Opinion
No. HHB CV 06 5000993 S
September 12, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#117.25)
This matter is before the court concerning the defendants' motion for summary judgment. The parties presented oral argument at short calendar on July 16, 2007. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
This matter involves allegations of invasion of privacy by a police officer against a police chief and a police commissioner. In his two-count revised complaint in this matter (#104), the plaintiff, Scott Calderone, alleges that the defendants, Paul Fitzgerald and Robert Peters, separately stated publicly to a Hartford Courant (Courant) reporter that the plaintiff had engaged in a sexual relationship with the wife of a fellow employee and that he had been disciplined as a result. He alleges also that the defendants' statements were published in an article printed in the Courant on November 3, 2005, and were widely circulated. He further alleges that the defendants intentionally gave unreasonable and widespread publicity to the plaintiff's private life in a manner highly offensive to a reasonable person.
The plaintiff claims that, as a result of the defendants' actions, he suffered humiliation, embarrassment, and emotional distress. He seeks monetary damages from the defendants.
In their motion, the defendants contend that they are entitled to summary judgment because the plaintiff failed to exhaust his administrative remedies. In addition, they argue that the matters discussed with the press were legitimate matters of public concern and were not highly offensive.
The defendants presented copies of two newspaper articles which quote remarks made by the defendants about the disciplinary action which was taken concerning the plaintiff. Exhibit M, an article in the Courant, entitled "Police Officer's Rank Reduced," states that the plaintiff was disciplined for having sex with a junior officer's wife. Fitzgerald is quoted about the investigation which he conducted, concerning whether there was a relationship and if it was impacting the workplace. Fitzgerald stated that the plaintiff's conduct "concerned me, because any time there is this kind of relationship between people who know each other well, there is a potential for an argument in the workplace." The article states that Fitzgerald declined to identity the junior officer. No details about the alleged sexual relationship are discussed in the article. The article also states that the plaintiff accepted a demotion and suspension. In addition, Fitzgerald was quoted as having taken the precaution to schedule the plaintiff and the other officer to work on different shifts in order to minimize the chance of trouble. See Exhibit M. Peters was not quoted in the Courant article.
The defendants were granted permission by the court (Pittman, J.) to redact the name of the person with whom the plaintiff is alleged to have had a sexual relationship and the name of the coworker husband from documents submitted in support of their motion. See memorandum of decision on motion to seal document, dated June 25, 2007 (#120).
Peters, the chairman of the police commission, is quoted in a different article, published in The Berlin Citizen, entitled "Police Officer Demoted After Investigation." See Defendants' Exhibit N. This article also notes that the plaintiff was disciplined after an internal investigation by Fitzgerald confirmed that the plaintiff "was involved in a sexual relationship with the wife of a patrol officer." See Exhibit N. Peters was quoted as saying that the two officers did not confront each other. As in the Courant article, no details about the alleged sexual relationship were mentioned.
In his affidavit, Fitzgerald states that the alleged relationship between the plaintiff and the other officer's wife raised concerns by other officers concerning workplace safety. See Defendants' Exhibit E, paragraphs 12-13.
In his brief in opposition, the plaintiff argues that there was no administrative remedy to exhaust and that his judicial remedies are not preempted. In addition, he contends that the issues of (1) whether his sex life was a legitimate matter of public concern, and (2) whether the release of details thereof to the news media would be highly offensive to a reasonable person, deal with subjective matters which are inappropriate for summary judgment.
II STANDARD OF REVIEW CT Page 15399
"To succeed on a motion for summary judgment, [t]he movant must show 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 . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003)."[I]n 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[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "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 . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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.) Id., 586.
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). A preliminary showing of genuineness is required. See id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, only the defendants submitted exhibits. No objection was raised to any exhibit. Accordingly, the court deems such objections to have been waived. In the exercise of its discretion, the court has considered the exhibits which were presented.
III DISCUSSION A Exhaustion of Administrative Remedies
"The exhaustion of remedies doctrine is applied in a number of different situations; . . . including when an exclusive grievance or arbitration procedure is contained in a collective bargaining agreement and when an administrative appeal is taken. In both contexts, if a party has failed to avail itself of the arbitration or appeal process, the trial court is without subject matter jurisdiction to hear its claims." (Citation omitted; internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 253, 851 A.2d 1165 (2004).
"The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements." (Citation omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996).
"It is not true, however, . . . that simply because the claim alleged by the plaintiff arose out of the employment relationship, the plaintiff was required to resort to the grievance procedures of the collective bargaining agreement governing that relationship. Not every dispute that arises out of an employment relationship constitutes a grievable matter. Whether a dispute is grievable under a collective bargaining agreement depends on the proper interpretation of the agreement." Mendillo v. Board of Education, 246 Conn. 456, 475-76, 717 A.2d 1177 (1998). In Mendillo, the court found that "[t]he agreement covers, between the members of the bargaining unit and the board of education, what one would normally consider to be matters of compensation and conditions of employment, . . . and does not cover an intentional tort by one employee of the board against another. Although that alleged tortious conduct arose out of the employment relationship, it is not subject to any provision of the agreement the violation of which gives rise to a grievance." (Footnote omitted.) Id., 476-77.
The collective bargaining agreement between the Town of Berlin and the Berlin Police Union Local 1318, AFL-CIO and Council #15, AFSCME, AFL-CIO, which was submitted by the defendants as Exhibit P (CBA), provides, in Article XII, for a grievance procedure. Section 12.1 states that the purpose of the grievance procedure is "to settle employee grievances on as low an administrative level as is possible and practicable, so as to insure efficiency and employee morale." See CBA, § 12.1, p. 20.
Section 12.2 defines a grievance. "A grievance, for the purpose of this procedure, shall be considered to be an employee or UNION complaint concerned with: a) Discharge, termination, suspension or other disciplinary action; b) Interpretation and application of specific rule(s) and regulations and Policy(s) of the police department; 3) Matters relating to the interpretation and application of specific article(s) and section(s) of this agreement." See CBA, § 12.2, p. 20. The defendants argue that the plaintiff's allegations against them arise out of the discipline which he received for engaging in a relationship with another officer's wife. It is undisputed that, by settlement agreement, the plaintiff agreed to the imposition of discipline, including a demotion in rank, a suspension, and ineligibility to take a promotional examination for a specified period of time. See Defendants' Exhibit I (special order); Exhibit M (Courant article). The defendants assert that his allegations that they improperly provided information to the Courant regarding the police department's internal affairs investigation and the subsequent discipline are grievable events under the CBA, but the plaintiff never filed a grievance regarding the events which are the subject of his complaint before the court. They claim that, as a result of his failure to exhaust administrative remedies, the court lacks subject matter jurisdiction.
The use of the designation "3)" in the third subsection appears to be a typographical error; apparently "c)" should have appeared instead.
The court is unpersuaded. In Lucas v. Riordan, 62 Conn.App. 566, 771 A.2d 270 (2001), which discusses analogous circumstances, the plaintiff, a police officer, brought suit against two other police officers. The plaintiff claimed that the defendants "alleged to the chief of the department that the plaintiff was a thief. As a result of this allegation, the department conducted an intensive investigation, eventually concluding . . . that the plaintiff had not engaged in any wrongdoing. The plaintiff thereafter brought this action against the defendants . . . alleging slander, intentional infliction of emotional distress and negligent infliction of emotional distress . . . [T]he defendants moved to dismiss the plaintiff's entire complaint on the ground of lack of subject matter jurisdiction, alleging that because the plaintiff had failed to file a grievance under her collective bargaining agreement or to seek arbitration of the dispute, she had failed to exhaust her administrative remedies, thus depriving the court of jurisdiction over her complaint." Id., 568.
There, the collective bargaining agreement defined a grievance in terms which are very similar to those in the CBA at issue here: "a. Definition of a grievance shall be as follows: 1. Discharged, suspension or other disciplinary action or any other reduction in grade or rank. 2. Charge of favoritism or discrimination. 3. Interpretation and application of rules and regulations and policies of the Police Department. 4. Matters relating to the interpretation and application of the articles and sections in this agreement." (Internal quotation marks omitted.) Lucas v. Riordan, supra, 62 Conn.App. 569 n. 3.
The Appellate Court concluded that the complaint did not involve a grievance against the police department, which took no disciplinary action against her. See Id., 569-70. The court also concluded that "her complaint makes no mention of a dispute concerning the application and interpretation either of department policies or of the collective bargaining agreement." Id., 570. The court stated, "[t]he controversy here centers around whether the defendants defamed the plaintiff and, either intentionally or negligently, inflicted emotional distress upon her. That the parties are all police officers employed by the same municipality does not change the nature of the controversy. It is also irrelevant to this case that the department has in place a grievance procedure by which employees may have grievances concerning their employment adjudicated without resort to the courts. The controversy in this case is not of that kind, and thus the grievance procedures do not apply to it." Id.
Similarly, here, the plaintiff's allegations against the defendants raise no dispute about the disciplinary action to which he agreed. Likewise, his complaint against the defendants does not concern the interpretation and application of specific rules, regulations or policies of the police department; or matters "relating to the interpretation and application of specific article(s) and section(s)" of the CBA. See CBA, Defendants' Exhibit P, § 12.2, p. 20. The defendants have cited none. As in Lucas v. Riordan, supra, the plaintiff's complaint here is not addressed to the police department; rather, as discussed above, it is directed to two persons in their individual capacities. Also, as in Lucas v. Riordan, supra, the plaintiff has alleged tortious conduct, the invasion of privacy.
The defendants' reliance on the trial court decision in Paul v. City of New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 95 0378709 (October 31, 1996, Zoarski, J.T.R.), affirmed, 48 Conn.App. 385, 710 A.2d 798 (1998), is misplaced. There, the plaintiff, a police officer, alleged violation of his due process rights, under the state and federal constitutions and 42 U.S.C. § 1983. Among the defendants he served were the chief of police and members of the board of police commissioners (board), in their individual capacities. In his complaint, he alleged that the chief brought charges against the plaintiff, which became the subject of a disciplinary proceeding. The plaintiff also alleged that, after an initial hearing was continued, information was released by the chief, the board, or their agents, servants and employees; and police internal affairs information, which was not subject to release pursuant to the Connecticut Freedom of Information Act (FOIA), was published in a newspaper article. The plaintiff alleged that he was deprived of a fair and impartial closed hearing before the board. See Paul v. City of New Haven, supra, Superior Court, Docket No. CV 95 0378709.
Among the arguments raised by the defendants in their summary judgment motion there was their claim that the plaintiff had failed to exhaust his administrative remedies. In response, the plaintiff argued that exhaustion of his administrative remedies "would be futile because the disciplinary proceeding against him was tainted by the newspaper article." Id.
The trial court noted that "[g]ranting the defendants' motion for summary judgment on the basis that the plaintiff failed to exhaust his administrative remedies, however, only goes to his claims for relief available through the administrative process." Id. As to the allegation that the police chief, the board, or employee, under their control, were responsible for the release of information not subject to release under FOIA, the trial court stated that "at first glance, there appears to be a genuine issue of material fact raised by the plaintiff's complaint, militating against granting the defendants' motion for summary judgment." Id. However, the trial court concluded that "because the plaintiff's complaint does not allege a policy or custom that resulted in a deprivation of a constitutional right, the defendants' motion for summary judgment is granted because the plaintiff is not entitled to litigate his § 1983 claim under the pleadings." Id. The trial court did not grant summary judgment as to the release of information claim based on a failure to exhaust administrative remedies. Rather, summary judgment was "granted on two grounds: (1) that the plaintiff failed to exhaust his administrative remedies in challenging the disciplinary action taken against him by the [board]; and (2) the plaintiff failed to state a cause of action under 42 U.S.C. § 1983 because the complaint fails to allege a policy or custom that resulted in a deprivation of a constitutional right." Id.
Here, as noted, the plaintiff's allegations against the defendants do not challenge the disciplinary action taken against him. Rather, as in Lucas v. Riordan, supra, the plaintiff has alleged tortious conduct by persons in their individual capacities; here, the tort of invasion of privacy is alleged. The CBA's definition of a grievance does not cover the allegations at issue here. Accordingly, the court does not lack subject matter jurisdiction over this matter.
B Invasion of Privacy
"[T]he law of privacy developed not as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth in the 3 Restatement (Second) of Torts, § 652A as follows: § 652B-unreasonable intrusion upon the seclusion of another; § 652C — appropriation of the other's name or likeness; § 652D — unreasonable publicity given to the other's private life; and § 652E-publicity that unreasonably places the other in a false light before the public." (Citation omitted; footnote omitted; internal quotation marks omitted.) Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983).
"Section 652D of the Restatement (Second) of Torts defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that `(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.' By its terms, therefore, the tort action provides a private remedy to implement a public policy that closely approximates the public policy embodied in § 1-19(b)(2) of the FOIA." Perkins v. Freedom Of Information Commission, 228 Conn. 158, 172, 635 A.2d 783 (1993). "[T]he Restatement recognizes that there is no invasion of a right to privacy when the subject matter of the publicity is of legitimate public concern. 3 Restatement (Second) [Restatement], Torts § 652D, comment (d) (1977)." Perkins v. Freedom of Information Commission, supra, 228 Conn. 173. In Director, Retirement Benefits Services Div., Office of the Comptroller v. Freedom Of Information Commission, 256 Conn. 764, 775, 775 A.2d 981 (2001), the Supreme Court reaffirmed that "we adhere to the two-prong standard set forth in Perkins when determining what constitutes an invasion of privacy."
There is a presumption that disclosures relating to public agencies are legitimate matters of public concern, but that presumption is not conclusive. In Perkins, the Supreme Court cited General Statutes § 1-19(b)(2), which was transferred to § 1-210(b)(2), and which now provides, "(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of: . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy." The Supreme Court stated that, "[t]he legislature has determined that disclosures relating to the employees of public agencies are presumptively legitimate matters of public concern." Perkins v. Freedom Of Information Commission, supra, 228 Conn. 174.
"[P]ublic employees are properly subject to increased scrutiny regarding matters that affect their job performance as a result of the public nature of their employment." Director, Retirement and Benefits Services Div., Office of the Comptroller v. Freedom Of Information Commission, supra, 256 Conn. 778. "[W]here a public official's private life does not concern or implicate his job as a public official, such information is not a legitimate matter of public concern." id., 777.
Concerning the application of FOIA, the Supreme Court stated, "in the absence of other persuasive evidence, the [Freedom of Information C]ommission is entitled to presume that the public has a legitimate interest in the integrity of . . . police departments and in disclosure of how such departments investigate and evaluate citizen complaints of police misconduct." (Internal quotation marks omitted.) Department of Public Safety v. Freedom Of Information Commission, 242 Conn. 79, 86, 698 A.2d 803 (1997). Here, a citizen complaint of police misconduct is not at issue.
"[B]ecause of the public interest in the fairness of police investigations, there is a general presumption in favor of disclosure, even for investigative reports that exonerate police officers from the charges that have been brought against them." Id., 88. However, as noted above, the presumption is not conclusive. See id., citing Perkins v. Freedom Of Information Commission, supra, 228 Conn. 174.
The second investigative report at issue in Department of Public Safety v. Freedom Of Information Commission, supra, 242 Conn. 79, involved "a citizen's claim that [a state] trooper had engaged in an inappropriate relationship with the wife of the complainant . . ." Id., 81-82. `The complaint in that case did not focus on the conduct of the trooper's official business, and the investigative report documented intimate relationships between various parties, including observations about the trooper's marriage and friendships . . . The trial court found that the public had no legitimate interest in disclosure of a report describing the details of the trooper's personal and marital relationships." (Footnote omitted.) Id., 89. The Supreme Court found that "the trial court reasonably concluded that the contents of the report were not of legitimate public interest." Id., 90.
The differences between the situation here and that in Department of Public Safety v. Freedom Of Information Commission, supra, are clear. In contrast, the investigation here concerned an alleged relationship which had a direct bearing on the functioning of the police department, since it concerned an alleged sexual relationship between a police officer and another police officer's wife. The existence of such a relationship raised employee concerns about workplace safety. It is obvious that such a relationship may impact the operation of a police department, which is of legitimate concern to the public.
Contrary to the plaintiff's argument, the question of whether the alleged disclosures relate to a matter of legitimate concern to the public does not involve a subjective determination. The public has a legitimate interest in the functioning of police departments, including the investigative process which is utilized and the bases on which employee disciplinary action is imposed. See Rocque v. Freedom Of Information Commission, 255 Conn. 651, 664-66, 774 A.2d 957 (2001) (evaluation of department of environmental protection's investigation concerning alleged sexual harassment was legitimate public concern).
There is no genuine issue of material fact concerning the subject matter of the alleged disclosures. In his brief, page 1, the plaintiff acknowledges that the facts about what the defendants said to the press are not in dispute. As a matter of law, the court finds that the subject matter of the alleged disclosures here, in which the defendants disclosed that the plaintiff was disciplined as a result of a sexual relationship which he had with another police officer's wife, was of legitimate concern to the public.
Having determined that the disclosures alleged here pertained to matters of legitimate concern to the public, there is no need to consider the other prong of the standard, as to whether the disclosures would be highly offensive to a reasonable person. See Perkins v. Freedom of Information Commission, supra, 228 Conn. 172. "[O]nce it is established that the matter is of public concern, the invasion of privacy claim must fail." Department of Children Families v. Freedom of Information Commission, 48 Conn.App. 467, 473, 710 A.2d 1378, cert. denied, 245 Conn. 911, 718 A.2d 16 (1998).
CONCLUSION
For the reasons stated above, the defendants' motion for summary judgment is granted.
It is so ordered.