Opinion
No. HHD-CV 03 08226902
September 4, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The individual defendants, Arthur Rocque, David Leff, Richard Clifford, George Barone, Henry Peck, and Eric Nelson, have moved for summary judgment on Counts 3-35 of the plaintiffs' Revised Complaint of April 18, 2003. The bases of the motion are that with respect to Counts 3 through 14, the First Amendment rights of the plaintiffs were not violated because their speech was made as part of their official duties and with respect to Counts 27 through 35, the plaintiffs have failed to set forth a cognizable claim for intentional infliction of emotional distress. In their Memorandum in Opposition to Summary Judgment, the plaintiffs have withdrawn Counts 15-26 of the Revised Complaint.
Facts
The parties disagree as to many or the facts of the case. However, the disagreement is not with respect to facts material to the grounds of the summary judgment. The Revised Complaint alleges that the plaintiffs, Timothy Skaats and Henry Konow, were captains in the State of Connecticut Department of Environmental Protection ("DEP") Law Enforcement Division. While conducting an authorized internal affairs investigation in the western district for the DEP, the plaintiff's uncovered evidence of obstruction of justice and other possible crimes and reported the possible wrongdoing and suspected violations in January of 2001 in a report to the defendant, Colonel George Barone, their commander. Upon issuing the report, the plaintiffs were advised that they had acted beyond the scope of their authority by Barone. Paragraph 5 of Counts 3-8 (as to Skaats) and of Counts 9-1 4 (as to Konow) against defendants Rocque, Leff, Clifford, Barone, Peck, and Nelson, respectively, allege that: "The plaintiff . . . was subjected to a hostile work environment by the defendant . . . as a result of reporting said potential wrongdoing and violations to his superior as required by his sworn duty to the public body."
The defendants have presented evidence in the form of the deposition testimony of Konow that Barone's specific instruction to Skaats in July, 2000, was to investigate whether the Lake Candlewood Patrol Officers followed DEP guidelines and procedures relating to a pontoon boat incident that occurred on Lake Candlewood on July 1, 2000. After questioning numerous witnesses involved with the pontoon boat matter, Skaats and Konow submitted an internal affairs report. That report included information about the pontoon boat incident, but also made a claim that DEP Sgt. Brelsford was involved in a cover-up of a 1995 stolen jet ski incident that implicated the son of then Lt. Governor Rell. In the report Skaats and Konow alleged that Brelsford and high level officials at DEP may have violated federal and state law.
Barone requested Skaats and Konow to separate their findings with respect to the pontoon incident and the jet ski incident. They submitted a revised report, but did not separate their findings.
Barone requested the Connecticut State Police to investigate the allegations of a cover-up made by Skaats and Konow.
Skaats and Konow were removed from the Candlewood Lake investigation by Barone. They then filed a grievance based on this removal. The Revised Complaint alleges that on May 29, 2001 Skaats and Konow registered with the Auditors of Public Accounts pursuant to Connecticut General Statutes § 31-51m, which protects so-called whistleblowers. It further alleges that the defendants disciplined, and discriminated against the plaintiff because they filed a grievance and registered as whistleblowers.
The DEP also began an internal affairs investigation into the specific allegations made by Skaats and Konow against Sgt. Brelsford. While Skaats and Konow submitted written statements to the DEP investigators, they refused to testify in that investigation even after being ordered to do so by their superiors. The defendants allege that the disciplinary action taken against the plaintiffs was for that failure to testify.
Ultimately the DEP did order the termination of both Skaats and Konow. However, after an investigation by the Attorney General's office, the terminations were rescinded.
Discussion of the Law and Ruling CT Page 15360
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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stain, 224 Conn. 524, 530, cert denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
The defendants argue that Counts 3-14 of the Revised Complaint allege a violation of 42 U.S.C. § 1983. They further argue that that statute can only be used to vindicate federal rights and, therefore, it must refer to the First Amendment right of free speech, as that is the only federally protected right alleged in the Revised Complaint. The plaintiffs allege that the actions taken against them by the defendants were taken as a result of their "reporting" of alleged wrongdoing. ¶ 5 and ¶ 11 of Counts 3-14.
In Garcetti v. Ceballos, 547 U.S. 410, 412, 126 S.Ct. 1951, 1957, 164 L.Ed.2d 689 (2006) the United States Supreme Court considered whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties. It concluded that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposed, and the Constitution does not insulate their communications from employer discipline." Garcetti, supra, 126 S.Ct. at 1960.
Garcetti involved a deputy district attorney, Richard Ceballos, who reviewed a search warrant affidavit in a pending criminal case at the request of a defense attorney. Ceballos found that the warrant had substantial inaccuracies, which he reported to his superiors. Notwithstanding Ceballos' opinion with respect to the search warrant affidavit, the trial court found that the warrant was valid. Ceballos alleged that thereafter he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another court-house, and denial of a promotion. When his grievance was unsuccessful, Ceballos brought an action in federal district court under 42 U.S.C. § 1983, claiming a violation of his First Amendment rights.
The District Court granted summary judgment against Ceballos on the grounds that his speech concerning the search warrant was not protected because it was made in the course of his duties as a prosecutor. The Ninth Circuit Court of appeals reversed based on Pickering v. Board of Ed., 391 U.S. 563, 88 S.Ct. 1731 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
The Court in Garcetti reviewed the existing law:
Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id., at 568. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. See Connick, supra, at 147. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, 391 U.S., at 568. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.
Garcetti, supra, 547 U.S. at 418.
The Court in Garcetti, held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti, supra, 547 U.S. at 421. While the parties dispute many of the facts here, there is no dispute that when Skaats and Konow reported the alleged jet-ski "cover-up" they were acting pursuant to their official duties. The defendants have provided evidence that both Skaats and Konow have testified under oath to that effect. Moreover, the Revised Complaint alleges that: "The plaintiff . . . was subjected to a hostile work environment by the defendant . . . as a result of reporting said potential wrongdoing and violations to his superior as required by his sworn duty to the public body." Paragraph 5, Counts 3-14.
In DeFilippo v. N.Y. State Unified Court System, 223 Fed.Appx. 45 (2d Cir. 2007), the Second Circuit Court of Appeals affirmed a summary judgment granted in favor of the defendants in a First Amendment retaliation case brought by a court officer against his former state employer. DeFilippo, a court security officer, brought suit pursuant to 42 U.S.C. § 1983 claiming that the defendants retaliated against him for speaking out against fellow employees of the New York State Unified Court System in violation of his rights under the First and Fourteenth Amendments.
The district court performed an analysis under Pickering and Connick, and found that the plaintiff's speech was made for the purpose of his own personal, work-related interests or was made in the course of performing his duties and was not subject to First Amendment protection. On appeal, the Court held that even if DeFilippo's speech was made for a public purpose, his First Amendment claim was barred by Garcetti:
As DeFilippo conceded in his deposition, the report was prepared pursuant to DeFilippo's official job duties as a court officer. Accordingly, the report was not protected by the First Amendment. See Garcetti, 126 S.Ct. at 1960. ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.")
DeFilippo, supra, 223 Fed.Appx. at 46.
In Barclay v. Michalsky, 462 F.Sup.2d 269 (D.Conn. June 27, 2007), the plaintiff, a nurse at the Connecticut Valley Hospital, claimed that she was wrongly disciplined for reporting several incidents of alleged excessive patient restraints. She brought a claim under 42 U.S.C. § 1983 alleging retaliation for exercising her First Amendment rights. In granting the defendant's motion for summary judgment, the court observed that the plaintiff herself had admitted that her job duties required her to report the alleged improper patient restraint incidents and, therefore, her speech was not protected under Garcetti.
The plaintiffs have admitted in their depositions and in the Revised Complaint that the report, which they allege to be the cause of the retaliation and harassment, was made pursuant to their duties as DEP employees. To the extent that a public employee makes statements pursuant to his official duties, those statements are not protected by the First Amendment, even if the speech touches on matters of public concern. Garcetti, supra, 126 S.Ct. at 1960.
Based on the foregoing, the First Amendment claims which the plaintiffs make via 42 U.S C. § 1983 are barred under Garcetti.
The plaintiffs have not really addressed the Garcetti case at all. Instead they suggest that they are seeking to vindicate federal constitutional property rights. The Revised Complaint fails to allege any such rights. The plaintiffs also argue that 42 U.S.C. can be used to vindicate state law claims. This is not correct. The United States Supreme Court has stated many times that § 1983 is not itself a source of substantive rights, but a method for vindicating federal rights conferred by the U.S. Constitution and federal statutes. City of Monterey v. Del Monte Dunes, 526 U.S. 687, 749, n. 9, 119 S.Ct. 1624 (1999); Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
The plaintiffs also refer to their rights under Connecticut General Statutes § 31-51q. That statute provides:
Liability of employer for discipline or discharge of employee on account of employee's exercise of certain constitutional rights.
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 . . .
Emphasis added.
While the plaintiffs have alleged a violation of Connecticut General Statutes § 31-51m, they have not sought to recover under § 31-51q. However, if they had, arguably, the rationale of Garcetti would still serve to bar the action under that statute insofar as the speech in question was admittedly done pursuant to their job duties.
The defendants also argue that even if the plaintiffs had plead a violation of § 31-51q in Counts 3 through 14, summary judgment must still enter on those counts because § 31-51q applies only to employers. While no appellate court of this state has had occasion to consider the question of whether § 31-51q creates individual liability in any person other than the employer, the federal district court in Nyenhuis v. Metropolitan District Commission, Case No. 3:08CV069(AWT) (D.Conn. 3-17-2009), held that that statute by its terms applies only to the employer.
Such a conclusion appears clear from the language of the statute which refers to prohibitions against "any employer." Moreover, the Connecticut Supreme Court has held that when the legislature uses the term "employer" in statutory language it denotes no personal liability. Perodeau v. City of Hartford, 259 Conn. 729, 737, 792 A.2d 752 (2002). In that case the Court considered whether Connecticut General Statutes § 46a-60(a)(1) of the Connecticut Fair Employment Practices Act provides for personal liability. It held that the statutory reference to "employer" as opposed to "person," used in other sub-sections of the statute, denoted no personal liability.
The language of the statute and the Supreme Court's interpretation of the word "employer" in a similar statute creates liability only in the employer, in this case, DEP, but not in the other defendants. For the foregoing reasons, summary judgment in favor of defendants Rocque, Left, Clifford, Barone, Peck, and Nelson hereby enters on Counts 3-14.
To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish: "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that the emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). The question of whether a defendant's conduct is sufficient to satisfy the extreme and outrageous element is in a first instance for the court. Carnemolla v. Walsh, 75 Conn.App. 319, 331, 815 A.2d 1251 (2003). Liability for intentional infliction of emotional distress can be found:
only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts of an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!
Carrot v. Allstate Insurance Co., 262 Conn. 433, 443, A.2d (2003) (quoting Restatement (Second) § 46 Torts, comment d (1965)).
In assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping function. Hartmann v. Gulf View Estates Homeowners Ass'n, 88 Conn.App. 290, 295, 869 A.2d 275 (2005). In exercising this responsibility this court must determine whether the plaintiff has alleged conduct which a reasonable fact finder could find to be extreme and outrageous. Id.
In an employment setting, employees "reasonably should expect to be subject to routine employment-related conduct" including performance evaluations, decisions involving transfer, demotion, promotion and compensation and "disciplinary or investigatory action arising from actual or alleged employee misconduct." Perodeau v. City of Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002). While employees should not expect to be subject to conduct that "transgresses the bounds of socially tolerable behavior," the Court has stated that "it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace." Id. Emotional distress of the type described by the plaintiff is not actionable because employees "reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like." Id.
"[L]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
In the case of Carrol v. Allstate Insurance Co., 262 Conn. 433, 815 A.2d 119 (2003), the plaintiff insured brought an action against his insurer to recover for breach of contract and infliction of emotional distress arising from the insurer's treatment of him during its investigation after a fire. The plaintiff presented evidence of poor and impulsive investigation as well as evidence that the inspectors' determination of arson might have been influenced by the fact that the plaintiff was an African-American. Id. at 441. The plaintiff overheard one of the inspectors say "the son of bitch is mine" when he was told that the homeowner was black. Id. at 441. There was harassment from frequent interviews and recurrent inspections of the house. Additionally, the plaintiff was made to feel like a criminal by offensive questions insinuating criminal behavior during the interviews. Id. Nevertheless, the Court ruled that the conduct was not sufficient for a jury to reasonably conclude that the defendant's conduct in its fire investigation was extreme and outrageous. Id. at 443. "The plaintiff produced evidence that the defendant did not conduct a thorough or reasoned investigation and may have decided too quickly that the fire had been set deliberately. As distressing as this insurance investigation may have been to the plaintiff, however, it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress." Id. at 444.
In Carnemolla v. Walsh, 75 Conn.App. 319, 332, 815 A.2d 1251 (2003), cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), the Appellate Court held that the defendant's action of accusing the plaintiff of embezzling company funds and requesting that the plaintiff sign resignation and release forms in front of the plaintiff's coworker was not outrageous and extreme conduct. The Court compared the conduct of the defendant to conduct which occurred in Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001), where the defendants hypercritically scrutinized every aspect of the plaintiffs work and personal life, publicly admonished her and organized a plan to force her to resign. The foregoing conduct was not held to be outrageous or extreme. Carnemolla, at 333. The Court also looked at Appleton v. Board of Education, supra, where the plaintiff was subjected to condescending comments by the employer, subjected to two psychiatric evaluations, escorted off the employer's premises by police and forced to resign. Nonetheless, the defendant's conduct was determined to be not outrageous or extreme. Carnemolla, at 333.
In this case Skaats and Konow allege that they were removed from the pontoon boat investigation, given a written reprimand and threatened with termination. The defendants' alleged conduct does not even rise to the level of offensiveness of the defendants' conduct in Carnemolla, Carrol, or Dollard, which was insufficient as a matter of law to constitute intentional infliction of emotional distress. For the foregoing reasons, summary judgment is hereby entered in favor of the defendants Rocque, Leff, Clifford, Barone, Peck, and Nelson on Counts 27-35.