Miley v. Housing Authority of the City of Bridgeport et al

Filing 72

ORDER granting 54 Motion for Summary Judgment. See the attached Memorandum of Decision. The Clerk is directed to enter judgment in favor of the Defendants and to close this case. Signed by Judge Vanessa L. Bryant on 2/7/14. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RONDELL MILEY,
PLAINTIFF,
v.
HOUSING AUTHORITY OF THE
CITY OF BRIDGEPORT and
NICHOLAS CALACE,
DEFENDANTS.

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CIVIL ACTION NO.
3:12-CV-00519 (VLB)

FEBRUARY 7, 2014

MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [Dkt. #54]

I.

Introduction
The plaintiff, Rondell Miley (“Miley”), brings this action for violation of his

Fourteenth Amendment procedural due process rights stemming from his
termination from public employment with the Bridgeport Housing Authority
allegedly absent good cause. The sole remaining defendant is Bridgeport
Housing Authority Executive Director Nicholas Calace (“Calace”), sued in his
individual capacity. Currently pending before the Court is Calace’s Motion for
Summary Judgment. For the reasons that follow, the defendant’s Motion for
Summary Judgment is GRANTED.
II.

Procedural Background
A preliminary explanation of the procedural background of this case is

necessary. This case was removed to federal court on April 5, 2012 and plaintiff
1

alleged four claims: a state statutory claim for retaliation under the Connecticut
Workers’ Compensation Act, Conn. Gen. Stat. § 31-290 and three federal law
claims, two pursuant to 42 U.S.C. § 1983 for violation of procedural due process
by virtue of the manner in which Miley’s employment was terminated, and one
stigma-plus due process claim. Miley filed a motion to remand and the
defendants filed two motions to dismiss Miley’s claims. On February 25, 2013 the
Court issued an order severing and remanding Miley’s statutory Workers’
Compensation Act claim. [Dkt. 39, 2/25/13 Memo. of Decision, p.12]. The Court
also granted the defendants’ motions to dismiss the plaintiff’s stigma-plus due
process claim, and his municipal liability procedural due process claims pursuant
to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) against
the Housing Authority and defendant Calace in his official capacity. [Dkt. 39,
2/25/13 Memo. of Decision, pp.20, 21]. Lastly, the Court dismissed the procedural
due process claim against Calace in his individual capacity but granted plaintiff
leave to amend. [Id. at pp.23-24]. The Plaintiff filed an amended complaint in
which he re-pled the due process claim and included the dismissed claims. [Dkt.
43, Am. Compl.]. Pursuant to the Court’s order on the motions to dismiss,
though, the only viable claim remaining to Miley was the procedural due process
claim against defendant Calace in his individual capacity, which the Court gave
plaintiff leave to amend.
Federal Rule of Civil Procedure 15 allows a party to amend its pleading
once as a matter of course within 21 days after serving it, or within 21 days after
service of a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1). In all other cases, a
2

party may amend its pleading only with the opposing party’s written consent or
the court’s leave. Fed. R. Civ. P. 15(a)(2). Here, the Court granted Miley leave to
amend only his procedural due process claim encompassed in count three and
dismissed outright the claims he had alleged in counts one and two. Miley did
not seek the Court’s leave to amend counts one or two, and no evidence exists in
the record that defendant Calace (the only remaining defendant at this stage of
the litigation) gave his written consent for amendment of these two claims, nor
has Miley actually amended these claims. In fact, in defendant Calace’s Answer
to the Amended Complaint, rather than admitting or denying the allegations in
counts one and two, Calace has instead noted that these counts were remanded
and dismissed pursuant to this Court’s February 25, 2013 Order. [Dkt. 47,
Answer].
By way of clarification, because the Court has previously remanded and
dismissed Miley’s state statutory, municipal liability, and stigma-plus due
process claims and only allowed Miley to amend his procedural due process
claim against defendant Calace in his individual capacity, and further because
Miley did not seek leave of the Court to amend his previously dismissed claims,
the only claim remaining in this case is Miley’s procedural due process claim
against Calace in his individual capacity. As such, the Court construes the
inclusion of the dismissed claims as an attempt to preserve Miley’s appeal rights
and will therefore consider only Miley’s procedural due process claim in
adjudicating defendant Calace’s motion for summary judgment.
III.

Factual Background
3

The facts relevant to the Defendant’s Motion for Summary Judgment are
set forth below and are undisputed unless otherwise noted. Where the plaintiff
has objected to defendant’s facts but has failed to support his objection with a
citation to specific and admissible evidence in the record, or where the record
does not support plaintiff’s denials, those facts are deemed to be admitted.1
Rondell Miley commenced employment with the Housing Authority of the
City of Bridgeport (“Housing Authority”) on or about October 2006 and was
employed as a maintenance aide. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶¶1, 3]. The
Housing Authority is a municipal housing authority created pursuant to Conn.
Gen. Stat. § 8-40 and provides affordable housing to low and moderate income
citizens and those with disabilities through its public housing choice voucher,
a/k/a Section 8, programs. [Id. at ¶2]. As a Housing Authority employee, Miley
was part of a bargaining unit represented by Local 2311 of Council 4 of the
American Federation of State, County and Municipal Employees, AFL-CIO (the
“Union”), and the times, wages, hours and terms of Miley’s employment were
governed by a collective bargaining agreement (the “Local 2311 Agreement” or

1

The Court notes that each statement of material fact in a party’s Local Rule
56(a)1 or (a)2 statement, as well as each denial in a summary judgment
opponent’s Local Rule 56(a)2 statement, “must be followed by a specific citation
to (1) the affidavit of a witness competent to testify as to the facts at trial and/or
(2) evidence that would be admissible at trial.” D. Conn. L. Civ. R. 56(a)3. The
Local Rule further clarifies that “[a]ll material facts set forth in [a moving party’s
56(a)1] statement and supported by the evidence will be deemed admitted unless
controverted by the statement required to be filed and served by the opposing
party.” D. Conn. L. Civ. R. 56(a)1. Where a party fails to appropriately deny
material facts set forth in the moving party’s 56(a)1 statement, and where those
facts are supported by evidence in the record, those facts are deemed to be
admitted. See SEC v. Global Telecom Servs. L.L.C., 325 F. Supp. 2d 94, 109 (D.
Conn. 2004); Knight v. Hartford Police Dep't, 3:04CV969 (PCD), 2006 WL 1438649
(D. Conn. May 22, 2006). .
4

“Agreement”) between the Housing Authority and the Union. [Id. at ¶¶4, 5]. The
Local 2311 Agreement provides that “[a]ll disciplinary actions shall be for just
cause, and shall be applied in a fair manner and shall be consistent with the
infraction for which the disciplinary actions are being applied.” Disciplinary
actions include discharge from employment. [Id.]. Pursuant to the Agreement’s
grievance procedure, if a grievance is not resolved following exhaustion of
various preliminary steps, the Union may refer the dispute to the Connecticut
State Board of Mediation and Arbitration whose decision will be final and binding.
[Id. at ¶7]. This arbitration procedure is governed by Conn. Agencies Regs, §§ 3191-1, et seq.
On September 15, 2011, Mr. Miley reported to the Bridgeport Police
Department that on September 13, 2011 he had been punched in the mouth by a
Travon Smith, causing a swollen upper lip. [Dkt. 54-3, Exh. H, Incident Report;
Dkt. 54-4, D’s 56(a)(1) Stmt. ¶8]. Seven days after the first incident, on September
20, 2011 Miley sustained a second injury while he and a Housing Authority coworker, Miguel Fernandez, were moving a refrigerator up some stairs at the end
of the work day. The plaintiff was at the top, and his coworker, who was at the
bottom, pushed up on the refrigerator, causing the refrigerator to hit Miley on the
left side rib area. [Dkt. 54-4, D’s 56(a)(1) Stmt.¶9]. Miley said to his coworker,
“Mike, I think I hurt myself,” to which the coworker replied “Come on, Rondell.
Man up now, man up,” meaning that he and Miley should finish the job. [Id. at
¶10].

5

The plaintiff and defendant dispute when Miley reported this injury to the
Housing Authority. Miley contends that he reported the injury to Robbi Dunn
Harris, his immediate supervisor, on the day after the workplace incident,
September 21, 2011, but that she did not create a record of the injury until
September 27, 2011. [Dkt. 66, P’s 56(a)2 Stmnt. ¶ 11; Dkt. 60-1, Miley Aff. ¶6]. The
defendant contends that Miley did not report this injury to either his supervisor or
Human Resources until September 27, 2011. [Dkt. 54-2, Exh. E, Termination
Letter, pp.30, 31/37].
On September 21, 2011 (and after he had reported his workplace injury to
Dunn Harris, according to Miley) Miley was involved in a verbal dispute with his
manager, Jorge Colon. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶12; Dkt. 66, P’s 56(a)2
Stmnt. ¶12; Dkt. 60-1, Miley Aff. ¶7]. Following the dispute, Miley met with the
Housing Authority’s Human Resources Director, Robyn Stewart, complained of
unfair treatment by Colon, and requested a transfer to a different department.
[Dkt. 54-4, D’s 56(a)(1) Stmt. ¶13; Dkt. 66, P’s 56(a)2 Stmnt. ¶12; Dkt. 60-1, Miley
Aff. ¶8]. At this meeting, Miley did not mention anything about being injured the
previous day. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶¶14, 15]. Stewart authorized him to
take the following day, September 22, 2011, off from work, which he did. [Id.].
Miley has submitted an affidavit asserting that, because he reported his injury to
his manager, Robbi Dunn Harris, pursuant to Housing Authority procedures,2
there was no need to report it to Human Resources. [Dkt. 66, P’s 56(a)2 Stmnt.
¶¶14, 15]. As a result of the incident between Colon and Miley, Ms. Dunn Harris

2

These procedures are not contained in the record of this case.
6

changed Miley’s supervisor from Jorge Colon to herself.3 [Dkt. 66, P’s 56(a)2
Stmnt. ¶12; Dkt. 62-1, Dunn Harris email 9/21/11].
On the night of September 22, 2011, the day following the incident with
Colon, Miley first sought medical treatment at the emergency room of St.
Vincent’s Medical Center in Bridgeport, accompanied by his girlfriend and his
sixteen year old daughter. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶16]. The Triage section
of the medical records from this visit states “history is provided by the patient”
and notes as Miley’s chief complaint (and as recorded by a triage nurse)
“something’s up with my rib, every time i [sic] cough it hurts – i [sic] did have a
fight a couple of days ago and ever since then it has been hurting.” [Dkt. 54-4,
D’s 56(a)(1) Stmt. ¶18; Dkt. 54-2, Exh. B, St. V’s Records 9/22/11, p.18/37]. The
History of Present Illness section of the records from this visit, recorded by
another member of the hospital’s treatment team, emergency room physician
Sally S. Chao, MD, included a more detailed statement of the reported cause of
Miley’s symptoms, “33 yo male presents with left lateral rib pain x 1 week s/p
trauma. pt was in a fight 1 week ago and was punch [sic] in left ribs.” [Dkt. 54-4,
D’s 56(a)(1) Stmt. ¶19; Dkt. 54-2, Exh. B, St. V’s Records 9/22/11, p.19/37].
Human Resources Director Robyn Stewart has affirmed in an affidavit
accompanying the defendant’s motion for summary judgment that when a
Housing Authority employee seeks treatment at St. Vincent’s Medical Center for
an on-the-job injury, St. Vincent’s practice is to contact Stewart in the human

3

Miley does not explain why he reported his injury to Dunn Harris earlier in the
day, when she had not yet become his supervisor.
7

resources department to report that fact and to obtain workers’ compensation
information. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶20; Dkt. 54-3, Stewart Aff. ¶12].
Stewart also attests that when a Housing Authority employee seeks medical
treatment for an on-the-job injury, the employee is supposed to inform the
medical care provider that the injury is work related and is not supposed to use
his or her group medical insurance card. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶22].
Stewart further affirms that she was not notified of Miley’s visit to St. Vincent’s on
September 22. [Id. at ¶21; Dkt. 54-3, Stewart Aff. ¶12]. Miley has submitted an
undated invoice/bill from St. Vincent’s Medical Center for services rendered on
September 22, 2011 indicating his first insurance coverage to be “Workers’
compensation Othr,” and further reflecting that the claim for this date was paid by
workers’ compensation. His second insurance coverage is listed on this
document as “Blue Cross Shield of CT.” [Dkt. 66, P’s 56(a)2 Stmnt. ¶ 22; Dkt. 611, Exh. F. St. V’s Bill, p. 33/56].
The following day, Friday, September 23, 2011, Miley took a scheduled
vacation day. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶23]. Upon his return to work on
Monday, September 26, 2011, Robyn Stewart attests that she advised Miley that it
did not look like his transfer request from Jorge Colon’s department was going to
be granted and that the staff with whom Stewart had spoken did not corroborate
Miley’s allegations of unfair treatment and harassment against supervisor Colon.
[Dkt. 54-4, D’s 56(a)(1) Stmt. ¶24; Dkt. 54-3, Stewart Aff. ¶8]. Miley then worked a
full shift the following day, Tuesday, September 27, 2011. [Dkt. 54-4, D’s 56(a)(1)
Stmt. ¶25].
8

On September 28, 2011 the plaintiff visited his personal physician’s office
and again complained of rib pain, this time reporting that it was the result of a
workplace injury sustained while he and a co-worker were lifting a refrigerator on
September 20, 2011. The physician recommended that Miley remain out of work
for six to eight weeks. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶27]. That same day, Miley
reported to Human Resources Director Stewart that he had injured his ribs on the
job on September 20, 2011 and gave her a copy of the note from his personal
physician’s office stating that he could return to work in six to eight weeks. [Id. at
¶28].
On September 29, 2011 Miley returned to the St. Vincent’s Medical Center
emergency room for the treatment of the same rib injury and complaining of
shortness of breath. [Id. at ¶29]. Although the defendant contends, and the
plaintiff agrees, that Miley told the St. Vincent’s triage nurse on September 29,
2011 that he injured his ribs at work, neither party has cited evidence in the
record supporting this contention. [See Dkt. 54-4, D’s 56(a)(1) Stmt. ¶30; Dkt. 66,
P’s 56(a)2 Stmnt. ¶30]. Mr. Miley was absent from work on workers’
compensation leave from September 27, 2011 until November 29, 2011, when he
returned to full duty work at the Housing Authority. [Dkt. 54-4, D’s 56(a)(1) Stmt.
¶35]. During this absence, Miley received workers’ compensation benefits. [Id. at
¶36].
In October 2011, the Housing Authority’s Deputy Executive Director, Blanca
Carrasquillo, informed Human Resources Director Stewart of a rumor circulating
at work that Mr. Miley was injured in a fight outside the workplace and not on the
9

job, and requested that Stewart call Chartis, the Housing Authority’s workers’
compensation carrier, to have Chartis investigate the matter. [Dkt. 54-4, D’s
56(a)(1) Stmt. ¶31]. Stewart called the adjuster at Chartis assigned to Miley’s
workers’ compensation claim, reported the rumor, and requested that the rumor
be investigated. [Id. at ¶32]. Investigator James Harris was assigned by Chartis
to investigate the rumor. [Id. at ¶33]. Harris met with Stewart, reviewed copies of
portions of Miley’s medical records from his September 22 and 29 visits to St.
Vincent’s Medical Center, and has attested that he unsuccessfully attempted to
contact Mr. Miley. [Id. at ¶34]. Harris also attempted to obtain from the
Bridgeport Police Department a copy of the police report detailing the September
13 altercation involving Miley, but was unable to locate a report. [Id.; see also
Dkt. 62-1, P’s Exh. N, Harris Report].
In February 2012 Harris wrote a memorandum to the Connecticut “Chief
States Attorneys Office Workers Comp Fraud Bureau” entitled Summary of
Investigation, and also emailed a copy to Robyn Stewart. [Dkt. 54-4, D’s 56(a)(1)
Stmt. ¶37; see also dkt. 54-3, Exh. G, Harris Memo, p.39/47]. This Summary of
Investigation reports that Harris obtained the September 22, 2011 St. Vincent’s
report indicating that Miley had sought treatment at the emergency room and
“told medical staff that he had been in a fight a few days prior and since that time
had chest pain.”4 [Dkt. 54-3, Exh. G, Harris Memo, p.39/47]. The Summary also
indicates that Harris reviewed Miley’s medical records from September 28 and 29,

4

Neither party has included the details of this report in their Local Rule 56
Statements. However, as Miley bases his allegations in large part on certain
statements contained in this report, the Court must explain its contents.
10

2011, and noted that Miley had reported to Robyn Stewart on September 27, 2011
that he had injured his ribs at work on September 20. [Id.]. The report further
states that Harris interviewed Robyn Stewart, who reported that Miley “has been
the subject of prior workers comp claims and several disciplinary actions,” and
that “there were rumors” that Miley had been involved in a fight “but no employee
would give a statement.” [Id.]. Harris noted that Stewart “had questions
regarding the hospital report as she said St. Vincents [sic] always contacts her
regarding a workers comp claim.” [Id.]. Lastly, investigator Harris reported that
he “checked with the Bridgeport Police department for any reports of a fight
involving Miley but could not locate one.” [Id.].
On February 15, 2012 the Housing Authority gave Miley notice of a pretermination hearing and the charges against him. On that date, Robyn Stewart
met with Mr. Miley, and a letter of the same date from the Housing Authority’s
Executive Director, defendant Nicholas Calace, was hand-delivered to him. [Dkt.
54-4, D’s 56(a)(1) Stmt. ¶38]. The letter, entitled “Notice of Pre-Termination
Hearing,” notified Miley that termination of his employment was under
consideration for the following reasons: (1) falsification of Housing Authority
records, (2) defrauding the Housing Authority Workers’ Compensation Benefit
Program, and (3) violation of the public trust. [Id.; Dkt. 54-3, Exh. D, 2/15/12
Letter, p.25/47]. It notified Miley that a pre-termination hearing would be held on
February 17, 2012, at which Miley would have an opportunity to respond to the
charges against him. [Id.].

11

The letter also summarized the critical facts supporting the charges against
Miley. It reporded that on September 28, 2011 Miley had submitted a physician’s
note stating that Miley would be absent from work for six to eight weeks due to a
work injury sustained on September 20, that the information provided by Miley’s
physician on the September 28 visit had been “submitted on the Housing
Authority’s Workers’ Compensation – Employee Medical and Work Status Form,
which is used to report on workplace injuries,” and that this physician had
diagnosed Miley with a left rib fracture. [Dkt. 54-3, Exh. D, 2/15/12 Letter, p.25/47].
The letter further noted that Miley had remained out of work as prescribed by his
physician and had “received treatment and financial benefits under Workers’
Compensation during that period,” in addition to differential compensation
pursuant to the terms of the collective bargaining agreement, until Miley’s return
to work on November 29, 2011. [Id. at p. 25-26/47]. The February 15 letter then
concluded that
[h]owever, notwithstanding your representations to BHA [the
Housing Authority] and your physician, BHA and its carrier
have information that you sought and received treatment at St.
Vincent’s Medical Center on September 22, 2011 for the same
injury. You presented different information regarding the
injury at the time of treatment. It has since been determined
that you have obtained treatment as well as benefits under
Workers’ Compensation by false pretenses.
[Dkt. 54-4, D’s 56(a)(1) Stmt. ¶40 Dkt. 54-3, Exh. D, 2/15/12 Letter, p.26/47].
Miley admits that he received this letter during the February 15, 2012
meeting with Stewart, which took place at the end of the work day, but he was
provided with no other documents at the meeting. [Dkt. 66, P’s 56(a)2 Stmnt. ¶38;
12

Dkt. 60-1, Miley Aff. ¶¶19, 20]. Stewart informed Miley at this meeting that he
would have an opportunity to present his case at the pre-termination hearing.
[Dkt. 54-4, D’s 56(a)(1) Stmt. ¶39]. Pursuant to Calace’s February 15 letter, Miley
was placed on paid administrative leave pending the pre-termination hearing and
a decision on his employment with the Housing Authority. [Dkt. 54-4, D’s 56(a)(1)
Stmt. ¶41].
At Miley’s attorney’s request, the pre-termination hearing scheduled for
February 17, 2012 was postponed until February 23, 2012 to allow the plaintiff and
his attorney more time to investigate and prepare. [Dkt. 54-4, D’s 56(a)(1) Stmt.
¶42]. The hearing took place in a conference room at the Housing Authority’s
offices and was attended by the plaintiff, his attorney, two Union representatives,
defendant Nicholas Calace, Robyn Stewart, and the Housing Authority’s attorney,
Lisa Grasso Egan. [Id. at ¶43]. Plaintiff’s counsel, Attorney Thornberry, brought
to the hearing copies of the St. Vincent’s Medical Center emergency room reports
from Miley’s visits on September 22 and 29, 2011. [Id. at ¶44]. Miley also
presented at the hearing a copy of the September 15, 2011 Bridgeport Police
Department incident report in which the plaintiff reported that he had been
punched in the mouth by Travon Smith (who plaintiff affirms is his daughter’s
brother) on September 13, 2011, causing a swollen upper lip. [Id. at ¶45; Dkt. 66,
P’s 56(a)2 Stmnt. ¶45].
At the hearing, the plaintiff was confronted with the St. Vincent’s Medical
Center emergency department report from September 22, 2011, which reflected
that Miley was quoted as telling the triage nurse that he had been in a fight a
13

couple of days earlier and that ever since then his rib had been hurting. [Dkt. 544, D’s 56(a)(1) Stmt. ¶46]. It was pointed out to the plaintiff that the treating
emergency room physician’s History of Present Illness entry from the September
22 record stated that the plaintiff had been in a fight one week ago during which
he was punched in the left ribs. [Id. at ¶47; Dkt. 54-2, Exh. B, St. V’s Records
9/22/11, p.19/37]. It was also pointed out at the hearing that the medical records
from September 22 did not contain any information indicating that the plaintiff’s
rib injury was caused by an injury at work. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶48].
Miley challenged the credibility of this evidence, claiming that during his
visit to the St. Vincent’s emergency department on September 22, 2011 he never
provided information to the triage nurse indicating that he had been involved in a
fight, but rather told the triage nurse that he had been injured at work. [Dkt. 54-4,
D’s 56(a)(1) Stmt. ¶49]. Miley explained that he had been speaking about the
September 13 assault by Travon Smith with his daughter and then-girlfriend –
who had accompanied him to the emergency room – in front of the triage nurse;
he surmised that the triage nurse must have overheard that conversation and
inaccurately quoted what she had overheard in the medical report. [Id. at ¶50].
When confronted with the doctor’s History of Present Illness section of the
September 22 records, which differs from the triage nurse’s description of Miley’s
complaint, Miley maintained that the emergency room doctor had not asked Miley
how he had hurt himself. [Id. at ¶51]. There is no evidence on the record that
Miley offered the testimony of his daughter or his then-girlfriend at the hearing to
corroborate his version of what he said to the St. Vincent’s Hospital staff on
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September 22nd. Miley maintained throughout the hearing that he was injured on
September 20, 2011 when co-worker Fernandez pushed upwards on a refrigerator
they were carrying up a flight of stairs and the refrigerator struck Miley in his left
ribs. [Id. at ¶53]. Witness Miguel Fernandez was called to the pre-termination
hearing and he verified that when he gave the refrigerator a push from the bottom
of the stairs, the plaintiff said to him “I think I hurt my rib.” [Id. at ¶54].
Miley, who had previously been injured at work, admitted at the hearing
that he was familiar with the procedures for work injuries. [Id. at ¶55]. Nicholas
Calace and Robyn Stewart attest that Miley could provide no explanation as to
why he had provided his medical insurance card to St. Vincent’s Medical Center
on September 22, 2011. [Id. at ¶55]. The parties agree that neither the plaintiff
nor his attorney was provided with a copy of Harris’s Summary of Investigation
before or during the pre-termination hearing. [Id. at ¶56].
Following the pre-termination hearing and pursuant to a request made by
the plaintiff’s attorney, defendant Calace granted Mr. Miley and his attorney an
additional five calendar days, through February 28, 2012, to provide
supplementary information to support Mr. Miley’s position. [Id. at ¶57]. Neither
the plaintiff nor his attorney provided any additional information by February 28,
2012. [Id. at ¶58].
As the Housing Authority’s Executive Director, Nicholas Calace had the
sole authority to decide whether to terminate the employment of a Housing
Authority employee. [Id. at ¶59]. In early March 2012, after discussing the matter

15

with Attorney Egan and Human Resources Director Stewart, Calace made the
decision to discharge the plaintiff effective February 28, 2012 for falsifying
Housing Authority Records in connection with submissions for insurance and
claims for benefits, for workers’ compensation fraud, and for violating the public
trust. [Id. at ¶60]. Calace recorded these reasons in a Notice of Termination letter
to Miley dated March 5, 2012.5 [Dkt. 54-2, Exh. E, Termination Letter, p.30/37].
The five-page termination letter summarized the February 23 pretermination hearing, including medical records from September 28 and October
11 from Miley’s primary doctor as to a work injury, and the September 22 medical
record demonstrating that Miley “sought and received treatment at St. Vincent’s
Medical Center on September 22, 2011 for the same injury. Yet, [ ] presented
different information regarding the injury at the time of treatment.” [Dkt. 54-2,
Exh. E, Termination Letter, p.30/37]. The letter noted that Miley had maintained
throughout the hearing that he was injured while carrying a refrigerator up some
stairs on September 20, had admitted that he had reported the injury to Robbie
Dunn Harris on September 27,6 and had admitted visiting St. Vincent’s Medical
Center the prior week. [Id. at 31/37]. The letter reported that when confronted at
the hearing with the triage nursing note and the St. Vincent’s emergency room
physician’s history note from September 22, Miley denied having reported that he

5

Neither party has explained the contents of this letter in any detail in their Local
Rule 56 Statements. Because this letter is crucial to understanding the reasons
for Miley’s termination and the evidence presented against him, the Court will
summarize it. Both parties have submitted the letter as an exhibit and do not
appear to disagree on its contents.
6
As noted, Miley asserts that he reported his injury to Ms. Dunn Harris the day
after it occurred, on September 21, 2011.
16

was injured in a fight, and instead maintained that “the Triage nurse/woman
wrongfully misquoted [Miley] by typing into [his] records an actual misquote
when in fact she simply overheard [Miley] talking about the fight that [he] had
with” Travon Smith. [Id.]. The letter also records that Miley disputed the
physician’s history in the September 22 medical records, even though it was
noted at the hearing that the physician’s comment differed from the triage
nurse’s. Calace’s letter states that at the pre-termination hearing Miley called
witness Miguel Fernandez, who corroborated that Miley had stated that he
thought he injured his rib while moving the refrigerator, and that Miley admitted
his involvement in an altercation on September 20, 2011 during which he was
punched in the lip, but denied any injury to his ribs. [Id. at p. 32]. The letter
stated that “at the conclusion of the hearing there remained no resolution
regarding the basis for a Triage staff member failing to record information
allegedly provided by a patient and, instead, entering erroneous information in
quotations. Likewise, there was no explanation as to how the treating physician
would record similar information if you did not provide it.” [Id.].
Calace has affirmed – and Miley does not deny – that in making the
decision to terminate the plaintiff’s employment, Calace credited the September
22, 2011 St. Vincent’s Medical Center emergency department report and did not
find the plaintiff’s story that the triage nurse failed to take down what Miley claims
to be the source of his injury, but instead quoted misinformation from a casual
conversation she overheard between Miley and his daughter, to be credible. [Dkt.
54-4, D’s 56(a)(1) Stmt. ¶61]. It is also undisputed that Calace did not credit either
17

the plaintiff’s assertion that the emergency room physician who examined him on
September 22, 2011 did not take a history from him as to how he injured himself,
or his explanation that this physician’s history of present illness entry had been
surmised from the triage nurse’s note. [Id. at ¶¶62, 63]. Calace affirms that he did
not find the plaintiff’s claim that he injured himself at work on September 20, 2011
while carrying a refrigerator up some stairs to be credible. [Id. at ¶64]. He further
attests, and Miley does not deny, that in making the decision to terminate Miley’s
employment Calace relied “primarily on the contents of the clinical chart from Mr.
Miley’s visit on September 22, 2011 to the emergency room of St. Vincent’s
Medical Center.” [Id. at ¶65]. In addition, Calace affirms that he does not
remember having seen Investigator Harris’s Summary of Investigation memo
prior to making the decision to discharge Mr. Miley, nor did he consider it in
making the termination decision, assertions that Mr. Miley does not deny. [Id. at
¶67].
Calace’s termination letter to Miley clearly sets forth the reasons for his
decision to terminate the plaintiff, which mirror his affirmations in this case. In
the “Findings and Decision” section of the letter, Calace concluded as follows:
St. Vincent’s Medical Center records clearly reflect the
information that you provided to both Triage and the treating
physician as the history of your illness was that you had a
fight. First, you reported to Triage that you were injured in a
fight a couple of days prior, which would have been on
September 20, 2011. Similarly, you told the physician that you
had been in a fight one week ago and were punched in the left
rib.

18

[Dkt. 54-2, Exh. E, Termination Letter, p.33/37]. Calace then explained the
credibility issues he found with Miley’s explanation as follows:
In order to determine that the injury occurred at work, you
would have the employer believe that you went to the
Emergency Room on September 22, 2011, were misquoted by
a trained professional in Triage who failed to take down
anything that you actually told her for that purpose regarding
the nature of your injury and the reason for your visit and,
further, that she actually took down as a quote from you for
that purpose misinformation from a casual conversation that
you were having with your former girlfriend about a fight. You
also initially claimed a fight never occurred but later admitted
that one did take place; however, you did not sustain the injury
for which you sought treatment at the hospital.
[Id. at p.33/37 (emphasis in original)]. Calace continued:
You would also have the employer believe that when you were
examined by the physician, you either did not provide a
history or did provide a history but did not include that you
were in a fight one week prior and did not say that you were
punched in the left rib in that fight. You would have the
employer believe that, in fact, this was surmised from the
Triage notes, which actually referenced a fight ‘a couple of
days ago’ and do not even mention a punch. The explanation
does not make sense.
[Id.]. Of Miley’s contention that he was injured while moving a refrigerator on
September 20, 2011, Calace came to the following conclusion:
Although you called your co-worker during the hearing to
provide a statement regarding the nature of the incident, which
you claimed lead to the injury to your left rib, there was a lack
of credibility in this statement. First, it did not appear that
lifting of a refrigerator from the lower level of the stairs to the
top could result in a fractured rib to the person receiving the
refrigerator onto to [sic] the top step. The description of the
push to the refrigerator and lifting of it did not appear to be at
an angle that would land in an individual’s rib, mid-air with an
individual leaned over to hold the bottom of the refrigerator,
which was not on a dolly and while leaning toward the stairs to
bring up the refrigerator.
19

[Id.]. Calace recorded his ultimate determination as follows:
Based upon the information provided in the hearing, the only
logical conclusion to be drawn is that you were injured on or
before September 20, 2011 outside of working at [the Housing
Authority]. You sought treatment at St. Vincent’s Medical
Center on September 22, 2011, at which time you provided
information relevant to your injury for the purpose of
treatment. Both Triage and the physician noted your
statements regarding that the injury to your left rib resulted
from a fight. You also submitted your regular insurance card
for payment. . . .
[Id. at p.34/37].
The Union filed a timely grievance after Miley’s termination, alleging that
his discharge violated Article 7 of the Local 2311 Agreement because it was not
supported by just cause. [Dkt. 54-4, D’s 56(a)(1) Stmt. ¶68]. The grievance was
denied during the preliminary steps of the grievance procedure and was
submitted by the Union for arbitration to the Connecticut State Board of
Mediation and Arbitration, which has completed an evidentiary arbitration hearing
before a tripartite panel of arbitrators. [Id. at ¶¶69-71]. Both sides have since
filed post-hearing briefs and are awaiting a decision. [Id. at ¶71]. The record in
this case does not contain any details of the grievance filed or of the hearing
held.
IV.

Legal Standard
Summary judgment should be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
20

106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,
2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011
WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon
which a jury could properly proceed to find a verdict for the party producing it
and upon whom the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further support in the record,

21

summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604
F.3d 712 (2d Cir. 2010).
V.

Analysis
Miley alleges that his procedural due process rights were violated by the

defendant in two ways: first, the defendant failed to provide him with material
evidence prior to his pre-termination hearing, specifically, alleged statements
from his co-workers regarding the source of his injury and the Summary of
Investigation report prepared by Chartis’s investigator Harris, and second,
Executive Director Calace and Human Resources Director Stewart acted both as
investigators and adjudicators of the termination of his employment, which
preclude their neutrality. [Dkt. 43, Am. Compl., Third Count].
The defendant contends that summary judgment should be granted in his
favor because the alleged rumors as to the source of Miley’s injury merely
triggered the investigation into Miley’s potential worker’s compensation fraud
and did not play any role in Executive Director Calace’s decision to terminate
him; thus, the provision of this information was unnecessary. Similarly, Calace
argues that the one-page Summary of Investigation prepared by Harris contained
no material evidence unknown to Miley that played a role in Calace’s decision to
terminate Miley’s employment, and therefore no violation of due process
occurred. Rather, Calace contends that the critical evidence in his termination
decision was the September 22, 2011 St. Vincent’s medical records, of which
Miley was aware prior to his pre-termination hearing. He also argues that neither

22

he nor Robyn Stewart acted as investigators and, moreover, the law does not
mandate that Miley have been provided with a neutral decisionmaker, thus his
role in Miley’s termination did not violate due process.
The Fourteenth Amendment’s Due Process Clause prevents state officials
from depriving “any person of life, liberty, or property, without due process of
law.” U.S. Const., amend. XIV, sec. 1; see also Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985) (“the Due Process Clause provides that
certain substantive rights—life, liberty, and property—cannot be deprived except
pursuant to constitutionally adequate procedures.”). Determining whether a
plaintiff was deprived of property without due process of law in violation of the
Fourteenth Amendment is a two-step process: first, a court must identify the
property interest involved; second, it must determine whether the plaintiff
received constitutionally adequate process in the course of the deprivation.
O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005).
“A public employee who has a right not to be fired without ‘just cause’ …
has ‘a property interest in his employment that qualifie[s] for the protections of
procedural due process.’ ” Otero v. Bridgeport Hous. Auth., 297 F.3d 142, 151 (2d
Cir. 2002) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991));
see also O'Connor, 426 F.3d at 196 (“it is well established that the state-law
property interest of government employees who may only be discharged for
cause, such as tenured teachers, is a constitutionally protected property interest
for purposes of the Fourteenth Amendment.”). It is undisputed that pursuant to
the collective bargaining agreement between the Housing Authority and the
23

Union, Miley could not be discharged without just cause. Thus, he had a property
interest in his employment protectable by procedural due process.
The adequacy of the procedure provided depends on the “full set of preand post-deprivation procedures available.” O'Connor, 426 F.3d at 197. As to
pre-deprivation process, “[a]n essential principle of due process is that a
deprivation of life, liberty, or property be preceded by notice and opportunity for
hearing appropriate to the nature of the case.” Loudermill, 470 U.S. at 542. The
function of a pre-termination hearing is not to definitively resolve the propriety of
the employee’s discharge; rather, it is “an initial check against mistaken
decisions—essentially, a determination of whether there are reasonable grounds
to believe that the charges against the employee are true and support the
proposed action.” Id. at 545-46; see also Faghri v. Univ. of Connecticut, 621 F.3d
92, 99 (2d Cir. 2010) (same). “The requisite hearing is a minimal one.” Faghri, 621
F.3d at 99. Thus, “[t]he 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.” Otero, 297 F.3d at 151
(internal quotation marks and citations omitted). See also Loudermill, 470 U.S. at
545-46 (“the pretermination hearing, though necessary, need not be elaborate. . . .
In general, something less than a full evidentiary hearing is sufficient prior to
adverse administrative action. . . . The tenured public employee is entitled to oral
or written notice of the charges against him, an explanation of the employer’s
24

evidence, and an opportunity to present his side of the story.”) (internal quotation
marks and citations omitted). Nor must the hearing, in all cases, be conducted
before a neutral decisionmaker. Faghri, 621 F.3d at 99; Locurto v. Safir, 264 F.3d
154, 174 (2d Cir. 2001).
Provision to the employee, however, of merely “some semblance of the
evidence” against him will not suffice, however, as “some semblance” of the
evidence “does not necessarily afford the accused an adequate opportunity to
present her side of the story.” Otero, 297 F.3d at 151. Further, “[m]ere notice of
the charge … is not an explanation of the evidence and does not necessarily
suffice to provide due process.” Id. at 152.
a. Notice of the Charges
The record demonstrates, and Miley does not dispute, that he received
adequate notice of the charges against him, thus satisfying the first prong of the
due process analysis. The notice requirement was satisfied by the February 15,
2012 letter from defendant Calace informing Miley that his termination was under
consideration for falsification of Housing Authority records, defrauding the
Housing Authority Workers’ Compensation Benefit Program, and violation of the
public trust. The letter further informed Miley that notwithstanding the September
28, 2011 note and medical records from his private physician, which recorded
that Miley had sustained a work injury due to which he would be absent from
work, the medical records from Miley’s September 22, 2011 visit to St. Vincent’s
Medical Center indicated that Miley had provided different information regarding

25

the same injury. Miley admits that he received this letter during the February 15
meeting with Stewart notifying him that he would be the subject of a pretermination hearing. This letter satisfies the notice requirement prescribed by
due process.
b. An Explanation of the Employer’s Evidence
Miley asserts that the Housing Authority’s failure to provide Harris’
Summary of Investigation to him constituted a violation of due process because
that report contains four separate pieces of information to which Miley claims he
was denied the opportunity to respond. First, Harris’s Summary of Investigation
notes that Robyn Stewart reported that “there were rumors” that Miley had been
involved in a fight, which prompted the investigation, “but no employee would
give a statement.” [Dkt. 54-3, Exh. G, Harris Memo, p.39/47]. Second, the
Summary notes that Robyn Stewart reported that Miley “has been the subject of
prior workers comp claims and several disciplinary actions.” [Id.]. Third, the
Summary reported that Stewart “had questions regarding the hospital report as
she said St. Vincents [sic] always contacts her regarding a workers comp claim.”
[Id.]. Lastly, investigator Harris noted that he “checked with the Bridgeport Police
department for any reports of a fight involving Miley but could not locate one.”
[Id.].
The defendant argues that Harris’ Summary of Investigation does not
contain any material evidence against Miley of which Miley was unaware and that
played any role in Calace’s decision to terminate Miley, and that while the

26

rumor(s) triggered the investigation into Miley’s workers’ compensation claim,
the entries of the triage nurse and the St. Vincent’s physician from the September
22, 2011 medical records constituted the evidence substantiating the rumors that
Miley had injured his rib in a fight rather than at work and had filed a fraudulent
workers’ compensation claim. Thus, the defendant’s failure to provide Miley with
the Harris report does not constitute a violation of procedural due process. The
Court agrees.
i. Existence of Rumors and their Source
First, Miley contends that had he been provided with the information as to
the rumors regarding his injury at the time of his pre-termination hearing, he
would have been able to question Deputy Executive Director Blanca Carrasquillo,
who had informed Stewart of the rumors, about the source of the rumors in order
to then question the rumor’s credibility. Miley contends that he would then have
been able to question the veracity of the employee or employees perpetuating the
rumors and the employee’s motives and contends that if the source of the rumor
had been his former supervisor, Jose Colon, he could have put forth evidence of
Colon’s animosity toward him. [Dkt. 59-1, P’s Opp. to MSJ, pp.19-20].
Miley, however, misunderstands the nature of the Housing Authority’s duty
to provide him with “an explanation of [its] evidence.” Here, the record indicates
that the rumor circulating at the Housing Authority that Miley had injured his rib
in a fight rather than at work served only to prompt the Housing Authority to
initiate an investigation into Miley’s injury. There is no evidence in the record

27

before this Court that this rumor or any statement of an employee propagating
this rumor played any part in Calace’s decision to terminate Miley or constituted
evidence against Miley, nor does Miley contend that it did. The rumor itself was
not used to terminate Miley, only to initiate an investigation into potential
wrongdoing which then caused actual documentary and inculpatory evidence
against Miley to be discovered. Even if Miley had received a detailed report of the
circulating rumor and the identities of the employee or employees circulating it,
and even if Miley could have proven that these employees had spread the rumor
for solely malicious motives, this knowledge could not erase the existence of the
September 22, 2011 St. Vincent’s Medical Center emergency room records
containing two separate references to the source of Miley’s injuries as a fight and
on which the parties agree that Calace substantially based his decision to
terminate. Miley has cited to no evidence in the record tending to demonstrate
that the decision to terminate his employment was based in any way on the
statements of or a rumor circulated by a particular employee or employees.
Rather, he has conceded that Calace’s decision turned in major part on the
existence of the St. Vincent’s Medical Center records, of which Miley was made
aware prior to his pre-termination hearing and which Calace concluded were
more credible than Miley’s accusations that the medical personnel had,
essentially, falsified the information in the records and which the inquiries Miley
proposes could not have mitigated. In short, informing Miley that rumors existed
could not have led to the discovery of evidence that would tend to prove or
disprove the contents of the September 22, 2011 medical record on which Calace

28

relied in making the termination decision. These rumors simply did not
constitute evidence about which the Housing Authority was required to provide
an explanation. See, e.g., Locurto v. Safir, 264 F.3d 154, 174 (2d Cir. 2001) (“the
letter and the spirit of Loudermill … insisted only that the public employer give its
employee notice of any charges and a chance to hear and respond to any
evidence against him”).
ii. Prior Workers’ Compensation Claims
Miley claims that due process mandated that he have access to the
Summary of Investigation’s statement that Robyn Stewart had reported that Miley
“has been the subject of prior workers comp claims and several disciplinary
actions.” Miley asserts that this information was necessary because it “reflects
that there was animosity towards the Plaintiff simply based on the fact that he
had prior workers’ compensation claims” and would have been necessary for him
to properly raise the issue of bias at his pre-termination hearing. [Dkt. 59-1, P’s
Opp. to MSJ, p.21].
The only claim remaining in this case is that Miley’s procedural due
process rights were violated. Miley’s ability to demonstrate or not demonstrate
bias against him because of prior workers’ compensation claims has no bearing
on his ability to refute the documentary evidence that formed the basis of his
termination: the September 22, 2011 medical records which report, in two
separate places by two separate medical personnel, that Miley indicated his rib
injury was sustained in a fight. No claim for retaliation pursuant to Connecticut’s

29

workers’ compensation statute remains in this case. Due process requires that
Miley receive an explanation of the Housing Authority’s evidence as to the
charges against him, and there is no dispute that Miley was made aware of the
September 22, 2011 medical records which constituted the Housing Authority’s
key evidence against him. Any bias against Miley based on prior workers’
compensation claims would not have altered the outcome of the hearing, which
was based on Miley’s own medical records, nor does the existence of Miley’s
prior workers’ compensation claims constitute evidence of the charges against
him, which were based on the existence of the medical records. The failure to
notify Miley that the Housing Authority was aware that he had filed previous
workers’ compensation claims does not constitute a violation of Miley’s right to
an explanation of the evidence against him. Like the rumors as to the source of
his injury, this information is not evidence of the sort contemplated in Loudermill.
Furthermore, Miley has presented not even a scintilla of evidence that the
factual statement that he had filed previous workers’ compensation claims
necessitates a conclusion that the Housing Authority or Stewart could be found
to have held animosity toward him. Rather, the issue of Miley’s prior workers’
compensation claims was discussed at his pre-termination hearing, in the context
of Miley’s knowledge of the procedures for submitting such a claim. The
termination letter dated March 5, 2012 states that, at the hearing,
Robyn Stewart asked whether [Miley] had given [his] Anthem
card when at Triage [at St. Vincent’s on September 22, 2011].
[He] acknowledged that [he] did. She asked why [he] did not
state that the injury was work related, which [he] had done in
past instances of Workers’ Compensation injuries. [He]
30

responded that [he] had tried to clear up the misunderstanding
several days later.
[Dkt. 54-2, Exh. E, Termination Letter, p.31/37]. Following the pre-termination
hearing, Miley requested and the Housing Authority granted him an additional
five calendar days, through February 28, 2012, to provide further information to
support his position, but neither the plaintiff nor his attorney provided any
additional information by this date. The termination letter indicates that Robyn
Stewart questioned Miley about his knowledge of procedure given his prior
experience with workers’ compensation claims. Miley could have questioned
Stewart about any bias he believed she held at the pre-termination hearing, and
he could have presented evidence after the hearing’s conclusion in the five extra
days afforded him. Therefore, even if Miley were entitled to know that the
Housing Authority was aware of his previous workers’ compensation claims prior
to his termination, he was explicitly informed of this knowledge at the hearing
and was provided additional time to present his employer with support for his
claim, which he failed to do. Further, there is no evidence in the record that
indicates that the notation regarding Miley’s prior claims related to anything other
than his prior knowledge of the procedure surrounding injuries sustained at
work, because he apparently provided his private insurance card during his visit
on September 22, 2011. Finally, the Court cannot discern how Miley could have
reasonably expected his employer not to have known about his employment
history, including his workers’ compensation and disciplinary history.
Lastly, Miley has presented no evidence that Calace factored into his
decision Miley’s prior workers’ compensation claims. Instead, the evidence
31

demonstrates and Miley does not deny that the key evidence against him were
the clinical notations regarding his involvement in a fight as the source of his
injury contained in the September 22, 2011 medical record.
The Housing Authority’s failure to provide Miley with the information in
Harris’s report that he had made prior workers’ compensation claims does not, as
a matter of law, violate Miley’s due process right to an explanation of the Housing
Authority’s evidence. Even if it did, Miley received ample process when this
information was provided to him during his pre-termination hearing and afforded
time to present extra evidence post-hearing.
iii. Contact from St. Vincent’s
Third, Miley claims that he was entitled to the Summary of Investigation’s
statement that Robyn Stewart “had questions regarding the [September 22, 2011]
hospital report as she said St. Vincents [sic] always contacts her regarding a
workers comp claim.” Miley argues that this information would have “been
helpful” because he could have responded by presenting a copy of the St.
Vincent’s Medical Center bill reflecting that his primary insurance was workers’
compensation, which ultimately paid for his hospital visit, and which would allow
Miley to prove that the hospital bill was recorded as a workers’ compensation
claim.
For the same reasons as Miley’s prior arguments fail, so must this claim.
Miley has not explained and the Court cannot discern how Miley’s provision of
this information could possibly have assisted him in refuting the notations in his
32

September 22, 2011 medical records, which formed the basis for Miley’s
termination. Nor has either party asserted that workers’ compensation did not
pay for his September 22 visit to St. Vincent’s. The statement simply
corroborates the fact that workers’ compensation paid St. Vincent’s bill for
treatment of an injury which Calace concluded was not work related. The
statement does not tend to establish the cause of the injury or whether Miley
informed the St. Vincent’s medical staff, as opposed to its billing staff, that he
was in fact injured in a fight rather than at work.
Moreover, the undated bill from St. Vincent’s which Miley claims he could
have provided in response to this statement could not have been issued
concurrently with his treatment on September 22 and thus cannot attest to what
worker’s compensation information, if any, Miley provided to the hospital on the
date of his first visit. The bill reflects payment by workers’ compensation for
Miley’s September 22 visit to St. Vincent’s, and it is unreasonable to assume –
and Miley does not suggest – that workers’ compensation paid immediately upon
his visit to the emergency room on September 22. The bill is undated and it is
thus unclear when this bill was issued to Miley and when it was paid by workers’
compensation.
Notably, the bill reflects payment by Miley’s private insurer – Anthem – and
also reflects a refund to Anthem in the same amount that Anthem paid, as well as
recording payment by workers’ compensation. This suggests that the St.
Vincent’s bill was first paid by Miley’s private insurer and then was refunded
when workers’ compensation assumed responsibility for the claim. This
33

comports with the summary of Miley’s pre-termination hearing provided in his
termination letter. As noted above, the letter reports that
Robyn Stewart asked whether [Miley] had given [his] Anthem
card when at Triage [at St. Vincent’s on September 22, 2011].
[He] acknowledged that [he] did. She asked why [he] did not
state that the injury was work related, which [he] had done in
past instances of Workers’ Compensation injuries. [He]
responded that [he] had tried to clear up the misunderstanding
several days later.
[Dkt. 54-2, Exh. E, Termination Letter, p.31/37]. The letter continues:
[Miley] said that the hospital called you because there was a
discrepancy in the records. After much discussion on this
point, it was clear that because you had been treated a second
time at St. Vincent’s Medical Center [on September 29], at
which time you reported that you had been injured at work and
the injury was to your left rib, the Hospital appeared to have
found a discrepancy in the insurance reporting for the same
injury. It appeared to be at that time that you sought to clear
up the discrepancy. However, there was no indication during
the hearing that at any time between your first and second
visit that you tried to clear up any confusion regarding the
nature of the visit on September 2, 2011.
[Id. at p.31-32/37]. The termination letter later notes that “[Miley] maintained that
the Hospital was aware of [his] claim for Workers’ Compensation coverage and
that [he] had tried to clear it up right away.” [Id. at p.32]. Thus, the record
evidence demonstrates first that, on September 22, 2011, Miley had failed to
provide his workers’ compensation information immediately, and had instead
provided his private insurance information. The record further indicates that
Miley had, at some point after his first visit to St. Vincent’s, resubmitted this claim
through workers’ compensation instead.

34

Second, the record evidence demonstrates that Miley was involved in a
discussion of the issue of payment to St. Vincent’s during his pre-termination
hearing on February 23, 2012. Although he did not present the bill at his pretermination hearing, Miley could have done so in the five days after his hearing,
during which time he was allowed to present additional evidence to support his
position. Miley provided no additional information.
In sum, this bill does not tend to prove or disprove Miley’s innocence of the
charges against him, and does not constitute evidence of which Miley was owed
an explanation. Furthermore, Miley was involved in a discussion of this very
information at his pre-termination hearing and failed to provide this bill in the five
days he was afforded to do so after his hearing. Miley was entitled to no further
process as to this information.
iv. Investigator Competence
Lastly, Miley contends that due process necessitated the provision of
Harris’ Summary of Investigation because Harris indicated that he “checked with
the Bridgeport Police department for any reports of a fight involving Miley but
could not locate one.” Miley argues that because a police report indeed existed,
he could have called into question Harris’ investigatory work and the conclusions
he reached against the plaintiff. The defendant, on the other hand, asserts that
Harris’ competence as an investigator is irrelevant as the key evidence against
Miley – the September 22, 2011 medical record – was not dependent upon the
thoroughness of Harris’ investigation. The Court agrees.

35

Investigator Harris’ competence has no bearing whatsoever on the
evidence against Mr. Miley, and calling into question Harris’ investigatory
prowess would have no effect on the contents of the September 22, 2011 medical
records which formed the bulk of his employer’s evidence against him. Harris’
competence is simply not evidence. In addition, Miley brought to and presented
at his pre-termination hearing the September 15 police report which indicated he
had been involved in a fight on September 13, 2011 and had sustained a lip injury.
Furthermore, Miley does not deny that Calace had not received Harris’s Summary
of Investigation at the time of the pre-termination hearing, nor that Calace did not
consider it in the decision to terminate Miley’s employment. Thus, the record
indicates that Harris’ competence played no part in the defendant’s decision to
terminate Miley. The failure to provide information calling into question Harris’
competence does not constitute a violation of Miley’s right to an explanation of
the Housing Authority’s evidence against him, as Harris’ competence does not
constitute evidence, and would not have altered the outcome of the pretermination hearing.
v. Explanation of the Evidence Provided to Miley
The record in this case clearly indicates that Miley received a fulsome
explanation of the Housing Authority’s evidence and that this explanation
comported with due process requirements. As noted, Calace’s February 15, 2012
letter informing Miley of his pre-termination hearing explained that the basis for
the charges against Miley were Miley’s representations about his injury in the
September 22, 2011 St. Vincent’s medical record. During the pre-termination
36

hearing on February 23, 2012, the key evidence against Miley was the September
22 medical record in which both a triage nurse and the treating emergency room
physician noted that Miley had sustained his rib injury in a fight. Miley admits
that his attorney brought a copy of this medical record to the pre-termination
hearing and admits that Calace’s decision to terminate him was primarily based
on the content of this clinical record. Discussion at the hearing focused on the
notations in the medical record and the absence in this record of any indication
that Miley’s injury was caused at work. Miley maintained throughout the hearing
that he told the triage nurse that he had been injured at work and that this nurse
must have gleaned the information about a fight from a conversation she
overheard Miley having with his daughter in the emergency room and in front of
the nurse, and had then misquoted him in her chart notations. He further
maintained that the emergency room doctor had not asked him how he had hurt
himself, but rather must have surmised the information about a fight from the
triage nurse’s notation, although he could not explain why the nurse’s and the
doctor’s notations had differed. Instead, Miley insisted during the hearing that he
had been injured at work on September 20, 2011 when his coworker had pushed a
refrigerator upwards, striking him in the rib. Discussion during the hearing also
included Miley’s familiarity with the procedures for making workers’
compensation claims.
The termination letter sent by Calace to Miley after his pre-termination
hearing reflects that the main reasons for his termination were Miley’s
representations recorded in the September 22, 2011 medical record from St.
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Vincent’s. As noted previously, this letter recorded that, at the conclusion of the
pre-termination hearing, “there remained no resolution regarding the basis for a
Triage staff member failing to record information allegedly provided by a patient
and, instead, entering erroneous information in quotations. Likewise, there was
no explanation as to how the treating physician would record similar information
if you did not provide it.” [Dkt. 54-2, Exh. E, Termination Letter, p.32/37]. Calace
concluded in the “Findings and Decision” section of the letter that St. Vincent’s
Medical Center records clearly reflect that Miley told both the triage nurse and the
treating physician that he injured his rib in a fight. [Dkt. 54-2, Exh. E, Termination
Letter, p.33/37]. Calace then explained, as quoted above, that he found Miley’s
explanation of these notations to be patently unbelievable. [Id.]. Finally, the
termination letter stated Calace’s conclusion that, based upon the information
provided in the hearing, the only logical conclusion was that Miley was injured on
or before September 20, 2011 outside of work. [Id. at p.34/37].
It is thus clear that the Housing Authority’s primary evidence against the
plaintiff was the September 22, 2011 St. Vincent’s medical record and the clinical
notations about the source of Miley’s injury that both the Triage nurse and the
treating physician attributed to Miley himself. That Miley was unable to convince
the hearing officer that these two independent notations were erroneous has no
bearing on the fact that Miley received sufficient explanation of this evidence
prior to and during his pre-termination hearing. Miley’s feeble attempts to
construe non-evidence in Harris’ Summary of Investigation as material evidence
that could have changed the outcome of the pre-termination hearing also does
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not change this fact. The Housing Authority’s explanation of its evidence more
than meets the requirements for due process.
To the extent that Miley relies on the Second Circuit’s decision in Otero v.
Bridgeport Hous. Auth., 297 F.3d 142 (2d Cir. 2002), Miley’s reliance is misplaced
as the facts in Otero are easily distinguished from those in this case. The plaintiff
in Otero, a public employee of the Bridgeport Housing Authority, was accused of
stealing a toilet from her employer. She was ultimately terminated after several
hearings, but was never informed of the existence of co-worker affidavits or their
contents, including one which stated that the affiant had installed the missing
toilet in the accused employee’s house, and another of which contained three
contradictory stories about the affiant’s handling of the missing toilet. The
Second Circuit observed that had the employee been shown or told of the
contents of the first affidavit, “she might have been able to refute it simply by
showing that the toilet in fact was not installed at her house.” Otero, 297 F.3d at
151. Had the plaintiff been shown the second contradictory affidavit, she could
have pointed out the obvious inconsistencies in the affiant’s statements
underlying the accusation against her. Id. at 152. The Second Circuit concluded
that the plaintiff had essentially only been informed of the charge against her –
that she had stolen a toilet – and had not been given an explanation of the
evidence that supported the charge, which was insufficient to comport with due
process, thus holding that “[m]ere notice of the charge ... is not an explanation of
the evidence and does not necessarily suffice to provide due process.” Id.

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No material exculpatory or culpatory evidence upon which Calace relied
was withheld from Miley. Although Miley contends that he was disadvantaged
because he was not provided with Harris’ Summary of Investigation, nothing in
the Summary of which Miley was unaware constituted evidence against him that
the Housing Authority was obligated to disclose. Nor would any of the
information of which Miley was unaware have been exculpatory or capable of
changing the outcome of the pre-termination hearing. The plaintiff in Otero was
denied access to relevant and material evidence relating to the charge against
her, and was instead provided with mere notice of the charge that she had
allegedly stolen a toilet. While the Otero plaintiff could have provided a response
to this evidence that could have negated the charge against her entirely and
proven her innocence, none of the additional information that Miley claims he
could have provided in response to the Harris report could have exonerated him
or mitigated the damage done by the clinical notations in the September 22, 2011
medical records, which constituted the evidence underlying the charge that Miley
had committed workers’ compensation fraud and belied the public trust. Nothing
in the Summary of Investigation prevented Miley from fully presenting his side of
the story.
Consequently, the record overwhelmingly indicates that Miley was afforded
sufficient explanation of the Housing Authority’s evidence underlying the charges
against him before the hearing. He was also given additional time after the
hearing, at which all of the evidence on which Calace relied was disclosed, to
supplement his evidence. Summary judgment is GRANTED in favor of the
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defendant on Miley’s claim that he was denied an explanation of the evidence
against him. See, e.g., Saltarella v. Town of Enfield, 427 F.Supp.2d 62, 74 (D.
Conn. 2006) (holding that requirement that employee be given an explanation of
the evidence against him was met when employee was given thirty minutes at his
pre-termination hearing to read and review the evidence against him.), aff'd, 227
F. App’x 67 (2d Cir. 2007).
c. Opportunity to be Heard
Although Miley contends that his lack of access to the Harris report
deprived him of an opportunity to be heard, the record indicates that Miley was
afforded a pre-termination hearing that met the requirements of due process. As
noted, Miley was notified of the pre-termination hearing on February 15, 2012. He
requested and was afforded a six-day postponement of the hearing, until
February 23, 2012, to allow for more time to investigate and prepare. At the pretermination hearing, Miley was afforded an opportunity to present evidence in his
favor; he maintained that his rib injury did not result from a fight and presented
the September 15, 2011 police report to support his assertion. The plaintiff was
also afforded the opportunity to call witnesses on his behalf, and Miley called his
co-worker, Miguel Fernandez, to testify about the injury he allegedly sustained
while moving a refrigerator on September 20, 2011. As noted previously, the
parties engaged in detailed discussion of the September 22, 2011 St. Vincent’s
medical records. Following the pre-termination hearing and pursuant to a
request made by the plaintiff’s attorney, defendant Calace granted Mr. Miley and
his attorney an additional five calendar days, through February 28, 2012, to
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provide further information to support Mr. Miley’s position. Neither the plaintiff
nor his attorney provided any additional information by February 28, 2012.
It is well settled that the existence of post-deprivation procedures also
inform the necessary scope of the pre-deprivation process. See Loudermill, 470
U.S. at 546 (“Our holding rests in part on he provisions in [the applicable state]
law for a full post-termination hearing”); Sutton v. Hughes, 3:06CV1333 (CFD),
2009 WL 2208080 (D. Conn. July 22, 2009) (“[t]he availability of post-termination
proceedings is also relevant to the necessary scope of the pre-termination
procedures, regardless of whether they are pursued.”). Miley was entitled to and
indeed utilized the post-deprivation grievance procedures afforded to him
pursuant to the Local 2311 Collective Bargaining Agreement, and has, after the
denial of his grievance, further pursued his claim with the Connecticut State
Board of Mediation and Arbitration. Miley was afforded a full evidentiary hearing
before a tripartite panel of arbitrators. Miley does not contend that these postdeprivation procedures failed to meet the requirements of due process.
Consequently, these pre- and post-deprivation procedures have more than
met the limited requirements for Miley to have an opportunity to be heard prior to
the deprivation at issue.
d. Unbiased Decision-Maker
Miley also contends that his due process rights were violated because he
was denied access to a hearing before a neutral arbitrator and the hearing
officers at his pre-termination hearing performed the dual functions of advocates
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and adjudicators. In support, Miley asserts that Nicholas Calace and Robyn
Stewart performed both investigative and decision-making duties. Although
Miley fails to explain this argument further, he has cited to the Notice of PreTermination Hearing letter signed by Calace and delivered to Miley on February
15, 2012, and to the Notice of Termination letter signed by Calace on March 5,
2012. [Dkt. 59-1, P’s Opp. to MSJ, pp. 30-31]. The defendant argues that neither
Stewart nor Calace performed dual functions and that, even if they did, Miley was
not entitled to a hearing before an impartial decision-maker. Miley’s argument
must fail.
The Second Circuit has held that a neutral adjudicator is not “a necessary
component of due process at a pre-termination hearing” of a public employee
where the employee is afforded, “subsequent to his termination, a full adversarial
hearing before a neutral adjudicator.” Locurto v. Safir, 264 F.3d 154, 174 (2d Cir.
2001). The Locurto court enunciated two reasons for its conclusion:
First, such a requirement would run contrary to the letter and
the spirit of Loudermill, which insisted only that the public
employer give its employee notice of any charges and a
chance to hear and respond to any evidence against him. We
fully agree with the view that the costs to the state of
additional pre-deprivation guarantees (in this case, a neutral
adjudicator) outweigh possible benefits to the employee, given
the availability of a full post-deprivation hearing. Second,
every circuit that has addressed this question has reached a
conclusion similar to the one we reach.
Id. (citations omitted) (collecting cases). The Second Circuit has recently
affirmed this conclusion and courts in this Circuit dismiss similar claims where
post-deprivation remedies afford a plaintiff a full adjudicatory hearing before a

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neutral decision-maker. See Leary v. Civil Serv. Empls. Ass'n Region 3, 516 F.
App'x 42, 43 (2d Cir. 2013) (holding that basis of appeal – that pre-termination
hearing did not satisfy due process because hearing officer was biased, having
been appointed and paid for by the employer – was foreclosed by the precedent
in Locurto, in which the court “explicitly rejected a virtually identical argument,
explaining that a pre-termination hearing for public employees does not require a
neutral adjudicator”); Crowley v. Burlington Elec. Dep’t, 2:13-CV-00205-WKS,
2014 WL 237034, at *10 (D. Vt. Jan. 22, 2014) (although a pre-termination hearing
is “possibly the only meaningful opportunity to invoke the discretion of the
decisionmaker prior to termination … a neutral adjudicator is not required in a
pre-termination hearing as long as a full adversarial post-deprivation hearing is
provided”) (internal quotation marks and citation omitted); Jones v. Cnty. of
Westchester, Dep't of Envtl. Facilities, 12 CV 9449 VB, 2013 WL 3305798 (S.D.N.Y.
June 26, 2013) (“[t]he Second Circuit has made clear that ‘a neutral adjudicator is
[not] a necessary component of due process at a pre-termination hearing.’
Because plaintiff's due process claim is based solely on the fact that a neutral
adjudicator did not preside over his pretermination hearing, that claim is
dismissed.”) (citing Locurto, 264 F.3d at 174).
Here, the post-deprivation remedy afforded to the plaintiff included a full
evidentiary hearing before a tripartite panel of arbitrators who the plaintiff does
not claim to have been biased, and in which Miley could have challenged
Stewart’s and Calace’s neutrality. Conn. Agencies Regs, §§ 31-91-1, et seq. Miley
has not disputed the propriety of the procedures afforded him post-termination.
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Accordingly, Stewart’s and Calace’s neutrality is of no consequence and plaintiff
has suffered no deprivation of his due process rights, as he has been provided
and has utilized his adequate post-deprivation hearing procedures. See, e.g.,
Locurto, 264 F.3d 154 (failure to afford neutral adjudicator at pre-termination
hearings for city police officer and city firemen did not violate procedural due
process, given availability of adequate post-deprivation hearing under New York's
Article 78); see also Leary, Crowley, Jones, supra.
However, even if Miley were entitled to be heard by a neutral adjudicator,
there is no evidence in the record to suggest that Stewart or Calace performed
the dual functions of investigation and adjudication that Miley contends. Rather,
the evidence demonstrates that the investigation was conducted by James
Harris, who was employed by the Housing Authority’s workers’ compensation
carrier, Chartis, and that Stewart performed, at most, the role of the prosecuting
official during Miley’s pre-termination hearing, which included confronting Miley
with the evidence against him and questioning Miley. There is no indication that
she made the decision to terminate Miley, and Miley has presented no evidence
demonstrating that she did. Calace, on the other hand, acted as the hearing
adjudicator and possessed the sole authority over the decision to terminate
Miley. Nothing in the record suggests that Calace performed any investigation
into the charges against the plaintiff. The only evidence to which Miley has cited
are the two letters Calace sent to him. The first, which notified Miley of the
charges against him and advised him that he would be the subject of pretermination hearing, does not indicate that Calace performed any investigative
45

function. It demonstrates only that Calace, as the Housing Authority’s Executive
Director, was advised of the evidence against Miley and notified him of the pertermination hearing to which he was entitled. Calace’s second letter, which
notified Miley of his termination and the reasons therefore after his pretermination hearing, explained the evidence against Miley and the conclusions
Calace drew from the evidence, which is precisely the function of a hearing
official. In sum, nothing in the record indicates that the pre-termination or posttermination processes afforded to Miley were not neutral.
Summary judgment is GRANTED in favor of the defendant on this prong of
Miley’s Fourteenth Amendment claim for denial of due process.
VI.

Conclusion
In conclusion, as a matter of law, Miley suffered no deprivation of his due

process rights. None of the information in Harris’ Summary of Investigation to
which the plaintiff claims he was entitled constitutes the Housing Authority’s
evidence as to the charges that Miley falsified records, committed workers’
compensation fraud, or violated the public trust. This information would have
altered the outcome of the hearing in any way and could not have refuted the
evidence against Miley, nor does the record reflect that defendant Calace, who
made the decision to terminate Miley, possessed or used the information that
Miley claims would have made a difference in his case. Nor does any evidence in
the record support Miley’s claim that he was denied a hearing before an impartial

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fact finder and decision maker. Miley received process prior to his termination
that adequately comported with his Fourteenth Amendment right to due process.
For the foregoing reasons, defendant’s Motion for Summary Judgment is
GRANTED. The Clerk is directed to enter judgment in favor of the defendants and
to close the case.
IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: February 7, 2014

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