Opinion
FBTCV136033116
12-05-2016
Carmen Perez-Dickson v. Bridgeport Board of Education et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO.112
Michael P. Kamp, J.
On January 29, 2013, the plaintiff, Carmen Perez-Dickson, commenced this action against the defendants, Bridgeport Board of Education (the board), Sandra Kase, and, later, Paul Vallas. On February 13, 2013, the defendants removed the action to the United States District Court for the District of Connecticut on the basis of federal question jurisdiction. The plaintiff's third amended complaint became the operative complaint. The operative complaint consists of ten counts and claims racial discrimination and retaliation against the board and Kase pursuant to 42 U.S.C. § § 1981 and 1983, retaliation against Vallas pursuant to § § 1981 and 1983, retaliation against the board pursuant to General Statutes § 31-51q, and racial discrimination and retaliation against Kase and Vallas pursuant to General Statutes § 46a-60.
On May 6, 2015, the defendants filed a motion for summary judgment. Thereafter, the plaintiff filed a memorandum of law in opposition, and the defendants filed a reply. On January 19, 2016, the District Court issued an order granting the defendants' summary judgment motion as to all claims except for the plaintiff's § 31-51q claim against the board, declining to exercise supplemental jurisdiction over this claim and remanding the case to the Superior Court.
On remand, the plaintiff did not seek leave to amend her complaint, and, thus, the third amended complaint remains the operative complaint. In paragraphs 1 through 28 of the operative complaint, the plaintiff alleges the following pertinent facts. At all relevant times, the plaintiff was assigned by the board as an elementary school principal at the Jettie Tisdale School (the school) in Bridgeport, Connecticut. At all times material, Kase was the chief administrative officer of the board.
On July 9, 2012, the plaintiff was placed on administrative leave with pay after two allegations of student abuse were made against her. During a meeting on July 9, 2012, Kase stated that she would contact the Department of Children & Families (the department) to have the report reviewed swiftly. Prior to placing the plaintiff on administrative leave, there was no inquiry made to her immediate supervisor with regard to whether placing her on administrative leave was necessary or appropriate.
The defendants did not place other school employees on administrative leave while the department investigated referrals. The plaintiff previously filed racial discrimination action with regard to her speaking out about the treatment of minority students allegedly abused at the hands of their Caucasian teachers, and, at that time, those teachers were not placed on administrative leave while the department conducted investigations.
On July 30, 2012, the plaintiff wrote a letter to the school superintendent and members of the board in regard to her placement on administrative leave. In her letter, she asked the board to end the neglect that has caused minority students in the district to fail for so many years.
While the plaintiff remained on administrative leave, Kase contacted the plaintiff by mail about another alleged incident of student abuse, and, in September of 2012, the plaintiff was called into the district office to respond to this allegation. The plaintiff received another letter from Kase on November 19, 2012, informing the plaintiff that additional allegations of student abuse had been made. The plaintiff was invited to respond to these allegations as well.
On April 7, 2013, the plaintiff learned that the school superintendent had recommended that her employment contract be terminated after nearly thirty-five years of working in the Bridgeport public school system. The plaintiff incorporates paragraphs 1 through 28 into the third count, which claims retaliation against the board pursuant to § 31-51q.
On April 25, 2016, the board filed a motion for summary judgment, arguing that material issues of fact do not exist and that it is entitled to judgment as a matter of law as to the plaintiff's remaining § 31-51q claim. The board submitted a memorandum of law and multiple exhibits in support of its motion. On August 5, 2016, the plaintiff filed a memorandum of law in opposition. On August 8, 2016, the court heard oral argument on the motion at short calendar. Just prior to the commencement of short calendar, the plaintiff filed a supplemental memorandum of law with multiple exhibits. The board filed a reply on August 22, 2016.
DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).
" To satisfy [this] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
In its supporting memorandum of law, the board contends that the court should enter summary judgment in its favor because the plaintiff's § 31-51q claim is barred by the doctrines of res judicata and collateral estoppel. Additionally, the board argues that if the court finds that res judicata and collateral estoppel do not apply, it is, nevertheless, entitled to summary judgment because the plaintiff cannot establish a prima facie case under § 31-51q.
" Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits." (Internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn.App. 715, 723, 716 A.2d 922 (1998). " [U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . [or any claim based on the same operative facts that] might have been made . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., 723-24.
The plaintiff's § 31-51q claim is not barred by the doctrine of res judicata because the District Court declined to exercise supplemental jurisdiction over it, and, thus, the plaintiff did not have " an adequate opportunity to litigate" the claim. Id., 728; see Perez-Dickson v. Bridgeport Board of Education, United States District Court, Docket No. 3:13 CV 198 (WWE), (D. Conn. January 19, 2016). Therefore, the board's motion fails on this ground.
" Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit." (Internal quotation marks omitted.). Daoust v. McWilliams, supra, 49 Conn.App. 723. " Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action . . . In order for collateral estoppel to apply, [moreover], there must be an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation." (Citation omitted; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 38, 694 A.2d 1246 (1997).
The burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to free speech retaliation claims made pursuant to § § 1981, 1983, and 31-51q. See Fasoli v. Stamford, 64 F.Supp.3d 285, 296 (D. Conn. 2014). Under this framework, " to survive summary judgment on his speech retaliation claims, [the plaintiff] must first establish a prima facie case of retaliation . . . If the court so finds, the burden then shifts to the defendant to offer evidence of a legitimate, nonretaliatory reason for its employment action . . . If the defendant succeeds in doing so, the McDonnell Douglass presumption of unlawful retaliation falls away, and the burden shifts back to the plaintiff to produce evidence from which a reasonable jury could find that the employer's stated reason is merely pretext for illegal retaliation." (Citation omitted; emphasis in original.) Id., 296-97.
" To establish a retaliation claim under [§ § 1981 and 1983] in violation of a public employee's First Amendment right to freedom of speech, a plaintiff must show: (1) his speech was constitutionally protected; (2) he suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action . . .
The plaintiff's § 31-51q claim is barred by the doctrine of collateral estoppel because the plaintiff had a full and fair opportunity to litigate two material issues, which the District Court resolved, and the plaintiff seeks to relitigate: (1) whether the defendants placed the plaintiff on administrative leave for legitimate, nonretaliatory reasons and (2) whether such reasons were simply pretext for illegal retaliation. See Perez-Dickson v. Bridgeport Board of Education, supra, United States District Court, Docket No. 3:13CV198 (WWE), ; see also Barry v. New Britain Board of Education, 132 Conn.App. 668, 678, 33 A.3d 291 (2011). Upon review of the plaintiff's § § 1981 and 1983 retaliation claims, the District Court determined that the defendants had " articulated a legitimate reason for placing [the] plaintiff on administrative leave in light of the need to investigate the conduct revealed in the surveillance videos, " and demonstrated " that the length of the leave [was] attributable to scheduling difficulties, investigation into allegations discovered during the investigation, and the DCF investigation." Furthermore, the District Court concluded that the plaintiff " raised no inference that either justification for the alleged adverse action was pretextual for a retaliatory animus." Perez-Dickson v. Bridgeport Board of Education, supra, United States District Court, Docket No. 3:13CV198 (WWE), . Thus, because the same burden-shifting analysis that applies to the plaintiff's § § 1981 and 1983 claims applies to her § 31-51q claim, the District Court's resolution of the material issues in the defendants' favor collaterally estops the plaintiff from bringing her § 31-51q claim in state court.
To be sure, the court has considered the plaintiff's initial and supplemental memoranda of law in opposition, but neither establishes the existence of a genuine issue of material fact with respect to the two dispositive issues resolved by the District Court. First, the plaintiff argues that collateral estoppel does not bar her state claim because the issue of whether the defendants articulated a legitimate reason for placing the plaintiff on administrative leave was not fully and fairly litigated. The plaintiff argues that the District Court failed to discuss her six-month, unpaid suspension when making its determination, and the defendants, " through 'sleight of hand'" and with assistance from the District Court, were able to sever that allegation from the case. The plaintiff's operative complaint does not allege that she was placed on administrative leave without pay, and, thus, this alleged fact is not at issue before this court. See Fisk v. Redding, 164 Conn.App. 647, 652, 138 A.3d 410 (2016) (stating facts at issue on motion for summary judgment are those alleged in pleadings).
Significantly, even after the board filed its motion for summary judgment, the plaintiff had the opportunity to amend her complaint to include this factual allegation and others but did not. See Practice Book § 10-60; Mariano v. Hartland Building & Restoration Co., 168 Conn.App. 768, 773-74, 148 A.3d 229 (2016) (concluding apportionment defendant's amended complaint, filed subsequent to intervening plaintiff's summary judgment motion, became operative pleading during pendency of motion because intervening plaintiff did not oppose apportionment defendant's leave to amend counterclaim); see also Tyler v. Tyler, Superior Court, judicial district of Fairfield, Docket No. CV-11-15029427-S, (September 19, 2013, Sommer, J.), aff'd in part and rev'd in part, 151 Conn.App. 98, 93 A.3d 1179 (2014) (noting Superior Court judges have held that when party moves for summary judgment and opposing party then files amended complaint, judge should apply summary judgment motion to amended complaint).
Practice Book § 10-60 provides in relevant part that " a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner . . . (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment . . ."
In further support of her argument that the issue of whether the defendants articulated a legitimate reason for placing the plaintiff on administrative leave was not fully and fairly litigated, the plaintiff argues that the District Court denied her the opportunity to depose Kase. The District Court's decision belies the plaintiff's assertion. In its decision, the District Court, Eginton, J., denied the plaintiff's request to depose Kase because the plaintiff had failed to timely schedule Kase's deposition after the District Court, on December 11, 2014, generously extended the discovery deadline to January 30, 2015, on the condition that the parties schedule depositions by December 31, 2014. See Perez-Dickson v. Bridgeport Board of Education, supra, United States District Court, Docket No. 3:13CV198 (WWE), . Accordingly, it appears that the District Court gave the plaintiff ample opportunity to depose Kase, but she failed to do so in accordance with set deadlines.
This explanation is confirmed by the District Court's December 11, 2014 scheduling order.
Next, the plaintiff argues that res judicata and collateral estoppel do not apply because there was not a full and fair litigation on the issue of whether the plaintiff's speech addresses a matter of public concern. The issue of whether the plaintiff's speech addresses a matter of public concern relates to the first element of the plaintiff's § 31-51q claim, namely, whether she exercised rights protected by Article first, § § 3, 4, and 14 of the constitution of Connecticut. These free speech provisions of the constitution of Connecticut protect a public employee from employer discipline when that public employee speaks pursuant to her official duties " only . . . on a matter of unusual importance and satisfies high standards of responsibility in the way [she] does it . . . Specifically . . . only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor . . ." (Citation omitted; footnote omitted; internal quotation marks omitted.) Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 204, 123 A.3d 1212 (2015). This issue is moot as the District Court determined that the defendants presented legitimate reasons for placing the plaintiff on administrative leave regardless of whether the plaintiff had established a prima facie case of retaliation and that the plaintiff failed to raise any inference that the given reasons were pretextual for illegal retaliation. See Perez-Dickson v. Bridgeport Board of Education, supra, United States District Court, Docket No. 3:13CV198 (WWE), .
Within her argument that the issue of whether the plaintiff's speech addresses a matter of public concern was not fully and fairly litigated, the plaintiff also contends that, in early 2012, Kase learned of the plaintiff's prior successful lawsuit against the board, and this caused Kase to focus her attention on the plaintiff and motivated Kase to act in retaliation against the plaintiff. As with her claim of unpaid leave, the plaintiff fails to allege any of this in the operative complaint. The plaintiff also argues that consideration of her prior lawsuit during her license revocation hearings is additional evidence of the defendants' animus towards her. The operative complaint is completely silent as to any license revocation hearing the plaintiff may have had.
The plaintiff mentions the prior lawsuit once in the operative complaint and alleges that she " previously filed a complaint of discrimination based upon race with regard to her speaking out about the treatment of minority students when they were alleged to have been abused at the hands of their Caucasian teachers. Even at that time, Caucasian teachers were not held accountable for their actions during student abuse allegations as was Plaintiff. They were not placed on administrative leave while the DCF investigations were pending." The plaintiff does not mention Kase or her knowledge of the prior lawsuit.
Finally, the plaintiff argues that she has established a prima facie case of retaliation because she was subject to discipline or discharge as required by § 31-51q because she was disciplined with a six-month, unpaid suspension after writing the July 30 letter. As noted above, the court will not consider factual allegations raised outside of the pleadings on a motion for summary judgment.
CONCLUSION
In light of the foregoing, the board's motion for summary judgment is granted on the ground that the plaintiff's § 31-51q claim is barred by the doctrine of collateral estoppel.
" To demonstrate a free speech violation under . . . § 31-51q, a plaintiff must prove: (1) he was exercising rights protected by the First Amendment to the United States Constitution (or an equivalent provision of the Connecticut Constitution); (2) he was disciplined or terminated on account of his exercise of such rights; and (3) his exercise of his First Amendment (or equivalent state constitutional rights) did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer." (Citation omitted; emphasis in original.) Fasoli v. Stamford, supra, 64 F.Supp.3d 295.
Nevertheless, the deposition testimony of Kase, a certified copy of which was submitted by the plaintiff in support of her supplemental opposition memorandum, does not present a genuine issue of material fact with regard to whether the defendants' given reasons for placing the plaintiff on administrative leave were pretextual. Kase's deposition testimony shows that she recalled learning of the lawsuit's existence in early 2012 but was unaware of its substance. Her deposition testimony also shows that she had little interest in the lawsuit at the time and that it had nothing to do with any actions taken by the board regarding the plaintiff; rather, Kase testified that she and the school superintendent believed the plaintiff's videotaped actions were " so egregious" that the plaintiff should not remain at the school until the department concluded its investigation. Moreover, the District Court resolved the issue of whether the plaintiff has shown that the defendants' given reasons for placing her on administrative leave were pretextual, and the plaintiff should not be allowed to rely on new evidence now when she had the opportunity to obtain that evidence earlier in her action before the District Court. See Terracino v. Buzzi, 121 Conn.App. 846, 860, 1 A.3d 115 (2010) (" Under the issue preclusion doctrine, a party may not be permitted to introduce new or different evidence to relitigate a factual issue which was presented and determined in a former action. Litigation of an issue necessarily encompasses all arguments and evidence that could be presented to resolve the issue, and the mere discovery of new evidence does not create a new issue, in the issue preclusion context . . . Some degree of diligence must be shown to avoid the application of issue preclusion on a new evidence theory." [Internal quotation marks omitted.]).