Green v. Hilliard
Filing
29
ORDER granting 18 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 12/11/2015. (Dearing, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VERONICA GREEN,
Plaintiff,
v.
CASE NO. 3:14-cv-41 (VAB)
JOAN HILLIARD,
Defendant.
RULING ON THE DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Veronica Green, has filed a Complaint against Joan Hilliard, naming her
in both her official and individual capacities as an employee1 of the State of Connecticut.
Am. Compl. ¶1, at Caption, at Prayer for Relief, ECF No. 8. She alleges that Ms. Hilliard
delayed deciding and ultimately denied her permission to access the Connecticut On-Line
Law Enforcement Communications Teleprocessing (“COLLECT”) System. Id. ¶1. As a
result of Ms. Hilliard’s decision, Ms. Green’s former employer, the City of Bridgeport,
refused to rehire her. Id. ¶41.
The Complaint alleges a single procedural due process claim under 42 U.S.C.
§1983. Am. Compl. at First Cause of Action, ECF No. 8. Ms. Green contends that Ms.
Hilliard’s actions deprived her of a property and a liberty interest in access to COLLECT
and in her job with the City without due process in violation of the Fourteenth
Amendment. Id. ¶¶1, 121-26; Opp. Br. 19-23, ECF No. 23. She seeks declaratory and
injunctive relief, compensatory and punitive damages, as well as costs and attorney’s fees
under 42 U.S.C. §1983. Am. Compl. ¶1, at Prayer for Relief, ECF No. 8.
1
Ms. Hilliard retired from her position with Connecticut in April 2014. Def.’s Local Rule 56(a)1 Stmt. ¶2,
ECF No. 18-18.
1
Ms. Hilliard has filed a Motion for Summary Judgment on the only claim in the
case. Mot. for Summ. J., ECF No. 18. For the reasons that follow, the motion is
GRANTED.
I.
STATEMENT OF FACTS2
The City of Bridgeport employed Ms. Green as a police dispatcher from
December 1996 until she was terminated in August 2011. Def.’s Local Rule 56(a)1 Stmt.
¶1, ECF No. 18-18. In this position, Ms. Green was authorized and trained as a
COLLECT user by the State of Connecticut. Id. ¶¶7, 10-11. COLLECT is a compilation
of various databases, state and federal, which contain information that law enforcement
officers need to do their jobs, including arrest records, motor vehicle records, pending
warrants, and other similar kinds of information. Id. ¶¶5-6; Def.’s Ex. D, Hayes Aff. ¶4,
ECF No. 18-5.
During the time relevant to this lawsuit, Ms. Hilliard was a Connecticut employee
whose role was to ensure that Connecticut implemented federal policies governing the
use of national crime databases. Def.’s Local Rule 56(a)1 Stmt. ¶¶2-3, ECF No. 18-18.
She also oversaw the COLLECT system, including system security, authorizing system
users, and training authorized users. Id. ¶4.
To obtain access to COLLECT initially, Connecticut required Ms. Green to
submit a request for certification by an employer, pass a background check, complete a
classroom course, and pass a written test. Def.’s Ex. D, Hayes Aff. ¶7, ECF No. 18-5.
As part of this certification process, prospective users are given copies of and tested on
2
These facts are based on a review of the pleadings, Local Rule 56(a) Statements, and any responses, as
well as exhibits filed by both parties accompanying the Motion for Summary Judgment and related
briefing. Unless noted otherwise, facts described in this section are undisputed or the opposing party has
not pointed to any contradictory evidence in the record.
2
the COLLECT security policy. Id. ¶¶11-12; Def.’s Local Rule 56(a)1 Stmt. ¶11, ECF
No. 18-18; see also Def.’s Ex. C, System Security Policy, ECF No. 18-4. To ensure the
safety of the officers using the system in the field, as well as for other reasons, this
security policy prohibits the use of the system for personal reasons or curiosity. Def.’s
Local Rule 56(a)1 Stmt. ¶¶7, 25, ECF No. 18-18; see also Def.’s Ex. C, System Security
Policy, ECF No. 18-4. Ms. Green was aware of this security policy and of the fact that
she could not share COLLECT information with family members. Def.’s Local Rule
56(a)1 Stmt. ¶¶8-11, ECF No. 18-18.
To maintain access to COLLECT, Connecticut required Ms. Green to participate
in trainings and pass tests on the contents of these trainings at regular intervals. Def.’s
Local Rule 56(a)1 Stmt. ¶7, ECF No. 18-18; Def.’s Ex. C, System Security Policy, ECF
No. 18-4 (noting that COLLECT users must be certified “within the first six months of
employment” and “[r]ecertification is required biennially.”). She was also required to
abide by COLLECT’s security policy. Hilliard Dep. 14:1-17; Def.’s Local Rule 56(a)1
Stmt. ¶7, ECF No. 18-18.
Ms. Hilliard testified that in her tenure with the State of Connecticut, she applied
a “zero tolerance” rule regarding violations of the security policy. Hilliard Dep. 14:1815:5, 20:20-21:8. In evaluating a user for renewed access to COLLECT after a policy
violation, Ms. Hilliard relied on the system’s security policy and information from the
employing law enforcement entity describing the violation. Id. at 14:1-15, 20:11-19.
On August 15, 2011, another COLLECT user and friend of Ms. Green, Margo
Williams, learned that the Bridgeport police had stopped Ms. Green’s son during a drug
investigation. Def.’s Local Rule 56(a)1 Stmt. ¶¶13, 16, ECF No. 18-18; Green Dep.
3
49:7-12. Ms. Williams became aware of the stop when the Bridgeport police sought
information about Ms. Green’s son through COLLECT. Def.’s Local Rule 56(a)1 Stmt.
¶16, ECF No. 18-18.3 Upon learning of the stop, Ms. Williams sent a text message to
Ms. Green asking her to call her. Green Dep. 50:8-11.
During the call that followed, the parties dispute what information Ms. Williams
shared with Ms. Green as well as what Ms. Green did with that information. Ms. Hilliard
contends that Ms. Williams told Ms. Green that the police had stopped her son. Def.’s
Local Rule 56(a)1 Stmt. ¶17, ECF No. 18-18. According to Ms. Hilliard’s version of
events, after the call, Ms. Green called her son and told him that he was under
surveillance and that the police were running his license plate. Id. ¶¶17, 19. Ms. Green
contends that Ms. Williams told her that she should tell her son “to get his ass home,”
without explaining why she wanted Ms. Green to do so or providing any other details.
Id. ¶¶20-21; Pl.’s Local Rule 56(a)2 Stmt. ¶17, ECF No. 24; Green Dep. 50:10-25. After
speaking with Ms. Williams, Ms. Green contends that she called her son and told him to
come home, without providing him with any more information about why she wanted
him to do so. Def.’s Local Rule 56(a)1 Stmt. ¶18, ECF No. 18-18; Green Dep. 57:11-18.
Ms. Green testified that she did not know that the police had stopped her son until he
returned home and that she did not know that Ms. Williams had been at work when she
spoke to her until after the incident occurred. Green Dep. 57:19-58:4, 64:2-7.
On August 18, 2011, the City of Bridgeport suspended Ms. Green without pay
and, ultimately terminated her on August 24, 2011. Def.’s Local Rule 56(a) Stmt. ¶12,
ECF No. 18-18; Def.’s Ex. E, Letter dated Aug. 18, 2011, ECF No. 18-6 (advising Ms.
3
It is also undisputed that Ms. Green’s son “used [her] name” to try to evade a ticket that the officers
wanted to give him at the stop. Def.’s Local Rule 56(a)1 Stmt. ¶21, ECF No. 18-18; Green Dep. 47:18-24.
4
Green that she was suspended without pay “pending a pre-termination hearing”
scheduled for August 22). After a pre-termination hearing, the City sent Ms. Green a
letter explaining that it was terminating her because her “conduct and actions [on] August
15, 2011 represents a violation of” certain City work rules and the “Collect System
Security mandates.” Def.’s Ex. F, Letter dated Aug. 24, 2011, ECF No. 18-7. When the
City terminated Ms. Green, Ms. Hilliard disabled her access to COLLECT at
Bridgeport’s request. Def.’s Local Rule 56(a)1 Stmt. ¶¶27-28, ECF No. 18-18; Def.’s
Ex. J, Letter dated Aug. 23, 2011, ECF No. 18-11 (from Bridgeport’s Chief of Police to
Ms. Hilliard requesting that Ms. Green’s access to COLLECT be “revoked
immediately”).4
Under the Collective Bargaining Agreement governing Ms. Green’s employment
with the City, she and her Union filed a grievance with the Connecticut State Board of
Mediation and Arbitration challenging the termination. Pl.’s Local Rule 56(a)2 Stmt.
¶29, ECF No. 24; Pl.’s Ex. 1, Settlement and Last Change Agreement, ECF No. 24-1.
While this proceeding was pending, on March 29, 2012, Ms. Green, the Union, and the
City entered a settlement agreement in which the City agreed “to reinstate Ms. Green”
provided that she obtained COLLECT certification. Pl.’s Ex. 1, Settlement and Last
Change Agreement ¶¶3, 4, ECF No. 24-1. Specifically, the agreement provides that
Ms. Green agrees that she must provide the Director
of Labor Relations with written proof of her current, valid
certification to use [COLLECT] from the… COLLECT
4
According to Ms. Hilliard, the City suspended and terminated Ms. Green because it believed that she had
shared information from COLLECT with her son, in violation of the strict confidentiality policy governing
access to the database. Def.’s Local Rule 56(a)1 Stmt. ¶¶13-15, ECF No. 18-18. Ms. Green contests that
she misused COLLECT but does not deny that this event caused her termination. Pl.’s 56(a)2 Stmt. ¶¶13,
15-16, ECF No. 24 (“[T]here has never been an administrative and/or judicial finding that she violated the
COLLECT system.”). It is undisputed that the City terminated Ms. Williams for violating COLLECT
security requirements and that Ms. Williams actually violated those requirements. Def.’s Local Rule
56(a)1 Stmt. ¶23, ECF No. 18-18; Green Dep. 64:8-21.
5
Manager prior to her reinstatement. Failure to provide such
current, valid certification within sixty (60) days of
entering into this Agreement, constitutes Ms. Green’s
resignation from her employment with the City, without
further recourse or remedy.
Id. ¶4(a). The agreement did not obligate the City “to provide a positive recommendation
with regards to Ms. Green’s attempts to obtain a valid, current certification.” Id. ¶8.
However, the City also agreed it would not take a negative position on Ms. Green’s
certification and reserved its right to provide information to Connecticut upon request
“with regards to Ms. Green’s certification.” Id. The agreement also required that Ms.
Green submit to a “complete background check” prior to reinstatement and that she
comply with City and COLLECT policies once reinstated. Id. ¶¶4(b)-6, 10. The
agreement provides that failure to comply with its terms, the City’s policies, or engaging
in COLLECT-related misconduct would result in Ms. Green’s termination by resignation.
Id. ¶10.
As discussed above, Connecticut requires that prospective COLLECT users
submit a request from their employer to gain access. After the settlement agreement was
signed, the Chief of the Bridgeport Police refused to request that Connecticut provide Ms.
Green access to COLLECT. Def.’s Local Rule 56(a)1 Stmt. ¶36, ECF No. 18-18; Pl.’s
Ex. 2, Letter dated Apr. 25, 2012, ECF No. 24-2; Pl.’s Ex. 3, Letter dated May 3, 2012,
ECF No. 24-3; Def.’s Ex. L, Letter dated Apr 20, 2012, ECF No. 18-13. Ms. Green
sought relief from the Connecticut State Board of Labor Relations and, on March 15,
2013, the Board ordered the City’s Police Chief to request that Ms. Green be certified as
a COLLECT user. Def.’s Ex. P, In the Matter of the City of Bridgeport and NAGE, Local
RI-200, Case No. MPP-29,885, Decision and Order 8, ECF No. 18-17. The Board
6
concluded that by not requesting that she be certified, the City was breaching the
settlement agreement. Id. at 6.
On May 3, 2013, the Chief of Police sent Ms. Hilliard a letter requesting that Ms.
Green be given access to COLLECT. Def.’s Ex. M, Letter dated May 3, 2013, ECF No.
18-14. In response, Ms. Hilliard sent the Police Chief a letter on June 14, 2013, notifying
him that she was scheduling a “meeting” on June 18 “to allow Ms. Green the opportunity
to be heard and to provide any additional information.” Def.’s Ex. N, Letter dated Jun
14, 2013, ECF No. 18-15. The letter invited Ms. Green and her supervisor to “feel free”
to bring pertinent documents. Id. It also invited the Police Chief to “bring anyone that
[he] fe[lt] [was] needed.” Id. The letter asked the Police Chief to inform Ms. Green and
any other “associated” parties of the date and time of the meeting. Id.
In advance of the meeting, Ms. Hilliard obtained documents relating to the August
15, 2011 incident, including an Investigative Report the City had prepared. Def.’s Local
Rule 56(a)1 Stmt. ¶37, ECF No. 18-18; see also Def.’s Ex. G, City of Bridgeport Office
of Labor Relations Investigative Report dated Aug. 23, 2011, ECF No. 18-8. She also
had attended portions of the original labor grievance hearings. Def.’s Local Rule 56(a)1
Stmt. ¶37, ECF No. 18-18. She did not hear Ms. Green’s testimony at these prior
hearings. Hilliard Dep. 34:23-34:5.
Ms. Green brought her attorney to the meeting, who spoke on her behalf. Green
Dep. 82:13-21, 83:11-16.5 She did not bring any documents or witnesses. Id. at 87:1019. Ms. Green objected to the delay in assessing her suitable for COLLECT access but
did not object before, during, or after the hearing about any other aspect of the procedure
5
Ms. Green testified that Ms. Hilliard asked her if she wanted to bring legal counsel to the meeting. Green
Dep. 87:16-17.
7
Ms. Hilliard provided before filing this lawsuit. Def.’s Local Rule 56(a)1 Stmt. ¶49, ECF
No. 18-18. Ms. Green testified that she wished she had been able to bring documents,
including letters from other individuals, but admitted that she would not have wanted any
witnesses to attend. Green Dep. 84:8-24, 86:15-18, 87:1-9. She also testified that she did
not believe Ms. Hilliard was biased against her. Id. at 89:17-21.
Ms. Hilliard denied Ms. Green’s request for COLLECT access on January 7,
2014. Def.’s Ex. O, Letter dated Jan. 7, 2014, ECF No. 18-16 (from Ms. Hilliard to
Bridgeport’s Chief of Police, informing him that she was denying the request to recertify
Ms. Green for COLLECT access).
II.
STANDARD
Courts must “grant summary judgment, 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 carries the burden of demonstrating
that there is no genuine material dispute of fact by citing to “particular parts of materials
in the record.” Fed. R. Civ. P. 56(c)(1)(A)-(B); Carlton v. Mystic Transp., Inc., 202 F.3d
129, 133 (2d Cir. 2000). A dispute regarding a fact is “‘genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party’” and material if the
substantive law governing the case identifies those facts as material. Williams v. Utica
Coll. Of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v. Am.
Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)); Bouboulis v. Transp. Workers Union
of Am., 442 F.3d 55, 59 (2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
8
In assessing a summary judgment motion, the Court must resolve all ambiguities,
including credibility questions, and draw all inferences from the record as a whole in
favor of the non-moving party. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir.
2010); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). “Only when reasonable minds could not differ as to the import of the
evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991) (citation omitted).
III.
DISCUSSION
Ms. Green has brought a claim under 42 U.S.C. §1983, which creates a cause of
action for money damages for any person who, under color of state law, suffers a
deprivation of his or her constitutional “rights, privileges or immunities.” Ms. Green
claims that Ms. Hilliard has violated her procedural due process rights under the
Fourteenth Amendment of the United States Constitution. In pertinent part, the
Fourteenth Amendment provides that “[n]o State shall… deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, §1.
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process
Clause of the [ ] Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332
(1976).
To survive Ms. Hilliard’s Motion for Summary Judgment, Ms. Green must
demonstrate that a genuine question of material fact exists as to whether (1) Ms. Hilliard
acted under color of state law, and (2) as a result of Ms. Hilliard’s actions, Ms. Green
suffered a denial of her Fourteenth Amendment rights. See Annis v. Cnty. of Westchester,
9
136 F.3d 239, 245 (2d Cir. 1998) (citation omitted). Because Ms. Hilliard was acting in
her position as a state employee, she was acting under color of state law. Accordingly,
the dispositive question that remains is whether Ms. Hilliard deprived Ms. Green of her
Fourteenth Amendment rights.
Ms. Green argues two theories of liability. First, she contends that Ms. Hilliard
deprived her of a constitutionally protected property interest without due process. Opp.
Br. 13-19, ECF No. 23. Second, she argues that Ms. Hilliard deprived her of a
constitutionally protected liberty interest to pursue her profession without due process.
Id. at 19-23. Ms. Green raises this second theory for the first time in opposing summary
judgment.6
In evaluating these theories, the Court must first determine whether a
constitutionally protected property or liberty interest exists. Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 570-71 (1972) (“[T]o determine whether due process
requirements apply in the first place, we must look not to the ‘weight’ but to the nature of
the interest at stake. We must look to see if the interest is within the Fourteenth
Amendment’s protection of liberty and property.”) (citation omitted); Narumanchi v. Bd.
of Trs., 850 F.2d 70, 72 (2d Cir. 1988) (“The threshold issue is always whether the
plaintiff has a property or liberty interest protected by the Constitution.”) (citation
omitted). Second, the Court also must determine whether Ms. Hilliard deprived Ms.
Green of that property or liberty interest. See Local 342, Long Island Pub. Serv.
Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994) (“In order to
sustain an action for deprivation of property without due process of law, a plaintiff must
6
Ms. Hilliard correctly points out that Ms. Green did not articulate this liberty-based theory in her
Complaint.
10
‘first identify a property right, [and] second show that the state has deprived him of that
right.’”) (quoting Mehta v. Surles, 905 F.2d 595, 598 (2d Cir. 1990) (per curiam)).
Finally, if a protected property or liberty interest exists and Ms. Hilliard deprived
Ms. Green of that interest, the Court then may proceed to analyze “what process was due,
and whether the government provided such minimum process.” Looney v. Black, 702
F.3d 701, 706-07 (2d Cir. 2012) (citation omitted) (in the context of a protected property
interest); see also Mathews, 424 U.S. at 332-35 (explaining how to determine what
process is due when a plaintiff has been deprived of a constitutionally protected liberty or
property interest).
As explained further below, the Court finds that Ms. Green has failed to
demonstrate that Ms. Hilliard deprived her of a constitutionally protected property or
liberty interest. Accordingly, summary judgment must be GRANTED.
A. Ms. Green’s Alleged Property Interest
Ms. Green alleges that she has two possible property interests: (1) her access to
the COLLECT system and (2) her job with the City of Bridgeport. Am. Compl. ¶¶12122, ECF No. 8. To determine whether either of these alleged property interests are
protected by the Fourteenth Amendment, the Court must look to state law or
“understandings that secure certain benefits.” Roth, 408 U.S. at 577; see also Looney,
702 F.3d at 706. To qualify as a constitutionally protected property interest, a plaintiff
must show that he has “a legitimate claim of entitlement” to the alleged property interest
as opposed to “a unilateral expectation.” Roth, 408 U.S. at 577. In other words, a
plaintiff may have a constitutionally cognizable property interest if there are “rules or
11
mutually explicit understandings that support his claim to entitlement.” Perry v.
Sindermann, 408 U.S. 593, 601 (1972) (citation omitted).
1. COLLECT Access as Property Interest
Ms. Green suggests in her Complaint that her access to COLLECT is a
constitutionally protected property interest that is akin to a license or certificate allowing
her to pursue her profession. Am. Compl. ¶¶47-50, ECF No. 8; see also Green Dep.
75:2-3 (testifying that her access to COLLECT was enabled by a “NCIC COLLECT
certificate.”).7 Ms. Hilliard denies that access to COLLECT is a license or certificate.
Def.’s Br. 14 n.6, ECF No. 18-18. The Court agrees that such access is not a license or
certificate, but rather is a prerequisite to employment like a background check or a
security clearance. But as will be explained further below, even if access to COLLECT
could be considered a license or certificate, Ms. Green had no constitutionally protected
property interest in such access.
Access to COLLECT is not the type of status or privilege that courts have found
represents a constitutionally protected property interest. As noted above, to constitute a
constitutionally protected property interest, a claim to a benefit or status, in this case
access to COLLECT, must “stem from an independent source” of state or federal law.
Roth, 408 U.S. at 577. Here, there is no statute, regulation, or other “independent” legal
source that gives rise to any property interest on Ms. Green’s part in COLLECT access.
Connecticut state law provides municipal police departments, not specific employees or
7
Contrary to Ms. Hilliard’s argument, Def.’s Br. 15, ECF No. 18-1, Ms. Green challenges both the initial
revocation of her access COLLECT, see Am. Compl. ¶¶20-21, 124, 126, ECF No. 8, as well as Ms.
Hilliard’s failure to reinstate that access, see id. ¶124, 126. Although Ms. Green does not directly address
the initial revocation in her summary judgment briefing, the Court does so because she raises it in her
Complaint.
12
individuals, access to COLLECT.8 Conn. Gen. Stat. §7-281a (“Each municipal police
department shall have access to, and use of, the [COLLECT] System without charge.”)
Thus, a prospective user must have an offer of employment from a law enforcement
agency that is authorized to access COLLECT even to be considered. See Def.’s Ex. C,
System Security Policy, ECF No. 18-4 (“Individuals that are authorized to access
COLLECT must be employed by a law enforcement or a criminal justice agency.”).
In this respect, COLLECT access is unlike the kind of license or certificate that
courts have found to constitute a property interest, because one cannot be considered for
COLLECT access without a job offer from an authorized law enforcement agency.9 A
license or certificate, on the other hand, gives its holder the right to pursue a livelihood or
activity outside of the context of a particular job. See e.g., Bell v. Burson, 402 U.S. 535,
539 (1971) (in the context of the denial of a driver’s license, noting that “[o]nce licenses
are issued… their continued possession may become essential in the pursuit of a
livelihood”); Adoption Servs. Of Connecticut, Inc. v. Ragaglia, 178 F. Supp. 2d 139, 146
(D. Conn. 2001) (“If a plaintiff can assert ‘a legitimate claim of entitlement’ to such a
license, a license affecting one’s right to pursue an occupation may be ‘property’
protected by the Due Process clause.”) (citations omitted).
There also are no regulations or state laws governing how Ms. Hilliard determines
whether to grant or deny municipal employees access to COLLECT.10 The only
guidance that exists to assist Ms. Hilliard in determining whether individuals may access
8
It also provides certain procedures for the public to gain access.
A “certificate” is defined as a “document certifying the bearer’s status or authorization to act in a
specified way.” Black’s Law Dictionary 271 (10th ed. 2014). A “license” is defined as a “privilege
granted by a state or city upon the payment of a fee, the recipient of the privilege then being authorized to
do some act or series of acts that would otherwise be impermissible.” Id. at 1059.
10
Although there are federal regulations that apply to the administration of COLLECT generally, see
generally 28 C.F.R. §§20.20-20.21, they only apply to the state or municipalities acting as employers.
Because Ms. Hilliard never employed Ms. Green, they do not apply to her.
9
13
COLLECT derives from custom or practice of the State. For instance, undisputed record
evidence indicates that, as a matter of practice or custom, prospective COLLECT users
must pass a background check, participate in training, take and pass tests on the substance
of that training, and abide by COLLECT’s security policy. A user’s violation of the
security policy may result in removal of that individual’s access to the database, again as
a matter of custom or practice.
These practices indicate that, in order to gain access to COLLECT, individual
employees like Ms. Green, as a matter of practice or custom, essentially must pass a
background check as well as take training classes and pass a test on their content. Both
of these requirements show that access to COLLECT is not like a license or certificate
and is not the type of status or privilege that can possibly give rise to a constitutionally
protected property interest.
Individuals cannot, as a matter of law, have a constitutionally protected right to
passing a background check. See Dep’t of Navy v. Egan, 484 U.S. 518, 528 (1988)
(holding that as a matter of statutory interpretation, an administrative entity, the Merit
Systems Protection Board, did not have the authority to review a decision revoking or
denying security clearance and noting that “[i]t should be obvious that no one has a
‘right’ to a security clearance. The grant of a clearance requires an affirmative act of
discretion on the part of the granting official.”); see also Hill v. Dep’t of Air Force, 844
F.2d 1407, 1411-12 (10th Cir.) (holding that plaintiff did not have a constitutionally
protected property interest under the Fifth Amendment in obtaining a security clearance
because the granting of a security clearance provided “temporary permission” for access
to “national secrets” and was a discretionary judgment “as to the suitability of the
14
recipient for such access” and “[t]he notion of an individual property right in access to
the nation’s secrets… is utterly inconsistent with those principles.”), cert. denied, 488
U.S. 825 (1988); accord Dorfmont v. Brown, 913 F.2d 1399, 1404 (9th Cir. 1990)
(“There is no right to maintain a security clearance.”), cert. denied, 499 U.S. 905 (1991);
Williams v. Reilly, 743 F. Supp. 168, 172 (S.D.N.Y. 1990) (holding that a plaintiff had no
constitutionally cognizable property right in his security clearance under the Fifth
Amendment).
Similarly, individuals cannot have a constitutionally protected property interest in
a passing grade on an eligibility test. See e.g., Charry v. Hall, 709 F.2d 139, 144 (2d Cir.
1983) (noting that where an applicant fails an examination necessary to the granting of a
license, “he will not have any property interest entitled to due process protection”).
Even if Ms. Green’s access to COLLECT could be construed as a license or
certificate, the Court finds that she did not have a constitutionally protected property
interest in that license or certificate. Whether a plaintiff has a constitutionally cognizable
property interest in a license or certificate turns on how much discretion the licensor has
in making granting, denying, or revoking the same. See Yale Auto Parts, Inc. v. Johnson,
758 F.2d 54, 59 (2d Cir. 1985) (finding no constitutionally protected property interest in a
“certificate of location approval” because the defendants had “wide discretion” in
reviewing applications for such a certificate); see also Spinelli v. City of New York, 579
F.3d 160, 169 (2d Cir. 2009) (noting that no protected property interest exists “where the
licensor has broad discretion to revoke the license”) (citation omitted). The more
discretion a decision maker may exercise in granting, denying, or revoking a license or
certificate, the less legitimate a plaintiff’s expectation is in obtaining or keeping the same.
15
In other words, if a public entity has “substantial discretion” to decide whether to grant a
license, there can be no legitimate claim of entitlement and, therefore, no constitutionally
protected property interest in that license. Sanitation and Recycling Indus., Inc. v. City of
New York, 107 F.3d 985, 995 (2d Cir. 1997).
In this case, there is no statute, regulation or other legal guidance on the standards
Ms. Hilliard should apply in determining whether to revoke, grant, or deny an
individual’s access to COLLECT. Without any such guidance, the decision to grant
COLLECT access is purely discretionary and, therefore, cannot create a constitutionally
cognizable property interest. See Mordukhaev v. Daus, 457 F. App’x 16, 19-20 (2d Cir.
2012) (finding that where the City of New York had “significant discretion” to deny taxi
licenses “based on subjective criteria,” a plaintiff had no property interest in an ungranted taxi license); Fresh Start Substance Servs., LLC v. Galvin, 599 F. Supp. 2d 279,
283-84 (D. Conn. 2009) (holding that plaintiff lacked a property interest in a license to
operate a methadone clinic because the licensor exercised “its judgment and discretion”
in determining whether to grant the license); see also Allocco Recycling, Ltd. v. Doherty,
378 F. Supp. 2d 348, 371-72 (S.D.N.Y. 2005) (finding that the amount of discretion that a
license grantor possessed in denying permits was “too uncertain to support a
constitutionally protected property interest”).
Accordingly, for many reasons, Ms. Green has no constitutionally protected
property interest in access to COLLECT.
2. Job with Bridgeport as Property Interest
Ms. Green also argues that her job with the City of Bridgeport constitutes a
constitutionally protected property interest based on her settlement agreement, which she
16
contends provides her with a genuine expectation that her job would be restored. Opp.
Br. 13-14, ECF No. 23. She further argues that she had a property interest in her
employment with the City of Bridgeport because the City’s right to terminate her under
the settlement agreement was limited to “good cause.” Opp. Br. 13, ECF No. 23. The
Court disagrees.
Applicants for government jobs generally do not have a property interest in the
positions they seek unless they can demonstrate a legitimate claim of entitlement to the
position. MacFarlane v. Grasso, 696 F.2d 217, 221-22 (2d Cir. 1982) (“Ordinarily, an
applicant for government employment does not have a property interest in the position he
seeks.”). Similarly, a current public employee may have a property interest in continued
employment if the employee cannot be discharged absent “just cause.” Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) (finding that a collective bargaining
agreement gave rise to a constitutionally protected property interest because the
agreement “guaranteed that [the plaintiff] could not be fired without just cause”).
However, a public employee lacks a constitutionally protected property interest in
continued employment if such employment is “probationary” or contingent on meeting
certain requirements or prerequisites, such as passing a background check. See Russell v.
Hodges, 470 F.2d 212, 216-17 (2d Cir. 1972) (finding that a trainee whose employment
was “specifically conditioned on his being able to pass the physical examination at the
end of the training period” did not have a constitutionally protected property interest in
his continued employment); Nastahowsky v. Bd. of Educ. of Greenwich, No.
3:12cv105(WWE), 2013 WL 3824271, at *3 (D. Conn. July 23, 2013) (finding no
constitutionally protected property interest where an public employee’s employment was
17
“probationary” and he failed a background check after he was hired); Foxworth v.
Pennsylvania State Police, 228 F. App’x 151, 152-55 (3d Cir. 2007) (finding that a state
trooper applicant who received a job offer conditional on him passing an investigation of
his criminal history had no constitutionally protected property interest in that job).
In this case, the settlement agreement conditioned Ms. Green’s offer of
employment on her re-obtaining access to COLLECT. The agreement did not guarantee
that Ms. Green would be approved for COLLECT access, nor did it obligate Ms. Hilliard
to act in any way with respect to Ms. Green’s application to access COLLECT. Indeed,
neither she nor any representative of the State of Connecticut was party to the settlement
agreement. The agreement, therefore, did not render Ms. Green’s employment secure or
certain but rather hinged it on a contingency. The existence of this contingency renders
her claim to her job with the City too unilateral or insufficiently legitimate to constitute a
constitutionally protected property interest. See Dorfmont, 913 F.2d at 1404 (finding no
due process claim because plaintiff had “no entitlement to continued employment at a job
that requires a security clearance”). The fact that the settlement agreement limited the
circumstances in which Ms. Green could be terminated is irrelevant to this inquiry,
because she had not yet fulfilled the preconditions that enabled the City to rehire her
under the agreement.
B. Ms. Green’s Alleged Liberty Interest
Ms. Green also argues in opposing summary judgment that Ms. Hilliard deprived
her of a protected liberty interest to pursue her chosen profession. Opp. Br. 19, ECF No.
23. She argues that Ms. Hilliard has permanently banned her from accessing COLLECT
18
and, therefore, that she cannot work for any entity as a police dispatcher. Id. at 21. This
argument is rejected for two reasons.
First, Ms. Green raises this theory too late for the Court to consider it. Her
Complaint does not refer to a liberty interest. She raises this theory for the first time in
opposing summary judgment. Accordingly, the Court cannot consider it. See Lyman v.
CSX Transp., Inc., 364 F. App’x 699, 701-02 (2d Cir. 2010) (affirming district court’s
decision not to consider claims raised for the first time in opposition to summary
judgment) (citing Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) and
Syracuse Broad. Corp. v. Newhouse, 236 F.2d 522, 525 (2d Cir. 1956)); Casseus v.
Verizon New York, Inc., 722 F. Supp. 2d 326, 344 (E.D.N.Y. 2010) (“[C]ourts generally
do not consider claims or completely new theories of liability asserted for the first time in
opposition to summary judgment.”) (collecting cases).
But even assuming the liberty interest arguments were timely, Ms. Green has
failed to show that she has a constitutionally protected liberty interest in COLLECT
access or her job with the City of Bridgeport. “A liberty interest protected by the Due
Process Clause may arise from two sources—the Due Process Clause itself and state
law.” Purnell v. Lord, 952 F.2d 679, 684 (2d Cir. 1992) (citations omitted). The Second
Circuit has recognized the existence of a constitutionally protected liberty interest in
pursuing one’s chosen profession free from governmental inference. See Donato v.
Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (2d Cir. 1996) (“[O]ne of the
many freedoms [liberty] encompasses is the freedom ‘to engage in any of the common
occupations of life.’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). However,
such a right is not implicated in this case.
19
“[I]t is well established that the denial, suspension, or revocation of a security
clearance cannot form the basis of a due process claim.” Al-Kaysey v. L-3 Servs., Inc.,
No. 11-CV-6318(RRM)(LB), 2013 WL 5447830, at *5 (E.D.N.Y. Sept. 27, 2013)
(collecting cases). The denial of Ms. Green’s access to COLLECT does not implicate a
constitutionally protected liberty interest because it does not completely preclude her
from pursuing a given profession. Ms. Green concedes in her own briefing that the
Constitution does not protect or recognize a liberty interest in a particular job, but rather
only in one’s ability to pursue a chosen profession. Opp. Br. 21, ECF No. 23; accord
Braswell v. Shoreline Fire Dep’t., 622 F.3d 1099, 1103 (9th Cir. 2010) (noting that to
establish a violation of a liberty interest to work in a particular profession, “Plaintiff must
show that his dismissal ‘destroyed [his] freedom to take advantage of other employment
opportunities’ and that, because of the dismissal, it is ‘virtually impossible for [him] to
find new employment in his chosen field.’”) (quoting Engquist v. Or. Dept of Agric., 478
F.3d 985, 998 (9th Cir. 2007) (alterations in the original)); Conrad v. Cnty. of Onondaga
Examining Bd. for Plumbers, 758 F. Supp. 824, 828 (N.D.N.Y. 1991) (noting that “a
person is not deprived of ‘liberty’ when he or she is denied one job but remains as free as
before to seek another” and that a liberty interest might be implicated where a rejection
“had the practical effect of precluding [a plaintiff] from working in [his] chosen career,
and not simply from filling a particular job”) (citation omitted).
Here, Ms. Green has shown that in this particular instance, she failed to regain her
former job at the City of Bridgeport. But she has failed to show that she will be unable to
secure a job as a police dispatcher at any law enforcement agency. Ms. Hilliard testified
that Ms. Green’s conduct resulted in a denial of her access to COLLECT in this particular
20
instance. While she also testified that she applied a “zero tolerance” rule to COLLECT
policy violations, she no longer works for the State of Connecticut. Mr. Hayes has not
testified that Ms. Green is permanently banned from accessing COLLECT or that he will
apply such a “zero tolerance” rule. There also are no policies, guidelines or statutes that
require Connecticut to ban Ms. Green from the system permanently.
Moreover, the record is devoid of evidence indicating that Ms. Green sought to
obtain a job at another law enforcement agency and failed to do so. Ms. Hilliard testified
that the decision of another law enforcement agency to hire someone who had violated a
COLLECT policy while employed by a different law enforcement agency was at their
discretion and not hers. She testified that, in such a situation, the law enforcement
agencies would discuss the violation and decide whether to employ that individual.
Hilliard Dep. 38:2-39:4 (“when someone loses her access to COLLECT, if they go to
another police department, that police department will normally notify or contact the
police department that they left, and it’s between those two entities that they discuss any
past inciden[t]s or things like that.”). She also testified that she had never had this
situation occur and was not sure how she would handle it. Id. at 39:5-40:7. Thus, even
construing all reasonable inferences in Ms. Green’s favor, the Court can only conclude
that it is unknown whether Ms. Green could be hired by another law enforcement agency
in Connecticut. The law requires more certainty that Ms. Green is barred from her
profession permanently to create a constitutionally protected liberty interest.
Because Ms. Green has no liberty interest in accessing COLLECT, she cannot
have a liberty interest in a job requiring such access. See Dorfmont, 913 F.2d at 1403 (“If
there is no protected interest in a security clearance, there is no liberty interest in
21
employment requiring such clearance.”) (under the Fifth Amendment); Chesna v. U.S.
Dep’t of Defense, 850 F. Supp. 110, 119 (D. Conn. 1994) (“Inasmuch as the petitioner
has no entitlement to a security clearance, the petitioner cannot claim that he has a right
to his current employment” that required that clearance) (under the Fifth Amendment).11
IV.
CONCLUSION
For all of the reasons noted above, Ms. Green has failed to show that Ms. Hilliard
deprived her of a constitutionally protected liberty or property interest. Because “[t]he
requirements of procedural due process apply only to the deprivation of interest
encompassed by the Fourteenth Amendment’s protection of liberty and property,” Ms.
Hilliard owed Ms. Green no process. Roth, 408 U.S. at 569. Therefore, Ms. Hilliard’s
Motion for Summary Judgment, ECF No. 18, is GRANTED. The Clerk is directed to
enter judgment for the Defendant and close the case.
SO ORDERED at Bridgeport, Connecticut this 11th day of December 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
11
Ms. Green does not explicitly claim in her brief or Complaint that Ms. Hilliard’s actions deprived her of
a constitutionally protected interest in her reputation, also known as a stigma plus claim. However, to the
extent she intended to raise such a claim, it must fail. Courts have recognized that reputational harm (the
stigma) caused by a government actor can substantiate a procedural due process claim if “coupled with the
deprivation of some tangible interest or property right (the plus), without adequate process.’” Segal v. City
of New York, 459 F.3d 207, 212 (2d Cir. 2006) (citation and internal quotation marks omitted)). As noted
above, the record does not indicate that Ms. Green is unable to obtain any government job in the law
enforcement field as a result of Ms. Hilliard’s actions. Accordingly, she cannot have a stigma plus claim.
See O’Neill v. City of Auburn, 23 F.3d 685, 692-93 (2d Cir. 1994) (to sustain a stigma plus claim,
“governmental allegations” must “go ‘to the very heart of [the employee’s] professional competence’ and
threaten to ‘damage his professional reputation,’ significantly impeding his ability to practice his
profession.”) (citations omitted and alteration in original); see also Skiff v. Colchester Bd. of Educ., 514 F.
Supp. 2d 284, 296-97 (D. Conn. 2007) (granting summary judgment on a stigma plus claim because none
of defendant’s statements created “a roadblock to future employment”); Federico v. Bd. of Educ. of Pub.
Schs. of Tarrytowns, 955 F. Supp. 194, 200-01 (S.D.N.Y. 1997) (“to recover on his [stigma plus] due
process claim, plaintiff must demonstrate not only that he has had difficulty finding employment but that
such difficulty resulted from the stigma placed upon him by defendants” and granting summary judgment
because plaintiff “adduced no evidence… setting forth the steps that he has endeavored to take to secure
employment since his termination.”).
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