Ciambriello v. County of Nassau, Civil Service Employees Association, Inc., Russell Rinchiuso, Richard Contugno and Ron Roeill, NO. 01-7556

SACK, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority's resolution of this appeal with respect to the plaintiff Daniel Ciambriello's conspiracy claim and his claims against the Civil Service Employees Association, Inc., and therefore join Parts II and III of the majority opinion. I respectfully dissent, however, from the majority's conclusion that Ciambriello has a property interest in his employment protected by the Due Process Clause of the Fourteenth Amendment.

The majority's view that the plaintiff has such a property interest rests on § 10-5 of the collective bargaining agreement covering Ciambriello's employment (the "CBA").

Majority opinion, ante at [10]. Section 10-5 reads in its entirety:

Notice of Discipline and Charges. An employee who is entitled to the protections of this section shall, within 20 calendar days of the imposition of a penalty, be served with written notice of the discipline and charges of incompetence and/or misconduct either in person or by certified mail, return receipt requested, to the employee's current address as it appears on the County's personnel records. If the employee wishes to contest said discipline, the employee must proceed in accordance with the Disciplinary Review Procedure set forth in this section.

A copy of such notice and charges shall simultaneously be served upon the Union.

CBA § 10-5 (emphasis added).1 My disagreement with the majority rests on its conclusion that "[i]n stating that a covered employee upon whom a penalty is imposed 'shall . . . be served with . . . charges of incompetence and/or misconduct,' § 10-5

grants covered employees the substantive right not to be subjected to the disciplinary penalties identified in CBA's § 10-

absent incompetence or misconduct. Majority opinion, ante at [10].

"[A] person may possess a protected interest in public employment if contractual or statutory provisions guarantee continued employment absent 'sufficient cause' . . . ." Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002). The CBA does not expressly confer a property interest through an explicit "sufficient cause" or "just cause" provision. Cf., e.g., id., at 100 ("[T]he plain language of the recognition agreement shows that it does not create any sort of an employment interest in employment7 . . . because the [employer's] discretion to hire or fire an employer was unlimited."); Leary v. Daeschner, 228 F.3d 729, 742 (6th Cir. 2000) (finding a property interest where employees could only be dismissed "for cause"); Hennigh v. City of Shawnee, 155 F.3d 1249, 1255 (6th Cir. 1998) (finding a property interest in a clause guaranteeing continued employment "except on a showing of 'good cause' and 'extenuating circumstances'") (emphasis omitted); Dill v. City of Edmond, 155

F.3d 1193, 1206 (10th Cir. 1998) (holding that a "for cause"

provision in a collective bargaining agreement created a protected property interest); Int'l Union, United Auto., Aerospace & Agric. Workers of Am., Local 737 v. Auto Glass Employees Fed. Credit Union, 72 F.3d 1243, 1251 (6th Cir.)

(finding no property interest where "no provision [of the contract] explicitly promised that the [employer] would not discharge its employees without cause"), cert. denied, 519 U.S.

814 (1996); Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 401 (3d Cir. 1992) (concluding that "only two types of contracts" create protected property interests, those that confer "a protected status" and those comprising "for cause"

provisions); Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) (finding a property interest based on a "just cause"

provision). In Ciambriello's case, "no provision [of the CBA]

explicitly promised that the [employer] would not discharge its employees without cause" in the manner of the aforementioned cases. Int'l Union, 72 F.3d at 1251 (emphasis added).

Unlike the majority, I also cannot find in the clearly procedural provisions of § 10-5 an implicit restriction of the grounds upon which employees may be disciplined. The majority "read[s] § 10-5 as creating a substantive interest not to be dismissed or demoted . . . except in the event of incompetence or misconduct," majority opinion, ante at [11], from the fact that Ciambriello must be notified of both "the discipline" -- the adverse employment action, as enumerated in § 10-62 —- and the "charges of incompetence and/or misconduct." This first sentence of § 10-5 seems to me to admit of at least two readings: (1) that if discipline is based on charges of incompetence or misconduct, employees are entitled to written notice of these charges; or (2)

that discipline must always be accompanied by charges of incompetence or misconduct. The majority settles on the second interpretation through two inferences. It first observes that notice must accompany all discipline, and then infers that notice of charges of misconduct or incompetence must also accompany all Majority opinion, ante at [11].

discipline. Second, from the inference that notice of charges of misconduct or incompetence must accompany discipline, the majority concludes that discipline must always be accompanied by "charges of incompetence and/or misconduct." Hence, the majority finds that Ciambriello's employer, Nassau County, can only demote or terminate employees for misconduct or incompetence.

I find the majority's reconstruction of this phrase unpersuasive. As an initial matter, the first sentence of § 10-5

explicitly mandates one thing: written notice. We have disapproved of an inference of substantive restrictions on disciplinary grounds from a notice provision. In Goetz v.

Windsor Cent. Sch. Dist., 698 F.2d 606, 609 (2d Cir. 1983), we held that "[t]he mere fact that an employer may be required to notify an employee of the reasons for discharge does not alter the employee's status" as an at-will employee. A fortiori, the fact that an employer may be required to notify an employee when he or she is disciplined for some reasons does not limit the employer to those reasons in imposing discipline.3

The context in which § 10-5 is found seems to me to reenforce this view. The first sentence of § 10-5 identifies only the procedure the employer must follow to impose "discipline." Employees receive written notice "of the discipline and charges of incompetence and/or misconduct" within twenty days of the imposition of discipline. Section 10-5 does not state that "incompetence and/or misconduct" are the sole grounds for discipline. Also absent is any statement that "charges of incompetence and/or misconduct" are a precondition for discipline. The second sentence of the section adds that an employee wishing to contest discipline "must proceed in accordance with the Disciplinary Review Procedure" specified in the CBA. See CBA §§ 10-8 & 23. Together, the first two sentences of § 10-5 articulate a procedural framework, not grounds, for "discipline."

Section 10-5, moreover, is entitled "Notice of Discipline and Charges," and contained in a section with the heading "Disciplinary Procedures." (emphases added). Other provisions of § 10 describe procedural norms, not conditions or guarantees of continued employment. Section 10-3.1, for instance, provides employees with "a reasonable opportunity to consult with a union representative" before being required to resign. Thus, the entirety of § 10 provides procedural, not substantive, protection for employees.

Finally, the meaning of § 10-5 is clarified by the content of the "Disciplinary Review Procedure" to which it refers. Employees governed by the CBA do not have an absolute right to an arbitral hearing: Under § 10-8.3, "only the Union may proceed to Disciplinary Arbitration." If the drafters of the CBA intended to place a restriction on the reasons for which the County can discipline employees, it is difficult to see why they would in the very same provision eliminate the mechanism to implement this right. To be sure, a state actor cannot give with one hand a protected property interest, and eliminate with the other hand the procedure that must accompany this property interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 541 (1985) (noting that a legislature "may not constitutionally authorize the deprivation of [a protected property] interest, once conferred, without appropriate procedural safeguards") (internal citations and punctuation omitted). In this instance, however, the fact that the CBA does not grant employees a hearing to vindicate their property right after discipline seems to me to demonstrates that there was never an intention on the part of the CBA's drafters to "confer[]" such a property right. Id. If § 10-5 was intended to place a substantive restriction on the grounds for which an employee could be disciplined, the CBA would not have deliberately omitted any means for an employee to enforce that restriction.

Section 10-5 of the CBA, in my view, furnishes only procedural protection to employees, makes arbitration's availability dependent on the union, and does not create substantive rights. I would therefore affirm the district court's decision that Ciambriello has no property interest in his employment.

[1]-. The Disciplinary Review Procedure referred to in § 10-b has three steps. First, an employee presents an "objection in writing to the employee's department head . . . ." CBA § 10-8.1

Second, the employee presents the matter to the Office of Labor Relations. Id. § 10-8.2 Finally, arbitration may be initiated —

but only by the union — either after completion of the first two steps, or immediately upon discipline if the employee is subject to discharge or an unpaid suspension of more than thirty days.

Id. § 10-8.3. The arbitrators, though empowered to make final and binding decisions, cannot "add to, subtract from, modify or change" the CBA, id. § 10-9.4, and can "only decide whether misconduct or incompetence existed," id. § 10-9.5(d).

[2]-. "Discipline" is used in § 10-6 broadly to include adverse employment actions without reference to the reasons for the action.

[3]-. Federal courts have typically been reluctant to read procedural provisions as creating substantive property interests.

"Procedural detail in a statute or regulation, standing alone, is not sufficient to establish a protected property interest in an employment benefit." Hennigh, 155 F.3d at 1254; accord Int'l Union, 72 F.3d at 1251 (finding no property interest in "provisions that gave employees the right to have their complaints heard in a grievance procedure and the right to discuss their discharge with the Union").