Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-032

                                          JUNE TERM, 2015

 Adam Hubacz                                           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 The Village of Waterbury, Vermont and                 }    DOCKET NO. 305-5-14 Wncv
 William Shepeluk                                      }

                                                            Trial Judge: Mary Miles Teachout

                          In the above-entitled cause, the Clerk will enter:

       Plaintiff appeals from the trial court’s dismissal of his complaint as prematurely filed.*
We affirm.

        This matter has a lengthy and complicated procedural history. We begin with the facts as
recited by the federal court in Hubacz v. Village of Waterbury, No. 2:12-cv-39, 2014 WL
1493981 (D. Vt. Apr. 15, 2014) (Hubacz I), and Hubacz v. Village of Waterbury, No. 2:14-cv-
134, 2014 WL 4060314 (D. Vt. Aug. 14, 2014) (Hubacz II). Plaintiff was employed as a police
officer for the Waterbury Police Department beginning in 2009. In January 2012, he was placed
on administrative leave and, after notice and a hearing, he was terminated pursuant to 24 V.S.A.
§ 1932. The stated basis for the termination was a decision by the Washington County State’s
Attorney to cease prosecuting plaintiff’s cases.

        In February 2012, plaintiff filed suit in federal court, raising a federal due process claim
and a claim for reversal of the termination decision. The latter claim was construed as an appeal
under Vermont Rule of Civil Procedure 75. The Rule 75 claim alleged that the Village of
Waterbury Trustees failed to comply with procedural and substantive requirements set forth in
24 V.S.A. § 1932. Plaintiff argued, substantively, that the Village Trustees failed to provide
evidence of negligence, dereliction of duty, or conduct unbecoming an officer as required by
law. In April 2014, the federal court rejected plaintiff’s procedural due process claim but
granted plaintiff’s motion for summary judgment on his Rule 75 appeal. The court found that
the Village Trustee’s factual findings did not support their ruling under § 1932, and therefore
remanded to the Trustees for further proceedings. The court also invited the Village Trustees to
reconsider whether recourse for firing a police officer was limited to § 1932 or if it might also be
based on 24 V.S.A. § 1931. The court explicitly offered “no opinion with respect to [plaintiff’s]
legal entitlement to back pay, damages, or attorney’s fees.” Hubacz I, 2014 WL 1493981, at *9
         *
           We note that a final judgment order issued in this case in April 2015, following the
court’s ruling on a motion for sanctions under Vermont Rule of Civil Procedure 11. Appellee’s
motion to dismiss this appeal as an improper interlocutory appeal is therefore denied.
n.4. The federal court entered a final judgment, and the parties did not appeal from this decision.
As the federal court later explained, its ruling

               clearly contemplated additional proceedings before the Village
               Trustees consistent with the Court’s findings and conclusions of
               law. The Court did not intend for its ruling to be used as a basis
               for [plaintiff] to claim a right to immediate reinstatement as an
               active duty police officer, or to otherwise alter the status quo that
               existed prior to the Village Trustees’ initial ruling.

Hubacz II, 2014 WL 4060314 at *1.

        In May 2014, plaintiff filed a complaint in the Washington Unit of the Vermont Superior
Court. Plaintiff alleged that he was entitled to unpaid wages and the value of other benefits
dating back to the date of his termination. The complaint also asked the state court to order his
reinstatement as a police officer in the Waterbury Police Department; and that any further
disciplinary proceedings be brought pursuant to 24 V.S.A. § 1932. Plaintiff subsequently
amended his complaint, adding a claim of illegal retaliation and requesting additional mandamus,
declaratory, and/or injunctive relief. The first amended complaint responded in part to the
revised Notice of Charges issued by the Village Manager on May 23, 2014. That Notice
concluded that “there is just cause under 24 V.S.A. § 1931 to recommend that the Village
Trustees terminate [plaintiff’s] employment.” Id. at *2. As in his original complaint, plaintiff
argued that under Vermont law, the Village could not proceed under § 1931. The Village
Manager later issued a revised Notice of Charges, dated June 20, 2014, explaining that in
addition to recommending termination under § 1931, he would also recommend removal for
specific acts of misconduct under § 1932. Plaintiff disputed whether such alleged misconduct
could be raised or admitted at a hearing before the Village Trustees.

       In June 2014, defendants removed this case to federal court. The federal court
determined that it lacked subject matter jurisdiction over the complaint, and in August 2014, it
remanded the case to the superior court. Id. at *5.

        In January 2015, the superior court ruled on various motions filed in this case, including
defendants’ motion to dismiss plaintiff’s complaint and plaintiff’s motion to amend his
complaint for a second time. The court briefly recounted the procedural history set forth above,
and explained that the Trustees had scheduled a hearing as directed by the court in Hubacz I.
The hearing was scheduled for January 28, 2015, and plaintiff had filed various motions related
to the hearing. The court reiterated that, in his complaint, plaintiff sought judgment against the
Trustees for wages from January 27, 2012 forward, damages for benefits for the same period,
damages and other relief for illegal retaliation, a declaration and order of reinstatement, and an
injunction against proceeding with alleged illegal termination proceeding. In plaintiff’s proposed
second amended complaint, plaintiff sought to add two new counts requesting orders prohibiting
the Trustees from using certain materials in the upcoming disciplinary hearing.

       The court recognized that motions to dismiss pursuant to Vermont Rule of Civil
Procedure 12(b)(6) are not favored and should only be granted if it is beyond doubt that there are
no facts or circumstances that would entitle a plaintiff to relief. In re Girouard, 2014 VT 75,
¶ 13. The court found this standard satisfied here. It explained that the federal court specifically
remanded the case to the Trustees for further proceedings following plaintiff’s Rule 75

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complaint, specifying the deficiencies in the first termination proceeding. That court had not
affirmed, reversed, or modified the Trustees’ decision, but rather, had remanded “for further
proceedings.” The federal court specified that “[a]ny questions with respect to compensation
may be presented to the Village Trustees for their consideration,” Hubacz I, 2014 WL 1493981,
at *9 n.4, and it offered no opinion on plaintiff’s legal entitlement to back pay, damages, or
attorney’s fees. That ruling was not appealed.

        The record suggested that the parties disagreed about the effect of the ruling on whether
plaintiff’s status since January 2012 (the date of the first termination hearing) was as a
terminated employee or a nonterminated employee. The court found that this was the exact
subject matter of the proceeding that had been remanded to the Trustees for further proceedings.
In its August 14, 2014 order remanding the case to the superior court, moreover, the federal court
specified that it had not intended its ruling on plaintiff’s Rule 75 complaint to be used as a basis
for plaintiff to claim a right to immediate reinstatement as an active duty police officer.

        Given this, the court concluded that it would be premature for it to address either
plaintiff’s termination status or any other issue that depended on termination before the remand
was complete. Plaintiff had not exhausted remedies through the pending administrative
proceedings, and therefore, the court concluded that his case must be dismissed. Given its
conclusion, the court dismissed the other pending motions as well. This appeal followed.

        Plaintiff maintains that dismissal was inappropriate because facts and circumstances exist
that would entitle him to relief. He suggests that the court failed to consider his proposed second
amended complaint in reaching its decision. Plaintiff also asserts that the court erred by ignoring
portions of the federal court’s August 2014 decision that remanded the instant case to the
superior court. He asserts that in this order, the federal court clarified that its prior comments
regarding 24 V.S.A. § 1931 were dicta, and also held that he could pursue a challenge in state
court to the June 20 Notice of Charges. Additionally, because the federal court’s first remand
order to the Village Trustees was issued in April 2014, plaintiff contends that, as a matter of law,
the June charges against him could not be encompassed within the first decision remanding to
the Trustees for additional proceedings.

        We find these arguments without merit. As the trial court has stated, “[i]n determining
whether a complaint survives dismissal for failure to state a claim, courts must take the factual
allegations in the complaint as true, and consider whether it appears beyond doubt that there exist
no facts or circumstances that would entitle the plaintiff to relief.” In re Girouard, 2014 VT 75,
¶ 13 (quotation omitted). The trial court did consider the proposed second amended complaint,
noting in its decision that plaintiff sought to add two new counts.

         We agree with the trial court that it would be premature to address either plaintiff’s
termination status or any other issue that depended on termination before the remand to the
Village Trustees was complete. We reject plaintiff’s construction of the federal court’s first
order. The federal court did not state that the language concerning § 1931 was dicta. In its
initial ruling, it specifically remanded the case “to the Trustees for reconsideration of whether, in
fact, recourse for the termination of a police officer is limited to Section 1932.” Hubacz I, 2014
WL 1493981, at *8. The court later noted that no party had appealed its “suggestion . . . that the
Village consider the potential application of § 1931.” Hubacz II, 2014 WL 4060314 at *4. The
use of the word “suggestion” does not in any way obviate the court’s clear remand of this
question to the Trustees. Plaintiff also argues that the federal court held that the state court could

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address the issues in his complaint. He cites the court’s statement that “to the extent further
interpretation of state law is required on matters this Court left unresolved, the state courts offer
the most appropriate forum.” Id. at *5. Plaintiff interprets this to mean that he may proceed on
his complaint in state court and bypass the town administrative process. Plaintiff misreads the
federal court’s order. The federal court merely observed that it had not decided the question of
whether plaintiff could challenge the application of § 1931 going forward, or the legality of
raising specific acts of misconduct in a future disciplinary hearing. The fact these questions may
be addressed at some point in the state court, as opposed to the federal court, does not mean that
plaintiff need not complete the town hearing process.

        We similarly reject plaintiff’s argument that the June 20 notice of charges could not be
encompassed within the remand order. All of these charges concern plaintiff’s employment
status and it would make no sense to separate these charges from other charges being considered
by the Trustees. It is the Village Trustees who must decide in the first instance if plaintiff should
be terminated and on what grounds. Nothing in the proposed second amended complaint
changes this result. As the trial court found, all of plaintiff’s claims, including his claims for
wages, benefits, and illegal retaliation; his allegations concerning what evidence may or not be
admissible at the hearing before the Trustees; the grounds on which he may be terminated; and
his claim for reinstatement, are premature. They must await a final determination at the
administrative level.

        We have explained that “[c]laims are ripe when there is a sufficiently concrete case or
controversy, as opposed to one that is abstract or hypothetical. Courts should not render
decisions absent a genuine need to resolve a real dispute, and should not render decisions on
claims that are purely speculative involving events that are contingent upon circumstances that
may or may not occur in the future.” Skaskiw v. Vermont Agency of Agriculture, 2014 VT 133,
¶ 31 (alterations omitted) (citations omitted). We cannot predict what will happen in the
proceedings before the Village Trustees. Their decision is a critical component in the resolution
of plaintiff’s claims and plaintiff must complete the administrative process before his claims in
this suit can be addressed.

     Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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