JANET BOND ARTERTON, District Judge.
Plaintiff Paul Holmes filed suit against Defendants the town of East Lyme, First Selectman Paul Formica, and Resident State Trooper Sergeant Richard Crooks. Plaintiff claims violations of the state whistleblower law, Conn. Gen.Stat. § 31-51m (Count One), unlawful retaliatory termination in violation under Conn. Gen.Stat. § 31-51q (Count Two), violations of due process property and liberty interests under 42 U.S.C. § 1983 (Counts Three and Four), common law defamation and false light invasion of privacy against the Town, Defendant Formica and Defendant Sergeant Richard Crooks (Counts Five and Six), and, against Defendant Sergeant Richard Crooks only, intentional infliction of emotional distress (Count Seven).
Plaintiff moves for partial summary judgment against the Town of East Lyme
For the reasons discussed below, Plaintiff's motion for summary judgment against the Town and Formica will be granted in part and denied in part, and his motion for summary judgment against Crooks will be denied in its entirety. All Defendants' motions for summary judgment will be granted in part and denied in part.
Paul Holmes began working as a part-time police officer for the Town of East Lyme in 1985. In East Lyme, a part-time police officer is known as a "special constable." Since 1987, Plaintiff has been employed by the Connecticut Department of Transportation, and he continues to work there. For a number of years, Plaintiff was reappointed as a part-time police officer every six months (Holmes Dep., Ex. A to Town's Loc.'s R. 56(a)1 Stmt. [Doc. #66-4] at 34), and this was considered "a long-standing practice" in the Town that has continued even after part-time officers were added to the collective bargaining unit in 1990 (Award of Arbitrator in the Matter of the Arbitration between AFSCME Council 15 Local 2852 and The Town of East Lyme, August 28, 2009, Ex. 3 to Pl.'s Loc. R. 56(a)1 Stmt. at 2; Arb. 6/17/08 F. Kent. Sistare's Testimony, Ex. 25, at 64:25-65:3).
Defendant Formica is the First Selectman of the Town of East Lyme, and was designated to act as Chief of Police. Defendant Richard Crooks is employed by the Connecticut State Police, and held the position of Resident State Trooper for the Town of East Lyme from January 2007 to April 2008. The Resident State Trooper is the highest certified police officer in the Police Department, and provides services to the Town through a contract with the Connecticut Department of Public Safety.
In 2005, the Town of East Lyme and East Lyme Police Local 2852 Council 15, AFSCME entered into a collective bargaining agreement that was in effect from July 1, 2005 to June 30, 2009. Since 1987, Plaintiff was a member of the Union. Sergeant Paul Renshaw is employed as an East Lyme Police Officer, and also serves as President of the Union.
Town police officers fill out weekly time cards that record the number of hours that they worked, along with notes about each set of hours. At his deposition, Plaintiff testified that he learned how to fill out his time card by talking to other officers in the police department. (Holmes Dep. at 24:2-4.) Plaintiff also testified that the number of hours worked, and the rates at which a part-time officer was paid, depended on the type of work that the officer was doing: "that's what we always did .... if [you're not already scheduled to work and] you go to court, you get a four-hour block of time at time-and-a-half." (Id. at 26:11-13.)
In December 2006, then-East Lyme Administrative Sergeant Terry Saffioti noted errors in Plaintiff's time card, and wrote a memo to Plaintiff asking for clarification and for the hours that Plaintiff actually worked. (Dec. 4, 2006 Memorandum from Sgt. Saffioti to Holmes, Ex. 24 to Crooks' Loc. R. 56(a)1 Stmt.) In June 2007, due to budgetary concerns, Sergeant Crooks issued a directive consistent with Section 5.5.2 of the union contract that no overtime
Prior to December 2007, Plaintiff made several complaints regarding the conduct of East Lyme Police Sergeant Paul Saffioti and Defendant Crooks. On October 1, 2007, Plaintiff wrote a memo to Defendant Crooks, stating, "Sergeant Saffioti is blatantly disregarding the advice of other Sergeants to correct the way he charges time and willfully continues to make the same mistakes." (October 1, 2007 Memorandum from Paul Holmes to Sgt. Crooks, Ex. 4 to Pl.'s 56(a)1 Stmt.) Plaintiff also stated: "Recently, Sergeant Saffioti berated me in the presence of another East Lyme officer making inappropriate comments and threatening to file insubordination charges against me ... I feel Sergeant Saffioti continues to harass me and this needs to stop immediately." (Id.) On November 29, 2007, Plaintiff wrote a memo to Beth Hogan, the First Selectman, alluding to a meeting he had recently had with her, and stating that "since the meeting, tensions between Sergeant Saffioti and myself have escalated. I am always on guard for my safety when around Sergeant Saffioti." (November 29, 2007 Memorandum from Paul Holmes to Beth Hogan, Ex. 5 to Pl.'s 56(a)1 Stmt.) In his memo to Hogan, Plaintiff also wrote, "Sergeant Crooks and yourself have acknowledged there is a problem between Sergeant Saffioti, others, and myself.... Please advise me of what actions or investigations you have undertaken to resolve the hostile work environment Sergeant Saffioti has created at the East Lyme Police Department and that Sergeant Crooks has condoned." (Id.) Plaintiff was not the only officer to complain of Sergeant Saffioti's behavior, as Lieutenant Fusaro, the Captain of the Connecticut State Police and Commanding Officer, received correspondence from another officer, Joseph Dunn, also complaining about the hostile work environment created by Sergeant Saffioti. (Fusaro Aff., Ex. 4 to Crooks' 56(a)1 Stmt. ¶ 6.)
On November 29, 2007, First Selectman Beth Hogan wrote a letter to Sergeant Saffioti thanking him for his service, and assigning Sergeant San Juan to be the new Administrative Sergeant, effective December 3, 2007. On December 3, 2007, Defendant Paul Formica began serving as the Town's First Selectman in place of Ms. Hogan. Plaintiff did not follow up with Mr. Formica about his November 29, 2007 memo to Ms. Hogan.
In October and November 2007, a criminal investigation that Plaintiff was involved in required his testimony in court as a witness on November 1 and November 16, 2007. Plaintiff mistakenly listed November 6, 2007 instead of November 1, 2007 as the date he appeared in court on his time card. In December 2007, Defendant Crooks alleged that Plaintiff had not appeared in court on November 6 or November 16, 2007 but that Plaintiff had submitted time cards requesting payment for appearing in court on those dates. Sergeant Crooks did not notice the discrepancy at first, writing, "On 11/11/07, OFC Paul Holmes submitted his weekly time card requesting payment for four (04) hours of overtime for an 11/06/07 court appointment.
(Id.) Plaintiff denies that Sergeant Crooks ever followed up with him, and states that "Crooks did not question me about my having appeared at court on any date in November, 2007." (Pl.'s Aff. ¶ 10.)
Sergeant Crooks began an investigation into Plaintiff's time cards. The Town hired Attorney Michael E. Satti to investigate the allegations with regard to time card submissions against Plaintiff. (DVD, Ex. 34 to Pl.'s 56(a)1 Stmt. at 16:57-1:14:30.) Given that this investigation was being conducted, Mr. Formica recommended that Plaintiff's reappointment by the Board of Selectmen be deferred, rather than having the Board consider Plaintiff's reappointment on December 19, 2007. (Formica Dep. at 39.) Defendant Formica announced his decision to defer Plaintiff's reappointment at the December 19, 2007 Board of Selectmen meeting. (6/17/08 Arb. Formica Testimony, Ex. 23 to Pl.'s Loc. R. 56(a)1 Stmt. at 90.) Plaintiff was not present at that meeting and learned that his reappointment was to be deferred from Sergeant Renshaw.
Plaintiff's appointment as a part-time police officer expired on December 31, 2007. Though Defendant Formica offered to meet with Plaintiff on December 29, 30, and 31 to discuss the deferral of his reappointment as a part-time officer, Plaintiff did not respond, and on December 31, 2007, Formica sent a letter to Plaintiff, writing, "Please be advised that in the absence of your meeting with me to discuss this matter, I will make recommendations to the Board of Selectmen regarding reappointment without the benefit of your input." (Dec. 31, 2007 Ltr from Formica to Holmes, Ex. H to Town's 56(a)1 Stmt.)
On January 9, 2008, Defendant Formica sent Plaintiff a memo regarding a meeting he had scheduled that same day to discuss Plaintiff's reappointment. (Jan. 9, 2008 Memorandum from Formica to Holmes, Ex. I to Def.'s Loc. R. 56(a)1 Stmt.) The memo reads:
By January 25, 2008, the fact that Plaintiff had sought four-hour overtime payments in connection with court appearances had become part of the investigation. (Crooks Dep. at 199:17-21.) That same day, Plaintiff provided documentation to the Town and to Mr. Formica showing that he had been in court and testified on the days for which he was accused of not being present. (Jan. 25, 2008 Memorandum from Holmes to Formica, Ex. 8 to Pl.'s 56(a)1 Stmt.) On January 31, 2008, Mr. Formica hand-delivered a memo to Plaintiff, informing him that
(Jan. 31, 2008 Memorandum from Formica to Holmes, Ex. 9 to Pl.'s Loc. R. 56(a)1 Stmt.)
Sergeant San Juan, Plaintiff's Administrative Sergeant, testified that he had spoken with Sergeant Crooks about whether Plaintiff was entitled to four hour minimums at overtime rates, and that Crooks "inquired about whether Holmes was entitled to the four hours pay. I said it was my understanding that he was. As Crooks stood there, I went to the contract [Collective Bargaining Agreement] and showed him what I believed to be the proper area, which is ... the off-duty court appearance, 5.17. And he agreed." (10/09/08 Arb. San
The evening before the February 6, 2008 Board meeting, Plaintiff requested that the discussion pertaining to his employment be postponed, as he had previously scheduled plans to be out of state. (Feb. 5, 2008 Ltr from Holmes to Formica, Ex. 11 to Pl.'s 56(a)1 Stmt.; DVD.) Plaintiff asked that the Town hold its discussion on his personnel matters in open session and that he have Union representation at the meeting and representation through counsel. (Id.) Both Plaintiff's request for representation and for postponement were denied and Plaintiff was unable to attend the meeting.
Other than Mr. Formica, who had already decided that Plaintiff should not be reappointed prior to the February 6 meeting (8/19/08 Arb. Formica Testimony at 49:17-18), the remaining members of the Board of Selectmen knew nothing about the investigation until meeting, when they received the binder of exhibits and had a chance to review it at the meeting. Robert Wilson, one of the Selectmen, testified that he "was made aware" of the issue prior to the meeting by Mr. Formica, who had told him "that he had reservations about reappointing Mr. Holmes." (10/09/08 Arb. Wilson Testimony, Ex. 20 to Pl.'s 56(a)1 Stmt. at 29:2-12.)
The Charter of the Town of East Lyme provides that "The First Selectman shall... establish and be responsible for the administrative and personnel policies for town offices and employees, with the approval of the Board of Selectmen, and shall execute or cause to be executed the town ordinances, regulations, resolutions and policies voted by the Board of Selectmen." The Board of Selectman provides for the appointment of Constables and Special Constables, and an appointed officer may be removed only for cause by the Board of Selectmen:
(Charter at 4.6.1, 4.7.1-4.7.2.)
During the open session meeting, the Board of Selectmen heard from Attorney Satti, who had conducted an investigation into Plaintiff's time card issue. He reported that Plaintiff's time cards to the Town "indicated according to Officer Crooks" report that he was seeking again a multitude of a number of hours for that day there was no court. (DVD at 58:20-32.) Satti further stated that Plaintiff "submitted overtime hours on certain occasions where there's no evidence that there was a court proceeding or there's no evidence that he was actually performing those services." Satti accused Plaintiff of insubordination, stating, "It shows me that there is an attitude that is insubordinate to say the least and that there are serious serious questions about the time that the Town has already paid that it didn't even know that it paid and not in error." (Id. at
Defendant Formica also spoke at the meeting, stating that Plaintiff "violated the trust" of the Town and that "we do an injustice to the rest of the people who diligently work in that department everyday if we let this sit another day by not making it clear that we are not reappointing this gentleman based on the pattern and history of the activity that you have in front of you with all these pages of documents," and called for an immediate vote confirming the non-reappointment of Plaintiff. Selectman Wilson stated that they had not been made aware that they would need to vote that night. (Id. at 1:33:35-45:33.) The Board of Selectmen voted 4-2, with Selectwoman Hardy and Selectman Wilson voting against, to confirm Plaintiff's non-reappointment. (Formica's Testimony at 45; DVD at 1:45:38-1:45:45)
On February 22, 2008, an article about Plaintiff's termination was printed in the New London Day newspaper with the headlines "Officer accused of overbilling East Lyme" and "Part-time East Lyme Officer allegedly doctored time cards." New London Day article, Feb. 22.2008, Ex. 12 to Pl.'s 56(a)1 Stmt. A recording of the February 6, 2008 Board of Selectmen meeting was broadcast more than once over the public access channel in East Lyme. (Pl.'s Aff. ¶ 13.) The Town's practice is to broadcast these meetings three times each day until a recording from the next Board of Selectmen meeting is aired. (Jan. 31, 2011 Morris Deposition, Ex. 39 to Pl.'s 56(a)1 Stmt. at 9-10.)
After Plaintiff's termination, Plaintiff's daughter was taunted at school and her classmates told her that "your dad steals," and called her father a "crook" and a "thief." (Pl.'s Aff. ¶ 19.) Plaintiff has sought medical and psychiatric treatment after the meeting, and Plaintiff was diagnosed with Post Traumatic Stress Disorder after his termination. (Pl.'s Dep. at 188:23-193:25.)
On February 20, 2008, the Union filed a grievance on Plaintiff's behalf contesting his termination. (Award at 19.) The parties appeared before Arbitrator J. Larry Foy, Esq. for ten arbitration hearings. On August 28, 2009, Arbitrator Foy found that Plaintiff was covered by the Collective Bargaining Agreement, and determined that Plaintiff could not be terminated from his employment except for just cause. (Id. at 38-39.) Foy also found that Plaintiff was entitled to a post-deprivation hearing, finding that the proceedings leading to Plaintiff's termination were "wholly lacking in due process." (Id. at 46.) Plaintiff was granted reinstatement and back pay in the arbitration award. (Pl.'s Dep. at 207.)
Defendants Town of East Lyme and Formica argue that summary judgment is appropriate on both the property and liberty due process claims, claiming that Plaintiff's remedies lie in the grievance and arbitration process, and through litigation of his state tort causes of action. Plaintiff argues that he has a constitutionally — protected property interest in his employment as a Special Constable, and that he was denied the process that he was due when Defendants failed to provide him with notice of all charges against him, an explanation of the evidence against him, and an opportunity to present his side of the story. Plaintiff also contends that the statements made against him by Mr. Formica were injurious to his reputation, and entitle him to summary judgment on his due process "stigma — plus" claim.
A procedural due process analysis addresses two questions: (1) whether there existed a property interest that was interfered with by the state; and (2) whether the procedures provided prior to the denial of the property interest were constitutionally sufficient. Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir.2004).
Determination of whether Plaintiff possessed a property interest in continued employment is made by reference to rights that are created by state law. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (property interests are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules"). A public employee who has a right not to be fired without "just cause" has a property interest in his employment. Otero v. Bridgeport Housing Authority, 297 F.3d 142, 151 (2d Cir.2002); see also Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) ("The collective bargaining agreement between the Town and the police union to which Moffitt belonged guaranteed that he could not be fired without just cause. Accordingly, Moffitt had a property interest in his employment that qualified for the protections of procedural due process.")
The parties do not dispute that police officers in East Lyme, both full-and part-time, are subject to a "for cause" standard for removal. The Collective Bargaining Agreement at Section 8.1 states, "No permanent officer shall be discharged, demoted, suspended or disciplined except for `just cause.'" The Town Charter provides that Special Constables, i.e., part-time police officers like the Plaintiff, are also subject to a "for cause" standard of removal: "An appointed officer or a member of an appointive board may be removed
Defendants nonetheless maintain that the Plaintiff received all of the process that he was due under the Fourteenth Amendment. Whether the Plaintiff received the process to which he was entitled to safeguard his property interest in his job invokes the interest — balancing test from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):
Segal v. City of New York, Dept. Of Ed., 459 F.3d 207, 215 (2d Cir.2006). Plaintiff argues that as a union member entitled to "just cause" to support disciplinary action, he was owed a Loudermill hearing, which includes, (1) oral or written notice of the charges against him, (2) an explanation of the employer's evidence, and (3) an opportunity to present his side of the story, before termination of employment. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The purpose of a Loudermill hearing is as "an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-46, 105 S.Ct. 1487.
Defendants argue that the private interest at stake is not as important as it has been in other governmental employment cases, because Plaintiff is a part-time police officer. (Town's Mem. Supp. at 10.) While it is undisputed that Plaintiff's primary source of income is his full-time job with the state Department of Transportation, he has held his part-time Special Constable position for over 20 years. Defendants argue that the loss of a secondary part-time position did not deprive him of his livelihood (id.),
As to the third Mathews factor, Defendants argue that the risk of an erroneous deprivation is mitigated by the "prompt post-deprivation procedures of the grievance and arbitration provisions of the Collective Bargaining Agreement" (id.),
While pre-termination process "need not be elaborate or approach ... a full adversary hearing, ... due process does require that before being terminated such an employee be given oral or written notice of the charges against her, an explanation of the employer's evidence, and an opportunity to present her side of the story." Otero v. Bridgeport Housing Auth., 297 F.3d 142, 151 (2d Cir.2002) (union employee accused of stealing from her employer who was told only that there was "substantial evidence" against her was denied due process). In Otero, the Second Circuit held that "merely presenting `some semblance' of the evidence ... does not necessarily afford the accused an adequate opportunity to present her side of the story," and that "mere notice of the charge,... is not an explanation of the evidence and does not necessarily suffice to provide due process." Id. at 151-52. See also Clayton v. City of Middletown, 564 F.Supp.2d 105, 116 (D.Conn.2008) ("In dismissal-for-cause cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect, because permitting the employee to give his version of the events will provide a meaningful hedge against erroneous action.") (citing Loudermill, 470 U.S. at 543 n. 8, 105 S.Ct. 1487).
Even if the grievance and arbitration proceedings provided Plaintiff a remedy for his improper termination, the undisputed characteristics of the pre-termination process do not suffice to meet the requirements of Loudermill. It is undisputed that Defendants did not provide Plaintiff with (1) notice of all of the
Mr. Formica's attempts to meet with Plaintiff in late December notwithstanding (see Jan. 9, 2008 Memorandum from Formica to Holmes), Plaintiff was never made aware of all of the evidence against him, and Plaintiff thus provided documentation responsive only to the evidence that Formica did notify him about (See Jan. 25, 2008 Memorandum from Holmes to Formica). The most serious charge against Plaintiff, that is, his practice of submitting time cards listing a four-hour minimum at overtime rates, did not even arise until the presentation by Attorneys Satti and Duggan at the February 6, 2008 Board of Selectmen meeting. (See DVD.) Even Selectpersons Hardy and Wilson observed this procedural deficiency, stating that they "had only heard one side." (Id.) See McDaniel v. Princeton City School District Bd. of Ed., 72 F.Supp.2d 874, 881 (S.D.Ohio 1999), aff'd 45 Fed.Appx. 354 (6th Cir.2002) (summary judgment entered for plaintiff where defendant did not provide notice or opportunity to respond to three of the five reasons noted for her termination in the letter following her Loudermill hearing).
Viewing the evidence of record in the light most favorable to the Defendants, no reasonable factfinder could find that the Defendants afforded Plaintiff the process that he was due as a public employee prior to his termination. The Town Charter provides that appointed officers are removable only for cause, and "no such removal for cause shall be effected unless the officer... has received a statement in writing of the reasons why he should be removed." (Charter § 4.7.1., Ex. 37 to Pl.'s 56(a)1 Stmt.) Plaintiff was not provided with a complete list of the charges against him prior to the January 9 meeting, and the Town's January 31 notice failed to list the important issue of four hour minimum payments for off-duty days and scheduled the hearing for Plaintiff less than a week later, contrary to the Charter provisions:
(Charter § 4.7.1-4.7.2.) Accordingly, Defendants' motion is denied, and Plaintiff's motion is granted.
Plaintiff and Defendants Town of East Lyme both move for summary judgment on Plaintiff's due process deprivation of liberty claim.
"In an action based on a termination from government employment, a plaintiff must satisfy three elements in order to demonstrate a deprivation of the stigma component of a stigma-plus claim."
Id., 459 F.3d at 212-13 (internal citations omitted). While the Second Circuit has noted that a typical "stigma-plus" case occurs when the state actor makes the stigmatizing statement at the time of termination, "perfect parity in the origin of the stigma and the plus is not required." Velez v. Levy, 401 F.3d 75, 89 (2d Cir.2005).
Defendants argue that the stigmatizing statements made must be defamatory, and that therefore the Plaintiff must prove that the statements complained of were false. See Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.2002). However, "a plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove they are false." Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir.2004) (emphasis added). Abramson describes "situations where the reasons for termination or resignation were given a public airing which impaired the prospects of the employee for other employment" as a possible circumstance giving rise to a claim of denial of a liberty interest. Abramson, 278 F.3d at 101.
Defendants also maintain that a defamatory statement must convey an objective fact, "since expressions of mere opinion are generally not actionable." (Town's Mem. at 14.) As illustration, Defendants cite to Wiese v. Kelley, No. 08-CV-6348, 2009 WL 2902513, *5-6, 2009 U.S. Dist. LEXIS 82307, *19-20 (S.D.N.Y. Sept. 10, 2009), in which the Southern District of New York found the New York Attorney
It is undisputed that at the Board of Selectmen meeting, Defendant Formica stated that "I think that he violated the trust," that "everything that I looked at was reviewed and showed a pattern of inconsistencies with this," and that:
(DVD.) In making these statements, Defendant Formica relied on Attorney Satti's presentation, which referred to the report from Sergeant Crooks to his commanding officer, stating that the investigatory report on Holmes "raised questions about the legitimacy about the request for payments that have been made." (Id. at Ch. 5.)
Unlike the statement of opinion that a plaintiff's behavior was "extremely troubling" in Wiese, the statements made at the Board of Selectmen meeting are not just statements of opinion, but are accusations of theft of services which a reasonable juror could find sufficient for proof of a stigma-plus violation. The record does not require a conclusion that they are "true but stigmatizing," Strasburger v. Bd. of Educ., 143 F.3d at 356, nor mere assertions of Defendant Formica's opinion. Rather, these were statements made by a public official that implied false facts about a scheme Plaintiff had for getting paid improperly. Strasburger, 143 F.3d at 356.
Generally, as discussed above, due process requires that a state afford persons "some kind of hearing" prior to depriving them of a liberty or property interest. See DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003) (internal citations omitted). Defendants argue that Plaintiff received all the process to which he was
Defendant Formica is a "high-ranking official," and accordingly, the "random and unauthorized" exception to pre-deprivation process does not apply here. As the First Selectmen, he serves as the Chief of Police for the Town of East Lyme, and the Board of Selectmen are charged with the appointment of constables and special constables (see Ex. 37 to Pl.'s 56(a)1 Stmt. at 4.6.1), as well as with dismissing employees of the town (see id. at 3.2.3). Thus, Mr. Holmes was entitled to "some kind of hearing" prior to being terminated, and he received only inadequate notice of the charges against him and a post-deprivation hearing. Accordingly, the Court denies Defendants motion for summary judgment on this count, and grants Plaintiff's motion for summary judgment.
Defendants maintain that Defendant Formica is entitled to qualified immunity in his individual capacity on each of the due process claims. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two-step sequence for resolving government officials' qualified immunity claims:
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). In Pearson, the Court held that the Saucier protocol should not be regarded as "mandatory, but that the two-step process is often beneficial." 129 S.Ct. at 818. Here, because summary judgment is being entered for Plaintiff on both due process claims, the Court must consider whether Plaintiff's rights were "clearly established" at the time Defendant Formica acted.
A defendant will be entitled to summary judgment on qualified immunity grounds when "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff's, could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established
"The question of whether a right is `clearly established' is determined by reference to the case law extant at the time of the violation." In re County of Erie, 546 F.3d 222, 229 (2d Cir.2008). The case law describing the constitutional protections where liberty or property interests are at stake is longstanding and well established. "Where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). In Roth, the Supreme Court held that the dismissal of a government employee accompanied by a "charge against him that might seriously damage his standing and associations in his community" would qualify as something "the government is doing to him," so as to trigger the due process right to a hearing. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701. Thus, the Court concludes that at the time of Plaintiff's dismissal, his rights were clearly established.
Viewed in the light most favorable to Plaintiff, a reasonable jury could find that it was objectively unreasonable that Plaintiff was not presented with notice of the full set of charges against him, that Plaintiff was prevented from presenting his side of the events in question, and that Mr. Formica should have known that Plaintiff, as a union employee, was entitled to dismissal only for "just cause." Further, the digital recording of the Board of Selectmen meeting reveals that Mr. Formica was focusing intently on the "interpretation of the contract" when he asked the member of the Board to vote on Mr. Holmes's non-reappointment and noted that Plaintiff, if he chose to, could always bring a grievance through his union. (See DVD, Ex. 34 to Pl.'s 56(a)1 Stmt. at 1:36:00.) Factual issues remain for jury determination, such as how to interpret the language of the Collective Bargaining Agreement, or how a reasonable First Selectman would have addressed the lack of clarity between the Collective Bargaining Agreement and the language in the Town Charter. Thus, this inquiry into reasonableness is not appropriately decided on summary judgment, and accordingly, Defendants' motion for summary judgment on qualified immunity grounds will be denied.
Defendants move for summary judgment as to Count Two, Connecticut's Whistle blower statute, asserting that (1) Plaintiff's alleged speech did not address a matter of public concern, and (2) Plaintiff failed to plead that the exercise of his rights substantially or materially interfered with his working relationship with the Town. (Town's Mem. at 27.)
Conn. Gen.Stat. § 31-51q states:
Defendants argue that summary judgment is proper on this count because the speech protected by the statute can only be speech regarding issue of public concern, and Plaintiff's speech only concerned his own private interests.
"Whether the subject matter addressed by a particular statement is of public concern involves a question of law for the court." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 734 A.2d 112 (1999). "Whether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. This latter inquiry necessarily involves a question of fact." Id. "The court should focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it has a broader public purpose." Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.1999).
The protected speech in question must touch on a matter of public concern, and if it does, then the plaintiff's motivation for the speech becomes a question for the jury. For example, in Campbell v. Windham Community Memorial Hospital, Inc., 389 F.Supp.2d 370 (D.Conn.2005), Judge Hall found that "it could not be said that [the plaintiff's] speech concerned only the scope of the terms and conditions of [plaintiff's] employment," and concluded that speech that addressed plaintiff's "employer's potentially illegal practices with respect to private third parties" was a matter of public concern, and denied the employer's motion for summary judgment. 389 F.Supp.2d at 381. However, Campbell is distinguishable from the speech at issue here: there, the plaintiff's speech "did not relate to the terms of her employment or her own pay and salary. Instead it addressed in part her employer's potentially illegal practices." 389 F.Supp.2d at 381. Here, the record shows that in his November 29, 2007 Memorandum to First Selectman Hogan, Plaintiff listed some of the issues he had broached with Hogan, including, "pay issues, part time hours and how time was being incorrectly charged to this account causing the `over the budget condition,'" and "the continued harassment both verbal, written and the hostile work environment that has been created by Sergeant Saffioti." (November 29, 2007 Memorandum, Ex. 5 to Pl.'s 56(a)1 Stmt.)
While it is the case that speech that concerns the management of government funds constitutes protected speech, see Vasbinder v. Scott, 976 F.2d 118, 119-20 (2d Cir.1992), speech that relates to a public employee's personal "pay issues" does not automatically render it an issue of public concern. Viewing the record in the light most favorable to Plaintiff, the court concludes that no reasonable juror could find that Plaintiff was motivated by matters of public concern when he submitted his memo to First Selectwoman Hogan. The substance of the memorandum addressed the tense relationship between him and Sergeants Crooks and Saffioti, and case law does not support a
Defendant Formica has also moved for summary judgment as to Count Five, and Plaintiff has moved for summary judgment under Rule 56(f) (summary judgment "independent of the motion"). Defamation, the tort that encompasses libel and slander, is established by demonstrating that (1) the defendant published a defamatory statement; (2) the defamatory statement identified plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement. Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). In Lizotte v. Welker, 45 Conn.Sup. 217, 709 A.2d 50 (1996), the court defined defamation as "that which tends to injure reputation in the popular sense, to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." 45 Conn. Supp. at 220, 709 A.2d 50.
Plaintiff, as a police officer, concedes that he is a public figure for defamation purposes. Therefore, he must show that Formica acted with actual malice in defaming him. Miles v. Perry, 11 Conn.App. 584, 588-89, 529 A.2d 199. Actual malice can be demonstrated by showing the defendant made the statement with knowledge the statement was false or with reckless disregard for whether it was false or not. Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987). Whether a defendant had knowledge of the falsity of a defamatory statement is a question for a trier of fact. Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985).
Defendants argues that Formica's statements are either true, or statements of opinion, and thus cannot form the basis of a claim of defamation. See Johnson v. Chesebrough-Pond's USA Co., 918 F.Supp. 543, 551-52 (D.Conn.1996), aff'd, 104 F.3d 355 (2d Cir.1996) (statements about job performance, such as plaintiff "didn't fit in" and "could not be recommended" were opinions, and therefore not defamatory). Plaintiff counters that Formica's statements were made with reckless disregard as to their truth or falsity, as Formica failed to conduct an adequate investigation into the charges against Plaintiff. At the Board meeting, both Attorney Satti and Selectmen Wilson noted that the four hour time card issue "came up a lot" with other officers, but Formica focused only on the Plaintiff as someone with a problematic "pattern of behavior over a period of time." (DVD.) Reckless disregard for the truth of a statement may be found when an individual publishes defamatory statements with a "high degree of awareness of
There are sufficient facts in the record that, viewed in the light most favorable to Plaintiff, would allow a reasonable juror to find that Defendant Formica acted with actual malice when he made the statements in question at the Board meeting. The record shows that Formica consciously disregarded evidence that the four-hour minimum overtime issue was not unique to Plaintiff, and that in spite of evidence showing that this appeared to be a practice in the department, Formica made his statements about "violating the trust," and about the Board "doing an injustice" if they let the issue of Mr. Holmes's appointment sit another day. (DVD at 1:33:35-1:45:33.)
Defendant Formica moves for summary judgment as to Count Six, false light invasion of privacy. "In order to establish invasion of privacy by false light, the plaintiff must show "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."" Jonap v. Silver, 1 Conn.App. 550, 557-558, 474 A.2d 800 (1984) (quoting 3 Restatement (Second), Torts § 652E; Honan v. Dimyan, 52 Conn.App. 123, 132-133, 726 A.2d 613 (1999)). The `publicity' associated with invasion of privacy "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Orsini v. Zimmer, No. CV075013711S, 2009 WL 5698148, at *7 (Conn.Super.2009) (quoting 3 Restatement (Second), Torts § 652D, cmt.a).
In the employment context, when information is conveyed only to employees with a duty, responsibility, and need for such information, there is not sufficient publicity to support an action for invasion of privacy. See, e.g., Grossman v. Computer Curriculum Corp., 131 F.Supp.2d 299, 311-12 (D.Conn.2000) (citing Pace v. Bristol Hosp., 964 F.Supp. 628, 631-32 (D.Conn.1997)) (concluding that former employer's dissemination of information regarding circumstances of former employee's discharge to management personnel, interested co-workers and independent contractor with whom plaintiff worked did not constitute "publicity" necessary to state a false light claim). If an employer communicates false information concerning a former employee to so many persons that the matter must be regarded as substantially certain to become one of public knowledge, a false light claim may lie. See Grossman, 131 F.Supp.2d at 312.
The record here supports Plaintiff's contention that Formica's communication reached the public at large, and what Formica said about Plaintiff could be found highly offensive by a reasonable juror. Accordingly, Defendant's motion for summary judgment is denied as to Count Six.
Defendants argue that regardless of the merits of Counts Five and Six, Mr. Formica is entitled to summary judgment on Plaintiff's defamation and false light invasion of privacy claims, because governmental immunity bars both claims. (Town's Mem. at 37.) Under Conn. Gen. Stat. § 52-557n, the state legislature imposed liability on a municipality for the "negligent acts or omissions of ... any employees" but it has not waived the municipality's immunity from liability for the intentional torts of its employees and officials.
The Connecticut Supreme Court has also held that, while municipal employees are immune from liability for their negligent acts, they are not immune from liability for acts that "involve malice, wantonness or intent to injure, rather than negligence." Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Plaintiff argues that the special defense of governmental immunity has been found not to apply to the claim of willful and intentional wrongdoing, including defamation, alleged by a plaintiff against a municipal employee. Hamden Salvage Inc. v. Kops, 1999 WL 1241904 (Conn.Super.1999).
In Sammartino v. Turn, No. CV99070151, 2003 WL 1090673, at *1-2, 2003 Conn.Super. LEXIS 564, at *3-5 (Feb. 28, 2003), relied on by Defendant, the court found that governmental immunity was a complete defense to an intentional tort claim against the "First Selectman of the Town of Andover," sued only in his official capacity. However, Plaintiff
Defendants argue that Plaintiff has "failed to state a claim" under Conn. Gen. Stat. § 31-51m, which states, in relevant part:
Conn. Gen.Stat. § 31-51m(b). "Public Body" is defined as "(A) any public agency,... or any employee, member or officer thereof, or (B) any federal agency or any employee, member or officer thereof." Id.
In an action under the state whistleblower statute, the plaintiff has the initial burden to prove by a preponderance of the evidence a prima facie case of retaliatory discharge: (1) that the plaintiff engaged in a protected activity as defined by § 31-51m(b); (2) that the plaintiff was subsequently discharged from his employment; and (3) that there was a causal connection between his participation in the protected activity and his discharge. See Arnone v. Town of Enfield, 79 Conn.App. 501, 507, 831 A.2d 260, 266 (2003). A plaintiff's burden of establishing a prima facie case by presenting evidence which allows a rational trier of fact to raise an inference of retaliatory discharge is de minimis. LaFond v. General Physics Services Corp., 50 F.3d 165, 173 (2d Cir. 1995).
Defendants have not provided any legal arguments or citations to the record in support of their motion on this count, and a reasonable jury could find that Plaintiff has met his de minimis burden of establishing a prima facie case of retaliatory discharge: Mr. Holmes's memorandum was a written report to the First Selectwoman, the Chief of Police, concerning "unethical practices, mismanagement or abuse of authority by such employer" as contemplated under the statute (Ex. 5 to Pl.'s 56(a)1 Stmt.), and upon complaining to First Selectwoman Hogan about how Sgts. Crooks and Saffioti treated him, Sergeant Crooks and Defendant Formica launched an investigation into his timecard submissions, culminating in the decision to not reappoint Mr. Holmes to his 23-year position as a special constable. Drawing all inferences in Mr. Holmes's favor, summary judgment is denied as to Plaintiff's § 31-51m claim.
Plaintiff moves for summary judgment against Defendant Sergeant Crooks on Counts Five and Six of the Amended Complaint. Sergeant Crooks cross-moves for summary judgment on those counts as well as on Count Seven (Intentional Infliction of Emotional Distress).
Sergeant Crooks argues that summary judgment should enter in his favor as to Count Five because he was only expressing statements of opinion, which are not actionable, he made no false statements of fact, and the truth is a complete defense to a claim of defamation. See Holbrook v. Casazza, 204 Conn. 336, 361, 528 A.2d 774 (1987).
Here, the record shows that Crooks discussed the allegations constituting the McCook Park incident with the Board, but had never spoken with Plaintiff or with Sergeant Renshaw about the allegations, which ultimately were found to be false. The record also shows that Sergeant Crooks made these statements as part of the Board's investigation into Plaintiff's reappointment. While Sergeant Crooks may not have knowingly made any false statements of fact, the record is sufficient to convince a reasonable juror that Crooks acted in reckless disregard of the truth when he made these statements. For that reason, Sergeant Crooks' motion for summary judgment is denied. As for plaintiff's motion, a reasonable juror could similarly find that Sergeant Crooks did not act with actual malice when he made these statements — he interviewed other officers about the McCook Park incident as part of his investigation into Plaintiff's time card issue, and he recounted what they had told him at the Board meeting. Accordingly, summary judgment is also denied as to Plaintiff's motion on Count Five.
As discussed above, the type of false light claim alleged by Plaintiff protects a person's interest in not being placed before the public in an objectionable position that is false and is "a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable person in his position." Jonap v. Silver, 1 Conn.App. 550, 558, 474 A.2d 800 (1984). Not every unwelcome public comment satisfies the legal necessity that the statement be "highly offensive." Isolated negative statements, even if false, do not meet the requirement for highly offensive behavior. Cavallaro v. Rosado, No. CV 05-4009939, 2006 WL 2949143, at *6-7, 2006 Conn.Super. LEXIS 2919, at *17 (Conn.Super. Oct. 5, 2006).
Sergeant Crooks argues that his statements were neither knowingly false nor highly offensive. (Crooks' Mem. Supp. at 11.) However, as discussed above with respect to the claim against Defendant Formica, mere reckless disregard for the truth is all that is required for actual malice. Viewed in the light most favorable to Plaintiff, Crooks' statements speak directly to the Plaintiff's character for honesty and suggest that the Plaintiff was cheating. A reasonable juror could conclude that such statements were "highly offensive." On the other hand, and viewing the record most favorably to Sergeant Crooks, a reasonable juror could also find that Sergeant Crooks' statements did not rise to that level of offensiveness, nor that they were made with actual malice. Accordingly, summary judgment is denied as to all motions on Count Five against Sergeant Crooks.
Sergeant Crooks also moves for summary judgment on Plaintiff's claim of intentional infliction of emotional distress (Count Seven). In order to prevail
Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 712, 746 A.2d 184 (2000). "Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." Carrol v, Allstate Insurance Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
Under Connecticut law, conduct rises to the level of "extreme and outrageous" when a "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Appleton v. Board of Educ. of Town of Stonington, 254 Conn. 205, 211, 757 A.2d 1059 (2000). Defendant Crooks argues that Plaintiff's allegations, and the record, do not support the argument that his behavior rose to the level of "extreme and outrageous conduct."
Indeed, the bar for conduct that is found to be "extreme and outrageous" is set very high. For instance, in DeLeon v. Little, a district court considered a situation where the defendant's alleged conduct towards the plaintiff included:
981 F.Supp. 728, 738 n. 8 (D.Conn.1997). The court held that the defendant's action did "not rise to the level of extreme and outrageous behavior. There is no evidence that Defendant's requests were accompanied by any threat of force or physical violence." Id. at 738-39. In Bombalicki v. Pastore, 71 Conn.App. 835, 841, 804 A.2d 856 (2002), when the evidence showed that the defendant's actions "with respect to the plaintiff included expressing his dislike of the plaintiff, talking about the plaintiff unfavorably to other [employees], opposition to the plaintiff's promotion and an ultimate decision not to recommend the plaintiff for promotion," the court held that was insufficient evidence of extreme or outrageous behavior to support a claim for intentional infliction of emotional distress. 71 Conn.App. at 841, 804 A.2d 856.
Plaintiff contends that there is no bright line rule for determining whether conduct was extreme and outrageous, and that the facts and circumstances of each specific case should be considered. See Crocco v. Advance Stores Co. Inc., 421 F.Supp.2d 485 (D.Conn.2006) (denying summary judgment on the IIED claim and finding that "reasonable minds could differ" on whether plaintiff's former supervisor and
Considering the facts and circumstances of the instant case, the Court concludes that the record does not support a cause of action for the intentional infliction of emotional distress. Defendant Crooks was Plaintiff's supervisor, and it may be the case that the manner in which Sergeant Crooks conducted his investigation into Plaintiff's time cards was not commendable. Sergeant Crooks reported that Plaintiff's showed up for the McCook Park assignment "two hours late. Other officers told me that he didn't report until two hours late and still billed the Town for four hours." (DVD at 1:27:12-1:27:29.) This testimony was found to be untrue (see Renshaw Test. at 41:17-46:16), but nothing in the record supports Plaintiff's contention that Sergeant Crooks intentionally reported false information to the Board of Selectmen (see Pl.'s Dep. at 80:23-81:2 (Plaintiff testified that "I don't know why [Sergeant Crooks] he [told them about the McCook Park incident]," and that he didn't know what the basis of Sergeant Crooks's statement was)). The record shows that Crooks, in uniform, went to Plaintiff's full-time employer in order to check on his whereabouts on the dates at issue (see Crooks Aff. ¶ 26), however, the record does not support Plaintiff's claim that Crooks accused Plaintiff of lying or being dishonest in front of his employer, or that he "conducted a hostile and unwarranted investigation at the DOT" (Pl.'s Mem. Opp'n at 16). In sum, no reasonable juror could find that Sergeant Crooks' behavior rose to the level of "extreme and outrageous" conduct under Connecticut law. Accordingly, summary judgment will enter in Crooks' favor on Count Seven.
For the reasons discussed above, Plaintiff's Motion for summary judgment [Doc. #60] against the Town and Defendant Formica is GRANTED in part, as to Counts Three and Four, and DENIED in part, as to Counts Five and Six. Plaintiff's Motion for summary judgment against Defendant Crooks [Doc. #64] is DENIED in its entirety. Defendants Town of East Lyme and Paul Formica's Motion [Doc. #66] is GRANTED as to Count Two, and DENIED as to the remaining counts. Defendant Crooks's motion [Doc. #63] is GRANTED as to Count Seven and DENIED as to Counts Four and Five.
IT IS SO ORDERED.
