Quinn v. Grimes

Quinn v. Grimes (2002-543); 177 Vt. 181; 861 A.2d 1108

2004 VT 89

[Filed  10-Sep-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 89

                                No. 2002-543


  Sean Quinn	                                 Supreme Court

                                                 On Appeal from
       v.	                                 Chittenden Superior Court


  Barbara Grimes, et al.	                 November Term, 2003	


  Matthew I. Katz, J.
      
  Norman R. Blais, Burlington, and Karen R. Shingler, Burlington, for
    Plaintiff-Appellant.

  Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for
    Defendants-Appellees.


  PRESENT:  Amestoy, C.J., Dooley and Skoglund, JJ., and Allen, C.J. (Ret.),
            and Gibson, J. (Ret.), Specially Assigned

        
       ¶  1.  DOOLEY, J.  Plaintiff Sean Quinn appeals an order by the
  Chittenden Superior Court granting summary judgment to defendants City of
  Burlington, acting by and through the Burlington Electric Department, and
  Barbara Grimes, manager of the Burlington Electric Department (defendants). 
  On appeal, plaintiff claims the trial court erred when it dismissed his 42
  U.S.C. § 1983 action for violation of his procedural due process rights
  because he was a tenured public employee who was fired without the benefit
  of the procedural safeguards required by Cleveland Bd. of Educ. v.
  Loudermill, 470 U.S. 532 (1985).  We agree that the procedural safeguards
  mandated by Loudermill apply, and therefore reverse the summary judgment
  entered in favor of defendants, but cannot determine on the record before
  us whether plaintiff received those safeguards.  We remand for that
  determination.
         
       ¶  2.  On August 30, 2000, while working for the Burlington Electric
  Department (BED), plaintiff was struck on the elbow by a passing car.  At
  the time of his injury, plaintiff, who had been a BED employee for over
  twenty years, was a line worker.  It had been the practice of BED that
  employees who were temporarily unable "to do the physical labors required
  of their job" were accommodated by assigning them light duty work.  For at
  least a significant part of the time after plaintiff's injury, he was
  assigned light duty work.  On November 13, 2001, plaintiff underwent
  surgery, and six days later he was examined by the City's medical examiner. 
  The medical examiner found that plaintiff was "[n]ot medically qualified
  currently for the position of Line Worker . . . . His ability to return to
  this position will depend on the outcome of his recent surgery."

       ¶  3.  Upon receiving the medical examiner report, defendant Grimes
  sent plaintiff a letter, which plaintiff received the day before
  Thanksgiving.  The letter informed him that he was being terminated
  pursuant to Burlington Code of Ordinances § 24-2, which states in relevant
  part:

    (a)  In the event that any city employee . . . shall hereafter
    have been disabled from his/her employment for a period of three
    (3) months, the head of the department employing such employee . .
    . shall immediately arrange for an examination of such employee by
    a member of the board of medical examiners for the purpose of
    determining the status of his/her disability.

    . . . .

    (c)  If the medical board member advises the department head . . .
    that, in the board's opinion, it is not reasonably probable that
    the employee will return to full duty within six (6) months of the
    onset of injury or illness, the department head . . . shall
    immediately notify the employee of the medical board's decision
    and take steps to terminate the employee's employment, effective
    not earlier than ninety (90) days following the onset of illness
    or injury . . . .

  The letter explained that given the November 19, 2001 medical report and
  the requirements of the ordinance, November 30, 2001 would be plaintiff's
  last day of work. The letter did not offer plaintiff any form of
  pretermination hearing in which to contest the termination.  Plaintiff
  received no other notice regarding his upcoming termination.

       ¶  4.  Although the letter did not state that plaintiff could discuss
  his impending termination, plaintiff did have a brief meeting with
  defendant Grimes.  The content of the meeting is disputed.  Defendant
  Grimes stated in her affidavit that she and plaintiff "discussed the
  letter, the City Ordinance and the decision regarding his employment," but
  plaintiff "did not dispute that he could not do the work and he did not
  challenge the medical decision of the examiner."  Plaintiff stated that he
  initiated the meeting to complain that it was wrong to fire an employee of
  twenty-five years by sending a letter to be received the day before
  Thanksgiving.  He added that defendant Grimes responded that she fired him
  at the request of "HR and Legal" and "there was nothing that she could do." 
  He also added that no one told him that he could discuss with her the
  circumstances of the termination, and if he could have, he would have said
  that he was able to continue doing light duty work and that BED had failed
  to follow the procedures in the ordinance.  Plaintiff was subsequently
  terminated, but returned to BED as a line worker in May 2002 after
  receiving medical clearance.  
   
       ¶  5.  Following his termination, plaintiff filed suit against
  defendants for a declaratory judgment, permanent injunction, and damages,
  alleging a violation of his constitutional right to due process under the
  Fourteenth Amendment.  Plaintiff argued, as he does here, that he was
  terminated without the benefit of notice or a hearing, as required by
  Loudermill.  After filing suit, plaintiff moved for summary judgment on the
  due process issue.  Defendants opposed the motion and cross moved for
  summary judgment arguing that the due process clause was inapplicable
  because: (1) plaintiff did not have a property right to continued
  employment in a job he was physically unable to perform; and (2) a hearing
  is not required when the termination grounds are a physical inability to
  work.  Defendants further asserted that even if the due process clause was
  applicable, there was no violation in this case because during his meeting
  with defendant Grimes plaintiff had a fair opportunity to be heard and even
  if a more formal hearing was held there was no evidence to suggest that
  this would have altered BED's decision.

       ¶  6.  The superior court granted defendants' motion for summary
  judgment finding that the ordinance conditioned plaintiff's property right
  to employment on his physical ability to perform his job and that plaintiff
  had "made no showing of any relevant fact which, had it been found in his
  favor at a hearing, would have resulted in a different outcome."  In
  reaching this decision, the court interpreted the ordinance as requiring
  "that an employee who will not return to full duty within six months must
  be terminated" and found that plaintiff had no right to receive "permanent
  light duty assignments."  Plaintiff appeals from this order.  
   
       ¶  7.  When reviewing a grant of summary judgment we apply the same
  standard as the trial court.  Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321 (2000).  Summary judgment is appropriate if, taking all the
  allegations of the nonmoving party as true, there are no genuine issues of
  material fact and the movant is entitled to judgment as a matter of law. 
  Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633, 751 A.2d 293, 296 (2000) (mem.).  It is not the function of the trial court to
  resolve disputed issues of fact when ruling on a motion for summary
  judgment.  Id.  Therefore, if a genuine issue of material fact exists,
  summary judgment cannot be granted, and the trial court's order must be
  reversed.  

       ¶  8.  To establish a § 1983 claim for violation of his procedural due
  process rights plaintiff must show that: (1) he had a constitutionally
  protected property right to continued employment with BED; and (2) he was
  deprived of this right without notice and an adequate opportunity to be
  heard.  See Rich v. Montpelier Supervisory Dist., 167 Vt. 415, 420, 709 A.2d 501, 504 (1998).  A constitutionally protected property interest in
  continued employment arises when an employee is "entitled to a benefit
  created and defined by a source independent of the Constitution, such as
  state law."  Huang v. Bd. of Governors, 902 F.2d 1134, 1141 (4th Cir.
  1990).  We have held that state employees whose tenures are governed by a
  collective bargaining agreement possess a property interest in continued
  employment, such that due process protections apply to them.  See In re
  Gregoire, 166 Vt. 66, 71, 689 A.2d 431, 434 (1996) (citing In re Towle, 164
  Vt. 145, 153, 665 A.2d 55, 61 (1995)).  Although the nature of plaintiff's
  job security rights is largely unexplored in the record, we have no reason
  to differentiate between plaintiff's rights and those of a state employee. 
  Indeed, defendants have not contested that plaintiff has a sufficient
  property interest in his position such that due process protections would
  apply if he were fired for misconduct.  Defendants argue, however, that
  Ordinance § 24-2(c) precludes plaintiff from having a property interest in
  a position that he is physically unable to perform.  As a corollary to this
  argument, they argue that even if plaintiff had a property right no process
  is due because no facts are contested and the ordinance requires that
  plaintiff be terminated.
   
       ¶  9.  Defendants' position is best analyzed in light of the Supreme
  Court decision in Loudermill.  In that case, two tenured public employees,
  Loudermill and Donnelly, challenged the constitutionality of their
  dismissals because they were not given an opportunity to contest their
  employer's decision prior to termination.  470 U.S.  at 535-36.  Loudermill
  was dismissed from his job as a security guard for allegedly lying on his
  job application when he stated he had never been convicted of a felony. 
  Id. at 535.  Loudermill contended that he did not lie, because he was
  unaware that his conviction constituted a felony.  Id.  Donnelly, a bus
  mechanic, was fired after failing an eye exam.  Id. at 536.  Both employees
  were fired pursuant to an Ohio law stating that public employees could be
  fired only for cause, and once terminated, an employee could seek a
  post-termination review.  Id. at 535.

       ¶  10.  The Supreme Court concluded that a post-termination review did
  not sufficiently protect the employees' constitutional right to due process
  and accordingly held that employees with a property right in public
  employment must be given notice and an opportunity to be heard prior to
  termination.  Id. at 546.  In reaching this conclusion, the Court explained
  that providing the employee an opportunity to present his or her side of
  the story is vital to reaching an accurate termination decision because
  many dismissals involve factual disputes between the employee and the
  employer.  Id. at 543.  Moreover, the Court stated that, "[e]ven where the
  facts are clear, the appropriateness or necessity of the discharge may not
  be; in such cases the only meaningful opportunity to invoke the discretion
  of the decisionmaker is likely to be before the termination takes effect." 
  Id. at 543.
   
       ¶  11.  The Loudermill analysis is instructive to our resolution of
  this case in two ways.  First, the Loudermill Court rejected the defendants
  argument that the plaintiffs' property interest in their jobs was subject
  to outlined termination procedures and therefore, they had no property
  interest in more protective procedures.  The Court held that substantive
  rights and procedures are distinct, so that " '[p]roperty' cannot be
  defined by the procedures provided for its deprivation any more than can
  life or liberty."  Id. at 541.  The Court noted that acceptance of the
  defendants' argument would reduce the due process clause "to a mere
  tautology."  Id.

       ¶  12.  Second, the Loudermill decision did not turn on a dispute
  about the underlying facts proffered to support the discharge decision. 
  Indeed, Justice Brennan concurred in Loudermill because he found the
  pretermination procedures required by the majority to be adequate only
  because the core facts justifying the dismissal were not in dispute in
  either case.  Id. at 552-53.  On this point, the majority  recognized that
  an employee could not demand a pretermination hearing to argue that the
  employer should "depart from legal requirements," but noted that "where
  there is an entitlement, a prior hearing facilitates the consideration of
  whether a permissible course of action is also an appropriate one."  Id. at
  543 n.8.  Thus, the Court found that the cases in front of it "involved
  arguable issues" and added that "the right to a hearing does not depend on
  a demonstration of certain success."  Id. at 544.

       ¶  13.  We emphasize those parts of the Loudermill analysis because
  they significantly undercut defendants' argument that plaintiff has no
  property interest in his position because of his physical incapacity and
  the superior court's rationale that no hearing was required because
  plaintiff failed to identify any "relevant fact" in issue.
   
       ¶  14.  The arguments defendants make here were considered and
  rejected in Coleman v. Dep't of Pers. Admin., 805 P.2d 300 (Cal. 1991), a
  case similar to this one.  In Coleman, the plaintiff, a state employee, was
  terminated pursuant to a statute that stated "absence without leave,
  whether voluntary or involuntary, for five consecutive days is an automatic
  resignation from state service."  Id. at 304.  There was no dispute that
  the plaintiff in Coleman was absent without leave for the period specified
  in the statute.  Id. at 303.  As in this case, the state argued that
  because the statute deemed the resignation "automatic," the plaintiff had
  no property interest in his job once the five-day period had run and
  nothing was in dispute for a hearing.  Id. at 308.  The California Supreme
  Court rejected the argument:

    [T]he AWOL statute is not self-executing.  Although the AWOL
    statute defines an unauthorized absence of five consecutive
    working days as an "automatic resignation," the decision whether
    to invoke the statute's resignation provision rests with the
    state.  Therefore, the absence without leave becomes an automatic
    or constructive resignation only if the state decides to invoke
    the statute.

      It is true that the AWOL statute does not expressly grant the
    state such discretion.  In practice, however, the state does
    exercise discretion in determining whether or not to invoke the
    statute, as this case illustrates: Coleman was absent without
    leave for over a month before the state treated his absence as a
    statutory resignation. . . .

    . . . .

      In addition, before it can invoke the AWOL statute, the state must
    make factual determinations; whether the employee has resigned
    under the AWOL statute turns on the presence of the factual
    prerequisites for statutory resignation, namely, an absence that
    is for five consecutive working days and is without leave.

  Id. at 308-09.
   
       ¶  15.  The circumstances before us are, in all relevant aspects,
  comparable to those in Coleman, and our analysis parallels that of the
  California Supreme Court.  Like the California AWOL statute, the Burlington
  ordinance requires the city to make factual determinations and then decide
  whether the ordinance applies.  The ordinance requires that the employee be
  "disabled from his/her employment for a period of three (3) months." 
  Plaintiff alleges that an employment policy allowed him to do light duty
  work when his physical condition prevented him from performing his normal
  line worker responsibility.  It is undisputed that he continued to do light
  duty work after his accident.  Thus, it is arguable whether plaintiff was
  disabled from his employment within the meaning of the ordinance.

       ¶  16.  For this reason, we agree that the ordinance represents more
  an attempt to limit the available procedural protections than to condition
  plaintiff's property rights.  Loudermill applies equally to a termination
  for physical incapacity as to a termination for misconduct.  See
  Pavonarious v. City of Allentown, 629 A.2d 204, 207 (Pa. Comm. Ct. 1993). 
  In fact, although the Loudermill Court found a property interest in an Ohio
  civil service statute that allowed termination only for "misfeasance,
  malfeasance and nonfeasance in office," 470 U.S.  at 538-39, one of the
  plaintiffs was fired for failing an eye examination, id. at 536. Consistent
  with Loudermill and Coleman, we hold that the employee's procedural
  protections are controlled by the due process clause and can not be limited
  in the ordinance on the theory that the procedural rights define the
  property interest.  

       ¶  17.  On this point, we find that the trial court's observation that
  plaintiff had no right to light duty work beside the point.  The issue is
  whether plaintiff's job actually included light duty work when he could not
  perform his line worker responsibility, not whether he had a right to such
  work.  As long as light duty work was part of his job, he was in a position
  to argue that he should be continued in light duty work.
   
       ¶  18.  Equally important, the record undercuts any claim that the
  application of the ordinance is automatic.  Although the ordinance appears
  to require a physical examination after three months of the onset of
  disability, defendant Grimes failed to invoke the ordinance for over a
  year.  Thus, defendants exercised discretion in deciding whether to invoke
  the ordinance, and plaintiff should have had the opportunity to address how
  that discretion was exercised.  Indeed, defendant waited so long that the
  medical examiner could no longer make the determination called for in the
  ordinance - "whether it is reasonably likely" that the employee would
  return to his duties within six months of the date of the injury.  See
  Burlington Code of Ordinances § 24-2(c).  Instead, the examiner determined
  whether plaintiff was "medically qualified" for the position of line worker
  on the day of the examination, a determination not called for in the
  ordinance.  Yet, defendant Grimes relied upon this determination in
  deciding whether to terminate plaintiff.  Thus, the record demonstrates
  that defendants exercised discretion in deciding whether to invoke the
  ordinance, so that plaintiff in this case is in the same position as the
  plaintiff in Coleman.

       ¶  19.  The foregoing analysis answers both the argument that
  plaintiff had no protected property interest and the argument that
  plaintiff made no showing of a relevant fact which might have led to a
  different outcome.  As the Court said in Loudermill, plaintiff's right to a
  hearing "does not depend on a demonstration of certain success."  470 U.S.  at 544; see also City of North Pole v. Zabek, 934 P.2d 1292, 1298 (Alaska
  1997) ("Even if it appears almost certain that the employee will be unable
  to . . . [present facts that might weigh against termination], due process
  requires that she be given the opportunity to try.").

       ¶  20.  Defendants urge that, if we do not accept the superior court's
  rationale and decision, we should nevertheless affirm the denial of
  plaintiff's summary judgment motion because there are disputed issues of
  material fact.  We do not believe, however, that defendants have
  demonstrated that material facts are in issue on whether plaintiff has a
  sufficient property interest in continued employment or whether there were
  matters in dispute for consideration at a pretermination hearing. 
  Accordingly, we hold that the superior court should have granted summary
  judgment to plaintiff on his claim that he was entitled to a pretermination
  hearing.  
   
       ¶  21.  We now turn to defendants' argument that even if Loudermill
  is applicable, plaintiff still does not have a viable § 1983 claim because
  he (1) was provided with notice and opportunity to be heard by the medical
  examination; (2) was given advance notice of the termination with reasons;
  and (3) met with Ms. Grimes.  These alternative grounds were not considered
  by the trial court.  Although we can provide some guidance on these
  arguments, we believe it preferable that the superior court consider them
  in the first instance, particularly because the record is so sparse and
  some additional factual development will be necessary for a decision, by
  summary judgment or otherwise. 

       ¶  22.  In In re Hurlburt, 2003 VT 2, ¶ 29, 820 A.2d 186, we explained
  that, "[n]otice under Loudermill requires no more than notice of the
  charges, an explanation of the evidence and an opportunity for the employee
  to present evidence."  See also Loudermill, 470 U.S.  at 546 ("The tenured
  public employee is entitled to oral or written notice of the charges
  against him, an explanation of the employer's evidence, and an opportunity
  to present his side of the story.").   Plaintiff received notice of the
  termination, and an explanation of the employer's reasons for the
  termination.  He contests, however, that he had an opportunity "to present
  evidence."  Defendants argue that he twice had that opportunity: during his
  medical examination and in his meeting with defendant Grimes.

       ¶  23.  We do not believe that the medical examination constituted an
  opportunity for plaintiff to tell his side of the story.  As outlined
  above, plaintiff's arguments against termination go to the ordinance's
  application to plaintiff's circumstances and the exercise of the employer's
  discretion to invoke the ordinance.  The medical exam gave plaintiff no
  notice or opportunity to be heard on those issues. 
                 
       ¶  24.  This leaves plaintiff's face-to-face meeting with defendant
  Grimes on November 27, 2001.  To satisfy basic due process requirements it
  was not necessary for defendants to provide plaintiff with a full
  evidentiary hearing.  Loudermill, 470 U.S.  at 545 ("In general, 'something
  less' than a full evidentiary hearing is sufficient prior to adverse
  administrative action."(quoting Mathews v. Eldridge, 424 U.S. 319, 343
  (1976)).  A face-to-face meeting of the kind that occurred here can meet
  the Loudermill requirements, provided it affords employee some notice and
  opportunity to contest the employer's decision.  See Lovingier v. City of
  Black Hawk, 198 F.3d 258, 1999 WL 1029125,*3 (10th Cir. 1999) (unpublished
  table decision).

       ¶  25.  There are two potential deficiencies in the meeting that
  occurred here.  First, the meeting must occur before the decision to
  terminate becomes final so that the employee has a meaningful opportunity
  to affect the final decision.  See O'Neill v. Baker, 210 F.3d 41, 49 (1st
  Cir. 2000); Matthews v. Harney Cty., 819 F.2d 889, 893 (9th Cir. 1987);
  Guerrero v. Munoz, 2002 WL 1880769, *5 (D.P.R. Aug. 12, 2002); Williams v.
  Pima Cty., 791 P.2d 1053, 1057 (Ariz. Ct. App. 1989) (recounting that
  Loudermill requires that the employee be given the opportunity to tell his
  side of the story "before his employer reaches the decision to fire him"). 
  Here, the notice to plaintiff clearly stated that he was terminated as of
  the end of November, with no suggestion that the decision was other than
  final or could be reopened. (FN1)  Plaintiff's version of the meeting
  suggests that defendant Grimes represented that the decision was
  unchangeable.  Indeed, defendants have argued here that any pretermination
  hearing would have been irrelevant since the decision to terminate was
  required as a matter of law and could not be changed.  

       ¶  26.  Second, plaintiff has argued that he had no opportunity to
  contest the decision because he did not know he could do so.  This case is
  unusual because the meeting was called by the employee, not the employer. 
  See e.g., Gregoire, 166 Vt. at 69-70, 689 A.2d  at 433.  It is undisputed
  that plaintiff sought the meeting to express his frustration at being
  terminated after twenty-five years of service on the day before
  Thanksgiving and that he did not contest defendants' actions or present
  reasons why he should not be terminated.  Ms. Grimes' affidavit states, "We
  discussed the letter, the city ordinance and the decision regarding his
  employment." 

       ¶  27.  At least in other contexts, courts have held that the person
  whose property rights are being terminated must be informed of the right to
  contest the decision.  See Weaver v. New York City Employees' Ret. Sys.,
  717 F. Supp. 1039, 1045 (S.D.N.Y. 1989).  However, the information may be
  provided by the circumstances of a pretermination meeting.  See Powell v.
  Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989).  Based on the sparse
  record, it is difficult to determine whether plaintiff was aware that he
  was able to state his side of the story against termination, if such an
  ability existed, at the face-to-face meeting. 
   
       ¶  28.  We do not believe that either party's version of the meeting
  between plaintiff and defendant Grimes provides adequate detail to
  determine whether plaintiff had an opportunity to tell his side of the
  story prior to his termination becoming final.  In addition, the record
  does not show why the ordinance was invoked when it was and the nature,
  extent, and availability of plaintiff's light duty work after the accident. 
  We cannot conclude that there are no genuine issues of material fact or
  that either party is entitled to judgment as a matter of law.  V.R.C.P.
  56(c)(3).

       ¶  29.  There is another aspect of the relationship between the
  parties that needs development to resolve whether the meeting between
  plaintiff and defendant Grimes constituted a sufficient pretermination
  hearing to comply with Loudermill.  Numerous decisions have emphasized that
  the nature of the process due prior to the termination of employment is
  affected by the nature and availability of post-termination process.  See,
  e.g., Powell, 891 F.2d  at 1459-60.  The parties have not provided the court
  with any information on the remedies available to challenge plaintiff's
  termination after it occurred.  That information should be provided on
  remand.

       ¶  30.  Finally defendant argues that we should affirm the grant of
  summary judgment because plaintiff has no damages as a matter of law. 
  Relying on Mellin v. Flood Brook School Dist., 173 Vt. 202, 790 A.2d 408
  (2001), the superior court adopted this rationale, holding that because the
  evidence shows plaintiff would have been terminated anyway, "plaintiff has
  not been harmed by procedural shortcomings, if any, and cannot recover."
   
       ¶  31.  In Mellin, the plaintiff, a teacher, had mistakenly received a
  license to teach at the elementary school level after applying for a
  license to teach only at the secondary school level.  Id. at 215, 79 A.2d 
  at 420.  When the state licensing authorities found their error and revoked
  the elementary school license, she sued, alleging a denial of due process. 
  Id.  Although our primary holding was that plaintiff had no property
  interest in the mistaken license, we added that she would also not prevail
  because as a matter of law she lacked the qualifications for an elementary
  school license and, thus, she was not harmed by any process deficiency. 
  Id. at 216-17, 790 A.2d  at 421.

       ¶  32.  We do not believe that Mellin controls here.  Even if we
  accept that the contexts are similar enough for the alternative Mellin
  rationale to apply here, the superior court's holding, and defendants'
  argument based upon it, is just a repackaging of the earlier argument that
  plaintiff had no right to a pretermination hearing because nothing was in
  issue.  We have already rejected this argument, holding that plaintiff had
  arguable positions surrounding whether the city ordinance covered his
  situation and whether defendants should invoke the ordinance.

       Reversed and remanded.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Defendants argue that the letter implied that the decision was not
  final because it stated "it is my intention to enter November 30, 2001 as
  the date of your last employment with the department."  We do not read this
  language as making the decision tentative.  Shortly thereafter, the letter
  goes on to state that plaintiff could apply for disability but only if he
  did so as an active employee - that is, "before November 30, 2001."  The
  delay in making the termination effective was apparently to give plaintiff
  an opportunity to apply for disability status.  The letter closed with the
  following paragraph:

    I wish to thank you for your years of service with the Burlington
    Electric Department.  While I greatly regret that your health will
    not allow you to continue in your current position, I am hopeful
    that you will be able to engage in other pursuits.  On behalf of
    the Department, Sean, I wish you all success in your future
    endeavors.

  We believe that an employee would read these words to say that the decision
  to terminate had been reached.