Opinion
FBTCV156050419
10-21-2016
Michael Picone v. Aquarion Water Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Michael P. Kamp, J.
The issue presented before the court is the defendant's motion for summary judgment as to the plaintiff's single-count complaint alleging wrongful termination in violation of his state and federal constitutional right to free speech.
FACTS
On June 2, 2015, Michael Picone, the plaintiff, filed a one-count complaint against Aquarion Water Company, the defendant, alleging the following relevant facts. For some time prior to May 2, 2013, the defendant employed the plaintiff, and the plaintiff satisfactorily performed his duties at all times during his employment. In the course of his employment, on or about May 2, 2013, the plaintiff met with and communicated to auditors hired by the defendant to audit its financial records. On or about May 2, 2013, the defendant terminated the plaintiff's employment because the plaintiff met with the auditors. The defendant's termination of the plaintiff's employment violated General Statutes § 31-51q, which protects speech made pursuant to the federal and state constitutions. As a result of the defendant's conduct, the plaintiff has lost past and future earnings and benefits; suffered humiliation, severe physical and emotional injuries, and distress; incurred litigation expenses and attorneys fees; and experienced a substantially diminished quality of life.
On July 2, 2015, the defendant filed its answer and special defenses to the plaintiff's complaint. In its answer, the defendant admits to terminating the plaintiff on May 2, 2013 and that communications between the plaintiff and the auditors took place. The defendant denies, however, that the communications took place on May 2, 2013, and it argues that the communications arose in the course of the plaintiff's employment. The defendant also denies that the termination was wrongful, resulted from the alleged communications, or that it violated any constitutional provision. The defendant also pleaded three special defenses, namely that: (1) the complaint failed to state a legally sufficient cause of action; (2) some or all of the plaintiff's claims are barred by the applicable statute of limitations; and (3) the plaintiff failed to reasonably mitigate his alleged damages.
On May 9, 2016, the defendant filed a motion for summary judgment on the plaintiff's complaint with a memorandum of law in support. In its memorandum of law in support of its motion for summary judgment, the defendant alleges the following relevant facts. The defendant hired the plaintiff as an Electrician-Helper in 1980. The defendant promoted the plaintiff many times over the years until 2005 when the defendant promoted the plaintiff to the position of Director of Utility Operations. The plaintiff was not successful in this position, so in 2008, the defendant demoted the plaintiff to the role of Manger, Utility Programs, which is in the Engineering and Planning Department. In this role, the plaintiff reported directly to George Logan, who held the position of Director, Engineering and Planning. As the Manager, Utility Programs the plaintiff had many responsibilities relating to the defendant's infrastructure projects, specifically planning and executing pipeline construction and maintenance projects on a timely basis. About six months after the plaintiff started this role, Logan noticed that the plaintiff was not properly managing some of the pipeline projects for which he was responsible, and Logan instructed the plaintiff to take more initiative.
In 2010, the defendant experienced an increase in the number of its infrastructure projects, which lead to an increase in the number of its pipeline projects. The plaintiff did not " proactively manage" his increased workload, so Logan had to get involved in the plaintiff's projects. Logan also received complaints from internal and external customers regarding the plaintiff's lack of response to their concerns about different pipeline projects. Logan became concerned about the plaintiff's performance and indicated in the plaintiff's annual performance appraisal that the plaintiff needed to " improve his performance to meet the standards of his job." On or about March 29, 2011, Logan provided the plaintiff with a performance improvement plan (PIP) after he discussed his concerns and annual performance appraisal with the plaintiff. The PIP set forth many areas in which Logan expected the plaintiff to improve. Although the plaintiff made improvements in some areas, the defendant alleges that he failed to meet several of the improvement goals.
In 2012, Logan became increasingly concerned that the plaintiff's job performance was not keeping up with the defendant's increase in infrastructure projects. In the second half of 2012, Logan received an increase in the number of complaints from external customers and other managers working for the defendant regarding the plaintiff's performance. The defendant alleges that the plaintiff was not effectively managing his team, communicating with clients or colleagues, or advising Logan of the status of his projects. Logan provided the plaintiff with a written warning (the Written Warning) expressing these concerns. On March 21, 2013, Logan provided the plaintiff with his annual performance appraisal for 2012, and Logan gave the plaintiff the second lowest rating possible. The defendant further alleges that the plaintiff failed to make " any meaningful improvement in his performance" after receiving the Written Warning. As a result, Logan gave his recommendation to terminate the plaintiff to Lucy Teixeira, the defendant's Vice President of Human Resources and Customer Services.
On or about May 2, 2013, Logan and Teixeira met with the plaintiff to inform him of their decision to terminate his employment due to " his repeated failure to address his documented performance deficiencies." At this meeting, the plaintiff asked Logan and Teixeira if their decision to terminate his employment was a result of the plaintiff's conversation with the auditor from KPMG who conducted the Spend Analytics Study. Logan explained that their decision to terminate his employment was not related to the information the plaintiff provided the auditor. Furthermore, the defendant alleges that neither Logan nor Teixeira had knowledge of the information that the plaintiff provided to the auditor, and because no one was present at the plaintiff's meeting with the auditor and the auditor did not report his findings to Logan or Teixeira, they had no way of knowing what the plaintiff discussed with the auditor. Logan reasserted to the plaintiff that the termination of his employment was a result of his failure to improve his job performance. In support of its motion for summary judgment, the defendant provided the court with the following evidence: (A) a signed and sworn affidavit of Logan, authenticating the following: (1) a copy of the March 2011 annual performance appraisal form of the plaintiff; (2) a copy of the March 2011 PIP; (3) a copy of the September 2011 annual performance appraisal form of the plaintiff; (4) a copy of the March 2012 annual performance appraisal form of the plaintiff; (5) a copy of the September 2012 annual performance appraisal form of the plaintiff; (6) a copy of the Written Warning provided to the plaintiff; and (7) a copy of the March 2013 annual performance appraisal form of the plaintiff; and (8) a copy of the defendant's first set of interrogatories and requests for production.
On June 24, 2016, the plaintiff filed a memorandum of law in opposition to the plaintiff's motion for summary judgment with evidence in support. The plaintiff provided the following evidence to support his argument: (1) two signed and sworn affidavits of the plaintiff; (2) a copy of the Department of Energy and Environmental Protection's decision regarding the application of the defendant for a water infrastructure and conservation adjustment; and (3) a copy of the plaintiff's March 2013 performance evaluation. The court heard argument by the attorneys for both parties at short calendar on July 5, 2016.
DISCUSSION
" Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820, 116 A.3d 1195 (2015). " The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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).
" The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Emphasis omitted; internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 296, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012). " [A] nonmoving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment." Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014). A party's " conclusory statements, in the affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The defendant argues that it is entitled to judgment as a matter of law on the plaintiff's General Statutes § 31-51q claim because the plaintiff's alleged communications with auditors about the defendant's business practices did not constitute public speech on a matter of public concern and as such were not protected by the federal or state constitutions. In the alternative, the defendant argues that the record demonstrates that the plaintiff was terminated because of his record of poor work performance and not because of the plaintiff's communications with the auditor hired by the defendant. The plaintiff counters that his speech, meaning the information he provided the auditors, is protected by both the United States and State of Connecticut Constitutions. He also argues that a causal connection exists between the plaintiff's speech and his eventual termination by the defendant.
General Statutes § 31-51q provides in relevant part as follows: " Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or 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 . . ." " On its face, the statute extends the protection of federal and state constitutional rights in two respects. It provides coverage for private employees as well as for governmental employees, and it imposes liability on private employers as well as governmental employers . . . In [ Cotto v. United Techs. Corp., Sikor-Sky Aircraft Div., 251 Conn. 1, 16, 738 A.2d 623 (1999)], we concluded that the protections of § 31-51q were not limited to speech on public property but, rather, extended to employee speech in the private workplace as well." (Citation omitted; internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., 304 Conn. 585, 599, 43 A.3d 111 (2012).
General Statutes § 31-51q provides: " Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or 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. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer."
The constitution of Connecticut, article first, § 4 provides: " Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty." The first amendment to the United States Constitution provides: " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Connecticut trial courts have long held that the language of § 31-51q stands for the proposition that the plaintiff must demonstrate that the defendant took the action as a result of the plaintiff's speech. See, e.g., Faghri v. University of Connecticut, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-06-5008203-S, (April 9, 2014, Dubay, J.) (" The court finds that the plaintiff has simply failed to meet his burden to establish, by a preponderance of the evidence, that the stated reasons for his removal were pretextual"); Cubilla v. Town of Montville, Superior Court, judicial district of New London, Docket No. CV-11-6010874-S, (March 18, 2014, Cole-Chu, J.) (57 Conn.L.Rptr. 860, 865) (" Courts in Connecticut have consistently held that the causation element of a section 31-51q claim requires that plaintiff prove that his speech was at least a substantial or motivating factor in the adverse employment action . . ." [Internal quotation marks omitted.]); Spiotti v. Town of Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV-12-6016564-S, (July 2, 2013, Zemetis, J.) (" Beyond proving that the employee's expression is a matter of public concern that should be protected pursuant to § 31-51q, the employee must demonstrate that the employer disciplined or discharged him because of the relevant expression." [Internal quotation marks omitted.]) " Without proof of a causal connection, there has been no compliance with the requirement in § 31-51q of 'discipline or discharge on account of the exercise by [an] employee of rights guaranteed by the . . . United States Constitution or . . . the constitution of the state . . .'" D'Angelo v. McGoldrick, 239 Conn. 356, 360, 366, 685 A.2d 319 (1996) (" In the absence of causation, [the plaintiffs'] claims under § 31-51q cannot be sustained").
When analyzing § 31-51q claims brought under the Federal Constitution, the Connecticut Supreme Court has explained that " the rule in [ Garcetti v. Ceballos, 547 U.S. 410, 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)] applies to claims under § 31-51q grounded in the first amendment that are brought against private employers, and must be considered as a threshold matter prior to undertaking the Pickering/Connick balancing test articulated in [ DiMartino v. Richens, 263 Conn. 639, 665, 822 A.2d 205 (2003)]." Schumann v. Dianon Systems, Inc., supra, 304 Conn. 610-11; see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The Connecticut Supreme Court further explained that it " agree[s] with the federal circuit courts of appeal that have considered the issue and unanimously have concluded that Garcetti adds a threshold layer of analysis, requiring courts to first determine whether an employee is speaking pursuant to his official duties before turning to the remainder of the first amendment analysis set forth in Pickering and Connick." Schumann v. Dianon Systems, Inc., supra, 604.
The court's " task, as [the United States Supreme Court] defined it in Pickering, is to seek a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (Internal quotation marks omitted.) Connick v. Myers, supra, 461 U.S. 142. " In Connick v. Myers, supra, 461 U.S. at 150, 103 S.Ct. 1684, the court added a modification to the general balancing test promulgated in Pickering . Under Connick, if a government employee's speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary . . . to scrutinize the reasons for [his or] her discharge . . . The court reasoned that if an employee's speech addresses matters of exclusively private concern, the government interest in latitude [to manage] their offices, without intrusive oversight by the judiciary . . . would outweigh the first amendment interests in the speech, absent the most unusual circumstances . . ." DiMartino v. Richens, supra, 263 Conn. 666.
" Section 31-51q applies to constitutionally protected speech, that is to say, speech that addresses a matter of public concern . . . [W]hether the subject matter addressed by a particular statement is of public concern involves a question of law for the court . . . [W]hether a particular statement addresses such a matter depends on its content, its form, and the context in which it is made. This later inquiry necessarily involves a question of fact." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 777, 734 A.2d 112 (1999). " Section 31-51q protects an employee from retaliatory discharge due to that employee's exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution . . . In Connick, the United States Supreme Court established the test for determining whether an employee's speech addresses a matter of public concern. Speech that addresses a matter of public concern involves statements that can be fairly considered as relating to any matter of political, social, or other concern to the community . . . That determination is made by evaluating the content, form, and context of a given statement, as revealed by the whole record." (Citations omitted; internal quotation marks omitted.) Id., 778-79.
The Connecticut Supreme Court addressed the issue of which test to apply to Connecticut Constitution claims under § 31-51q in Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 123 A.3d 1212 (2015). The court determined that " the weight of persuasive federal precedent favors a broader reading of the free speech provisions of the state constitution than of the first amendment." (Emphasis omitted.) Trusz v. UBS Realty Investors, LLC, supra, 205. The court explained that it found that " the Geisler factors as a whole provide considerable support for the plaintiff's claim that the Garcetti standard does not comport with the free speech provisions of the state constitution, and no such factor provides any meaningful support for a contrary determination." Id., 210. The Supreme Court concluded that " a modified form of the Pickering/Connick balancing test applies to speech by a public employee pursuant to the employee's official duties under the state constitution . . . and that § 31-51q extends the same protection to similar speech by a private employee. Specifically . . . under the state constitution, employee speech pursuant to official job duties on certain matters of significant public interest is protected from employer discipline in a public workplace, and § 31-51q extends the same protection to employee speech pursuant to official job duties in the private workplace." (Citations omitted.) Id., 179. " It is only when the employee's speech is on a matter of public concern and implicates an employer's 'official dishonesty . . . other serious wrongdoing or threats to health and safety' . . . that the speech trumps the employer's right to control its own employees and policies." (Citation omitted.) Id., 212.
The Supreme Court looked to the test found in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), to determine " the contours of the protections provided by our state constitution . . ." Trusz v. UBS Realty Investors, LLC, supra, 319 Conn. 191. " The factors that we consider are: (1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms." Id., 191-92.
In the present case, the defendant has provided substantial evidence to support its argument that the plaintiff was fired due to his poor job performance, not because of the information the plaintiff provided to the auditor. Logan's affidavit supports the defendant's allegations regarding the plaintiff's decline in job performance starting in 2008 and lasting until the defendant terminated his employment. (Def.'s Ex. A.) The affidavit also authenticates Logan's performance evaluations of the plaintiff from 2011 through 2013, which demonstrate the defendant's concerns regarding the plaintiff's performance in his role. (Def.'s Exs. A-1, A-3, A-4, A-5, and A-7.) The defendant also provided two memos from Logan to the plaintiff explaining the concerns he expressed in two separate performance evaluations in more detail with suggestions on how the plaintiff could improve his performance. (Def's Exs. A-2 and A-6.) The defendant provided a portion of a copy of the interrogatories answered by the plaintiff where the plaintiff explained the information he discussed with the auditors and why he believes he was terminated. (Def.'s Ex. B.) In the interrogatories, the plaintiff explains that he received notice of his termination on the same day that he spoke with the auditors. (Def.'s Ex. B.) In Logan's affidavit, he explains that after the plaintiff received the Written Warning on February 27, 2013, the plaintiff failed to make the necessary improvements, and, as a result, Logan met with Teixeira to recommend terminating the plaintiff's employment. (Def.'s Ex. A, ¶ 16.) Additionally, Logan explained that the plaintiff was not fired as a result of his communication with the auditors as many employees, including Logan, participated in the audit for the purpose of assisting the defendant to determine how it could save costs based on an analysis of its past spending. (Def.'s. Ex. A, ¶ 18.) The court makes a finding that the defendant has met its burden in establishing that a genuine issue of material fact does not exist that the defendant did not terminate the plaintiff's employment based on the plaintiff's speech. The burden now shifts to the plaintiff to show that a genuine issue of material fact does exist.
To support the plaintiff's argument that his speech was causally connected to his termination, the plaintiff provided two affidavits, a copy of his performance evaluation, and a copy of a decision of the Department Energy and Environmental Protection. The plaintiff's assertions in his affidavits are the only pieces of evidence that go to the causation element. The plaintiff attests that he is of the opinion that he satisfactorily performed his job duties and that he believes his communications with the auditors directly relate to his discharge. (Pl.'s Ex. 1, ¶ ¶ 5, 15.) The plaintiff also attested that he believed his job performance appraisals were contradictory in nature and that he is prepared to rebut them. (Pl.'s Ex. 2.) The plaintiff's conclusory statements and factual assertions in his affidavits are not sufficient to counter the evidence provided by the defendant in order to demonstrate that a genuine issue of material fact exists. Without concrete evidence that would raise a genuine issue of material fact as to the cause behind the defendant's termination of the plaintiff, the plaintiff has not met his burden on this motion for summary judgment.
CONCLUSION
Based upon the foregoing, summary judgment is granted in favor of the defendant because a genuine issue of material fact does not exist regarding the defendant's termination of the plaintiff's employment for his poor job performance. Because the court has decided this motion on the question of causation, the court does not need to go further in its analysis of the plaintiff's claims.