the date of the certified letter" extending the offer.
The Village complied, sending plaintiff a second letter, dated October 25, 1993 (the "October 25 letter"), which renewed the offer and contained notice of the ten-day deadline for acceptance. By letter dated November 9, 1993, the Village advised plaintiff that his failure to respond to the offer was deemed a declination of his right to the part-time position.
Subsequently, plaintiff disputed the ten-day deadline as unduly harsh and, by letter dated November 16, 1993 (the "November 16 letter"), purported to accept the part-time position. In response, the Village advised plaintiff, by letter dated November 18, 1993, that it would abide by the decision of the Department regarding whether plaintiff's acceptance was timely. The Department advised Cifarelli, by letter dated November 23, 1993, that he "had more than a sufficient amount of time . . . to accept the part-time position."
The Complaint advances two sets of claims: (1) that plaintiff was deprived of property interests in the full-time position and the part-time position without due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 6 of the New York State Constitution; and (2) that plaintiff was deprived of his right to equal protection of the laws as guaranteed by the Fourteenth Amendment and Article 1, Section 11 of the New York State Constitution. As a ground for the equal protection claims, plaintiff asserts that defendants' failure to provide sufficient notice of termination and an impartial pre-termination hearing was arbitrary, unreasonable and capricious.
Defendants contend that summary judgment should be granted and that the Complaint should be dismissed. They argue that plaintiff does not have a constitutionally protected interest in continued employment in the full-time position because the full-time position was abolished in accordance with state law. In addition, although defendants concede that plaintiff had a property interest in the part-time position, they argue that they did not violate plaintiff's rights therein. In the alternative, defendants contend that summary judgment should be granted in favor of the individual members of the Board under the doctrine of qualified immunity.
In opposition to defendants' motion, plaintiff contends that the Board abolished the full-time position in order to rid the Village of Cifarelli and replace him with Fellman, and that defendants' stated reason -- economy -- was but a sham and pretext. Plaintiff asserts that the questions of whether the Board's stated reason was pretextual and whether the Village gave Cifarelli sufficient time to accept the part-time position should be answered by a jury.
A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). The initial burden is to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
The nonmoving party may defeat the summary judgment motion by producing sufficient evidence to establish a genuine issue of material fact for trial. See id. at 322. The test for existence of a genuine dispute is whether a reasonable juror could find for the nonmoving party; that is, whether the nonmovant's case, if proved at trial, would be sufficient to survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
In ruling on a motion for summary judgment, a court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs., 834 F.2d 54, 57 (2d Cir. 1987). The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Indeed, the nonmoving party's opposition may not rest on mere allegations or denials of the moving party's pleading, but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
A. Procedural Due Process
1. The Full-Time Position
Cifarelli claims deprivation of property without due process because he was discharged from the full-time position without notice and a hearing. Where a governmental employee is found to have a "property interest" in continuation of his or her employment, the Due Process Clause of the Fourteenth Amendment forbids discharge unless the employee is afforded notice and, typically, a pre-termination hearing. O'Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), and Dwyer v. Regan, 777 F.2d 825 (2d Cir. 1985), modified, 793 F.2d 457 (2d Cir. 1986)).
"Property interests in employment 'are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Id. (quoting Loudermill, 470 U.S. at 538 and Roth, 408 U.S. at 577) (internal quotations omitted). Under New York law "a person holding a position by permanent appointment in the competitive class of the classified civil service," N.Y. Civ. Serv. Law § 75(1)(a) (McKinney 1983), may "not be removed . . . except for incompetency or misconduct," id. § 75(1). The United States Court of Appeals for the Second Circuit has held that governmental employees whose positions are subject to N.Y. Civ. Serv. Law § 75(1) possess "an 'enforceable expectation of continued public employment,' [constituting] a property interest . . . protected by the due process clause." Berns v. Civil Serv. Comm'n, 537 F.2d 714, 716 (2d Cir. 1976) (quoting Bishop v. Wood, 426 U.S. 341, 345, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976)). Cifarelli alleges in the Complaint that he was "a permanent tenured employee" in the "competitive class, under New York Civil Service Law." Complaint, P 9. Based on this allegation, the Court determines -- due in part to the fact that defendants do not dispute the allegation -- that plaintiff had a property interest in continued employment in the full-time position that was protected by the Due Process Clause.
Where it has been determined that Due Process Clause applies, "the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). To answer that question, the Court must look to federal law. See Loudermill, 470 U.S. at 541; Dwyer, 777 F.2d at 831.
In order "to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate." Zinermon v. Burch, 494 U.S. 113, 126, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990). Adequacy of the process can be determined by weighing three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.