain reading of the statute lends credence to the
proposition that § 1445(c) prohibits the removal of any state worker's
compensation claims” regardless of whether jurisdiction is based on diversity or
federal question. Id. at 1119. The Eighth Circuit likewise concluded that § 1445(c)
8
prohibits removal of state workers’ compensation claims regardless of whether
the district court’s original jurisdiction is based on diversity or federal question.
Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1245 (8th Cir. 1995); see also
Spearman v. Exxon Coal USA, Inc., 16 F.3d 722, 724 (7th Cir. 1994) (noting that
“[e]ven a case containing a federal claim may not be removed if it also arises
under state workers' compensation law” under §1445(c)). This Court agrees that
a plain reading of § 1445(c) supports the conclusion that it prohibits removal of a
state workers’ compensation claim regardless of whether there is original
jurisdiction based on diversity or federal question jurisdiction. To hold otherwise
would undermine the policies motivating § 1445(c) to relieve workers of the
expense and delay associated with litigation in federal court as well as the
choice-of-forum privilege provided by Congress in § 1445(c).
Having determined that § 1445(c) applies to prevent removal of Miley’s
retaliatory discharge claim under Conn. Gen. Stat. §31-290(a) despite the fact that
Miley has also brought related federal claims, the Court must next determine
whether it should remand the entire action or just Miley’s workers’ compensation
claim. This question appears to have been resolved by Congress’s most recent
revision to the removal statutes, which mandates that the Court must sever and
remand only the non-removable workers’ compensation claim. On December 7,
2011, Congress passed the Federal Court’s Jurisdiction and Venue Clarification
Act of 2011, Pub.L. No. 112–63, §§ 103(b) 104, 125 Stat. 758, 760, 762 (Dec. 7,
2011). The Statute took effect on January 7, 2012, and amended, in part, several
9
of the removal statutes, including of relevance 28 U.S.C. §1441(c).1 Under the
prior version of §1441 (c), “[w]henever a separate and independent claim or cause
of action within the jurisdiction conferred by section 1331 of this title is joined
with one or more otherwise non-removable claims or causes of action, the entire
case may be removed and the district court may determine all issues therein, or,
in its discretion, may remand all matters in which State law predominates.” 28
U.S.C. §1441(c) (2011 version). The amended version now provides:
(c) Joinder of Federal law claims and State law claims.--(1) If a civil action
includes-(A) a claim arising under the Constitution, laws, or treaties of the
United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the
district court or a claim that has been made nonremovable by
statute, the entire action may be removed if the action would be
removable without the inclusion of the claim described in
subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court
shall sever from the action all claims described in paragraph (1)(B) and
shall remand the severed claims to the State court from which the action
was removed. Only defendants against whom a claim described in
paragraph (1)(A) has been asserted are required to join in or consent to the
removal under paragraph (1).
28 U.S.C. §1441(c) (emphasis added).
In light of these revisions, §1445(c)’s prohibition on removal and §1441(c)
now work in concert based on the inclusion of the language regarding claims
made nonremovable by statute in subparagraph (1)(B). A workers’ compensation
claim plainly falls within the scope of subparagraph(1)(B) as it is a claim that has
1
As this instant case was filed on March 8, 2012 in state court and removed
April 5, 2012 to federal court, the amended statute applies to the present action.
10
been made nonremovable by §1445(c). Therefore the revised §1441(c) expressly
contemplates the exact scenario facing the Court in which a civil action contains
both federal claims and non-removable claims. The revised statute
unambiguously directs the Court in such a scenario to sever from the action the
non-removable claim and remand that claim back to state court.2 See e.g., Bivins
v. Glanz, no.12-cv-103, 2012 WL 3136115, at *2 (N.D. Okla. Aug. 1, 2012)
(acknowledging that under the amended version of §1441(c), “the Court has no
discretion to remand federal claims that are joined with a statutorily
nonremovable claim, such as a workers' compensation retaliation claim. Instead,
the Court must sever and remand the nonremovable claim and retain all other
removed claims that are within th Court's original or supplemental jurisdiction.”);
Beylea v. Florida, Dept. of Revenue, 859 F.Supp.2d 1272, 1276 (N.D.Fla. 2012)
(noting that “party trying to sustain federal jurisdiction over the worker’scompensation claim in this case will face substantial headwinds” in view of the
2
Even prior to the most recent amendments to §1441(c), many courts had
concluded that the appropriate course of action in such a scenario was to remand
the workers’ compensation claim and retain jurisdiction over the related federal
claims. See e.g., Sherrod, 132 F.3d at 1119 (holding that the district court erred
by failing to sever and remand the state workers’ compensation clam); Reed v.
Heil Company, 206 F.3d 1055, 1061 (11th Cir.2000) (holding that a federal court
adjudicating both an ADA claim and a worker's compensation retaliation claim
should only remand the worker's compensation retaliation claim pursuant to
§1445(c)); Lamar v. Home Depot, no.12-0552-WS-C, 2012 WL 6026272, at *3 (S.D.
Ala. Dec. 3, 2012) (“Some courts have determined that the retention of a federal
claim despite remand of the worker's compensation claim under Section 1445(c)
can be justified under Section 1441(c), and the Court agrees”); cf Adams v.
Unarco Indus., No.civ-11-420-FHS, 2012 WL 381716, at *2 (E.D. Okla. Feb. 6,2012)
(“Considering the absence of controlling authority and all relevant policy
considerations, the court concludes the remand of the entire case, including the
federal claims is proper.”).
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fact that “Congress now has said that, going forward, a district court ‘shall’
remand a claim in precisely these circumstances.”). Because Miley’s workers’
compensation claim has been made nonremovable by statute, the Court must
sever it and remand it back to state court pursuant to §1441(c)’s clear directive.
Although the amended version of §1441(c) could result in judicial
inefficiency by mandating two lawsuits as opposed to one, it does protect the
choice-of-forum privilege for plaintiffs under §1445(c) and furthers the
Congressional intent toward maintaining state court jurisdiction over workers’
compensation cases. As the Belyea court acknowledged this potential for
judicial inefficiency could be remedied by the parties who could “[i]n any event, if
both sides truly wish to litigate in a single forum and can agree on whether to do
it in state or federal court, they apparently can bring about the desired result,
either by having the plaintiff file a new case in federal court asserting all the
claims, or by having the plaintiff file a new case in state court that the defendant
does not remove. In short, they can start over.” 859 F.Supp.2d at 1276.
Consequently, the Court is required by §1441(c) and §1445(c) to sever and
remand Miley’s retaliatory discharge claim under Conn. Gen. Stat. §31-290(a).
The Court will therefore maintain jurisdiction over Miley’s federal Section 1983
claims and proceed to consider the Defendants’ pending motion to dismiss on
those claims.
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B. Motion to Dismiss
Legal Standard
“‘To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). While Rule 8 does not require detailed factual allegations, “[a]
pleading that offers ‘labels and conclusions’ or ‘formulaic recitations of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (citations and internal quotations omitted). “Where a complaint
pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short
of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129
13
S.Ct. at 1949-50). “At the second step, a court should determine whether the
‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. 679). “The plausibility standard
is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
Analysis
i.
Procedural Due Process Claim
Miley’s procedural due process claim is predicated on Defendants’ failure
to provide him with the statements of his co-workers and the worker’s
compensation investigation report at his pre-termination hearing which Miley
alleges deprived him of the opportunity to reasonably respond to such evidence.
Defendants argue that under Second Circuit precedent an employer is only
required to provide an explanation of the evidence that forms the basis for the
employee’s termination and is not required to turn over a copy of such evidence.
The Second Circuit in Otero v. Bridgeport Housing Authority, 297 F.3d 142 (2d Cir.
2002) held that the “pretermination process need not be elaborate or approach
the level of a full adversarial evidentiary hearing, but due process does require
that before being terminated such an employee [be given] oral or written notice of
the charges against h[er], an explanation of the employer's evidence, and an
opportunity to present h[er] side of the story.” Id. at 151 (internal quotation
marks and citations ommited). In Otero, an employee was terminated after being
14
accused of stealing a toilet without being fully informed about the nature of the
evidence against her including statements of her co-workers accusing her of the
theft. The Second Circuit explained that it was insufficient to merely provide
some semblance of the evidence against the plaintiff as that “does not
necessarily afford the accused an adequate opportunity to present her side of the
story. Id.
At the motion to dismiss stage, the Court is required to accept all factual
claims in the complaint as true and draw all reasonable inferences in the
plaintiff’s favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d
Cir. 2010). Here, Miley has alleged that he was not provided with all of the
evidence against him and therefore did not have the opportunity to respond to
such evidence and present his side of the story. The Court is required to accept
this allegation as true and draws the reasonable inference that Plaintiff was also
not provided with an explanation of such evidence and not just a copy of the
evidence as Defendants suggest. To the extent that Defendants imply that Miley
was provided with a sufficient explanation of the evidence, but not a copy of such
evidence, the sufficiency of the explanation is an evidentiary issue, which should
be addressed in a motion for summary judgment. At this, the motion to dismiss
stage, the court must accept Miley’s assertion that the summary was insufficient
to afford him an opportunity to defend himself as true. The parties will have the
opportunity to raise the issue of whether Miley was provided with a sufficient
explanation of the evidence against him to satisfy due process on summary
judgment. As “[i]t is well-established that the existence of post-deprivation
15
procedures inform the necessary scope of the pre-deprivation procedures”
Plofsky v. Giuliano, No.06-cv-789(JCH), 2009 WL 902360, at *15 (D. Conn. Mar. 31,
2009) rev’d on other grounds by 375 F. App’x 151 (2d Cir. 2010), the question of
whether Miley was afforded procedural due process is a fact intensive inquiry
best reserved for summary judgment or trial. See Adams v. Suozzi, 517 F.3d 124,
128 (2d Cir. 2008) (“[T]here is no due process violation where ... pre-deprivation
notice is provided and the deprivation at issue can be fully remedied through the
grievance procedures provided for in a collective bargaining agreement.”);
Saltarella v. Town of Enfield, 427 F.Supp.2d 62, 74 (D.Conn.2006) (concluding that
requirement that employee be given an explanation of the evidence against him
was met when employee was given thirty minutes, at his hearing, to review such
evidence), aff'd, 227 F. App’x. 67 (2d Cir. 2007). Miley has pled sufficient factual
content to allow the Court to draw the reasonable inference that the Defendants
are liable for violating Miley’s procedural due process rights when they did not
provide him with statements of his co-workers and its investigative report. The
Court therefore denies Defendants’ motion to dismiss Miley’s procedural due
process claim.
ii.
Stigma-Plus Claim
Plaintiff argues that he has plausibly pled a stigma-plus due process claim
on the basis of the Defendants’ accusations that he falsified Housing Authority
records and defrauded the workers’ compensation benefit program. Defendants
argue that Miley does not allege any specific facts as to what statements were
made and how they impacted his reputation and restricted his employment. It is
16
well established that a “person's interest in his or her good reputation alone,
apart from a more tangible interest, is not a liberty or property interest sufficient
to invoke the procedural protections of the Due Process Clause or create a cause
of action under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329–30 (2d
Cir.2004) citing Paul v. Davis, 442 U.S. 693, 701 (1976). However, “Loss of one's
reputation can, however, invoke the protections of the Due Process Clause if that
loss is coupled with the deprivation of a more tangible interest such as
government employment.” Id. at 330.
“‘In an action based on a termination from government employment, a
plaintiff must satisfy three elements in order to demonstrate a deprivation of the
stigma component of a stigma-plus claim.’” Holmes v. Town of East Lyme, 866
F.Supp.2d 108, 125 (D. Conn. 2012) (quoting Segal v. City of New York, 459 F.3d
207, 212 (2d Cir.2006)). “First, the plaintiff must ... show that the government
made stigmatizing statements about [him]—statements that call into question
[the] plaintiff's good name, reputation, honor, or integrity. We have also said that
statements that denigrate the employee's competence as a professional and
impugn the employee's professional reputation in such a fashion as to effectively
put a significant roadblock in that employee's continued ability to practice his or
her profession will satisfy the stigma requirement. Second, a plaintiff must prove
these stigmatizing statements were made public. Third, the plaintiff must show
that the stigmatizing statements were made concurrently with, or in close
temporal relationship to, the plaintiff's dismissal from government employment.”
Id. (internal quotation marks and citations omitted). “A plaintiff generally is
17
required only to raise the falsity of these stigmatizing statements as an issue, not
prove they are false.” Patterson, 370 F.3d at 330.
The Court agrees with Defendants that Miley’s allegations are devoid of
specific factual content to state a claim to relief for a stigma-plus violation that is
plausible on its face. Miley conclusory alleges without supporting facts that the
Defendants made stigmatizing comments regarding his alleged falsification of
workers’ compensation benefits that negatively impacted his career prospects.
First, Miley has not alleged that any of Defendants’ alleged comments were made
public. In his opposition memorandum, Miley argues that the publication
requirement may be “satisfied where the stigmatizing charges are placed in the
discharged employee's personnel file and are likely to be disclosed to
prospective employers.” Guerra v. Jones, 421 F. App’x 15, 18 (2d Cir. 2011)
(internal quotation marks and citations omitted). However nowhere in the
amended complaint does Miley allege that the stigmatizing statements were
placed in his personnel file that will likely be disclosed to prospective employers.
It is well established that “[p]laintiffs cannot amend their complaint by asserting
new facts or theories for the first time in opposition to Defendants’ motion to
dismiss.” K.D. ex rel. Duncan v. White Plains School Dist., No.11CIV.6756(ER),
2013 WL 440556, at *14 n.8 (S.D.N.Y. Feb. 5, 2013)( citing Tomlins v. Vill. of
Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 363 n. 9
(S.D.N.Y.2011); Scott v. City of New York Dep't of Corr., 641 F.Supp.2d 211, 229
(S.D.N.Y.2009), aff'd, 445 F. App'x 389 (2d Cir.2011)).
18
Even if the Court did permit Miley to amend his complaint to allege that
stigmatizing comments were placed in his personnel file, his stigma-plus claim
would still fail as Miley has not plead facts sufficient to support the conclusion
that Defendants’ allegedly stigmatizing comments impugned his reputation in
such a fashion as to effectively put a significant roadblock in his continued ability
to practice his profession. Courts have routinely held that “merely conclusory
allegations that Plaintiff was stigmatized, that her reputation was substantially
damaged and that she lost professional standing are insufficient without factual
support to allege a plausible stigma-plus claim.” Piccoli v. Yonkers Bd. Of Educ.,
No.08-cv-8344(CS), 2009 WL 4794130, at *4 (S.D.N.Y. Dec. 11, 2009); see also
Srinivas v. Picard, 648 F.Supp.2d 277, 290 (D.Conn. 2009) (concluding that
plaintiff had not “ plead facts sufficient to support a conclusion that her
reputation was damaged to the extent that it has placed a significant roadblock in
[her] ... continued ability to practice ... her profession. The plaintiff has alleged in
conclusory terms that her reputation has been damaged, and that the defendants'
actions led to the destruction of her career. Nowhere does she allege facts that
could show she has been prevented from pursuing her career because of
stigmatizing statements made by any of the defendants.”) (internal quotation
marks and citations omitted); TADCO Const. Corp. v. Dormitory Authority of State
of New York, 700 F.Supp.2d 253, 266-67 (E.D.N.Y. 2010) (dismissing stigma-plus
claim because plaintiff conclusorily stated that it had sustained a tangible burden
on its future employment prospect but included no facts to render plausible this
element of the stigma-plus claim). The allegations of the amended complaint
19
that Defendants’ alleged comments had interfered with Miley’s ability to seek and
obtain employment are merely a formulaic recitation of the elements of a stigmaplus claim and nothing more than a naked assertion devoid of further factual
enhancement necessary to render the claim plausible. The Court therefore grants
the Defendants’ motion to dismiss Miley’s stigma-plus due process claim.
iii.
Monell Claim
In Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), the
Supreme Court held that municipalities cannot be held liable for constitutional
torts under 42 U.S.C. §1983 on a respondeat superior theory but could be liable
where execution of a municipality’s policy or custom inflicts the injury. As this
Court has dismissed Miley’s stigma-plus claim, the sole remaining Section 1983
claim is Miley’s claim that he was denied due process when he was not provided
with certain evidence at his pre-termination hearing. As Defendants point out,
the complaint is entirely devoid of any allegations that the Housing Authority had
a custom, policy, or practice of withholding evidence or the explanation of
evidence at pre-termination hearings. In his opposition memorandum, Plaintiff
argues that his Monell claim survives under a final policy maker theory. Miley
contends that his claim is plausible as he has alleged that the Executive Director
of the Housing Authority, Nicholas Calace, was involved in the alleged due
process violation. When a plaintiff does not claim “that the actions complained
of were taken pursuant to a local policy that was formally adopted or ratified, but
rather that they were taken or caused by an official whose actions represent
official policy, the court must determine whether the official had final
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policymaking authority in the particular area involved.” Jeffes v. Barnes, 208 F.3d
49, 57 (2d Cir.2000). “Whether an official in question possessed final policy
making authority in a particular area is a legal question to be determined by
reference to state law, local law, and custom and usage having the force of law.”
Russo v. City of Hartford, 341 F.Supp.2d 85, 108 (D.Conn. 2004). In other words,
Miley must plead specific facts establishing that Calace had final policymaking
authority over the provision of evidence prior to a termination hearing and that he
either implemented or by act or omission acquiesced in the implementation of a
policy or practice which resulted in the employee statements and investigation
report being withheld from him. However, Miley has not alleged in his amended
complaint that Calace was a final policy maker in the particular area involved nor
has he alleged that Calace participated in the decision to withhold evidence from
him before the pretermination hearing. As noted above, Miley may not assert new
facts or theories for the first time in a memorandum in opposition to Defendants’
motion to dismiss. Even if the Court permitted Miley to amend his complaint to
allege that Calace was a final policy maker, Miley has failed to identify in his
opposition memorandum any state law, local law or custom and usage having the
force of law that would establish that Calace either was the final policy maker for
the Housing Authority or that he established or condoned a policy which caused
the evidence to be withheld from Miley prior to pre-termination hearing.
Consequently, the Court grants Defendants’ motion to dismiss Miley’s Monell
claim against the Housing Authority and against Defendant Calace in his official
capacity.
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iv.
Personal Involvement and Qualified Immunity
Defendants also argue that the amended complaint is devoid of any
plausible allegations that Calace was personally involved in the alleged due
process violation. Although couched as a qualified immunity defense, it is “well
established in this Circuit that personal involvement of a defendant in the alleged
constitutional deprivations is a prerequisite to an award of damages under
§1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir 2010). Consequently to state a
claim under §1983, a plaintiff must allege personal involvement of a defendant.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). This Court agrees that Miley has
only conclusorily alleged that Calace was involved in the alleged due process
violation. Miley has not alleged any facts to support the conclusion that Calace
was present at the pre-termination hearing or was personally involved in the
decision to not disclose or provide an explanation of the co-worker statements
and the investigation report to Miley.
To the extent that the amended complaint can be construed to assert that
Calace is liable, in his individual capacity, on a theory of supervisory liability in
that Calace failed to supervise and stop his subordinates from engaging in
unconstitutional conduct, the complaint is devoid of any specific facts to support
such an assertion. Supervisory liability may be “‘imposed against a supervisory
official in his individual capacity for his own culpable action or inaction in the
training, supervision or control of his subordinates.” Odom v. Matteo, 772 F.
Supp. 2d 377, 403 (D. Conn. 2011) (internal quotation marks and citation omitted).
Supervisory liability may be established by the following factors articulated by
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the Second Circuit in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(hereinafter the “Colon Factors”):
The personal involvement of a supervisory defendant may be shown
by evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3)
the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts, or (5)
the defendant exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Id.3 In addition, the plaintiff must demonstrate an affirmative causal link between
the supervisory official's failure to act and his injury. Poe v. Leonard, 282 F.3d
123, 140 (2d Cir.2002). Miley has failed to allege any factual content to support an
inference that Calace’s conduct satisfies any of the Colon factors. As this defect
in pleading can be easily cured on amendment, the Court will grant Miley leave to
amend his complaint to add the facts which support the conclusion that Calace
was personally involved in the alleged due process violation either as a direct
3
The recent Supreme Court decision in Ashcroft v. Iqbal has called into question
whether all of the Colon factors remain a basis for establishing supervisory
liability and that “no clear consensus has emerged among the district courts
within this circuit.” Aguilar v. Immigration and Customs Enforcement Div. of the
United States, No.07CIV8224, 2011 WL 3273160, at *10 (S.D.N.Y. August 1, 2011)
(collecting cases). However, the Court need not assess Iqbal’s impact on the
Colon factors at the motion to dismiss stage.
23
participant or as a supervisor or to name an individual who was personally
involved and the facts surrounding that person’s involvement.
The Court notes that if the complaint particularly alleged that that Calace
was personally involved in the alleged constitutional violation, he would not be
entitled to the protections of qualified immunity at the motion to dismiss stage.
When reviewing a claim of qualified immunity, a court must consider “whether
the facts that the plaintiff has alleged (See Fed. Rules Civ. Porc. 12 (b)(b)(6), (c))
or shown (see Rule 50, 56) make out a violation of a constitutional [or statutory]
right,” and “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Although previously the Supreme Court prescribed a mandatory two-step
analysis, considering first the constitutional violation prong and then the clearly
established prong, the Court has since recognized that this rigid procedure
“sometimes results in a substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of the case,” as “[t]here are
cases in which it is plain that a constitutional right is not established but far from
obvious whether in fact there is a constitutional right.” Pearson, 555 U.S. at 23637. Thus, the Supreme Court has provided district courts with the discretion to
decide the order in which the two prongs of the qualified immunity analysis are
applied. Id. at 243. In providing the lower courts with the discretion to determine
the order of qualified immunity analysis to be applied to a given case, the
Supreme Court explicitly acknowledged that “there will be cases in which a court
will rather quickly and easily decide that there was no violation of clearly
24
established law before turning to the more difficult question of whether the
relevant facts make out a constitutional question at all.” Id. at 239.
Qualified immunity “protects government officials from liability where the
officials’ conduct was not in violation of a ‘clearly established’ constitutional
right.” Sudler v. City of New York, 11-1198-cv (L), 11-1216-cv (con), 2012 WL
3186373, at *10 (2d Cir. Aug. 7, 2012). “If the conduct did not violate a clearly
established constitutional right, or if it was objectively reasonable for the [official]
to believe that his conduct did not violate such a right, then the [official] is
protected by qualified immunity.” Id. (quoting Doninger v. Niehoff, 642 F.3d 334,
345 (2d Cir. 2011)). “Qualified immunity thus shields government officials from
liability when they make ‘reasonable mistakes’ about the legality of their actions,
and ‘applies regardless of whether the government official’s error is a mistake of
law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id.
(internal citations omitted) (quoting Pearson, 555 U.S. at 231).
As the Court has dismissed Miley’s stigma-plus claim, the Court will only
consider whether qualified immunity applies with respect to Miley's remaining
Section 1983 due process claim. Defendants argue that Calace is entitled to
qualified immunity because the amended complaint is devoid of any allegations
that Calace violated some clearly established Constitutional right. As discussed
above, it was clearly established in 2012 that due process requires that before
being terminated an employee be given notice of the charges against him, an
explanation of the employer's evidence, and an opportunity to present his side of
the story. Otero, 297 F.3d at 151. At the motion to dismiss stage, the Court’s
25
analysis of qualified immunity is limited to the allegations in the complaint which
plausibly state that Miley was not provided with an explanation of the evidence
against him. On the basis of those allegations, qualified immunity cannot be
established at the motion to dismiss stage and the Court declines to find that
qualified immunity protects Calace.
Conclusion
Based upon the above reasoning, the Court GRANTS IN PART AND DENIES
IN PART Plaintiff’s [Dkt.#13] motion to remand. The Court severs Plaintiff’s
workers’ compensation claim from the action and remands that claim back to
Connecticut superior court. The Court also GRANTS IN PART AND DENIES IN
PART Defendants’ [Dkt.#13, 21] motions to dismiss. The Plaintiff’s stigma-plus
and Monell claims have been dismissed. The Court grants Plaintiff leave to
amend his procedural due process claim by 3/15/2013 to add allegations as to
Defendant Calace’s personal involvement or to name an appropriate individual
capacity defendant. The Court has recognized the practical implications of its
remand and reminds the parties of the alternatives available to them to address
the inefficiencies which the Court has explained above.
IT IS SO ORDERED.
________/s/__ ________
Hon. Vanessa L. Bryant
United States District Judge
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Dated at Hartford, Connecticut: February 25, 2013
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