Looney v. Black

702 F.3d 701, 2012 WL 6633949
CourtCourt of Appeals for the Second Circuit
DecidedDecember 21, 2012
Docket11-3486-cv
StatusPublished
Cited by75 cases

This text of 702 F.3d 701 (Looney v. Black) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Looney v. Black, 702 F.3d 701, 2012 WL 6633949 (2d Cir. 2012).

Opinions

Judge DRONEY dissents in a separate opinion.

STRAUB, Circuit Judge:

Plaintiff Patrick Looney served as the Building Official for the Town of Marlborough, Connecticut from 1994 until 2010. He now sues Marlborough as well as three members of Marlborough’s Board of Selectmen, Defendants-Appellants William Black, Riva Clark, and Joseph LaBella, under 42 U.S.C. § 1983, alleging that he was deprived of his procedural due process and free speech rights when his position was reduced from full to part time after he made certain statements regarding the use of wood-burning stoves, as well as when he subsequently was not reappointed as the town’s Building Official.

For the reasons that follow, we hold that the District Court erred in determining that Defendant-Appellant Black was not entitled to qualified immunity as to Looney’s Fourteenth Amendment procedural due process claim, as Looney has not adequately alleged that he had a constitutionally protected property right in full-time employment. We hold also that the District Court erred in determining that Defendants-Appellants Black, Clark, and LaBella were not entitled to qualified immunity as to Looney’s First Amendment claim, as Looney does not adequately allege that he spoke in his capacity as a private citizen. Accordingly, we REVERSE the order of the District Court, and REMAND the case with the direction that the District Court enter judgment for Defendants-Appellants.

BACKGROUND

The following facts are drawn from the allegations in Looney’s Second Amended Complaint (“SAC”) and are assumed true for purposes of this appeal.

The position of Building Official is established in the town of Marlborough, Connecticut’s Town Charter (“Charter”). The Charter notes that the powers and duties of the position are prescribed by ordinance and the Connecticut General Statutes. The Charter also gives Marlborough’s Board of Selectmen the power to appoint all officers set forth therein, including the Building Official.

Connecticut law provides that a Building Official is appointed to a “term of four years and until his successor qualifies.... ” Conn. Gen.Stat. § 29-260(a). A Building Official may be “dismissed” under the procedures set forth in Connecticut General Statutes § 29-260(b) and (c) if and when he “fails to perform the duties of his office.” Id. § 29-260(b), (c). The Charter notes that approval of the entire Board of Selectmen is needed to discharge or remove any appointed official or employee of the town, including the Building Official.

Looney was appointed as Marlborough’s Building Official on August 15, 1994. He learned of the position from a public notice that quoted a salary and stated that the position included a pension and benefits package, both of which are available only to full-time employees. Prior to his accepting the job, Marlborough’s then-First Selectman Howard Dean told Looney that he would be given full-time, salaried employment at $33,000 per year, along with a full benefits package.

Subsequently, Looney was reappointed as Marlborough’s Building Official four [704]*704times, in November 1995, November 1999, February 2004, and April 2006. At this last reappointment, Marlborough’s Board of Selectmen “decided to ‘continue [his] appointment per C.G.S. Sec. 29-260(a) for an additional four years.’ ” (JA-90, ¶ 17.) No other conditions or terms of this last reappointment were noted by the Board of Selectmen at that time.

Throughout these appointments, and until February 2, 2010, Looney was always a “full[-]time employee entitled to all benefits provided to full-time employees according to Section 1.1 C of the Town’s Personnel Rules and Regulations. These benefits included, but were not limited to, group health and dental insurance, group life insurance, long term disability insurance, contributions to retirement, bereavement leave, personal days, leave of absence with pay for jury duty, reimbursement/ accumulated sick leave, holiday pay, and vacation pay.” (JA-90-91, ¶ 19.) A collective bargaining agreement (“CBA”) entered into between the town and Local 1303-433 of Council 4 AFSCME, AFL-CIO (“Union”) on July 1, 2007 recognized the position of Building Official as full time.

In October 2009, Looney filed a grievance relating to a purported infringement of his First Amendment rights by his supervisor Peter Hughes, who served as Marlborough’s Planning & Development Director. Hughes allegedly attempted “to limit [Looney’s] communication of information to a Town resident regarding wood burning boiler/stove and smoke discharge as public health concerns.” (JA-91-92, ¶ 23.)

After Looney filed his grievance against Hughes, matters escalated. Hughes again requested that Looney not “engage in discussions of substantive matters outside his job duties concerning other Town agencies] or jurisdiction[s].” (JA-92, ¶ 24.) Looney continued to protest Hughes’s attempts to limit his communication with the public and ultimately retained counsel. His counsel sent Black a letter on December 23, 2009 advising him that Hughes’s restriction was an “illegal prior restraint on speech in violation of the First Amendment.” (JA-92, ¶¶ 25, 26.) Marlborough announced a week later that it would not remove the restriction Hughes had placed on Looney’s speech, and threatened to discipline or discharge Looney. On January 4, 2010, Marlborough’s counsel informed the Union that certain of its members would be laid off or have then-hours reduced, and that the Building Official position would be reduced to 20 hours a week.

Looney then received a letter from Black on January 28, 2010, confirming the reduction in his hours, and stating that he would be paid “$33 per hour with no additional compensation for loss of benefits.” (JA-93, ¶ 29.) On April 5, 2010, Looney notified Marlborough that he intended to file suit against the town for the events that had transpired. He then commenced this litigation on June 14, 2010, asserting claims pursuant to 42 U.S.C. § 1983 based on violations of the First Amendment and the Fourteenth Amendment procedural due process guarantee.

After the lawsuit had commenced, Black announced that he planned to post a notice seeking to fill the Building Official position. LaBella and Clark, as Selectmen, were included in the search committee that interviewed candidates for the position. Looney applied to be reappointed during the application period, and during his interview LaBella noted “that he had brought a lawsuit against” Marlborough. (JA-94, ¶ 39.) Clark also stated during the interview that she had “serious issues recommending someone who is suing the Town.” (JA-94, ¶ 40.) Black, Clark, and LaBella all voted for a candidate other [705]*705than Looney to fill the position. Looney was not reappointed.

On September 30, 2010, Black, Clark, and Labella moved to dismiss Looney’s complaint on the grounds that, inter alia, all three individual defendants were entitled to qualified immunity as to the applicable claims.1 Looney then sought leave to file the SAC. The District Court granted Looney’s motion to file the SAC, and denied defendants’ motion to dismiss in its entirety.

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Bluebook (online)
702 F.3d 701, 2012 WL 6633949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/looney-v-black-ca2-2012.