Cifarelli v. Village of Babylon

ALTIMARI, Circuit Judge: Plaintiff-appellant Ralph Cifarelli (“Cifar-elli”) appeals from a judgment of the United States District Court for the Eastern District of New York (Wexler, </.), (1) awardmg him-nominal damages and grantmg the remainder of defendants-appellees’ motion for summary judgment on his due process and equal protection claims, and (2) denying his motion to amend the judgment. On appeal Cifarelli contends that the district court erred in granting summary judgment because genuine issues of material fact exist concerning the defendants’ alleged good faith in eliminating Ms job. We find that the record supports the district court’s conclusion that genuine issues of material fact do not exist, and accordingly affirm. BACKGROUND Cifarelli was employed by the Village of Babylon (“Village”) in the full-time civil service position of CMef Building Inspector from March of 1989 until August 10, 1993, when the Village’s Board of Trustees (“Board”) unanimously resolved to eliminate the full-time position Cifarelli held. At the time he was terminated, Cifarelli’s annual salary was $30,100. Concurrent with its elimination of the full-time position, the Board resolved to create a part-time, non-civil service position of building inspector, and to appoint Steven Fellman (“Fellman”) to that position at an annual salary of $5,000. The Suffolk County Department of Civil Service (“DCS”) approved the Board’s resolutions. Cifarelli was informed of his termination several hours prior to the Board’s vote. Ten days after his termination, Cifar-elli commenced this action under 42 U.S.C. § 1983 (1994). Meanwhile, DCS notified the Village that it had mistakenly advised the Village that it need not offer Cifarelli the part-time position it was creating. Consequently, the Village retracted the offer made to Fellman, placed Cifarelli’s name on a one-name preferred list for the part-time position, and in a letter to Cifarelli dated September 30, 1993, offered him the position. DCS, however, found the Village’s imtial letter inadequate, promptmg the Village to send a supplemental letter to Cifarelli dated October 25, 1993, which informed him, among other things, that he had ten business days in which to respond to the Village’s offer of employment. Because Ci-farelli failed to respond to the offer within the ten-day period, the Village advised him in a letter dated November 9, 1993, that it considered him to have declined the part-time position. Two days later Cifarelli’s counsel sent a letter to the DCS objecting to the ten-day deadline as unduly harsh. In a letter to the Village dated November 16, 1993, Cifarelli then purported to accept the part-time position. The Village advised Cifarelli that it would defer to DCS regarding whether or not Cifarelli’s acceptance could be deemed timely. Shortly thereafter, DCS notified Ci-farelli that ten-days was a sufficient amount of time within which to accept the part-time position, and that his acceptance was untimely50 In his complaint, Cifarelli named as defendants the Village, the Board and its individual members, and DCS, which was subsequently dismissed as a defendant by stipulation of the parties. The complaint alleged that: (1) the defendants deprived Cifarelli of a property interest in a tenured position without notice of the cause for his termination or an opportunity to be heard, in violation of his due process rights under the United States and New York Constitutions, and (2) that such termination without notice and hearing was arbitrary, unreasonable, and capricious, in violation of his equal protection rights under the federal and state constitutions. The defendants moved for summary judgment, claiming that Cifarelli did not have a constitutionally protected property interest in the full-time position, because that position was eliminated in accordance with New York Civil Service Law § 80 (McKinney 1983 & Supp.1996). Section 80 provides, in relevant part, that competitive, civil service positions may be abolished for reasons of “economy, consolidation, or abolition of functions.” Moreover, the defendants contended that they legitimately gave the part-time position to Fellman, only after Cifarelli failed to timely respond to the offer extending him the new position. Finally, the defendants claimed that the individual Board members were protected by qualified immunity. In opposing the motion, Cifarelli asserted that the Board eliminated his position specifically to get rid of him, and that its rationale of economy and efficiency was pretextual. According to Cifarelli, the pretextual nature of the Board’s rationale and the inadequacy of the ten-day acceptance period were questions of material fact to be decided by a jury. The district court denied the defendants’ motion in part, and granted it in part. Relying on our opinion in Dwyer v. Regan, 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986), the court held that the defendants violated Cifarelli’s procedural due process rights because they did not afford him adequate time to object to his termination and to request a pretermination hearing. See id., 777 F.2d at 833 (where state terminates single employee, due process requires pretermination hearing upon timely request of employee objecting to termination on grounds of pretext). Nonetheless, the district court held that Cifarelli was only entitled to nominal damages, because Cifarelli clearly would not have prevailed in a pretermination hearing. See id. at 834 (“If [defendant] can show that [plaintiffs] employment would have been terminated even after a proper pretermination hearing, [plaintiff] will nonetheless be entitled to recover nominal damages.”) (citing Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978)). The district court determined that Cifarelli would not have prevailed in a hearing because the defendants had demonstrated a good faith basis for eliminating his position, namely, for economic reasons, and Cifarelli could not demonstrate that the defendants’ actions were motivated by bad faith. Consequently, the court held that Cifarelli had not met his burden of establishing a disputed issue of material fact sufficient to defeat summary judgment; except for allowing nominal damages, the district court granted the defendants’ motion as to the due process claims. It further held that Cifarelli’s loss of the part-time position did not violate his due process rights, because that position was properly offered to, and declined by, him. Finally, the district court held that there were no grounds in the record to support an equal protection claim under the federal or state constitutions. After judgment was entered, Cifarelli moved pursuant to Fed.R.Civ.P. 52(b) and 59(e) for an order amending the-judgment. Cifarelli contended that the district court erred in relying on an affidavit from Donald E. Conroy (“Conroy”), the Village Mayor, which stated that the Village’s decision to eliminate Cifarelli’s position was motivated by economic considerations, because Cifarelli did not have an opportunity to address the contents of the Conroy affidavit in a sur-reply. The district court denied the motion, on the ground that Cifarelli’s response papers to the defendants’ motion made clear that he was fully aware of the defense’s argument prior to receiving the reply. Cifarelli then brought the present appeal. — 51 — Discussion On appeal, Cifarelli claims that the district court erred in granting summary judgment, because it: (1) decided a contested issue of material fact; namely, whether the defendants eliminated his position in good faith, and (2) considered the contents of the Con-roy affidavit in support of the defendants’ motion. We review a district court’s grant of summary judgment de novo. Giano v. Senkowski 54 F.3d 1050, 1052 (2d Cir.1995). Summary judgment is warranted “only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact,” Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1352 (2d Cir.1994) (internal quotations and citations omitted), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(c). The court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Institute for Shipboard Educ. v. Cigna Worldwide Ins. Co., 22 F.3d 414, 418 (2d Cir.1994). Once a movant has demonstrated that no material facts are in dispute, the nonmovant must set forth specific facts indicating a genuine issue for trial exists in order to avoid the granting of summary judgment. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990). However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Id. Finally, Fed. R.Civ.P. 56(c) and (e) provide that a non-moving party may not rest on the pleadings but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue exists for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); United States v. Rem, 38 F.3d 634, 643 (2d Cir.1994). 1. The Defendants’ Good-Faith Relying on principles of employment discrimination law, Cifarelli argues that the district court improperly granted summary judgment because he: (1) established a pri-ma facie case of discriminatory termination, and (2) had shown that the defendants’ rationale for terminating him on the grounds of economy and efficiency was pretextual. According to Cifarelli, the defendants’ rationale is belied by such facts as: (i) the proposed Village budget for the 1994-95 fiscal year allegedly showed no overall savings from the elimination of his position; (ii) the Village created three additional jobs which entailed certain code-enforcing functions formerly performed by Cifarelli; and (in) Mayor Con-roy’s deposition testimony explained that his motivation for eliminating Cifarelli’s position was, in part, his desire to “revamp” the building operations department, to improve standards, and to “proceed in another direction.” Cifarelli’s reliance on employment discrimination cases is misplaced. Cifarelli has not alleged that his termination was the result of discrimination, and we read no such allegations in Cifarelli’s papers. Nor has he appealed that portion of the district court’s judgment impheating such claims — namely, the court’s dismissal of his equal protection claims. As a result, the principles underlying employment discrimination law are inap-posite. Rather, New York Civil Service law is dispositive of Cifarelli’s claims. Under New York law, “a public employer may abolish civil service positions for purposes of economy or efficiency” so long as the abolition is not “a subterfuge to avoid the statutory protection afforded to civil servants before they are discharged.” Bianco v. Pitts, 200 A.D.2d 741, 607 N.Y.S.2d 78, 79 (2d Dep’t 1994) (citations omitted); Switzer v. Sanitary Dist. No. 7, 59 A.D.2d 889, 399 N.Y.S.2d 43, 44-45 (2d Dep’t 1977). The burden is on the party challenging the abolition to prove “that the act was not effected in good faith.” Bianco, 607 N.Y.S.2d at 79 (citations omitted). Cifarelli cites the defendants’ appointment of Fellman to the part-time position as — 52 — evidence that the abolition of his position was undertaken in bad faith. Felknan’s appointment alone, however, is insufficient to establish a genuine issue of material fact regarding the defendants’ alleged bad faith. New York law makes plain that bad faith requires a dishonest purpose. See, e.g., id. 607 N.Y.S.2d at 79 (abolition of a civil service position cannot be motivated by a desire to circumvent the requirements of the Civil Service Law); cf. Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 750 n. 5, 448 N.E.2d 413, 417 n. 5 (1983) (“Bad faith, the mirror image of good faith, connotes a dishonest purpose.”); Gordon v. Nationwide Mut. Ins. Co., 30 N.Y.2d 427, 334 N.Y.S.2d 601, 608, 285 N.E.2d 849, 854 (1972) (In breach of contract context, “bad faith requires an extraordinary showing of a disingenuous or dishonest failure to carry out a contract.”), cert. denied, 410 U.S. 931, 93 S.Ct. 1374, 35 L.Ed.2d 593 (1973). Here, the record amply demonstrates the lack of any such dishonesty on the part of the Village to avoid the requirements of the Civil Service Law. The Village originally offered the part-time position to Fellman only after DCS advised it that the position could be offered to someone other than Cifarelli. When DCS subsequently retracted that advice, and instructed the Village that it must offer the part-time position to Cifarelli, the Village swiftly complied. The Village acted equally swiftly when DCS instructed it that a more detailed offer had to be mailed to Cifar-elli. Moreover, when Cifarelli purported to accept the part-time position after the deadline for acceptance had expired, the Village did not reject his acceptance outright, but further agreed to abide by the decision of DCS. Moreover, Cifarelli’s arguments suggesting pretext, separately or in combination, fail to establish a genuine issue of material fact on the question of bad faith. First, it is self-evident that an overall increase in the 1994-95 Village budget over the previous year does not speak to the Village’s cost-savings as a result of reallocating its resources by eliminating the full-time position. See O’Donnell v. Kirby, 112 A.D.2d 936, 492 N.Y.S.2d 454, 456 (2d Dep’t 1985) (where county’s annual budget reflected an increase in salaries over previous years, “this fact, standing alone, hardly warrants a finding that the Legislature did not act in good faith in abolishing petitioner’s position _ nor will we sit in judgment on the wisdom or relative efficiency of this legislative act”). Indeed, we note that the record indicates a net savings to the Village with respect to the positions at issue. While $55,000 was allocated in 1993-94 for the Building Department, which included Cifarelli’s salary for the full-time position, only $31,000 was allocated to the Building Department in 1994-95. If the $5,000 for the new part-time position under Code Enforcement is taken into account, an overall savings of $19,000 to the Village is realized. Second, Mayor Conroy’s testimony that part of his motivation for eliminating Cifarel-li’s position was a desire to “revamp” the building operations department, to improve standards, and to “proceed in another direction,” fully supports the Village’s contention that the elimination of Cifarelli’s position was undertaken for efficiency purposes; such a motivation hardly evinces dishonesty or pretext. Third, the creation of three code-enforcement positions in the 1994-95 budget which entail functions previously performed by Cifarelli reflect a reorganization and reallocation of resources. We will not second guess the Village’s judgment that these new positions provided greater economy and efficiency. See O’Donnell, 492 N.Y.S.2d at 456. Accordingly, we hold that the district court did not err in granting summary judgment on the ground that a genuine issue of material fact concerning the defendants’ alleged bad faith did not exist. See Nauta v. City of Poughkeepsie, 610 F.Supp. 980, 982 (S.D.N.Y.1985) (granting summary judgment in a case challenging job elimination under Civ. Serv. Law § 80, because “the evidence of budgetary motive is so compelling that no reasonable interpretation of the evidence supports the existence of a genuine issue of material fact”) (internal quotations omitted); cf. Seeman v. Trustees of Columbia Univ., 633 N.Y.S.2d 954 (1st Dep’t 1995) (Where allegations of bad faith “have no support in — 53 — the record [they] fail to raise any issue of fact requiring a trial.”). 2. Conroy Affidavit Cifarelli also argues that Mayor Conroy’s affidavit was the first submission by the defendants to suggest that Cifarelli’s position was eliminated for fiscal reasons. According to Cifarelli, the district court erred in relying on the contents of the affidavit as a basis for the defendants’ good faith motivations, because the affidavit was submitted as part of the defendants’ reply to which Cifarelli was not allowed a sur-reply. The district court rejected this claim, on the ground that Cifarelli’s response papers to the defendants’ motion indicated that he was fully aware of the Village’s defense. We agree with the district court that the record belies Cifarelli’s claim. As the district court noted, Cifarelli’s memorandum in opposition to the defendants’ motion for summary judgment, which was submitted before the defendants’ reply, stated that “the factual issue in this case is whether the reason defendant employer gave for terminating the plaintiff, purportedly economy, was real or pretextual.” Further, the eighth affirmative defense in the defendants’ answer expressly justified the elimination of the position in terms Civ. Serv. Law § 80, which permits the abolition of civil service positions for reasons of economy. In addition, paragraph 5 of Cifarelli’s affirmation in opposition to the defendants’ 3(g) statement raises the issue of pretext; it states that the defendants’ 3(g) statement “omits reference to the budgets,” that “[t]he budgets at issue do not show any overall savings in the building department,” and that “at least three other employees were hired in the building department” to perform code enforcement work previously done by Cifar-elli. Finally, the deposition transcript of Mayor Conroy reflects that Cifarelli’s counsel questioned him repeatedly about issues of economy. In sum, the record reveals that Cifarelli was fully aware prior to the defendants’ reply of their defense of economy and efficiency. However, Cifarelli chose not to address that defense as forcefully as he could have in his response papers. Accordingly, the district court did not abuse its discretion in denying Cifarelli’s motion to amend the judgment. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983) (per curiam). Cf. Ball v. Interoceanica Corp., 71 F.3d 73, 76 (2d Cir.1995) (per curiam) (motion for a new trial pursuant to Fed.R.Civ.P. 59(a) should not be granted “ ‘merely because the losing party can probably present a better case on another trial.’ ”) (quoting 6A James Wm. Moore et al., Moore’s Federal Practice ¶ 59.08[2], at 59-96 through 97 (2d ed.1989)). CONCLUSION For the reasons stated above, the judgment of the district court is affirmed.