Connolly v. Rutland, City of et al

Filing 67

OPINION AND ORDER granting 39 Joint Motion for Summary Judgment with respect to plaintiff's claims arising under federal law; denying 47 Motion for Partial Summary Judgment. Connolly's state law claims are DISMISSED without prejudice. Signed by Judge John M. Conroy on 8/24/2011. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Mary Shawn Connolly,
Plaintiff,
v.

Civil Action No. 2:09-CV-183

City of Rutland, Vermont, et al.,
Defendants.

OPINION AND ORDER
(Docs. 39, 43, 47)
Plaintiff Mary Shawn Connolly commenced this civil action against her former
employer, City of Rutland, and Rutland Mayor Christopher Louras on August 7, 2009.
(Doc. 1.) Connolly alleges that she was wrongfully terminated from her employment
with the Rutland Recreation and Parks Department. (Id.)
Defendants have filed a Joint Motion for Summary Judgment upon all of
Connolly’s claims. (Docs. 39.) Connolly opposes the Motion (Doc. 50), and has filed a
Motion for Partial Summary Judgment (Doc. 47). For the reasons set forth below,
Defendants’ Joint Motion for Summary Judgment (Doc. 39) is GRANTED with respect
to Connolly’s claims arising under federal law; Connolly’s Motion for Partial Summary
Judgment (Doc. 47) is DENIED; and Connolly’s claims arising under state law are
DISMISSED without prejudice.

Background
I. Relevant Facts
The following facts are taken from the parties’ Local Rule 56 Statements and from
exhibits submitted in connection with Connolly’s Motion. (Docs. 39-2; 43-2; 47-2; 50-1;
55-1.)
A.

The Parties

Plaintiff Mary Shawn Connolly commenced employment with Defendant City of
Rutland’s Recreation and Parks Department in August 2004. (Doc. 47-2 ¶ 1.) At all
times relevant to this lawsuit, Defendant Christopher Louras was the mayor of the City of
Rutland (“the City”). (Doc. 47-2 ¶ 14.) Connolly’s full-time position title was
Administrative Assistant, and she held this position until June 30, 2009. (Doc. 47-2 ¶¶
11, 12, 14.) Connolly’s employment with the City was not governed by any written
contract or collective bargaining agreement. (Doc. 39-2 ¶ 2.)
B.

Connolly’s Termination

Under the Rutland City Charter, the mayor must prepare an annual budget and
submit it to the City Board of Alderman on or before the first Monday in June. (Doc. 382 ¶ 3); CITY OF RUTLAND MUNICIPAL CHARTER, 24 V.S.A. App. Ch. 9, § 11.3. On June
1, 2009, Mayor Louras presented his Fiscal Year 2010 budget to the Board of Alderman,
emphasizing that the City’s finances would require budget cuts resulting in a negative
impact on services provided to taxpayers. Specifically, the letter introducing the mayor’s
budget stated:
I remind the Board of the letter I presented in January regarding the long
term budget challenges facing the City of Rutland. As I stated in that letter,
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we are “down to bodies” as the only significant place we can turn in order
to curtail tax increases that are driven by ever spiraling healthcare costs and
contractual obligations.
This FY2010 budget reflects thirteen fewer employees than were funded
in the FY09 budget.
(Doc. 47-16 at 2.) The budget included a proposal for two layoffs in the Recreation and
Parks Department. (Doc. 47-17 at 2-3.)
On June 1, 2009, Connolly received a letter from Ejay Bishop, the Recreation and
Parks Department Superintendent and Connolly’s supervisor, informing her of her
“proposed layoff”:
This is to advise you that as a result of the current economic climate and the
city-charter imposed tax cap, the reduction of your position of
administrative assistant has been proposed effective the close of the current
fiscal year. This proposed decision has nothing to do with your job
performance, rather it is based on the position which we feel can be
absorbed with the minimum impact on city services.
Prior to rendering a final decision on the proposal, you are entitled to a
Loudermill1 meeting with me. The purpose of a Loudermill meeting is to
provide you an opportunity to offer any additional information to be
considered prior to making a final decision concerning your proposed
layoff. The meeting is purely optional on your part. If you do not wish to
have a Loudermill meeting, you may present written materials for me to
consider. If you would like to take either of these options, please let me
know by the close of business on Friday, June 5th via the enclosed form.
(Doc. 47-20.) Attached to the letter was a form entitled “LOUDERMILL MEETING
OPTION FORM.” (Doc. 47-21.) Connolly opted to have the Loudermill meeting, which
was held with Bishop on June 8, 2009. (Doc. 47-23.) At the meeting, Connolly
1

A “Loudermill meeting” or “Loudermill hearing” is a proceeding whereby a public employee is
provided with notice by her employer and an opportunity to be heard prior to her termination, consistent
with the demands of the Fourteenth Amendment to the United States Constitution. See Cleveland Bd. of
Ed. v. Loudermill, 470 U.S. 532, 541-46 (1985).

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presented a description of her responsibilities in the department and an explanation of
why, in her opinion, her position should not be eliminated. (Doc. 39-3 at 7.)
At Bishop’s deposition, he testified that he eliminated a Maintenance Specialist
position from the budget at the same time he notified Connolly of her proposed layoff.
(Doc. 39-6 at 3.) Bishop further testified that he did not know of any information
Connolly could have presented at the Loudermill meeting that would have changed his
mind about terminating her position. (Doc. 50-5 at 4.) Connolly testified in her
deposition that she had no evidence that Defendants had other motivations for her
termination besides their stated reason of lack of funds. (Doc. 39-3 at 5.)
Following the Loudermill meeting, Connolly received another letter, dated June
12, 2009, stating in relevant part:
[T]his is to advise you that a final decision has been made with regards to
the reduction of your position of Administrative Assistant at the end of this
fiscal year. As stated earlier, this action has been taken in light of the
current economic climate and city-charter imposed tax cap. This decision
has nothing to do with your job performance, rather it is based on the
position which we feel can be absorbed with the minimum impact on city
services.
As you know, prior to rendering a final decision on the proposal, you were
entitled to a Loudermill meeting with me which you exercised on June 8[ ].
The purpose of a Loudermill meeting was to provide you an opportunity to
offer any additional information to be considered prior to making a final
decision concerning your proposed layoff. I listened and seriously
considered the information you shared during that meeting, however I have
decided to move forward with the reduction of your position of
Administrative Assistant within this department effective the end of the
business day on June 30, 2009.
(Doc. 47-23.)

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On June 15, 2009, Connolly’s attorney sent a letter to Bishop requesting a hearing
before the Board of Civil Authority (“BCA”), stating:
I have been retained by . . . Connolly regarding her employment with the
City of Rutland. Please consider this request for a hearing before the Board
of Civil Authority pursuant to the Personnel Rules and Regulations manual
for the City of Rutland regarding the letter Ms. Connolly received from
Superintendent Ejay Bishop, dated June 12, 2009.
(Doc. 47-24.)
Bishop’s response, dated June 19, 2009, explained that Connolly was not entitled
to a hearing before the BCA because she had not been dismissed pursuant to the terms of
the Personnel Rules:
Ms. Connolly has not been “demoted, dismissed or suspended” pursuant to
the Personnel Manual. (See attached Section V – 2 of the personnel
manual, which defines dismissal as a ‘for cause’ dismissal for “inefficiency
or incapacity, insubordination, misconduct or immoral conduct,
intoxication, offenses against the law, or other similar just cause.”) As I
told Ms. Connolly in the original letter sent to her and subsequently in the
meeting that you attended, this layoff has nothing to do with her job
performance, but is solely related to economic and budgetary conditions.
Therefore, since this is not a ‘for cause’ dismissal but rather an economic
layoff, she is not entitled to a hearing before the BCA in this matter.
I made this decision since the personnel manual invests me with the
responsibility of “administering the policies of the personnel manual” (See
Section I – 3 attached).
(Doc. 47-25.)
Subsequently, on July 20, 2009, Bishop wrote a letter of recommendation for
Connolly. (Doc. 39-11 at 2.) The letter was addressed generically to potential future
employers (“To Whom it May Concern”) and attested to Connolly’s professionalism and
her “interest and pride” in her work during her tenure with the Rutland Recreation and

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Parks Department. (Id.) Bishop wrote that Connolly “was an asset to our department”
and that he was “confident she will be a fine choice for your organization.” (Id.)
On August 4, 2009, the BCA met to “consider jurisdiction of [the] BCA in
layoffs.” (Doc. 47-26.) Present at the meeting were Connolly’s attorney, several
aldermen, Mayor Louras, and City Attorney Andrew Costello. (Doc. 47-28.) The
following day, Louras, as presiding officer over the BCA, issued a statement providing
that the BCA “determines that [it] has no authority to hear appeals for lay-offs under the
personnel manual as written and in effect on August 4, 2009.” (Doc. 47-30.)
C.

The City’s Hiring of Two Part-Time Employees

After Connolly’s termination, other existing employees in her department initially
took over some of her former duties. (Doc. 50-5 at 8-9.) Additionally, on August 3,
2009, Bishop hired Brook Townslee, a former intern, to replace a part-time employee
who had recently resigned. (Doc. 39-2 ¶ 32.) Townslee’s position, which was for
twenty-five hours per week, included some of Connolly’s former duties. (Doc. 50-5 at 89.) On August 24, 2009, Bishop hired Mary Markowski, who had experience as an
auditor, for fifteen hours per week. (Doc. 50-5 at 6, 9.) Markowski also performed some
of Connolly’s former duties. (Doc. 50-5 at 6.) Neither position was posted as a vacancy.
(Doc. 50-5 at 8.) In a set of interrogatories, Connolly asked Defendants why they “did
not attempt to notify” her of any “job opening or hiring opportunity.” (Doc. 38-1 at 4.)
Defendants’ joint response stated that they did not inform her because she “had already
filed suit against the city.” (Id.)

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II.

Procedural History
Following the BCA’s determination that it had no authority to hear Connolly’s

appeal, Connolly commenced this suit against the City and Mayor Louras on August 7,
2009, alleging that she was wrongfully terminated from her employment. (Doc. 1.) She
initially brought claims arising under the Fourteenth Amendment to the United States
Constitution pursuant to 42 U.S.C. § 1983, the Vermont Constitution, Vermont contract
law, and the Vermont Fair Employment Practices Act, 21 V.S.A. § 495. (Doc. 1; Doc. 26
¶¶ 1, 48-62.) After Defendants conceded that they “did not attempt to notify” Connolly
of any “job opening or hiring opportunity” because she “had already filed suit against the
city” (Doc. 38-1 at 4), Connolly subsequently amended her Complaint to add a claim for
retaliation arising under the First Amendment to the United States Constitution. (Doc.
26.) None of Connolly’s claims allege wrongful termination on the basis of some form of
discrimination such as age, race, gender or political affiliation. She contends only that
the City’s claim that it was forced to lay her off due to “economic and budgetary
conditions” is a pretext for the Mayor’s “political” motivation to present a budget that
would not require voter approval. (Doc. 47-1 at 3; Doc. 47-25.)
In Defendants’ Joint Motion for Summary Judgment, they argue that there are no
disputed issues of material fact and that they are entitled to judgment as a matter of law
upon all of Connolly’s claims. (Doc. 39.) In addition, Defendant Louras argues,
alternatively, that he is entitled to summary judgment on the basis of qualified immunity
or lack of personal involvement. (Doc. 43.) Connolly opposes Defendants’ motions, and
moves for partial summary judgment, asserting that there are no genuine issues of
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material fact with respect to her claims arising under the Fourteenth Amendment and
Vermont contract law, and that she is entitled to judgment as a matter of law upon those
claims. (Doc. 47.)
Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “‘if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)); see City of Burlington v.
Hartford Steam Boiler Inspection and Ins. Co., 190 F. Supp. 2d 663, 669 (D. Vt. 2002).
A fact is material when it affects the outcome of the suit under the governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The burden of demonstrating the absence of a genuine issue of material fact rests
upon the party seeking summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). Yet, “as to any claim, or essential element thereof, for which the nonmoving
party bears the burden of proof at trial, the nonmoving party must make a showing
sufficient to establish the existence of that claim or element.” Billado v. Parry, 937 F.
Supp. 337, 341 (D. Vt. 1996). If the non-moving party fails to do so, the moving party
may obtain summary judgment by “simply point[ing] out the absence of evidence to
support the non-moving party’s case.” Nora Beverages, Inc. v. Perrier Group of
America, Inc., 164 F.3d 736, 742 (2d Cir. 1998).

8

Once a properly supported motion for summary judgment has been made, the
burden shifts to the nonmoving party to “set out specific facts showing a genuine issue
for trial.” Fed. R. Civ. P. 56(e)(2). “‘[M]ere conclusory allegations, speculation or
conjecture will not avail a party resisting summary judgment.’” Conroy v. N.Y. State
Dep’t of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (quoting Cifarelli v. Vill. of
Babylon, 93 F.3d 47, 51 (2d Cir. 1996)). Rather, Rule 56(c) and (e) require that a
nonmoving party must set forth specific facts in affidavits, depositions, answers to
interrogatories, or admissions showing a genuine issue exists for trial. Cifarelli, 93 F.3d
at 51 (citing Celotex, 477 U.S. at 324).
In ruling on a motion for summary judgment, the court is required to draw all
factual inferences in favor of, and take all factual assertions in the light most favorable to,
the party opposing summary judgment. See, e.g., Anderson, 477 U.S. at 255; Salahuddin
v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). “Where both parties have moved for
summary judgment, the court must evaluate each party’s motion on its own merits, taking
care in each instance to draw all reasonable inferences against the party whose motion is
under consideration.” Murray v. Int’l Bus. Machs. Corps., 557 F. Supp. 2d 444, 448 (D.
Vt. 2008) (quotation omitted). The court’s function in considering the motion for
summary judgment is not to resolve disputed issues of fact, but only to determine
whether there is a genuine issue to be tried. See, e.g., Anderson, 477 U.S. at 255;
Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). Assessments of
credibility, choices between conflicting versions of the events, and weighing of evidence

9

are matters for the jury, not for the court on summary judgment. Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996).
Discussion
I.

Federal Constitutional Claims
42 U.S.C. § 1983 “provide[s] a remedy when federal rights have been violated

through the use or misuse of a power derived from a State.” Kletschka v. Driver, 411
F.2d 436, 448-49 (2d Cir. 1969). The statute states: “Every person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes
to be subjected any citizen of the United States . . . to the deprivation of any rights . . .
secured by the Constitution . . . shall be liable to the party injured in an action at
law . . . .” 42 U.S.C. § 1983.
Connolly’s Section 1983 claims arise under the First and Fourteenth Amendments.
Specifically, she alleges that (1) she retained a constitutionally-protected property interest
in her employment which Defendants violated by terminating her without adequate due
process; (2) Defendants’ claimed reason for terminating her (“lack of funds”) was a
pretext; and (3) in retaliation for her filing of this lawsuit, Defendants failed to inform her
that part-time employment with the City was available. (Doc. 50 at 2, 5.) In their Joint
Motion for Summary Judgment, Defendants argue that (1) Connolly was an at-will
employee; (2) even assuming Connolly retained a protected property interest, she was
afforded constitutionally adequate due process in her termination; (3) Connolly sets forth
no evidence that she was terminated for any reason other than lack of funds; and (4)
Defendants were not required to give Connolly special notice of the availability of part10

time work. (Doc. 39-1 at 6, 14.) As explained below, the Court concludes that material
questions of fact exist with respect to whether Connolly’s employment was “at will” or
whether Connolly had a reasonable expectation of continued employment giving rise to a
property interest. However, no due process violation occurred in her termination and no
genuine issue of material fact exists with respect to the reasons Connolly was terminated.
In addition, the Court concludes that Connolly’s lawsuit is not constitutionally protected
speech. Therefore, no First Amendment violation occurred.
A.

Fourteenth Amendment Due Process Claim
1.

Protected Property Interest

“To succeed on a claim of procedural due process deprivation under the
Fourteenth Amendment – that is, a lack of adequate notice and a meaningful opportunity
to be heard – a plaintiff must first establish that state action deprived him of a protected
property interest.” Spinelli v. City of New York, 579 F.3d 160, 168-69 (2d Cir. 2009).
Property interests are not created by the Constitution, but by existing rules or
understandings that stem from independent sources, “such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). To create a property
interest, the state-law rule or understanding must give the recipient “a legitimate claim of
entitlement to [the benefit].” Id.; Town of Castle Rock v. Gonzales, 545 U.S. 748, 756
(2005). A public employee has a property interest in continued employment if the
employee is guaranteed continued employment absent “just cause” for discharge. Moffitt
v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991).
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In Vermont, employment for an indefinite period is generally considered
employment at will. Brace v. Int’l Bus. Machines Corp., 953 F. Supp. 561, 566 (D. Vt.
1997). Cf. Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 5 (2002) (“[W]e are mindful . . .
that at-will employment relationships have fallen into disfavor.”). “An at-will agreement
is terminable at any time, for any reason or for none at all.” Madden v. Omega Optical,
Inc., 165 Vt. 306, 313 (1996) (quotations and brackets omitted). At-will employment
status may be modified by express agreement, statute, an employer’s personnel policies
or practices, or actions or communications made by the employer that reflect assurances
of continued employment. Brace, 953 F. Supp. at 568; Ross v. Times Mirror, Inc., 164
Vt. 13, 20 (1995); Farnum v. Brattleboro Retreat, Inc., 164 Vt. 488, 494 (1995) (holding
that whether employee could be discharged without cause where contents of three
handbooks contained mixed messages was a question of fact for jury); Foote v. Simmonds
Precision Prods. Co., 158 Vt. 566, 570-71 (1992); Benoir v. Ethan Allen, Inc., 147 Vt.
268, 270 (1986).
“Handbook provisions committing the employer to a progressive discipline system
are sufficient for a jury to find that the employer may terminate the employee only for
cause.” Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 392 (1999); see Taylor v.
Nat’l Life Ins. Co., 161 Vt. 457, 464 (1993) (holding that personnel manuals that are
inconsistent with an at-will relationship may be used as evidence that the employment
contract requires good cause for termination). “When the terms of a manual are
ambiguous . . . or send mixed messages regarding an employee’s status, the question of

12

whether the presumptive at-will status has been modified is properly left to the jury.”
Dillon, 175 Vt. at 6-7.
As discussed below, Connolly asserts that her employment status with the City
was inconsistent with at-will employment as a result of (a) the terms of the Personnel
Rules and Regulations; (b) a memorandum she received concerning disciplinary policies;
and (c) disciplinary actions the City took against her in 2006. (Doc. 47-1 at 12-17.)
Defendants contend that none of these things modified Connolly’s presumptive at-will
status. The Court finds that the evidence set forth below establishes that the issue is one
properly left to a jury.
a. Personnel Rules and Regulations
The parties agree that the City’s Personnel Rules and Regulations (“personnel
rules”) governed the terms of Connolly’s employment. (Doc. 47-6.) The stated purpose
of the personnel rules is “to establish procedures for administrative action concerning the
various personnel activities and transactions” and to “indicate the customary and most
reasonable method of carrying out the aims of the personnel program.” The personnel
rules also “inform the employees of the City of Rutland regarding the conditions of work
in the city service.” (Id. at 4.)
More specifically, the personnel rules define the types of appointments to city
service and establish rules governing demotions, dismissals, suspensions, and
reprimands, including an appeal procedure. Under the title “Permanent Employees,” the
personnel rules provide: “A permanent employee works full time and on a continuing
basis (indefinite term).” (Doc. 47-6 at 5.) “[T]he term ‘permanent,’ when used in an
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employment contract with reference to a term of employment normally means nothing
more than indefinite employment.” Ross, 164 Vt. at 19 (quotation omitted). Thus, it
appears, at first, that the manual has not modified the presumption that Connolly’s
employment was at will.
Yet, under the section governing dismissals, the personnel rules state that “[a]
department head, by approval of the Board of Civil Authority, may dismiss any employee
for inefficiency, or incapacity, insubordination, misconduct or immoral conduct,
intoxication, offenses against the law, or other similar just cause.” (Doc. 47-6 at 7
(emphasis added).) This provision indicates that Connolly may have been terminable
only for just cause, such that she retained a protected property interest. Additionally, a
subsection entitled “REPRIMAND” provides that “[i]n situations where an oral warning
has not resulted in the expected improvement, or where more severe initial action is
warranted, a written reprimand shall be sent to the employee . . . and a copy shall be
placed in the employee’s personnel folder.” (Id. at 8.) This provision suggests that the
Recreation and Parks Department applied a progressive discipline policy to employees
such as Connolly.
b. Memorandum Concerning Disciplinary Procedures
During the course of her employment, Connolly received additional indications
that she was subject to a progressive discipline policy. A memorandum from a former
Assistant City Attorney, to department heads explained “the proper procedures for taking
disciplinary actions against non-union employees.” (Doc. 47-2 ¶ 8.) The memorandum
provided that department heads may issue oral and written reprimands. The
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memorandum also outlined procedures for suspensions without pay, demotions, and
dismissals. The section addressing dismissal procedures stated that the employee must be
given written notice of the department head’s intentions to dismiss the employee. (Id. at
¶ 9.) The dismissal section further provided that the employee must receive notice that he
or she may request a hearing before the department head and a hearing before the BCA.
(Id.)
c. 2006 Disciplinary Action Against Connolly
Connolly was disciplined in accordance with the progressive discipline policy. In
January 2006, Bishop gave Connolly a “Discipline Form,” stating that Connolly’s job
performance had been deficient. (Doc. 47-7.) The form indicated that Connolly had
been warned verbally on two prior occasions that her job performance needed
improvement. (Id. at 2.) The form also indicated that Connolly would be placed on
probation for three months, during which she would be given an opportunity to
demonstrate her ability to correct the deficiencies and “prove that she can accomplish the
job requirements.” (Id. at 3.)
In April 2006, Bishop and Connolly executed a memorandum, addressed to
Connolly’s personnel file, stating that “Connolly has met all the set requirements of the
Disciplinary form” and that she had “proved that she can accomplish the job
responsibilities during the 90-day probation,” and “is now in good standing in her
position of Administrative Assistant in [the] Rutland Recreation and Parks Department
and is no longer on probation.” (Doc. 47-2 ¶ 11.) Thereafter, Connolly was not
disciplined further and maintained her employment until June 30, 2009. (Id. at ¶ 12.)
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In sum, although no modification of Connolly’s at-will status occurred by express
agreement or statute, a jury could reasonably find that Defendants’ personnel policies,
practices, actions, and communications reflected assurances of continued employment in
this case. The provisions of the personnel manual, progressive discipline evidence, and
Defendants’ practices establish that whether the City modified Connolly’s presumptive
at-will status is an issue for a jury to decide.
2.

Termination Procedure

Because a reasonable jury could conclude that Connolly had a protected property
interest in her employment, the Court must now consider whether Defendants afforded
Connolly constitutionally-adequate due process in terminating her. Cleveland Bd. of Ed.
v. Loudermill, 470 U.S. 532, 541 (1985) (“[O]nce it is determined that the Due Process
Clause applies, the question remains what process is due.”) (quotation omitted).
Connolly argues that she was denied constitutionally-adequate pre-and post-termination
proceedings. (Doc. 47-1 at 17-19.) She also contends that although Defendants claimed
she was terminated due to lack of funds, the true reason she was terminated was
“political” because Mayor Louras wanted to be “sensitive to the taxpayer.” (Id. at 3.)
More precisely, Connolly claims that there was no “charter imposed tax cap,” rather, the
decision to terminate her was motivated by the mayor’s reluctance to seek permission
from the electorate for a property tax increase. (Id.) Defendants contend that a laid off
employee is not entitled to any due process, or, alternatively, that Connolly was granted
all the process that was due. (Doc. 39-1 at 14-17.) Defendants further assert that
Connolly fails to set forth any evidence that her termination was based upon a pretext or
16

sham. (Doc. 55 at 7-9.) As explained below, the Court concludes that no due process
violation occurred and that Connolly fails to set forth any genuine issue of material fact
that her termination was based on a pretext or a sham.
i.

Pre-Termination

Connolly argues that her pre-termination hearing “lacked the necessary attributes
of due process.” (Doc. 47-1 at 18.) She also contends that the decision to terminate her
had already been finalized prior to the hearing and that, as a result, the pre-termination
proceeding was not truly “pre-termination” at all. (Doc. 47-1 at 17.) Defendants
disagree, arguing that Connolly was not entitled to any due process given that she was
laid off due to budget cuts. Alternatively, Defendants argue that if a pre-termination
hearing was required, the Loudermill meeting was constitutionally adequate. (Doc. 39-1
at 14-17.)
“Unlike the existence of a property interest, which finds its origins in state law,
minimum procedural requirements are a matter of federal law.” Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 319 (2d Cir. 2002) (quotation, brackets and ellipsis omitted).
“[T]he root requirement” of the Due Process Clause is “that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.”
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis omitted). “This principle
requires ‘some kind of a hearing’ prior to the discharge of an employee who has a
constitutionally protected property interest in his employment.” Loudermill, 470 U.S. at
542 (quoting Roth, 408 U.S. at 569-70). The pre-termination hearing “need not be
elaborate,” Loudermill, 470 U.S. at 545, but a public employee is “entitled to oral or
17

written notice of the charges against him, an explanation of the employer’s evidence, and
an opportunity to present his side of the story.” Id. at 546.
In this case, Connolly was provided oral and written notice and an opportunity to
be heard prior to her termination. On June 1, 2009, Connolly received a letter from
Bishop stating that “the reduction of your position . . . has been proposed” effective June
30, 2009. (Doc. 47-20 at 2.) The letter informed Connolly that she was “entitled to a
Loudermill meeting” and explained that the reason for her proposed termination was “the
current economic climate” and not her job performance. (Id.) There were no “charges”
against Connolly, and hence no “evidence” supporting any charges in the letter.
Approximately one week later, Connolly met with Bishop and was given an opportunity
to present reasons why her position should not be eliminated. (Doc. 47-1 at 9.) On June
12, 2009, Connolly received a second letter from Bishop, explaining that he had listened
to Connolly at the Loudermill meeting, but that the City had decided to go forward with
her layoff for economic and budget-related reasons. (Doc. 47-1 at 10.) These pretermination proceedings clearly satisfy the standard under Loudermill, which simply
requires oral or written notice, an explanation of the employer’s evidence, and an
opportunity for the employee to present her side of the story. Loudermill, 470 U.S. at
546.
One notable difference between the facts of this case and those at issue in
Loudermill is that Loudermill involved alleged misconduct by the employee, whereas
here, there were no allegations of misconduct on the part of Connolly. As a result, the
Loudermill court’s balancing of “the private interests in retaining employment, the
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governmental interest in the expeditious removal of unsatisfactory employees and the
avoidance of administrative burdens” was different from the balancing of interests
required here, where an employee is laid off for budget-related reasons. Loudermill, 470
U.S. at 542. Where there is no allegation of misconduct, the employee’s interest
necessarily weighs less significantly because there is no need for the employee “to
present [her] side of the story.” Id. at 546. In other words, there is nothing for the
employee to refute, and, as a result, the pre-termination hearing contemplated by
Loudermill may serve little purpose in a case like Connolly’s.
Assuming a pre-termination hearing was actually required, the Court disagrees
with Connolly’s assertion that her June 8, 2009 pre-termination hearing was insufficient
because “the decision to terminate Connolly was made finally on June 1, 2009.” (Doc.
47-1 at 17.) The plaintiffs in Ryan v. Illinois Department of Children and Family
Services, 185 F.3d 751, 762 (7th Cir. 1999) made an argument similar to this one, but
under different factual circumstances. The Seventh Circuit’s reasoning in that case is
instructive. In denying summary judgment for the defendants on this issue, the Seventh
Circuit stated: “That at the start of the [pre-termination] hearing the agency
decisionmakers tentatively believe the employee should be removed does not raise a
constitutional problem . . . so long as the decisionmakers are open to other views.” Id.
Here, viewing the facts in the light most favorable to Connolly, the record does not
support a conclusion that the decision to terminate Connolly was made prior to her
Loudermill meeting. The material facts surrounding Connolly’s Loudermill meeting are
not in dispute. The initial notice Connolly received on June 1 stated that the reduction of
19

her position had been “proposed” as a result of “the current economic climate” and not
her job performance. (Doc. 47-20 at 2.) The Loudermill meeting was held on June 8,
and Connolly was given an opportunity to present reasons why her position should not be
eliminated, and she did so. Following the Loudermill meeting, Bishop’s June 12 letter
stated that he had “listened seriously and considered the information [Connolly] shared”
in the Loudermill meeting but had decided to go forward with her layoff. (Docs. 47-1 at
10; 47-23 at 2.) The facts demonstrate that, although a decision had been made to
eliminate at least one position, it was not certain that position would be Connolly’s.
Instead, the record supports that Defendants were “open to other views” with respect to
how to trim the budget of the Recreation and Parks Department. Ryan, 185 F.3d at 762.
Contrary to Connolly’s assertions, the fact that Mayor Louras may have lacked
authority to restore funding to the City’s budget once he submitted the budget to the
Board of Alderman does not show that Defendants had already decided to terminate
Connolly before her pre-termination hearing. As Connolly states in her Motion for
Summary Judgment, the budget, which was submitted before her Loudermill meeting,
called for elimination of a full-time employee from the Recreation and Parks Department
budget. (Doc. 47-1 at 18.) The budget neither specified what position might be reduced
nor who the full-time employee might be. The City’s budget demanded that Bishop
carefully consider the needs of his department, including the views of its employees, in
deciding which position to cut, and the record shows that he did so.

20

ii.

Post-Termination

Connolly next contends that Defendants improperly denied her post-termination
proceedings, and that Defendants’ invocation of an economic re-organization “exception”
to due process must fail because of Connolly’s claim that the City’s purported lack of
funds is a sham. (Doc. 47-1 at 19-20.) Defendants disagree, asserting that no posttermination proceeding was necessary and that Connolly fails to set forth any claim that
she was terminated for any reason other than budget concerns. (Doc. 55 at 10-14.)
An employee who has a protected property interest in her employment may also
be entitled to a post-termination hearing. See Morrissey v. Brewer, 408 U.S. 471, 481
(1972) (“[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” ); Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001)
(“When . . . a . . . public employee is terminated, procedural due process is satisfied if the
government provides notice and a limited opportunity to be heard prior to termination, so
long as a full adversarial hearing is provided afterwards.”); Dwyer v. Regan, 777 F.2d
825, 834 (2d Cir. 1985) modified, 793 F.2d 457 (2d Cir. 1986) (“The nature of a claim of
sham is such that a posttermination hearing will likely be more valuable to the claimant
than a pretermination hearing.”). Indeed, Loudermill was premised “in part on the
provisions in [the applicable state] law for a full post-termination hearing.” Salterella v.
Town of Enfield, 427 F. Supp. 2d 62, 74 (D. Conn. 2006). In this case, Defendants gave
Connolly adequate pre-termination procedure, as described above. Connolly timely
requested a post-termination hearing before the BCA, but was not afforded any kind of
post-termination review. (Doc. 47-30 at 2.)
21

In determining whether procedures, in general, are constitutionally sufficient,
courts balance the private and governmental interests at stake, and consider three factors:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1972); Brody v. Vill. of Port Chester, 434 F.3d
121, 135 (2d Cir. 2005). Here, the private interest affected by the City’s actions was the
loss of Connolly’s employment. Significantly, however, Connolly was not terminated for
any performance-related reason. (Doc. 47-23.) To the contrary, Bishop signed a letter of
recommendation on July 20, 2009, shortly after Connolly was terminated, stating that
Connolly “conducted herself professionally and . . . demonstrated an interest and pride in
[her] work.” (Doc. 47-32.) Bishop also wrote that Connolly was “an asset to [the
Rutland Recreation and Parks] department” and that she would be “a fine choice for your
organization.” (Id.) Thus, although the loss of employment is a significant private
interest, no stigma attached to Connolly’s termination and there is no indication that her
dismissal created impediments to future employment. These facts weigh in Defendants’
favor. See Mayfield v. Kelly, 801 F. Supp. 795, 798 (D.D.C. 1992).
Also weighing in Defendants’ favor, there was little risk of erroneous deprivation
because Connolly was not terminated for performance-related reasons. Additional
procedural safeguards would have added little or no value to the City’s decision-making
process in determining which positions to cut, and holding a post-termination hearing

22

would have served little purpose. Finally, the City’s interest in executing economic and
efficiency-related personnel decisions and in managing the costs of its workforce and
services is substantial. See Dwyer, 777 F.2d at 833. Requiring the City to hold posttermination hearings for each employee who is terminated due to workforce reductions
would impose additional fiscal and administrative burdens on the City.
Relying on similar reasoning, other courts have explicitly recognized that when a
public employee is laid off due to lack of funds without a hearing, no due process
violation occurs. See Whalen v. Mass. Trial Ct., 397 F.3d 19, 25 (1st Cir. 2005) (“[W]e
have recognized a limited ‘reorganization exception’ to due process that eliminates the
need for a hearing where a reorganization or other cost-cutting measure results in the
dismissal of an employee.”); Misek v. City of Chicago, 783 F.2d 98, 100-01 (7th Cir.
1986); Baker v. Civil Serv. Comm’n of W. Va., 245 S.E. 2d 908, 912 (W. Va. 1978)
(“Where a classified position has been abolished, the employee ordinarily is not entitled
to a procedural due process hearing.”); Powell v. Jones, 305 N.E. 2d 166, 172 (Ill. 1973)
(“[T]he qualitative differences between layoff and discharge are such that variances in
procedure are constitutionally permissible.”); Kelly, 801 F. Supp. at 798 (“A [reduction in
force] clearly does not raise the same due process concerns that are raised by for-cause
dismissals.”) As one court has explained, this “economic reorganization” exception
“follows from the Loudermill decision itself.” Kelly, 801 F. Supp. at 798. In Kelly, the
court reasoned:
In evaluating whether the employer’s actions violated due process the
Loudermill court balanced “the private interests in retaining employment,

23

the governmental interest in the expeditious removal of unsatisfactory
employees and the avoidance of administrative burdens.”
....
These interests weigh differently in a [reduction in force] than they do in a
removal for cause. The employee’s interest in a for-cause dismissal
involves more than the position at stake because of the stigma that results
from a for-cause dismissal and the problems such dismissal might create for
future employment opportunities. Although a [reduction in force] results in
significant hardship for the terminated employees, it does not pose these
additional problems.
Id. (quoting Loudermill, 470 U.S. at 542-43).
Under the economic reorganization principle, Connolly was not entitled to posttermination due process. The City’s stated reason for terminating Connolly arose out of
economic concerns, including the “current economic climate and the city-charter imposed
tax cap.” (Doc. 47-20.) Bishop’s letters to Connolly in connection with her termination
stated consistently that the decision to lay off Connolly had “nothing to do with . . . job
performance, rather it is based on the position which we feel can be absorbed with the
minimum impact on city services.” (Id.) Nothing in the record suggests that Connolly’s
termination adversely affected her future employment prospects, and, as noted above,
Bishop provided Connolly with a letter of recommendation lauding her work.
Although the Second Circuit has not expressly adopted the reorganization
exception discussed above, courts in this circuit have implicitly subscribed to the
reasoning that an employee who is laid off as a result of economic constraints need not be
afforded the same process as one who is dismissed for cause. See Dwyer, 777 F.2d at
833; Perkowski v. Strafford Bd. of Ed., 455 F. Supp. 2d 91 (D. Conn. 2006); Ritz v. Town
of East Hartford, 110 F. Supp. 2d 94, 102 (D. Conn. 2000) (suggesting that “legitimate

24

reorganization” would be a reason upon which to grant defendants’ motion for summary
judgment on the issue of a procedural due process violation of employee with protected
property interest). Of course, the reorganization exception does not apply if an employee
raises a genuine issue of material fact that her purported economic layoff was actually a
pretext for some other impermissible reason for the termination. In such cases, due
process would require a post-termination hearing to consider and investigate the
employee’s claim. Dwyer, 777 F.2d at 834 (“The nature of a claim of sham is such that a
posttermination hearing will likely be more valuable to the claimant than a pretermination
hearing.”).
In Dwyer, a state employee whose job was eliminated due to budget constraints
brought an action for wrongful termination, alleging that he should have been granted a
pre-termination hearing and that his employer’s claim of budget constraints was a sham.
Dwyer, 777 F.2d at 828. Significantly, the plaintiff’s complaint alleged that the state
comptroller and his agents had “a personal dislike” for him and “formulated a plan to
remove him from his position” for improper reasons. Id. at 827. The Second Circuit
vacated the district court’s dismissal of the claim and granted the plaintiff leave to amend
his complaint, holding that
[i]n the present case, it remains unclear whether a pretermination hearing
was required, because [the plaintiff’s] complaint does not clearly allege that
he requested such a hearing. . . . Given the prior dearth of authority as to the
existence and contours of a right to a pretermination hearing on a claim of
sham, we conclude that [the plaintiff] should be given an opportunity to
amend his complaint to allege, if such is the case, that he did in fact request
a pretermination hearing into his claim that the announced elimination of
his position was a sham.

25

Id. at 833. The Dwyer court also recognized, however, that
a state may well, from time to time, decide to make its operations more
efficient by abolishing or consolidating positions or by implementing a
considered reduction in its work force. We are not persuaded that the state
must routinely provide hearings for employees whose positions are targeted
for elimination whenever the state adopts such efficiency measures.
Where, however, as here, there is no indication that the state has undertaken
substantial measures such as these but rather is alleged to have targeted a
single employee for termination, we hold that if the state has a due process
obligation to provide a hearing prior to removing that employee from his
ongoing position, and if the employee protests the notice of elimination of
this position and contends that it is but a sham and pretext for the
deprivation of his property right, the state must be prepared to grant the
employee some kind of hearing prior to the termination of his employment.
Id.
“To reach a jury on a pretext claim, a plaintiff must present some evidence that
his termination was not for the reason specified by [defendants].” Taylor, 161 Vt. at 469.
In other words, Connolly must point to evidence suggesting that Defendants’ claim of
economic necessity was a pretext for some other impermissible reason for terminating
her. See Havill v. Woodstock Soapstone Co., 172 Vt. 625, 628 (2001) (“To defeat
employer’s summary judgment motion, plaintiff has the burden of presenting some
evidence that [her] termination was not for the reason specified by [employer].”).
Because Connolly bears the burden of proof at trial on the claim of a sham, to defeat
Defendants’ Motion for Summary Judgment, she must make a showing sufficient to
establish the existence of her claim of a sham. See Parry, 937 F. Supp. at 341; Cifarelli,
93 F.3d at 51-52 (holding, that to establish a claim of pretext under New York law, a
public employee whose position is abolished bears the burden of proving that the
employer’s action was undertaken in bad faith).
26

Here, although, Connolly ostensibly argues that the City’s claimed economic
necessity was a pretext or a sham, Connolly raises no genuine issue of material fact to
support a claim that her termination was not for lack of funds. Unlike the facts at issue in
Dwyer, Connolly does not allege that she was personally targeted for some improper
reason. To the contrary, each of Connolly’s arguments and her supporting evidence
corroborate that Defendants’ reason for terminating her was purely economic and
budget-related. Connolly’s sham argument is that Defendants’ failure to include funding
for her position in the budget was a “political” measure so that Mayor Louras could
achieve the “goal of maintaining the tax rate,” thereby giving taxpayers “needed and
deserved relief.” (Doc. 50 at 4, 23.) Connolly sets forth detailed evidence and analysis
of the City’s budget, which reveals that there was in fact a budget surplus for Fiscal Year
2010. (Docs. 50 at 4-5; 50-2.) Connolly also challenges Defendants’ characterization of
the City’s property tax scheme as imposing a “cap” and points out that there is no tax cap,
rather, if a tax rate exceeds a set amount ($0.85 per $100 of value), voters must directly
approve the tax rate.2 (Doc. 50 at 4.)
None of this evidence raises a genuine issue of material fact with respect to
Defendants’ stated reason for Connolly’s layoff. Providing tax relief and maintaining a
tax rate are legitimate economic concerns of municipal leadership. A budget surplus for
a particular year raises no genuine issue because, as Connolly points out in her Motion
2

The Court notes that Connolly does not raise a pretext or sham argument arising out of the fact
that Defendants hired two part-time employees shortly after she was terminated whose duties included
many of Connolly’s former duties. See, e.g., Campana v. City of Greenfield, 164 F. Supp. 2d 1078, 1093
(E.D. Wis. 2001) (citing cases providing that hiring a new employee to replace one who has been laid off
is evidence of illegitimacy).

27

for Partial Summary Judgment, Mayor Louras “warned that, during [2009] the
combination of planned salary increases and rising health care costs” would result in an
increased tax rate in the future. (Doc. 47-1 at 6.) Similarly, Mayor Louras explained that
his budget proposal was “not about 2009,” but “about the future.” (Id.)
It must be emphasized that Connolly raises no argument that Defendants
terminated her for any impermissible non-economic reason. In fact, in Connolly’s
deposition, she conceded that she has no evidence to suggest that her termination was
motivated by anything other than economic reasons. (Doc. 39-3 at 5.) All of Connolly’s
assertions support the conclusion that, in terminating her, the City was “undertak[ing]
substantial measures” by “implementing a considered reduction in its work force” rather
than targeting her specifically for termination. Dwyer, 777 F.2d at 833. Accordingly, a
post-termination hearing would have served no purpose and was not required in this case.
A similar factual scenario arose in Cifarelli v. Village of Babylon, where an
employee was terminated “on the grounds of economy and efficiency” but the employee
alleged this was a pretext. Cifarelli, 93 F.3d at 51. In support of his pretext argument,
the employee asserted that:
(i) the proposed Village budget for the 1994-95 fiscal year allegedly
showed no overall savings from the elimination of his position; (ii) the
Village created three additional jobs which entailed certain code-enforcing
functions formerly performed by [the employee]; and (iii) the Mayor[’s]
deposition testimony explained that his motivation for eliminating [the
employee’s] position was, in part, his desire to revamp the building
operations department, to improve standards, and to proceed in another
direction.

28

Id. (quotations omitted). In concluding that these arguments failed to create a genuine
issue of material fact, the Second Circuit noted that the plaintiff had “not alleged that his
termination was the result of discrimination,” and that the record demonstrated no lack of
honesty on the part of the defendants. Id. at 52. The court also reasoned that the mayor’s
testimony that his “motivation for eliminating [the plaintiff’s] position was a desire to
‘revamp’ the building operations department, to improve standards, and to ‘proceed in
another direction,’ fully supports [defendants’] contention that the elimination of [the
employee’s] position was undertaken for efficiency purposes; such a motivation hardly
evinces dishonesty or pretext.” Id.
The same reasoning applies here. Connolly has not presented evidence that
Defendants have demonstrated a lack of honesty. She sets forth no claim that her
termination was based on discrimination. As noted above, the record is replete with
statements from Mayor Louras pertaining to concerns about the state of the City’s
financial health and the unwillingness of taxpayers to support a tax increase. The
mayor’s concerns date back to a period substantially before his budget proposal failed to
include funding for Connolly’s position. One exhibit provided by Connolly in support of
her Motion is a copy of the minutes from the City’s Board of Alderman meeting on June
2, 2008. In that meeting, Mayor Louras stated that “there isn’t much in the budget to cut
except to cut bodies through attrition, layoffs or other means.” (Doc. 47-9 at 2.) Mayor
Louras also stated that “staff will need to be reduced at some point.” (Id.) These
statements reflect that the decision to eliminate Connolly’s position was related to
economic necessity, contemplated at least one year prior to when it occurred, and that
29

Connolly was on notice that her position could be affected. Thus, no genuine issue of
material fact exists regarding whether Defendants’ termination of Connolly for purported
economic reasons was a pretext, and the Court GRANTS Defendants’ Joint Motion for
Summary Judgment on Connolly’s Section 1983 due process claim.
d.

First Amendment Retaliation

Connolly next argues that in retaliation for her filing of this lawsuit, Defendants
failed to inform her that part-time employment with the City was available. (Doc. 50 at
5.) Defendants disagree, arguing that Connolly’s lawsuit is not constitutionally-protected
speech and that they were not required to provide her with special notice of available
part-time work. (Doc. 39-1 at 20.)
To establish a prima facie case of First Amendment retaliation, a plaintiff alleging
that he was terminated must show (1) that his speech was constitutionally protected, (2)
that he suffered an adverse employment decision, and (3) that a causal connection existed
between his speech and the adverse employment determination against him.3 Anemone v.
Met. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011); Ruotolo v. City of New York, 514
F.3d 184, 188 (2d Cir. 2008); see Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
The public employee must also show that her right as a citizen in commenting upon
matters of public concern outweighs the interest of her employer “in promoting the
efficiency of the public services it performs through its employees.” City of San Diego v.

3

Here, for the purposes of their Joint Motion for Summary Judgment, Defendants concede that a
causal connection existed between Connolly’s lawsuit and the adverse employment determination against
her, if any. (Doc. 39-1 at 20 n.3.) Accordingly, the Court addresses only the first two elements.

30

Roe, 543 U.S. 77, 81 (2004) (quotation and citations omitted); see also Mandell v. Cty. of
Suffolk, 316 F.3d 368, 382 (2d Cir. 2003).
1. Protected First Amendment Activity
“Protected First Amendment activity” means speech made as a citizen on matters
of public concern rather than as an employee on matters of personal interest. Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006); see also Garcetti v. Ceballos,
547 U.S. 410 (2006); Ruotolo, 514 F.3d at 188. The same definition applies where the
allegedly protected activity is the filing of a lawsuit. Storman v. Klein, 395 F. App’x 790,
793 (2d Cir. 2010); Everitt v. DeMarco, 704 F. Supp. 2d 122, 132 (D. Conn. 2010) (“It is
well-established that the filing of a lawsuit . . . is constitutionally protected by the First
Amendment.”). “The inquiry into the protected status of speech is one of law, not fact.”
Connick v. Meyers, 461 U.S. 138, 148 n.7 (1983).
To determine whether Connolly’s lawsuit constitutes protected First Amendment
activity, the Court must first examine whether the lawsuit addresses a matter of public
concern. In determining whether a public employee’s speech addresses a matter of public
concern, courts must consider “the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461 U.S. at 147-48 (1983); Ruotolo, 514 F.3d at
189. The plaintiff’s motivation for the speech is one factor the court may consider in
determining whether the allegedly protected speech was on a matter of public concern,
but this factor is not dispositive. Sousa v. Roque, 578 F.3d 164, 173 (2d Cir. 2009);
Brown v. City of Waterbury Bd. of Ed., 722 F. Supp. 2d 218, 230 (D. Conn. 2010).
Speech by a public employee is on a matter of public concern if it relates “to any matter
31

of political, social, or other concern to the community.” Connick, 461 U.S. at 146; see
also Garcia v. State Univ. of N.Y. Health Sci. Ctr., 280 F.3d 98, 105 (2d Cir. 2001).
Speech that is focused on matters personal to the employee cannot be classified as being
on a matter of public concern. Connick, 461 U.S. at 146; see Schlesinger v. N.Y.C.
Transit Auth., No. 00 Civ. 4759, 2001 WL 62868, at *5 (S.D.N.Y. Jan. 24, 2001)
(holding that “speech on a purely private matter, such as an employee’s dissatisfaction
with the conditions of his employment falls outside the realm of constitutional
protection”) (quotation and citation omitted). “The heart of the matter is whether the
employee’s speech was ‘calculated to redress personal grievances or whether it had a
broader public purpose.’” Ruotolo, 514 F.3d at 189 (quotation omitted).
In this case, the Court finds that Connolly initiated this lawsuit as an employee on
matters personal to her, and the lawsuit cannot be classified as being on a matter of public
concern. The content of the suit, as a whole, pertains to Connolly’s termination, the
procedures employed by the City to terminate her, and the City’s alleged retaliation
against her, individually. The content of the alleged retaliation arises in the context of
Connolly’s lawsuit alleging wrongful termination, a context personal to her. Although
the form of the lawsuit consists of publicly-available documents and proceedings,
Connolly’s prayer for relief seeks relief only for herself and consists solely of remedies
from which only she will benefit, such as reinstatement and compensatory and punitive
damages. (Doc. 26 at 13); see Storman, 395 F. App’x at 794.
In Huth v. Haslan, 598 F.3d 70, 75 (2d Cir. 2010), the Second Circuit found that a
state employee’s lawsuit arising out of her demotion following her reports about a co32

worker’s conduct was not a matter of public concern. The decision was based in part
upon the Second Circuit’s reasoning that:
Huth’s original complaint, which she contends was protected speech and
the basis for defendants’ further retaliation, alleged only that defendants
retaliated against her for specific statements she made to her supervisor and
for the union activities of [another employee]. Much like other public
employee speech that we have held not to be protected from retaliation by
the First Amendment, Huth’s lawsuit was personal in nature and generally
related to her own situation. Significantly, there is no suggestion in this
record that Huth wanted to debate issues of discrimination, that her suit
sought relief against pervasive or systemic misconduct by a public agency
or public officials, or that her suit was part of an overall effort to correct
allegedly unlawful practices or bring them to public attention. Considering
the record as a whole, we conclude that Huth’s original complaint was not
speech on a matter of public concern and, therefore, was not protected from
retaliation by the First Amendment.
Id. at 74-75 (citations, quotations, and ellipses omitted); see also Ezekwo v. N.Y.C. Health
& Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991); Peterson v. City of Rochester, No. 06CV-6003, 2010 WL 1408013, at *12 (W.D.N.Y. Mar. 31, 2010).
The same reasoning applies here. Connolly argues that her lawsuit is protected
speech because its content “is of significant importance and interest to the citizens of
Rutland” and the lawsuit “concerns the means and methods by which the City’s . . .
budget and property tax rates were adopted.” Connolly further asserts that the content of
the speech “concerns [Mayor Louras’s] claim, made in the City’s Annual Report . . . that
he had to eliminate funding for three full-time employees in order to achieve his political
goal of ‘maintaining the tax rate.’” (Doc. 50 at 25.) Connolly’s original Complaint,
however, raised claims arising out of Defendants’ conduct in connection with her
termination. Just as the plaintiff in Huth, the nature of Connolly’s lawsuit is personal to

33

her and generally related to her own situation. Likewise, there is no suggestion in her
complaint that Connolly seeks to “debate issues of discrimination” or obtain “relief
against pervasive or systemic misconduct by a public agency or public officials.” Huth,
598 F.3d at 74-75. Nor is there any indication that this lawsuit is part of an overall effort
to correct allegedly unlawful practices or bring them to public attention.
The Court acknowledges that “[d]iscussion regarding current government policies
and activities is perhaps the paradigmatic matter of public concern,” Harmon v. City of
New York, 140 F.3d 111, 118 (2d Cir. 1998), and “[m]atters of public concern . . . include
speech aimed at uncovering wrongdoing or breaches of public trust,” Johnson v. Ganim,
342 F.3d 105, 113 (2d Cir. 2003). However, “a public employee may not transform a
personal grievance into a matter of public concern by invoking a supposed popular
interest in the way public institutions are run.” Ruotolo, 514 F.3d at 190. Connolly’s
lawsuit does not directly “concern” the City budget or claims made in its Annual Report.
Her lawsuit was neither brought to “[d]iscuss[ ] . . . current government policies,”
Harmon, 140 F.3d at 118, nor “aimed at uncovering . . . breaches of public trust,”
Ganim, 342 F.3d at 113. Connolly’s only argument related to the City budget pertains to
her claim that the City’s “lack of funds” is a sham. This argument constitutes a
complaint about Connolly’s “own dissatisfaction with the conditions of [her]
employment.” Sousa, 578 F.3d at 174. Accordingly, Connolly’s lawsuit does not pertain
to a matter of public concern.

34

2. Adverse Employment Action
It is well-established that an employer’s refusal to rehire a terminated employee is
an adverse employment action sufficient to sustain a claim of retaliation. Mt. Healthy
City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 283 (1977). “[W]hether an undesirable
employment action qualifies as being adverse is a heavily fact-specific, contextual
determination.” Zelnik, 464 F.3d at 226 (citation omitted).
Here, Defendants hired two part-time employees shortly after Connolly was
terminated. However, as noted above, the Court concludes that Connolly’s speech is not
on a matter of public concern. Where employee’s speech is not on a matter of public
concern, “no First Amendment claim arises, and that ends the matter.” Craccilo v. Vill.
of Seneca Falls, 582 F. Supp. 2d 390, 405 (W.D.N.Y. 2008). Thus, the Court need not
address this issue further.
II.

Qualified Immunity and Lack of Personal Involvement
Mayor Louras moves for summary judgment on all of Connolly’s claims, arguing

that he is entitled to qualified immunity. (Doc. 43.) In the alternative, Mayor Louras
argues that the Court should grant his Motion with respect to Connolly’s First
Amendment retaliation claim because he lacked personal involvement in the alleged
retaliatory conduct. (Doc. 43-1 at 13.)
The Court concludes that Defendants are entitled to summary judgment for the
reasons stated above. Alternatively, Mayor Louras’s Motion for Summary Judgment is
granted on the basis of qualified immunity for the following reasons.

35

When government officials abuse their offices, “action[s] for damages may offer
the only realistic avenue for vindication of constitutional guarantees.” Harlow v.
Fitzgerald, 457 U.S. 800, 814 (1982). “On the other hand, permitting damages suits
against government officials can entail substantial social costs, including the risk that fear
of personal monetary liability and harassing litigation will unduly inhibit officials in the
discharge of their duties.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). These
conflicting concerns are accommodated by “providing government officials performing
discretionary functions with a qualified immunity, shielding them from civil damages
liability as long as their actions could reasonably have been thought consistent with the
rights they are alleged to have violated.” Id.; Malley v. Briggs, 475 U.S. 335, 341 (1986)
(qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law”); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (officials are immune
unless “the law clearly proscribed the actions” they took). Thus, “government officials
performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818.
In resolving government officials’ qualified immunity claims, the Court must
decide (1) whether the facts shown by the plaintiff make out a violation of a
constitutional right, and (2) whether that right was “clearly established” at the time of the
defendant’s alleged misconduct. Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009).
The Court may exercise its “sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
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particular case at hand.” Id. at 818. Rather than being “a mere defense to liability,”
qualified immunity is “an immunity from suit,” which is “effectively lost if a case is
erroneously permitted to go to trial.” Springfield Hosp. v. Hoffman, No. 09-cv-00254-cr,
2010 WL 3322716, at *13 (D. Vt. Apr. 9, 2010) (quoting Mitchell, 472 U.S. at 526).
In this case, the first prong has already been addressed. As set forth above, the
Court found that Connolly did not allege facts sufficient to make out a violation of a
constitutional right. See Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007).
Nevertheless, even assuming that Connolly has alleged facts sufficient to make out a
violation of a constitutional right, Louras would still be entitled to qualified immunity
because Connolly’s rights under the First and Fourteenth Amendments were not “clearly
established” at the time of Louras’s alleged misconduct.
A right is clearly established if its “contours [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Creighton, 483 U.S. at 640. In determining whether the official violated a clearly
established right, the Court considers whether (1) the right was defined with reasonable
clarity; (2) the Supreme Court or Second Circuit has recognized the right; and (3) a
reasonable defendant would have understood from existing law that his conduct was
unlawful. Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003). “The question is not
what a lawyer would learn or intuit from researching case law, but what a reasonable
person in the defendant’s position should know about the constitutionality of the
conduct.” Id. (quotation omitted).

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The operation of this standard, however, depends substantially upon
the level of generality at which the relevant legal rule is to be identified.
For example, the right to due process of law is quite clearly established by
the Due Process Clause, and thus there is a sense in which any action that
violates that Clause (no matter how unclear it may be that the particular
action is a violation) violates a clearly established right. Much the same
could be said of any other constitutional or statutory violation. But if the
test of clearly established law were to be applied at this level of generality,
it would bear no relationship to the objective legal reasonableness that is
the touchstone of Harlow. . . . [O]ur cases establish that the right the
official is alleged to have violated must have been clearly established in a
more particularized, and hence more relevant, sense: The contours of the
right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right. This is not to say that an official
action is protected by qualified immunity unless the very action in question
has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Creighton, 483 U.S. at 639-40 (quotations omitted).
Applying these principles to Connolly’s due process claims, the Court concludes
that Connolly did not have a clearly established right to a post-termination proceeding
before the BCA. Although the Supreme Court and the Second Circuit have recognized
that a public employee is entitled to some level of due process in conjunction with
termination proceedings, these courts have not held that such rights necessarily extend to
circumstances in which employees are laid off for economic or budget-related reasons
unrelated to job performance. See Dwyer, 777 F.2d at 833; cf. Whalen, 397 F.3d at 25
(“[W]e have recognized a limited ‘reorganization exception’ to due process that
eliminates the need for a hearing where a reorganization or other cost-cutting measure
results in the dismissal of an employee.”). A reasonable person in Louras’s position
could not have understood from existing law that eliminating funding for a position from

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the City’s budget without providing Connolly with a post-termination hearing constituted
unlawful conduct in violation of Connolly’s constitutional rights.
Connolly’s First Amendment right in relation to her retaliation claim is also not
clearly established. As discussed above, it is not clearly established that, in filing the
lawsuit, Connolly engaged in any speech as a citizen on matters of public concern rather
than as an employee on matters of personal interest. Connick, 461 U.S. at 146. A
reasonable person in Louras’s position could not have understood from existing law that
Connolly’s lawsuit constituted protected activity under the First Amendment.
In short, any unlawful conduct on the part of Louras that resulted in a violation of
Connolly’s constitutional rights was not apparent. Accordingly, in the event a
constitutional violation occurred, Louras would be entitled to qualified immunity.
Because the Court concludes that Mayor Louras is entitled to qualified immunity, it need
not address whether Mayor Louras lacked personal involvement in the alleged retaliatory
conduct.
III.

State Law Claims
Having concluded that Defendants are entitled to summary judgment on

Connolly’s federal claims, the Court declines to retain supplemental jurisdiction over the
pendent state law claims. See 28 U.S.C. 1367(c)(3); Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988) (“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims.”); Matican v. City of New York, 524
F.3d 151, 155 (2d Cir. 2008) (“[I]f [plaintiff] has no valid claim under § 1983 against any
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defendant, it is within the district court’s discretion to decline to exercise supplemental
jurisdiction over the pendent state-law claims.”).
Conclusion
The Court GRANTS Defendants’ Joint Motion for Summary Judgment (Doc. 39).
The Court DENIES Connolly’s Motion for Partial Summary Judgment (Doc. 47).
Connolly’s state law claims are DISMISSED without prejudice.

Dated at Burlington, in the District of Vermont, this 24th day of August, 2011.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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