Sweeney v. Enfield Board of Education
Filing
41
The EBE's motion for summary judgment 30 is GRANTED. The Court GRANTS the EBE's motion 31 to seal its Memorandum of Law in support of its Motion for Summary judgment, Local Rule 56(a)1 Statement and Exhibits A, B, C, E, G, J, K, L, M, N, O, Q, R and Z. The Clerk is directed to close this case. Signed by Judge Michael P. Shea on 8/18/16. (Tegeler, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SEAN SWEENEY,
No. 3:14-cv-01511 (MPS)
Plaintiff,
v.
ENFIELD BOARD OF EDUCATION,
Defendant.
MEMORANDUM OF DECISION
Plaintiff Sean Sweeney, a high school teacher, brought this action against the Enfield
Board of Education (“EBE”). The EBE now moves for summary judgment on the only
remaining claim: that the EBE violated Sweeney’s substantive and procedural due process rights
under the Fourteenth Amendment of the U.S. Constitution by suspending him from his
employment, including a 20-day suspension without pay (Count Two), following an inquiry into
whether he had made inappropriate remarks to students.1 (ECF No. 30.) For the reasons set forth
below, the Court GRANTS the EBE’s motion for summary judgment.
I.
Factual Background2
Sweeney’s complaint alleges that the 20-day suspension also violates the Connecticut
Constitution. To the extent that it is not abandoned, the Court declines to exercise supplemental
jurisdiction over Sweeney’s state law claim. See United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (“[I]f the federal claims are dismissed before
trial ... the state claims should be dismissed as well.”); 28 U.S.C. § 1367(c)(3).
1
The following facts are from parties’ Local Rule 56(a) Statements and the documents cited
therein and are undisputed unless otherwise stated.
2
Since August 2001, Sweeney has been employed by the EBE as a tenured high school
social studies teacher at Fermi High School. (Defendant’s Local Rule 56(a)1 Statement, ECF No.
33 (“Def.’s L.R. 56(a)1 Stmt.”) ¶¶ 1-3; Plaintiff’s Local Rule 56(a)2 Statement, ECF No. 39
(“Pl.’s L.R. 56(a)2 Stmt.”) ¶¶ 1-3.) Sweeney is a member of the Enfield Teacher’s Association
(“ETA”) and subject to the collective bargaining agreement (“CBA”) between the ETA and the
EBE. (Def.’s L.R. 56(a)1 Stmt. ¶ 4; Pl.’s L.R. 56(a)2 Stmt. ¶ 4.) The CBA provides that “No
teacher shall be suspended . . . without just cause. A teacher suspended . . . as a disciplinary
matter shall receive advanced notice of the suspension . . . and shall be entitled to receive a
specific statement of reasons in writing and have representation from the [ETA].” (Def.’s L.R.
56(a)1 Stmt. ¶ 5 (citations omitted); Pl.’s L.R. 56(a)2 Stmt. ¶ 5.) The CBA also contains a fourstep grievance procedure. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 6-7; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 6-7.) Level
One of the grievance procedure “is to the Principal or immediate supervisor; Level Two is to the
Superintendent; Level Three is to the Board; and Level Four is to an Impartial Arbitration
conducted by the American Arbitration Association, the decision of which is binding.” (Def.’s
L.R. 56(a)1 Stmt. ¶ 7; Pl.’s L.R. 56(a)2 Stmt. ¶ 7.) Only the ETA may bring a grievance to
impartial arbitration at Level Four. (Def.’s L.R. 56(a)1 Stmt. ¶ 8; Pl.’s L.R. 56(a)2 Stmt. ¶ 8.)
A. Earlier Incidents
Sweeney admits that the EBE subjected him to discipline in two instances prior to the
instance that triggered this lawsuit (Pl.’s L.R. 56(a)2 Stmt. ¶ 9), but he generally denies the
conduct that the EBE attributes to him that resulted in the two prior instances of discipline. (Id.
¶¶ 11-13.) According to the EBE, in 2012 Student A reported to his guidance counselor that
when another student asked Student A “how’s your face,” Sweeney stated, “well, it’s killing
me.” (Def.’s L.R. 56(a)1 Stmt. ¶ 12.) Student A later gave a statement confirming that Sweeney
2
made this comment. (Id. ¶ 13.) According to the EBE, when school administrators asked,
Sweeney neither confirmed nor denied making the statement to Student A and admitted that he
used profanity in his classroom. (Id. ¶ 14.) Sweeney, however, denies ever making such a
statement to Student A, states that “Defendant has not produced the statement that is referred to,”
and denies that he used profanity. (Pl.’s L.R. 56(a)2 Stmt. ¶¶ 12-14 (citing Sweeney Aff. ¶ 5).)
Sweeney says that it was his co-teacher, the now-retired Kenneth Lessard, who said “well, it’s
killing me.” (Def.’s L.R. 56(a)1 Stmt. ¶ 15; Pl.’s L.R. 56(a)2 Stmt. ¶ 15.)
The EBE states that someone complained to school administrators that Sweeney had
referred to Student B, who is African American, as his “black brother” and his “brother from
another mother.” (Def.’s L.R. 56(a)1 Stmt. ¶ 16.) Sweeney denies that there was ever such a
complaint, as he never received notice of one. (Pl.’s L.R. 56(a)2 Stmt. ¶ 16.) Sweeney admits
that he called Student B his “black brother” and that Student B called Sweeney his “white
brother” and his “brother from another mother.” (Def.’s L.R. 56(a)1 Stmt. ¶¶ 17-18; Pl.’s L.R.
56(a)2 Stmt. ¶¶ 17-18.) Sweeney denies that he ever agreed with school administrators that his
comments to Student B were inappropriate and denies that he ever apologized for the events
involving Student A and Student B. (Def.’s L.R. 56(a)1 Stmt. ¶¶19-20; Pl.’s L.R. 56(a)2 Stmt. ¶¶
19-20.) Sweeney admits that he “expressed regret that his actions were misconstrued” and that
school administrators issued him a letter of discipline as a result of the incidents involving
Students A and B. (Def.’s L.R. 56(a)1 Stmt. ¶¶20-21; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 20-21.) Sweeney
“did not grieve this letter of discipline.” (Def.’s L.R. 56(a)1 Stmt. ¶ 22; Pl.’s L.R. 56(a)2 Stmt. ¶
22.)
In March of 2013, Sweeney was the girls’ softball coach, and Student C was on the junior
varsity softball team. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 24-26; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 24-26.)
3
During that month, school administrators received a complaint from the mother of Student C
regarding a text message that Sweeney had sent to Student C. (Def.’s L.R. 56(a)1 Stmt. ¶ 23;
Pl.’s L.R. 56(a)2 Stmt. ¶ 23.) Sweeney admits that, on November 30, 2012, at 3:47 p.m., he sent
a text to Student C on her mother’s cell phone that stated: “Sing along... foreeeeeverrr
aloooone..foreeeeeverrr aloooooone.” (Def.’s L.R. 56(a)1 Stmt. ¶ 30; Pl.’s L.R. 56(a)2 Stmt. ¶
30.) The EBE states that the phrase “forever to be alone” was used by students to refer to
unattractive girls and boys and indicated that they would never find a partner. (Def.’s L.R. 56(a)1
Stmt. ¶ 29.) Sweeney denies this. (Pl.’s L.R. 56(a)2 Stmt. ¶ 29.) He asserts that the “text was sent
as a joke in response to several texts sent by the student” to him and that “[t]he message was sent
in reference to a comment made by several of the girls that . . . Sweeney was also part of the
‘Forever Alone Club.’” (Pl.’s L.R. 56(a)2 Stmt. ¶ 30.) Defendant states that Student C’s mother
discovered the message on March 26, 2013, and reported it to the Defendant. (Def.’s L.R. 56(a)1
¶ 32.) Sweeney denies that it was possible that the mother could have discovered the message on
March 26, 2013, because the message was sent on November 30, 2012. (Pl.’s L.R. 56(a)2 Stmt. ¶
31.) Sweeney admits that school administrators placed him on paid administrative leave,
effective March 26, 2013, pending investigation into the allegations surrounding his text message
to Student C, and that his duties as softball coach were suspended during that time. (Def.’s L.R.
56(a)1 Stmt. ¶¶ 33-34; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 33-34.) Sweeney denies that an investigation
was ever conducted, but admits that Christopher Drezek, Deputy Superintendent of Enfield
Public Schools (Def.’s L.R. 56(a)1 Stmt. ¶ 111; Pl.’s L.R. 56(a)2 Stmt. ¶ 111), interviewed him
regarding the text message. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 35-36; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 35-36.)
Sweeney also admits that he was suspended for five days without pay as a result of this incident
4
and did not grieve the discipline. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 40-41; Pl.’s L.R. 56(a)2 Stmt. ¶¶
40-41.)
B. Incident of June 12, 2013
Sweeney admits that, on June 11, 2013, six boys— AK., A.C., J.J. C.C., A.M., and
N.K.—left trash underneath their lunch table and Sweeney cleaned it up. (Def.’s L.R. 56(a)1
Stmt. ¶ 42; Pl.’s L.R. 56(a)2 Stmt. ¶ 42.) The EBE asserts that, according to “reports,” Sweeney
approached the five boys on June 12, 2013, “called himself and the boys ‘dumb asses,’ and told
them that if they did not clean up that day, June 12, 2013, someone would be ‘dead.’” (Def.’s
L.R. 56(a)1 Stmt. ¶ 43.) Sweeney denies this account. (Pl.’s L.R. 56(a)2 Stmt. ¶ 43.) Sweeney
admits that “A.K. reported [that Sweeney made] this [statement] to his parents, and his father,
T.K., sent an email to Marilyn Cressotti, the Assistant Principal of Fermi, that afternoon, June
12, 2013,” and after receiving the e-mail “Cressotti contacted T.K. and set up a meeting . . . with
him the following morning, June 13, 2013 at 9:00 a.m.” (Def.’s L.R. 56(a)1 Stmt. ¶¶ 44-45; Pl.’s
L.R. 56(a)2 Stmt. ¶¶ 44-45.)3 During the meeting, A.K. wrote out the statement that Sweeney
Although Sweeney’s Local Rule Statement stated that he “lack[ed] sufficient knowledge to
admit or deny” these facts stated by the Defendant (Pl.’s L.R. 56(a)2 Stmt. ¶¶ 44-45), the Court
considers such statements admitted. See Hogan v. State of Connecticut Judicial Branch, 220 F.
Supp. 2d 111, 115 (D. Conn. 2002) (“A party responding to a motion for summary judgment
presumably has conducted discovery and should have a reasonable, factually supported basis to
admit or deny any factual assertions made in the case. Therefore, the court considers admitted
any statement with which the plaintiff lacks sufficient knowledge to agree or disagree.”)
(citations omitted). Even if the Court were to interpret Sweeney’s statements as claims that these
events did not occur, “he has come forth with no evidence beyond his own assertions to support
this contention.” Id; see CT R USDCT L.Civ.R. 56(a)3 (“Each statement of material fact by a
movant in a Local Rule 56(a)1 Statement or by an opponent in a Local Rule 56(a)2 Statement,
and each denial in an 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. . . . [F]ailure to provide specific citations to evidence
in the record as required by this Local Rule may result in the Court deeming certain facts that are
supported by the evidence admitted in accordance with Rule 56(a)1 . . .”).
3
5
had said to him the prior day as: “You guys left the lunch table a mess. I was the dumb ass who
cleaned it up. Maybe today you can act like 6 y[ear] o[lds] instead of 5 y[ear] o[lds]. If you dumb
asses leave the table dirty again someone will be dead tomorrow.” (Def.’s L.R. 56(a)1 Stmt. ¶
47.) Sweeney denies this because it is “not what [he] said” (Sweeney Aff. ¶ 21), but he does not
cite admissible evidence that contradicts Defendant’s assertion that A.K. wrote out such a
statement. (Pl.’s L.R. 56(a)2 Stmt. ¶ 47.)4
C. Initial Inquiry By School Officials
Cressotti met with A.C., J.J., C.C., A.M, and N.K. (Def.’s L.R. 56(a)1 Stmt. ¶ 48; Pl.’s
L.R. 56(a)2 Stmt. ¶ 48.)5 A.C. reported that Sweeney had said: “There were papers on the floor
and you know who picked them up? Not the lunch ladies, not the janitors—me. If I find papers
on the floor again, you guys are dead.” (Def.’s L.R. 56(a)1 Stmt. ¶ 49.) “J.J reported only that the
‘lunch guy’ came over and told them to pick up their trash.” (Id. ¶ 50.) C.C. reported that
Sweeney said, “If I find any more papers under that table today you guys are dead. This dumbass
is who picked it up.” (Id. ¶ 51.) A.M. could not recall anything from the incident. (Id. ¶ 52.) N.K
reported that Sweeney said, “If I have to pick this up again you will be dead or my sorry ass will
be picking them up.” (Id. ¶ 53.) N.K. and C.C. provided written statements similar to their oral
Sweeney also objects to A.K.’s statement on hearsay grounds. This objection is overruled,
however, because the statement is not offered for the truth of the matter asserted. Rather, it is
offered as evidence of its “effect on the hearer – evidence of what Administrators knew
throughout the investigation” (ECF No. 40 at 1 n.1) and to show the basis on which
administrators decided to discipline Sweeney.
4
Although Sweeney’s stated that he “lack[ed] sufficient knowledge to admit or deny this fact”
the Court considers the statement admitted. See footnote 3, supra.
5
6
statements. (Id. ¶¶ 51-53.) Sweeney denies the students’ versions of events. (Pl.’s L.R. 56(a)2
Stmt. ¶ 49-53 (citing Sweeney Aff. ¶¶ 22-24).)6
On June 13, 2013, Cressotti spoke to physical education teacher Mark Dube, who has
lunch duty at the same time as Sweeney. (Def.’s L.R. 56(a)1 Stmt. ¶ 54; Pl.’s L.R. 56(a)2 Stmt. ¶
54.) Dube reported that he had spoken with the boys that day, June 13, and that the boys had said
that Sweeney had “threatened” them. (Def.’s L.R. 56(a)1 Stmt. ¶ 56.) Sweeney denies ever
threatening the students. (Pl.’s L.R. 56(a)2 Stmt. ¶¶ 55-56.)7
Cressotti also spoke to Sweeney on June 13, 2013, in the cafeteria during his lunch duty,
and later that day in her office. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 57-59; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 5759.) Sweeney told Cressotti that on June 11, 2013, the boys had left trash at their table and he
had discussed it with them during lunch on June 12. (Def.’s L.R. 56(a)1 Stmt. ¶ 60; Pl.’s L.R.
56(a)2 Stmt. ¶ 60.) According to Sweeney, he approached the boys at their lunch table and said,
“Listen you guys, you left a mess at lunch. You know who picked it up? Me. I was the dummy
that picked it up. It’s not the lunch ladies’ job or the custodians’ job. You are going to get me
killed by the lunch ladies. If you don’t pick up the trash you will go to the office.” (Def.’s L.R.
56(a)1 Stmt. ¶ 62; Pl.’s L.R. 56(a)2 Stmt. ¶ 62.) Sweeney said that he did not swear at the kids.8
(Def.’s L.R. 56(a)1 Stmt. ¶ 61; Pl.’s L.R. 56(a)2 Stmt. ¶ 61.)
Sweeney also objects to the students’ statements to Cressotti on hearsay grounds. These
objections are overruled. See footnote 4.
6
Sweeney also objects to Dube’s statements to Cressotti on hearsay grounds. These objections
are overruled. See footnote 4.
7
The parties dispute whether this comment was unsolicited. (Def.’s L.R. 56(a)1 Stmt. ¶ 61; Pl.’s
L.R. 56(a)2 Stmt. ¶ 61.)
8
7
On June 14, 2013, T.K. sent another e-mail—this time to Drezek—complaining about
this incident involving his son and Sweeney. (Def.’s L.R. 56(a)1 Stmt. ¶ 64.) Sweeney denies the
truth of the statements in the e-mail. (Pl.’s L.R. 56(a)2 Stmt. ¶ 64.)9 Drezek reported the matter
to the Enfield Police Department and the Department of Children and Family Services. (Def.’s
L.R. 56(a)1 Stmt. ¶ 65; Pl.’s L.R. 56(a)2 Stmt. ¶ 65.)
D. June 14, 2013 Meeting with Sweeney and Further Inquiry
On June 14, 2013, Drezek and Newton met with Sweeney and ETA representative Tod
Couture and explained that they were investigating a parent’s complaint about the events of June
12, 2013. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 66-68; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 66-68.) The EBE states
that, during this meeting, Sweeney was given a chance to provide his side of the story. (Def.’s
L.R. 56(a)1 Stmt. ¶ 69.) Sweeney admits that, at the meeting he: (1) recounted his version of the
story, (2) denied that he had used the word “dumb ass” or stated that “someone will be dead
tomorrow.” (Pl.’s L.R. 56(a)2 Stmt. ¶¶ 70-72.) In his deposition, Sweeney testified that as of the
end of the June 14 meeting, he had told Cressotti and Drezek all that had occurred at the cafeteria
on the day in question. (Sweeney Depo. at 147, 171, 176, ECF No. 38-2 at 24, 46, 63.) 10 At the
9
Sweeney objects to the statements in the e-mail on hearsay grounds. These objections are
overruled. See footnote 4.
10
Even though Sweeney recounted his version of the events of June 12, 2013, at the meeting, he
denies that he was “given a chance to provide his side of the story,” because:
Although Mr. Sweeney was asked questions about what occurred and he verbally
responded, he was not asked to provide a written statement of what occurred or
given questions to respond to in writing so his version of what occurred could be
confirmed and accurate. Notably, the student witnesses were all asked to provide
written statements, but Mr. Sweeney was not. This was done so the defendant
could manipulate what Mr. Sweeney said and not have a record of it. They could
then credit the written statements they had over Mr. Sweeney’s verbal statement.
This is exactly what the defendant has done in this case. Thus, Mr. Sweeney was
8
end of the meeting, Sweeney was placed on paid administrative leave. (Def.’s L.R. 56(a)1 Stmt.
¶ 74; Pl.’s L.R. 56(a)2 Stmt. ¶ 74.)
Drezek interviewed Dube (Def.’s L.R. 56(a)1 Stmt. ¶¶ 76-77; Pl.’s L.R. 56(a)2 Stmt. ¶¶
76-77), and obtained written statements from C.C. and N.K. (Def.’s L.R. 56(a)1 Stmt. ¶ 81.)
Sweeney denies that written statements were taken from C.C. and N.K., denies that they are
accurate, and claims that the statements are inadmissible hearsay. (Pl.’s L.R. 56(a)2 Stmt. ¶ 81.)
Sweeney’s hearsay objections are overruled because the statements are not offered for their truth.
(See footnote 4, supra.) Based on this investigation, “it was determined that” Sweeney had used
the phrase “dumb ass” and stated that “someone would be dead” in his conversation with the
boys at lunch. (Def.’s L.R. 56(a)1 Stmt. ¶ 82.) Sweeney denies this statement as lacking
foundation and because he denies that he said such things, but he cites no admissible evidence to
rebut the statement that this determination was made. (Pl.’s L.R. 56(a)2 Stmt. ¶ 82.)
Sweeney retained an attorney in August 2013 and declined representation by the ETA.
(Def.’s L.R. 56(a)1 Stmt. ¶ 86; Pl.’s L.R. 56(a)2 Stmt. ¶ 86.) The school year ended on June 24,
2013, and Sweeney remained on paid administrative leave until September 2013. (Def.’s L.R.
56(a)1 Stmt. ¶¶ 83-84; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 83-84.) At some point, the EBE offered
Sweeney a “last chance agreement” and a 20-day suspension, which Sweeney declined. (Def.’s
L.R. 56(a)1 Stmt. ¶85; Pl.’s L.R. 56(a)2 Stmt. ¶ 85.)
not allowed to give his version of the incident in a way that was fair and which
could not be used by defendant to later contend Mr. Sweeney changed his story.
(Def.’s L.R. 56(a)1 Stmt. ¶ 69.)
9
E. October 4, 2013 Meeting with Sweeney and Suspension Without Pay
Sweeney received notice from Drezek that there would be a meeting on October 4, 2013,
to discuss his employment and the results of the investigation, and Sweeney attended the
meeting. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 88-90; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 88-90.) The EBE states
that Sweeney was given the opportunity at the meeting to provide information relating to the
allegations. (Def.’s L.R. 56(a)1 Stmt. ¶ 91.) Sweeney denies that he was given such an
opportunity and states that “Drezek was in the process of finishing the typing of the disciplinary
letter when the meeting began so the decision had already been made.” (Pl.’s L.R. 56(a)2 Stmt. ¶
91.) At the meeting, administrators informed Sweeney he was being suspended for twenty school
days without pay, effective October 7, 2013, and would be expected to return to work on
November 5, 2013. (Def.’s L.R. 56(a)1 Stmt. ¶ 92; Pl.’s L.R. 56(a)2 Stmt. ¶ 92.)
F. Post-Suspension Process
On October 24, 2013, Sweeney sent a letter to Drezek indicating that he was grieving the
suspension and waiving his right to union representation. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 94-95;
Pl.’s L.R. 56(a)2 Stmt. ¶¶ 94-95.) Sweeney’s letter included a letter from his attorney, Kevin
Greene, stating, among other things, that the investigation was incomplete, the suspension was
too long, and there was not “just cause” for the suspension. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 96-98;
Pl.’s L.R. 56(a)2 Stmt. ¶¶ 96-98.)
Sweeney received notice on November 4, 2013, that his grievance hearing would take
place on November 12, 2013, at 2:00 pm. (Def.’s L.R. 56(a)1 Stmt. ¶ 102; Pl.’s L.R. 56(a)2
Stmt. ¶ 102.) At the hearing, Sweeney again waived union representation. (Def.’s L.R. 56(a)1
Stmt. ¶ 105; Pl.’s L.R. 56(a)2 Stmt. ¶ 105.) Dr. Jeffrey Schumann, Superintendent of EPS (Def.’s
L.R. 56(a)1 Stmt. ¶ 104), asked Sweeney which section of the CBA had been violated. (Def.’s
10
L.R. 56(a)1 Stmt. ¶ 108.) Sweeney answered by referring to the “just cause” provision and the
letter from Greene. (Pl.’s L.R. 56(a)2 Stmt. ¶ 108.) The EBE states—and Sweeney denies—that
Schumann provided Sweeney an opportunity to state whatever he chose during the hearing, but
that Sweeney declined all such opportunities. (Def.’s L.R. 56(a)2 Stmt. ¶ 110; Pl.’s L.R. 56(a)2
Stmt. ¶ 110.) According to Sweeney, Schumann “did not provide me any opportunity to make
any statements other than to tell him what the grievance was based on.” (ECF 38-1 at 7). On
November 18, 2013, Schumann issued a written response denying the Level 2 grievance because
Sweeney “failed to identify and substantiate a violation of the [CBA].” (Def.’s L.R. 56(a)2 Stmt.
¶ 111; Pl.’s L.R. 56(a)2 Stmt. ¶ 111.)
The ETA’s president, Gray Wanzer, submitted the grievance to the EBE as a Level Three
grievance on December 2, 2013. (Def.’s L.R. 56(a)2 Stmt. ¶ 112; Pl.’s L.R. 56(a)2 Stmt. ¶ 112.)
On December 9, Sweeney received notice that the hearing would be on December 17, 2013.
(Def.’s L.R. 56(a)2 Stmt. ¶ 113; Pl.’s L.R. 56(a)2 Stmt. ¶ 113.) Sweeney requested that the
hearing take place in Executive Session, and he again waived representation by the ETA.
(Def.’s L.R. 56(a)2 Stmt. ¶¶ 116-17; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 116-17.)11 There is no dispute
that the EBE asked Sweeney questions (to which he responded), and he was provided the
opportunity to present his grievance to the EBE (which he did). (Def.’s L.R. 56(a)2 Stmt. ¶¶ 11819; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 118-19.) Specifically, Sweeney testified in his deposition that he
received an opportunity to give his version of events. (Sweeney Depo. at 218-19, ECF No. 38-2
at 105-06). The EBE voted seven to one to deny Sweeney’s grievance, and on December 18,
Paragraphs 116-121 of the Defendant’s Local Rule 56(a)1 Statement refer to “the hearing on
November 12, 2013,” but also refer to “the Board” and the “Level Three grievance.” Thus, it
appears that the November date is in error, and it should refer to the hearing on December 17,
2013, before the EBE.
11
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2013, the chair of the EBE wrote to Sweeney informing him that his Level Three grievance had
been denied. (Def.’s L.R. 56(a)2 Stmt. ¶¶ 121-22; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 121-22.)
Sweeney wrote to Couture on December 23, 2013, and asked that the ETA appeal the
EBE’s denial of his grievance. (Def.’s L.R. 56(a)2 Stmt. ¶ 123; Pl.’s L.R. 56(a)2 Stmt. ¶ 123.)
The ETA notified the EBE on January 30, 2014, that the ETA’s Professional Rights and
Responsibilities Committee had decided not to submit Sweeney’s grievance to arbitration.
(Def.’s L.R. 56(a)2 Stmt. ¶ 125; Pl.’s L.R. 56(a)2 Stmt. ¶ 125.) On February 12, 2014, Attorney
Greene wrote to Drezek and asked him to allow Sweeney “to resolve his grievance though
binding arbitration with the Board of Education through the American Arbitration Association.”
(Def.’s L.R. 56(a)2 Stmt. ¶ 127; Pl.’s L.R. 56(a)2 Stmt. ¶ 127.) The EBE denied the request
through counsel on February 18, 2014, because the CBA provides “that only the ETA, not an
individual teacher, may determine whether a matter is meritorious enough to proceed to
arbitration and, because the ETA ha[d] declined to take the matter to arbitration, the [EBE]
[could not] grant Plaintiff’s request.” (Def.’s L.R. 56(a)2 Stmt. ¶ 128; Pl.’s L.R. 56(a)2 Stmt. ¶
128.)
G. Procedural History of this Case
Sweeney’s complaint originally named both the EBE and the ETA as defendants, and
alleged that: (1) the EBE breached the Collective Bargaining Agreement (“CBA”) with Sweeney
(Count One); (2) the EBE’s issuance of a 20-day unpaid suspension violated Sweeney’s
substantive and procedural due process rights under the U.S. and Connecticut Constitutions
(Count Two); and (3) the ETA breached its duty of fair representation by refusing to submit
Sweeney’s grievance to arbitration. The ETA moved to dismiss Count Three for lack of subject
matter jurisdiction, the Superior Court granted the ETA’s motion, and the ETA was dismissed as
12
a defendant. The EBE then removed the case to federal court and moved to dismiss Count One
for lack of subject matter jurisdiction. This Court granted the motion to dismiss, finding that
Sweeney had failed to exhaust his administrative remedies. See Sweeney v. Enfield Bd. of Educ.,
No. 3:14-CV-01511 MPS, 2015 WL 4722969, at *1 (D. Conn. Aug. 10, 2015).
II.
Legal Standard
Summary judgment is appropriate only when “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 demonstrating that no genuine issue exists as
to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). If the moving
party carries its burden, “the opposing party must come forward with specific evidence
demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654
F.3d 347, 358 (2d Cir. 2011) (citation omitted). An issue of fact is “material” if it “might affect
the outcome of the suit under the governing law.” Konikoff v. Prudential Ins. Co. of America,
234 F.3d 92, 97 (2d Cir. 2000) (citation omitted). “A dispute regarding a material fact is genuine
if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (internal quotation
marks and citation omitted). On summary judgment, a court must “construe the facts in the light
most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir.
2013) (quotation marks and citation omitted).
III.
Discussion
The Due Process clause of the Fourteenth Amendment of the U.S. Constitution provides
that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
13
law . . . .” U.S. Const. amend. XIV, § 1. Section 1983 provides, in relevant part, that “[e]very
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . .
subjects . . . any citizen . . . to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in an action at law.” 42
U.S.C. § 1983. There is no dispute that the EBE is a “person” acting under color of state law for
purposes of 42 U.S.C. § 1983. Sweeney claims that, as a public school employee, he has both a
liberty and a property interest in his employment with the EBE, and he was deprived of those
interests without due process when the EBE suspended him for twenty days without pay.
(Compl. ¶¶ 14-16.)
A. Procedural Due Process
“A procedural due process analysis proceeds with two questions. ‘[T]he first asks
whether there exists a liberty or property interest which has been interfered with by the State; the
second examines whether the procedures attendant upon that deprivation were constitutionally
sufficient.’” Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004) (citing Kentucky Dep’t of Corr.
v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989)).
Defendant concedes, for the purposes of this motion, that Sweeney has a property interest
in his employment, by virtue of the “just cause” provision in the CBA quoted above. Defendant
argues, however that Sweeney does not have a liberty interest in his employment. (Defendant’s
Memorandum in Support of Motion for Summary Judgment, ECF No. 32 (“Def.’s Br.”) at 2023.) In his opposition brief, Sweeney does not contend that he has a liberty interest, and therefore
he abandons that argument. See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (“in the
case of a counseled party, a court may, when appropriate, infer from a party’s partial opposition
that relevant claims or defenses that are not defended have been abandoned.”). Nevertheless, the
14
Court need not decide whether Sweeney had a liberty interest in his reputation because, as shown
below, he received all the process that was due. Segal v. City of New York, 459 F.3d 207, 213 (2d
Cir. 2006) (“the availability of adequate process defeats a stigma-plus claim”).
In determining whether Sweeney received due process, the Court must consider:
(1) the private interest at stake; (2) the risk of an erroneous deprivation of that
interest through the procedures used and the probable value (if any) of alternative
procedures; (3) the government's interest, including the possible burdens of
alternative procedures. While the ultimate conclusion about procedural adequacy
under Mathews turns on the full set of pre- and post-deprivation procedures
available, courts often analyze pre- and post-deprivation procedures separately.
O'Connor v. Pierson, 426 F.3d 187, 197 (2d Cir. 2005) (citing Mathews v. Eldridge, 424 U.S.
319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Ciambriello v. Cty. of Nassau, 292 F.3d 307,
319 (2d Cir. 2002)). “Pre-deprivation procedures are evaluated not only in light of the general
Mathews inquiry, but also in terms of the specific due process principle mandating that a
deprivation of life, liberty, or property be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” O’Connor, 426 F.3d at 197 (citations and internal
quotation marks omitted). “The formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the subsequent
proceedings.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545, 105 S. Ct. 1487, 1495,
84 L. Ed. 2d 494 (1985). Sweeney has a private interest in avoiding suspension of his
employment and in the 20 days of pay of which he was deprived. The EBE has an interest in
quickly and appropriately punishing teachers who it believes have threatened or otherwise made
inappropriate comments to students. Both parties share an interest in “avoiding disruption and
erroneous decisions.” Loudermill, 470 U.S. at 544.
15
1.
Pre-Deprivation Procedures
Sweeney argues that there are genuine issues of fact concerning whether he received
“proper pre-deprivation process.” (Plaintiff’s Opposition to Motion for Summary Judgment ECF
No. 38 (“Pl.’s Opp. Br.”) at 26.) He argues that “it can be inferred from fundamental
deficiencies” in the EBE’s investigation—such as failing to obtain a written statement from
Sweeney or a copy of a related police report—that the EBE acted “with the intent to harm him or
get back at him for prior disciplinary actions.” (Id. at 27-28.) Due process does not give the
plaintiff a right to a particular type of investigation, however, and Sweeney’s conclusory
allegations about the EBE’s intentions are irrelevant to the due process inquiry. See FelicianoAngulo v. Rivera-Cruz, 858 F.2d 40, 43 (1st Cir. 1988) (noting that public employee’s argument
questioning the “true motive” behind his dismissal was “not relevant to the plaintiff’s procedural
due process claim.”) 12
“Because pre-deprivation process serves a limited function [as an initial check against
mistaken decisions], the Constitution mandates only that such process include, at a minimum,
12
Moreover, those allegations are not supported by the record. Sweeney asks the Court to infer
from the two incidents of earlier discipline, and from alleged missteps in the investigation of the
lunchroom incident—such as the taking of written statements from students and not from
Sweeney—that the EBE acted out of animus towards Sweeney and “intended to discipline Mr.
Sweeney regardless of what the investigation revealed.” (ECF No. 38 at 17.) But a court
assessing a summary judgment record is required only to draw reasonable inferences in the nonmovant’s favor; it is not required—or permitted—to make speculative leaps. Kulak v. City of
New York, 88 F.3d 63, 71 (2d Cir.1996) (“conclusory statements, conjecture, or speculation by
the party resisting the motion will not defeat summary judgment”) (internal citations omitted).
Sweeney has pointed to nothing in the record that either the school officials who investigated
him, or the Superintendent who upheld the suspension without pay, or the members of the Board
who voted to uphold the suspension acted out of animus towards him or were seeking to
discipline him “regardless of what the investigation revealed.” At most, the evidence Sweeney
points to—and reasonable inferences drawn in his favor therefrom—suggest that the
investigation and suspension were negligent or sloppy, not that they were effectuated in bad
faith.
16
notice and the opportunity to respond.” O’Connor, 426 F.3d at 198 (citations and internal
quotation marks omitted). A tenured teacher like Sweeney “is entitled to oral or written notice of
the charges against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.” Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495, 84 L. Ed. 2d
494 (1985) (describing process required for pre-termination hearing). “The requisite hearing is a
minimal one designed to serve as an initial check against mistaken decisions,” and is “not
intended to resolve the propriety of the discharge. Faghri v. Univ. of Conn., 621 F.3d 92, 99 (2d.
Cir. 2010) (internal quotation marks and citations omitted). See also Locurto v. Safir, 264 F.3d
154, 174 (2d Cr. 2001) (neutral adjudicator not a necessary component of due process at pretermination hearing for public employee).
According to the undisputed facts, on June 11, 2013, six boys— A.K., A.C., J.J. C.C.,
A.M., and N.K.—left trash underneath their lunch table and Sweeney cleaned it up. (Def.’s L.R.
56(a)1 Stmt. ¶ 42; Pl.’s L.R. 56(a)2 Stmt. ¶ 42.) A.K. reported to his parents that Sweeney made
a statement to the boys on June 12, 2013, calling himself and the boys “dumb asses,” and telling
them that if they did not clean up that day, someone would be “dead.” A.K.’s parents complained
to the school about Sweeney’s statements, and Cressotti set up a meeting with A.K.’s parents on
June 13, 2013. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 44-45; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 44-45.) Cressotti
spoke to Sweeney twice on June 13, 2013, (Def.’s L.R. 56(a)1 Stmt. ¶¶ 57-59; Pl.’s L.R. 56(a)2
Stmt. ¶¶ 57-59), and Sweeney told her that the boys had left trash at their table on June 11, 2013,
and he had discussed it with them during lunch on June 12. (Def.’s L.R. 56(a)1 Stmt. ¶ 60; Pl.’s
L.R. 56(a)2 Stmt. ¶ 60.) According to Sweeney, he approached the boys at their lunch table and
said, “Listen you guys, you left a mess at lunch. You know who picked it up? Me. I was the
dummy that picked it up. It’s not the lunch ladies’ job or the custodians’ job. You are going to
17
get me killed by the lunch ladies. If you don’t pick up the trash you will go to the office.” (Def.’s
L.R. 56(a)1 Stmt. ¶ 62; Pl.’s L.R. 56(a)2 Stmt. ¶ 62.) Sweeney said that he did not swear at the
boys. (Def.’s L.R. 56(a)1 Stmt. ¶ 61; Pl.’s L.R. 56(a)2 Stmt. ¶ 61.) Thus, Sweeney had the
opportunity to present his side of the story to Cressotti on June 13, 2013.
Drezek and Newton then met with Sweeney, in the presence of ETA representative
Couture, and explained that they were investigating a parent’s complaint about the events of June
14, 2013. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 66-68; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 66-68.) Although
Sweeney “denies” that he “was given a chance to provide his side of the story” at the meeting, he
admits that he recounted his version of the story and denied using the phrase “dumb ass” or
stating that “someone will be dead tomorrow.” (Pl.’s L.R. 56(a)2 Stmt. ¶¶ 69-72.) Further, a
closer examination of his “denial” that he was given a chance to present his side of the story in
the June 14 meeting shows that it cites no supporting evidence, and is actually simply a denial
that he gave a written statement. (Pl.’s L.R. 56(a)(2) Stmt. ¶ 69.) Indeed, in his deposition he
testified repeatedly that, as of the end of the June 14 meeting, he had told Cressotti and Drezek
all that had occurred at the cafeteria on the day in question. (ECF No. 38-2 at 34, 48, 63). Also,
the fact that Sweeney denied that he used certain phrases that the boys reported he had said
suggests that Sweeney was informed of the evidence against him, and he offers no evidence to
suggest that the EBE failed to explain the evidence it had received. Thus, during the June 14,
2013 meeting with Drezek, Newton, and Couture, Sweeney was again given notice of the
charges and the evidence against him and had another opportunity to present his side of the story.
Sweeney was placed on paid administrative leave at the end of the meeting (Def.’s L.R. 56(a)1
18
Stmt. ¶ 74; Pl.’s L.R. 56(a)2 Stmt. ¶ 74) and remained on paid administrative leave until
September 2013. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 83-84; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 83-84.)13
Sweeney had received notice from Drezek that there would be a meeting on October 4,
2013, to discuss his employment and the results of the recent investigation, and Sweeney
appeared at the meeting at the scheduled time. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 88-90; Pl.’s L.R.
56(a)2 Stmt. ¶¶ 88-90.) The EBE states that Sweeney was given the opportunity at the meeting to
provide information relating to the allegations. (Def.’s L.R. 56(a)1 Stmt. ¶ 91.) Sweeney denies
that he was given such an opportunity and states that “Drezek was in the process of finishing the
typing of the disciplinary letter when the meeting began so the decision had already been made.”
(Pl.’s L.R. 56(a)2 Stmt. ¶ 91.) The administrators informed Sweeney he was being suspended for
twenty school days without pay, effective October 7, 2013, and would be expected to return to
work on November 5, 2013. (Def.’s L.R. 56(a)1 Stmt. ¶ 92; Pl.’s L.R. 56(a)2 Stmt. ¶ 92.)
Accepting Sweeney’s version of the facts, in which he was not given an opportunity to provide
information relating to the boys’ the allegations at the October 4, 2013 meeting, the Court
nonetheless finds that the undisputed facts show that Sweeney had already received notice, an
explanation of the EBE’s evidence against him, and an opportunity to respond with his side of
the story back in June 2013—well before the October 4, 2013 meeting. This is all the predeprivation process he was due.
It is unclear whether Sweeney’s Due Process claim challenges both the suspension with pay in
June 2013 and the suspension without pay in October 2013, or just the latter. Compare Compl.
Count Two, ¶¶ 16-17 with Count One, ¶ 12. It is also unclear whether, in spite of the language of
the CBA, Sweeney had a property interest in avoiding a paid suspension from his employment.
See, e.g., Gugliotti v. Miron, No. 3:08-CV-442 JCH, 2010 WL 3025223, at *8-9 (D. Conn. July
30, 2010). I need not decide this issue, however, because the undisputed facts show that Sweeney
received notice and an opportunity to be heard before both suspensions.
13
19
2.
Post-Deprivation Procedures
Sweeney argues that the CBA-mandated post-deprivation procedures were inadequate
and summary judgment is not appropriate because: (1) there are issues of fact concerning
whether the Level Two grievance hearing before Schumann “was really a ‘hearing’ in the due
process sense or a perfunctory five minute meeting where Dr. Schumann showed no interest in
doing anything other than rubber stamping the foregone conclusion . . . .” (ECF No. 38 at 29);
(2) Sweeney was unfairly denied the opportunity to have his attorney present to question the
Defendant’s witnesses in the Level Three hearing; and (3) Sweeney was unfairly denied “the
opportunity to present witnesses and cross examine the [D]efendant’s witnesses in a fair hearing
before a neutral decision-maker to determine whether he was disciplined for just cause despite
requesting the opportunity to do . . . .” (Id. at 30.)
The evidence Sweeney cites does not support his first and third claims. The issue of
whether the Level Two hearing would have satisfied due process on its own is immaterial,
because Sweeney also received a lengthier Level Three hearing. And there is no evidence that
Sweeney was denied an opportunity to present evidence or cross-examine witnesses.14 Sweeney
denies that he had the opportunity to question Drezek and Schumann at the Level Three hearing,
but in support of this denial he cites only his affidavit, which states that he was “not allowed to
have my attorney question Mr. Drezek and Dr. Schumann or any other witnesses.” (Pl.’s L.R.
56(a)2 Stmt. ¶ 120; ECF No. 38-1 at 8 (emphasis added).) Further, Sweeney testified in his
14
The EBE points out that in the context of a temporary suspension, due process does not
necessarily require that Sweeney have the opportunity to cross-examine witnesses in a temporary
suspension hearing. See Ryan v. New York City Dep't of Educ., No. 11-CIV.-1628, 2011 WL
4899923, at *5 (E.D.N.Y. Oct. 13, 2011); Oswald v. Waterloo Bd. of Educ., No. C02-2050, 2003
WL 22284654 (N.D. Iowa Sept. 22, 2003). I need not decide this issue because the facts show
that Sweeney did have the opportunity to cross-examine witnesses.
20
deposition that he, Drezek, and Schumann were all present for the “evidence portion” of the
hearing (which was held in executive session, at Sweeney’s request) (Sweeney Depo. at 215-17,
ECF No. 38-2 at 102-04), that he presented his version of events to the Board and responded to
the Board’s questions, and that the Board had received a letter from his attorney setting forth his
version of events in full. (Sweeney Depo. at 290-91, ECF No. 38-2 at 177-78.)15 Finally,
Sweeney offers no evidence to suggest that the Board was a biased adjudicator.
Sweeney’s remaining claim that he was denied the assistance of his private lawyer (but
see note 15, supra) does not rise to the level of a due process violation. The amount of process
due to Sweeney in his post-deprivation hearing “depends on a balancing of the strength of the
individual’s interests against the countervailing state interests.” Carfora v. City of New York, 705
F. Supp. 1007, 1010 (S.D.N.Y. 1989) (citing Mathews, 424 U.S. at 335). In the context of postdeprivation hearings for tenured employees facing termination, courts have differed as to
whether due process requires a right to private counsel. See, e.g. Riggins v. Bd. of Regents of
Univ. of Nebraska, 790 F.2d 707, 712 (8th Cir. 1986) (listing “four requirements of due
process... in the discharge of a tenured professor from a state university,” not including the right
to counsel); Carter v. W. Reserve Psychiatric Habilitation Ctr., 767 F.2d 270, 273 (6th Cir.
1985) (due process “requires that the discharged employee be permitted to … have the assistance
of counsel”). However, in the context of a temporary suspension, less process is due. “[A]ccount
must be taken of the length and finality of the deprivation.” Gilbert v. Homar, 520 U.S. 924, 932
15
In his deposition, Sweeney testified that he was allowed to choose between having the
evidence portion of the hearing before the EBE in open session, in which case his attorney could
attend but not question witnesses or otherwise “represent [him],”or in executive session, in
which case his attorney could not attend at all. He chose the latter option because he wanted
privacy. (ECF No. 38-2 at 102-04).
21
(1997) (internal quotation marks and citations omitted). Sweeney’s property interest in 20 days
of paid employment, or any liberty interest he has in damage to his reputation from the
suspension, “commands less procedural safeguards of the individual’s rights than a criminal trial
or a dismissal from tenured employment.” Carfora, 705 F. Supp. at 1010 (citation omitted).16 See
also Thomas v. Zaharek, 289 F. Supp. 2d 167, 176–77 (D. Conn. 2003) (“the extent of the
procedural protections related to . . . suspension may very well not be as great as in the case of
termination.”); cf. Goss v. Lopez, 419 U.S. 565, 583 (1975) (in case involving 10-day suspension
of students from school, school not required to “afford student the opportunity to secure counsel,
to confront and cross-examine witnesses, or to call his own witnesses….”).
Further, in the Second Circuit, “CBA-mandated grievance procedures are routinely
(though not always) held to provide adequate post-deprivation process.” O’Connor, 426 F.3d at
198 (2d Cir. 2005) (citations omitted). The Second Circuit has “held on several occasions that
there is no due process violation where, as here, pre-deprivation notice is provided and the
deprivation at issue can be fully remedied through the grievance procedures provided for in a
collective bargaining agreement.... The Due Process Clause is implicated only when plaintiffs
can establish that the grievance procedures in a collective bargaining agreement are an
inadequate remedy.” Adams v. Suozzi, 517 F.3d 124, 128 (2d Cir. 2008) (involving deferral of
employee wages; citations omitted). Specifically, during CBA-mandated grievance procedures, a
grievant has no due process right to a private attorney. Lettis v. U.S. Postal Serv., 39 F. Supp. 2d
181, 198 (E.D.N.Y. 1998) (“A grievant has no right to a private attorney, or to require a union to
utilize a lawyer, at an arbitration.”).
16
And to the extent Sweeney has a property interest in avoiding unpaid suspension (see note 13,
supra), even less process was due.
22
Sweeney attended a Level Two grievance hearing in which he waived union
representation, and then submitted his grievance to Level Three for a hearing in front of the EBE.
At the Level Three hearing, Sweeney submitted a letter from his attorney, waived representation
by the ETA, and elected to proceed in closed session (outside the presence of his attorney). In
addition, the EBE asked Sweeney questions (to which he responded), and he was provided the
opportunity to present his grievance to the EBE (which he did). The Court finds that, under the
circumstances, Sweeney received constitutionally adequate pre- and post-deprivation procedures
for both his paid and 20-day unpaid suspension. His procedural due process claim therefore fails
as a matter of law.
B. Substantive Due Process
“The protections of substantive due process are available only against egregious conduct
which goes beyond merely offending some fastidious squeamishness or private sentimentalism
and can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience.”
Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002)
(citations and internal quotation marks omitted) (alterations omitted). The EBE’s conduct—in
investigating the charges against Sweeney and providing him with pre- and post-deprivation
process—does not rise anywhere near the level of egregious, brutal, offensive or conscienceshocking. “Substantive due process protects individuals against government action that is
arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against
government action that is incorrect or ill-advised.” Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.
1994) (internal quotation marks and citations omitted). Thus, an unfair investigation resulting in
discipline does not violate substantive due process. See, e.g., Bertram v. Metro. Transp. Auth.,
No. 13 CIV. 338 RA, 2014 WL 748933, at *8 (S.D.N.Y. Feb. 26, 2014) (“seemingly arbitrary
23
and perhaps unfair” discipline and harassment not sufficient to state a claim for violation of
substantive due process); Williams v. Perry, 960 F. Supp. 534, 539 (D. Conn. 1996)
(“Derogatory remarks, reassignments, lack of assignments, higher standards of performance and
conduct, and harsher discipline all fail to rise to the level of the delict necessary to set forth a
substantive due process claim.”).
Moreover, “where a specific constitutional provision prohibits government action,
plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to
the broad notion of substantive due process.” Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005). The
Velez court emphasized that “what would serve to raise defendant’s actions beyond the wrongful
to the unconscionable and shocking are facts which, if proven, would constitute, in themselves,
specific constitutional violations.” Id. The facts that Sweeney alleges in support of his claim that
EBE violated his substantive due process rights are the same that he alleges in support of his
claim that the EBE violated his procedural due process rights. Thus, Sweeney’s substantive due
process claim also fails as a matter of law because it is redundant and is subsumed within his
claim for violation of procedural due process. See Hubbard v. Hanley, No. 09 CV 10265 HB,
2010 WL 1914989, at *5 (S.D.N.Y. May 12, 2010).
IV.
Conclusion
For the foregoing reasons, the EBE’s motion for summary judgment is GRANTED.
The Family Educational Rights and Privacy Act (“FERPA”) protects the confidentiality of
certain educational information contained in the EBE’s motion for summary judgment,
memorandum of law, and supporting exhibits. Therefore, the Court finds that there are clear and
compelling reasons to seal the EBE’s memorandum of law and supporting exhibits. Because
Defendants filed a redacted public version of the memorandum of law and supporting exhibits—
24
in which only confidential material is redacted—the Court finds that sealing these documents is
narrowly tailored to serve the clear and compelling reasons identified. Therefore, the Court
GRANTS the EBE’s motion to seal its Memorandum of Law in support of its Motion for
Summary judgment, Local Rule 56(a)1 Statement and Exhibits A, B, C, E, G, J, K, L, M, N, O,
Q, R and Z. (ECF No. 31.) The Clerk is directed to close this case.
IT IS SO ORDERED.
/s/
a
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
August 18, 2016
25
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