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PROGRESSIVE TRANSP. SERVS. v. COUNTY OF ESSEX

April 2, 1998

PROGRESSIVE TRANSPORTATION SERVICES, INC., Plaintiff,
v.
COUNTY OF ESSEX, CLIFFORD R. DONALDSON, JR., and JAMES E. PIERCE, Defendants.



The opinion of the court was delivered by: MCAVOY

 In this 42 U.S.C. section 1983 civil rights and state law breach of contract action both sides seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 I. BACKGROUND

 Plaintiff Progressive Transportation Services, Inc. ("Progressive") provides, among other things, municipal transportation services for Medicaid recipients and handicapped individuals. In June 1995, defendant Essex County (the "County") advertised for bids on its transportation needs for the 1995-1996 school year. Progressive was the low bidder on four routes and in July 1995, the County awarded a contract to Progressive to transport handicapped children to and from their school programs.

 In evaluating the location of the children on two of the routes, Progressive determined that the most efficient way to service those two routes was to use a single vehicle. In May, 1996, Progressive "mentioned" to a County employee that it was using a single vehicle for two routes. Soon afterward, Progressive learned that defendant James Pierce, the County's Purchasing Agent, objected to the use of one vehicle for two routes. As a result, Progressive wrote a letter to Pierce, dated May 24, 1996, explaining Progressive's position. The letter stated, inter alia, that "the coordination maximizes the effectiveness of taxpayer's dollars and reduces energy consumption through lower fuel usage. (Bradley Aff., Ex. F).

 The County refused to compensate Progressive for the two routes, taking the position that the contract did not allow the two routes to be combined. Progressive's President, Paul Ballard, then sent letters to defendant Clifford Donaldson and the County's Board of Supervisors describing the benefits of coordinated services. *fn1" In an effort to resolve the dispute, Progressive also had meetings and telephone calls with County officials.

 Also in 1996, the County accepted transportation bids for the summer of 1996 and the 1996-1997 school year. Without explanation, the County rejected a number of low bids submitted by Progressive, awarding only a single route. The County also withheld $ 20,016 from amounts owed to Progressive, claiming that it had overpaid Progressive as a result of the combination of the two routes.

 On October 24, 1996, Progressive filed the instant Complaint which asserts the County's refusal to award certain routes was done in retaliation for the exercise of Progressive's First Amendment rights. Progressive also brings a pendant state law claim for breach of contract. Presently before the Court is Plaintiff's Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment.

 II. DISCUSSION

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The substantive law will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The non-moving party, however, must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 A. Progressive's First Amendment Claim

 Progressive asserts that the County's refusal to award certain routes was done in retaliation for the exercise of its First Amendment rights. Defendant argues that the speech at issue here is, as a matter of law, not the type of speech that implicates the First Amendment.

 The government "may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech" even if he has no entitlement to that benefit. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972). Accordingly, the Supreme Court has held that government employees are constitutionally protected from dismissal for publicly or privately criticizing their employer's policies, see, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979), for refusing to take an oath regarding their political affiliation, see, e.g., Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), for expressing hostility to prominent political figures, see Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987), or, except where political affiliation may reasonably be considered an appropriate job qualification, for supporting or affiliating with a particular political party, see, e.g., United States v. ...


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