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Vale v. City of New Haven

United States District Court, D. Connecticut

July 19, 2016

KIMBERLY VALE, Plaintiff,
v.
CITY OF NEW HAVEN, Defendant.

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Kimberly Vale filed this age discrimination case after she was denied a position with the New Haven Police Department following training as a recruit. On March 2, 2015, Defendant City of New Haven filed a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure [Doc. 116]. Plaintiff opposed that motion. The Court heard oral argument. Plaintiff has filed a Second Motion for Oral Argument [Doc. 143]. This Ruling decides both motions.

         I.

         Vale applied to join the New Haven Police Department on two separate occasions. She was rejected twice, and in this action complains about each rejection.

         The operative pleading is the Second Amended Complaint [Doc. 113], which Plaintiff filed by permission the Court granted in an order [Doc. 112]. There are three counts, each asserting claims under a Connecticut statute. Count One alleges age discrimination, in violation of the Connecticut Fair Employment Practices Act ("CFEPA"), C.G.S. § 46a-60(a)(1). Count Two alleges retaliation, in violation of a general state statute, C.G.S. § 31-51q. Count Three alleges retaliation, in violation of a separate CFEPA provision, § 46a-60(a)(4).

         Vale filed her initial complaint, invoking these Connecticut statutes, in a Connecticut state court. The Defendant City removed the action to this Court, invoking federal question subject matter jurisdiction. Vale moved for a remand, on the ground that the complaint did not allege a cause of action arising under federal law, and the parties' citizenship was not diverse. Judge Dorsey denied Vale's remand motion in an unreported Ruling. Doc. 18. He noted that "Vale alleges that the New Haven Police Department violated [Conn. Gen. Stat.] section 31-51q by retaliating against her for allegedly exercising her free speech rights as guaranteed by the Connecticut Constitution by complaining about overtime to the union." Slip op. at 2-3. Judge Dorsey held that "by pleading a section 31-51q cause of action in her Complaint, Vale raised a federal question sufficiently substantial to confer federal question jurisdiction." Id. at 3. He considered himself bound by the Second Circuit's holding in Bracey v. Board of Education, 368 F.3d 108, 114 (2d Cir. 2004) that "[A] federal question is sufficiently substantial to support federal question jurisdiction if the vindication of a right under state law necessarily turns on some construction of federal law" (citation and internal quotation marks omitted), a principle that governed the case, in which (as here) the plaintiff asserted a claim under C.G.S. section 31-51q, . A "section 31-51q cause of action, " the Second Circuit reasoned in Bracey, "requires that a court construe federal First Amendment law and evaluate its scope, " so that the claim "necessarily turns on some construction of federal law" and is sufficiently substantial to sustain federal subject matter jurisdiction. 368 F.3d at 115-116.

         Accordingly, federal jurisdiction over the case at bar is established. The following discussion considers the Connecticut statutes upon which Vale's claims are based, together with the First Amendment, and the federal Age Discrimination in Employment Act, 29 U.S.C. § 623(a) ("ADEA"), which is also implicated in the action.

         Vale's First Amendment claim vests this Court with original jurisdiction. As for her state law claims, the Court in its discretion exercises supplemental jurisdiction over them. 28 U.S.C. § 1367(a).

         II.

         Following discovery, the City of New Haven moved for summary judgment under Rule 56. The facts recounted herein are derived from the parties' Local Rule 56(a)(1) and (a)(2) statements and the attached exhibits. Throughout the following discussion, citations to Local Rule "56(a)(1)" refers to Defendant's statement of the facts. Local Rule "56(a)(2)" refers to Plaintiff's statement. The facts recited in this Part and are undisputed or indisputable, unless noted otherwise.

         The case arises out of two unsuccessful attempts by the Plaintiff to become a member of the New Haven Police Department. In 2009, Plaintiff was hired as a police recruit by the New Haven Police Department. During her time as a recruit, she claims she was subjected to discrimination based on her age, and was ultimately required to resign. She subsequently applied a second time to the Police Academy, but was rejected based on subsequent physical and psychological examinations. Plaintiff now sues for discrimination and retaliation in violation of the Connecticut Fair Employment Practices Act, C.G.S. § 46a-60(a)(1), ("CFEPA") and retaliation in violation of C.G.S. § 31-51q.

         In September of 2009, Plaintiff Kimberly Vale was hired as police recruit in training by the New Haven Department of Police Service. Loc. R. 56(a)(1) Statement, ¶ 1. The standards and guidelines for the Police Academy (the "Academy") are promulgated by the Connecticut Police Officers Standards and Training Council ("P.O.S.T."). Id. at ¶ 2. P.O.S.T. requirements include a comprehensive curriculum of physical training, practical training, and class work. Id. at ¶ 7. Upon completion, recruits receive certification as a police officer. Id. During the time that the Plaintiff was at the Academy, the Academy was supervised by Captain Redding and Senior Training Officer Robert Strickland, who worked alongside Officer Jason Salgado to train the recruits. Id. at ¶ 3. Officer Strickland was a training instructor and makes no hiring or firing decisions. Id. at ¶ 5.

         While at the Academy, Plaintiff was forty-four years old. Loc. R. 56(a)(1) Statement, ¶ 1. Plaintiff was not the oldest recruit in her class. Id. at ¶ 41. According to the Defendant, Plaintiff, like all other recruits, was subjected to stress inoculation by their training instructors. Id. at ¶ 6. This was meant to prepare the recruits for the conditions of patrolling the streets and to "develop mental toughness." Id. Defendants assert that comments about Plaintiff's age and whether or not she belonged at the Academy were part of the stress inoculation. However, Plaintiff notes that no other recruit was subjected to statements about their membership in a protected class. Loc. R. 56(a)(2) Statement, ¶ 6. During one lesson, Officer Strickland said "grandma can shoot" in reference to the Plaintiff. Loc. R. 56(a)(1) Statement, ¶ 38. Plaintiff asserts that she was called "grandma" and other references were made to her being old by Officer Strickland throughout the course. Loc. R. 56(a)(2) Statement, p. 6, ¶ 5. She cannot recall specifically when the comments were made, other than to note that they were made on four or five occasions. Id.

         In addition, Plaintiff claims that during the first week of the academy, Officer Strickland instructed her not to return to class until she had her husband, a member of the police department, speak with him. Loc. R. 56(a)(2) Statement, p. 5 ¶ 1. Plaintiff alleges that when her husband, Armando Vale, called Officer Strickland, Officer Strickland said that Plaintiff was having a hard time in class and that he did not think she would make it. Id. at ¶ 2. Furthermore, Plaintiff asserts that Officer Strickland told her husband that Plaintiff was "too motherly." Id.

         As part of her physical training, Plaintiff was required to complete an obstacle course in a prescribed time. Loc. R. 56(a)(1) Statement, ¶ 8. P.O.S.T. will not certify any recruit who fails to complete the obstacle course in the prescribed time of one minute and forty six seconds. Id.; Id. at 16. Recruits are allowed two attempts to complete the obstacle course. Id. at 9. Before the recruits attempted the obstacle course, Officer Strickland demonstrated the best approaches to each obstacle. Id. at ¶ 10.

         On March 9, 2010, Plaintiff attempted the test twice. Loc. R. 56(a)(1) Statement, ¶ 17. Plaintiff's time for the first attempt was recorded by Officer Strickland as one minute and forty eight seconds. Id. at ¶ 18. At the end of the first administration of the obstacle course, Plaintiff fell down and was not standing. Id. at 19. Officer Strickland then informed Plaintiff and the other recruits that they must be standing at the end of the course. Loc. R. 56(a)(2) Statement, p. 6, ¶ 9. Plaintiff contends that she would have completed the course in the designated time if she had not been required to stand. Id. at ¶ 18. One other recruit also did not complete the course on the first attempt in the allotted time. Loc. R. 56(a)(1) Statement, ¶ 20. Plaintiff alleges that Officer Strickland gave preferential treatment to this recruit that he was having a sexual relationship with, but does not provide any support for this allegation, such as what the preferential treatment was other than "allowing her to complete the course." Loc. R. 56(a)(2) Statement, ¶ 11, ¶ 20. During training, Officer Strickland also administered several tests that were judged on a more subjective basis than the obstacle course, including an arms test and baton and handcuffing training. Loc. R. 56(a)(1) Statement, ¶ 13.

         Plaintiff's second attempt at the obstacle course was recorded as one minute and fifty seconds. Loc. R. 56(a)(1) Statement, ¶ 21. Officer Strickland was also responsible for timing the course the second time. Id. at ¶ 23. However, he was not the only supervisor there. Id. Plaintiff further claims that Officer Strickland, during her second attempt at the course, had her run at the same time as another recruit, Victor Rawlinson. Loc. Rule. 56(a)(2) p. 6, ¶ 10. Plaintiff claims that having two recruits run the course at the same time could have interfered with her time, especially because the two had to pass each other on narrow stairs. Id. at ¶ 11.

         After Plaintiff failed the course a second time, Officer Strickland notified Captain Redding, who in turn sought guidance from P.O.S.T. Loc. R. 56(a)(1) Statement, at ¶¶ 24-25. P.O.S.T. informed Captain Redding that Plaintiff could not be certified as a municipal police officer under P.O.S.T. regulations. Id. at ¶ 26. Captain Redding handled Plaintiff's separation; Officer Strickland was not involved in the separation process. Id. at ¶ 28.

         During her training, Plaintiff was given a copy of the New Haven Police Academy student handbook, which contained an anti-discrimination and harassment policy. Id. at ¶ 42. However, Plaintiff did not report any age discrimination to Officer Strickland's superiors during her time at the Academy. Id. at ¶ 43.Plaintiff asserts that she tried to talk to Sergeant Sydnor, the subsequently appointed head of the Academy, but he refused to listen to her complaint. Loc. R. 56(a)(2) Statement, ¶ 43 During her time as a recruit, Plaintiff kept contemporaneous notes of daily events. Loc. R. 56(a)(1) Statement, ¶ 12. These notes do not contain any references to comments about her age. Id.

         Plaintiff claims that, in addition, Officer Strickland singled her out for harsh treatment because he believed she had reported unpaid overtime hours of recruits to the Connecticut Department of Labor. Loc. R. 56(a)(2) Statement, p. 7, ¶ 21. Officer Strickland, according to Plaintiff, blamed her for the "catastrophic mess" that resulted. Id. However, Plaintiff never reported an overtime issue to anyone. Loc. R. 56(a)(1) Statement, ¶ 44.

         Approximately two years later, in October 2011, Plaintiff reapplied to become a police officer. Loc. R. 56(a)(1) Statement, ¶ 29. On September 21, 2012, Plaintiff was informed that she still needed to pass a physical agility and medical examination for her application to be considered. Id. at ¶ 30. During the physical agility test, Plaintiff became ill and was unable to complete the course, but was told, in accordance with the Academy's practice, that she would be given a chance to retake the test after recovering. Id. at ¶ 31. Plaintiff was also required to undergo a pre-employment psychological examination. Id. at ¶ 32. Mark Kirshner, Ph.D., completed the examination and determined that Plaintiff was "not qualified" for hire as a police officer. Id. at ¶ 33. Plaintiff asserts that she was only deemed "not qualified" after it became known that she would have reason to retake the fitness test. Loc. R. 56(a)(2) Statement, ¶ 33. Dr. Kirshner is the same evaluator who performed Plaintiff's first psychological evaluation for admission into the Police Academy in 2009. ...


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