Opinion
No. 03 0476708
June 25, 2008
MOTION FOR SUMMARY JUDGMENT Motion Number, 131
The defendants Leonard Gallo, the East Haven Police Department, and the Town of East Haven have moved for summary judgment on counts one, three, four, five and seven of the plaintiff's fourth revised complaint. They assert that no genuine issue of material fact exists regarding the issue of liability, that the plaintiff has failed to establish her claims for wrongful termination, gender discrimination, intentional infliction of emotional distress, and municipal indemnification. For reasons set forth as follows, the court denies the summary judgment motion on counts one and three, and grants summary judgment on counts four, five, and seven.
FACTS
On April 23, 2003, the plaintiff, Dolores Hall, filed a nine-count complaint against defendants Leonard Gallo, the East Haven Police Department (Police Department), and Town of East Haven (Town). The action arises out of the alleged wrongful termination of the plaintiff from her position as a crossing guard employed by the Police Department. The plaintiff filed a thirteen-count revised complaint on November 10, 2003, and a thirteen-count second revised complaint on March 24, 2004. On November 5, 2004, the court granted the defendants' motion to strike; filed June 2, 2004, on all counts except count seven. Subsequently, the plaintiff filed a seven-count third revised complaint on November 15, 2004, with counts two, six, and eight through thirteen stricken, and attached the release of jurisdiction, dated January 9, 2003. On November 30, 2004, the plaintiff filed a five-count fourth revised complaint, which is the operative complaint, with counts two, six, and eight through thirteen stricken.
The memorandum of decision on the motion to strike was filed on November 5, 2004. Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. CV 03 0476708 (November 5, 2004, Devlin, J.).
In response, the defendants filed an answer and special defenses on December 20, 2004. On June 26, 2007, the court denied the defendants' motion to dismiss the plaintiff's fourth revised complaint, filed on September 27, 2006. On July 6, 2007, the defendants filed a motion for summary judgment on counts one, three, four, five, and seven, and a memorandum in support. The plaintiff filed an objection to the motion for summary judgment, and a memorandum in support, on February 4, 2008, in response to which the defendants submitted a reply memorandum on March 11, 2008. The matter was heard on the short calendar on March 17, 2008.
The memorandum of decision on the motion to dismiss was filed on June 26, 2007 (Corradino, J.). Hall v. Gallo, 50 Conn.Sup. 420, 934 A.2d 876 (2007).
In count one, the plaintiff alleges she was unlawfully terminated from her at-will job as a school crossing guard in violation of her first amendment rights under the constitution of the United States and the constitution of the state of Connecticut. In count three, the plaintiff alleges municipal indemnification under General Statutes § 7-465. In counts four and five, the plaintiff alleges employment discrimination against the Police Department and the Town, respectively, under General Statutes § 46a-60(a)(1), § 46a-60(a)(4), § 46a-60(a)(5), and § 46a-60(a)(8). The basis for the employment discrimination is the plaintiff's gender, the plaintiff having opposed discriminatory employment practices, and the defendants having enlisted its officers and employees to effect discriminatory employment acts and practices against the plaintiff including, but not limited to the termination of her employment. Finally, in count seven, the plaintiff alleges intentional infliction of emotional distress.
General Statutes § 46a-60(a)(1) provides that it shall be a discriminatory practice in violation of this section "[f]or an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness."
General Statutes § 46a-60(a)(4) provides that it shall be a discriminatory practice in violation of this section "[f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."
General Statutes § 46a-60(a)(5) provides that it shall be a discriminatory practice in violation of this section "[f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so."
General Statutes § 46a-60(a)(8) provides that it shall be a discriminatory practice in violation of this section "[f]or an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. `Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment."
DISCUSSION
"Practice book § 17-49 provides that summary judgment shall be rendered forthwith if 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 judgment as a matter of law. 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.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id.
Evidence
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45.
"[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
"Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). "Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." Id. The court, however, may consider not only the facts presented by the parties' affidavits and exhibits, which could be reasonably and logically drawn from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
The defendants argue in their motion for summary judgment that no genuine issue of material fact exists regarding the issue of liability. Specifically, the defendants argue that the plaintiff has failed to establish wrongful termination because (1) as an at-will employee, there is no evidence of a public policy violation; (2) there is no evidence of a causal connection between the protected activity and the adverse employment action; (3) the plaintiff was terminated for legitimate lawful reasons; and, (4) the availability of 42 U.S.C. § 1983 and General Statutes § 31-51q bar this claim. The defendants, further, argue that the plaintiff has also failed to establish her gender discrimination claim because (1) there is no evidence that the termination occurred under circumstances giving rise to an inference of discrimination; and, (2) the defendants have articulated a legitimate nondiscriminatory reason for the adverse employment action. Moreover, the defendants argue that the plaintiff has failed to establish her claim for intentional infliction of emotional distress because the conduct at issue was not extreme and outrageous. Lastly, the defendants argue that the plaintiff's General Statutes § 7-465 indemnification claim fails because (1) the defendants are entitled to judgment on the underlying claim; and, (2) the plaintiff failed to produce timely written notice.
The plaintiff does not claim that she is a victim of a crime in this case, therefore the protections of Gen. Stat. 31-51q would not apply to this case. Further this court is not dealing with a 42 U.S.C. 1983 action but rather is addressing claim that the plaintiff was wrongfully terminated because of her exercise of free speech rights.
In support of the motion for summary judgment, the defendants submit the East Haven Police Department incident reports and call summary report, the Dolores Hall deposition transcript dated November 7, 2006, the February 4, 2000 letter from Kenneth M. Jacks to Mr. and Mrs. Hall, the affidavit of Leonard L. Gallo, the February 8, 2000 letter from George Sherri Doebrick to Chief Leonoard Gallo, the sixth revised complaint in Hall v. Doebrick, Docket No. CV 00 0443463, the October 19, 2000 letter from George Mingione to Mr. and Mrs. George Hall, the George Hall deposition transcript dated November 8, 2006 the January 9, 2001 letter from Leonard L. Gallo to residents, the community meeting attendance list, the 10/26/01 Police Department incident report re: Case No. 01-17075, the October 26, 2001 letter from Leonard L. Gallo to Mrs. Dolores Hall, the answers to defendants' supplemental interrogatories, and a list of trial court cases.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
In the present case, the affidavit of the defendant Gallo authenticates the incident reports, the February 4, 2000 letter, the February 8, 2000 letter, the January 9, 2001 letter, the community attendance list, and the October 26, 2001 letter. The remainder of the documents are deposition transcripts and pleadings filed with the court. Alternatively, because the parties have not objected to any evidence presented, any objection is deemed waived and all documents are admissible.
The plaintiff responds as to count one that the defendants misapprehended or misstated the plaintiff's causes of action. Specifically, the plaintiff argues that the plaintiff has federal first amendment rights, which protect the right to use profanity and make obscene gestures, and that it is well established law in Connecticut that an at-will employee enjoys protection from employer actions which contravene public policy. As to count four and five, the plaintiff responds with the Connecticut Fair Employment Practices Act (CFEPA), arguing that the defendants have only claimed that the plaintiff has failed to make a prima facie case for gender discrimination, thus not addressing the entire employment discrimination claim. Finally, as to count seven, addressing intentional infliction of emotional distress, the plaintiff claims that the complaint demonstrates more than enough factual support of the proposition that the conduct of the defendants was "extreme and outrageous."
Count One — First Amendment
The plaintiff in the present case, who is an at-will public employee, alleges that her employment was terminated in retaliation for her exercise of her first amendment right to free speech — specifically her refusal to drop the lawsuit against her neighbors and her giving "the finger" to a neighbor while off-duty and out of uniform.
"As a general rule, an employer is free to terminate an at-will employee's employment with impunity . . . There is a narrow exception to this rule, however; the Supreme Court has recognized a public policy limitation on the traditional employment at-will doctrine . . . in situations in which the reason for the discharge involved impropriety . . . derived from some important violation of public policy." (Citation omitted; internal quotation marks omitted.) Wilk v. Abbott Terrace Health Center, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580-81, 693 A.2d 293 (1997); Fenner v. Hartford Courant Co., 77 Conn.App. 185, 194, 822 A.2d 982 (2003). "Public policy may be found in constitutional or statutory provisions or in judicially conceived notions." (Internal quotation marks omitted.) Joyner v. Simkins Industries, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 4000605 (July 31, 2007, Zoarski, J.T.R.).
"[Under the [public policy] exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy. The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability. Employee job security, however, is protected against employer actions that contravene public policy . . . The court's adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy." (Citations omitted; internal quotation marks omitted.) Wilk v. Abbott Terrace Health Center, supra, Superior Court, Docket No. CV 06 5001328; see also Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 691; Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986).
With regard to public employees, the plaintiff asserts the right of the government to terminate her from her at-will employment is limited by her free speech protections. The plaintiff in this case alleges the important public policy violated was her right to free speech as guaranteed under the United States Constitution and the Constitution of the State of Connecticut. The plaintiff does not argue that the speech in question was regarding a matter of public concern.
First Amendment, Constitution of the United States. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Constitution of the State of Connecticut, Article I, "Sec. 4. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
The federal courts have struggled with the conflict between a citizens exercise of his free speech rights and the right of a government, as an employer to protect its interests in fulfilling its public missions. In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), a school teacher wrote a letter to a local newspaper that was critical of his employer, the Board of Education. The Board of Education terminated his employment. Mr. Pickering sued the Board claiming that it had violated his First Amendment and Fourteenth Amendment rights. The Supreme Court noted that "[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected . . . at the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs though its employees." Pickering, supra, at 568. The court further noted that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech . . . we hold that . . . absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case . . . his dismissal for writing the letter cannot be upheld." Pickering, supra at 574-75. Absent from the discussion in Pickering was the consideration of whether a public employee's protected speech, unrelated to issues of public concern, could furnish a basis for the government to terminate his employment.
In United States v. National Treasury Employees Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), (the NTEU case), the court reviewed the constitutionality of the Ethics in Government Act of 1978, section 501(b) which purported to prohibit a member of congress, federal officer, or other government employee from making an appearance or speech or writing an article for pay or an honoraria. Under the terms of the act, federal employees were prohibited from receiving compensation for activities such as a postal worker giving lectures on the Quaker religion, an aerospace engineer lecturing on Black History or a microbiologist reviewing dance performances. The court found that as applied to a class of employees, Executive Branch employees below the grade of GS-16, the act was a violation of their First Amendment rights. "With few exceptions, the content of the respondent's messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work. They do not address audiences composed of co-workers or supervisors; instead, they write or speak for segments of the general public. Neither the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment." NTEU, supra at 465. In a concurring opinion, Justice Sandra Day O'Connor writes "significant weight must be placed on the employees' side of the scale in the Pickering balance." Id., 481. O'Connor notes that "the honoraria ban . . . doubtless inhibits some speech on matters of substantial public interest . . . the impact of the honoraria ban upon this class of employees' interests in speaking out as citizens, rather than employees, cannot be gainsaid." Id., 482.
"As the magnitude of intrusion on employees' interests rises, so does the Government's burden of justification." Id., 483. "The Government, when it acts as employer, possesses substantial leeway; in appropriate circumstances, it may restrain speech that the Constitution would otherwise protect. The Government's prerogatives in this area stem from its public-serving mission as employer . . . when someone who is paid a salary so that she will contribute to an agency's effective operation begins to do or say things that detract from the agency's effective operation, the government employer must have some power to restrain her." Id., 484. O'Connor, however, concludes that the government had "exceeded the limits of its latitude. The bare assertion of interest in a wide ranging prophylactic ban here, without any showing that Congress considered empirical or anecdotal data pertaining to abuses by lower echelon Executive Branch employees, cannot suffice to outweigh the substantial burden on the 1.7 million affected employees." Id., 485. Justice O'Connor alludes to a distinction between speech that was related to issues of "public concern" (how a government was providing services), matters of private concern (how the government employer was treating an individual employee) and speech that was private and unrelated to government employment.
In San Diego v. Roe, 543 U.S. 77, 82-83, 125 S.Ct. 521, 160 L.Ed 2d 410 (2004) the court upheld the termination of a police officer who was selling police paraphenalia and videotapes of himself engaging in sexually explicit acts. Applying the Pickering balancing test the court found that there was a nexus between the employee's speech and the performance of his duties as a public employee. It further found that the employer had demonstrated its legitimate and substantial interests were compromised by the employees speech and thus did not fall within the protection of the NTEU case.
"[T]he government as employer bears a special burden. Absent contrary legislation, a private employer may regulate the workplace environment, and hire, fire, and promote as it pleases. The Government enjoys no such freedom . . . (t)he state and federal governments, even in the exercise of their internal operation, do not constitutionally have the complete freedom of action enjoyed by a private employer . . ." Locurto v. Guiliani, 447 F.3d 159, 163 (2d Cir. 2006). Locurto involved the discipline of police and fire officers for their off duty conduct. "[I]t is more sensible . . . to treat off-duty, non-work-related speech as presumptively entitled to First Amendment protection regardless of whether, as a threshold matter, it may be characterized as speech on a matter of public concern." Id. at 475. Following Justice O'Connor's concurrence in NTEU, the court recognized potential problems with the Pickering balancing test, if applied too strictly without consideration for the actual circumstances. "In practice, because First Amendment retaliation doctrine must reconcile our dual traditions of at-will employment and of robust license to speak freely without Government sanction, neat doctrinal boxes are of unusually limited usefulness . . . Our overriding concern is that the Government not be permitted to "condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Id. at 173.
In the present case, although the plaintiff acknowledges she is an at-will employee, she claims the clearly articulated public policy established by the federal and state constitutions was violated when she was wrongfully terminated from her employment. She asserts she was terminated because she maintained a lawsuit against her neighbors and because she gave her neighbor "the finger." Generally, giving "the finger" is considered to be speech. See Klein v. Smith, 635 F.Sup. 1440, 1440 n. 2 (1986). Further, the filing of a lawsuit is expressive conduct protected by the our citizens' free speech rights.
In Klein, the "Defendant . . . contended that the Plaintiff's gesture [of extending the middle finger of one hand] had no communicative purpose of expressive content and is, therefore, not `speech' entitled to First Amendment protection . . . The only purpose the Plaintiff could have had in making the gesture to [the third party] [however] was to communicate or express in a very low manner his disrespect for [the third party]. The record display[ed] that [the third party] so understood the gesture and that he was immediately offended by it. Defendant's counsel stated in argument that the gesture used is commonly understood to mean `fuck you.' The Court conclude[d] that [the plaintiff] made the gesture for a communicative purpose, that of expressing in a dramatic manner to [the third party] his disrespect of him, and that it was so understood by [the third party] and others." Klein v. Smith, supra, 635 F.Sup. 1440 n. 2. "The First Amendment protection of freedom of expression may not be made a casualty of the effort to force-feed good manners to the ruffians among us." Id., 1442.
"[T]he term `fuck you' and similar curses have been upheld as constitutional forms of expression absent other aggravating circumstances." Cornelious v. Brubaker, Civ. No. 01-1254 MGD/JGL (Minn. 2003); see also Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). "[T]he [United States] Supreme Court had held that `absent a more particularized and compelling reason for its actions, [a] State may not, consistent with the First and Fourteenth Amendments, make the simple public display . . . of [a] four-letter expletive a criminal offense.' Cohen v. California, 403 U.S. 15, 26 (1971) (holding that the words `fuck you' are entitled to First Amendment protection). Under Cohen, the expletive `fuck you' does not rise to the level of `fighting words' but rather falls within the category of protected speech. See Sandul v. Larion, 119 F.3d 1250, 1254-56 (6th Cir.) (holding that Supreme Court precedent `should leave little doubt in the mind of a reasonable officer that the mere words and gesture "f — k you" are constitutionally protected speech.'), cert. dismissed, 522 U.S. 979 (1997)." Layman v. City of Albuquerque, Civ. No. 04-778 MV/LFG (N.M. 2005).
The defendants in the present case state that the plaintiff was terminated from employment for giving her neighbor the finger on several occasions. According to the accident report from October 24, 2001, the plaintiff's neighbor complained to the Police Department that the plaintiff was routinely driving by her home giving her the middle finger in October 2001. A detective, further, observed the plaintiff giving her neighbor the finger on October 22, 2001, and set up surveillance to document this on October 26, 2001, which is also the date of termination of the plaintiff's employment. The plaintiff denies this allegation because while she admits may have had her middle finger extended, she was merely tapping her finger to music in the car. The plaintiff does, however, admit to having previously given the finger to her neighbors. None of this vulgar and inarticulate conduct occurred while the plaintiff was in uniform or on duty.
There are affidavits and evidence in the record supporting and opposing this motion for summary judgment as to the reasons for the plaintiff's termination of the employment and how the conduct that the plaintiff admits of, the maintenance of a lawsuit against her neighbors and making of vulgar gestures, affects her ability to perform her public employment duties. The court notes that the plaintiff was not in uniform, nor at her place of employment and not in a vehicle of the defendants at the time she allegedly made the vulgar gesture. Although the defendants allege that the neighborhood dispute was spilling over and affecting the plaintiff's duties as a crossing guard, the plaintiff responds that she was employed as a crossing guard for eleven years and had not previously been disciplined.
The plaintiff claims that the termination was in retaliation for the plaintiff's ongoing lawsuit, which the plaintiff brought on September 22, 2000. The plaintiff met with the defendant Gallo in October of the same year. The plaintiff states in her deposition that Gallo told her in a "roundabout way" to drop the lawsuit, telling the plaintiff that he knew about the lawsuit and that he was concerned about the town's image because the plaintiff represented the town and the Police Department at all times. On January 16, 2001, the defendant Gallo hosted a community meeting; which the plaintiff did not attend based on the advice of her attorney. There is a significant gap of time between when the plaintiff and the defendant Gallo discussed the lawsuit and Gallo's decision to terminate the plaintiff. Nonetheless the substance of the lawsuit and the plaintiff's vulgar gestures in October of 2001 are related.
Viewing the evidence in the light most favorable to the plaintiff, there remain material issues of fact as to the reasons for the plaintiff's termination, the nature of her expressive conduct and whether the plaintiff's conduct was of such a nature as to interfere with the defendants' ability to discharge its governmental functions through the plaintiff's employment. Accordingly, the defendants' motion for summary judgment as to count one is denied.
Count Three — Indemnification
"[General Statutes §] 7-465 clearly states that governmental immunity will not be allowed as a defense in an indemnification claim, except that the municipality will not be liable for the wilful and wanton acts of its employees. Section 7-465 is an indemnity statute; it does not create liability. Under § 7-465, the municipality's duty to indemnify attaches only when the employee is found to be liable and the employee's actions do not fall within the exception for wilful and wanton acts." Myers v. Hartford, 84 Conn.App. 395, 400-01, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).
General Statutes § 7-465(a) provides in relevant part: "Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Governmental immunity shall not be a defense in any action brought under this section."
"`Section 7-465, although entitled [a]ssumption of liability for damage caused by employees, imposes no liability upon a municipality for breach of any statutory duty of its own . . . The obligation imposed by this statute is indemnification for the legal liability arising out of certain tortious conduct of the municipal employee . . . The municipality's liability is derivative.' (Citations omitted.) Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983). `A plaintiff bringing suit under . . . § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the [municipality's] liability by indemnification . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual.' (Citations omitted; emphasis in original; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). `While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance.' (Internal quotation marks omitted.) Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977). `A claim under § 7-465 [, therefore,] should contain two counts, one against the agent, and the second against the municipality in indemnification.' (Citation omitted.) Caruso v. Milford, 75 Conn.App. 95, 100 n. 5, 815 A.2d 167, cert. denied, 263 Conn. 907, 819 A.2d 838 (2003)." Violano v. Fernandez, Superior Court, judicial district of New Haven, Docket No. CV 01 0452897 (October 17, 2003, Licari, J.).
Section 7-465, further, requires that "[n]o action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section." (Emphasis added.)
The defendants allege in their motion for summary judgment that the plaintiff has failed to produce timely written notice to the defendant Town. The statute, however, does not require notice for civil rights actions. In Chesire v. Ledge Light Health District, Superior Court, judicial district of New London, Docket No. 543535 (May 5, 1998, Hurley, J.T.R.), the court denied a motion to dismiss based upon lack of notice under § 7-465, which the parties agreed had not been given. The court held that "the statute clearly does not require notice for a `civil rights' action or any action other than one for personal physical injury or property damage." Id. Further, the statutory language on notice is directed to actions " for personal physical injuries or damages to real or personal property."
As the motion for summary judgment has been denied as to count one, so must the motion be denied on this count for indemnification, count three.
Accordingly, summary judgment as to count three is denied.
Counts Four and Five — Employment Discrimination
"In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth the basic allocation of the burdens and order of presentation of proof in cases involving claims of employment discrimination. The plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination . . . In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination . . . If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy her burden of persuading the fact finder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Citations omitted; internal quotation marks omitted.) Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990); Gordon v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 365472 (May 22, 1998, Levin, J.); see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
"To establish a prima facie claim of disparate treatment under a facially neutral employment policy, it is necessary for the employee to produce evidence of four elements: (1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination . . . To meet the fourth prong of that prima facie showing, a female employee must establish that she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred . . . In other words, the female employee must show that in all material respects, she was similarly situated to a male employee, but was treated differently on the basis of her gender . . . For example, an employee could show that she and a male employee reported to the same supervisor . . . [were] subject to the same standards governing performance evaluation and discipline, and . . . engaged in [similar] conduct . . . without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it . . . It is important to note, however, that being similarly situated in all material respects does not require one to demonstrate disparate treatment of an identically situated employee . . . Employees need show only a situation sufficiently similar to [their own] to support at least a minimal inference that the difference of treatment may be attributable to discrimination." (Citations omitted; internal quotation marks omitted.) United Technologies Corp. v. Commission on Human Rights Opportunities, 72 Conn.App. 212, 225-26, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002).
In the present case, the plaintiff fails to establish that she, as a female, was treated differently from other employees. She alleges discrimination based upon gender, however specifically states in her deposition, that she cannot speak to whether she would have been treated differently if she were a man, and cannot speak to how defendant Gallo, as an officer and employee of the defendants Town and Police Department, treated other employees. The plaintiff, therefore, does not meet her burden of presenting evidence giving rise to an inference of unlawful discrimination. See Texas Dept of Community Affairs v. Burdine, supra, 450 U.S. 252-53.
Finally, the plaintiff claims in her objection to the defendants' motion for summary judgment, that the defendant only moves for summary judgment on the gender discrimination claim, and that the claim of retaliation, aiding and abetting and hostile work environment must stand. To sustain a valid claim for employment discrimination, however, the plaintiff must allege discriminatory conduct against a member of a protected class. Because the only protected class the plaintiff alleges is gender, she fails to meet her burden of proof in showing gender discrimination, so her other claims must necessarily fail.
Accordingly, the court grants summary judgment to counts four and five.
Count Seven — Intentional Infliction of Emotional Distress
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 706, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) O'Donnell v. Corte, supra, Superior Court, Docket No. CV 07 5012829.
"Only the most egregious conduct has been held to meet the extreme and outrageous element." (Internal quotation marks omitted). Wilk v. Abbot Terrace Health Center Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . 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." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, supra, 102 Conn.App. 706.
Addressing what type of activity could be considered extreme and outrageous, the court stated in Ferraro v. Stop Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV 96 0388031 (May 24, 2000, Silbert, J.), that "[s]urveillance by an insurance company to determine the validity of a claim was held sufficiently extreme and outrageous to withstand a motion [for summary judgment] in Bosco v. MacDonald, [Superior Court, judicial district of Waterbury, Docket No. 094078 (January 31, 1995, West, J.) (13 Conn. L. Rptr. 312)]." In Bosco, a private investigator, aware of the plaintiff's existing psychological disorders, followed and photographed the plaintiff for one month to determine the true extent of her injuries.
One incident included the private investigator following the plaintiff into K-Mart and photographing her in the lingerie department.
In the present case, the plaintiff appears to fail to present any evidence that the conduct of the defendants was extreme or outrageous. Specifically, the plaintiff fails to present any evidence that the defendant Gallo did anything extreme or outrageous in his meetings with her. Allegations that his behavior was insulting or resulted in hurt feelings, is insufficient. See Angiolillo v. Buckmiller, supra, 102 Conn.App. 706.
Further, placing surveillance on the plaintiff upon reported incidents of the plaintiff repeatedly giving the finger to her neighbor, was not extreme or outrageous. The plaintiff was driving down a public street when the conduct in question was observed by the police officers. Accordingly, because the conduct of the defendants does not appear to be extreme or outrageous, the court should grant summary judgment of count seven.