Opinion
Civil No. 3:05-cv-872(CFD).
March 30, 2007
RULING ON MOTION FOR SUMMARY JUDGMENT
I. Introduction
The plaintiff, Bryce Linskey, a police officer in the Police Department of the City of Bristol, brought this action under 42 U.S.C. § 1983 against his employer, the City of Bristol, and three of his commanding officers, Police Chief John DiVenere, Captain Daniel Britt, and Lieutenant Mark Moskowitz. The single count in Linskey's complaint alleges that the defendants violated his First Amendment freedom of speech by retaliating against him for protected speech. The defendants have filed a motion for summary judgment.
II. Background
The following facts are taken from the parties' Local Rule 56(a) statements, summary judgment briefs and other evidence submitted by the parties. They are undisputed unless otherwise indicated.
On July 3, 2004, the Bristol Police Department received a call alerting them that a possibly suicidal and armed man was barricaded at the Sheila Court apartment complex in the City of Bristol. The Police Department responded by dispatching a substantial number of officers, including a negotiator, and after three hours the suspect surrendered peacefully to the police. Moskowitz was the shift commander in charge of the incident.
At the time of the Sheila Court incident, Linskey was a member and "team leader" of Bristol's Emergency Response Team ("ERT"). According to Linskey, he was also acting ERT team commander in the absence of the regular team commander. Members of the Bristol ERT had special training and access to special equipment to respond to emergency situations. The ERT was not activated to respond to the Sheila Court incident, but some of their equipment was used by Bristol police officers who were not members of the ERT.
After learning about the incident, Linskey, who was off-duty at the time, went to the police station to investigate. In Linskey's view, he was acting pursuant to his duties as the acting ERT commander and as a member of the Bristol Police Department Safety Committee (the "Safety Committee"). At the police station, Linskey entered the dispatch area and questioned civilian dispatchers and police officers to learn more about the incident and the decision not to activate the ERT. Linskey violated department policy by entering the dispatch area under these circumstances. Linskey also expressed his view at the police station that Bristol Police Department "General Orders" had been violated by not involving the ERT.
Within the following week, Chief DiVenere authorized Lieutenant Moskowitz to conduct an internal investigation of Linskey's behavior following the Sheila Court incident. According to Linskey, the Bristol mayor ordered DiVenere not to pursue the internal investigation, but nonetheless Moskowitz conducted the investigation, issued his findings and recommended that Linskey be terminated. A disciplinary hearing was then held and, on November 10, 2004, Chief DiVenere issued Linskey a "coaching and counseling memorandum" censuring him for failing to handle his concerns about department affairs through the chain of command. The memorandum continued "your failure to follow the chain of command was disrespectful to Lieutenant Moskowitz and reflected poorly on the Department." Linskey was also removed as a team leader for the ERT.
It appears that there was longstanding personal animosity between Linskey and Moskowitz.
On July 23, 2004, after the internal investigation against him had commenced, but before its conclusion, Linskey filed a union grievance on behalf of the ERT challenging the decision not to activate the ERT to respond to the Sheila Court incident. The grievance asserted that the General Orders were violated. The union decided to pursue this grievance and requested, as remedy, that Bristol "provid[e] officers with all necessary equipment and personnel to safely and adequately responded [sic] to incidents . . . [and] compensate all members of the ERT team four (4) hours of EXT (overtime)." The Bristol Board of Police Commissioners (the "Board") heard Linskey's grievance and directed DiVenere to review the Sheila Court incident and report his findings. On February 7, 2005, DiVenere issued a report finding that it would not have been appropriate to activate the ERT, but that department equipment was issued inappropriately to untrained officers. The Board accepted DiVenere's report and denied the grievance. On August 11, 2004, the Safety Committee concluded that the ERT should have been activated.
III. Summary Judgment Standard
In a summary judgment motion, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law.See Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 5(c)); accord Miner v. Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Where, as in this case, the nonmoving party has the burden of proof at trial, the moving party need only demonstrate that there is a lack of evidence to support the nonmovant's claim. Celotex, 477 U.S. at 323-25; Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998). Once the movant has established a prima facie case demonstrating the lack of a genuine issue of material fact, the nonmoving party must provide enough evidence to support a jury verdict in its favor. Anderson, 477 U.S. at 248; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). A plaintiff may not rely on conclusory statements or mere contentions that the evidence in support of summary judgment is not credible. Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Similarly, a plaintiff, as the nonmovant, may not rest "upon the mere allegations or denials" in its complaint to demonstrate the existence of a genuine issue of material fact. Fed.R.Civ.P. 56(e). Therefore, after discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate.Celotex, 477 U.S. at 323. When addressing a motion for summary judgment, the Court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992). Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Maffucci, 923 F.2d at 982.
IV. The Defendants' Motion for Summary Judgment
The defendants argue that they are entitled to summary judgment because (1) Linskey's speech was not constitutionally protected; (2) Linskey's interest in speaking out was outweighed by the Police Department's interest in efficiently running its operation; (3) Linskey was not subjected to an adverse job action; and (4) the individual defendants are entitled to summary judgment.
Linskey claims that he was retaliated against for his exercise of his right to freedom of speech during his initial investigation of the Sheila Court incident on July 3, 2004. However, "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 1960 (2006). In Garcetti a supervising district attorney was disciplined for writing a memorandum recommending dismissal of a case on the basis of purported government misconduct. Id. The United States Supreme Court found that the district attorney was not protected by the First Amendment in that instance because he "spoke as a prosecutor fulfilling a responsibility to advise his superiors how best to proceed with a pending case" and not as a citizen. Id. at 1960. The Supreme Court found that "[e]mployers have heightened interests in controlling speech made by an employee in his or her professional capacity . . . [and that s]upervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission." Id. The Court suggested that in determining whether speech is uttered pursuant to employment "[t]he proper inquiry is a practical one" and that whether views are expressed in the office, concern the subject matter of employment, and whether the subject speech is required by a formal job description are nondispositive. Id. at 1959, 1962.
Linskey could also conceivably claim that he was retaliated against for the Security Committee inquiry and his union grievance. To the extent that Linskey's claims are also based on these incidents, the Court's analysis is no different.
"In Garcetti, Ceballos [the prosecutor] was acting pursuant to his official duties because he was performing activities required to fulfill his duties." Williams v. Dallas Indep. School Dist., ___ F.3d ___, No. 05-11486, 2007 WL 614212, at *4 (5th Cir. Feb. 13, 2007). Cf. Pagani v. Meriden Bd. of Educ., No. 3:05-CV-01115 (JCH), 2006 WL 3791405, at *4 (D. Conn. Dec. 19, 2006) (holding that teacher who filed report with the Connecticut Department of Children and Families "was not speaking as a citizen but as a teacher performing a duty imposed on him [by law] as a result of his position"); Battle v. Bd. of Regents, 468 F.3d 755 (11th Cir. 2006) (university employee's report alleging improprieties in handling of financial aid funds made pursuant to employment responsibilities and DOE guidelines requiring reporting fraud). However, an employee may still be acting within the course of performing his job when he speaks, even if that expression is not demanded of him. Williams v. Dallas Indep. School Dist., ___ F.3d ___, 2007 WL 614212, at *5 (holding that public school athletic director was performing job when he wrote to office manager and principal to express concerns about the handling of school funds). See also Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir. 2006) (prison guard's internal complaints documenting superiors' failure to respond to inmates' sexually explicit behavior not protected speech, but complaints to elected official and California Inspector General made as citizen and thus protected);Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006) (police officer who made negative remarks to supervisors about plan to reorganize department spoke in capacity as public employee); Sweeney v. Leone, No. 3:05cv871 (PCD), 2006 WL 2246372, at *8 (D. Conn. Jul. 31, 2006) (holding that Bristol police dispatcher's calls "to request help in the overloaded dispatch center . . . were made pursuant to his official duties as dispatch supervisor of the shift").
Here Linskey admitted during his deposition that when he went to the police station to investigate the Sheila Court incident he was "wearing two hats." First, as "Acting Team Commander" he was "looking to see if there was an issue for the Emergency Response Team." Second, as a member of the police Safety Committee, Linskey was investigating to determine whether the Safety Committee needed to "look into" to the incident further. In response to the defendants' interrogatories, Linskey again indicated that he "was acting as the ERT Commander and as a member of the Bristol P.D. Safety Committee" when he investigated the incident. Linskey also admitted that he filed a union grievance, in part, to protest his own loss of the overtime pay he would have received had the ERT been activated. This motive confirms that Linskey's earlier investigation of the Sheila Court incident was conducted as an aggrieved employee and not as a concerned citizen.
Linskey's concern about his lost overtime pay suggests another reason his speech is not protected by the First Amendment. Even where a public employee speaks outside of the course of performing his job, that speech is not protected by the first amendment unless it implicates a matter of public concern. See Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684 (1983) ("[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest . . . a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."). "[T]he fact that an employee's speech touches on matters of public concern will not render that speech protected where the employee's motive for the speech is private and personal." Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994) (holding that law professor's "personal interest" in advocating reform of drug laws was not "private motive" where professor did not face termination for possession of illegal drugs and was not trying to evade drug testing program).
In his opposition to the defendants' motion for summary judgment, Linskey now argues that inquiring into a decision to activate the ERT was not part of his job duties. However, Linskey has not presented any evidence to support this position. Further, Linskey was not merely a member of the ERT; he was a team leader, acting team commander, and a member of the Safety Committee. Inquiring into the appropriate use of a police unit is clearly an important responsibility of the head of that unit. Accordingly, Linskey has not raised a genuine issue of material fact that his investigation of the Sheila Court incident was not conducted in his professional capacity.
Because the Court finds that Linskey's investigation was not protected speech, the Court need not consider the defendants' other arguments.
V. Conclusion
The defendants' motion for summary judgment [Dkt. # 22] is GRANTED.
SO ORDERED.