Tedesco v. City of Stamford, 14301

Page 574

610 A.2d 574

222 Conn. 233

Benjamin I. TEDESCO v. CITY OF STAMFORD et al.

No. 14301.

Supreme Court of Connecticut.

Argued Jan. 16, 1992.

Decided June 2, 1992.

Lawrence M. Lapine, with whom were Christopher R. Bello and, on the brief, Robert S. Bello and Thomas M. Cassone, Stamford, for appellant-appellee (plaintiff).

James V. Minor, Asst. Corp. Counsel, for the appellees-appellants (named defendant et al.).

Before SHEA, CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

The dispositive issue in this appeal and cross appeal is whether a municipal employee whose employment was terminated was afforded his fourteenth amendment right to procedural due process by the union grievance procedures established under a collective bargaining agreement. ¹ The plaintiff, Benjamin Tedesco, ² appeals from the judgment of the Appellate Court reversing the trial court's award to the plaintiff of compensatory damages and attorney's fees for the violation of 42 U.S.C. § 1983 ³ by the defendant, the city of Stamford. ⁴ The defendant cross appeals from the judgment of the Appellate Court holding that the post-termination hearing that was afforded to the plaintiff was "constitutionally deficient" and awarding the plaintiff one dollar in nominal damages. We reverse the judgment of the Appellate Court on the defendant's cross appeal. This renders the plaintiff's appeal moot.

The relevant facts are as follows. On September 11, 1980, the plaintiff, while employed as a trash collector ⁵ for the city, suffered a torn rotator cuff in his right shoulder. On January 30, 1981, the plaintiff underwent surgery on his shoulder. The plaintiff did not return to work after his injury, although he did remain on the payroll and received his full salary. When the shoulder failed to improve significantly, the plaintiff underwent a second operation on November 30, 1981. On the same day, the defendant sent the plaintiff a letter that his employment was terminated because "[t]he letter of prognosis [from the plaintiff's doctor, John Carino] ... states that you will not be able to return to work for an unestimated period of time ... and does not anticipate that you will be returning to your regular occupation for a prolonged period of time."

On December 7, 1981, the plaintiff filed a grievance with his union, Teamster Local Union No. 145 (union), seeking to be restored to his position as a laborer. On that same day, the union business agent, Dominic Lamberti, and the sanitation department shop steward, Jimmy Bolanis, met with the deputy commissioner of the defendant's department of public works, John Canavan, for forty-five minutes to discuss the plaintiff's grievance. At that meeting Canavan produced the plaintiff's absenteeism record ⁶ and stated "[w]e can't tolerate this kind of performance because he is more out than he is in." Lamberti explained that many of those absences were due to injury and were not the plaintiff's fault, but Canavan refused to reinstate the plaintiff.

Lamberti then made an appointment to discuss the plaintiff's grievance with the commissioner of the department of public works, Bruce Spaulding, pursuant to the collective bargaining agreement. ⁷ A meeting was held on December 10, 1981, and in attendance were Spaulding, Lamberti, Canavan, Bolanis and Vincent Capoccitti, a union representative. The commissioner produced letters from Carino, stating that the plaintiff would not be able to work for a "prolonged" and "unestimated" period of time. Despite the urgings of Lamberti, Bolanis and Capoccitti to the commissioner to reinstate the plaintiff, the commissioner denied the plaintiff's grievance. The union thereafter refused to pursue the plaintiff's grievance before the Connecticut board of mediation and arbitration because, in the union's view, the plaintiff's case was too weak. Lamberti, a union representative with eighteen years of experience, testified that he had handled over 150 grievances prior to December 10, 1981, and that he did not "think ... [he had] a ... chance to win this case." The plaintiff, through counsel, made numerous attempts to secure a hearing with the defendant but all requests were denied because the union was the exclusive bargaining agent for the plaintiff.

The plaintiff brought the present action by filing a complaint in the Superior Court on August 31, 1982. The first count of a subsequent amended complaint alleged that the defendant had violated the plaintiff's right to procedural due process by failing to afford the plaintiff a hearing. ⁸ On August 29, 1988, after a court trial, the court, Cioffi, J., concluded that the first count of the plaintiff's complaint stated "a cause of action sounding in violations of both federal and state constitutional rights embodied in 42 U.S.C. § 1983." ⁹ The court held that pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the plaintiff, having a property interest in his employment, was entitled to a pretermination hearing. The court further held that since the defendant failed to provide the plaintiff with a pretermination hearing, it was required to provide the plaintiff with a posttermination hearing. The court concluded that the December 7 and 10 meetings between the union and city officials "did not comport with the requirements of a post-termination hearing because those hearings with Mr. Canavan and/or Commissioner Spaulding were not before a neutral and unbiased decisionmaker." The court also concluded that the arbitration hearing held in 1987; see footnote 9, supra; was not a constitutionally sufficient posttermination hearing because it did not "take place within a meaningful time after the termination." Based on those conclusions, the court awarded the plaintiff $41,084.44 in compensatory damages and $47,085.50 in attorney's fees pursuant to 42 U.S.C. § 1988. The court dismissed the remaining counts as moot.

The defendant appealed to the Appellate Court, which reversed the judgment of the trial court and remanded the case with direction to render judgment for the defendant. The Appellate Court concluded that the plaintiff's complaint did not state a cause of action under 42 U.S.C. § 1983 because the complaint did not allege that the deprivation of the plaintiff's due process right "occurred through the operation of a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." (Internal quotation marks omitted.) Tedesco v. Stamford, 0 Conn.App. 51, 56, 563 A.2d 1046 (1989). On the plaintiff's first appeal to this court, we concluded that "[t]he defendant had sufficient notice that the plaintiff was pursuing a cause of action under 42 U.S.C. § 1983 to prepare its defense and was not misled or surprised by the plaintiff's failure to allege specifically that his constitutional rights were violated as the result of a municipal policy. The defendant's failure to object to the introduction of evidence concerning the city's policies and its failure to claim any prejudice further supports this conclusion." Tedesco v. Stamford, 215 Conn. 450, 463, 576 A.2d 1273 (1990). We therefore reversed the judgment of the Appellate Court and remanded the case to the Appellate Court for further proceedings.

On remand, the Appellate Court first concluded that the confirmation by the trial court, Landau, J., of the 1987 arbitration proceeding; see footnote 9, supra; did not render the plaintiff's claim moot since "[a]n employee's rights under 42 U.S.C. § 1983 cannot be precluded by a decision in an arbitration proceeding. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). An arbitrator is limited to determining an employee's rights under a collective bargaining agreement, whereas the resolution of more difficult constitutional issues remains in the province of the courts." Tedesco v. Stamford, 24 Conn.App. 377, 379-80, 588 A.2d 656 (1991). The Appellate Court concluded further that based on "[s]ubsequent federal law," the earlier decision of the trial court, Cioffi, J., that the plaintiff had been entitled to a pretermination hearing when he was discharged in November, 1981, must be reversed. The Appellate Court noted that the trial court had relied on Cleveland Board of Education v. Loudermill, supra, which, in 1985, established the right to a pretermination hearing. The Appellate Court concluded, however, that pursuant to Zinker v. Doty, 907 F.2d 357 (2d Cir.1990), "the Loudermill decision cannot be applied retroactively to give the plaintiff a right that he did not have at the time of his termination." Tedesco v. Stamford, supra, 24 Conn.App. at 380-81, 588 A.2d 656.

The Appellate Court next considered whether the plaintiff was afforded a meaningful posttermination hearing. The court concluded, without explanation, that "the hearing afforded the plaintiff was constitutionally deficient...." Id., at 381, 588 A.2d 656. The court further concluded, however, citing Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), that the plaintiff was "not entitled to recover anything greater than nominal damages for the justified deprivation of an interest protected by the constitution" since the "record in the arbitration proceedings, of which we took judicial notice, [is] replete with medical reports stating that the plaintiff could not return to work, and would never be able to return to his job in the future." Tedesco v. Stamford, supra, 24 Conn.App. at 382-83, 588 A.2d 656. The Appellate Court, therefore, reversed the award of compensatory damages. Finally, the Appellate Court concluded that the plaintiff was not entitled to attorney's fees since he had failed to produce contemporaneous time records. Id., at 385, 588 A.2d 656.

We granted the plaintiff's petition for certification limited to the following issues: "1. Did the Appellate Court properly reverse the trial court's...