McManus v . Cheshire County, NH CV-96-223-SD 11/24/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick F. McManus
v. Civil N o . 96-223-SD
Cheshire County, New Hampshire
O R D E R
In this civil rights action, plaintiff Patrick F. McManus claims that defendant Cheshire County, New Hampshire, terminated his employment without due process of law. In addition, McManus claims that his termination by Cheshire County breached the employment contract and the state right-to-know laws, New Hampshire Revised Statutes Annotated (RSA) 91-A:3.
Facts
In January 1987 defendant Cheshire County hired plaintiff
McManus as the Nursing Home Administrator and Superintendent of
the Cheshire County Farm and Jail. McManus reported directly to
the Cheshire County Commissioners, who evaluated plaintiff's job
performance yearly. In 1992 the Commissioners began giving
plaintiff negative evaluations and continued to do so for several
years.
In early August 1995 the Commissioners met at a regularly scheduled meeting and made a decision to seek plaintiff's removal from his position. Plaintiff was never notified of the Commissioners' intent to discuss his termination at the August meeting. Later in the month of August, the Commissioners requested plaintiff's resignation. He declined, and further requested that the Commissioners provide him with written notice. On August 25 the Commissioners complied with plaintiff's request, providing him with written notice explicating the grounds and providing that his termination would be effective one month later, on September 2 5 , 1995.
Plaintiff requested a hearing before the personnel committee, as was his right under state law as a tenured employee. After a two-day evidentiary hearing that began in December 1995, the personnel committee found that there was good cause for plaintiff's termination. Plaintiff appealed to the New Hampshire Supreme Court, which affirmed without opinion.
Discussion
Plaintiff claims that defendant Cheshire County deprived
him of property without due process of law by terminating his
employment without first providing him an opportunity to be heard
in defense of his job. "The Due Process Clause of the Fourteenth
2 Amendment 'provides that certain substantive rights--life,
liberty, and property--cannot be deprived except pursuant to
constitutionally adequate procedures.'" Silva v . University of
N.H., 888 F. Supp. 293, 317 (D.N.H. 1994) (quoting Cleveland Bd.
of Educ. v . Loudermill, 470 U.S. 5 3 2 , 541 (1985)). Property
interests protected under the Due Process Clause are not created by the Constitution, but rather are defined by an independent
source such as state law. Board of Regents v . Roth, 408 U.S.
564, 577 (1972). RSA 28:10-a, I (1988) provides: “Any employee
of a county institution who has served at least one year shall
not be discharged, removed, or suspended from employment except
for [cause].” The United States Supreme Court has held that
state statutes that confer the right to continued employment
except upon removal for cause create a constitutionally protected
property interest. Loudermill, supra, 470 U.S. at 539. As a
tenured employee under RSA 28:10-a, McManus's interest in his job
constituted property protected under the Due Process Clause.
“An essential principle of due process is that a deprivation
of life, liberty, or property be preceded by notice and
opportunity for hearing appropriate to the nature of the case.”
Id. at 542 (internal quotations omitted). Under this principle,
this is an easy case, despite extensive argumentation from both
sides. The clear fact remains that McManus was denied any
3 opportunity to be heard in defense of his job until the formal
hearing held pursuant to state law RSA 28:10-a on December 2 1 ,
1995, almost three months after his termination became effective
on September 2 5 , 1995. However, a post-deprivation hearing is
not constitutionally adequate process by which to deprive a
public employee of his job. Loudermill, supra, 470 U.S. at 542 (finding due process violation despite post-termination hearing
because “an individual [must] be given an opportunity for a
hearing before he is deprived of any significant property
interest” (internal quotations omitted)). Since McManus was
given no hearing before his termination, Cheshire County deprived
him of his property interest in his job without due process of
law.
The court disagrees with defendant that plaintiff’s due
process claim is precluded by collateral estoppel, a doctrine
which prohibits relitigation of issues that were already
litigated and resolved in a prior action. Cheshire County argues
that the personnel committee's findings against McManus at the
close of the December 21 hearing have preclusive effect on
McManus's due process claim. However, the committee's findings
were limited, as the committee noted that its "sole task is to
determine whether good cause existed for the personnel action
taken by the Commission in discharging M r . McManus . . . .”
4 Decision of the Personnel Committee, Exhibit M attached to Defendant’s Motion for Summary Judgment at 3 . RSA 28:10-a grants the personnel committee limited authority to resolve the "just cause" issue, but does not grant general authority to decide all the claims an employee may have against the county. Thus the personnel committee’s limited finding that Cheshire County had sufficient "just cause" to terminate McManus has no preclusive effect on the unrelated due process issue in this case of whether plaintiff was terminated through constitutionally sufficient procedures.
The defendant relies heavily on Meehan v . Town of East Lyme, 919 F. Supp. 8 0 , 83 (D. Conn. 1996), which this court finds to be obviously distinguishable. Under Connecticut law, Meehan, a tenured public employee, appealed an adverse administrative ruling on the "just cause" issue to the Connecticut superior court, which had the authority to consider plaintiff's additional claim, raised on appeal, that his termination violated due process. After the superior court found against plaintiff on his due process claim, plaintiff raised the same due process claim in federal court under 42 U.S.C. § 1983. The federal district court dismissed the section 1983 claim on the ground of collateral estoppel. However, the case at hand is readily distinguishable from Meehan because there has been no prior finding on the due
5 process issue as there was in Meehan.
Even though McManus’s procedural due process rights were
violated by lack of a pretermination hearing, this court is not
convinced McManus suffered any injury, which is an essential
element of his section 1983 claim. Carey v . Piphus, 435 U.S. 247
(1978). Section 1983 was intended to provide a civil remedy to compensate persons for injuries caused by the deprivation of
their constitutional rights. McManus can carry his burden of
proving injury in one of two ways. First, he can establish that
he would not have been terminated had a proper pretermination
hearing been held. However, McManus will be collaterally
estopped from denying that his termination was justified since
that issue was already resolved in the December 2 1 , 1995, hearing
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McManus v . Cheshire County, NH CV-96-223-SD 11/24/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick F. McManus
v. Civil N o . 96-223-SD
Cheshire County, New Hampshire
O R D E R
In this civil rights action, plaintiff Patrick F. McManus claims that defendant Cheshire County, New Hampshire, terminated his employment without due process of law. In addition, McManus claims that his termination by Cheshire County breached the employment contract and the state right-to-know laws, New Hampshire Revised Statutes Annotated (RSA) 91-A:3.
Facts
In January 1987 defendant Cheshire County hired plaintiff
McManus as the Nursing Home Administrator and Superintendent of
the Cheshire County Farm and Jail. McManus reported directly to
the Cheshire County Commissioners, who evaluated plaintiff's job
performance yearly. In 1992 the Commissioners began giving
plaintiff negative evaluations and continued to do so for several
years.
In early August 1995 the Commissioners met at a regularly scheduled meeting and made a decision to seek plaintiff's removal from his position. Plaintiff was never notified of the Commissioners' intent to discuss his termination at the August meeting. Later in the month of August, the Commissioners requested plaintiff's resignation. He declined, and further requested that the Commissioners provide him with written notice. On August 25 the Commissioners complied with plaintiff's request, providing him with written notice explicating the grounds and providing that his termination would be effective one month later, on September 2 5 , 1995.
Plaintiff requested a hearing before the personnel committee, as was his right under state law as a tenured employee. After a two-day evidentiary hearing that began in December 1995, the personnel committee found that there was good cause for plaintiff's termination. Plaintiff appealed to the New Hampshire Supreme Court, which affirmed without opinion.
Discussion
Plaintiff claims that defendant Cheshire County deprived
him of property without due process of law by terminating his
employment without first providing him an opportunity to be heard
in defense of his job. "The Due Process Clause of the Fourteenth
2 Amendment 'provides that certain substantive rights--life,
liberty, and property--cannot be deprived except pursuant to
constitutionally adequate procedures.'" Silva v . University of
N.H., 888 F. Supp. 293, 317 (D.N.H. 1994) (quoting Cleveland Bd.
of Educ. v . Loudermill, 470 U.S. 5 3 2 , 541 (1985)). Property
interests protected under the Due Process Clause are not created by the Constitution, but rather are defined by an independent
source such as state law. Board of Regents v . Roth, 408 U.S.
564, 577 (1972). RSA 28:10-a, I (1988) provides: “Any employee
of a county institution who has served at least one year shall
not be discharged, removed, or suspended from employment except
for [cause].” The United States Supreme Court has held that
state statutes that confer the right to continued employment
except upon removal for cause create a constitutionally protected
property interest. Loudermill, supra, 470 U.S. at 539. As a
tenured employee under RSA 28:10-a, McManus's interest in his job
constituted property protected under the Due Process Clause.
“An essential principle of due process is that a deprivation
of life, liberty, or property be preceded by notice and
opportunity for hearing appropriate to the nature of the case.”
Id. at 542 (internal quotations omitted). Under this principle,
this is an easy case, despite extensive argumentation from both
sides. The clear fact remains that McManus was denied any
3 opportunity to be heard in defense of his job until the formal
hearing held pursuant to state law RSA 28:10-a on December 2 1 ,
1995, almost three months after his termination became effective
on September 2 5 , 1995. However, a post-deprivation hearing is
not constitutionally adequate process by which to deprive a
public employee of his job. Loudermill, supra, 470 U.S. at 542 (finding due process violation despite post-termination hearing
because “an individual [must] be given an opportunity for a
hearing before he is deprived of any significant property
interest” (internal quotations omitted)). Since McManus was
given no hearing before his termination, Cheshire County deprived
him of his property interest in his job without due process of
law.
The court disagrees with defendant that plaintiff’s due
process claim is precluded by collateral estoppel, a doctrine
which prohibits relitigation of issues that were already
litigated and resolved in a prior action. Cheshire County argues
that the personnel committee's findings against McManus at the
close of the December 21 hearing have preclusive effect on
McManus's due process claim. However, the committee's findings
were limited, as the committee noted that its "sole task is to
determine whether good cause existed for the personnel action
taken by the Commission in discharging M r . McManus . . . .”
4 Decision of the Personnel Committee, Exhibit M attached to Defendant’s Motion for Summary Judgment at 3 . RSA 28:10-a grants the personnel committee limited authority to resolve the "just cause" issue, but does not grant general authority to decide all the claims an employee may have against the county. Thus the personnel committee’s limited finding that Cheshire County had sufficient "just cause" to terminate McManus has no preclusive effect on the unrelated due process issue in this case of whether plaintiff was terminated through constitutionally sufficient procedures.
The defendant relies heavily on Meehan v . Town of East Lyme, 919 F. Supp. 8 0 , 83 (D. Conn. 1996), which this court finds to be obviously distinguishable. Under Connecticut law, Meehan, a tenured public employee, appealed an adverse administrative ruling on the "just cause" issue to the Connecticut superior court, which had the authority to consider plaintiff's additional claim, raised on appeal, that his termination violated due process. After the superior court found against plaintiff on his due process claim, plaintiff raised the same due process claim in federal court under 42 U.S.C. § 1983. The federal district court dismissed the section 1983 claim on the ground of collateral estoppel. However, the case at hand is readily distinguishable from Meehan because there has been no prior finding on the due
5 process issue as there was in Meehan.
Even though McManus’s procedural due process rights were
violated by lack of a pretermination hearing, this court is not
convinced McManus suffered any injury, which is an essential
element of his section 1983 claim. Carey v . Piphus, 435 U.S. 247
(1978). Section 1983 was intended to provide a civil remedy to compensate persons for injuries caused by the deprivation of
their constitutional rights. McManus can carry his burden of
proving injury in one of two ways. First, he can establish that
he would not have been terminated had a proper pretermination
hearing been held. However, McManus will be collaterally
estopped from denying that his termination was justified since
that issue was already resolved in the December 2 1 , 1995, hearing
before the personnel committee and then again in the appeal
before the New Hampshire Supreme Court.1 Second, the United
States Supreme Court has observed that the Due Process Clause not
only safeguards against erroneous deprivations of property, but also guarantees “the 'feeling of just treatment' by the
government.” Carey, supra, 435 U.S. at 261 (quoting Anti-Fascist
1 For this reason, plaintiff's motion to exclude evidence of the earlier decisions of the personnel committee and the New Hampshire Supreme Court is denied. Those decisions are relevant to the issue of plaintiff's injury. However, the court does agree that evidence that the county operations are running more profitably than when plaintiff was in charge is irrelevant.
6 Committee v . McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J., concurring)). The Court went on to add that even when a deprivation is ultimately justified, the citizen may nonetheless suffer mental and emotional distress from denial of the “feeling of just treatment.” However, such mental and emotional distress cannot be presumed. Id. at 262. On the contrary, plaintiff must prove that he suffered distress from deficiencies in procedure rather than from the deprivation of property itself. Since neither party has briefed this issue, the court leaves it to the parties to file the necessary motions and supporting memoranda if they choose to do s o .
McManus also claims that he was denied pretermination notice, which is an essential element of due process. At McManus’s request, the Commissioners sent him written notice on August 25 explicating the grounds for his termination.
Defendant’s Motion for Summary Judgment, Exhibit F. Plaintiff argues that this August 25 notice came too late to constitute pretermination notice because the Commissioners had already terminated his employment at their regularly scheduled meeting in early August. However, plaintiff's argument misunderstands the term "termination," which denotes a formal severance of the employment relation. At the August meeting, the Commissioners simply decided to begin the process of terminating plaintiff, but
7 the August 25 notice specifically provided that plaintiff's
termination would not be effective until September 2 5 . Just as
a decision to marry does not effect a formal marriage, and a
decision to contract does not formally render one contractually
bound, the Commissioners' August decision to terminate McManus
did not effect a formal severance of the employment relation. Rather, plaintiff was not formally terminated until September 2 5 ,
1995, the date when the August notice given to plaintiff
specifically stated that the termination would be effective.
Since the August notice preceded the September termination of
plaintiff's employment, Cheshire County gave plaintiff
constitutionally sufficient pretermination notice.
Plaintiff’s next due process claim alleges flaws in the
December 2 1 , 1995, hearing held before the personnel committee
pursuant to RSA 28:10-a. Plaintiff claims that the personnel
committee denied his requests for hearing and deposition
subpoenas and “created a flawed hearing process in which the
plaintiff had no ability to compel the attendance of witnesses he
intended to call.” Complaint ¶ 6 9 . However, the Due Process
Clause only guarantees a pretermination hearing and, even then,
“something less than a full evidentiary hearing is sufficient
prior to adverse administrative action.” Loudermill, supra, 470
U.S. at 532. There is no due process right to a full evidentiary
8 hearing after the challenged deprivation. Plaintiff's right to
the post-termination hearing held in this case emanated from RSA
28:10-a, and his argument that the hearing was unlawful is a
state law claim.
Likewise, plaintiff’s claim that defendant failed to accord
him progressive discipline prior to termination as promised in the Cheshire County Employee Handbook is also a state law claim.
The question of what process is due to a tenured public employee
before termination is a federal constitutional question. Courts
have never held that tenured employees are entitled to any
process beyond notice and an opportunity to be heard.
Loudermill, supra, 470 U.S. at 542 (“We have described the root
requirement of the Due Process Clause as being that an individual
be given an opportunity for a hearing before he is deprived of
any significant property interest.” (Internal quotations
omitted.)) Progressive discipline has not been held to be part
of the process due tenured employees under the Due Process
Clause. States certainly may provide their employees procedural
protections, such as progressive discipline, that go beyond the
minimum set by the Constitution, but a claim that those
additional procedural protections have been ignored is a state
law claim. See Voigt v . Savell, 70 F.3d 1552, 1563 (9th Cir.
1995) (“[Plaintiff] contends that the defendants failed to follow
9 the extensive procedures established by state law, such as constructive and progressive discipline. That claim must be presented to [a state] court.”). Next, plaintiff challenges the constitutionality of RSA 28:10-a, I I , which provides:
Any employee of a county institution who has served at last one year shall not be discharged, removed, or suspended from employment except for dishonesty, intoxication, immoral behavior or other misconduct, neglect of duty, negligence, willful insubordination, lack of cooperation, inefficiency, incapacity or unfitness to perform his duties, or for the good of the institution to which he is assigned . . . .
Essentially, plaintiff complains that “for the good of the
institution” is an unconstitutionally vague basis for discharge,
violative of substantive due process. Were this a criminal
statute, pursuant to which the state asserted the right to
deprive a citizen of liberty “for the good of the institution,”
there is no doubt the statute would violate due process.
However, unlike liberty, property interests have no extralegal
source, and “they are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law.” Loudermill, supra, 470 U.S. at 538.
The implication is that there are no standards by which to
challenge the dimensions of property interests created by state
law. Such standards could only come from a source outside of
10 state law and, according to the Court in Loudermill, such sources do not exist. Thus there are no standards to which plaintiff can appeal to support his claim that the dimensions of his property interest in his job are unconstitutionally vague. Plaintiff’s breach of contract claim is likewise meritless. Plaintiff claims that the Cheshire County Employee Handbook promised progressive discipline prior to termination, which he was denied. The Handbook provides that "[e]very employer may need at some time to administer discipline. Both unwarranted discipline and failure to discipline can adversely affect employee morale. While progressive discipline is usually employed, the specific disciplinary action may vary depending upon circumstances and nature of the offense." Defendant's Memorandum in Support of Motion for Summary Judgment at 1 4 . The use of the word “may” unambiguously indicates that progressive discipline is discretionary, and under the plain meaning rule, Echo Consulting Servs. v . North Conway Bank, 140 N.H. 566, 569, 669 A.2d 2 2 7 , 230 (1995), this understanding controls. Thus Cheshire County did not breach the employment contract by failing to accord McManus progressive discipline.
Alternatively, McManus claims that Cheshire County abused its discretion to accord progressive discipline in violation of the covenant of good faith and fair dealing, which has been
11 defined as follows: [U]nder an agreement that appears by word or silence to invest one party with a degree of discretion in performance sufficient to deprive another party of a substantial proportion of the agreement's value, the parties' intent to be bound by an enforceable contract raises an implied obligation of good faith to observe reasonable limits in exercising that discretion, consistent with the parties' purpose or purposes in contracting.
Centronics Corp. v . Genicom Corp., 132 N.H. 133, 143 (1989).
Under Centronics, it is not all contractual discretion that is circumscribed by the covenant; rather, it is only that discretion
which is sufficient to deprive the other party of a substantial
portion of the agreement's value. See id. at 141 (providing
examples of such discretion, like a promise to pay $200 per month
for "such [personal] services as [the plaintiff] in his sole
discretion, may render"). Cheshire County's discretion in
according progressive discipline was not sufficient to deprive
McManus of a substantial portion of the employment contract's value, which was the right to his job except upon termination for
cause. Even if Cheshire County exercised its discretion against
according McManus progressive discipline, he could still only be
terminated for cause, guaranteeing to plaintiff a substantial
portion of the employment contract's value, regardless of
defendant's discretion to accord progressive discipline. The
covenant of good faith and fair dealing was not intended to
12 protect solely collateral contract benefits, like the right to progressive discipline. See Carriage Hill Health Care v . Hayden, N o . 96-101-SD, slip o p . at 5-8 (D.N.H. Apr. 3 0 , 1997) (Devine, J.). The covenant did not circumscribe defendant's discretion in according progressive discipline.
Last, plaintiff claims that defendants violated the state right-to-know law, RSA 91-A:3, under which “a governmental body may not move to go into executive session for the purpose of considering the termination of a public employee unless it has previously put that employee on notice that such a motion would be made.” Johnson v . Nash, 135 N.H. 5 3 4 , 538 (1992). According to McManus, Cheshire County violated this provision when the Commissioners considered McManus’s termination at the regularly scheduled meeting in August without providing him notice. The court agrees. Cheshire County's contention that the August meeting of Commissioners was a chance meeting which did not trigger a duty to notify McManus is too frivolous to merit discussion.
Cheshire County contends that the right-to-know law does not authorize the remedies sought by plaintiff, which include back pay, front pay, employment benefits, and attorney’s fees. At the outset, plaintiff is not entitled to attorney’s fees because RSA 91-A:8, I , specifically limits attorney’s fees to willful violations, and plaintiff has produced not one shred of evidence
13 in support of his claim that the Commissioners acted willfully.
In addition, the clear language of the statute would appear to
preclude the other remedies sought by plaintiff. Under RSA
91-A:8, the "Remedies" section of the right-to-know law, no
provision is made for traditional compensatory damages such as
front pay, back pay, and employment benefits. Nonetheless, in
Nash, a case directly on point, the New Hampshire Supreme Court
upheld a superior court order that “reinstated plaintiff to his
post with back pay and awarded him attorney fees.” Id. at 535
(emphasis added). This indicates that compensatory damages are
recoverable, even though the statute does not specifically
provide for such damages.
Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted as to all counts except Count VII and Count
III, to the extent that it alleges failure to provide a
pretermination hearing.
14 Plaintiff's motion in limine is denied as to evidence of
prior rulings and granted as to evidence of subsequent operations
of the county.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
November 2 5 , 1997 cc: Jonathan S . Springer, Esq. Donald E . Gardner, Esq. Kathleen C . Peahl, Esq. Attorney General - NH