Judge nixes suit over job offer pulled for ‘microaggression’

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A would-be school superintendent could not pursue a claim for violation of due process based on the School Committee’s withdrawal of its job offer over a perceived “unprofessional microaggression” in an email he sent requesting changes to the proposed employment contract, a U.S. District Court judge has ruled.

Dr. Vito J. Perrone sued the city of Easthampton, the Easthampton School Committee, and certain individual defendants in federal court after the committee’s decision in March 2023 to rescind its offer to Perrone for the school superintendent post.

The committee took the action after determining that the plaintiff had engaged in “unprofessional microaggression” by addressing certain committee members as “Ladies” in an email he sent proposing adjustments to his compensation package.

According to Perrone, the defendants’ action violated his 14th Amendment right to procedural due process.

The defendants move to dismiss on the ground that the plaintiff did not have a protected property interest for a due process claim against a public employer because he did not have an enforceable contract for employment with the Easthampton School Committee.

Judge Mark G. Mastroianni agreed, finding the plaintiff’s email requesting changes to his compensation package constituted a counteroffer.

“Even when viewed in a light most favorable to Plaintiff, the allegations of the complaint fail to plausibly allege the parties agreed to the material terms of an employment agreement,” Mastroianni wrote. “The salary offered to Plaintiff was $151,000 a year. Rather than accept this offer, Plaintiff responded by demanding the salary for years two and three increase by, at minimum, three percent, which is an amount equivalent to several thousand additional dollars each year. This response was a counteroffer, as it was ‘[a] reply to an offer which purports to accept it but is conditional on the offeror’s assent to terms additional to or different from those offered.’”

In dismissing the plaintiff’s Section 1983 civil rights claim, the judge declined to exercise supplemental jurisdiction over related state law claims asserted by the plaintiff, dismissing those claims without prejudice.

The 17-page decision is Perrone v. City of Easthampton, et al., Lawyers Weekly No. 02-378-25.

‘Pretty clear and fairly strict’

Boston attorney Adam Simms represents the defendants in the case.

“The law is pretty clear and fairly strict when you are dealing with public officials,” Simms said. “The statutory requirements need to be met before there is a valid contract.”

Simms said the plaintiff could not show that he had a valid contract with the school district.

“As the judge found, negotiations were ongoing,” Simms said. “There was not a binding contract that Mr. Perrone could enforce.”

The plaintiff is represented by Springfield attorney Raymond E. Dinsmore III, who did not respond to a request for comment.

Boston attorney David I. Brody, who has represented a number of school superintendents in his employment practice, questioned whether Perrone should have been decided on a motion to dismiss, given the allegations in the complaint concerning the contract negotiations between the parties.

“It is well-established that an individual can have their procedural due process rights violated by having public employment taken away,” Brody said. “The court here came down and said there was no contract.”

Viewing the decision as having limited application, Brody emphasized that the judge in granting the defendants’ motion to dismiss relied on a state statute establishing a specific framework for school districts to follow in the hiring of superintendents.

There may be other circumstances in which an oral contract may be formed or there’s a contract by performance that gives rise to a procedural due process right. But that doesn’t fit here because there was no meeting of the minds.

— David I. Brody, Boston

“In another context, quibbling over the details like how much sick time you have may not be material, but in this context, there were too many requirements to get over the bar,” he said.

Brody said he could envision other cases in which courts recognize a procedural due process right even in the absence of a binding contract.

“There may be other circumstances in which an oral contract may be formed or there’s a contract by performance that gives rise to a procedural due process right,” Brody said. “But that doesn’t fit here because there was no meeting of the minds.”

According to Natick employment attorney Elisa A. Filman, the decision follows black letter contract law. It would be hard to conclude that the plaintiff had a valid contract given the facts alleged, she said.

“Especially with respect to a material term like compensation, when you make a counteroffer, it has the effect of rejecting the offer,” Filman said.

‘Unprofessional microaggression’

In addition to the parties’ pleadings, in addressing the defendants’ motion to dismiss, the judge considered relevant minutes of the School Committee’s meetings both as submitted by the parties and made available to the public online.

According to those records, the committee on March 23, 2023, voted 4-3 to offer the plaintiff the position of school superintendent, contingent on “pending successful contract negotiations.”

Committee Chair Cynthia Kwiecinski informed the plaintiff of the offer in a March 24 phone call. The offer was for a three-year contract with an annual salary of $151,000. The plaintiff verbally accepted even though he had previously expressed his desire for a $157,000 annual salary.

Kwiecinski told the plaintiff the committee would send him a written employment contract after which the parties would negotiate the “minor details” of the agreement. Kwiecinski informed the committee that the plaintiff had accepted the offer with the understanding that there would be further negotiations.

On March 28, the committee convened to work out the details of the written contract. Kwiecinski opened the meeting with the announcement that, “pending successful negotiations[,] we have a new superintendent. Vito Perrone[,] who will start on July 1, 2023.”

The committee then discussed certain requests made by the plaintiff, including that the district pay for his attendance at a mentorship program.

After amending a draft of the contract by changing all pronouns to “they/them” and providing for a rollover of sick days, the seven-member committee voted unanimously to approve the three-year contract.

The plaintiff was emailed a copy of the agreement the next day. He responded with an email to Kwiecinski and district personnel manager Suzanne Colby that opened with the address “Ladies” and proceeded to request certain changes to the contract.

Specifically, the plaintiff requested that: (1) the salary for the final two years of his contract be subject to a 3 percent cost-of-living adjustment; (2) he receive 30 vacation days annually instead of the 26 days offered by the committee; and (3) in deference to the sick time that he accrued in his previous job, he be entitled to 40 days of sick leave in the first year of employment.

On March 30, the committee held an executive session via Zoom with the plaintiff to discuss the terms of the contract. (The Attorney General’s Office would later cite the committee for violating the Open Meetings Law by conducting the executive session without first convening an open session.)

Immediately after logging onto the meeting, the plaintiff was told to log off to allow the committee to discuss a matter privately. After the plaintiff had signed off, Kwiecinski raised the subject of rescinding the job offer.

Kwiecinski expressed her view that addressing his email to “Ladies” was unprofessional and insulting. According to the minutes of the meeting, Kwiecinski told the other members that she was “terrified” of the plaintiff’s behavior.

Several other committee members chimed in to argue that the use of the term “Ladies” constituted “microaggression.”

At one point, member Laurie Garcia suggested that the plaintiff be allowed to rejoin the meeting to explain his actions.

However, member Megan Harvey objected, allegedly stating: “We cannot give an oppressor … any opportunity to explain away the oppression.”
The committee then voted 5-1, with one abstention, to “rescind” the job offer.

The plaintiff was allowed to return to the meeting, upon which Kwiecinski informed him that the committee deemed his use of the term “Ladies” unprofessional microaggression and that — notwithstanding his repeated apologies — he would not be the district’s next superintendent.

In October 2024, the plaintiff filed suit in U.S. District Court against the Easthampton School Committee; the city; Mayor Nicole LaChappelle, who also served on the committee; and members Kwiecinski, Harvey, Marin Goldstein and Benjamin Hersey.

In addition to the §1983 procedural due process claim, the plaintiff alleged breach of contract and violation of the covenant of good faith and fair dealing on the part of the School Committee, as well as various violations of the Massachusetts Civil Rights Act.

No contract, no due process claim

Addressing the plaintiff’s constitutional claim, Mastroianni wrote that property interests for purposes of triggering a right to procedural due process arise from state law.

“In the context of public employment, however, an employee may possess a property interest in continued employment that is created by contract,” he wrote. “To sufficiently plead such a claim, ‘a public employee must first demonstrate that he has a reasonable expectation, arising out of a [state] statute, policy, rule, or contract, that he will continue to be employed.’”

The judge recognized that the employment of a school superintendent in Massachusetts is governed by G.L.c. 71, §41. The statute affords broad discretion to school boards in the hiring of superintendents and setting the conditions of employment. Moreover, G.L.c. 71, §59, grants them the exclusive power to set a superintendent’s compensation.

“Given these statutory provisions, a superintendent working pursuant to a school-committee-approved contract could have a protected property interest for purposes of a procedural due process claim,” Mastroianni wrote.

In light of the fact that it was undisputed that the plaintiff did not sign an actual contract with the district, the judge wrote that the viability of the plaintiff’s due process claim rested on his argument that he nonetheless had a valid employment contract.

The judge found that argument unpersuasive given the plaintiff’s email requesting additional compensation, and vacation and sick time. He rejected the plaintiff’s argument that his email did not amount to a counteroffer because it addressed only minor details that did not alter the essential terms of the contract.

“These requests constituted a further alteration of the original offer in a manner consistent with a counteroffer but inconsistent with acceptance,” Mastroianni wrote.

Further, he found the plaintiff’s theory of contract formation was rendered untenable by public policy underlying state law requiring strict adherence to the provisions governing the employment of school superintendents found in G.L.c. 71, §§41, 59.

“Public confidence in the hiring process for school superintendents — a role of great importance in the day-to-day operation of most municipalities — would … diminish if committee members could agree to one set of terms on the public record, only to quietly enter verbal agreements obligating taxpayers to expend unanticipated sums as compensation,” Mastroianni wrote. “The court is therefore persuaded that Massachusetts public policy requires an affirmative vote of the School Committee to accept any alterations to a previously offered employment agreement. As a matter of law, no enforceable contract is formed until such a vote occurs.”