Matthews v. Department of Public Safety

Full title: Andrew N. MATTHEWS v. DEPARTMENT OF PUBLIC SAFETY et al.

Court: Superior Court of Connecticut

Date published: Feb 7, 2019

HHDCV116019959S (Conn. Super. Ct. Feb. 7, 2019)

Opinion

HHDCV116019959S

02-07-2019

Andrew N. MATTHEWS v. DEPARTMENT OF PUBLIC SAFETY et al.

Cesar A. Noble, J.

UNPUBLISHED OPINION

OPINION

Cesar A. Noble, J.

In December 2006 the New York State Police (NYSP) released a report¹ (NYSP Report) of its independent evaluation of the operations, policies and procedures of the Internal Affairs unit (IA), and the Bureau of Professional Standards and Support unit (Professional Standards) of the defendant, the Department of Public Safety (DPS).² Concurrently, the Office of the Attorney General (OAG), which had conducted a parallel investigation, released its own report (OAG Report) covering the same topics.³ Both the NYSP Report and the OAG Report were extremely critical of IA. Their findings described an ineffective internal affairs process, the predilection of the IA to ignore or excuse employee misconduct, improper interference and influence by command staff of IA investigations that effectively shielded employees from investigation, discipline and even possible criminal charges, as well as a pervasive view of citizen complaints as nuisances rather than legitimate concerns warranting review by IA. The plaintiff, Andrew Matthews, was one of several DPS members whose complaints precipitated the OAG’s investigation and report and which caused then DPS Commissioner Leonard Boyle to request the independent appraisal of the DPS by the NYSP. In general, the plaintiff identified significant issues of malfeasance and nonfeasance on the part of the IA including, but not limited to, potential crimes, favoritism, driving while intoxicated, family violence and misuse of state funds. The plaintiff asserts in the present action that he suffered retaliation as a consequence of his whistleblowing.

1 The NYSP report is formally titled the "Report on the Evaluation of the Connecticut Department of Public Safety Internal Affairs Program."

2 The defendant is now known as the Department of Emergency Services and Public Protection.

3 The OAG report is formally titled the "Report of the Office of the Attorney General on the Investigation Conducted pursuant to Section 4-61dd, Report on the Evaluation of the Connecticut Department of Public Safety Internal Affairs Program, Case Evaluations on Whistleblower Complaints."

The plaintiff originally commenced this claim pursuant to General Statutes § 31-51q in state court by complaint served on February 5, 2010. See Matthews v. Department of Public Safety, Superior Court, judicial district of New London, Docket No. CV-10-6002910-S. That complaint also asserted a cause of action under 42 U.S.C. § 1983 against Commissioner Boyle. The defendants in that matter removed the case to federal court on March 4, 2010. On October 8, 2010, the court dismissed the claim against Commissioner Boyle and declined to exercise supplemental jurisdiction over the § 31-51q claim against the defendant, noting that the plaintiff "may pursue this claim in state court if he wishes to do so." Matthews v. Connecticut, Department of Public Safety, Federal District Court, No. 3:10CV325 (MRK), 2010 WL 3984645, at *9 (D.Conn. October 8, 2010). The court directed the clerk to enter judgment for Commissioner Boyle and close the case, which was done. Id. The plaintiff’s subsequent motion for reconsideration was denied by the District Court by ruling dated January 26, 2011. The plaintiff thereafter commenced this action by service of process on the defendant on March 14, 2011. To the extent the § 31-51q claim before this court was dismissed by the federal district court, the parties have stipulated that, pursuant to General Statutes § 52-592, ⁴ the accidental failure of suit statute, the operative date for purposes of the statute of limitations would be February 5, 2007, due to filing of this action within one year of such purported dismissal.

4 Section 52-592(a) provides in relevant part that "[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ... because the action has been dismissed for want of jurisdiction ... the plaintiff ... may commence a new action ... for the same cause at any time within one year after the determination of the original action ..."

The operative complaint is dated November 8, 2017.⁵ Therein, the plaintiff alleges that the defendant violated § 31-51q by disciplining him for exercising his rights under sections 3, 4 or 14 of article first of the Connecticut state constitution to speak out on matters of public concern and to petition the government for the redress of grievances. In short, the plaintiff claims that the defendant retaliated against him on account of this whistleblowing by subjecting him to discipline. The action was tried to the court over sixteen days between October 3, 2017, and November 1, 2017. The court heard testimony from twenty-two witnesses, received approximately 200 full exhibits and a stipulation to facts.

5 The complaint was amended subsequent to trial to conform to the evidence.

The specific constitutionally protected conduct alleged in the complaint involves the plaintiff’s right to free speech on matters of public concern and his right to petition his government for redress of grievances, specifically complaints and testimony to the NYSP and OAG, the filing of federal complaints alleging whistleblower retaliation in 2006 and 2007, several grievances and public testimony before the General Assembly in 2008 urging changes to the statutes for the protection of whistleblowers. The specific acts of discipline to which the plaintiff alleges he was subjected are "the failure to transfer him to the [DPS] Forensic Science Laboratory, ⁶ the failure to promote the [p]laintiff, the loss of overtime opportunities, the failure to assign office space and duties, and improper handling and processing of a ‘C’ complaint, which did not rise to the level of an [‘IA’] complaint, and improperly and gratuitously publicizing a false statement that [the] [p]laintiff was the subject of an [i]nternal [a]ffairs complaint for providing false testimony in Court and the failing to provide timely notifications to [p]laintiff regarding the ‘IA’/‘C’ complaint." (Footnote added.) Compl. ¶ 196.

6 The DPS Forensic Science Laboratory will hereinafter be referred to as the "Forensic Laboratory."

The plaintiff’s claims of damages include significant emotional distress based on fear for his physical safety and because of the defendant’s alleged threatening, ostracizing, harassing and monitoring of him. The emotional distress allegedly manifested itself in physical symptoms and depression. The plaintiff’s relationship with his girlfriend was allegedly disrupted and he had to take a medical leave of absence for a month in March 2007. The plaintiff claims loss of income as a result of the loss of promotional opportunities. At the request of the parties, closing argument was delayed until June 18, 2018.⁷

7 The parties graciously extended the 120-day time limitation to render a decision imposed by General Statutes § 51-183b.

The court must decide whether the plaintiff has proven that the exercise of his constitutional rights was a substantial motivating factor in the imposition of employment action that subjected him to "discipline" as that word is employed in § 31-51q. Because the court finds that he has not, judgment enters in favor of the defendant.

STANDARD

As the trier of fact, the court must weigh the evidence and determine the credibility of witnesses. Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). "[I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony." (Emphasis omitted; internal quotation marks omitted.) Palkimas v. Fernandez, 159 Conn.App. 129, 133, 122 A.3d 704 (2015). The burden of proof in civil actions is on the plaintiff to prove the essential elements of his cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, 1089, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). The court, having carefully reviewed and considered all the testimony, exhibits and evidence, makes the following factual findings.

FINDINGS OF FACT

The plaintiff’s history within DPS predating the actionable conduct is a necessary predicate to the consideration of his claims in the operative complaint. The plaintiff is a college graduate with a master’s degree in forensic sciences and a 2008 graduate of law school. He was sworn in as a state police trooper in July 1998. After serving in general patrol, the plaintiff became a detective in the Major Crimes unit in May 2000 at an early stage in his career. Between that date and 2002, the plaintiff was transferred from Troop C in Tolland to Troop E⁸ and, ultimately, to Troop D.

8 While the plaintiff was assigned to Troop E, the commanding officer of the eastern district of Major Crimes was-then Lieutenant Michael Guillot. Guillot was later promoted to captain and will be referred to as such throughout this opinion.

In 2002, the plaintiff filed an internal complaint with Barbara Lynch, an affirmative action officer with the defendant, in which he alleged harassment, ostracism and being intentionally subject to a potentially life threatening situation by his fellow employees while assigned to Major Crimes. In the view of the plaintiff his "eager-to-learn attitude, attempts to produce superior investigations" and his volunteering of personal time at the Forensic Laboratory "upset senior detectives in the unit." The harassment complained of by the plaintiff included, but certainly was not limited to, conduct directed to letting him know he was the "low man on the totem pole," items missing from his desk, spitballs on his monitor, garbage on his desk, wheels broken from his chair and fingerprint dust powder on his telephone. The plaintiff was told that he did not belong in the unit because he did not have enough time on the job and he came to feel that no one in the unit wanted to work with him or even speak to him. The plaintiff also complained of members of the unit leaving for lunch without him. The harassment also included a derogatory comment once being directed to him on one occasion because of his Christian faith.

In his internal complaint, the plaintiff complained about oral counseling reduced to written memorandum regarding his interview techniques, which he refused to sign. His internal complaint also asserted that this seemed like the beginning of what would be progressive discipline and that the memo might have been occasioned by rumors that he was going to take action against members of Troop E. The plaintiff concluded in this complaint that he had been wrongly labeled as a "problem employee" and that his career would be jeopardized if he did not document what had occurred. The impact of this conduct created an immense amount of stress and anxiety in his life which he described as unbearable and resulted in difficulty sleeping and concentrating adversely effected his first marriage which ended in divorce. In the plaintiff’s view, the lower command staff failed to adequately resolve and address his internal complaint because the only consequence was a recommendation that the unit be monitored for inappropriate behavior.

In July 2004, the plaintiff was promoted to sergeant and transferred to IA. He became immediately uncomfortable because Captain Guillot, who had previously commanded the eastern district division of Major Crimes, was then the commanding officer of Professional Standards, to which IA reported. Also assigned to IA were Lieutenant Wack, Sergeant Terra, then-Sergeant Michael Spellman, later promoted to lieutenant, and Sergeant Festa. IA was located in the Meriden state police complex, in which the Forensic Laboratory as well as the Accreditation and Inspections units were also located. Lieutenant Maryanne Daly and Sergeant Theresa Freeman worked in Accreditation and Lieutenant Pagoni was assigned to Inspections. The plaintiff became friendly with Lieutenant Daly, Sergeant Freeman and Lieutenant Pagoni during his time in IA.

The plaintiff encountered two areas of concern while assigned to IA. The first was a combination of malfeasance and nonfeasance within IA. In one case, the plaintiff was disturbed by the manner in which a trooper suffering from problems with alcoholism was treated by the defendant. The defendant and IA received reports of repeated suicidal ideation and drunk driving in a state police car which, while investigated, were covered up by DPS personnel including a Lieutenant William Podgorski. Captain Guillot ultimately admitted that he directed an investigating sergeant to delete or change all references in one report to the suicide threats. In another case, allegations that a trooper had smoked marijuana while in Jamaica on his honeymoon were, in the plaintiff’s view, investigated over-zealously with surveillance and a search of his garbage (Kenney case). Captain Guillot and Lieutenant Wack were alleged to have directed Lieutenant Spellman, who participated in the investigation, not to document the investigation in the official file but to keep most of the documentation and material in a separate file.⁹ In another case an allegation of sexual misconduct by a trooper in Maine was never investigated by IA.

9 Ultimately, both the NYSP and OAG reports contained the conclusion that IA had inadequately investigated additional allegations in this case of potential larcenous behavior, a collecting of seized driver’s licenses, claimed money laundering and a physical threat to his ex-wife.

Concurrently, the plaintiff became dissatisfied with Captain Guillot. In one instance, the plaintiff felt "humiliated and ashamed" by Captain Guillot when, although the plaintiff had just completed a lengthy case, Captain Guillot implied in front of others that the plaintiff was not pulling his weight. Moreover, Captain Guillot initially represented to the plaintiff that he would support his application for a transfer to fill an opening in the Major Crimes eastern district and then reconsidered. The plaintiff reported that in a May 20, 2005 meeting with Lieutenant Wack, his immediate supervisor, that Captain Guillot relayed that he had reconsidered the transfer because the plaintiff didn’t have any time on the road as a supervisor and further felt he was not ready. Captain Guillot also brought up the plaintiff’s prior experience with the eastern district of Major Crimes and felt that the people there would "eat him up."

The plaintiff later reported in a May 26, 2005 letter to then-Major Robert Duffy, ¹⁰ Captain Guillot’s superior, Colonel Edward Lynch, commanding officer of the defendant, and Commissioner Boyle, that he could not "believe a [s]tate [p]olice [c]aptain, would bring [him] into his office without any documentation or just cause to question [his] abilities, character and strength as a [s]ergeant, with [his] immediate supervisor [Lieutenant Wack]." The plaintiff added that, even though Captain Guillot told him that if after their discussion the plaintiff felt confident he could do the job he should apply for it, he felt that Captain Guillot, the captain, was attempting to "detour" him from applying for the position as a result of the past incidents outlined in his internal complaint to Barbara Lynch. Ultimately, Captain Guillot recommended but did not "highly recommend" the plaintiff for the position in the eastern district of Major Crimes. The plaintiff became angry and upset at that meeting and left work without returning that day. The court credits the testimony of Lieutenant Spellman that the plaintiff stormed out of the office slamming doors, that the plaintiff stopped speaking to his co-workers, came to work later and left earlier than normal. The May 26, 2005 letter references the plaintiff’s awareness "of the great difficulty and courage it takes to come forward with issues that may cause embarrassment to our agency." The plaintiff ended that complaint with the comment that once "Captain Guillot and [Lieutenant] Wack are notified of this letter I believe I will no longer be in a comfortable work environment." Curiously, the May 26, 2005 complaint contained no reference whatsoever regarding the plaintiff’s concerns about inappropriate and unethical IA practices and procedures.

10 Duffy is now a lieutenant colonel and will be referred to as such throughout this opinion.

Lieutenant Colonel Duffy met with the plaintiff to discuss his complaint on or about May 26, 2005. The meeting lasted for over five hours. The plaintiff brought with him a binder that contained documents related to his complaint about his treatment in Major Crimes, including the affirmative action investigation following his internal complaint to Barbara Lynch, supporting documents and potentially exhibits. No documentation was included pertaining to the plaintiff’s questioning of IA practices. To the extent that the plaintiff discussed any inappropriate IA practices it was limited to his concern that his hostile work environment concerns had not led to an IA investigation. Lieutenant Colonel Duffy was then abruptly transferred to the western district of Major Crimes. The plaintiff received a call to pick up the binder, which he did.

Following the plaintiff’s meeting with Lieutenant Colonel Duffy, he met with Colonel Lynch, the chief uniformed officer in the Connecticut State Police (CSP), and Major Christopher Arciero on or about June 16, 2005, to discuss his relationship with Captain Guillot. Colonel Lynch asked if the plaintiff wanted to have a "man to man conversation" with Captain Guillot. The plaintiff, however, who had already been speaking with, Attorney John R. Williams, his legal counsel, told Colonel Lynch that he needed to think about it and planned on consulting Attorney Williams about his options. The plaintiff wrote to Colonel Lynch on June 20, 2005, declining the opportunity to meet with Captain Guillot and indicated he would be filing a complaint with the Office of Commission on Human Rights and Opportunities (CHRO). The plaintiff wrote that he felt that the incidents and conversations between Captain Guillot and him had been a direct result of a past complaint of harassment. The plaintiff further wrote that "I believe there is no other choice, but to protect myself from any further retaliation by utilizing the formal legal process." After the plaintiff wrote the letter, Colonel Lynch called him at IA and asked the plaintiff if he wanted a transfer out of IA, but the plaintiff replied that he did not want to. In September 2005, Major Arciero requested that he be given the opportunity to review the binder that the plaintiff had provided to Lieutenant Colonel Duffy and the plaintiff informed him that he would have to check with Attorney Williams. The plaintiff never provided Major Arciero with the binder.

Thereafter, the plaintiff met with Lieutenant Pagoni who now commanded of the recently formed Risk Management unit which was tasked with identifying and eliminating potential liability and other risks to the CSP. Risk Management was to be located in building # 6 in the Meriden complex in which a number of units were located including where the plaintiff’s office in IA was previously located.¹¹ Lieutenant Pagoni asked if the plaintiff was interested in transferring to Risk Management. By this time the plaintiff knew Lieutenant Pagoni fairly well, he had spent time with him as well as Lieutenant Daly and Sergeant Freeman and never felt threatened by any of them. The plaintiff indicated to Lieutenant Pagoni he needed to talk to Attorney Williams to seek his legal guidance before responding.

11 Also located in the Meriden complex were the Forensic Laboratory, Inspections, which was previously headed by Lieutenant Pagoni, and Accreditation in which Lieutenant Daly and Sergeant Freeman were employed.

The plaintiff was ultimately transferred, involuntarily, from IA to Risk Management in July 2005 with a physical assignment in CSP headquarters, which is located in Middletown, but reporting to Lieutenant Pagoni, who was located in building # 6, which is located in Meriden. In response, by affidavit dated August 22, 2005, the plaintiff filed a complaint with the CHRO, which asserted that he suffered discrimination resulting in personal humiliation and substantial emotional distress at the hands of Captain Guillot as a result of his religious beliefs. This was in spite of the fact that at the time the plaintiff had received the one comment about his religious faith he did not consider it to be an act of discrimination. Nevertheless, on the advice of counsel, the plaintiff based his complaint on the grounds of religious discrimination. The complaint was filed by the plaintiff despite the fact that the plaintiff told NYSP personnel on November 18, 2005, that his morale rose to a level of feeling liberated and happy at Risk Management. A grievance was filed by the CSP Union (Union) on the plaintiff’s behalf in August 2005 that claimed that the motive for his reassignment to Risk Management, which is located at the CSP headquarters, was to discipline him and requested the relief of having him reassigned and transferred back to his previous position and duties.

Previously, the plaintiff met with members of the whistleblower unit of the OAG in June 2005 and discussed both his perception of a hostile work environment with Captain Guillot and his complaints of Captain Guillot using his authority within the unit to influence the outcome of cases. The plaintiff was informed that a referral was going to be made to the Auditors of Public Accounts (APA) pursuant to General Statutes § 4-61dd, the so-called whistleblower statute. This statute provides that any person having knowledge of, inter alia, "corruption, unethical practices, violation of state laws ... mismanagement ... abuse of authority or danger to the public safety occurring in any state department or agency" may report it to the [APA]. § 4-61dd(a). The statute requires the APA to review the complaint and report their findings and recommendations to the Attorney General who thereafter may, with the concurrence of the APA, conduct an investigation. Id. Relevantly, § 4-61dd(e)(1) provides that "[n]o state officer or employee ... shall take or threaten to take any personnel action against the state ... employee ... in retaliation for (A) such employee’s ... disclosure of information to (I) an employee of the [APA] or the Attorney General." The statute further provides employees subject to such retaliation with a cause of action under General Statutes § 31-51m¹² following exhaustion of administrative remedies with the CHRO. § 4-66dd(e)(2)(B)(3)(B). Significant to this decision, is the creation of a rebuttable presumption that any personnel action taken or threatened against the whistleblower within two years¹³ after the first transmittal of facts and information relative to complained of conduct or practices is in reaction to the employee’s disclosure. § 4-66dd(e)(4).

12 Section 31-51m(b) provides in relevant part that "[n]o employer shall discharge, discipline or otherwise penalize any employee because (1) the employee ... reports ... a violation or a suspected violation of any state or federal law or regulation." Section 31-51m(c) provides any employee who is "discharged, disciplined or otherwise penalized" in violation of the prohibition in subsection (b) with a right of action in the superior court.

13 The statute as it existed in August 2006 limited the presumption to personnel action taken within one year of the transmittal of the whistle blowing activity the time was expanded to two years in 2011. Public Acts 2011, No. 11-48, § 17.

On August 25, 2005, the plaintiff returned to the OAG and then followed up again on September 14, 2005. In general, the plaintiff provided information related to cover up and corruption within IA. One such case was the Kenney case.¹⁴ The court finds that this speech was protected under § § 4-66dd, 31-51m and 31-51q.

14 Ultimately, disciplinary charges were sustained against Kenney.

According to the plaintiff he received a telephone call from David LeBlanc, then-president of the Union, who asked him whether IA maintained a secret satellite file on the Kenney case. The plaintiff confirmed that one was being kept. Thereafter on September 20, 2005, the plaintiff was present at a well-attended Union meeting the subject of which included a discussion of the Kenney case. Concerns were raised at the meeting that exculpatory information was excluded from the actual IA file. At the meeting it was disclosed that someone from IA had come forward and disclosed that exculpatory information wasn’t documented or disclosed. The plaintiff then announced to the packed room that he was the one that disclosed the information to the Union. The plaintiff also added that he had gone to the OAG. As a consequence of his disclosure, the plaintiff came to be negatively perceived by his former coworkers in IA.

The day after the plaintiff’s announcement at the Union meeting that he was the whistleblower he was called by Major Arciero, commander of Labor Relations unit, which oversaw Professional Standards and, at the time, IA, to come to a meeting. Major Arciero had previously met with members of IA including the plaintiff on September 9, 2005, as information about IA practices was becoming known. Major Arciero indicated at that time that if anyone had problems they should go directly to him. At the meeting with the plaintiff, Major Arciero asked why the plaintiff had not gone to him with concerns related to IA, to which the plaintiff stated that he needed to go to people that he thought could protect him. The plaintiff testified at trial that Major Arciero then said he would do anything to protect the agency from being smeared.

On the morning of September 23, 2005, the plaintiff found a piece of paper on his desk with the word "cancer" written on it. The plaintiff testified that he immediately felt concerned for his safety because he felt that the "cancer" note denoted something that needed to be excised and realized that people would be hostile to him. The "cancer" note was to serve the plaintiff as a factual predicate for an asserted fear for his physical safety until he became president of the Union in July 2010. The plaintiff immediately reported the "cancer" note to Commissioner Boyle’s executive assistant, Andrew Crumbie, and requested a criminal investigation. The plaintiff believed the investigation, which was initiated as an IA investigation, was hampered by mishandling of evidence and delay. The investigation was taken over by the NYSP. The author of the note was never identified.

After finding the "cancer" note, the plaintiff did not return to CSP headquarters, nor did he collect his personal belongings or IA materials from files on which he had been working.¹⁵ The plaintiff self-relocated his working location to the Meriden complex with Lieutenant Pagoni because he no longer felt safe at CSP headquarters and felt that Meriden provided a "safe, secured location" for him to work. He was also in close proximity to Sergeant Freeman and Lieutenant Daly who had been, and were, supportive of him. The plaintiff was not investigated or disciplined in any manner for unilaterally reassigning himself from CSP headquarters to Meriden. He remained there until June 2006.

15 Despite a subsequent complaint in August 2006 about the plaintiff’s abandonment of original evidence, photograph negatives and audio tapes related to IA investigations, he was never subjected to an IA investigation or discipline as a consequence.

In October 2005, LeBlanc wrote Commissioner Boyle to request an independent investigation of allegations leveled against IA. Commissioner Boyle and Colonel Lynch concurred that a full, fair and thorough investigation was warranted based on the allegations of inappropriate command influence and improper investigations and solicited the assistance of the NYSP who agreed to conduct an investigation concurrently with the OAG. Between November 2005 and March 2006, the NYSP conducted over 200 interviews in the process of investigating sixty-four cases of alleged misconduct including both whistleblower complaints and cases independently developed by the NYSP. The investigation covered allegations of widespread systemic mismanagement, favoritism, abuse of authority, manipulation of investigations, interference with the operations of IA and violations of law. The plaintiff was interviewed six times in connection with the NYSP investigation and described cases of CSP conduct involving fraud, larceny, falsifying public records, sexual assault, domestic violence involving children, operation of a police cruiser while under the influence of drugs or alcohol and undocumented investigations. Most, but not all, of the concerns raised by the plaintiff were validated as a result of the NYSP investigation.¹⁶ The plaintiff was also interviewed by the OAG and testified under oath on July 24, 2006, that the reason he came forward with whistleblowing information was because of his involuntary transfer from IA to Risk Management.

16 The Kenney case, which the plaintiff felt was over-zealously conducted, was, in fact characterized by the NYSP to have been an example of favoritism because the investigation was inadequate, disorganized and subject to inappropriate command influence which permitted unduly favorable treatment to the subject of the investigation.

In April 2006, following a meeting with Colonel Lynch, the plaintiff and Lieutenant Pagoni were informed that their new work location with Risk Management would be CSP headquarters. The plaintiff complained that this reassignment was inappropriate because he believed he would be subjected to possible threats or intimidation by members of the defendant who disapproved of his decision to report unethical and illegal behavior. A grievance was filed by the Union on the plaintiff’s behalf as a result of the transfer, in which the plaintiff stated that his assignment to CSP headquarters caused him concern for his safety and security. Additionally, the plaintiff filed another complaint with the CHRO claiming the transfer was in retaliation for his whistleblowing. The plaintiff also wrote to then-Attorney General Richard Blumenthal on June 6, 2006, seeking protection from the retribution manifested in the reassignment of Risk Management to CSP headquarters, which he was receiving as a direct result of providing information to the OAG and the NYSP. The letter caused the OAG to conduct an investigation to determine whether the plaintiff was subjected to retaliation.

The plaintiff returned to CSP headquarters where he reported until November 2006. During this time he felt unsafe and uncomfortable because people "really were not happy" with him and he generally felt he worked in a hostile work environment. This claim was based in part because of denial of access to the commissioner’s suite in CSP headquarters. The plaintiff testified that he had previously had a swipe key card that permitted him access to his mailbox located in the commissioner’s suite. The plaintiff testified that the swipe card was deactivated in an effort to ensure that he did not have access to information that he might provide to the OAG and resulted in him being unable to perform his job. The court does not find this testimony credible because of the plaintiff’s contradictory prior deposition testimony, and that of Lieutenant Pagoni, that the plaintiff had never possessed a swipe card and had no regular business in the suite. Throughout this period, no acts or even threats of violence against him occurred and he did not feel harassed although he did feel isolated.

In January or February 2006, the plaintiff ran for Union president.¹⁷ During the campaign he announced to the entire Union that he had provided whistleblowing information to the OAG. In pursuit of this office, the plaintiff issued a two-page letter to the Union membership that detailed his efforts to combat unethical behavior culminating in his coming forward to the Union and OAG with information. In the letter, the plaintiff invited Union members to meet with him for information purposes on two separate dates at the auditorium of the Connecticut Police Academy. The plaintiff held additional informational meetings in late February 2006 that were also advertised to the Union members. As the plaintiff admitted on cross examination, he held these meetings at a time when he was claiming he was concerned for his physical safety. In spite of this fear he informed the entire Union membership exactly where he would be and at what time. When asked if he had fear for his safety at these meetings he replied that he was armed and had his handcuffs. The court finds that this advance disclosure of his location is inconsistent with any real fear for his personal safety. This expressed concern for his safety, a common refrain over the following years, is not found to be credible by the court.

17 While this campaign was unsuccessful, the plaintiff was elected secretary of the Union and took office in July 2006.

Beginning in late summer to early fall members of the defendant began to anticipate the release of the NYSP and OAG Reports. On November 21, 2006, Steven Reif, then-president of the Union, wrote to Commissioner Boyle to request that the plaintiff be assigned to a work location not located within the CSP headquarters. The expressed rationale was that the plaintiff was particularly at risk for retaliation "which could even be physical in nature." Reif continued by writing that "[i]t is very clear that [the plaintiff] is at real risk of retaliation from a department member who may be aware of, or suspect, the contents of [the soon to be released NYSP Report]." The letter referenced the "cancer" note.

It was unique for the DPS commissioner to be involved in the assignment of any trooper’s work location. Nevertheless, Commissioner Boyle acquiesced by letter in which he noted that since the discovery of the note on the plaintiff’s desk in September 2005 there had not been any report of any incidents of any threats or anything else to suggest that the plaintiff was at risk. Commissioner Boyle wrote that "[a]bsent specific factual information underlying your request, the agency is unable to properly address this matter further." Commissioner Boyle nevertheless agreed to permit the plaintiff to work away from the CSP headquarters. The decision was made for a number of reasons, which included the seriousness of the allegations, a desire to make sure that the plaintiff was not uncomfortable and in order to ensure there were no such incidents. Commissioner Boyle also commented that the plaintiff had the option of filing a transfer request if he desired a permanent geographic change of duty station. The plaintiff was thus released to work at a location other than CSP headquarters. Rather than asking his immediate supervisor, Lieutenant Pagoni, for a work location, the plaintiff elected to take the extraordinary step of working out of his police cruiser. He continued to do so through January 2009, albeit with frequent visits to the Union Hall, at least initially. He testified that throughout the period from 2006 to 2007, he was so concerned for his safety that he would regularly sleep in a bullet proof vest with two weapons by his side.

The NYSP Report and the OAG Report were released to the public on December 4, 2006. Both reports offered a scathing critique of IA, found systemic problems within IA that included ineffective process resulting in failing to properly document information the failure to diligently follow and exhaust leads resulting in the compromise of investigations; the predilection of the unit to ignore or excuse employee misconduct; improper command staff interference with and influence of IA investigations in ways that effectively shielded employees from appropriate investigation, discipline and even possible criminal charges. The reports contained the conclusion that the current IA structure, practices and protocols were seriously deficient and provided more than sixty detailed recommendations for correcting the identified problems.

It was noted in the report that internal complaints from DPS employees were the catalyst for Commissioner Boyle’s request to the NYSP and the OAG’s parallel whistleblower investigation.¹⁸ The plaintiff was one of the employees who had come forward and in fact was so associated with the investigation that he was present at the press conference on December 4, 2006, when the reports were released. The investigation by the NYSP involved the review of sixty-four cases of alleged misconduct, nineteen of which were selected for inclusion in the report. The plaintiff was the disclosing source for four of the reported investigations. He was also either the subject of one investigation, in which the charges were not sustained; the victim in an investigation of the "cancer" note incident and a witness in a third. The subjects of the four reported cases in which the plaintiff was the complaining source included: a case involving a trooper suffering from alcohol abuse and suicidal ideations who engaged in drunk driving that once reported was not documented and was covered up by his supervisors; the failure to investigate a claim of improper sexual behavior by an off duty trooper; an investigation of a trooper in the process of divorce whose wife alleged verbal abuse, threatening that including holding a gun to her head, violations of protective orders and acts of violence, which were all dismissed as manufactured and improperly investigated; and a command decision not to investigate an overtime coordinator for receiving gifts to preferentially assign overtime to those who gave her gifts.

18 The OAG Report largely mirrored the NYSP Report.

At the time of these investigations, Captain Guillot was the commander of Professional Standards, which IA reported to. While not identified by name, his actions were the subject of significant criticism. Lieutenant Podgorski, later the chief of staff to Colonel Lynch, was implicated as part of the cover up in the matter of the trooper suffering from alcoholism and suicidal ideation. Moreover, members of the command staff were also implicated in several the cases relative to the exertion of improper influence on investigations. Some commanding officers resigned while others continued working in the CSP.

The numerous recommendations made by the NYSP included restructuring command staff; changing recruitment, selection and training methods, and establishing different policies for investigation of complaints against DPS personnel. The defendant responded to each of the recommendations including securing the approval of the General Assembly to create a new lieutenant colonel position to command the IA. The defendant established what the plaintiff called "A New Day Policy" and ordered further investigations into several of the cases identified by the NYSP reports. These investigations were held at the Brainard Field offices of the defendant and some addressed possible criminal violations.

The plaintiff testified credibly that following the release of the NYSP and OAG reports the reaction to his whistleblowing, which contributed to the reports, was largely unfavorable. Some members of the CSP were upset because of "New Day Policy" required strict enforcement of certain rules and imposed increased ranges of discipline for violations of those rules. Command staff was displeased because instances of improper command influence of IA investigations were publicly disclosed. Moreover, members of the CSP were simply unhappy at the negative press associated with the release of the reports.

On December 7, 2006, the plaintiff wrote to Attorney General Blumenthal, claiming that he had suffered retaliation as a result of his whistleblowing activity. He represented that he believed his personal safety might be at risk especially following the release of the reports and cited the comments of Reif in his November 21, 2006 letter to Commissioner Boyle as proof of the physical danger to him. Further, he expressed his belief that the risk of danger was even greater given that the reports were clearly damaging to several high ranking officials. The plaintiff raised what he felt were intimidation tactics in the defendant’s response to his CHRO whistleblowing complaint, which he characterized as being unfair to him, and demanded protection commensurate with his status as a whistleblower. The plaintiff ended the letter with a threat to release documents demonstrating a lack of vigorous protection by the OAG to the media if he didn’t receive an immediate response. The OAG responded to the plaintiff’s claim of retaliation with an investigation and the issuance of a report in May 2007, which is discussed later in this opinion.

In January 2007, Reif wrote to Commissioner Boyle again and requested a meeting before the plaintiff returned to his assigned work location within the CSP headquarters in light of the potential implications for the plaintiff’s personal safety caused by the release of the reports. The letter did not identify any actual threats or acts of violence that had been directed towards the plaintiff. Commissioner Boyle discussed the matter with Reif on February 2, 2007, at which time Reif made a verbal request that the plaintiff be placed on paid administrative leave.¹⁹ Commissioner Boyle denied the request for paid administrative leave but granted Reif’s request that the plaintiff need not to report to work at the CSP headquarters and assigned the plaintiff to a work space at Brainard Field. Commissioner Boyle again questioned the "unspecified concerns" regarding the plaintiff’s perception that his personal safety would be endangered by working at CSP headquarters.

19 The plaintiff testified that he was surprised that a request for paid administrative was made on his behalf because he had never endorsed such a request. The court does not find this testimony credible. John Kolosky, the Union’s director of political affairs, assumed the responsibility of representing the plaintiff in his communications with DPS command. On February 20, 2007, Kolosky wrote to Commissioner Boyle and clarified "for the record that the request for administrative [leave] for [the plaintiff] was a joint request on behalf of [the plaintiff] and the Union." (Emphasis added.)

The plaintiff did not report to Brainard Field. Commissioner Boyle apparently was unaware that the Brainard Field facility was being used by other members of the CSP to conduct interviews on matters, potentially criminal in nature, stemming from the NYSP report. The plaintiff accordingly objected to being assigned to Brainard Field as his work location on this basis. The plaintiff’s objection was brought to Commissioner Boyle’s attention by Kolosky, who again acquiesced in a physical temporary work location assignment for the plaintiff, this time to the Forensic Laboratory. Commissioner Boyle reiterated his concern about the unspecified concerns that the plaintiff perceived his personal safety was endangered and reserved all management rights. Commissioner Boyle left his position as DPS commissioner on March 1, 2007.

Lieutenant David Rice was, at that time, commander of the Division of Scientific Services (Scientific Services) under whose command was the Forensic Laboratory. Lieutenant Rice was informally notified by Commissioner Boyle that he was to get the plaintiff an office at the lab. Lieutenant Rice asked Lieutenant Podgorski if this was an assignment to Forensic Laboratory duties or just for office placement and was told the latter. This made a difference to Lieutenant Rice who had both secure and non-secure work space available. Only personnel assigned to the division had access to the secure area which required a key card for access. Because the plaintiff was not being assigned to his division, Lieutenant Rice selected an office in the administrative area that was at the time being used as a mailroom and had a soda machine. The space had been previously used by a Forensic Laboratory examiner as an office and had both a telephone and internet hookup with a door that closed. Lieutenant Rice intended to remove the mailroom and soda machine then renovate the office space. He would also have been able to make arrangements for the plaintiff to have access to the lunch room located in the secure area of the Forensic Laboratory.

On February 28, 2007, the plaintiff visited the Forensic Laboratory to inspect his new assigned work space and became angry and upset that he was not being assigned to a work space in the secure area, which required key card access, and insisted that he required an office in the secure area. Lieutenant Rice’s inquiries as to why this was necessary were met by the general statement that Lieutenant Rice should have been told, that he was a lieutenant and knew what the plaintiff has been through and finally that he was not going to relive everything again. Lieutenant Rice asked the plaintiff several times what he was afraid of. Lieutenant Rice testified that the plaintiff "wouldn’t tell me and I said it didn’t sit right with me because you know he’s got a uniform on. He’s a state cop. He’s got a badge and a gun. Not that we’re fearless, but I mean we’re used to a certain amount of risk in our job and I said that it didn’t sit right with me that he kept telling me he was afraid of something but wouldn’t tell me what it was."²⁰ The plaintiff then left the Meriden complex, drove to the Office of Protection and Advocacy, complained that he wasn’t being protected and then went to the OAG whistleblower unit where he complained about retaliation and that he felt abandoned and then walked out.

20 This testimony echoes the plaintiff’s earlier testimony as to why he was not concerned for his safety while engaged with Union activities.

The plaintiff did not return to work and took a leave of absence for the month of March 2007 as a consequence of what he termed "depression and perceived isolation." The plaintiff testified he felt he was up against the entire government and that no one was going to step in and tell the agency to give him a safe place to work. He further testified that his depression manifested itself in suicidal ideation including placing his service weapon in his mouth.

On March 7, 2007, John Danaher became the commissioner of DPS.²¹ On March 9, 2007, Kolosky wrote Commissioner Danaher informing him that the plaintiff’s assignment to the Forensic Laboratory in Meriden turned out to be unacceptable and requested that the plaintiff be placed on paid administrative leave until all pending investigations were completed and his safety from reprisal could be assured. Commissioner Danaher denied the request for paid administrative leave in a letter to Kolosky, which noted that it was a result of Kolosky’s February 20, 2007 letter to Commissioner Boyle advising that the plaintiff wanted his work location to be at the Forensic Laboratory that an office was made available there. Commissioner Danaher’s letter provided that the "agency has repeatedly attempted to accommodate both [the plaintiff’s] and/or the Union’s unspecified concerns regarding [the plaintiff’s] safety." Commenting that neither the Union nor the plaintiff had provided the agency with any information that would support his expressed safety concerns, Commissioner Danaher added that there had been no indication of any threat or other form of adverse action directed at the plaintiff. Indeed, the plaintiff himself testified at trial that apart from the "cancer" note he was unable to say that anyone had threatened him with harm and he had not, as of this time, reported any harassment of any nature to commanding officers or the defendant. Commissioner Danaher’s letter also requested that the Union transmit any specific information relative to the plaintiff’s safety immediately to the defendant.

21 Danaher is now a Judge of the Superior Court. For purpose of context he will be referred to as Commissioner Danaher. He was himself a whistleblower when he previously worked with the United States Attorney’s Office and, at the time, suspected that he had suffered retaliatory conduct.

In late March 2007 the Union called Commissioner Danaher’s chief of staff, Lieutenant Podgorski, and informed him that the plaintiff was returning to work from sick leave. Commissioner Danaher asked Lieutenant Podgorski to check with Deputy Commissioner Linda Yelmini, who had an expertise in labor relations, as to the plaintiff’s assignment upon return. His normal physical location was theoretically CSP headquarters, but they were aware that he had been looking for another location. Deputy Commissioner Yelmini’s response was that they needed to treat the plaintiff as they would any other employee and thus his assignment should remain at CSP headquarters. Lieutenant Podgorski then advised the plaintiff in writing that upon his return form sick leave he was directed to report to the CSP headquarters and that his failure to report to there, his assigned work location, would result in administrative action. The plaintiff disobeyed the order and continued to work out of his police cruiser. No administrative action was taken against him as a consequence of this disobedience.

On April 13, 2007, Kolosky responded in writing to Commissioner Danaher’s request for specific information regarding threats to the plaintiff and reiterated the "cancer" note incident from September 2005. In his view, the fact that no one was found responsible for the note meant that whoever left it might still work in the CSP headquarters and could pose a potential threat. Kolosky referenced the work location assignments to Brainard Field and the Forensic Laboratory as acts of intimidation without addressing the fact that the plaintiff was not forced to work, and did not work, at either site. This "intimidation," in Kolosky’s view, potentially exposed the plaintiff to "possible threat or physical harm." He reiterated his request that the plaintiff be placed on administrative leave until his safety from reprisal could be assured.

By letter dated May 8, 2007, Commissioner Danaher denied Kolosky’s request for paid administrative leave for the plaintiff. He reiterated that despite repeated requests for specific facts the CSP had not been provided with any information to support claims of an unsafe work environment. Commissioner Danaher concluded that the plaintiff’s assignment was CSP headquarters, which is located at 1111 Country Club Road, Middletown and ordered him to report to work there. The plaintiff also disobeyed this order and unilaterally decided to continue to work out of his police cruiser.

In early May 2007 the OAG released a report entitled "Report on the Allegations of Retaliation against Sgt. Andrew Matthews of the Connecticut State Police" (Retaliation Report).²² The Retaliation Report, which concluded that there was "substantial evidence of harassment, isolation and ostracism against" the plaintiff, contains two significant limitations. The first is that three CSP managers alleged to have retaliated against the plaintiff, Colonel Lynch, Major Arciero and Lieutenant Podgorski, declined to be interviewed on advice of counsel because of an existing claim against them by the plaintiff. Second, the whistleblower statute which controlled the OAG’s findings, § 4-61dd, contains, as mentioned, a presumption of retaliation if any personnel action taken or threatened against a whistleblowing employee occurs within a specified period after the whistleblower’s disclosure.²³ § 4-61dd(4). No such presumption exists in the context of the present action. In fact, a letter by Commissioner Danaher dated May 30, 2007, identified these limitations as a basis for not being persuaded that the Retaliation Report’s conclusion were well founded.

22 The Retaliation Report was admitted into evidence in the present case not for the truth of the matters asserted therein, that is, the court did not accept it as evidence for the facts reported, but rather for the effect on the CSP, especially Commissioner Danaher.

23 See footnote 14 of this opinion.

The report was extremely critical of the CSP and contained the conclusion that there was "substantial evidence of harassment, isolation, and ostracism against [the plaintiff]."²⁴ The issue examined by the report was whether there had been retaliation against the plaintiff as a result of his cooperation with the OAG and the APA. The Retaliation Report noted the "rebuttable presumption that personnel action taken or threatened against a whistleblower is in retaliation for whistleblower activities." (Internal quotation marks omitted.) While the Retaliation Report contains the unequivocally correct observation that "[r]eporting malfeasance should be encouraged and even rewarded," that is not the standard applicable under § 31-51q which must inform the court’s analysis

24 The Retaliation Report received media coverage that was very critical of the CSP and was perceived as such by Commissioner Danaher and other members of command.

The OAG viewed the plaintiff’s work place reassignment within Risk Management to the CSP headquarters in 2006 as retaliation because of the perceived motivating intent to watch him. The OAG also viewed the reassignment of the plaintiff to a work location at Brainard Field as retaliation because it posed a safety risk to him by virtue of the criminal task force investigation at that location of the cases brought to light in the NYSP report. It also viewed as retaliation the plaintiff’s assignment to the office space in "the mail room located adjacent to the lobby of the Forensic Laboratory in Meriden." The first two actions deemed retaliatory occurred outside of the applicable statute of limitations but the court notes that the assignment to Brainard Field was immediately withdrawn when the issue of the task force investigations were raised.

The assignment to the space in the Forensic Laboratory was to a work space that had previously served as an office and involved the removal of the mail room and soda machine. These accommodations were either ignored or not made known to the OAG. The Retaliation Report criticized the CSP for not having reassigned the plaintiff to the Forensic Laboratory. It found this assignment to be attractive because the plaintiff had a master’s degree in forensic science, had a relationship with people in the Forensic Laboratory, had previously completed an unpaid internship there and Lieutenant Rice had work that could be assigned to the plaintiff. In the estimation of the author of the Retaliation Report, assigning the plaintiff to the Forensic Laboratory would have addressed his security concerns and apprehension about being isolated. Critical to this court’s ultimate holding is the hypocrisy present in the plaintiff’s claim that he was subjected to discipline because he would have been subject to physical danger and isolation in the proposed office space in the Forensic Laboratory, yet he resorted to refuge by working out of his cruiser by the side of the highway, where he was afforded no protection whatsoever and was even more isolated.

What is also glaringly absent from the Retaliation Report is any mention of a request by the plaintiff for a transfer of work assignment, rather than a work location placement, to the Forensic Laboratory. The transfer to the Forensic Laboratory appears as a recurring theme over the next year. The plaintiff admitted, however, and the court finds, that no formal administrative application was ever made by him or on his behalf for a transfer to the Forensic Laboratory. Furthermore, there was no credible testimony at all suggestive of any formal administrative requests for a work location transfer at any time from February to May 2007.

The Retaliation Report made a number of recommendations including establishing a small, senior group to work with the plaintiff to determine a "mutually satisfactory, appropriate location and/or assignment"; that time taken off by the plaintiff due to his perception that he was subjected to a hostile work environment should be credited as paid administrative leave; that the CSP adopt policies protecting whistleblowers and that Lieutenant Podgorski and Major Arciero, who had been named as respondents by the plaintiff in a CHRO complaint, be removed from any further involvement with the plaintiff.

On May 9, 2007, the plaintiff filed suit in federal court against, inter alia, Attorney General Blumenthal, Colonel Lynch, Major Arciero and Lieutenant Podgorski, in which he claimed he was retaliated against as a consequence of his whistleblowing activity. The claimed retaliatory action included his transfer to Risk Management. The complaint alleged that he had commenced his whistleblowing activity regarding IA misconduct as of June 2005 despite having testified under oath on July 24, 2006, to the OAG and having signed two whistleblower retaliation complaints in June 15, 2006, and November 23, 2007, that he had commenced whistleblowing in August 2005. Moreover, the plaintiff was obliged to admit at trial that in the course of a little over one year he alleged in various complaints that the transfer to Risk Management was in retaliation for his complaints of religious discrimination; that it was the catalyst to having provided the information to the OAG and, in a stunning contradiction, that it was in retaliation for providing information to the OAG. He explained that he did this on the advice of counsel.

On May 23, 2007, the plaintiff faxed a notice to everyone in the CSP that he would be hosting a study group for an upcoming sergeant’s exam on May 24th, May 29th and May 31st, 2007, from 5 to 8 p.m. those evenings. This notice, which announced the plaintiff’s precise location, came at a time when he worked out of his police cruiser and testified that he slept in a bulletproof vest with two weapons by his side due to his great concern for his physical safety. The plaintiff also listed his personal cell phone number on the notice. On May 25, 2007, Kolosky again wrote to Commissioner Danaher requesting "in the strongest terms that [the plaintiff] immediately be placed on paid administrative leave until such time that this matter is resolved."

By letter dated May 30, 2007, Commissioner Danaher replied to Kolosky that he remained open to learning from Kolosky exactly what precise circumstances were causing the plaintiff to be fearful. He also expressed his openness to learning what work assignment the plaintiff was seeking. No specific threats of violence or any issue related to the plaintiff’s safety other than the "cancer" note were ever communicated to the CSP or articulated at trial.

On June 19, 2007, the Union held a press conference demanding action on the recommendations contained in the Retaliation Report. Commissioner Danaher then invited Kolosky and Attorney Norman Pattis, then the plaintiff’s attorney, to a meeting to discuss issues raised in the Retaliation Report. Commissioner Danaher noted that possible future work assignments and locations were to be discussed but that any constructive discussion on the issue would require an articulation of the specific bases for the plaintiff’s alleged fear that he was at risk of physical harm.

The plaintiff continued to work out of his police cruiser throughout the spring, summer and fall of 2007 while carrying out his Risk Management duties. These duties, and others he performed, required him to visit and inspect other troops. The CSP offered the plaintiff an office in the Plants and Maintenance building, while still being assigned to Risk Management duties, which the plaintiff rejected. Although the location was secure and Lieutenant Daly and Sergeant Freeman, with whom the plaintiff was friendly, worked there in Accreditation, the plaintiff declined this as work space because he felt assignment to the Plants and Maintenance building was a form of punishment for people who were outcasts. There was no testimony before the court throughout the entirety of the trial that any other trooper within the CSP was ever afforded the opportunity to decline a work assignment simply because they didn’t want it.

On October 5, 2007 a meeting was held to discuss a number of locations where the plaintiff could potentially work, which included the OAG’s office, located at 55 Elm Street, Hartford; the provision of an office in the secure area of the Forensic Laboratory; the Union Hall and finally the plaintiff’s police cruiser. The OAG’s office was rejected by Commissioner Danaher because it was not a DPS location. Similarly, the Union Hall was not appropriate because only the Union president was permitted to work out of this location.

Commissioner Danaher also refused to assign the plaintiff to the Forensic Laboratory. Commissioner Danaher was informed by Lieutenant Rice in September 2007 that while an assignment of the plaintiff’s physical location to the secure Forensic Laboratory enclosure was within the defendant’s authority, it was not recommended by the American Society of Crime Laboratory Directors (ASCLD).²⁵ Assigning the plaintiff to the Forensic Laboratory would have to be documented so as to avoid violation of ASCLD accreditation and consideration would need to be given to whether this was good practice. It is further undisputed that such a placement would violate the defendant’s laboratory policy. Commissioner Danaher requested clarification from the executive director of ASCLD and the Laboratory Accreditation Board (LAB), which is an organization within ASCLD. The ASCLD/LAB executive director replied that while ASCLD/LAB did not dictate who may be assigned to laboratory space, ASCLD was clear in its requirements that the laboratory have procedures to avoid contamination of evidence. The executive director concluded his February 6, 2008 reply with the observation that to "assign office space to an individual who has no forensic laboratory responsibility or function, within the functional area of the forensic laboratory would be quite inconsistent with the objectives of the accreditation program." The court finds that the accreditation of the Forensic Laboratory of the Connecticut State Police is a rational and non-retaliatory concern of its commissioner. The court. finds that the refusal to assign the plaintiff work space performing Risk Management duties within the Forensic Laboratory was not a decision substantially, or even minimally, motivated as retaliation for the plaintiff’s protected speech.

25 Lieutenant Rice testified that ASCLD is a national institution that accredits forensic laboratories.

The plaintiff asserts that the failure of the defendant, specifically Commissioner Danaher, to assign him to forensic duties within the Forensic Laboratory constitutes retaliatory discipline. The court credits the testimony of Lieutenant Rice that he could have found administrative work for the plaintiff within the unit because he was understaffed. The court does not find credible the plaintiff’s claim that his interest in such a transfer was ever expressed to the defendant or Commissioner Danaher. The plaintiff admitted that he didn’t submit a written transfer request to work the Forensic Laboratory and no one acting on his behalf could submit such a request in writing. The court credits the testimony of Attorney Daniel Livingston, a labor attorney who represented the Union and was present at the October 5, 2007 meeting. Attorney Livingston testified that the Union was always clear that it was not making a demand on the plaintiff’s behalf to be assigned forensic duties because the Union did not have a right to do so. The plaintiff did have a contractual right to a safe workplace and the Union was always clear that this is what was being requested. While Attorney Livingston believed it was clear to all that the plaintiff would accept such an assignment, he was adamant that the Union did not make this request on his behalf.

Commissioner Danaher testified, credibly, that he never understood the plaintiff, or the Union, to be requesting a change of duty assignment before, at or after this meeting. He emphasized that at no time did the plaintiff formally request a transfer from Risk Management to an assignment within the Forensic Laboratory performing forensic duties. The plaintiff conceded this same point. Consistent with Attorney Livingston’s testimony, Commissioner Danaher testified credibly that no one ever asked for another assignment on the plaintiff’s behalf. It is true that the Retaliation Report issued in early May 2007 contained the suggestion that "perhaps a transfer [to the Forensic Laboratory] rather than just a relocation could have been arranged." This passing comment in the OAG’s twenty-one-page report, however, is not properly understood as an expression of the plaintiff’s active desire for a transfer of assignment to the Forensic Laboratory. Moreover, Commissioner Danaher testified credibly that absent a formal request from the plaintiff, he would never have reassigned him to duties outside of Risk Management. This was because of his concern that the plaintiff would claim retaliation. Commissioner Danaher also responded to the question of why he felt it necessary to "fill out a bureaucratic form for a transfer request under the circumstances," to which he responded that he believed that the "procedures would have to be followed if you were to be transferred. They’d have to be whatever the procedure were should have been followed."

What Commissioner Danaher did do was take steps to address the plaintiff’s safety concerns by building out office space specifically for him at Brainard Field with an anticipated start date of November 1, 2007. This was secure space that required key card access and internal offices for Risk Management that were outfitted with locking doors. The office space allotted to the plaintiff had a separate lock. Commissioner Danaher directed Lieutenant McLean, his chief of staff, and Lieutenant Colonel Terenzi, the lieutenant in charge of the largest DPS tenant in the Brainard Field facility, to personally visit the facility prior to the start of the plaintiff’s work at that location to remind all personnel to comport themselves in a professional manner with all of their coworkers. This was done because the plaintiff’s representatives had informed Commissioner Danaher that there were people in the CSP who believed that the plaintiff had some association with a whistleblower complaint concerning the Aviation unit that was located at Brainard Field.²⁶

26 The plaintiffs’ representatives acknowledged that no actual threat had been made against him.

Additionally, on the day before the plaintiff was to start work at Brainard Field, Commissioner Danaher spoke with the plaintiff’s attorney, Attorney Kim Coleman, an associate in the office of Attorneys Williams and Pattis, who had been present at the November 5, 2007 meeting, and advised her that if the plaintiff encountered any difficulty whatsoever at Brainard Field, she should advise either Lieutenant McLean or Lieutenant Colonel Terenzi who would then alert Commissioner Danaher. Finally, Commissioner Danaher advised Attorney Coleman that if the plaintiff reported any problems to her that she should feel free to contact him directly.

Attorney Coleman wrote a letter dated October 31, 2007, to Commissioner Danaher in which she asserted that the troopers at Brainard Field did not want the plaintiff at the location because he was in some way responsible for a whistleblower complaint regarding another trooper who threatened to shoot other troopers and civilians. Commissioner Danaher investigated the allegation and found that Attorney Coleman was mistaken in that the threat came from a trooper who had returned from deployment in Afghanistan with post-traumatic stress disorder some five years before. Attorney Coleman asserted in her letter that Commissioner Danaher was sending the plaintiff into an extremely hostile environment that could be viewed as retaliatory for his filing a whistleblower complaint. She concluded that the plaintiff would report to Brainard Field per Commissioner Danaher’s order on November 1, 2007.

The plaintiff, however, unilaterally elected not to report to Brainard Field on November 1, 2007. He admitted that he did not suffer any contractual discipline, loss of pay or loss of benefits as a result of disobeying this order. He was not investigated and did not suffer any loss of promotional opportunity because of this disobedience. The plaintiff did issue a statement to the press later in November 2007, that his managers were continuing to harass him and even attempted to place him in a facility they knew was a hostile environment.

In January 2008, the plaintiff testified before the General Assembly. The plaintiff addressed both his personal work conditions and urged changes to the whistleblower statutory scheme to provide greater protection for whistleblowers. He disclosed at this time that he had been working out of his police cruiser parked by the side of the highway for, at that time, approximately fourteen months. This was the first that Commissioner Danaher had been aware that the plaintiff had disobeyed his order to work out of Brainard Field. Commissioner Danaher considered this practice to be extremely dangerous because of the possibility of an accident. One or two days after testifying in January 2008, the plaintiff was approached by Lieutenant McLean who, at the direction of Commissioner Danaher, offered him possible assignments to three troops. The plaintiff rejected all three assignments, although he admitted that had he taken a troop assignment he would have obtained supervisory experience that would have benefitted his career. The plaintiff testified that he rejected the assignments to these troops because he was concerned about hostility in the workplace, resentment against him, the presence of ill will and potentially being subjected to scrutiny because he had scrutinized the defendant. The plaintiff’s concern about this hostility was not borne of actual experience in the troops but his supposition that it might occur. After the rejection of these assignments, Lieutenant McLean ordered the plaintiff to report to Brainard Field as his assigned workplace. The plaintiff disobeyed this order and continued to work out of his police cruiser until approximately February 2009 by which time the plaintiff felt that things had subsided sufficiently for him to work at Brainard Field. Again, he was not subjected to any type of administrative discipline, loss of pay, loss of benefits or loss of promotional opportunity because of disobeying the order to report to Brainard Field in early 2008. In 2010, the plaintiff was elected Union president and took office on July 1, 2010. He remained president through the date of trial and works primarily in the Union Hall.

In October 2007, the plaintiff took the written and oral portions of examinations for promotion to master sergeant or lieutenant. The oral portion consisted of two questions each scored by a different panel of four persons. Lieutenant Spellman sat on the plaintiff’s oral panel for the first question and Captain Tolomeo sat on the panel for the second question. The plaintiff was concerned about Lieutenant Spellman’s presence on the panel because he believed that he was furious at the plaintiff for his whistleblowing activity because he had previously worked with the plaintiff in IA. Captain Tolomeo was problematic because he had represented the defendant in some of the grievances that the plaintiff had filed. The examination rules permitted the applicant to exclude a member of the oral panel whom he or she was convinced could not rate them fairly. The plaintiff testified on direct examination that when he saw Lieutenant Spellman’s name as an examiner he immediately left the room to contact his attorney. On the advice of counsel he elected not to exclude Lieutenant Spellman "because that’s how we’ll be able to later prove if his score negatively affected [the plaintiff’s] promotion." The plaintiff also did not exclude Captain Tolomeo. Lieutenant Spellman graded the plaintiff’s performance on the first question as a three, which is the highest score possible, rating the plaintiff higher than the other three panelists for the first question.

The plaintiff, however, received zeros on the second question from all four panelists, including Lieutenant Daly whom was on the panel and, as previously mentioned, with whom he was friends. The score of a zero was largely the consequence of not having recognized that the question involved an armed hostage situation, which, in the view of Lieutenant Daly and the other three panelists, was a major flaw. Additionally, the plaintiff responded that as a supervisor he would personally have gone to the scene if "he had to," which in Lieutenant Daly’s estimation, as well as that of the other panelists, was another major flaw because the supervisor should definitively have been at the scene in person. The testing guide required the scoring of a zero if an examinee’s answer contained a major flaw. Lieutenant Daly was adamant that the plaintiff deserved the score of zero he was given by all four panelists.

The plaintiff did not take issue with his errors but testified that he rehabilitated himself later in the exam. Moreover, he felt that Lieutenant Daly had originally entered a score of one but later changed it to a zero. This occurred, potentially, because Lieutenant Daly inappropriately felt pressure to change her grading so as to achieve consensus on the scores as required by the testing protocol. In his view, the grade of a one rather than a zero would have raised his score such that he would have ultimately received a promotion to either master sergeant or lieutenant. Lieutenant Daly adamantly denied having changed her score. Moreover, the plaintiff claims that the presence of Lieutenant Spellman as an examiner made him extremely nervous, which affected his performance.

The court does not find the plaintiff’s testimony relative to the exam credible. The court, finding that Lieutenant Daly was a very credible witness, credits the entirety of her testimony. It is noteworthy that the plaintiff supports a claim to having been entitled to a higher exam score on the basis that someone that considered him to be a friend, and who he testified was a friend to him, acted inappropriately in the grading of his test. When the plaintiff worked in IA, he and Lieutenant Daly worked in the same building. She knew him fairly well and would have lunch with him. Lieutenant Daly considered the plaintiff to be a friend and he even babysat for her children. She was aware of his whistleblowing activities and, far from harboring any animosity against him for his actions, was supportive of him.

Additionally, the court, having heard testimony from Erin Choquette, an employee of the Department of Administrative Services (DAS), regarding the stringent and strictly applied procedures for the examinations, including the presence of a DAS monitor, does not find that any improprieties occurred during the plaintiff’s taking of the October 2007 examination. The court further finds her testimony credible that even if all four examiners had scored the plaintiff’s answer to the second oral question as a one rather than a zero the method of weighting the answers would not have given him the score he believed he was entitled to. Finally, the court received testimony from Lieutenant Colonel James Canon of Professional Standards relative to his analysis of the candidates’ scores on the October promotion list. The court credits his testimony that candidates with greater seniority with identical scores than other candidates are promoted ahead of those with less seniority. Even if the score the plaintiff believed he was entitled to had been given to him the plaintiff would not have been promoted from the October 2007 exam list before it expired due to a lack of seniority. The plaintiff, then, has failed his burden of proof in establishing that the score he received as a result of taking the October 2007 promotional examination was not reflective of his actual performance on the examination and that any actions taken by the examiners in any was motivated by retaliatory animus.

On or about March 2, 2007, a citizen complaint was filed by an incarcerated inmate, a Mr. Van Weingarten, asserting that the plaintiff had lied on the witness stand in court in a criminal case in which Van Weingarten was the defendant. The plaintiff alleged as retaliatory conduct by the defendant an impropriety in the handling of the complaint that gratuitously publicized a false statement that he was the subject of an IA investigation for providing false testimony in court.

The court received testimony from Lieutenant Colonel Duffy who, as a major, had met with the plaintiff in 2005. Upon release of the NYSP Report, Lieutenant Colonel Duffy was put in charge of IA. As a consequence of the changes to procedures following the NYSP Report all complaints had to be documented by the CSP and investigated. There were two different types of investigation. The first was for more serious allegations that might result in discipline, termination, suspension or demotion and were assigned an "IA" prefix before the case number. The second was an administrative inquiry, assigned a "C" prefix, which involved less serious allegations such as a trooper speeding when they weren’t working. Upon receipt of the Van Weingarten complaint, IA opened an administrative investigation and forwarded the complaint to the eastern district of Major Crimes to review for possible criminal conduct. While allegations of perjury would normally warrant an "IA" designation, complaints from incarcerated felons were sometimes initially assigned a "C" prefix while a preliminary determination was made as to their validity. Lieutenant Colonel Duffy testified that while it was unclear whether the administrative investigation was originally opened as an "IA" or a "C," it was assigned an "IA" number on March 12, 2007, by the secretary, Holly King, who thereafter changed it to a "C" number within two days. The investigation was conducted and reported as a "C" number by Master Sergeant Edward Bednarz, who, after investigation, recommended that the complaint be closed with no adverse action. The plaintiff was notified sometime in February 2008, for the first time, that the complaint had been made, an investigation conducted and ultimately closed as unfounded. The investigation had been listed as the more serious "IA" type investigation on periodic open case reports that was distributed to a limited number of senior DPS personnel from May 2007 through October 29, 2007, until it was removed from the reports. Correspondence had also been sent to the complainant in which the identifying number was listed as having an "IA" prefix rather than a "C" prefix.

While the existence of an ongoing "IA" level investigation may affect a trooper’s career by adversely impacting opportunities for promotion, the plaintiff was not reached for promotional consideration at any time during the period when the investigation was incorrectly listed as an "IA" type. The plaintiff asserted that he had a right to be notified of the investigation but no such right existed under his Union contract or department policy because the complaint involved possible criminal conduct. Moreover, the court finds that the error in listing the investigation as an "IA" number rather than a "C" number was clerical in nature and not as a result of any retaliatory animus.

Additional facts will be discussed as necessary.

ANALYSIS

General Statutes § 31-51q provides in relevant part that "[a]ny employer, including the state ... who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by ... 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, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages."²⁷ "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).

27 The statute also protects the exercise of rights guaranteed by the first amendment to the United States Constitution. The plaintiff makes no claim under the first amendment. Even if he did, he would not prevail. See Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006) (no first amendment protection for speech made by public employees pursuant to official duties).

The elements that a plaintiff must prove in order to establish a violation of § 31-51q are: "(1) that he engaged in constitutionally protected speech, (2) that his employer took an adverse action against him ... (3) that there was a [causal] relationship between the protected activity and the adverse action ... [and] that (4) the exercise of his [constitutional] rights did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer." (Citations omitted; internal quotation marks omitted.) Karagozian v. Luxottica Retail North America, 147 F.Supp.3d 23, 35 (D.Conn. 2015); see also Blue v. Carbonaro, Superior Court, judicial district of Ansonia-Milford, Docket No. CV- 14-6015705-S, 2015 WL 3555294, at *19 (May 11, 2015, Iannotti, J.)

The court’s first inquiry is whether the plaintiff engaged in speech that was protected by sections 3, 4 or 14 of article first of the Connecticut constitution. Article first, § 3 is inapplicable as it assures religious liberty and there is no claim of any actionable violation of such. Article first, § 4, titled "Liberty of speech and the press" provides that "[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."²⁸ Finally, article first, § 14, titled "Right to assemble and petition," provides that "[t]he citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance."

28 Article first, § 5 of the Connecticut constitution, which provides that "[n]o law shall ever be passed to curtail or restrain the liberty of speech or of the press" is curiously omitted from § 31-51q. It has nevertheless been included in evaluating the breadth of free speech protection afforded by the state constitution as implicated by § 31-51q. See Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 192, 123 A.3d 1212 (2015) (use of the word "ever" in § 5 provides additional emphasis to the force of § 4).

In Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 204, 211, 123 A.3d 1212 (2015), a case involving a claim under § 31-51q, our Supreme Court held that the Connecticut constitution provides greater employee free speech protection for workplace speech than the first amendment to the United States Constitution. At issue in Trusz, as well as in the present case, is the differing constitutional free speech protection invested in citizens speaking as private citizens compared to employee speech in the workplace and the latitude enjoyed by the government as employer in restricting free speech compared to that possessed by the government in its role as lawmaker. Id., 188. Under the first amendment, the government as employer may restrict employee speech that owes its existence to the public employee’s professional responsibilities. Garcetti v. Ceballos, 547 U.S. 410, 421-22, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006).

The application of the so called Geisler factors; see State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), overruled on other grounds by State v. Brocuglio, 264 Conn. 778, 795, 826 A.2d 145 (2003) (adoption of new crime exception to exclusionary rule deviates from validity of common-law right to resist unlawful entry into one’s home); led our Supreme Court to conclude that speech by an employee speaking pursuant to official job duties enjoys constitutional protection when the employee speech addresses matters of official dishonesty, deliberately unconstitutional action, other serious wrongdoing or threats to health and safety. Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 204, 211. Such speech is further subject to the Pickering/Connick balancing test in which "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."²⁹ Id., 184.

29 This test is derived from the decisions of the United States Supreme Court in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Truss decision provides a useful analysis of the progression of the application of this first amendment doctrine to public employee speech See Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 183-85.

*20 In summary, speech by an employee is protected under article first, § § 4 and 14 of the Connecticut constitution when undertaken in the course of an employee’s official duties when it (1) addresses official dishonesty, deliberately unconstitutional action, other serious wrongdoing or threats to health and safety on a matter of public concern and (2) the employee’s interest in the speech outweighs the employer’s interest in promoting the efficient performance of services.

The protected speech claimed by the plaintiff to have allegedly subjected him to retaliatory discipline consists of: (1) the August 2005 CHRO complaint in which he complained of harassment by other detectives in major crime squad units because of his religious beliefs; (2) the August 2005 communications with the OAG, APA and, subsequently, with the NYSP as part of its investigation alleging unethical practices, violations of state law, mismanagement, abuse of authority and issues related to public safety; (3) a June 15, 2006 grievance claiming that the change/transfer in his work location from Meriden to CSP headquarters is as a direct result of his status as a whistleblower; (4) a May 9, 2007 complaint in the United District Court for the District of Connecticut claiming retaliation for speaking out on matters of public concern while employed as a Connecticut state trooper in which Attorney General Blumenthal, Colonel Lynch, Major Arciero, Lieutenant Podgorski and Colonel Thomas Davoren were named as defendants, with the claim that the transfer to the CSP headquarters was intended to cause his isolation and to permit greater monitoring of him; (5) the October 11, 2007 complaint in the United States District Court for the District of Connecticut claiming retaliation for speaking out on matters of public concern while employed as a Connecticut state trooper in which Colonel Lynch, Major Arciero, Lieutenant Podgorski and Colonel Davoren were named as defendants, which asserted a claim for damages related to a denial of permission to take a paid leave of absence and the failure to protect him from workplace hostility and physical danger; (6) the November 23, 2007 CHRO complaint against Commissioner Danaher and Colonel Davoren based on the same whistleblowing activity, in which he claims that subsequent to the May 2007 release of the OAG whistleblowing report the respondents continued to retaliate against him by failing to comply with the recommendations contained in the OAG Retaliation Report in not working with him to determine a mutually satisfactory appropriate work location; (7) the February 7, 2008 amendment to the May 9, 2007 complaint adding Commissioner Danaher as a defendant adding the assignment of the plaintiff to Brainard Field as a work location in November 2007 and the appointment of Lieutenant Spellman to the master sergeant/lieutenant’s promotional examination board as retaliatory actions; and (8) his testimony before the Government Administration and Elections Committee on February 25, 2008, and on March 4, 2008, before the Public Safety and Security Committee regarding retaliation for whistleblowing activity and to advocate for reforms for protection of whistleblowing activity.

The defendant does not dispute that the 2005 communications to the OAG, APA and NYSP or the 2008 testimony before the legislature are protected speech. The court finds that the plaintiff’s interest in such speech outweighs the defendant’s interest in promoting the efficient performance of employment services. The defendant does contest the nature of the other speech, which, in its view, is not related to a matter of public concern and is thus employee speech not subject to protection under the Connecticut constitution.

*21 The proper inquiry into whether public employee speech involves a matter of public concern examines whether the speech "can be fairly considered as relating to any matter of political, social or other concern to the community ... or [whether] it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." (Citations omitted; internal quotation marks omitted.) Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). The court must examine the content, form and context of the speech as revealed by the whole record. Id.

The plaintiff asserts that the whistleblower retaliation complaints filed with the CHRO and in federal court are all constitutionally "protected activity" and refers the court to Espinal v. Goord, 558 F.3d 119, 128-29 (2d Cir. 2009), for the proposition that a federal lawsuit filed by an inmate against department of correction officials is protected activity in the context of a first amendment retaliation claim under 42 U.S.C. § 1983. The fact that filing a lawsuit may be protected conduct does not necessarily render it of public concern. Indeed, this query was not even considered by the Espinal court and as such the plaintiff’s reliance on it is misplaced.

Whether speech is a matter of public concern is decided by determining whether the speech "was calculated to redress personal grievances or whether it had a broader public purpose." (Internal quotation marks omitted.) Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008). In Ruotolo, the plaintiff was a former police officer who claimed that a lawsuit he filed asserting retaliation for filing an official report identifying health risks in the precinct was protected speech. Id., 186. The lawsuit accused the "[c]ity of routinely tolerating the violation of whistleblower rights, and [sought] punitive damages to deter ‘future illegal and retaliatory conduct, ’ arguably hinting at some broader public purpose." Id., 190. Where a complaint "concerns essentially personal grievances and the relief" requested is for himself alone, then the "speech [is not] on a matter of public concern and cannot sustain a [f]irst [a]mendment retaliation claim" because the plaintiff "was not on a mission to protect the public welfare." (Internal quotation marks omitted.) Id.; see also Cappiello v. Fitzsimmons, Superior Court, judicial district of New Haven, Docket No. CV- 03-0478253-S, 2005 WL 2009569, at *5 (August 3, 2005, Devlin, J.) (Section "31-51q applies to situations where the employee is motivated to champion the rights of others as a concerned citizen rather than airing a personal grievance").

In the present case, the plaintiff’s two federal complaints, while generally complaining of retaliation because of his whistleblowing activity, allege only private injury³⁰ for which he seeks compensatory and punitive damages as well as his attorneys fees and costs. Similarly, there is nothing in the record that the CHRO complaints or grievances were directed towards a broader public purpose. The record does not reflect any claim in any of the plaintiff’s filings for injunctive or declaratory relief that might inure to the benefit of the public at large. The court therefore concludes that the plaintiff’s federal actions, CHRO complaints and union grievances do not constitute protected speech because they do not address matters of public concern. The protected speech that remains is (1) the plaintiff’s 2005 whistleblowing communications to the OAG and the APA as well as the NYSP during the course of their investigations and (2) the plaintiff’s 2008 testimony before legislative committees.

30 The common allegations of injury include the claim that the "plaintiff suffered fear, anxiety, tenor, loss of promotional opportunities and the deprivation of his right to freedom of speech." ¶ 39, Amend. Compl., Docket No. 3:07CV01553, February 7, 2008; ¶ 34, October 23, 2007 Compl., Docket No. 3:07CV01553, October 11, 2007; ¶ 35, Compl., Docket No. 3:07CV00739.

*22 The next focus is whether adverse action as contemplated by § 31-51q was taken against the plaintiff as a result of the protected speech. The conduct prohibited by that statute is the subjection of an employee to "discipline or discharge." Clearly, the plaintiff was not discharged. That leaves the question of whether he suffered "discipline," the definition of which has yet to be addressed by controlling appellate authority.

The plaintiff urges a liberal construction of "discipline" with the observation that our Supreme Court has commented that "[a]s a remedial statute, § 31-51q deserves a generous construction that implements its purpose." Cotto v. United Technologies Corp., 251 Conn. 1, 8-9, 738 A.2d 623 (1999) (contours of § 31-51q encompass private as well as public workplace conduct and speech). In the plaintiff’s view, the proper interpretation of "discipline" as contemplated by the legislature in its drafting of § 31-51q is adverse employment action "that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights" that are protected by § 31-51q. (Internal quotation marks omitted.) See Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225 (2d Cir. 2006), cert. denied, 549 U.S. 1342, 127 S.Ct. 2062, 167 L.Ed.2d 769 (2007) (incorporating interpretation of Title VII anti-retaliation provisions articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Conversely, in the view of the defendant, the appropriate definition is "an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness." Bombalicki v. Pastore, Superior Court, judicial district of New Haven, Docket No. 378772, 2000 WL 726839, at *3 (May 10, 2000, Blue, J.) (27 Conn.L.Rptr. 183, 184).

This court has already addressed this precise issue and found that the appropriate definition of "discipline" as used in § 31-51q is "any adverse material consequence relative to a right, term, condition or benefit of employment that existed at the time of the protected speech [or conduct]." Weinstein v. University of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV-11-6027112-S, 2018 WL 2222131, at *6 (April 25, 2018, Noble, J.) (66 Conn.L.Rptr. 400, 405). This opinion will not repeat the reasoning set out in Weinstein . Any difference between the standard urged by the plaintiff and that adopted by this court is not significant.

In Zelnick v. Fashion Institute of Technology, supra, 464 F.3d 219, the Second Circuit Court of Appeals considered an action pursuant to 42 U.S.C. § 1983 in which a public employee claimed he suffered an adverse employment action as retaliation for the exercise of his First Amendment right to speech related to a matter of public concern. The court rejected the District Court’s use of the more demanding "materially adverse change in the terms and conditions of employment" as the standard for defining an adverse employment action. Id., 227. It was determined that the more appropriate focus should, instead, be the effect of the employer’s actions on the exercise of free speech rights of a "person of ordinary firmness." Id. This conclusion was premised, as noted above, on the United States Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, supra, 548 U.S. 68, which held that the Title VII anti-retaliation provisions applicable to employment discrimination required proof of retaliatory conduct that results in a materially adverse impact such that a reasonable worker would be deterred from making or supporting a charge of discrimination. The employer conduct must still result in a materially adverse consequence. Id., 68-70. The difference lies in whether the adverse consequence must implicate the terms of employment, as required for a finding of discrimination under Title VII, 42 U.S.C. § 2000e-2 which prohibits employment discrimination, or simply any material adverse effect, whether related to employment or not, as contemplated in § 42 U.S.C. § 2000e-3, which prohibits retaliatory discrimination for an employee’s opposition to a practice prohibited by § 2000-e2(a). Id., 61-64. Thus, the "antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id., 64. The need for a material adverse consequence remains regardless whether employment-related or not.

*23 The specific acts of discipline to which the plaintiff alleges he was subjected to are: (1) the failure to transfer him to the Forensic Laboratory; (2) the failure to promote him, (3) the loss of overtime opportunities; (4) the failure to assign office space and duties; and (5) improper handling and processing of a "C" complaint, which did not rise to the level of an "IA" complaint, and improperly and gratuitously publicizing a false statement that the plaintiff was the subject of an "IA" complaint for providing false testimony in court and the failing to provide timely notifications to the plaintiff regarding the "IA"/"C" complaint. Compl. ¶ 196.

The first four allegations of discipline would qualify as materially adverse consequences if causally related to the plaintiff’s protected speech. The court finds as a matter of fact that the handling of the "C" complaint had no adverse material consequence of any nature, never mind one related to his employment. As previously noted, moreover, the court finds that the mishandling of the complaint was entirely as a consequence of a clerical error. The charges were not sustained, it did not impact any promotional opportunities and no evidence was presented to the court that anyone was even aware that there was an "IA" investigation.

As to the remaining alleged disciplinary actions, the court finds, as a matter of fact, the absence of any persuasive evidence that adverse action was taken "on account of" any of the plaintiff’s protected speech or conduct, or even on account of the plaintiff’s federal lawsuits, CHRO complaints and union grievances, which the court has found were not protected speech or conduct.³¹ The standard for determining whether "discipline" was "on account of protected activity" requires a plaintiff to show that "that the protected speech was a substantial motivating factor in the adverse employment action ... A plaintiff may establish causation either directly through a showing of retaliatory animus, or indirectly through a showing that the protected activity was followed closely by the adverse action." (Citation omitted; internal quotation marks omitted.) Smith v. Suffolk, 776 F.3d 114, 118 (2d Cir. 2015). The temporal proximity between the protected conduct and the adverse action permits an inference of a causal connection. See Espinal v. Goord, supra, 558 F.3d 129 (period of only six months between protected activity and retaliation in first amendment case sufficient to support inference of causation). Of course, as with any such evidence, "while it is true that proximity in time between adverse personnel decisions and protected activity could support an inference of retaliation ... the trier of fact is not required to draw such an inference." (Citation omitted.) Loiseau v. Department of Human Resources of Oregon, 113 F.3d 1241, 1997 WL 222341, at *2 (9th Cir. 1997) (table decision). This court does not draw such an inference or find that the plaintiff’s protected activity was a substantial motivating factor, much less even a single motivating factor, in the occurrence of what would be properly characterized as discipline if imposed by the defendant.

31 In making this finding the court is mindful that the commencement of actionable harm began on February 5, 2007.

The court finds as a matter of fact that much of the plaintiff’s conduct from February 5, 2007, until his election to the presidency of the Union in 2010 was motivated³² by concerted and continuing legal stratagem in the aid of legal action rather than a sincere dedication to advancing a career in the CSP. The court finds significant the admissions by the plaintiff that upon being alerted to the fact that Lieutenant Spellman was to sit as an examiner on the October 2007 promotional exam he first contacted his attorney and then acted on the advice he received to refrain from excluding Lieutenant Spellman so as to advance a claim of retaliation. Had the plaintiff actually been motivated by a desire to advance his career he would have excluded Lieutenant Spellman³³ so as to avoid any nervousness or anxiety he claims he felt as a consequence of having Lieutenant Spellman as an examiner. There are other examples of the plaintiff having sought legal counsel under circumstances that imply a desire to perfect a legal claim rather than pursuit of a career in the CSP. These include acting on the advice of counsel in not having a conciliatory person to person meeting with Captain Guillot in 2005; feeling the need to confer with counsel before informing Lieutenant Pagoni whether he would accept an assignment to Risk Management; agreeing to allege religious discrimination under oath in an August 2005 CHRO complaint at the advice of counsel; and requiring advice of counsel in September 2005 before deciding whether to provide Major Arciero with the binder, which contained documents and presumably proof of his complaints about treatment in Major Crimes.

32 Motivation is a quintessential issue of fact. Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999).

33 As it was, Lieutenant Spellman graded the plaintiff higher than the other three examiners.

*24 In general, the court has expressed its finding that the plaintiff was not a credible witness. This finding is informed in no small measure by the inconsistency in the plaintiff’s testimony that he had an actual fear for his physical safety, yet, during this same time he advertised to the entire union membership the date, time and location of where he would be in February 2006 and May 2007. The plaintiff’s claim that he was safer in his cruiser by the side of the highway rather than in an office lacks credibility. The plaintiff’s location in his cruiser by the side of the highway was subject to detection thus rendering him subject to attack. The plaintiff would have been exposed to danger simply while walking from the parking lot to his desk in any office location he was assigned to, regardless of whether his office was located in a secured area accessible only by swipe card. Moreover, the plaintiff’s duties required him to visit other troops and units, which, again, exposed him to the potential of physical danger in the form of reprisal, a risk he is likely to have complained if he was actually concerned about his physical safety. Indeed, the plaintiff would have been more exposed to physical danger outside of his employment while off duty than in the confines of an office in a unit of the CSP. It is significant that the plaintiff has offered no evidence other than the "cancer" note to suggest any threat of physical harm, which the court does not find to be a harbinger of physical danger. Nor was there any evidence of even an attempt at physical harm. The plaintiff’s claim that he feared for his physical safety, which was a substantial predicate for his disobedience of orders assigning him to certain work locations and his rejection of the defendant’s offers of other work locations, was unproven.

There was no evidence that the plaintiff was demoted, suspended, issued written or oral counseling or otherwise formally disciplined under the CSP contract or suffered any reduction in pay or benefits. Instead, while admitting that he never applied for a transfer of duties, the plaintiff claims discipline in the failure of the defendant to transfer him to Forensic Laboratory duties. Certainly, the failure of the defendant to act favorably on a formal application for a transfer to Forensic Laboratory duties might be an adverse material consequence. It would have been the denial of the opportunity for a full, fair and impartial consideration for such a transfer, an opportunity he possessed as a right, term, condition or benefit of employment. Conversely, a demand for such a transfer of duties without being obliged to engage in even a minimal application process would constitute preferential treatment. The defendant’s refusal to engage in such treatment cannot be considered a materially adverse consequence.

The court finds that the motivating factors influencing Commissioner Danaher’s decisions regarding the plaintiff’s assignment of work location and duties were not the plaintiff’s engagement in constitutionally protected activity, but rather his post protected activity conduct. During the actionable period, the plaintiff was either ordered to report to, or offered, work space in the Forensic Laboratory unsecured space, the CSP headquarters, Brainard Field and three troop assignments. The plaintiff rejected all of these location and duty assignments. To the extent that the plaintiff outright disobeyed direct orders to report to the specified locations, he was never subjected to formal discipline that would have been imposed on any other trooper. Most of the rejections were made on the basis not that the plaintiff had experienced either danger or hostility at the location or duty, but on the claim that such might occur. Commissioner Danaher’s actions were, a considered, if exasperated, response not to the whistleblowing itself but to the use of his whistleblower status and undertaken in an attempt to address unsubstantiated concerns raised by the plaintiff and others on his behalf.

The court has already addressed in large part the plaintiff’s claim that the failure to promote him was on account of his protected speech and conduct. After noting that the testimony of Lieutenant Daly was found to be credible, it remains to be said that the court finds that the plaintiff has not proven that the presence of Lieutenant Spellman on his examining board was anything other than coincidence.

The remaining claims of alleged acts of discipline are the loss of overtime opportunities and the failure to assign the plaintiff office space and duties. There remains an absence of any persuasive evidence that the plaintiff lost any overtime opportunities on account of his protected speech and conduct.

*25 The reporting of governmental wrongdoing, such as that done by the plaintiff to the OAG, the APA and subsequently to the NYSP, benefits both those whom the government would serve and the administration of government. Whistleblowing flows from high ethical standards and the moral courage to act. The plaintiff, however, sought to use his whistleblowing not as a shield but as a sword, with which he attempted to assert entitlement to benefits related to work conditions that he was not entitled to. Because the court finds that the plaintiff failed to prove by a fair preponderance of the evidence that he was subjected to discipline on account of protected activity, the court enters judgment in favor of the defendant.