Opinion
No. CV 09-6005929-S
May 19, 2011
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
In her one-count complaint, the plaintiff, Wendy L. Rubin, alleges breach of contract arising out of the termination of her employment with the defendant town of Newington. The principal facts are as follows. The plaintiff was offered the position of superintendent of parks and recreation for the town of Newington, Connecticut, by way of letter dated August 12, 2004, from the then town manager. Following receipt of the offer by mail, she received a packet of materials which included "the Town of Newington Personnel Rules and Regulations." She began working on September 1, 2004. On August 20, 2006, John Salomone (Salomone) was appointed the town manager of the defendant. As town manager, Salomone was also the defendant's personnel director. In August 2006, Salomone became aware that several employees in the department of parks and recreation had complained about inappropriate conduct by the plaintiff. In response, Salomone commenced an internal investigation into the allegations of inappropriate behavior. Upon the conclusion of such investigation, Salomone issued a formal warning to the plaintiff. In October 2007, several parks and recreation employees made new complaints of inappropriate behavior by the plaintiff. In March 2008, in response to those employees filing formal discrimination charges against both the defendant and the plaintiff with the Connecticut Commission on Human Rights and Opportunities (CHRO), Salomone immediately placed the plaintiff on a paid administrative leave and commenced a second internal investigation into the newer allegations.
The statement of facts is derived from the following sources all of which are included in the pleadings or summary judgment exhibits: (1) the plaintiff's complaint, dated November 25, 2009; (2) the plaintiff's offer of employment letter, dated August 12, 2004; (3) the affidavit of the plaintiff dated February 24, 2011; (4) the affidavit of John Salomone, dated November 23, 2010; (5) the plaintiff's pre-termination and termination of employment letters, dated June 11, 2008 and June 13, 2008, respectively; (6) an e-mail from the plaintiff to Salomone, dated June 18, 2008; (7) a letter to the plaintiff regarding appeal of termination, dated June 18, 2008; (8) a letter affirming the plaintiff's termination, dated July 9, 2008; and (9) Town of Newington New Employee Checklist Administrative, signed by plaintiff 8/17/2004.
On June 13, 2008, Salomone terminated the plaintiff's employment, citing the findings of two internal investigation reports, dated November 13, 2006 and June 11, 2008, respectively. The plaintiff's termination letter stated, in relevant part: "For the reasons outlined in those internal reports, you have exhibited a pattern of inappropriate behavior, particularly by a Department Head, in violation of various Town Personnel Rules and Regulations. Further, your conduct reflects ineffective supervision and poor judgment which has contributed to the inability of the Parks and Recreation Department to function in a cooperative and desirable manner." On June 18, 2008, the plaintiff requested an appeal of her termination pursuant to the town's personnel rules and regulations. Following a hearing on July 1, 2008, the plaintiff's appeal was denied and the termination of her employment was upheld.
On November 30, 2009, the plaintiff commenced this lawsuit against the defendant. In her complaint, the plaintiff alleges that the defendant's personnel rules and regulations prohibited the termination of her employment without just cause and that she was terminated without just cause and has suffered financial injury as a result. Additional facts will be supplied as necessary.
Pending before the court is the defendant's motion for summary judgment, in which the defendant argues that the evidence does not support a finding that there was an implied contract between the plaintiff and the defendant; and, in any event, there was no material breach of any implied contract because the town followed its personnel rules and regulation in connection with the investigation of the plaintiff's conduct and the termination of her employment. In opposition, the plaintiff claims that she had both an express and implied contract of employment with the town promising that her employment would only be terminated based on just cause. The plaintiff further claims that there are issues of material fact that preclude summary judgment. A jury trial is scheduled for June 2, 2011.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy [its] 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 . . . 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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
I
JUST CAUSE PROTECTION
The defendant argues that no implied employment contract existed between the town and the plaintiff because the plaintiff was an at-will employee. In support of its argument, the defendant submitted an offer of employment letter that it had sent to the plaintiff, dated August 12, 2004. The letter states, in relevant part: "[Y]our initial appointment will include an evaluation period to determine the suitability of continued employment as an at-will employee in accordance with Town policies. This letter contains the complete terms of our offer of employment to you and any prior oral or written representations which are not contained in this letter are invalid." The defendant asserts that the offer letter is the only employment agreement that existed between itself and the plaintiff. In addition, the defendant submitted a handbook entitled "Town of Newington Personnel Rules and Regulations." Salomone attests that the 2005 handbook was distributed to town employees and made available to all town employees through the defendant's intranet website in 2005. The introduction of the 2005 handbook provides, in relevant part: "The contents herein are presented as a matter of information only and are not to be understood or construed as a promise or contract between the Town and its Employees. Any oral statements or representations which conflict with this position are unauthorized and may not be relied upon by any employee." The defendant argues that this disclaimer in the handbook confirms the at-will nature of the plaintiff's employment. The defendant submits an e-mail from the plaintiff to Salomone, dated June 18, 2008, citing section 8.3 of the 2005 handbook and argues that this is proof that the plaintiff received and relied on the 2005 handbook.
This personnel handbook is dated July 1, 2005. Accordingly, this handbook is referred to as "the 2005 handbook."
The defendant also claims that an earlier handbook, entitled "Personnel Rules for employees in the Classified Service," which was admittedly given to the plaintiff at the time she was hired in August 2004, also did not provide a definite promise that the defendant would terminate her only for just cause. Specifically, the defendant asserts that the 1967 handbook does not reference a just cause standard and reserves to the town manager's discretion and authority to determine what rule violations warrant disciplinary action, when discipline should be imposed and which disciplinary action is appropriate. The defendant cites several sections of the 1967 handbook which vest the personnel director with discretion to make these determinations. The defendant also cites section 8.6 of the 1967 handbook, appellate procedures for disciplinary actions, which vests the town manager with the power to make a final decision in granting an appeal. The defendant argues that the reservation of such discretion and authority to the personnel director and town manager, precludes a finding of a promise to create an implied employment contract between the plaintiff and the defendant. No disclaimer appears in the 1967 handbook stating that the handbook was for informational purposes only.
This personnel handbook was adopted in 1967 and last revised on September 29, 1982. Accordingly, this handbook is referred to as "the 1967 handbook."
The defendant cites sections 8.1, 8.3, 8.4, 8.5 and 8.7 of the 1967 handbook.
In her opposition, the plaintiff counters that the 1967 handbook creates an express employment contract between herself and the defendant. In the alternative, the plaintiff argues that the defendant's words, actions and conduct affording just cause protections and progressive discipline to other employees confirmed her understanding that there was an implied contract between herself and the defendant pursuant to the rules and regulations in existence at the time she was hired affording just cause protection and progressive discipline. In support of this argument the plaintiff cites examples of progressive discipline of employees under her supervision by the defendant, which supported her understanding that employees were given notice of potential discipline and an opportunity to be heard. In addition, the plaintiff argues that the 1967 handbook governed her employment and that she is not bound by the 2005 handbook because the defendant did not provide consideration to make that handbook an enforceable contract and she never accepted it in substitution of the earlier handbook.
In its reply memorandum, the defendant maintains that no express contract providing just cause protection was created between the plaintiff and defendant. Specifically, the defendant argues that the 1967 handbook does not provide a clear and definite promise of just cause protection because that handbook vests discretionary power in the personnel director and the town manager. The defendant also argues that no implied contract existed between the plaintiff and defendant because the plaintiff failed to provide any legal basis as to why imposing progressive discipline on other employees could create an implied contract with a just cause termination standard.
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability." (Internal quotation marks omitted.) Joyner v. Simkins Industries, Inc., 111 Conn.App. 93, 97, 957 A.2d 882 (2008). "Pursuant to traditional contract principles, however, the default rule of employment at will can be modified by the agreement of the parties . . . Accordingly, to prevail [on a claim alleging] the existence of an implied agreement between the parties, the plaintiff [has] the burden of proving by a fair preponderance of the evidence that [the employer] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause." (Citation omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995); see Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999) ("It is firmly established that statements in an employer's personnel manual may . . . under appropriate circumstances . . . give rise to an express or implied contract between employer and employee." [Internal quotations marks omitted.])
"To determine the contents of any particular implied contract of employment, the factual circumstances of the parties' relationship must be examined in light of legal rules governing unilateral contracts . . . Pursuant to the legal principles governing such contracts, in order to find that an implied contract of employment incorporates specific representations . . . contained in provisions in an employee manual, the trier of fact is required to find the following subordinate facts. Initially, the trier of fact is required to find that the employer's . . . issuance of a handbook to the employee was an `offer' — i.e., that it was a promise to the employee that, if the employee worked for the company, his or her employment would thereafter be governed by those . . . written statements . . . If . . . the handbook [constitutes] an `offer,' the trier of fact then is required to find that the employee accepted that offer . . . [T]he issuance of subsequent handbooks must be evaluated by the same criteria. To be incorporated into the implied contract of employment, any such . . . handbook must constitute an offer to modify the preexisting terms of employment by substituting a new implied contract for the old. Furthermore, the proposed modifications, like the original offers, must be accepted." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 13-14.
"When an employer issues an employment manual that confers on an employee greater rights than he or she previously had, the employee's continued work for the employer thereafter ordinarily demonstrates that the employee has accepted that offer of new rights . . . When an employer issues an employment manual that substantially interferes with an employee's legitimate expectations about the terms of employment, however, the employee's continued work after notice of those terms cannot be taken as conclusive evidence of the employee's consent to those terms . . . The fact that an employee continues working, therefore, may be relevant to determining whether he or she consented to the new contract, but cannot itself mandate a finding of consent." (Citations omitted; internal quotation marks omitted.) Id., 18-19.
Sections 8.1-8.10 of the 1967 handbook set out disciplinary procedures for town employees. Section 8.1 states: "Except as otherwise provided in these Rules, the tenure of an employee shall continue during good behavior and the satisfactory performance of assigned duties." Section 8.4 provides, in relevant part: "The appointing authority may dismiss, suspend, or place on disciplinary probation an employee only for cause . . . with the prior approval of the Director." Section 8.5, entitled "Just Causes for Disciplinary Action," provides a non-exhaustive list of just causes for disciplinary action. Section 8.6 provides procedures for employees to take in order to appeal disciplinary decisions. Section 8.7 vests discretion in the appointing authority and the director to determine what form of disciplinary action is proper. Section 8.7(b), however, states: "Normally an employee shall be given at least one written warning and an opportunity to correct his/her performance prior to being subject to more serious disciplinary action. However, a major offense as determined by the appointing authority may be cause for serious disciplinary action, up to and including dismissal, without such warning."
Rule 1(b) of the handbook defines "appointing authority" as "the Town Manager, the Superintendent of Schools, or a department head authorized by the Town Charter to make appointments in organizational units under their charge." Rule 1(k) defines "Director" as "the Town Manager or person appointed or designated by the Town Manager to be Director of Personnel and who is responsible for personnel administration for the classified service."
Although the employment letter the plaintiff signed when she first started working stated she was an at-will employee, the letter stated that prior oral and written representations were not part of the offer of employment. A plain reading of the offer of employment letter reveals that the employment relationship could be subsequently modified. Like other contract modifications, whether an employment agreement has been modified is a question of fact. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 15 (finding that employment agreement has been modified requires fair preponderance of the evidence that employer undertook agreement to modify existing relationship); see also Shelton v. Olowosoyo, 125 Conn.App. 286, 291, 10 A.3d 45 (2010) ("[W]hether the parties to a contract intended to modify the contract is a question of fact").
In the present case, the plaintiff signed the offer of employment letter on August 13, 2004 and then signed the checklist confirming she received the 1967 handbook on August 17, 2004.
Despite the defendant's insistence that the 1967 handbook vested disciplinary discretion in the personnel director and the town manager, the specific provisions of the 1967 handbook provide a framework which limits the exercise of that discretion. Section 8.1 states that a town employee's employment "shall continue during good behavior and the satisfactory performance of assigned duties." Section 8.4 specifically states that, after approval from the Director, a town employee may only be disciplined for cause. Section 8.5 provides a list of just causes for disciplinary action against town employees. Section 8.6 allows employees to appeal disciplinary decisions. Although the 1967 handbook does not explicitly state that an employee may only be terminated for just cause, such an explicit statement is not required for a just cause requirement to exist. See Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 533 (where personnel manual does not contain provision regarding at-will or just cause for termination, it is question of fact as to whether parties intended to include contractual commitments into employment relationship). The wording of the 1967 handbook alone suggests that town employees have greater job protections than that of at-will employees.
The exhibits and the plaintiff's affidavit establish that the plaintiff acknowledged receipt of the 1967 handbook on August 17, 2004 before she commenced her employment on September 1, 2004. (Defendant's exhibit 5; plaintiff's exhibit A.) Consistent with her claim that the 1967 handbook governed her employment, in her deposition the plaintiff testified that she was under the impression that to be terminated, an employee must commit a serious violation of the personnel rules and regulations and that the defendant promised her that it would employ progressive disciplinary measures before terminating her. Further, unlike the 2005 handbook, the 1967 handbook did not contain a disclaimer stating that the handbook was for informational purposes only. Additionally, it is disputed whether the 2005 handbook took effect. When given a copy of the 2005 handbook at her deposition, the plaintiff stated that she did not recognize the manual, that she had never seen it before and that the personnel manual she received when she started working was a different one. At the same time, Salomone, in paragraph four of his affidavit, attests that the 2005 handbook was distributed to employees. Although the e-mail from the plaintiff to Salomone, dated June 18, 2008, which states that the plaintiff took her appeal pursuant to section 8.3 of the personnel manual, arguably supports a finding that she accepted the 2005 handbook, her statement at her deposition that she had never seen it before raises an issue of material fact and does not resolve the issue of which manual was applicable to her employment. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 18-19 (employee's continued work after receiving employment manual only provides evidence of consent to manual, rather than providing conclusive proof of consent). A jury could find that the rules of the 2005 handbook did not become binding on the plaintiff because it is unclear whether she agreed to them. See id. (whether subsequent employment manual became binding is question of fact). Whether the 1967 or the 2005 handbook applies to the plaintiff's termination is material to the issue of whether or not there is a contract between the parties requiring just cause for dismissal. Because the moving papers and exhibits leave this issue in dispute, the defendant has failed to meet its burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment.
In her memorandum, the plaintiff argues that section 8.3 of the 1967 handbook and section 8.3 of the 2005 handbook are identical. However, section 8.3 of the 1967 handbook is entitled "Forms of Disciplinary Action," listing various types of disciplinary action and section 8.3 of the 2005 handbook is entitled to "Appeal of Disciplinary and Other Actions."
II
BREACH OF CONTRACT
The defendant argues that even if an implied employment contract exists, there was no breach of contract because there was just cause to terminate the plaintiff's employment. Specifically, the defendant relies upon the 2008 investigation report that was written after the investigation into the allegations against the defendant and the plaintiff made in the CHRO complaint as establishing just cause to terminate the plaintiff's employment. The plaintiff counters that there are material issues of fact concerning whether the findings of the 2008 investigative report established just cause to terminate the plaintiff's employment.
In its memorandum, the defendant also argues that there can be no breach of contract because it complied with all of the written regulations in both the 1967 handbook and the 2005 handbook. However, in her complaint, the plaintiff alleges that a breach of contract occurred because she was terminated without just cause; not because procedures were not complied with. The distinction involves some hair splitting because Section 8.5 of the rules and regulations set forth in the 1967 handbook contains a provision which lists "Just Causes for Dismissal," and, the court addresses herein, these arguments further highlight the disputed issues of fact that preclude summary judgment.
Although Salomone, in his termination of employment letter to the plaintiff, relied on the findings of 2006 investigation report and the 2008 investigation report in terminating the plaintiff's employment, in its memorandum, the defendant only cites the 2008 investigation report in arguing that just cause existed to terminate the plaintiff.
The plaintiff argues that the 2006 and 2008 investigation reports contain inadmissible hearsay. The defendant counters that although both reports contain out of court statements, the statements may be offered to show the effect the statements had on Salomone, the person responsible for terminating the plaintiff's employment. However, the relevant consideration on the issue of breach of contract is not the effect on the hearer but whether or not the allegations made against the plaintiff were true. Therefore, the reliability of the allegations against the plaintiff were essential to a determination of just cause. Much of the 2006 and 2008 investigative reports contain multiple forms of hearsay.
The plaintiff also challenges the objectivity and credibility of the findings of both investigations because the two lawyers who conducted the investigations were each associated with the town's labor counsel, Attorney Kenneth R. Plumb, in the practice of law. Although they were members of different law firms, Attorney Plumb was associated with each attorney at the time of that attorney's investigation.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 117 Conn.App. 550, 979 A.2d 1055 (2009). "Whether there was a breach of contract is ordinarily a question of fact." Colliers, Dow Condon, Inc. v. Schwartz, 77 Conn.App. 462, 471, 823 A.2d 438 (2003).
"It is well settled that courts should not lightly intervene to impair the exercise of managerial discretion . . . Although `just cause' substantially limits [managerial] discretion, this simply means that employers are forbid[den] . . . to act arbitrarily or capriciously . . . In other words, an employer who wishes to terminate an employee for cause must do nothing more rigorous than proffer a proper reason for dismissal." (Citations omitted; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 539; see Slifkin v. Condec Corp., 13 Conn.App. 538, 549, 538 A.2d 231 (1988) ("Good cause, as distinguished from the subjective standard of unsatisfactory service, is defined as [s]ubstantial reason, one that affords a legal excuse . . . [l]egally sufficient ground or reason." [Internal quotation marks omitted]).
In March 2008, in response to several parks and recreation staff members filing harassment and retaliation claims with the CHRO against both the plaintiff and the defendant, the town hired Attorney Daniel P. Murphy, of Siegel, O'Connor, O'Donnell Beck, P.C., to conduct an investigation into the allegations made by those staff members. The plaintiff, in her affidavit, attests that Murphy was selected to perform the investigation by Attorney Kenneth R. Plumb, the defendant's labor counsel who, at the time, worked at the same law firm as Murphy. The plaintiff also attests that for the 2006 investigation, Salomone hired Attorney William F. Clark, to conduct the investigation. Attorney Clark was affiliated with the law firm of Berchem, Moses and Devlin, P.C., where Plumb worked at that particular time.
The following staff members filed CHRO complaints of retaliation and harassment against both the town and the plaintiff: Allison Alberghini; Donna Allen; Ted Fravel; Karen Gallicchio; and Kristine Kravontka.
In his investigation report, Attorney Murphy stated that the allegations made by the complainants fell into the following categories: "[the plaintiff] violated directives to remain silent concerning the [2006 investigation] by confronting individual employees about the investigation, their participation and its outcome"; "[the plaintiff] treated individuals inappropriately in the workplace"; "[the plaintiff] inappropriately accessed the computers of her staff members"; "[d]isparaging remarks were made by [the plaintiff] about the Parks Recreation staff to both staff members and third parties"; "[d]isparaging remarks were made by [the plaintiff] to Parks Recreation staff about the Parks Recreation Board"; "[the plaintiff] made disparaging racial and ethnic remarks and insensitive remarks about program participants to or in the presence of staff members"; "Specific acts of retaliation were undertaken by [the plaintiff] against individual employees concerning their participation in the initial investigation, including, but not necessarily limited to, the demotion of Mr. Fravel and poor work evaluations issued to Mr. Fravel and Ms. Kravontka"; and, "[c]omplaints were brought to the attention of [Salomone] in or about October 2007 and no action was taken to address or otherwise resolve the allegations."
Murphy's report does not make clear who "program participants" were.
During the course of the investigation, Murphy interviewed the town employees who brought the complaints, several other town employees, Salomone and the plaintiff.
In his findings, Murphy addressed each category of allegations. Regarding the allegation that the plaintiff violated directives to remain silent about the 2006 investigation, Murphy found that any comments made by the plaintiff were "nothing more than attempts by [the plaintiff] to move forward and work together and in of themselves, [did] not violate the directive to not discuss the prior investigation" and that the statements by the complainants, with respect to this allegation, were not credible. Regarding the allegation that the plaintiff treated other individuals inappropriately in the work place, Murphy addressed an incident where the plaintiff allegedly yelled at one of the complainants, calling her incompetent because of payroll improprieties, and addressed another incident where the plaintiff chided another employee's new business cards after that employee was demoted. Murphy discredited the witnesses who provided the facts supporting this allegation and found the plaintiff to be more reliable. Murphy also found, however, that "[the plaintiff's] expressing her discomfort to her staff [was] inappropriate, if not unprofessional. Supervisors must regularly make uncomfortable decisions or take less than desirable actions. There [was] no need for sharing personal discomfort or opinions concerning staffing matters with subordinate staff not directly involved in a particular matter." Murphy noted in this section of his findings that the plaintiff accessed another employee's computer, and did not provide a separate section in his findings addressing that allegation.
In approaching the issue of whether the plaintiff made disparaging remarks about parks and recreation staff to both staff members and third parties, Murphy separately addressed remarks made to staff members and remarks made to third parties. As to whether the plaintiff made disparaging remarks to staff members about other staff members, Murphy found that "if nothing else, this served to undermine [the plaintiff's] ability to serve as an effective supervisor in the office." However, he also remarked that to make specific findings was "nearly impossible . . . given the vagueness of the witness statements and the significant passage of time." Regarding whether the plaintiff made disparaging remarks to third parties about staff members, Clark reported two anecdotes related by one of the complainants. The first alleged that an employee from another town's department of parks and recreation referred to the Newington department as a "bunch of idiots," a comment that the complainant believed was derived from information shared by the plaintiff while attending an out of town conference with her counterparts concerning certain Occupational Safety and Health Administration violations. The second anecdote was reported by Murphy as not based on any evidence tied to the plaintiff.
As to the issue of whether the plaintiff made disparaging remarks to staff members about the parks and recreation board, several complainants alleged that the plaintiff referred to the board as "all a bunch of losers." Murphy found that while there was credible evidence that the plaintiff made the statement, there was not enough evidence of context to determine whether it was said "sarcastically, jokingly or seriously." Regarding whether the plaintiff made disparaging racial, ethnic or insensitive remarks in front of staff members, Murphy found that the various witness statements were vague and inconsistent and he could not conclude that they occurred as reported. Regarding whether the plaintiff undertook specific acts of retaliation against individual employees concerning their participation in the 2006 investigation, Murphy found any actions taken against them to be justified and the allegations as they related to the plaintiff to be unsubstantiated. Finally, regarding the issue that no action was taken to address complaints that were brought to Salomone's attention in October 2007, Murphy found that four of the five witnesses "offered conflicting information."
After stating his findings, Murphy reached several conclusions. He found that none of the allegations rose "to the level of illegal or discriminatory harassment." Although one incident that was of a "sexual" nature was confirmed, it did not rise to the level of harassment but was inappropriate conduct for the workplace. Murphy reported that the witnesses stated that the plaintiff treated everyone the same way, regardless of who they were and none of the claimants alleged harassment based upon membership in a protected class. Further, there was no evidence to suggest that the plaintiff engaged in unlawful retaliation relating to the 2006 investigation.
Based on the foregoing principal findings, Murphy found that there was conduct involving the plaintiff which was "inappropriate for the workplace and [constituted] misconduct for which disciplinary consequences could be imposed," including the following: accessing Fravel's computer; modifying and publishing a cartoon in which she referenced other staff members; an inappropriate comment concerning her appointment for a mammogram; a statement to the staff that everyone needed to "move forward" from the prior investigation after being instructed to maintain confidentiality and not to discuss the prior investigation; a comment that the parks and recreation commission were a bunch of losers; her overall approach to management and her interactions with others; and the tendency of the plaintiff to yell at or berate employees and/or discuss performance issues freely with individuals other then the person whose performance is in question.
According to the 2008 investigation report, the plaintiff brought a doctored "Dilbert" cartoon into the office, inserting staff member names into the cartoon. The plaintiff gave the cartoon to Alberghini for her to copy for herself but Alberghini later shared the cartoon with others. Murphy stated that the plaintiff brought the cartoon in the office to have a "laugh about stuff" and was "trying to relax things" in the office.
Murphy noted that Alberghini stated that on one occasion, the plaintiff said that she was leaving to get a mammogram and that she was going to get her "boobs squished," grabbing her own breasts. Apparently Alberghini relayed this comment to other staff members by announcing to the office: "If anyone wants to know where the Superintendent is, she's getting her boobs squished."
Murphy also stated that the foregoing issues were not insignificant and should be considered in the context of the plaintiff's disciplinary history and in conjunction with the town's personnel rules and/or charter. Overall, Murphy noted, "alone or taken together," are of serious concern and "are acts of misconduct by a high level management employee in charge of an entire department." He further commented that these "transgressions . . . seriously impact" the plaintiff's ability to manage the parks and recreation department effectively. He noted that it was "particularly problematic" that the plaintiff had previously been warned about misconduct as a result of the 2006 investigation, that the conduct that was the subject of the 2008 investigation violated the town's personnel rules and regulations and, among other things, constituted insubordination.
Murphy noted that after the prior investigation, the plaintiff was warned that her conduct violated section 8.2(c) of the 2005 handbook, "Employee has been guilty of any conduct unbecoming of an officer or employee of the Town"; and section 8.2(f) of the 2005 handbook, "Employee is offensive in his/her conduct or language in public, or towards students, Employees or the public." Murphy stated that the plaintiff's conduct in the later incidents, in addition to violating these two provisions of the 2005 handbook, violated section 8.2(d), "Employee has violated any official regulation, policy, or order, failed to obey any proper direction made or given by a superior, or has otherwise been guilty of insubordination."
Murphy concluded his report with the following statement: "These acts of misconduct as set forth above demonstrate poor supervisory performance over the course of time. They appear to be part of a pattern of behavior that demonstrates, rather clearly, inappropriate supervisory behavior and poor judgment that warrant disciplinary action."
"Furthermore, it was quite clear to this investigator that the individual complainants are unwilling or otherwise unable to work with or for [the plaintiff] and, similarly, [the plaintiff] is unwilling or unable to find a way to get her subordinate employees to cooperatively work for her and together effectively. It is quite clear that the ability of this office to effectively function internally has been dramatically compromised, a fact that should not go ignored by [the defendant] . . ."
"There is no evidence to support that [the plaintiff] has engaged in unlawful discriminatory harassment or retaliation in the workplace. There is, however, significant evidence to support the finding that [the plaintiff's] conduct violated the [defendant's personnel policies]. Her misconduct is viewed as being even more egregious in light of the fact that [the plaintiff] was disciplined and warned to not engage in future inappropriate misconduct only a little over one year before these allegations surfaced."
Despite the fact that Murphy cited two provisions in the 2005 handbook that the plaintiff's conduct violated, there are several inconsistencies between Murphy's findings and his conclusions. First, Murphy provides contradictory statements regarding whether the plaintiff violated the directive to not discuss the 2006 investigation. In his findings, Murphy explicitly noted that the plaintiff's comments about moving forward did not violate the directive and the complainants were not credible with respect to this issue. Yet, in his conclusion, he stated that the plaintiff should be disciplined for violating the directive not to discuss the prior investigation when she made comments about moving forward. Murphy then went on to cite a specific section of the 2005 handbook, which makes violating a directive grounds for disciplinary action. Second, regarding the allegation that the plaintiff treated staff members inappropriately in the work place, specifically yelling at others, Murphy cited one incident in his findings and found that the witness providing facts for this allegation was not credible. In his conclusions, however, Murphy cited the plaintiff's tendency to yell or berate others as a ground for punishment. Third, regarding the allegation that the plaintiff made disparaging remarks about parks and recreation staff members to both staff members and third parties, Murphy found that the allegations of retaliation by the plaintiff against other staff members were unfounded. As to his finding that the plaintiff stated that the Parks and Recreation Commission were "a bunch of losers," in his discussion of this incident, Murphy noted that there was no evidence of the context in which this remark was made.
Based on these inconsistencies, it is curious that Murphy's conclusions were stated in such highly critical terms. The conclusions arguably lack explicit findings to support his statement that "[the plaintiff's] overall approach to management and her interactions with others" was inappropriate and that she should be punished for it. It is also curious that while Murphy reported that the individual complainants were unwilling and unable to work with or for the plaintiff and that much of what they had to offer in their individual interviews was not credible or vague, he states no conclusions regarding the quality of the evidence they offered against the plaintiff. Finally, early in his report, although Murphy disclaims any relationship with the complainants or the plaintiff, he conspicuously makes no mention of the fact that his law firm also employed Attorney Plumb, the town's labor counsel and, that by way of the association, Murphy himself had an attorney-client relationship with the town which preceded the investigation. Also, a factor that cannot be ignored, as highlighted by the plaintiff, is that the 2008 investigation was prompted by, and conducted during, a simultaneous investigation by the CHRO based on the complaints of several of the key witnesses against the plaintiff.
Based on the town's reliance on the 2008 report in support of just cause for the plaintiff's dismissal and the above noted disconnect between some of the findings and conclusions of the investigator, the ongoing attorney-client relationship between the investigator and the town combined with the fact that five CHRO complaints were also pending against the town and the plaintiff at the time of the 2008 investigation and report, and the questionable credibility and vagueness of many of the witnesses' statements as noted by the investigator, there are numerous questions of fact relating to the issue of just cause which cannot be resolved in the context of a summary judgment motion.
CONCLUSION
Accordingly, for all the foregoing reasons, the motion for summary judgment is hereby denied.