Opinion
3:99 CV 1220 (JBA)
July 23, 2001
Jennifer D. Laviano, Laviano Law Offices, Ridgefield, CT, William M. Laviano, Laviano Law Offices, Bluffton, SC.
Thomas R. Gerarde, Bruce J. Gelston, Howd Ludorf, Hartford, CT,
RECOMMENDED RULING ON DEFENDANTS' MOTloN FOR SUMMARY JUDGMENT.
On June 29, 1999, plaintiff Al Brockman filed a three-count complaint against defendants, Windsor Board of Education ["WBOE"] and Richard Silverman, Superintendent of Schools for the Windsor Public School District and the Chief Executive Officer of the Windsor Board of Education. Count One asserts that defendants deprived plaintiff of his property interest in his employment and plaintiffs liberty interest in his name and profession by terminating him without procedural due process and depriving him of either a pre-termination or post-termination hearing as was allegedly plaintiff's right under 42 U.S.C. § 1983. (Dkt. #1, at 3-7). Count Two asserts that defendants breached an implied or explicit oral contract with plaintiff that he would not be terminated except for just cause and, even in such a case, only after progressive discipline, intensive assistance, and adequate notice. (Id. at 7-8). Count Three alleges that defendants negligently and intentionally inflicted emotional distress in the dismissal process. (Id. at 9-10).
On August 2, 1999, defendants filed their Answer and raised three affirmative defenses to each count. (Dkt. #5). Regarding all three counts, defendants assert that plaintiff fails to state a claim upon which relief may be granted and that plaintiff's claims against Silverman are barred by the doctrine of absolute immunity. Regarding the first count, defendants further assert that claims against Silverman are barred by the doctrine of qualified immunity. Regarding the second and third counts, defendants assert that plaintiffs claims are further barred by the doctrine of governmental immunity pursuant to both common law and CONN. GEN. STAT. § 52-557n. (Id. at 4-5).
On September 9, 1999, plaintiff moved to strike the second affirmative defense to Counts One, Two, and Three, that claims against Silverman are barred by the doctrine of absolute immunity. (Dkt. #7). On April 26, 2000, U.S. District Judge Janet Bond Arterton denied this motion. (Dkt. #18).
On November 22, 2000, defendants filed the pending Motion for Summary Judgment, brief in support, and Local Rule 9(c)(1) Statement of Undisputed Facts ["Defendants' Statement"]. (Dkt. #23). On January 8, 2001, plaintiff filed a memorandum in opposition, with Plaintiff's Rule 9(c) Statement ["Plaintiff's Statement"]. (Dkt. #25). Defendants filed a reply brief on January 19, 2001. (Dkt. #27). Eleven days later, plaintiff filed the affidavit of his expert witness, Douglas S. Woundy ["Woundy Aff't"]. (Dkt. #28). On February 2, 2001, Judge Arterton referred the motion to this Magistrate Judge. (Dkt. #29).
Three exhibits were attached to the brief: Affidavit of Richard Silverman, dated Nov.16, 2000 ["Silverman Aff't"](Exh. A), to which there were five attachments, copy of letter from Silverman to Brockman, dated Sept. 12, 1997 (Att. 1), copy of letter from Silverman to Brockman, dated Mar. 24, 1999 (Att. 2), copy of confidential memorandum, dated Apr. 27, 1999 (Att. 3), copy of e-mail message from Brockman to Silverman, dated May 4, 1999, with attachment (Att. 4), and copy of job description, dated Oct. 31, 1996 (Att. 5); excerpts from plaintiff's deposition transcript, taken on Feb. 1, 2000 ["Plaintiff's Dep. Tr."](Exh. B); and excerpts from deposition of Paul J. Sorbo, also taken on Feb. 1, 2000 ["Sorbo Dep. Tr."](Exh. C).
These filings were written almost in a stream-of-consciousness fashion. A copy of a recent decision was attached as Exh. A to the brief. Plaintiff also attached his equally stream-of-consciousness affidavit, dated Jan. 8, 2001 ["Brockman Aff't], to which "Term Sheets" were attached, and an affidavit from plaintiff's wife, Beatrice A. Brockman, also dated Jan. 8, 2001 ["Mrs. Brockman's Aff't"]. See also note 4 infra.
Attached as Exh. A was a copy of the FedEx envelope in which plaintiff's filings were sent to defense counsel.
For the reasons stated below, defendants' motion (Dkt. #23) is granted in part and denied in part.
I. FACTUAL BACKGROUND
The following summary is based upon statements from the parties' Local Rule 9(c) Statements of Material Facts Not in Dispute and documents cited therein, and consequently, does not represent factual findings of the Court.
For over twenty-four years, from December 2, 1974 to June 1999, plaintiff worked as Director of Business Services at the Windsor Public School District. (Defendants' Statement Plaintiff's Statement ¶ 1). Plaintiff did not have a written employment contract with WBOE. (Id. at ¶ 2). Defendant Silverman has been employed since March 1997 as the Superintendent of Schools for the Windsor Public School District and the Chief Executive Officer of WBOE. (Defendants' Statement at ¶ 5; Plaintiff's Statement at ¶ 4). On or about September 5, 1997, Silverman met with plaintiff to discuss several concerns he had with plaintiff's job performance. (Defendants' Statement at ¶ 6; Plaintiff's Statement at ¶ 5). In a letter dated September 12, 1997, Silverman addressed in writing several concerns he had with plaintiff's job performance. (Defendants' Statement at ¶ 7; Plaintiff's Statement at ¶ 6; Silverman Aff't, Att. 1).
Plaintiff's Statement fails to comply with Local Rule 9(c), in that it fails to correspondto the paragraphs contained in [defendants'] Statement whether each of the facts asserted . . . is admitted or denied." Moreover, Plaintiff's Statement contains misnumbered paragraphs — it begins with paragraphs 1 to 3, and then commences again at paragraph 1, continuing until paragraph 16. For the sake of clarity, the Court renumbers the paragraphs in Plaintiff's Statement from 1 to 19.
One-and-a-half years later, on March 24, 1999, Silverman wrote to plaintiff detailing continued concerns about plaintiff's job performance and advising plaintiff he planned to terminate him at the conclusion of the school year, June 30, 1999. (Defendants' Statement at ¶¶ 10-11 Silverman Aff't, Att. 2, Brockman Aff't at ¶ 15). In this March 24 letter, Silverman wrote that he expected to finalize his decision "and advise the Board of it no later than April 16, 1999. . . ." (Defendants' Statement at ¶ 12; Silverman Aff't, Att. 2, at 2; Brockman, Aff't at ¶ 15). Silverman concluded the letter by writing, "In the meantime, if you have anything to present which could influence my decision, please feel free to do so either in person or in writing." (Defendants' Statement at ¶ 13; Silverman Aff't, Att. 2, at 2). Prior to receiving this letter, Silverman had been in negotiations with plaintiff's counsel. (Defendants' Statement at ¶ 14; Silverman Aff't. Att. 2, Brockman Aff't at ¶ 14). On April 27, 1999, Silverman advised WBOE that he had terminated plaintiff's employment effective June 30, 1999. (Defendants Statement at 15; Silverman Aff't, Att.3, Brockman Aff't at ¶ 30). On May 4, 1999, plaintiff sent Silverman a memorandum stating his belief that his termination would be "discriminatory, illegal and will result in prompt litigation against the District and the Superintendent." (Defendants' Statement at ¶¶ 26-27; Silverman Aff't, Att. 4, at 2; Brockman Aff't at ¶ 27). Plaintiff's last day of employment was June 23, 1999, but he was paid until June 30, 1999, the previously stated effective termination date. (Defendants' Statement at ¶ 16; Brockman Dep. Tr. at 123; Brockman Aff't at ¶ 33 35).
II. DISCUSSION
The standard for summary judgment is well-established. The moving party is entitled to summary judgment if it demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). The standard for granting summary judgment "mirrors the standard for a directed verdict under Federal Rules of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). Upon motion, after adequate time for discovery, Rule 56(c) mandates the entry of summary judgment against a party
who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
This showing may be made by "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." FED. P. Civ. P. 56(c). However, Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Anderson, 477 U.S. at 256. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (citation omitted).
Defendants seek summary judgment on the five following grounds: (1) as to Count One, plaintiff has failed to set forth any constitutional deprivation in support of his claims under 42 U.S.C. § 1983; (2) defendant Silverman, in his official capacity, and defendant WBOE, cannot be held liable under 42 U.S.C. § 1983; (3) plaintiff's common law counts, Counts Two and Three, are legally insufficient; (4) defendant Silverman, in his individual capacity, is immune from plaintiffs claims under 42 U.S.C. § 1983 because his actions were objectively reasonable; and (5) defendant Silverman, in his individual capacity, is immune from plaintiff's common law claims based on the doctrine of governmental immunity, under CONN. GEN. STAT. § 52-557n. These arguments will be addressed in a different order from that presented by defense counsel.
A. QUALIFIED IMMUNITY
Defendants argue that the Court must grant defendant Silverman qualified immunity because his actions were discretionary and did not clearly violate "established statutory or constitutional rights of a which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). (Defendants' Brief at 25-28). These arguments are not addressed in plaintiff's brief in opposition and therefore, summary judgment is granted for defendant Silverman as to all three counts in his individual capacity. See Frink Am., Inc v. Champion Rd. Mach. Ltd., 48 F. Supp.2d 198, 209 (N.D.N.Y. 1999) (claims not addressed in plaintiff's brief in opposition to defendant's motion for summary judgment are deemed to have been abandoned by plaintiff).
B. COUNT ONE — CONSTITUTIONAL CLAIMS UNDER 42 U.S.C. § 1983 1. Property Interest — Certificated Employee
Plaintiff argues that as a "certificated" employee, he could be terminated only for "just cause, and that this understanding of the terms of his employment was predicated on an oral contract between himself and Dr. Paul Sorbo, the WBOE superintendent who hired him over twenty years ago. (Plaintiff's Brief at 11-12; Brockman Aff't at ¶¶ 5, 23-24). Plaintiff argues further that this understanding is corroborated by WBOE Policy #4117.4, "Personnel-Certificated Dismissal/Suspension," which states
A certificated employee may be suspended by the Board of Education for an alleged or actual violation of any of the reasons for termination in C.G.S. 10-151(b) when insufficient cause for dismissal is considered to exist, or may be suspended pending Board or legal action for dismissal of the employee on charges of violation of one or more said causes for termination. The Superintendent may suspend an employee pending Board action when, in the opinion of the Superintendent, continuation of the employee in the position presents a clear danger to the students, staff, property or reputation of the district, or to the employee.
(Plaintiff's Brief at 10-12) (emphasis added).
Plaintiff did not attach a copy of this policy but merely quoted it in his brief.
Conversely, defendants argue that plaintiff was not a certified employee subject to termination only for cause because that policy, which is defined in CONN. GEN. STAT. § 10-151, applies only to the employment of certified teachers as set forth in CONN. GEN. STAT. § 10-144o et seq. Defendants cite CONN. GEN. STAT. § 10-145d(d) for the proposition that even though plaintiff may hold a certificate, he is not considered a "teacher" and is therefore not a "certified professional, employee" under § 10-151(a)(2). (Defendants' Reply Brief at 4-5).
"Property interests are created not by the Constitution itself, but are created and defined by independent sources such as state statutes, regulations, municipal ordinances, and contracts." Gordon v. Nicoletti, 84 F. Supp.2d 304, 310 (D. Conn. 2000) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). A plaintiff must show a legitimate claim to the entitlement of the property interest, not just the desire or expectation of it. See Gordon, 84 F. Supp. 2d at 310-11. A property interest may be found in an expectation of continued employment, so long as that expectation is based on a contract, Roth, 408 U.S. at 576-77, or a clearly implied promise of continued employment. Perry v. Sindermann, 408 U.S. 593, 602-03 (1972). Employees at will do not possess a property interest in continued employment. Goetz v. Windsor Cent. Sch. Dist., 698 F.2d 606, 608 (2d Cir. 1983).
Tenured teachers in Connecticut have a property interest in continued employment and are entitled to due process protection. See Rado v. Board of Educ., 216 Conn. 541, 555 (1990); Petrowski v. Norwich Free Acad., 199 Conn. 231, 234 (1986). CONN. GEN. STAT. § 10- 151, referenced in the WBOE policy cited by plaintiff, refers only to teachers. The question is whether or not plaintiff, as the Director of Business Services, falls within the protection of § 10-151(d), which details sufficient causes for termination and the procedures to be followed in the event of such termination for a "teacher." According to § 10-151(a)(2), "[t]he term 'teacher' shall include each certified professional employee below the rank of superintendent employed by a board of education for at least ninety days in a position requiring a certificate issued by the State Board of Education." Initially it may appear that a Director of Business Services would be classified as a "certified professional employee" and thus be considered a "teacher" because according to § 10-145(a) "[n]o teacher, supervisor, administrator, special service staff member or school superintendent shall be employed in any of the schools of any local or regional board of education unless such person possesses an appropriate state certificate . . . ." However, CONN. GEN. STAT. § 10-145d(d) provides that:
Any individual certified as a school business administrator pursuant to regulations adopted by the state board in accordance with the provisions of subsection (b) of this section, shall not be deemed to be included in the definition of "teacher" in subdivision (2) of subsection (a) of section 10-151 solely by reason of such certification, provided any such individual who holds a regular teacher's certificate issued by the State Board of Education and is employed as a teacher, principal, supervisor or school superintendent shall not be excluded from such definition.
(emphasis added).
Although it does appear as though plaintiff was a supervisor (see Silverman Aff't, Att. 2 wherein defendant refers to plaintiff's subordinate), neither plaintiff nor defendants assert that plaintiff holds a regular teacher's certificate, a necessary prerequisite to being deemed a teacher according to § 10-145d(d) and thus falling under the protection of § 10-151(d). Instead, plaintiff claims that he "is a "professional' employee of the defendant Board of Education and holds Connecticut Board of Education Standard Certificate 38650," (Complaint at ¶ 8), and that his position of Director of Business Services has required certification by the State of Connecticut Department of Education since the 1980's. (Brockman Aff't at ¶ 4). Therefore, plaintiff cannot claim a property interest by relying on Windsor Board of Education Policy #4117.4 to bring him under the protection set forth for teachers within the district.
2. Property Interest — Implied Contract of Employment
Plaintiff also alleges a property interest in that he accepted and continued employment with WBOE based on promises made upon employment in December 1974 and repeated explicitly and implicitly for the next twenty-two years that he would be a career professional employee and only terminable for just cause after a probationary period of 90 days. (Complaint at ¶¶ 12-13; Plaintiff's Statement at ¶¶ 2-3, 7-8; Brockman Aff't ¶¶ 5-6 9). Defendants move for summary judgment on the basis that there was no actual agreement for continued employment between the parties, plaintiff was not given a guaranteed period of employment, plaintiff was never told that he could be terminated only for cause, and any alleged promises were devoid of any material terms or conditions of future employment. (Defendants' Brief at 11-14). In contrast, plaintiff argues that his status as either an at will employee or one who can be fired only for just cause presents a question of fact for the trier of fact as it involves issues of credibility, motive and intent. (Plaintiff's Brief at 2-5). Defendants reply that motive, intent and credibility are irrelevant when determining whether a clearly implied contract existed. (Reply Brief at 5-6).
Plaintiff believes that during his interview, Dr. Sorbo made a promise to plaintiff of continued employment by indicating that the school district was looking for someone who would be there for a long time and provide continuity. (Brockman Dep. Tr. at 27-30). In turn, plaintiff contends that he sought assurances during the interview process that this would be a long-term relationship between the parties as plaintiff was looking for a place to live and raise his family. (Id. at 29-30). Although Brockman had left his previous employment with the Oil Service Company of Iran three or four months before accepting the position with WBOE and therefore was not "gainfully employed" while interviewing with WBOE (id. at 16), it does appear as though he did relocate to accept the position. Plaintiff alleges that upon employment with defendant WBOE "it was specifically stated and agreed . . . that [plaintiff] would be a career professional employee, not terminable at will but terminable only for just cause after a probationary period of 90 days." (Complaint at ¶ 12). Plaintiff also alleges that he was told that he would be progressively disciplined and intensively assisted. (Id. at ¶ 5). Plaintiff further claims that Dr. Sorbo made comments that plaintiff would not be terminated if he did his job properly. (Brockman Aff't at ¶ 6). However, plaintiff could not identify any written documents to substantiate his claim that he could only be terminated for just cause. (Brockman Dep. Tr at 27-28) Additionally, plaintiff could not identify any written documents supporting his contention that he would be progressively disciplined and intensively assisted. (Id.). Plaintiff further alleges that these comments that he could work at WBOE as a permanent employee and could only be terminated for "just cause" were reiterated during the evaluations carried out annually (Brockman Aff't at ¶¶ 5-7), specifically by Dr. Sorbo and his successor, Dr. James R. Myers (Superintendent from 1989 to 1997), who promised plaintiff repeatedly for twenty-two years that he would be let go only for good cause. (Id. at ¶¶ 23-24; Brockman Dep. Tr. at 29-30). Plaintiff has averred that Dr. Myers "made comments that there would have to be good reasons to get rid of anyone like me." (Brockman Aff't at ¶ 24). For purposes of their motion for summary judgment, defendants do not dispute that these comments may have been made. (Reply Brief at 6). Thus, plaintiff has alleged in his complaint that "in consideration of said promises and representations which were repeated explicitly and implicitly for a period of 22 years, plaintiff accepted said employment . . . foregoing other job opportunities because of the assurances of job security." (Complaint at ¶ 13).
At his deposition, Dr. Sorbo testified that plaintiff was not given a guarantee as to how long he would be employed, that he did not tell plaintiff that he could be terminated only for cause, and that he lacked the authority to do so. (Sorbo Dep. Tr. at 11-12, 20-21).
Plaintiff also contends that defendant Silverman "never provided any mentoring or improvement program" and mainly approved of his subsequent performance and often complimented him. (Brockman Aff't at ¶¶ 8-9, 11 16). According to plaintiff, by July 1, 1998, Silverman had told Brockman that he wanted him to resign. (Id. at ¶ 12-13). Shortly thereafter, plaintiff hired counsel and began negotiations with Silverman and WBOE. (Id. ¶ 14).
These matters are complicated by an issue as to whether or not settlement negotiations were continuing after plaintiffs receipt of the March 24, 1999 letter. Plaintiff alleges that any delay in response to such notice can be explained by the parties being in the midst of touchy negotiations, and that such negotiation discussions are admissible under the exceptions in FED. R. EVID. 408 in order to negate a contention of undue delay. (Plaintiff's Brief at 13).
"[T]o survive a motion for summary judgment, a plaintiff has the burden of presenting evidence that the defendant had agreed to some form of contractual commitment, either by words or action or conduct."Schermerhorn v. Mobil Chem. Co., 3:99 CV 941 (GLG), 2001 WL 50534, at *4 (D. Conn. Jan. 9, 2001). "As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will . . . . An employment at will relationship can, however, be modified by agreement of the parties." Rosenberg v. Meriden Hous. Auth., No. CV 950377376, 1999 WL 1034611, at *3 (Conn.Super.Ct. Oct. 29, 1999) (citations internal quotation marks omitted). A contract implied in fact, like an express contract, depends on actual agreement, and the party charged must have agreed either by words or actions or conduct, to undertake a contractual commitment to the party seeking to enforce such a commitment. Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94 (1980). See also Torosyan v. Boehringer Ingelheim Pharmaceuticals, 234 Conn. 1, 14-15 (1995); Coelho v. Posi-Seal Int'l Inc., 208 Conn. 106, 111-12 (1988). "A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. The mere fact that the plaintiff believed the guidelines to constitute a contract does not bind [defendant] without some evidence that it intended to be bound to such a contract." Christensen v. Bic Corp., 18 Conn. App. 451, 458 (Ct.App. 1989) (citations omitted). In determining whether any words, actions or conduct of any employer have created an implied contract, the intention of the parties, including inferences of fact, must be considered. See Coelho, 208 Conn. at 112-13.
The seminal Connecticut case on this issue is the Connecticut Supreme Court's 1988 decision in Coelho. During trial, plaintiff testified extensively that during his interview, he had raised concerns about job security and expressed serious reservations about accepting a position as manager of quality control because of his belief that there was an inherent conflict between the managers of quality control and manufacturing, that plaintiff sought a guarantee that he would not be terminated as a result of this conflict, and that the president of defendant company, both before and after plaintiff accepted employment, indicated that plaintiff would not be terminated as a result of conflicts between the two departments. 208 Conn. at 109-11. The Connecticut Supreme Court held that there was sufficient evidence to support the jury's finding that the parties had an implied employment contract whereby plaintiff could not be terminated so long as he performed his job properly and would not be terminated as a result of conflicts between defendant's quality control and manufacturing departments. Id. at 114.
The Coelho decision was distinguished the next year by the Connecticut Appellate Court in Christensen, which reversed a jury verdict in the plaintiff-employee's favor for an unpaid bonus. The plaintiff had testified that he had never been given a written document stating that employees were entitled to bonuses even if they had been discharged before the bonuses were authorized, that nobody at defendant Bic had ever orally promised him such a bonus, and that he could not recall a single Bic employee who had been terminated from employment and still had received a bonus after termination. 18 Conn. App. at 455.
In 1995, the Connecticut Supreme Court in Torosyan reached the same conclusion as it had in the Coelho decision, namely that it upheld the trial court's finding that there was an implied contract between the parties that plaintiff's employment could be terminated only for cause. 234 Conn. at 7-20. Plaintiff had testified that when he traveled from California to Connecticut for his interview, he informed defendant's employees that he was seeking "long-term" employment, that he did not want to move his family from California unless defendant could guarantee him job security, that one of the interviewers responded that defendant would "take care" of plaintiff if plaintiff did a good job, that another interviewer told plaintiff that he hoped plaintiff would stay forever and encouraged him to examine the company's employee manual to determine whether it provided the guarantees that plaintiff sought, and that based upon these material representations, plaintiff decided to accept the position and relocate himself and his family from California to Connecticut. Id. at 7-8.
Four years later, in Rosenberg, 1999 WL 1034611, at *25 a Connecticut Superior Judge denied defendants' motion for summary judgment when the court determined that the oral statement upon which plaintiff relied for the breach of contract action was sufficient to raise a genuine issue of material fact as to the existence of an implied contract. Upon being hired, Rosenberg was told by defendant's executive director that as long as plaintiff did his job and carried out his duties and responsibilities, he would have a job with the defendant authority for as long as he wanted. Id. at *1. Thus, under the state standards for summary judgment, the Superior Court judge concluded that the oral statements upon which plaintiff relied was sufficient to raise a genuine issue of material fact as to the existence of an implied contract. Id. at *5
The Torosyan decision was discussed extensively by U.S. District Judge Goettel earlier this year in Schermerhorn. In Schermerhorn, plaintiff, during the interviewing process, had been told by individuals in defendant's Personnel Department "that based on [plaintiff's] father's reputation with the company, his years of service and hard work, . . . if [plaintiff] performed in the same fashion that [plaintiff] would probably be able to retire from Mobil with many years of service." Id. at *2-3. Other personnel employees told plaintiff "that Mobil wanted [plaintiff] as an employee, that [plaintiff's] job prospects at Mobil were excellent and that [plaintiff] could expect a long tenure at Mobil." Id. at *3. During his deposition, however, plaintiff did not claim that anyone at Mobil had told him that he could be fired only for good cause, nor was he told anything specific about how long he would work for Mobil Id.
Judge Goettel observed: "Torosyan is one of those difficult cases which, we are told, makes bad law." 2001 WL 50534, at *5.
Judge Goettel commented that subsequent to the Torosyan decision. the courts in Connecticut (both State and federal) have seen an increasing number of wrongful discharge cases in which a former, at-will employee attempts to assert a breach of contract claim based upon oral remark made to him at the time of his hiring . . . ." Id. at *1. Judge Goettel painstakingly distinguished Schermerhorn's situation from that of Torosyan, concluding that there was no implied contract of employment whereby plaintiff would only be terminated for cause. Id. at *5-6. Judge Goettel emphasized that these comments made to Schermerhorn "did not constitute a clear and definite promise that plaintiff could be terminated only for cause or only in a certain manner. Indeed, there was no discussion at all about how termination of employment would occur."Id. at *5. Therefore, the judge concluded: "Plaintiff has presented no facts from which a reasonable trier of fact could conclude that defendant, by virtue of these statements of its employees, intended to make plaintiff an offer of employment whereby plaintiff could only be terminated for cause." Id. at *6.
It is clear that the facts in the present case are far closer to those in Coelho, Torosyan, and Rosenberg than in Christensen and inSchermerhorn. For purposes of this motion, defendants do not contest that during plaintiff's interview, Dr. Sorbo made a promise to plaintiff of continued employment by indicating that the school district was looking for someone who would be there for a long time and provide continuity. Plaintiff has asserted that he sought assurances during the interview that this would be a long-term relationship between the parties as plaintiff was looking for a place to live and raise his family. Plaintiff relocated to accept this position. For purposes of this motion, defendants similarly do not dispute that over the years, Drs. Sorbo and Myers repeatedly commented to plaintiff that he would be let go only for good cause.
Defendants additionally argue that these comments cannot form the basis of an implied promise of continued employment as a matter of law because the alleged promises are devoid of any material terms or conditions of future employment, and taken as a whole, the promises "manifested no present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff." (Reply Brief at 6-7) (citingD'Ulisse-Cupo representations by school board that it would rehire non-tenured teacher did not represent present intention by school to undertake immediate contractual obligations to teacher in that the representations were neither sufficiently promissory nor sufficiently definite to support contractual liability). Defendants' reliance onD'Ulisse-Cupo is misplaced. Again, as just indicated, the comments made by defendant's Superintendents were concrete and sufficiently definite to support contractual liability, in that plaintiff alleges that Drs. Sorbo and Myers promised plaintiff repeatedly for twenty-two years that he would be let go only for good cause.
Viewing the record and the inferences drawn from it in the light most favorable to the plaintiff, as is the standard for summary judgment,Schermerhorn,2001 WL 50534, at *3, plaintiff has presented facts with which a reasonable trier of fact could conclude that the statements or representations made by WBOE employees gave plaintiff a reasonable expectation that he would only be terminated for cause.
Neither side addressed the due process issue in any detail. (See Defendants' Brief at 17-18).
Accordingly, defendants' motion for summary judgment is denied with regard to plaintiff's property interest under 42 U.S.C. § 1983 as it relates to an implied contract of employment.
3. Liberty Interest
Defendants assert that summary judgment should be granted with regard to plaintiff's claim that he has been deprived of his liberty interest in his name and profession. (Complaint at ¶ 22; Defendants' Brief at 14-17; Reply Brief at 8). Defendants claim that plaintiff's termination was based on poor job performance, plaintiff was given ample time and support to improve his performance, plaintiff has not been stigmatized by the termination, and defendants did not publicly disclose any information relating to plaintiff's termination. (Defendants' Brief at 16-17; Reply Brief at 8). Plaintiff asserts that he did have a liberty interest in his "24 year unblemished career record." (Plaintiff's Brief at 17-18). In their reply brief, defendants point out that plaintiff has advanced virtually no argument in support of the liberty interest claim and, furthermore, plaintiff has failed to set forth any facts indicating that defendants made any statements or charges concerning his termination whatsoever, much less public charges made during the course of his termination. (Reply Brief at 8).
The September 12, 1997 letter from defendant Silverman to plaintiff, outlining specific concerns with plaintiff's performance, indicates that a copy was placed in his personnel file. (Silverman Aff't, Att. 1). Similarly, the March 24, 1999 follow-up letter from Silverman to Brockman, does not contain any distribution list. (Id., Att. 2). The next month, on April 27, 1999, Silverman forwarded a memorandum to the WBOE, to which a copy of the March 24, 1999 letter was attached, in which defendant Silverman expressed "disappoint[ment]" with plaintiff's performance and indicated that plaintiff's employment would not be continued after June 30, 1999. (Id., Att. 3). The next week, on May 4, 1999, plaintiff forwarded an e-mail and attached statement to Silverman and to Ms. Kenneson, President of WBOE, but did not release his statement to any public entity. (Id., Att. 4; Brockman Aff't ¶¶ 27-28).
There is no indication in the record before the Court that the concerns expressed by defendant Silverman in either his September 12, 1997 or March 24, 1999 letters to plaintiff were publicly disclosed at a hearing. Quite to the contrary, plaintiff avers in this affidavit that at the School Board executive session in which the board agreed that Silverman could proceed with plaintiff's termination, plaintiff's termination was not on the agenda nor voted on publicly. (Brockman Aff't at ¶ 43 at 29). Plaintiff does not allege these concerns were read or his termination discussed within the public eye at any of these sessions. Instead, he notes his "belief' that some comments were made to the Town Council or Mayor (id.), and alleges that "[a]ll activities associated with the plaintiff's termination were not conducted in a non-public forum." (Plaintiff's Statement at ¶ 14) (emphasis in original). These statements are mere allegations by the plaintiff; no specific facts have been set forth to support either of these statements.
Brockman's Affidavit contains two paragraphs 43.
In addition, plaintiff alleges that during July 1999, WBOE member Fidelia Lane spoke to Mrs. Brockman and others about the circumstances of his firing. (Brockman Aff't at ¶ 43, at 29). However, the only showing made in this regard is Mrs. Brockman's affidavit stating that Fidelia Lane spoke to her at church about her concern over the "serious charges." (Mrs. Brockman's Aff't at ¶ 4). In his affidavit, plaintiff quotes one newspaper article in the Hartford Courant on June 30, 1999, a letter to the editor in the Courant on July 2, 1999, and another newspaper article in the Manchester Journal inquirer (Brockman Aff't ¶¶ 22 36); however, the quotes indicate that plaintiff had just as many supporters as detractors. Further, plaintiff alleges he "had to field [questions] regarding my honesty and the possibility of defalcation of funds" (id. at ¶ 35), but then plaintiff did not provide any further information in this regard. Lastly, although plaintiff has asserted in a conclusory manner that defendant Silverman made comments to potential employers which would have a "chilling effect on [his] search for employment" (Brockman Aff't at ¶¶ 29 39), there is no indication as to whom the alleged comments were made. The Woundy Affidavit is equally speculative and conclusory. (Woundy Aff't ¶¶ 5-7).
See note 10 supra.
Copies of these articles were not attached.
When a government employee is dismissed based on charges that might seriously damage his standing and associations in his community or impose a stigma or other disability foreclosing his freedom to take advantage of other employment opportunities, that employee's liberty interest is implicated. See Brandt v. Board of Coop. Educ. Servs., 820 F.2d 41, 43 (2d Cir. 1987) (citation omitted). To constitute a deprivation of liberty interest, the stigmatizing information must be false, see Codd v. Velger, 429 U.S. 624, 627-28 (1977), and the information must be made public by the offending governmental entity. See Bishop v. Wood, 426 U.S. 341, 348-49 (1976).
Although the stigma of moral turpitude does infringe a liberty interest, a "charge of incompetence or inability to get along with co-workers" generally does not. Capers v. Long Island R.R., 429 F. Supp. 1359, 1368 (S.D.N.Y.), aff'd, 573 F.2d 1291 (2d Cir. 1977). Governmental allegations of professional incompetence do not implicate a liberty interest unless "they denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession." Gordon, 84 F. Supp.2d at 311 (citation omitted). An employee charged with derelictions within his own power to correct is not deprived of a liberty interest.See Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (2d Cir. 1996) (citation omitted), cert. denied, 519 U.S. 1150 (1997). However, if the charges of incompetence are so derogatory and publicized as to completely prevent future employment, such charges may implicate a liberty interest. See id. at 631-32.
In Donato. the plaintiff, a twenty-eight year veteran and well-regarded employee of the school district, was promoted to assistant principal.Id. at 626. Subsequently, her job performance as assistant. principal was not deemed adequate. See id. at 626-28. A list of charges which "reads like a bill of indictment, methodically reciting a litany of lack of professional competence" was put in her personnel file where they would be available to future potential employers. Id. at 631. The majority found that such detailed accusations were actionable because they went beyond vague charges of incompetence. See id. at 631.
According to the Donato court, stigmatizing statements about a discharged employee only implicate a liberty interest when there is public disclosure. Id. at 631 (citations omitted). "This requirement [of public disclosure] is 'satisfied where the stigmatizing charges are placed in the discharged employee's personnel file and are likely to be disclosed to prospective employers."' Id. (citations omitted).
In Huntley v. Cmty. Sch. Bd. of Brooklyn, New York Sch. Dist. No. 14, 543 F.2d 979 (2d Cir. 1976), cert. denied, 430 U.S. 929 (1977), an acting school principal was discharged for performance reasons. A letter written by the superintendent to board members recommending Huntley's termination included charges that "Huntley failed to demonstrate that quality of leadership necessary to effectively deal with the educational program; that he was responsible for the rapid deterioration of the school . . . and that his leadership had created a climate of confusion and discontent." Id. at 985 (internal quotations omitted). These charges were publicly, read at a board meeting to the 300 or so persons present. See id. at 983 985. The court determined that these charges went "to the very heart of Huntley's professional competence" and "that Huntley's chances of obtaining a supervisory position in the public school system have been drastically impaired." Id. at 985.
Plaintiff's situation differs dramatically from that of Donato or Huntley. The September 12, 1997 and March 24, 1999 letters, while expressing disappointment in plaintiff's performance and giving specific examples, were hardly "a bill of indictment, methodically listing a litany of lack of professional competence." More importantly, for the most part, there was no public disclosure. Again, the September 12, 1997, March 24, 1999, April 27, 1999, and May 4, 1999 communications were not distributed to the public, and Brockman's termination was addressed at an executive session of the WBOE. The newspaper publicity about plaintiff's termination contained comments supportive of Brockman. Plaintiff has not made a sufficient showing by either providing names or deposing such people whom he claims viewed his departure as a tarnish on his good name. Mrs. Brockman's affidavit regarding a conversation with a WBOE member was sketchy at best. And plaintiff submitted no evidence regarding a "chilling effect" upon future employment other than his own affidavit. Plaintiff has failed to set forth names of potential employers to show that defendants made any statements at all concerning his termination. Plaintiff has also not alleged that stigmatizing statements were placed in his personnel file and disclosed to prospective employees.
Finally, even if charges were made at a private board meeting, such that the board agreed not to question Silverman's decision to fire plaintiff, these statements do not implicate a liberty interest because they were protected by a qualified privilege. See Johnson v. Chesebrough-Pond's USA Co., 918 F. Supp. 543, 551-52 n. 6 (D. Conn.),aff'd 104 F.2d 355 (2d Cir. 1996) (citing Torosyan, 234 Conn. at 27-29). The burden is on plaintiff to show the board lacked the privilege.Torosyan, 234 Conn. at 29. The privilege is lost if it is abused. Id. at 28. Abuse is defined as uttering and broadcasting the alleged defamatory matter with malice in fact. Johnson, 918 F. Supp. at 552 n. 6 (citingTorosyan, 234 Conn. At 28). Here, plaintiff has made no showing of any false statements made at the board meeting by deposing those in attendance at the board meetings.
Although plaintiff contends that he was deprived of his liberty interest in his reputation and good name, "liberty" as guaranteed by the Fourteenth Amendment is not broad enough to encompass plaintiffs claim. The Court finds no deprivation of a liberty interest stemming from plaintiff "s termination. Therefore, defendant's motion for summary judgment with regard to Count One insofar as it concerns a liberty interest is granted.
C. BREACH OF CONTRACT
The Court's resolution of defendant's motion for summary judgment with regard to plaintiff's property interest in an implied contract of employment, as discussed in Section II.B.2, supra, is dispositive of this issue. Accordingly, defendants' motion for summary judgment is denied with regard to plaintiff's breach of contract claim.
D. INTENTIONAL AND/OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Defendants state that plaintiff has made no specific factual allegation supporting a claim that defendants acted intentionally to inflict emotional distress and, absent this showing, this claim must fail. (Defendants' Brief at 23-25). Although defendants argue in their reply brief that these claims must be deemed abandoned because plaintiff failed to address the claim in his brief in opposition (Reply Brief at 9), the Court does not find this to be the case. While this claim was not extensively briefed, page five of plaintiff's opposition brief wrote: "This court has written recently on the subject of express and implied contract, promissory estoppel and negligent and/or intentional infliction of emotional distress." (Plaintiff's Brief at 5) The brief then discussedPeralta v. Cendant Corp., 123 F. Supp.2d 65 (D. Conn. 2000), a case which addresses a claim of negligent infliction of emotional distress. (Id. at 5-7).
Between September 1997 through March 1999, plaintiff retained counsel to negotiate with WBOE, although plaintiff contends that these negotiations did not contemplate plaintiff's termination (Brockman Aff't at ¶ 43, at 27). Four settlements were proposed in negotiations between plaintiff and WBOE, each proposal included a provision for plaintiff to continue working with the school in an advisory capacity as a consultant. (Id., Attachment).
See note 10 supra.
According to plaintiff, on June 23, 1999, one week prior to plaintiff's expected termination date. Silverman requested that plaintiff come to his office. (Id. at ¶ 33). Plaintiff expected to discuss some reports he had put on Silverman's desk earlier that day; instead, Silverman told plaintiff to turn in his keys and ordered him to leave the building immediately, without stopping to take any of his personal belongings. (Id.). Plaintiff learned thereafter that his computer access had been turned off in advance of this meeting. (id. at ¶¶ 33-34). Plaintiff viewed this subsequent information as "devastat[ing] . . . a terrible way to end a career of almost 25 years." (Id. at ¶ 33).
Plaintiff has also alleged various financial improprieties on defendants' part to harass plaintiff in the pre-and post-termination process. (Id. at ¶ 40). Plaintiff asserts that in January 1999, he missed out on the possibility of receiving an early retirement payment while negotiations stretched on and eventually stalemated. (Id. at ¶ 31). In June 1999, plaintiff was told he could qualify for retiree health insurance only if he would submit his resignation immediately, in other words, drop the threat of legal action, which plaintiff considers to be "ethically equivalent to blackmail". (Id. at ¶ 32). Plaintiff still has yet to be advised of his vested rights in the WBOE Retirement Plan when, according to plaintiff, payments could have begun as early as July 1999. (Id. at ¶ 40). The Town Finance Director told plaintiff he would handle the arrangements after he received the correct documentation from the schools' Retirement Plan Board of Directors of which Silverman is a member. (Id.). Finally, plaintiff requested WBOE to correct his social security earnings and taxes paid upon discovering that both had been reported incorrectly. (Id. at ¶ 41). During his tenure, plaintiff asserts, such a request would have taken two weeks to process. (Id.). Instead, plaintiff has been told that the matter has been referred to the WBOE legal department, and plaintiff has been waiting over a year for results. (Id.).
Brockman states in his affidavit says that Silverman's actions "caused [him] serious emotional distress," "that what reputation [plaintiff] developed in Windsor over twenty-five years of working here was destroyed by that." (Id. at ¶¶ 36-37).
1. Intentional Infliction of Emotional Distress
Connecticut first recognized the tort of intentional infliction of emotional distress in an employment context in Petyan v. Ellis, 200 Conn. 243, 245-46 (1986). The four elements required to state a claim for intentional infliction of emotional distress are: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe. See id. at 253 (multiple citations omitted).
"The standard in Connecticut to demonstrate extreme and outrageous conduct is stringent." Huff v. West Haven Bd. of Educ. 10 F. Supp.2d 117, 122 (D. Conn. 1998). Ordinarily, the conduct cannot be merely rude, tactless or insulting; conduct considered extreme and outrageous "exceed[s] all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Petyan, 200 Conn at 254 n. 5 (citations omitted). "[A] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility." Whelan v. Whelan, 41 Conn. Sup. 519, 522 (Super.Ct. 1991) (citation omitted) (finding extreme conduct where husband lied to his ex-wife by stating he was HIV-positive in order to influence a family court's decisions on child support and custody). Whether a defendant's conduct satisfies the "extreme and outrageous" element is a question, in the first instance, for the Court. Huff, 10 F. Supp.2d at 122 (citation omitted); Johnnson, 918 F. Supp. at 552 (citation omitted). Only where reasonable minds would differ, does it become a question for the jury. See Johnson, 918 F. Supp. at 552 (citations omitted).
To qualify as extreme and outrageous conduct, an employer's behavior must be more than merely insulting, a display of bad manners or actions which result in hurt feelings. See Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 19 (Super.Ct. 1991). In Mellaly, a supervisor's continual harassment of a recovering alcoholic was held to be extreme and outrageous. The court noted that both the supervisor's "apparent authority over the other" or "the power to affect his interests" and the foreseeability of the plaintiff's peculiar susceptibility to emotional distress on account of his physical or mental condition were factors that contributed to the holding. Id. at 20 (citation omitted). Although the Court recognizes that any employee, regardless of the position held, facing the prospect of losing his job of twenty-four years, might be susceptible to emotional distress, there is no indication, as there was in Mellaly, that defendant Silverman continually harassed plaintiff in an extreme and outrageous manner.
Notwithstanding claims of insensitivity, unfairness, and a delay in processing paperwork, this conduct does not qualify as extreme and outrageous exceeding all bounds tolerated by decent society. Accordingly, defendants' motion for summary judgment as to plaintiff's claim for intentional infliction of emotional distress is granted.
2. Negligent Infliction of Emotional Distress
"[I]n order to state a claim [for negligent infliction of emotional distress] the plaintiff has the burden of pleading that 'the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm."' Parsons v. United Technologies Corp., 243 Conn. 66, 88 (1997) (quoting Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 345 (1978) (where Connecticut first recognized a cause of action for negligent infliction of emotional distress. although not in an employment context)). Although the Parsons court noted that "negligent infliction of emotional distress in the employment context arises only where it is "based upon unreasonable conduct of the defendant in the termination process, Parsons, 243 Conn at 88 (citation omitted), more recent decisions do not limit the holding of Parsons solely to unreasonable conduct in the termination process. See Peralta, 123 F. Supp.2d at 82. "The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Parsons, 243 Conn. at 89 (quoting Madani v. Kendall Ford, Inc., 312 Or. 198, 204 (1991). "The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress." Parsons, 243 Conn. at 88-89. Thus, the conduct of the employer, not his motivation, is at issue in determining whether or not the employer behaved unreasonably and exceeded the bounds of socially acceptable conduct in the termination process. See Peralta, 123 F. Supp.2d at 83 (citing Madani, 312 Or. at 204 Parsons, 243 Conn. at 89).
In Peralta, U.S. District Judge Janet Bond Arterton noted thatParsons, a case dealing with negligent infliction of emotional distress, uses arguments from Madani, a case deciding a claim of intentional infliction of emotional distress and reasons that "the Court will not infer that the state's highest court unmindfully conflated the two standards; rather it appears that the Connecticut Supreme Court heightened the standard for negligent infliction of emotional distress in the employment context." Peralta, 123 F. Supp. 2d at 82.
In Parsons, an employee terminable at will, was fired and removed from the building under security escort two hours after he refused an assignment in Bahrain, then on the U.S. State Department Travel Advisory list. The court found this manner of termination was not "patently unreasonable" and so affirmed the trial court's striking of Parsons' claim for negligent infliction of emotional distress. Parsons, 243 Conn. at 89. In consonance with Parsons, in Cavuoto v. Oxford Health Plans, Inc., 3:99 CV 446 (EBB). 2000 WL 888263, at *8 (D. Conn. June 22, 2000). U.S. District Judge Ellen Bree Burns found "nothing unreasonable or socially intolerable" in the termination of the plaintiff when she was not allowed to retrieve her personal belongings without a corporate employee on hand because such behavior "is usual behavior for corporations for their own protection." (citing Parsons, 243 Conn. at 89).
The termination of employment almost inevitably leaves the applicant with some ill feelings. See Pavliscak v. Bridgeport Hosp., 48 Conn. App. 580, 598 (App.Ct.), certif. denied, 245 Conn. 911 (1998). "Without allegations of 'unreasonable conduct' on the part of the employer, however, the slighted employee cannot, as a matter of law, recover for these feelings of indignation." Pascal v. Alternative Servs. of Connecticut, Inc., No. 547184, 1998 WL 8886540, at *2 (Conn.Super. Dec. 8, 1998).
In Peralta, Judge Arterton denied defendant's motion for summary judgment on the negligent infliction of emotional distress claim, relying both on the fact that plaintiff alleged that defendant "purposefully falsified reviews in order to promote a less qualified individual and cause his termination" and "[plaintiff] found [defendant's] conduct so intolerable that he considered quitting his employment." Peralta, 123 F. Supp.2d at 82-83. Similar to the plaintiff in Peralta, Brockman believed that defendant Silverman misrepresented plaintiff's job performance to the board and that Silverman's evidence of progressive discipline prior to plaintiff's termination was merely a "false paper trail" (Plaintiff's Brief at 1-7). However, plaintiff's circumstances are distinguishable from Peralta in at least one important aspect — in Peralta the plaintiff found defendant's conduct so intolerable that he contemplated quitting his job. This is not true in the instant case. In fact, it is quite the opposite. Ongoing negotiations contemplated plaintiff working with the school system in an advisory capacity. Courts already have determined that being escorted off the premises upon termination is "usual behavior" Cavuoto, 2000 WL 888263, at *8, and is not "patently unreasonable," Parsons, 243 Conn. at 89. Although plaintiff rightfully left with a "feeling of indignation." Pascal, 1998 WL 886540, at *2, defendants' actions were not unreasonable or socially intolerable conduct.
Accordingly, defendants' motion for summary judgment with regard to plaintiff's claim for negligent infliction of emotional distress isgranted.
III. CONCLUSION
Accordingly, for the reasons stated above, defendants' Motion for Summary Judgment (Dkt. #23) is granted for defendant Silverman in his individual capacity on all three counts. is granted for defendants on Count One with respect to plaintiff's claim of deprivation of a property interest as a certificated employee and plaintiff's claim alleging deprivation of a liberty interest, and is granted for defendants on Count Three: however. the Motion is denied on Count One with respect to plaintiff's claim of deprivation of a property interest under an implied contract of employment and with respect to Count Two. See 28 U.S.C. § 636(b) (written objections to rulings must be filed within ten days after service of same); FED. P. Civ. P. 6(a), 6(e) 72; Rule 2 of the Local Rules for United States Magistrate Judges, United States District Court for the District of Connecticut; Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (failure to file timely objection to Magistrate Judge's recommended ruling may preclude further appeal to Second Circuit).
If either counsel believes a settlement conference before this Magistrate Judge would be productive, he should contact Chambers accordingly.