United States Court of Appeals
For the First Circuit
No. 06-1874
LINDA JENESKI,
Plaintiff, Appellant,
v.
CITY OF WORCESTER; STEPHEN R. WILLAND;
DONALD H. ANDERSON; CARLENE BULL;
ROBERT J. HENNIGAN, JR.; DAVID M. MOORE;
RUTH N. BRAMSON, Massachusetts Administrator of Human Resources,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Daniel J. Shea on brief for appellant.
Janet J. McGuiggan, Assistant City Solicitor, on brief for
appellees City of Worcester, Stephen R. Willand, Donald H.
Anderson, Carlene Bull and David M. Moore.
Sookyoung Shin, Assistant Attorney General, Government Bureau,
and Thomas F. Reilly, Attorney General of Massachusetts, on brief
for appellee Ruth N. Bramson, Massachusetts Administrator of Human
Resources.
January 30, 2007
BOUDIN, Chief Judge. Linda Jeneski, who appeals from the
dismissal of her civil rights action under 42 U.S.C. §§ 1983, 1985
(2000), was hired in 1988 by the City of Worcester, Massachusetts,
to serve in a division of the city manager's office. Worcester had
an executive order in place, dating from 1972, which provided that
employees of the city manager's office were not subject to the
civil service laws, see Mass. Gen. Laws ch. 31 (2006), leaving them
as employees at will. In September 2002, Jeneski was laid off by
the city.
In 2005, Jeneski brought the present action in federal
district court against the city, certain of its officials and the
state's Administrator of Human Resources, who is responsible for
the state's civil service laws. In addition to federal civil
rights claims--alleging deprivation of equal protection and due
process--Jeneski asserted claims under state law based on wrongful
discharge and other theories. She also sought class action status.
The district court dismissed the federal causes of action
for failure to state a claim, Fed. R. Civ. P. 12(b)(6), and
declined to exercise supplemental jurisdiction over Jeneski's state
law claims. 28 U.S.C. § 1367(c)(3) (2000). We review the
dismissal of the federal claims de novo, accepting all well-pleaded
facts and giving the non-movant all reasonable inferences, not
including "rhetorical flourishes, including unsupported conclusions
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and assertions." Palmer v. Champion Mortgage, 465 F.3d 24, 25, 27
(1st Cir. 2006).
The operative 17-page second amended complaint contains
a recitation of facts and grievances of which some are central to
this appeal and others are not. Foremost is Jeneski's claim that
from 1972 onward, Worcester attached the label of the city
manager's office to a variety of city agencies and wrongfully
exempted them under the 1972 city order from civil service
protection. Jeneski says that the exemption was unlawful under
Massachusetts state law and violated her constitutional rights.
The constitutional right principally urged by Jeneski is
equal protection. The gist of this claim is that Worcester
excluded a large group of employees, including Jeneski, from civil
service protection otherwise required under state law. This, says
Jeneski, was not only unlawful under state law but violated the
Constitution by denying such employees equal treatment with others
who remained protected.
If this were done in order to harm a specially protected
class (e.g., a racial minority) or to burden fundamental
constitutional rights (e.g., free speech), governmental authorities
would have to provide a substantial or compelling justification
(which one depends on the circumstances),1 but there is no claim a
1
Craig v. Boren, 429 U.S. 190, 197 (1976) (gender
classification); Korematsu v. United States, 323 U.S. 214, 216
(1944) (racial classification); Mass. Bd. of Retirement v. Murgia,
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specially "suspect classification" is in use or that the aim of the
1972 executive order was to curtail free speech or some other
constitutionally protected right.
In her complaint, Jeneski implies that her own discharge
was connected to her criticism of city administration. But the
classification of which she complains was adopted long before she
was hired, and she has not made a first amendment claim. Absent a
suspect classification or undue burden on fundamental
constitutional rights, a classification made by government actors
is vulnerable under the Equal Protection Clause only if no rational
justification can be imagined for its use. Hoffman v. City of
Warwick, 909 F.2d 608, 621-22 (1st Cir. 1990).
The only classification by the city or its officers is
that the city by executive order exempted from civil service
protection those who work for certain offices--broadly speaking,
those nominally under the control of the city manager. If the city
chooses to have more than ordinary trust in its city manager and
wants to give him or her a free hand in personnel management, such
a policy choice cannot be described as irrational.
Jeneski says that the district court was resolving
inferences against her by speculating as to legitimate reasons for
427 U.S. 307, 313 n.3 (1976) (providing examples of recognized
fundamental rights); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)
(burden on first amendment rights). See generally Nowak & Rotunda,
Constitutional Law ch. 14 (5th ed. 1995).
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the action exempting city of Worcester employees. This is a
misunderstanding of the minimum rationality test. The question is
not what went on in the mind of the state actor but whether anyone,
including the judge, can conceive of a rational reason for such a
classification. Nordlinger v. Hahn, 505 U.S. 1, 11-12 (1992). In
this case, special trust and greater flexibility are such a reason.
Jeneski says that this exemption was illegal under
Massachusetts law. Although a city may exempt city managers and
their staffs from ordinary civil service protections, Mass. Gen.
Laws ch. 31, § 48, Jeneski says that Worcester did not meet the
required statutory conditions and that in Worcester the city
manager label was falsely assigned to some of the entities.
Possibly Worcester did act in violation of state law2–-we
do not decide the point–-but a violation of state law is not by
itself a constitutional violation. Hoffman, 909 F.2d at 623.
Jeneski says that in Hoffman, the violation was a misdemeanor and
here it is a felony. The fact remains that a classification that
is minimally rational under equal protection principles does not
become irrational because the step taken violates local law.
Snowden v. Hughes, 321 U.S. 1, 11 (1944).
2
Jeneski points to the passage of state legislation in August
2006 that specifically exempts employees in the city of Worcester's
municipal offices, 2006 Mass. Legis. Serv. ch. 196, and to
indications in background documents that it was sought by Worcester
precisely to erase legal doubts.
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As the Fifth Circuit explained in Stern v. Tarrant County
Hosp. Dist., 778 F.2d 1052, 1054 (5th Cir. 1985) (en banc), cert.
denied, 476 U.S. 1108 (1986):
We reaffirm today the settled constitutional
rule that state agencies may pursue legitimate
purposes by any means having a conceivable
rational relationship to those purposes. A
decision that passes constitutional muster
under the rational-basis test does not violate
the equal protection clause simply because it
violates a state . . . statute.
Jeneski relies heavily upon Baker v. Coxe, 230 F.3d 470
(1st Cir. 2000), cert. denied, 532 U.S. 995 (2001), but its facts–-
delay in processing permits and alleged retaliation by government
officials--have almost nothing to do with this case. Baker also
effectively rejects Jeneski's efforts to recast a failed equal
protection claim as one based on substantive due process. Apart
from incorporation of more specific Bill of Rights provisions into
the 14th Amendment, substantive due process has a very limited
reach under modern precedent.3
Jeneski's brief also refers briefly to procedural due
process but to what end is unclear. A procedural due process claim
requires the plaintiff to allege that she has a property interest
defined by state law and that she has been deprived of that
property interest without adequate process. PFZ Properties, Inc.
3
Rochin v. California, 342 U.S. 165, 172 (1952)("shocks the
conscience" test); see also Harrington v. Almy, 977 F.2d 37, 44
(1st Cir. 1992); Garcia by Garcia v. Miera, 817 F.2d 650, 658 (10th
Cir. 1987), cert. denied, 485 U.S. 959 (1988).
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v. Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991), cert. dismissed as
improvidently granted, 503 U.S. 257 (1992). In her complaint,
Jeneski has alleged neither.
In addition to section 1983, Jeneski invokes section
1985, 42 U.S.C. § 1985, which is directed so far as pertinent here
to conspiracies to deprive another of equal protection. But as no
colorable violation of equal protection has been alleged, the
conspiracy claim has no purchase. Whether state law claims remain
available to Jeneski is a matter that is not before us since the
district court had discretion not to resolve them. Brennan v.
Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989).
Finally, Jeneski's brief says that there was "fraudulent
concealment" by the city--a phrase ordinarily relevant to statute
of limitations questions--and that the district court failed to
recognize that fact. In the district court, Jeneski apparently
alleged fraudulent concealment in at least two different contexts:
in response to a statute of limitations defense and in explaining
why she had not exhausted possible state remedies so far as this
might be a required predicate to a procedural due process claim.
The grounds on which we affirm the district court's
dismissal do not depend on a statute of limitations defense. And,
as we do not think that the second amended complaint fairly asserts
the elements of a procedural due process claim, the question
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whether state remedies have been exhausted is also not one that
needs to be addressed to sustain the district court's judgment.
Affirmed.
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