Opinion
No. CV 03 0081427
August 11, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This action arises out of the facts and circumstances surrounding the employment-related disciplinary action taken against the plaintiffs, Roger Thomas, Timothy Richard and Derrick Villard. On May 10, 2005, the plaintiffs filed a third amended complaint against the defendants, Dennis Guyette, Leon Alford, Thomas Magnan and Michele Pancallo, in their individual capacities. The plaintiffs have also filed this action against the commissioner of the State of Connecticut Department of Transportation in his official capacity. In each of the ten counts of the complaint, the plaintiffs assert claims pursuant to 42 U.S.C. § 1983 for alleged violations of their constitutional rights. In particular, the plaintiffs allege violations of their free speech, equal protection and substantive due process rights as guaranteed by the first and fourteenth amendments to the United States Constitution. The defendants move for summary judgment on all the claims based on the absence of a genuine issue of material fact.
As a preliminary matter, the court notes that it does not address certain grounds of the motion for summary judgment because the plaintiffs have either abandoned a particular claim; as indicated in their fourth amended complaint filed on February 6, 2006; or clarified their position in their memorandum of law so as to eliminate the controversy between the parties. In particular, the plaintiffs clarify that (1) they are not claiming a violation of procedural due process; (2) the State of Connecticut Department of Transportation is eliminated as a defendant; (3) the freedom of association claims asserted by Villard and Richard have been abandoned; and (4) the plaintiffs seek no money damages from the commissioner of the Department of Transportation.
"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 seeking summary judgment has the burden of showing the absence of any genuine issue of material fact which, under applicable principles of substantive law and the party opposing such motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-40, 876 A.2d 522 (2005). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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 him to a judgment as a matter of law. 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 . . . Once the moving party has met its burden . . . 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 . . ." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47 (2005).
The depositions, affidavits, pleadings and other documents submitted in connection with the present motion reveal the following undisputed facts. Thomas has worked for the Department of Transportation of the State of Connecticut (Department) since 1984 and was employed as a Transportation Engineer 2 prior to being disciplined. During 2001, Thomas was the chief inspector on a project referred to as the "camera project." Richard is employed by the Department as a Transportation Engineer 1 and was a sub-inspector on the camera project. Villard is employed by the Department as a Transportation Engineer 1 and was a sub-inspector on the camera project. Thomas was the immediate supervisor of both Richard and Villard on the camera project. Ron Dery was employed by the Department as a Transportation Engineer 3, was Project Engineer on the camera project and was Thomas' direct supervisor on that project. Guyette is employed by the Department as a Transportation Supervising Engineer and was Dery's immediate supervisor during 2001.
In support of the motion for summary judgment, the defendants have submitted the complete certified depositions of the following individuals: (1) Roger Thomas; (2) Ron Dery; (3) Dennis Guyette; (4) Meraay Meraay; (5) Dermis West; (6) Thomas Magnan; (7) Leon Alford; (8) Cordula; (10) David Alfredson; (11) Brian Castler; (12) Timothy Richard; (13) Derrick Villard; and (14) Michele Pancallo. In opposition to the motion for summary judgment, the plaintiffs have submitted numerous exhibits used during the depositions, as well as the following: (1) sworn affidavit of Roger Thomas; (2) sworn affidavit of Timothy Richard; (3) sworn affidavit of Derrick Villard; and (4) the certified deposition of Andy Laviero.
In August of 2001, Guyette reviewed some of the paperwork related to the camera project. Guyette informed his supervisor, Magnan, that he believed there were discrepancies in the paperwork. Magnan reported the discrepancies to his supervisor at the time, Dennis Purcell. Magnan and Purcell reported the discrepancies to Alford, who was Purcell's supervisor. Alford and his supervisor brought the discrepancies to the attention of the Department's internal audit division, who conducted an audit on the camera project.
After the investigation by David Alfredson and others in the internal audit division, it was decided that a fact finding would be held. The fact finding committee consisted of three members including Alford. Alfredson presented the findings of the internal audit investigation to the committee and the plaintiffs were each given the opportunity to respond. After the fact finding sessions, the committee recommended that Thomas be terminated and Richard and Villard be suspended. The committee's recommendations for discipline were reviewed and approved by administrative supervisors at the Department. Pancallo, the personnel administrator for the Department, reviewed the minutes of the fact-finding sessions, the auditor's investigation, the recommendations for discipline, and other documents. Pancallo also met with some individuals involved in the fact finding to discuss the policies violated. Thomas subsequently entered into a stipulated agreement in lieu of termination in which he was demoted to a Transportation Engineer 1 and suspended for fifteen days. Richard received a sixty-day suspension. Villard received a thirty-day suspension. Additional information relevant to the specific claims will be discussed where necessary.
I Section 1983
Section 1983 of Title 42 of the United States Code provides, in relevant part: "Every person who, under color of any statute ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."
"To state a valid claim under § 1983, a plaintiff must establish: (1) [that] the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)." (Internal quotation marks omitted.) ATC Partnership v. Windham, 251 Conn. 597, 604, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (2000). "[I]n any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated. County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)." (Internal quotation marks omitted.) Id. Our Supreme Court has recognized that "[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts." (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999). cert. denied, 528 U.S. 1187, 120 S.Ct 1239, 146 L.Ed.2d 99 (2000).
II First Amendment Retaliation A. Thomas' First Amendment Retaliation Claim
In counts one through three, Thomas alleges that Guyette, Alford, and Pancallo violated his first amendment rights to petition the government, to free association, and to engage in free speech. The defendants move for summary judgment on the ground that there is no genuine issue of material fact regarding Thomas' speech, which the defendants contend is not protected by the first amendment because it does not address a matter of public concern. The defendants also move for summary judgment on the ground that there is no causation between the speech and the adverse employment action. The plaintiff's counter that the speech is protected because it does address a matter of public concern, as well as that there is a genuine issue of fact as to the issue of causation.
The evidence submitted in connection with the present motion reveals the following undisputed facts pertaining to Thomas' allegation of retaliation based on the exercise of his first amendment rights. In February 2001, Guyette made a comment about Meraay Meraay, a Department employee of Palestinian descent, in which Guyette referred to Meraay as engaging in "blowing up cars." Meraay complained about this comment to Thomas, who was a steward for the Connecticut State Employees Association, a union representing certain Department employees. Thomas relayed the complaint to Guyette and informed him that there was a Department policy prohibiting racial and ethnic remarks, and that Guyette should be careful about what he said in the future. Three months later, after Guyette had removed Meraay from the camera project, Meraay complained to Alford about Guyette and filed a discrimination complaint. The Department's affirmative action office conducted a meeting during which Meraay indicated that Thomas informed him that Guyette was responsible for his transfer off of the camera project. In addition to these undisputed facts, there is evidence before the court via the deposition testimony of Thomas that indicates Guyette made profanity-laced comments that expressed anger towards Thomas for informing Meraay of the reason for the transfer.
"It is well settled that persons do not relinquish their first amendment rights to comment on matters of public interest by becoming government employees." (Internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 749, 646 A.2d 152 (1994); see also Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Court of Appeals for the Second Circuit has held that a plaintiff claiming first amendment retaliation must demonstrate: "(1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiff's speech was a motivating factor in the adverse employment action." Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158, 162 (2d Cir. 2006).
Accordingly, the first inquiry for this court is whether the comments made by Thomas address a matter of public concern. "[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick v. Myers, supra, 461 U.S. 147. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id., 146. "To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case." Id., 149.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, supra, 461 U.S. 147-48. "The inquiry into the protected status of speech is one of law, not fact." Id., 148 n. 7. Of course, if there is a factual dispute regarding the content, form, and context of the speech, then there is an issue of fact to be decided by the jury. See Daley v. Aetna Life Casualty Co., 249 Conn. 766, 782-83, 734 A.2d 112 (1999). In the present case, the parties do not dispute the content, form, and context of Thomas' speech. Thomas testified in his deposition that he contacted Guyette in his role as union steward at the request of Meraay. Thomas complained about Guyette's inappropriate and ethnically discriminatory remark made to Meraay, as well as an advisement to Meraay that Guyette was upset and therefore removed Meraay from the camera project.
In Konits v. Valley Stream Central High School District, 394 F.3d 121 (2d Cir. 2005), the court addressed the issue of whether speech by one employee directed at discrimination of another employee is on a matter of public concern. The court held "that any use of state authority to retaliate against those who speak out against discrimination suffered by others . . . can give rise to a cause of action under 42 U.S.C. § 1983 and the First Amendment." Id., 126. Based on the court's decision in Konits, this court finds that Thomas' speech did address a matter of public concern, as it was directed at the ethnically discriminatory treatment of another employee.
As to the issue of causation, the defendants briefly assert in their memorandum that "there is no evidence that the speech played a substantial part in the disciplinary process. See Davis v. Goord, 320 F.3d 346, 354 (2d Cir. 2003). Therefore, as a matter of law, [Thomas'] . . . first amendment speech must fail." There is no citation to the evidence to support this ground for summary judgment. The court finds that the defendants have failed to present evidence demonstrating that there is no genuine issue of material fact on this issue. Since the defendants have failed to meet this essential requirement the motion for summary judgment as it pertains to Thomas' first amendment retaliation claim is denied.
B. Richard's Claim of First Amendment Retaliation
In counts five through seven, Richard alleges that Magnan, Alford and Pancallo violated his first amendment rights by retaliating against him for calling the police to a Department work site in connection with a missing computer, as well as for filing grievances in connection with job assignments and duties. The defendants move for summary judgment on the ground that there is an absence of a genuine issue of material fact surrounding the speech, which does not address a matter of public concern, and, therefore, is not protected by the first amendment. The plaintiffs counter that the speech addresses a matter of public concern and is protected by the first amendment.
The evidence submitted in connection with the present motion reveals the following undisputed facts pertaining to Richards' allegation of retaliation based on his speech. In January 2002, Alford and Magnan, as part of the ongoing investigation, had removed a computer from a Department trailer in order to have it inspected by the internal auditors. There is no question that they were authorized to remove the computer. The morning following the removal of the computer, Richard discovered that it was missing. Not knowing why it was missing, Richard contacted the police to report a possible theft. Richard testified in his deposition that he did not accuse anyone in particular of stealing the computer. In fact, Richard testified that before an officer had even arrived at the work site, he was informed by another Department employee, Paul Carl, that Alford and Magnan had taken the computer as part of the investigation. Carl explained the situation to the police officer and, accordingly, no further action was taken by the police. Richard testified to a series of internal departmental transfers and unappealing job assignments that subsequently occurred, and he attributed these to being in retaliation for his speech, i.e., his call to the police. In May of 2002 and October of 2002, Richard filed work grievances protesting his treatment, job transfers, and job duties.
The plaintiffs argue that our Supreme Court's decision in DiMartino v. Richens, 263 Conn. 639, 822 A.2d 205 (2003), requires this court to conclude that Richard's phone call to the police was speech on a matter of public concern. In DiMartino, the plaintiff was an employee at Bradley International Airport and worked in a high security area. Id., 646-47. Upon discovering that his office was being accessed without authority, which in and of itself constituted a severe breach in airport security, he contacted a supervisor, as well as the state police. Id., 648-49. The court noted that the record in the case was clear that the plaintiff was concerned about the security of the airport due to the unauthorized access into his office. Id., 667. The court held that the plaintiff's speech involved a matter of public concern. Id., 669.
Essentially, the plaintiffs in the present case argue that DiMartino stands for the proposition that all phone calls to police reporting a possible theft at the workplace constitutes a matter of public concern. It is clear, however, that the court in DiMartino emphasized the relationship between the speech and airport security as the important factor in holding that the speech implicates a matter of public concern. In the present case, Richard's speech was concerned with an isolated instance of a possible theft of a computer from a trailer at a Department work site. None of the evidence demonstrates that the theft constituted a breach in security resulting in the dissemination of private or sensitive information that would harm the public's interest, welfare or safety. Nor is there any claim that the mere unauthorized access to the trailer jeopardized the public in some way. Nor did Richard's deposition testimony indicate that the possibility of an adverse effect on the public was a motivation or concern that prompted the report to police. DiMartino cannot be read as standing for the proposition that all speech regarding all alleged thefts in the workplace addresses a matter of public concern. The type of circumstances that made the speech in DiMartino on matter of public concern are undisputedly absent in the present case. As a matter of law, this court finds that Richard's call to the police did not address a matter of public concern.
Finally, it is undisputed that the grievances filed by Richard related to his job assignments and job duties. This speech is a classic example of speech that is not a matter of public concern as it concerns one's own employment situation. See Connick v. Myers, supra, 461 U.S. 147. The first amendment does not "empower [public employees] to `constitutionalize the employee grievance.'" Garcetti v. Ceballos, 543 U.S. 77, 125 S.Ct 521, 160 L.Ed.2d 410 (2006).
Accordingly, because none of Richard's speech touches on a matter of public concern, the defendants' motion for summary judgment, as it pertains to Richard's first amendment claims, is granted.
III Equal Protection
In counts one through six and counts eight through ten, the plaintiffs allege that Alford, Guyette and Pancallo violated their equal protection rights. In count seven, Richard alleges that Magnan violated his equal protection rights. The defendants move for summary judgment on all the equal protection claims on the ground that there is no genuine issue of material fact that there was no other person similarly situated with the plaintiffs that was treated differently. The plaintiffs counter that they need not demonstrate the existence of similarly situated employees that were treated differently because the existence of different treatment may be inferred.
"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike." (Internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 670-71, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). "Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class, [the courts] have long recognized that the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials." Harlen Associates v. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). Equal protection claims that are not based on discrimination due to membership in a protected class are commonly referred to as "class of one" claims. Id.
There are two related, yet distinct, types of "class of one" equal protection claims. The first is an equal protection claim based on selective treatment, which requires a plaintiff to prove that: "(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra, 670-71. The second type is an Olech-based equal protection claim. In order to assert this "class of one" equal protection claim, a plaintiff must show that he was: (1) "intentionally treated differently from others similarly situated"; and (2) there was "no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).
A. Thomas' Equal Protection Claim
In the present case, there is a significant distinction between the equal protection claims asserted by the individual plaintiffs. Thomas' equal protection claims can be viewed as alleging discrimination based on the intent to inhibit or punish the exercise of his constitutional rights, i.e., his first amendment right to expression. As discussed above, this court has already found that there is a genuine issue of material fact as to whether Thomas' first amendment rights were violated. Consequently, the plaintiff enjoys an inference that he was treated differently than others similarly situated. See DiMartino v. Richens, supra, 236 Conn. 674. This inference is sufficient to create a genuine issue of material fact despite evidence offered by the defendants that indicates Thomas was not treated differently than others similarly situated. Based on the existence of a genuine issue of material fact, the defendants motion for summary judgment as it pertains to Thomas' equal protection claims is denied.
B. Equal Protection Claims of Richard and Villard
Richard and Villard are in a different position from Thomas with regard to their equal protection claims, which are "class of one" claims based on similarity alone. As discussed below, this type of equal protection claim is subjected to a heightened requirement that others be similarly situated. Also, Richard and Villard do not benefit from an inference that others were in fact similarly situated.
As to the requirement that others be similarly situated, our Supreme Court has held that "the requirement imposed upon [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently . . ." Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra, 253 Conn. 672. "In order to succeed on a `class of one' claim, the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high." Nielson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005). In Nielson, the court held that the similarity requirement is a more stringent requirement in "class of one" claims than in equal protection claims based on discrimination because of a characteristic such as race. The court explained: "When . . . a plaintiff seeks to prevail in a `class of one' equal protection case based on similar circumstances alone, the analysis is rather different. In such a `class of one' case, the treatment of persons in similar circumstances is not offered to provide, along with other evidence, an evidentiary inference of the use of particular impermissible factors. In such a `class of one' case, the existence of persons in similar circumstances who received more favorable treatment than the plaintiff is offered to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose — whether personal or otherwise — is all but certain." Id., 105.
By way of this analysis, the [Second Circuit] Court of Appeals recognized that "[t]he similarity and equal protection inquiries are thus virtually one and the same in such a `class of one' case, and the standard for determining whether another person's circumstances are similar to the plaintiff's must be . . . whether they are `prima facie identical.'" Nielson v. D'Angelis, supra, 409 F.3d 105. The court then articulated the test as follows: "(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake." Id.; see also McDonald v. Village of Winnetka, 371 F.3d 992 (7th Cir. 2004). Significantly, the plaintiff must also prove that the defendants had knowledge of the others that were similarly situated with the plaintiff. Giordano v. New York, 274 F.3d 740, 751 (2001).
The requirement that there exists a similarly situated person that was treated differently is a very stringent requirement in "class of one" equal protection claims. The defendants have submitted depositions of many individuals involved in the investigation and disciplining of the plaintiffs. This testimony addresses the extent of the investigation, the process, the individuals investigated, and the conclusions of those involved. This testimony shows an absence of evidence that the defendants knew of any other employee who was prima facie identical to the plaintiffs, yet was treated differently. In response, the plaintiffs have not offered any evidence of other similarly situated employees that were treated differently. Because the evidence submitted demonstrates that there is no genuine issue of material fact, the defendants' motion for summary judgment as to the equal protection claims of Richard and Villard are hereby granted.
IV Substantive Due Process
In the second, third, fifth, sixth, ninth and tenth counts, the plaintiffs allege that Alford and Pancallo violated their substantive due process rights as guaranteed by the fourteenth amendment to the United States Constitution. The defendants move for summary judgment on these claims based on the absence of a genuine issue of material fact that neither Alford's nor Pancallo's behavior rises to such an egregious level as to constitute a violation of substantive due process.
"It is axiomatic that the due process clause not only guarantees fair procedures in any governmental deprivation of `life, liberty, or property,' but also encompasses `a substantive sphere . . . barring certain government actions regardless of the fairness of the procedures used to implement them . . ." ATC Partnership v. Windham, supra, 251 Conn. 605. "Despite the important role of substantive due process in securing our fundamental liberties, that guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." (Internal quotation marks omitted.) Id., 606; see also County of Sacramento v. Lewis, 523 U.S. 833, 846, 1189 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). "Rather, substantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm that `our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.'" ATC Partnership v. Windham, supra, 251 Conn. 606. The Court of Appeals for the Second Circuit has explained that "the protections of substantive due process are available only against egregious conduct which goes beyond merely `offending some fastidious squeamishness or private sentimentalism' and can fairly be viewed as so `brutal and offensive to human dignity' as to shock the conscience." Smith v. Half Hollow Hills Central School District, 298 F.3d 168, 173 (2d Cir. 2002).
The plaintiffs in the present case argue that an inference can be drawn from the evidence that the defendants intended to discipline them regardless of what the evidence demonstrated, and that this discipline was motivated by a "vendetta." The plaintiffs argue that these inferences would provide the basis for a finding of a substantive due process violation. The plaintiffs cite O'Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005) in support of their position. In O'Connor, the plaintiff was a school teacher that had taken a leave of absence because he was having chest pains, anxiety, and depression. Id., 191. Before the plaintiff was allowed to return to work, the school board required him to undergo a psychological evaluation, as well as sign a medical-records release that had no time or subject matter limitations. Id., 192. This release would have permitted the school board members and their representatives to view all of the plaintiff's medical records. Id. The court held that whether the plaintiff's substantive due process rights were violated could not be decided at the summary judgment stage because the record was insufficient. Id., 204. The court explained that "if the Board acted out of spite, or to keep [the plaintiff] from teaching by whatever means necessary, then the Board's actions would shock the conscience." Id.
The plaintiffs in the present case argue that a similar question of fact exists regarding the defendants' motives, and, therefore summary judgment is inappropriate. It is noted, however, that the court in O'Connor did not state the rule so broadly. Rather, the court held that the plaintiff "alleged only one potentially conscience-shocking action by the Board; its insistence that he release his medical records to it." Id., 204. The court explained that if the conduct was pursued in good faith, negligently, or even with deliberate indifference, there would be no liability. Id., 203. However, if the conduct was pursued with an intent to injure or spite, then there would be a violation of substantive due process. Id. This court views O'Connor as holding that a dispute about motive is material only if there is evidence that could be construed as conscience shocking when combined with culpable intent.
In the present case, there is no evidence that could be construed as conscience-shocking. The deposition testimony submitted by the defendants outlines the actions of each defendant during the investigation of the plaintiffs. This testimony shows the absence of any behavior that could be considered conscience shocking, and the plaintiffs have not offered any evidence that demonstrates otherwise. Any dispute about motive is immaterial absent such evidence. Based on the evidence demonstrating no genuine issue of material fact summary judgment is granted in favor of the defendants on the plaintiffs' substantive due process claims.
The court notes that the facts giving rise to Thomas' claim of first amendment retaliation are excluded from consideration here because "the [United States] Supreme Court has repeatedly held, that where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (Internal quotation marks omitted.) Bryant v. City of New York, 404 F.3d 128, 135 (2d Cir. 2005), citing Albright v. Oliver, 510 U.S. 266, 275, 114 S.Ct 807, 127 L.Ed.2d 114 (1994) (plurality opinion).
V Personal Liability
The defendants argue that they are not personally liable for the plaintiffs' claim because they were not involved in the ultimate adverse employment action. "The liability of a supervisor under § 1983 can be shown in one or more of the following ways: (1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring." Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003). Also, "when a government official acts as a moving force behind a deprivation of a plaintiff's constitutional rights, this is sufficient for liability under § 1983." Thomas v. West Haven, supra, 249 Conn. 409. In the present case, it is undisputed that Pancallo was made aware of the allegations of first amendment retaliation against Thomas. Although the defendants argue that Pancallo "investigated these allegations and determined they were without merit," this assertion does not make it an undisputed fact. The question of whether Pancallo is liable for failing to remedy a constitutional violation is inextricably linked with the existence of the constitutional violation, which this court has already found to be the subject of a genuine issue of material fact. Also, it is undisputed that Guyette and Alford had a role in the investigation of Thomas that led to the eventual discipline. Guyette was responsible for discovering the alleged discrepancies. He was also responsible for presenting many facts to the fact finding committee and auditors throughout the investigation. Alford worked directly with the internal auditors and was one of the three members of the fact finding committee. It is premature for the court to determine whether the role of Guyette and Alford was sufficient to show they were the "moving force" behind the deprivation.
Based on the genuine issues of material fact as to whether each defendant is personally liable, the defendant's motion for summary judgment on this ground is denied.
VI Qualified Immunity
The defendants also move for summary judgment on the basis of qualified immunity. "It is well settled that government officials performing discretionary functions, generally are shielded form liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (Internal quotation marks omitted.) DiMartino v. Richens, supra, 236 Conn. 675.
As indicated on pages fifty through fifty-one of the defendants' memorandum in support of the motion for summary judgment, the defendants do not argue that the rights alleged to be violated were not "clearly established" at the time of the alleged conduct. Rather, the defendants argue that the defendants' actions were objectively reasonable. As this court has indicated, there are genuine issues of material fact that exist in regards to Thomas' first amendment and equal protection claims, including the personal liability of the defendants for the alleged deprivation. Determination of these disputed facts is inextricably linked to the objective reasonableness of the defendants' actions. Based on this, the court concludes that there is a genuine issue of material fact regarding whether Alford, Pancallo and Guyette are entitled to qualified immunity.
CONCLUSION
For all the foregoing reasons, the defendants' motion for summary judgment is denied as to the first amendment and equal protection claims alleged by Thomas. The motion for summary judgment is granted as to all claims alleged by Richard and Villard, as well as to the substantive due process claim alleged by Thomas.