Opinion
13-P-1834
01-09-2015
PAUL C. NORDBERG v. MASSACHUSETTS DEPARTMENT OF EDUCATION & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Paul C. Nordberg, appeals from a judgment entered following the allowance of the defendants' motion for judgment on the pleadings on Nordberg's tort claims, and from the entry of summary judgment against him on his claim against defendant David P. Driscoll, individually, under 42 U.S.C. § 1983 (2012). For the reasons that follow, we affirm the judgment, as modified herein.
Background. This litigation spans seven years and has a complicated procedural history. We recite those facts relevant to this appeal. Nordberg has held a school business administrator license since February, 2000. He has submitted applications to multiple school districts for the position of school business administrator, but has not been offered a position by any school system. In 2007, Nordberg brought suit alleging that the Department of Education's (DOE) computerized waiver system (CWS), which granted automatic waivers without DOE review for unlicensed candidates beginning in 2002, resulted in the hiring of unlicensed school business administrators in violation of the licensing statute and its accompanying regulations. See G. L. c. 71, § 38G; 603 Code Mass. Regs. §§ 7.00 et seq. (2005). Nordberg sought declaratory relief regarding the DOE's and Driscoll's obligations under G. L. c. 71, § 38G. He also sought damages from all defendants based on several common-law, tort-based causes of action, and G. L. c. 71, § 38G, and 42 U.S.C. § 1983.
The causes of action and relief sought by Nordberg have varied over the course of the litigation based on the various iterations of the complaint after amendment. For purposes of this appeal, the causes of action and relief sought emanate from Nordberg's "Third Amended Complaint" as supplemented by portions of the "Fifth Amended Complaint," in accordance with the motion judge's order dated November 14, 2012. Nordberg's procedural challenges to this order are without merit. See note 4, infra.
On August 7, 2008, Nordberg's complaint was dismissed. He successfully appealed, and the case was remanded to the Superior Court for consideration of whether the conduct alleged "shock[ed] the conscience" within the meaning of 42 U.S.C. § 1983. Nordberg v. Massachusetts Dept. of Educ., 76 Mass. App. Ct. 216, 219 (2010) (Nordberg I), quoting from Rochin v. California, 342 U.S. 165, 172 (1952). After a second motion to dismiss was filed, a judge dismissed (1) tort claims predating August 28, 2004, because they were time barred by the three year statute of limitation, G. L. c. 260, § 2A; (2) equal protection and due process claims for failure to state a claim; (3) 42 U.S.C. § 1983 claims against the Commonwealth, DOE, and Driscoll in his official capacity; and (4) State constitutional claims under the Massachusetts Civil Rights Act for failure to state a claim. Nordberg's plea for declaratory relief, his tort claims, and his substantive due process claim against Driscoll, individually, survived the motion.
On December 7, 2011, a judge of the Superior Court granted declaratory relief pursuant to G. L. c. 231A, § 2, stating that "the [DOE's] Computerized Waiver System as implemented violates G. L. c. 71, § 38G, and 603 Code Mass. Regs. § 7.14(13), by granting waivers without an opinion of the DOE regarding whether failure to grant the wavier would create 'great hardship,' whether the 'district has made a good faith effort to hire licensed or certified personnel,' and whether the District is 'unable to find' a qualified licensed applicant." The Commonwealth did not appeal from the order, and complied with the judge's directive to "bring the [DOE's] waiver process in compliance with the statute."
Having prevailed on his motion for partial summary judgment, the plaintiff is entitled to a modified judgment including the underlying declaration issued December 7, 2011. See LightLab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). We note that on June 15, 2012, a judge in the Superior Court approved the changes to the DOE waiver process that brought it into compliance with the court order.
The defendants then moved for judgment on the pleadings with regard to Nordberg's claim for monetary damages under G. L. c. 71, § 38G, as well as Nordberg's common-law causes of action. Nordberg contemporaneously moved for summary judgment on his 42 U.S.C. § 1983 claim against Driscoll. A motion judge allowed the defendants' motion for judgment on the pleadings and allowed summary judgment for Driscoll on the § 1983 claim, thus disposing of all of Nordberg's outstanding claims. Nordberg, who appears pro se, appealed. The issue now presented on appeal is whether the judge erred in concluding that Nordberg did not establish a right to monetary damages as a matter of law with respect to conduct occurring after August 28, 2004.
Nordberg argues that the defendants lacked authority to file their motion for judgment on the pleadings and further argues that the defendants defaulted under Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). These procedural arguments are without merit as such suggestions, without citation to controlling authority, "[do] not rise to the level of appellate argument." Adams v. Adams, 459 Mass. 361, 392 (2011). Nordberg also claims damages in connection with applications for employment filed before August 28, 2004. He has not, however, made any sustained appellate argument supported by citation to relevant legal authority showing that the statute of limitations ruling was erroneous. Ibid.
Discussion. 1. Judgment on the pleadings. "In reviewing a judgment on the pleadings, the appellate court takes the facts from the plaintiff's complaint and reviews the issues de novo." Frankston v. Denniston, 74 Mass. App. Ct. 366, 371 n.6 (2009). "We consider whether the factual allegations in the complaint are sufficient, as a matter of law, to state a recognized cause of action or claim, and whether such allegations plausibly suggest an entitlement to relief." Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 374 (2012).
a. Statutory cause of action. Nordberg's central claim is a direct cause of action for violation of G. L. c. 71, § 38G. Neither G. L. c. 71, § 38G, nor its accompanying regulations provide, explicitly or implicitly, for a private right of action for monetary damages. "We have 'generally been reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference.'" Anzalone v. Administrative Office of the Trial Ct., 457 Mass. 647, 654 (2010), quoting from Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544, 546 (1998). "[T]he legislative intent necessary to infer an implied right of private action from the statute is absent here." Mello Constr., Inc. v. Div. of Capital Asset Mgmt., 84 Mass. App. Ct. 625, 629 (2013). "In enacting [the Education Reform Act of 1993 (Act)], the Legislature declared it a 'paramount goal' to provide a public education system of 'sufficient quality' to afford all children the opportunity to participate in, and contribute to, the political, social, and economic life of the Commonwealth. G. L. c. 69, § 1, as appearing in St. 1993, c. 71, § 27. " School Comm. of Lexington v. Zagaeski, 469 Mass. 104, 112 (2014). The statute was designed to hold educators and administrators accountable in achieving this goal. Id. at 112-113. See 603 Code Mass. Regs. § 7.01 (2005); Massachusetts Fedn. of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 765 & n.3 (2002). The Act was not intended to protect the employment opportunities of prospective applicants for school administrator positions by creating a cause of action for damages.
Section 38G, as amended through St. 1993, c. 495, § 26, provides in relevant part:
"No person shall be eligible for employment as a . . . school business administrator . . . by a school district unless he has been granted by the commissioner a provisional, or standard certificate with respect to the type of position for which he seeks employment; provided, however, that nothing herein shall be construed to prevent a school committee from prescribing additional qualifications; and provided further, that a superintendent may upon request be exempt by the commissioner for any one school year from the requirement in this section to employ certified personnel when compliance therewith would in the opinion of the commissioner constitute a great hardship in securing teachers for that school district."
A party may nonetheless vindicate the public interest by seeking declaratory and injunctive relief pursuant to G. L. c. 231A, § 2, to enjoin an administrative agency's noncompliance with its statutory mandate, as was the case here. See Williams v. Secretary of Executive Office of Human Servs., 414 Mass. 551, 567 n.10 (1993).
b. Common-law causes of action. i. Negligence. "To make out a claim for negligence, the plaintiff must show that the defendant 'owed him a duty of reasonable care, that the [defendant] committed a breach of that duty, that damage resulted, and that there was a causal relation between the breach of duty and the damage.'" Go-Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass. 50, 54 (2012), quoting from Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 (2009). Nordberg maintains that the defendants' duty to abide by the statute creates a duty to hire and employ licensed individuals. However, "such a statutory duty would not create a duty of care in tort in the absence of legislative intent to create a private right of action." Go-Best Assets Ltd., supra at 62. See Juliano v. Simpson, 461 Mass. 527, 531-532 (2012). As we have concluded, G. L. c. 71, § 38G, does not create a private right of action. Therefore, the "Third Amended Complaint" and applicable sections of Nordberg's "Fifth Amended Complaint" do not allege a duty of care running to a job applicant as a matter of law.
Nordberg alleged that the money expended in attaining a school business administrator license also created a duty running from the DOE to licensed applicants. To the extent that Nordberg argues that this duty arises under the statute, it is foreclosed for the reasons set forth above. To the extent Nordberg contends this is independent grounds to support a duty, the argument is not supported by citation to any relevant authority and is without merit. See Adams v. Adams, 459 Mass. at 392.
ii. Intentional interference with contractual relations. "To prevail on a claim of tortious interference with a contract, a plaintiff must establish that (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." Weiler v. PortfolioScope, Inc., 469 Mass. 75, 84 (2014), quoting from Psy-Ed Corp. v. Klein, 459 Mass. 697, 715-716 (2011). A statute is not a contract. Nordberg's allegation that G. L. c. 71, § 38G, creates a contractual relationship running from the DOE to a licensed job applicant fails to state a claim because it fails to allege any of the elements of a contract.
iii. Intentional interference with advantageous relationship. "To make a successful claim for intentional interference with advantageous relations, a plaintiff must prove that (1) he had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." Blackstone v. Cashman, 448 Mass. 255, 260 (2007). Nordberg's pleadings make clear that he applied for many school business administrator vacancies. However, the pleadings fail to sufficiently allege that Nordberg's status as a licensed applicant created a reasonable expectation of his employment. See Owen v. Williams, 322 Mass. 356, 361-362 (1948). Nordberg did successfully challenge the automatic CWS, but his pleadings fail to allege that the State defendants knowingly induced the school districts to reject Nordberg's applications.
2. Summary judgment pursuant to 42 U.S.C. § 1983 . We review the grant of summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). "An order granting . . . summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law." Nelson v. Salem State College, 446 Mass. 525, 530 (2006), quoting from Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536 (1991).
Nordberg must demonstrate that Driscoll's acts (1) "were so egregious as to shock the conscience," and (2) "they deprived [Nordberg] of a protected interest in life, liberty, or property." Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006). Nordberg has failed to demonstrate either.
A conscience-shocking act must be, at a minimum, "extreme and egregious." Ibid., quoting from DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005). "[V]iolations of state law -- even where arbitrary, capricious, or undertaken in bad faith -- do not, without more," rise to the level of conscience-shocking behavior. Coyne v. Somerville, 972 F.2d 440, 444 (1st Cir. 1992). See Pagan, supra.
Here, Nordberg contends that Driscoll's oversight of the automatic CWS perpetuated a system of patronage hires by school districts throughout the State. However, Nordberg has not placed facts in dispute which would demonstrate a pattern of egregious behavior by Driscoll as an individual. While Nordberg makes several allegations of patronage by specific districts, he has failed to offer admissible evidence that Driscoll personally engaged in the hiring of unqualified candidates. Rather, the implementation of the CWS removed Driscoll's discretion to grant waivers, and effectively removed him from the initial decision-making process. This lack of discretionary decision-making formed the basis for the declaratory relief awarded, but abdication is antithetical to the notion that Driscoll intentionally engaged in patronage hiring in an extreme or egregious manner.
Nordberg points to this court's decision in Nordberg I, and contends that this decision recognized that Driscoll's actions "shock the conscience." This is a mischaracterization of the holding of Nordberg I. Nordberg I arose from a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and noted that circumvention of the mandate of G. L. c. 71, § 38G, for the purpose of rewarding friends or benefactors of the appointing authorities could, upon proper proof, constitute a conscience-shocking abuse of power as a matter of law. See Nordberg I, 76 Mass. App. Ct. at 219. However, Nordberg on this record has failed to proffer evidence that Driscoll had such purpose when implementing and overseeing the CWS.
Nordberg's only allegations regarding Driscoll's personal relationship with one of the unlicensed business administrators was a bare assertion, unsupported by record evidence. On a motion for summary judgment, a plaintiff is required to produce competent evidence supporting the allegations in the complaint. See Superior Court Rule 9A(b)(5); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-716 (1991).
Nordberg has also failed to demonstrate the deprivation of his property interest. "To have a protected property interest, a person 'must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.'" Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 747 (1993), quoting from Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972). There is no property or fundamental right to prospective public employment. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-313 (1976); Take Five Vending, Inc., supra. Nordberg's status as a licensed applicant in the public school system does not confer a substantive due process right to fill a vacancy.
Finally, Nordberg has failed to demonstrate causation. He contends that the statute provides for an absolute preference of licensed individuals over unlicensed applicants. However, this is a mischaracterization of the statutory mandate. While the statute requires licensing, it permits school districts to set additional qualifications for candidates. See G. L. c. 71, § 38G. The statute and regulations also create a process whereby unlicensed applicants may be hired at the discretion of the school board, subject to an exemption by the commissioner. See G. L. c. 71, § 38G; 603 Code Mass. Regs. § 7.15(13). Nordberg contends that where there is a qualified licensed candidate, a school board is prohibited from seeking a waiver and must rebid the job. We do not read the statute so narrowly. Moreover, this argument fails in two respects. First, the record discloses that the school boards sought candidates with relevant experience in the public schools, a facially valid requirement that Nordberg could not meet because he had no experience of any type -- as a teacher, classroom aide, clerical worker or administrator -- in the public schools. Second, Nordberg has failed to provide evidence of his qualifications as compared to those of others, such as his resume, the resumes of other candidates, a comparison of the relative qualifications of licensed and unlicensed candidates, or any ranking of job applicants for any position which Nordberg claims he would have gotten absent the automatic CWS.
The record before us fails to demonstrate either a protected property interest or evidence of behavior by Driscoll, individually, that shocks the conscience. It also fails to demonstrate that any action by Driscoll caused Nordberg's injury. Therefore, we conclude that there are no material facts in dispute that preclude summary judgment in favor of Driscoll.
Conclusion. A modified judgment shall enter reflecting the declaration dated December 7, 2011, that "the [DOE's] Computerized Waiver System as implemented violates G. L. c. 71, § 38G, and 603 Code Mass. Regs. § 7.14(13), by granting waivers without an opinion of the DOE regarding whether failure to grant the wavier would create 'great hardship,' whether the 'district has made a good faith effort to hire licensed or certified personnel,' and whether the District is 'unable to find' a qualified licensed applicant." As so modified, the judgment entered June 4, 2013, is affirmed.
So ordered.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 9, 2015.