United States District Court, D. Vermont
RULING ON MOTION TO COMPEL MEDIATION OR ARBITRATION
AND MOTION TO DISMISS (DOC. 3)
Honorable J. Garvan Murtha United States District Judge.
Timothy Cullenen (“Cullenen”) commenced this
action against the Town of Rockingham (“Town”)
and Village of Bellows Falls (“Village”)
(collectively, “Defendants”) in February 2016,
following his April 2013 termination as Municipal Manager for
Defendants. (Doc. 1 (Compl.).) Cullenen alleges claims for
declaratory judgment, deprivation of his constitutional
rights to due process in violation of 42 U.S.C. § 1983
and Article 4 of the Vermont Constitution, and wrongful
termination. The claims arise from Defendants'
termination of Cullenen during the term of his three-year
employment agreement. Defendants move for an order compelling
Cullenen to participate in mediation, or in the alternative
arbitration, and dismissal of his claims without prejudice.
(Doc. 3.) Cullenen opposes the motion. (Doc. 5.) Defendants
did not file a reply.
following reasons, Defendants' motions are granted in
part and denied in part.
following facts are assumed to be true for purposes of the
pending motions and are gleaned from the complaint. The
parties signed a written employment agreement
(“Agreement”) (Doc. 3-1) on April 5,
2011. Under the Agreement, Plaintiff was named
the Municipal Manager for Defendants for a term to run from
May 2, 2011 until May 1, 2014. The Agreement provided that
Cullenen would be subject to a probationary period of six
months, which he successfully completed. The Agreement would
renew automatically for one year terms unless Cullenen was
terminated for reasons listed in the Agreement or either
party gave sixty days' advanced written notice of an
intent not to renew. Cullenen received favorable performance
reviews from both the Town of Rockingham Selectboard and
Village of Bellows Falls Board of Trustees on December 7,
2011, and May 9, 2012. Effective May 1, 2012, Cullenen
received a pay raise.
November 2012, Cullenen was the subject of a letter of
complaint filed by a Village of Bellows Falls Trustee
alleging he had acted in an inappropriate manner towards
citizens of the Village and the Town on November 13, 2012, at
a regular business meeting of the Village Board of Trustees.
His behavior was characterized as “‘rude,
arrogant, disrespectful [and] hubristic.'” Compl.
¶ 26. Defendants issued a written warning to Cullenen in
a November 20, 2012 letter signed by the Town Selectboard
Chair and Village President, and directed Cullenen to engage
in anger management counseling, which he did, and imposed a
one-week suspension without pay.
March 2013, the entire Village Board filed a second complaint
alleging Cullenen engaged in “‘disrespectful and
belligerent' behavior and ‘badgered and stonewalled
the trustees'” during a meeting on February 26,
2013. Compl. ¶ 29. Defendants issued a written warning
to Cullenen in a March 14, 2013 letter, directing him to
attend weekly counseling sessions for a period of no less
than ninety days, which he did.
April 16, 2013, Cullenen received a performance review
criticizing his communication skills but noting
“‘his particularly off-hand comments in emails
has [sic] been mostly curtailed.'” Compl. ¶
33. Defendants recommended the “‘severity of
reprimand be increased to substantially impact manager's
freedom of decision making/spending and a more extended time
off period without compensation be levied.'”
Id. ¶ 34. The review concluded: “‘A
vote of no-confidence was taken on April 16, 2013 and a
majority of both the Selectboard and BF Trustees, vote to
terminate Tim [Cullenen].'” Id. ¶ 36.
Cullenen signed the review on April 16, and his employment
was terminated by Defendants as of that date without warning,
notice of cause or any meaningful opportunity to be heard.
April 30, Cullenen wrote the Town Board Chair and Village
President notifying them of his “intent to appeal [his]
recent termination as Municipal Manager.'” Compl.
¶ 46. Defendants did not respond to his letter.
19 of the Employment Agreement, titled Alternative Dispute
Resolution (“ADR”), states:
19.1. Purpose. The parties agree that a predetermined
selection of forums and methodology will provide the most
cost effective and appropriate manner in which to resolve any
disputes arising under this Agreement. Furthermore, the use
of alternative dispute resolution methods will be in the best
interest of all parties, demonstrates good faith, and is
consistent with the spirit and objectives of this Agreement.
19.2. Mediation. If a dispute arises out of or relates to the
Agreement, or the breach thereof, and if the dispute cannot
be settled through negotiation, the parties agree to try in
good faith to settle the dispute by mediation administered by
the American Arbitration Association under its Commercial
19.2. Arbitration. Any dispute arising out of or relating to
this Agreement, its termination or the breach thereof, which
is not resolved through negotiations or mediation efforts as
required in Section 19.2 shall be resolved by arbitration
administered by the American Arbitration Association under
its Commercial Arbitration Rules. The parties to any such
arbitration shall have the right to discovery consistent with
Federal Rules of Civil Procedures [sic] 26 through 37. In
addition to other forms of relief, the arbitrator may grant
injunctive relief. The decision of the arbitrator shall be