Russo v. School Board

835 F. Supp. 2d 125, 2011 WL 6293892, 2011 U.S. Dist. LEXIS 144444
CourtDistrict Court, E.D. Virginia
DecidedDecember 15, 2011
DocketCivil Action No. 4:11cv68
StatusPublished
Cited by3 cases

This text of 835 F. Supp. 2d 125 (Russo v. School Board) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russo v. School Board, 835 F. Supp. 2d 125, 2011 WL 6293892, 2011 U.S. Dist. LEXIS 144444 (E.D. Va. 2011).

Opinion

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before the Court is Defendant’s Motion to Dismiss, or in the alternative, for Summary Judgment, pursuant to Rules 12(b)(1) and 56 of the Federal Rules of Civil Procedure, respectively. This matter has been fully briefed and is ripe for judicial determination. For the reasons set forth herein, Defendant’s Motion to Dismiss is GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY

Dr. Patrick J. Russo (“Dr. Russo”) has brought this action against the School Board of the City of Hampton, Virginia (“School Board”), alleging various constitutional and breach of contract claims arising from an employment contract by which the School Board employed Dr. Russo as Superintendent of Hampton City Schools between July 1, 2004 and June 30, 2009. Am. Compl. ¶¶ 1-2, 74-113. As there have been parallel proceedings in Virginia state court on this matter, the procedural history will incorporate that proceeding, which is summarized infra.

A. Factual History

The School Board hired Dr. Russo as Superintendent under a four-year contract beginning July 1, 2004. Am. Compl. ¶ 1. This 2004 contract contained a contract extension provision. Def.’s Br. Supp. Mot. Dismiss or Alternative, Summ. J. at ¶ 2, p. 2 (“Def.’s Br. Supp. Mot. Dismiss”). Pursuant to the contract extension provision, Dr. Russo and the School Board entered into a new four-year contract on September 26, 2006, which became effective on July 1, 2006, and expired on June 30, 2010 (“2006 Contract”). Am. Compl. ¶ 6. The 2006 Contract provides that the School Board would pay Dr. Russo an annual salary of $169,260, full premiums for medical and dental insurance for Dr. Russo and his family, all contributions for Dr. Russo to the' Virginia Retirement System (“VRS”), and other benefits. Am. Compl. ¶¶ 7-14; Am. Compl., Ex. 1. Section 5(B)(ii) of the 2006 Contract also provides that the School Board would make payments for a tax deferred annuity, titled jointly with Dr. Russo and the School Board, pursuant to either Section 403(b), 415, or 457 of the Internal Revenue Code. Am. Compl., Ex. 1, § 5(B)(ii). Under Section 5(B)(ii), the School Board was to fund twenty-four months of retirement credit for each year Dr. Russo worked under the 2006 Contract. Am. Compl., Ex. 1, § 5(B)(ii). This Section also states that if Dr. Russo terminated his employment with the School Board before the expiration [127]*127date of the contract, i.e., June 30, 2010, he would forfeit the payments the School Board made for the annuity. Am. Compl., Ex. 1, § 5(B)(ii).

Dr. Russo set up the annuity under 26 U.S.C. § 403(b)(7) of the Internal Revenue Code through his personal financial advis- or with whom he had an existing investment account, and Dr. Russo signed a Salary Deferral Agreement. Am. Compl. ¶¶ 10, 16; Am. Compl., Ex. 2; Def.’s Br. Supp. Mot. Dismiss at ¶ 5, p. 2. The annuity was held in Dr. Russo’s name only and was not jointly titled with the School Board. Def.’s Br. Supp. Mot. Dismiss at ¶ 10, p. 3; see Am. Compl., Ex. 2. Dr. Russo hired Dr. Victor Heilman as the Chief Operations Officer for the City of Hampton Schools and Dr. Heilman executed the Salary Deferral Agreement on October 11, 2006. Am. Compl. ¶¶ 18-19; Defi’s Br. Supp. Mot. Dismiss at ¶¶ 6-7, p. 2.

The Salary Deferral Agreement states, in relevant part:

The above named Employee [Dr. Russo] of the referenced Employer [the School Board] agrees to work for a reduced salary as indicated herein and the Employer agrees to remit this amount on Employee’s behalf into the program selected [pre-tax 403(b)(7) ]----The Employee understands and agrees to the following: 1) this Salary Deferral Agreement is legally binding and irrevocable with respect to all amounts earned while this agreement is in effect; 2) this Salary Deferral Agreement may be terminated at any time for amounts not yet earned 3) this Salary Deferral Agreement may be changed with respect to salary not yet earned in accordance with Employer’s administrative procedures ....

Am. Compl., Ex. 2 at 7.

In approximately May or June of 2008, the Chairman of the School Board, Mr. Fred Brewer, informed Dr. Russo that a majority of the School Board had agreed not to extend Dr. Russo’s 2006 Contract at that time. Am. Compl. ¶ 33. Mr. Brewer also knew that the School Board was not in favor of extending Dr. Russo’s contract in the future. Am. Compl. ¶ 33. Months after Dr. Russo learned that the School Board did not intend to extend his 2006 Contract, a recruiter approached Dr. Russo about interviewing for another school superintendent position. Am. Compl. ¶ 37. As a result, Dr. Russo informed the School Board in February 2009 that, effective June 30, 2009, he was resigning as Superintendent of the City of Hampton Schools to become Superintendent of Henrico County Public Schools. Am. Compl. ¶ 38.

Following Dr. Russo’s notice of resignation, he and the School Board discussed entering into a Superintendent’s Transition Agreement and General Release (“Transition Agreement”). Am. Compl. ¶41. The School Board’s attorney then drafted the Transition Agreement and Dr. Russo reviewed it prior to finalization. Am. Compl. ¶¶ 41-45. Accordingly, on or about April 14, 2009, the School Board approved the Transition Agreement and authorized the Chairman of the School Board to enter into the Agreement, which the Chairman then executed. Am. Compl. ¶¶ 46^7; see Am. Compl., Ex. 4. Dr. Russo also executed the Transition Agreement. Am. Compl. ¶ 48; see Am. Compl., Ex. 4.

The pertinent terms of the Transition Agreement were as follows: 1) Dr. Russo’s resignation would be effective June 30, 2009, and an Interim Superintendent would be appointed, effective April 15, 2009; 2) Dr. Russo would be expected to be available until June 30, 2009, to assist the Interim Superintendent with the tran[128]*128sition; 3) Dr. Russo would be able to use his office, computer, email account, and cell phone until June 30, 2009; 4) Dr. Russo could participate in graduation and other events associated with his position and the School Board would continue to pay for any expenses and insurance associated with Dr. Russo’s professional duties; 5) the School Board would continue to provide Dr. Russo with all compensation and other benefits contained in the 2006 Contract from April 15, 2009, until June 30, 2009; and 6) Dr. Russo would be paid his accrued and unused leave time, and he would not be required to use any leave after April 15, 2009. Am. Compl. ¶¶ 49-52.

Within a month of executing the Transition Agreement, the School Board learned that Dr. Russo had not jointly titled the annuity, as required under the 2006 Contract. Am. Compl. ¶ 55; Def.’s Br. Supp. Mot. Dismiss at ¶ 10, p. 3. As a result, the School Board voted to discontinue and then discontinued payment of Dr. Russo’s base salary and benefits, including: annuity payments for April, May, and June 2009; contributions to Dr. Russo’s VRS account for May and June 2009; dependent care Flexible Spending Account contributions for May and June 2009; Dr. Russo’s travel supplement for May and June 2009; and Dr. Russo’s accrued but unused leave as of April 15, 2009. Am. Compl. ¶¶ 55-61. The School Board also did not transfer Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Husselbee v. Clemson University
D. South Carolina, 2025
Berkowitz v. East Ramapo Central School District
932 F. Supp. 2d 513 (S.D. New York, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
835 F. Supp. 2d 125, 2011 WL 6293892, 2011 U.S. Dist. LEXIS 144444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russo-v-school-board-vaed-2011.