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Brown v. Office of State Comptroller

United States District Court, D. Connecticut

September 29, 2016

VIRGINIA BROWN, Plaintiff,
v.
OFFICE OF STATE COMPTROLLER, et al., Defendants.

          RULING ON MOTIONS TO DISMISS

          STEFAN R. UNDERHILL United States District Judge.

         Virginia Brown filed this action in Connecticut Superior Court, Judicial District of Hartford, against the Office of the State Comptroller, individuals within the Comptroller's Office, the State Employees Retirement Commission (“SERC”), and individual members of SERC. The defendants removed the case to this court on June 9, 2015. In her initial complaint, Brown alleged that she was retaliated against on account of speech protected by the First Amendment and Connecticut Constitution. On December 10, 2015, I held a hearing on the defendants' motions to dismiss and dismissed the action. I permitted Brown to file an amended complaint, which she filed on January 15, 2016. In the Amended Complaint, Brown focuses her allegations against only two individuals, Brenda Halpin and Linda Yelmini, and the State of Connecticut. On February 12, 2016, Yelmini filed a motion to dismiss. On February 29, 2016, the State and Halpin followed with their respective motions to dismiss. For the reasons that follow, Yelmini's motion to dismiss (doc. # 97) is granted, and the joint motion to dismiss brought by Halpin and the State of Connecticut (doc. # 98) is denied.

         I. Standard of Review

         A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).

         When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

         Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted).

         II. Background[1]

         Beginning on September 21, 2012, Virginia Brown was employed by the State of Connecticut as a “Staff Attorney II.” Her duty was to provide legal services to the Comptroller's Retirement Services Division (“Division”) and the State Employees Retirement Commission (“SERC”). At all relevant times, Brown was supervised by Brenda Halpin, the director of the Division.

         Beginning in October 2012, Brown discovered that the State Employees Retirement System (“SERS”) was not being administered in accordance with its written terms. Brown believed that the improper administration was in violation of state and federal law, and reported the alleged misconduct to her supervisors. Brown also prepared legal memoranda that identified the mismanagement of SERS and disclosed the possibility that such mismanagement was in violation of state and federal law. Upon seeing her memoranda, Deputy Comptroller Martha Carlson instructed Brown to alter her memoranda in a manner that would, inter alia, replace certain accurate factual statements with false statements in an attempt to conceal the Comptroller's practice of awarding benefits to retirees, including certain politically connected employees, who were not entitled to the benefits. Subsequently, other members of the Division, including Halpin, instructed Brown to alter her legal memoranda, and Brown refused each of their requests. Brown also alleges that Yelmini, a SERC trustee, instructed her to alter her legal memoranda.

         Finding that her superiors were not receptive to her grievances, Brown reported the alleged misconduct to the State of Connecticut Office of the Auditors of Public Accounts (the “Auditors”). Brown made substantially the same disclosures to the Auditors that she had made to Comptroller employees. In December 2013, Brown took the additional step of filing a whistleblower complaint in accordance with Conn. Gen. Stat. § 4-61dd, in which she disclosed corruption, unethical practices, and violations of state and federal law.

         Brown alleges that both Halpin and Yemini were aware of Brown's repeated efforts to disclose what she believed to be the improper administration of the State retirement system. Further, Brown alleges that Haplin and Yelmini both participated in, and were aware of others' attempts to force Brown to alter her legal memoranda in a false and misleading manner.

         Subsequent to her reports to the Auditors and refusals to alter her legal memoranda, Brown alleges that she was retaliated against by both Halpin and Yelmini. Brown contends that Halpin and Yelmini both took action to eliminate her core job duties and isolate her from her colleagues and staff, and were responsible for the issuance of negative service ratings, including a letter of counseling. In November 2014, Brown was notified that her position was being eliminated and she was given the option to transfer to another State agency. She accepted the opportunity to transfer and then filed the instant action, which was removed to this court on June 9, 2015.

         On December 10, 2015, I held a motion hearing and ruled from the bench, dismissing all of Brown's federal and state claims against five individual defendants, the Comptroller's Office, and SERC. In permitting Brown to amend her complaint, I instructed her to clarify her allegations regarding which portion of her speech was protected and which defendant did what action that constitutes a violation of her federal and/or state law rights. In her Amended Complaint, filed on January 15, 2016, Brown brings both federal (42 U.S.C. § 1983) and state law (Conn. Gen. Stat. § 31-51q) claims against the State of Connecticut, Halpin, and Yelmini. Brown alleges that she was retaliated against for engaging in speech that was protected by either the First Amendment or the Connecticut Constitution.

         Though Brown's complaint is still lengthy and vague at times, she has narrowed her claims and provided more detail to her allegations. Brown's allegations remain centered around the manner in which the Division and SERC were applying the law governing Connecticut state disability and retirement benefits. Brown complains that she engaged in two types of protected speech: (1) she reported the alleged misconduct to the Auditors; and (2) she refused to alter her legal memoranda in a manner that would cause her to make false statements and issue knowingly false and erroneous legal memoranda.

         The major difference between Brown's initial complaint and the amended version is that the Amended Complaint makes clear that she is alleging intentional unlawful conduct rather than a mere disagreement with her supervisors over the correct application of a legal standard. Am. Compl. at ¶¶ 31, 36, 37, 39, 58. Rather than alleging that there was a dispute over the correct application of the legal standard, Brown now contends that the defendants “ordered Plaintiff to make materially false factual statements . . ., ” Am. Compl. at ¶ 58, and “instructed Plaintiff to change the documents she prepared in ways that would have (a) concealed facts reflecting the improper administration, and (b) replaced certain accurate factual statements contained in the documents with false statements . . ., ” Am. Compl. at ¶ 36.

         Similarly, Brown clarifies that her reports to the Auditors included reports of violations of state and federal law. Am. Compl. at ¶ 64. She alleges that reporting to the Auditors was not part of her ordinary job duties and that, in fact, she had never communicated with the Auditors prior to her first disclosure of the alleged wrongful conduct on July 30, 2013. After that date, Brown continued to disclose alleged “corruption; unethical practices; [and] violation of state laws and federal tax laws” to the Auditors. Am. Compl. at ¶ 102.

         Defendants move to dismiss the First Amendment claim, brought against the Halpin and Yelmini, on largely the same grounds. First, defendants argue that any of Brown's alleged complaints to the Auditors were made pursuant to her official duties and thus are unprotected under Garcetti v. Ceballos, 547 U.S. 410 (2006). Second, defendants dispute Brown's allegation that she was forced to make “materially false statements.” Defendants argue that the dispute at issue related to the interpretation of a legal standard that, as a matter of law, could not be either factually false or true, per se. If Brown's interpretation could not be factually true or false, any request for her to alter her interpretation could not be held to be a forced false statement. Accordingly, her refusal to alter her legal interpretations would not be protected by the First Amendment. Third, defendants contend that, even if Brown's speech was protected by the First Amendment, the law at issue is not clearly established and thus they are protected under the doctrine of qualified immunity.

         Recognizing that state law does not insulate an employer from liability to an employee who speaks pursuant to his or her official duties, the State of Connecticut moves to dismiss the state law claim on the grounds that Brown's speech was not a comment on “official dishonesty” or “serious wrongdoing, ” and thus is not protected by the State Constitution. Furthermore, even if it were protected, the State of Connecticut argues that it did not violate section 31-51q because its action did not constitute “discipline or discharge, ” and thus does not rise to the level of actionable conduct under state law.

         III. Discussion

         The claims against Yelmini and Halpin are brought under 42 U.S.C. § 1983 (“section 1983”) based on alleged violations of the First Amendment. The claim against the State of Connecticut is based on an alleged violation of the Conn. Gen. Stat. § 31-51q, which requires a predicate violation of the First Amendment or the Connecticut Constitution. First, I consider whether Brown engaged in speech protected by the First Amendment. Second, I will determine whether the individual defendants can be held liable for the alleged First Amendment violation. Finally, regardless of whether Brown's speech was protected by the First Amendment, I determine the State's potential liability under section 31-51q.

         A. Section 1983 claims against Yelmini and Halpin

         A defendant will be liable under section 1983 if the defendant took adverse action against a plaintiff on account of the plaintiff's speech that is protected by the First Amendment. Adverse action is “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Zelnik v. FIT, 464 F.3d 217, 225 (2d Cir. 2006). Under section 1983, the standard for adverse action is relatively low and is less demanding than the standard for Title VII actions. Id.; Oliphant v. Connecticut Dep't of Transp., 2006 WL 3020890, at *9 (D. Conn. Oct. 23, 2006); see also O'Neill v. City of Bridgeport Police Dept., 719 F.Supp.2d 219, 229 (D. Conn. 2010) (temporary assignment to less desirable shift, denial of requests for reassignment, and examples of petty harassment and discipline sufficient to deny summary judgment). Adverse action may include “negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods . . . [or] transfer from library to classroom teaching as an alleged demotion . . . .” Id. at 226. An allegation of “significantly diminished material responsibilities” is the type of employment action that is “sufficiently disadvantageous to constitute an adverse employment action” under Title VII, see Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (citing Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)), and therefore it meets the standard for retaliation under section 1983. See Zelnik, 464 F.3d at 225; Oliphant, 2006 WL 3020890, at *9.

         Brown alleges that, as a result of her speech, defendants removed “virtually all” of her job responsibilities and have isolated her as punishment for speaking out. Am. Compl. at ¶ 124. Defendants do not raise any argument that the alleged retaliatory action taken against Brown is insufficient to amount to an adverse action under section 1983. Accordingly, the only question is whether Brown's speech was protected by the First Amendment.

         It is well established that the government, as an employer, has substantial ability to control the words and actions of its employees. Jackler v. Byrne, 658 F.3d 225, 234 (2d Cir. 2011). The Court has held that government employers “need a significant degree of control over their employees' words and actions” in order to maintain “the proper performance of governmental functions.” Garcetti, 547 U.S. at 418. Nevertheless, a government employee retains his or her First Amendment right to speak out, as a citizen, against the government. Jackler, 658 F.3d at 234. “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id. at 235 (emphasis omitted).

         The Court in Jackler emphasized the difference between an employee's affirmative speech and the employee's refusal to be compelled into delivering certain statements. Id. at 241. In Jackler, the employee was asked “to retract his truthful statements and make statements that were false.” Id. The Court held that the employee's “refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of [a complaint].” Id. Thus, it is necessary to separate Brown's alleged complaints to the Auditors and her alleged refusal to be compelled into making false statements.

         1. Complaints to the Auditors

         A public employee receives the full protections under the First Amendment if she speaks as a citizen on a matter of public concern.[2] See Garcetti, 547 U.S. at 410. The Court in Garcetti placed significant limits on when an employee can be considered to be speaking “as a citizen.” Id. The Court held that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens” and thus are not protected by the First Amendment. Id. at 421.[3] In analyzing whether an employee's affirmative speech is spoken as a citizen or an employee, the Second Circuit has focused on two questions: “(A) did the speech fall outside of the employee's official responsibilities, and (B) does a civilian analogue exist?” Matthews v. City of New York, 779 F.3d 167, 173 (2d Cir. 2015) (Matthews I) (internal quotation marks and citations omitted).

         a. Official Duties

         The Court in Ross outlined the factual inquiry required to determine whether a public employee is speaking pursuant to her official duties:

The inquiry into whether a public employee is speaking pursuant to her official duties is not susceptible to a brightline rule. Courts must examine the nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship between the two. Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court's decision.

Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (internal citations omitted). Whether an employee spoke as an employee or as a citizen is generally a question of law for the court. Cf. O'Connor v. Huntington U.F.S.D., 2014 WL 1233038, at *7 (E.D.N.Y. Mar. 25, 2014). However, that question of law is highly fact-dependent and is often not ripe for resolution until summary judgment. Cf. id.

         When evaluating the nature of the plaintiff's job responsibilities, the court is not confined to an analysis of the employee's job description. See Garcetti, 547 U.S. at 424 (rejecting “the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions”). The relevant inquiry is a “practical one.” Id. Speech may be considered pursuant to an employee's official duties even if it is technically outside the scope of her job description. Id. at 425; see also Weintraub v. Bd. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 203 (2d Cir. 2010). Moreover, an employee may be considered to be speaking as a citizen even though the speech is to a supervisor, relates to her employment, and was spoken in the workplace. See Ross, 693 F.3d at 307. Indeed, courts have noted the importance of permitting employees to speak about information gained through the course of their employment. See Griffin v. City of New York, 880 F.Supp.2d 384, 400 (E.D.N.Y. 2012) (“The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it.”) (internal quotation marks and citations omitted). The unique nature of their positions as public employees enables them to have access to information that other citizens do not have. See id.

         It is important not to focus too much on the form of the communication or to whom the communication was directed. Matthews v. Lynch, 2011 WL 1363783, at *4-5 (D. Conn. Apr. 11, 2011), aff'd, 483 F. App'x 624 (2d Cir. 2012) (Matthews II). Though a report to an agency outside of the chain of command may be evidence that the report was made outside of one's official duties, see Griffin, 880 F.Supp.2d at 399, the fact of reporting outside one's chain of command does not always merit protection, see Anemone v. Metropolitan Transp. Authority, 629 F.3d 97, 116 (2d Cir. 2011) (report by MTA's Director of Security to the Queens District Attorney, someone outside of Director's chain of command and housed in entirely different agency, held to be not protected). The court must analyze the substance of the speech and ask whether the employee was speaking because he was in an official position that required him to do so. Looney v. Black, 702 F.3d 701, 712-13 (2d Cir. 2012).

         The Court in Weintraub perhaps sets the clearest distinction between speech spoken pursuant to one's official duties and that spoken as a citizen. See Weintraub, 593 F.3d at 203. In Weintraub, the Court held that a teacher's union grievance regarding the school's decision not to discipline a student was unprotected by the First Amendment because the complaint “was a means to fulfill and undertaken in the course of performing his primary responsibility of teaching.” Id. The teacher's core job responsibilities included maintaining classroom discipline and the grievance was filed in order to further the teacher's desire to ensure proper discipline. Id. The fact that the teacher was not required, pursuant to her official job duties, to file a grievance does not mean that the speech was automatically protected. Rather, the speech remained unprotected because it was made in order to further her responsibilities. Id. The Court recognized that any action taken for the purpose of furthering one's job responsibilities must be seen as action taken as an employee, not a citizen. Id.

         The Court contrasted the teacher's filing of a grievance related to classroom discipline with another teacher who was protected by the First Amendment when she “internally aired her grievances regarding the placement of black people working in the cafeteria, ” which she complained operated to reinforce racial stereotypes. Id. The teacher in that case was protected, notwithstanding the fact that her complaint was aired internally, because her complaint about the enforcement of racial stereotypes was not sufficiently related to her core responsibilities as an English teacher. Id.; see also Matthews I, 779 F.3d at 175 (police officer did not speak as employee when he voiced concerns about a broad policy issue-racial quotas-because, though he had a duty to identify individual violations of the law, his speech was merely “expressing an opinion on a policy which he believed [could lead to violations of the law]”).

         Though certain factors can suggest that someone is acting pursuant to his employment responsibilities, the ultimate inquiry is whether the employee is speaking in order to further his goal as an employee or as a citizen. See Weintraub, 593 F.3d at 203. Unfortunately, due to inherently factual nature of the inquiry, such an inquiry is often premature at the motion to dismiss stage. See Hagan v. City of New York, 39 F.Supp.3d 481, 513 (S.D.N.Y. 2014). Prior to summary judgment, courts are often unable to determine whether an employee's speech is pursuant to her “official duties.” Compare Jackler, 658 F.3d 225, Griffin, 880 F.Supp.2d 384, and Hagan, 39 F.Supp.3d 481(cases holding that it was improper to dismiss the complaint at such an early stage in the litigation), with Anemone, 629 F.3d at 115-16, Ross, 693 F.3d 300, and Weintraub, 593 F.3d 196 (cases that ultimately held that there was no First Amendment protection, but did so at summary judgment stage).

         b. Civilian Analogue

         Although it is not clear that a comparable civilian analogue is a prerequisite to First Amendment protection under Garcetti, the Second Circuit has held that the existence or absence of a civilian analogue is often determinative. See Matthews I, 779 F.3d at 176. In Weintraub, the Court held that an employee's filing of a union grievance was not protected because such action was “not a form or channel of discourse available to non-employee citizens.” Weintraub, 593 F.3d at 204. After Weintraub, the availability of a civilian analogue was seen as relevant to, but not dispositive of, whether an employee spoke as a citizen. See Ross, 693 F.3d at 307 (“Speech to a supervisor even in the workplace can be protected as that of a private citizen if it is not made pursuant to the employee's official duties as an employee.”); Matthews II, 2011 WL 1363783, at *4 (“The chief focus was not whether the avenue was open to all-citizens and employees-but rather on why the plaintiff utilized that avenue.”). However, the recent decision in Matthews I makes it clear that the existence of a civilian analogue is typically a prerequisite to a holding that the employee was speaking as a citizen. Matthews I, 779 F.3d at 176.

         The existence of a civilian analogue is satisfied so long as the employee “chose a path that was available to ordinary citizens.” Matthews I, 779 F.3d at 176. The fact that the employee might have better access to that path than would an ordinary citizen does not weigh against the finding of a civilian analogue. Id. No doubt, a public employee often can speak to public officials “more readily, more frequently, and more privately than could an average citizen.” Id. (internal quotations and citations omitted). The relevant inquiry is not the “degree of access” that an employee has to the relevant public official, but rather “whether the same or a similar channel exists for the ordinary citizen.” Id. As ...


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