     09-4081-cv
     MacInnis v. Town of Orange




                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 29 th day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                JOSÉ A. CABRANES,
 9                         Circuit Judge,
10                MARK R. KRAVITZ, *
11                         District Judge.
12
13
14       - - - - - - - - - - - - - - - - - - - -X
15       DONALD MACINNIS,
16
17                    Plaintiff-Appellant,
18
19                    -v.-                                         09-4081-cv
20
21       TOWN OF ORANGE,
22


                *
                The Honorable Mark R. Kravitz, of the United States
         District Court for the District of Connecticut, sitting by
         designation.

                                                  1
 1            Defendant-Appellee.
 2   - - - - - - - - - - - - - - - - - - - -X
 3
 4   FOR APPELLANT:    TARA L. SHAW (Thomas G. Parisot, of
 5                     counsel), Secor, Cassidy & McPartland,
 6                     P.C., Waterbury, CT.
 7
 8   FOR APPELLEE:     DAVID S. MONASTERSKY, Howd & Ludorf, LLC,
 9                     Hartford, CT.
10
11        Appeal from a judgment of the United States District
12   Court for the District of Connecticut (Thompson, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Plaintiff-Appellant Donald MacInnis appeals from a
19   September 11, 2009 judgment of the United States District
20   Court for the District of Connecticut (Thompson, J.),
21   granting summary judgment for Defendant-Appellee Town of
22   Orange (the “town”) on MacInnis’s procedural due process
23   claim brought under 42 U.S.C. § 1983 regarding his dismissal
24   from the position of Director of Park and Recreation. We
25   assume the parties’ familiarity with the underlying facts,
26   the procedural history, and the issues presented for review.
27
28        A grant of summary judgment is reviewed de novo,
29   “resolv[ing] all ambiguities and draw[ing] all permissible
30   factual inferences in favor of the party against whom
31   summary judgment is sought.” Terry v. Ashcroft, 336 F.3d
32   128, 137 (2d Cir. 2003) (internal quotation marks omitted).
33
34        MacInnis alleges that his termination deprived him of a
35   constitutionally protected property interest without due
36   process of law, in violation of 42 U.S.C. § 1983. See
37   McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir.
38   2001). Property interests “are defined by existing rules or
39   understandings that stem from an independent source such as
40   state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577
41   (1972). “In the employment context, a property interest
42   arises only where the [employer] is barred, whether by
43   statute or contract, from terminating (or not renewing) the
44   employment relationship without cause.” S & D Maint. Co. v.
45   Goldin, 844 F.2d 962, 967 (2d Cir. 1988) (emphasis omitted).
46   Under Connecticut law, courts “have occasionally found an

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 1   implied promise to discharge only for cause in the
 2   circumstances of particular employment relationships,”
 3   including “in the representations contained in an employee
 4   relations manual or handbook.” See Magnan v. Anaconda
 5   Indus., Inc., 193 Conn. 558, 564 (1984).
 6
 7        MacInnis argues that the interplay among several
 8   dismissal provisions in the town’s Rules and Regulations
 9   handbook raises an implied promise to discharge him only for
10   cause, thereby creating a property interest. We disagree.
11
12        First, MacInnis’s belief that he could be fired only
13   for cause is a “unilateral expectation” that is insufficient
14   to establish “a legitimate claim of entitlement” to a
15   property interest. Roth, 408 U.S. at 577.
16
17       Second, the handbook contains many strictures and
18   provisions bearing upon employees subject to it, such as a
19   six-month “probationary period” (during which a prospective
20   employee must be approved, in writing, by the department
21   head before “retain[ment] as a regular employee in the
22   position,” Joint Appendix at 112). MacInnis’s claim that he
23   is protected by the handbook’s limitations on dismissal is
24   weakened because he offered no evidence that the town
25   followed these other handbook procedures with him.
26
27        Third, a town officer sent letters informing MacInnis
28   that his reappointment was being considered (in December
29   1999) and that he had been reappointed (in February 2000).
30   The letters, which reflect the town’s understanding that
31   MacInnis was an appointed official and an intent that he be
32   subject to appointment, negative any possible promise of
33   tenure implied in the handbook. MacInnis neither protested
34   nor sought clarification of these clear indications that the
35   town considered him an appointed official.
36
37        Fourth, the town’s distribution of the handbook to
38   MacInnis proves nothing, because according to its terms it
39   must be distributed to all employees, not just those whose
40   employment it governs. In any event, one would expect
41   MacInnis to need a copy of the handbook to discharge his
42   supervisory duties over employees covered by its terms.
43
44        Because MacInnis had no protected property interest in
45   his employment, his termination did not violate his due
46   process rights. We need not consider MacInnis’s argument
47   that Director of Park and Recreation is not an Appointed

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 1   Office under Article IX of the town’s charter, because the
 2   town’s belief to the contrary sufficed to negative any
 3   implied offers of tenure, and any property right that may
 4   have arisen if the position were an Appointed Office under
 5   the charter would have lapsed when MacInnis’s formal term
 6   ended in 2001--over six years before his termination.
 7
 8   We have considered all of MacInnis’s arguments and conclude
 9   that they lack merit. For the foregoing reasons, we hereby
10   AFFIRM the judgment of the district court.
11
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
15                              By:
16
17




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