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Cullenen v. Town of Rockingham

United States District Court, D. Vermont

November 2, 2016

TIMOTHY CULLENEN, Plaintiff,
v.
TOWN OF ROCKINGHAM and VILLAGE OF BELLOWS FALLS, Defendants.

          RULING ON MOTION TO COMPEL MEDIATION OR ARBITRATION AND MOTION TO DISMISS (DOC. 3)

          Honorable J. Garvan Murtha United States District Judge.

         I. Introduction

         Plaintiff 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.

         For the following reasons, Defendants' motions are granted in part and denied in part.

         II. Background

         The 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.[1] 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.

         In 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.

         In 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.

         On 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.

         On 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.

         Section 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 Mediation Rules.
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 ...

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