United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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.
applied to join the New Haven Police Department on two
separate occasions. She was rejected twice, and in this
action complains about each rejection.
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).
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.
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.
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).
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.
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.
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.
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.
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."
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.
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.
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.
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
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.
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.
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.