Opinion
NNHCV176069687
12-07-2018
Luigi AMASINO v. TOWN OF BRANFORD
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Luigi Amasino, commenced this action against the defendant, Town of Branford, on April 11, 2017. The plaintiff filed an amended one-count complaint on June 3, 2017. The plaintiff seeks relief pursuant to General Statutes § 31-51q, claiming an adverse employment action as a result of exercising his constitutionally protected right to freedom of expression. The defendant answered the complaint and raised the special defense of failure to exhaust administrative remedies on January 5, 2018.
In his amended complaint, the plaintiff alleges that he was ordered on or about December 6, 2016, to serve a two-day suspension for violations of departmental rules and regulations by Kevin Halloran, chief of the Branford Police Department, following a hearing. While the plaintiff alleges that, on or about December 9, 2016, Halloran threatened to destroy the plaintiff’s career as a police officer if the plaintiff did not withdraw a grievance relating to such suspension, in reality the plaintiff did not file the grievance over his suspension until December 12, 2016. The plaintiff subsequently submitted his written resignation on January 6, 2017 and Halloran accepted the resignation on January 17, 2017.
The plaintiff said at his deposition that Sergeant Philip Ramey, not Halloran, pressured the plaintiff to withdraw the grievance or else get a name "no cop wants in the state."
The plaintiff further alleges in his amended complaint that Halloran "undertook a series of vindictive and discriminatory disciplinary actions against the plaintiff," threatening to fire the plaintiff and cause the plaintiff’s POST (Police Officer Standards and Training) certification to be revoked if he did not resign. The timeline preceding the plaintiff’s resignation is as follows. Halloran wrote the plaintiff on December 8, 2016, to notify the plaintiff of his two-day (unpaid) suspension as a result of findings in a hearing held on December 6, 2016, in which the plaintiff was found to have violated General Order 1.18, response to crimes of family violence; General Order 1.65, wearable video recorders; Rule IX Sec. 20, insubordination; and Rule VI Sec. 3, late for roll call. The plaintiff was ordered to serve the suspension December 14 and 15, 2016. The suspension stemmed from the plaintiff’s response to a November 21, 2016, complaint regarding the violation of a protective order. The plaintiff testified at his deposition that he expressed his intention to file a grievance to contest the suspension on December 9, 2016. The plaintiff ultimately served the suspension as ordered, on December 14 and 15, 2016.
In a separate incident that occurred on December 10, 2016, after the plaintiff was ordered suspended, but before he filed the grievance on December 12, 2016, the plaintiff fell asleep in his police cruiser during the early morning hours while on duty. A sensor in the vehicle was triggered, prompting the overhead lights to start flashing and a civilian to call 9-1-1. The plaintiff, a K-9 officer, told Ramey, a peer officer, and civilian dispatch that he was outside the car walking his K-9 when the alarm sounded. Halloran said in his affidavit that the plaintiff saved and coded the patrol vehicle recording of the incident as a "traffic warning." The plaintiff later admitted that he had fallen asleep on duty, which was confirmed by the video, and was initially embarrassed to admit it. The plaintiff was informed on December 16, 2016, that an Internal Affairs (hereinafter IA) investigation into the incident had been initiated. The plaintiff was placed on administrative leave. While on leave, the plaintiff grew increasingly fearful of being fired and sought to reach an agreement with Halloran, who had informed the plaintiff that he would notify POST if the investigation revealed that the plaintiff had been untruthful. Around the new year, the plaintiff’s union representative, Ronald Suraci, reached out to Halloran to facilitate the plaintiff’s resignation. The IA investigation was closed January 11, 2017, with the plaintiff found to have engaged in conduct unbecoming an officer. The plaintiff, despite being provided the opportunity, never presented himself for an interview as part of the investigation. Pursuant to an agreement, the plaintiff withdrew the grievance that he had filed following his suspension for the previous violation; the charge of insubordination, and one of four charges underlying the suspension, was removed.
The plaintiff alleges in this action that not only that his resignation was coerced, but also that the original suspension constituted disproportionate punishment as compared to other officers. In his memorandum in opposition to the defendant’s motion, the plaintiff included a list of officers receiving supposedly softer discipline for improper conduct.
If the plaintiff’s POST certification were revoked, it would severely impair his ability to be employed as a police officer in the state.
The defendant’s motion for summary judgment was filed on August 15, 2018. The plaintiff filed his opposition to the defendant’s motion for summary judgment on October 9, 2018. The defendant filed a reply memorandum in support of the motion on October 10, 2018 and the plaintiff filed a sur-reply brief in opposition on October 15, 2018. Argument on the matter was heard at short calendar on October 15, 2018.
II.
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
"Mere statements of legal conclusions ... and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). "It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party ... such allegations must be supported by counteraffidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
The defendant Town of Branford contends that there is no genuine issue of material fact-that the plaintiff’s grievance does not amount to protected speech as a citizen on a matter of public concern; that the plaintiff voluntary resigned his position; and that there is no causal nexus between the speech and any adverse employment action. The plaintiff argues in opposition that the grievance he filed relates to a matter of public concern in that it seeks to evaluate unequal discipline within the department, implicating public safety; that the plaintiff was constructively discharged; and that there is a causal nexus between the grievance and the forced resignation.
Section 31-51q states in relevant part: "Any employer, including the state and any instrumentality ... thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge." "[T]o establish a prima facie case [pursuant to § 31-51q], plaintiff must show that (1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest; (2) he suffered an adverse employment action; and (3) the speech was at least a substantial or motivating factor in the adverse employment action." Konspore v. Friends of Animals, Inc., United States District Court, Docket No. 3:10cv613 (MRK) (D.Conn. March 20, 2012).
"Section 31-51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employees’ exercise of enumerated constitutionally protected rights." D’Angelo v. McGoldrick, 239 Conn. 356, 360, 685 A.2d 319 (1996). It protects the first amendment and related state constitutional rights of workers in the public and private sectors. Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999).
In evaluating a government employee-plaintiff’s claim pursuant to § 31-51q, the court may examine prior decisions of federal courts arising under the first amendment and/or 42 U.S.C. § 1983. Cotto v. United Technologies Corp., 251 Conn. 1, 42, 738 A.2d 623 (1999).
A. Exercising Constitutionally Protected Rights
"A clear prerequisite to the application of § 31-51q ... is that the speech at issue must be constitutionally protected; only the exercise ... of rights guaranteed by the first amendment to the United States [c]onstitution or section 3, 4 or 14 of article first of the [c]onstitution of the state falls within the ambit of the statute." (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., 304 Conn. 585, 600, 43 A.3d 111 (2012).
"Section 31-51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). "[The relevant] constitutional provisions safeguard statements made by an employee that address a matter of public concern, but provide no security with respect to statements that address wholly personal matters." Id., 778. "The statute applies only to expressions regarding public concerns that are motivated by an employee’s desire to speak out as a citizen." Cotto v. United Technologies Corp., supra, 251 Conn. 17. "[U]nder the state constitutional standard that we have adopted in the present case, employee speech pursuant to official job duties would be protected by § 31-51q only to the extent that it involves dishonest or dangerous practices by the employer that would be a matter of public concern." Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 216, 123 A.3d 1212 (2015). While the Supreme Court in Trusz adopted a broader reading of state constitutional protections than federal ones; still, "[u]nder this standard ... [i]t is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty ... other serious wrongdoing, or threats to health and safety ... that the speech trumps the employer’s right to control its own employees and policies." (Citation omitted; internal quotation marks omitted.) Id., 193, 212.
The Trusz court adopted a Pickering/Connick balancing standard for assessing free speech claims arising under the state constitution by a public employee pursuant to the employee’s official duties. Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 179, 123 A.3d 1212 (2015). "[U]nder the Pickering/Connick balancing test, employee speech in a public workplace is protected from employer discipline if it involves a matter of public concern and if the employee’s interest in commenting on the matter outweighs the employer’s interest in promoting the efficient performance of public services." Id., 184.
"Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record ... An employee’s speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community ..." (Citations omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. 602. "[S]peech deals with matters of public concern ... when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." (Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 412, 125 A.3d 920 (2015).
In the present case, the plaintiff argues that he, in filing the grievance as to his suspension, spoke as a citizen on a matter of public concern in the context of § 31-51q because he sought to challenge Halloran’s "failure to discipline others for egregious misconduct impacting public safety." The defendant counters that the plaintiff merely sought to redress a personal employment wrong. This court agrees with the defendant.
The plaintiff’s grievance, filed in accordance with a union contract and titled "Employee Contract Grievance," alleges a violation of the collective bargaining agreement for suspension without just cause. Despite counsel’s efforts to portray the plaintiff’s request for employee records as an attempt to expose Halloran’s failure to discipline other police officers for misconduct, thereby implicating a public interest in safety, this court finds that the plaintiff was not speaking as a citizen on a matter of public concern when he filed the grievance. The plaintiff only initiated the grievance after being written up for another incident in his job, untruthfulness relating to sleeping on the job, and withdrew the grievance when he agreed to resign a month later after he was being investigated for such untruthfulness.
Moreover, other courts have consistently found that employee grievances do not constitute protected speech on a matter of public concern. See, e.g., Weintraub v. Board of Education of City School District of City of New York, 593 F.3d 196, 203-04 (2d Cir.), cert. denied, 562 U.S. 995, 131 S.Ct. 444, 178 L.Ed.2d 344 (2010) ("Our conclusion that [the plaintiff] spoke pursuant to his job duties is supported by the fact that his speech ultimately took the form of an employee grievance, for which there is no relevant citizen analogue ... The lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general"); Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir.), cert. denied, 528 U.S. 823, 120 S.Ct. 70, 145 L.Ed.2d 60 (1999) ("[S]peech on a purely private matter, such as en employee’s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern"); Konspore v. Friends of Animals, Inc., United States District Court, Docket No. 3:10cv613 (MRK) (D.Conn. March 20, 2012) (The Second Circuit has recognized ... complaints, such as those made to elected representatives or independent state agencies, as made via channels available to citizens generally-unlike union grievances or internal complaints that occur pursuant to employment agreements or procedures").
Despite the broader speech protections alluded to in Trusz; Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 193; "a statute that protects constitutional rights in the workplace [such as § 31-51q] should not be construed so as to transform every dispute about working conditions into a constitutional question." Cotto v. United Technologies Corp., supra, 251 Conn. 17. This court finds that the plaintiff’s grievance relates to the plaintiff’s personal employment, not a larger public purpose.
B. Employee Discipline
"[Section 31-51q] protects any employee who has been disciplined or discharged in violation of the statute" for exercising their speech rights. Schumann v. Dianon Systems, Inc., supra, 304 Conn. 630. "Beyond proving that the employee’s expression is a matter of public concern that should be protected pursuant to § 31-51q, the employee must demonstrate that the employer disciplined or discharged him because of the relevant expression." Cotto v. United Technologies Corp., supra, 251 Conn. 48.
The plaintiff alleges a constructive termination of employment-that Halloran threatened him that his employment would be terminated and his POST certification revoked if the he did not resign, which caused the plaintiff to resign. "Constructive discharge occurs when an employer renders an employee’s working conditions so difficult and intolerable that a reasonable person would feel forced to resign ... Through the use of constructive discharge, the law recognizes that an employee’s voluntary resignation may be, in reality, a dismissal by the employer." (Citations omitted; internal quotation marks omitted.) Seery v. Yale-New Haven Hospital, 17 Conn.App. 532, 540, 554 A.2d 757 (1989). "[I]n order to meet the high standard applicable to a claim of constructive discharge, a plaintiff is required to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign." (Internal quotation marks omitted.) Horvath v. Hartford, 178 Conn.App. 504, 510-11, 176 A.3d 592 (2017).
The evidence is insufficient to raise a genuine issue of material fact on discharge or discipline. First, the plaintiff resigned after the plaintiff had grown fearful that a finding of untruthfulness in the IA investigation relating to his sleeping on the job could threaten his POST certification (which could, in turn, impair his ability to find employment as a police officer elsewhere), so he agreed to resign. Because the plaintiff resigned, he was credited for unused time off and avoided a charge of untruthfulness. Thus, there is no evidence of discharge or discipline.
Furthermore, the plaintiff cannot meet his burden on his constructive discharge claim. The plaintiff was notified, after a hearing, of his two day suspension on December 6, 2016 for his first work related violations. The plaintiff then, on December 10, 2016, falsely reported to a dispatcher why his car alarm went off during his shift. An investigation was subsequently opened into plaintiff’s untruthfulness as to the reason why his car alarm went off and his sleeping on the job. The plaintiff filed the grievance on December 12, 2016 relating to the prior suspension notice. The plaintiff served his suspension on December 14 and 15, 2016, for the prior violation, was placed on administrative leave December 16, 2016 (during the IA investigation into plaintiff’s untruthfulness as why his car alarm went off). The plaintiff submitted his resignation on January 6, 2017, the IA investigation was closed on January 11, 2017, with the plaintiff found to have engaged in conduct unbecoming an officer, and the plaintiff’s resignation was accepted on January 17, 2017. The plaintiff alleges that he felt threatened by Halloran to resign or be fired. The parties agree that Halloran never delivered such an ultimatum, but rather that Halloran notified the plaintiff that Halloran was required to report to POST any finding of untruthfulness as to his sleeping on the job incident. There is no evidence of intolerable working conditions. This court finds that there are no genuine issues of material fact that support the plaintiff’s claim that the defendant intentionally created such an intolerable work environment that a reasonable person would feel forced to resign.
See
C. Causation
As the plaintiff did not speak as a citizen on a matter of public concern in his grievance nor suffered any adverse employment action, the plaintiff cannot meet his burden on causation. "For an employee to prevail he or she must also demonstrate that the speech was the motivating factor causing the public employer to take adverse action." Schumann v. Dianon Systems, Inc., supra, 304 Conn. 622 n.30. The speech must be "at least a substantial or motivating factor" in the adverse action. (Emphasis in original.) D’Angelo v. McGoldrick, supra, 239 Conn. 362. The exercise of protected speech need "not necessarily [be] the primary reason or the dominant purpose" for the action complained of. Schnabel v. Tyler, 230 Conn. 735, 756 n.13, 646 A.2d 152 (1994).
The plaintiff’s causation argument is reliant on conclusory assertions. The events underlying the grievance and the IA investigation that facilitated the plaintiff’s resignation are two separate events. The IA investigation was initiated after Halloran was notified of the plaintiff’s potentially deceitful conduct on December 10, 2016, two days before the plaintiff filed the grievance to contest his prior two-day suspension. Any allegation that Halloran pursued the IA investigation as a result of the plaintiff’s grievance is not supported by evidence.
Accordingly, the defendant Town of Branford’s motion for summary judgment on the plaintiff’s amended complaint dated June 3, 2017 is granted. See Lowe v. AmeriGas, Inc., 52 F.Supp.2d 349, 360 (D.Conn. 1999), aff’d, 208 F.3d 203 (2d Cir. 2000) ("[F]inding no evidence from which a reasonable jury could conclude that plaintiff’s protected speech entered into the decision to terminate him or that it was a substantial or motivating factor in his termination, we grant summary judgment in favor of defendant on plaintiff’s section 31-51q claim").
III.
CONCLUSION
Having found an insufficient evidentiary basis to raise a genuine issue of material fact, the defendant Town of Branford’s motion for summary judgment on the plaintiff’s amended complaint dated June 3, 2017 is granted.
Horvath v. Hartford, supra, 178 Conn.App. 519 (granting the defendant’s motion for summary judgment in a § 31-51m whistle-blower claim predicated on a constructive discharge, where the plaintiff alleged a loss of several work responsibilities as retaliation).