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Cecchini v. Schenck

United States District Court, D. Connecticut

March 7, 2017



          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff Sean Cecchini is a police officer for the Town of Bloomfield, Connecticut. He brings this case against the Town of Bloomfield, Town Manager Phillip K. Schenck, Jr., Chief of Police Paul B. Hammick, and four employees of the Bloomfield police department: Sergeant Richard Bowen, Lieutenant Arthur Fredericks, Captain Stephen Hajdasz, and Lieutenant Matthew Willauer. According to Cecchini, the defendants retaliated against him in violation of the First Amendment to the U.S. Constitution[1] after he (1) reported Bowen for racial profiling during a motor vehicle stop, (2) testified in support of a different officer in a union disciplinary hearing, and (3) filed this lawsuit. He also claims that Bowen intentionally inflicted emotional distress by pointing a gun at him. Defendants seek summary judgment on all claims. (ECF No. 52.) As set forth below, based on the evidence the parties have presented, the motion for summary judgment is GRANTED in part and DENIED in part. The case may proceed only as to certain First Amendment claims against Hammick and Willauer.

         I. Background

         A. Procedural History

         Cecchini filed this lawsuit under 42 U.S.C. § 1983 on November 17, 2014. (ECF No. 1.) He then amended his complaint twice, on January 8, 2015 and March 3, 2015. (ECF Nos. 18; 28.) On February 29, 2016, I granted in part and denied in part Defendants' motion to dismiss the second amended complaint. (ECF No. 43.) I dismissed claims against the individual defendants in their official capacities, claims of state law negligence and aiding and abetting, the intentional infliction of emotional distress claim against all defendants but Bowen, and the post-lawsuit retaliation claim against Schenck. (Id.) On May 20, 2016, Defendants filed this motion for summary judgment. (ECF No. 52.)

         B. Facts

         The following facts are taken from the parties' Local Rule 56(a) Statements and the documents cited therein. See Defendants' Local Rule 56(a)(1) Statement, ECF No. 50-2 (“Def.'s LRS”); Plaintiff's Local Rule 56(a)(2) Statement, ECF No. 55-2 (“Pl.'s LRS”); Defendants' Reply to Plaintiff's Local Rule 56(a)(2) Statement, ECF No. 58-1 (Def.'s LRS Reply”). Facts are undisputed unless otherwise stated.

         1. The Parties

         The plaintiff, Sean Cecchini, has worked as a police officer for Defendant, the Town of Bloomfield, since 1996. (Def.'s LRS ¶ 1; Pl.'s LRS ¶ 1.) Defendant Phillip K. Schenck, Jr. is Bloomfield's Town Manager, a position he has held since 2013. (Id. ¶¶ 89, 431.) Defendant Paul B. Hammick has been the Bloomfield Police Chief since January 3, 2011. (Id. ¶ 123; ECF No. 52-4 at 149.) Defendant Stephen Hajdasz has worked as a Bloomfield Police Captain since May 29, 2012. (Def.'s LRS ¶ 230; Pl.'s LRS ¶ 230.) Defendant Matthew Willauer is a Lieutenant in the Bloomfield Police Department, and supervised the patrol division from 2014-2015. (Id. ¶ 209.) Defendant Arthur Fredericks is also a Lieutenant in the Bloomfield Police Department, who in December 2013 was the supervisor of Officer Cecchini's direct supervisor, Sergeant Jose Martinez (not a Defendant). (Id. ¶¶ 297-98.) Defendant Richard Bowen was a Bloomfield police officer until March 30, 2012, when he was promoted to Sergeant, and then worked as a Sergeant until his retirement on February 15, 2016. (Id. ¶ 403; ECF No. 52-4 at 145.)

         2. Early Conflicts with Bowen and Willauer (Pre-August 2011)

         Cecchini and Bowen used to be friends, but had a falling out prior to August 25, 2011, while both were Bloomfield police officers and union representatives. (Def.'s LRS ¶¶ 9-11; Pl.'s LRS ¶¶ 9-11.) Among their conflicts, Bowen complained to his supervisors that Cecchini had interfered with his radio calls, and Cecchini expressed concerns about Bowen's conduct during motor vehicle searches. (Id. ¶¶ 14, 19-22.) At some point in 2011 (prior to August), Bowen pointed his gun at Cecchini in the Bloomfield Police Department parking lot. (Id. ¶ 24.)

         Cecchini and Willauer also had interpersonal conflicts from 2005-2010, when Cecchini served as the president of the Bloomfield police union and Willauer was a Lieutenant. (Id. ¶¶ 183-86.) During that time period, Willauer sent emails and made comments that Cecchini felt were condescending and undermined his union advocacy efforts. (Id.)

         3. Bowen's August 2011 Motor Vehicle Stop and Cecchini's Reporting

         On August 25, 2011, Cecchini acted as back-up for Bowen (then an officer) on a motor vehicle stop of three African American men. (Pl.'s LRS ¶ II.2; Def.'s LRS Reply ¶ II.2.) What took place during that stop is disputed. According to Cecchini, Bowen illegally stopped and searched the three men. Bowen falsely stated that he smelled marijuana, ordered the three men out the car, and asked if they had marijuana. (Pl.'s LRS ¶¶ II.2-3.) When the men said no, Bowen told them that a police dog was on its way and would bite them if they had marijuana. (Id. ¶ II.3.) Cecchini told the men that the dog would not bite them. (Id.) Bowen then patted down one of the men, who was wearing gym shorts, and grabbed his penis. (Id. ¶ II.4.) When the man said “hey that's my dick, ” Bowen responded, “you're not that big anyway, ” and the other officer on the scene laughed. (Id. ¶ II.5.) The parties agree that no narcotics were found. (Def's LRS ¶ 31; Pl.'s LRS ¶ 31.)

         Later that same day, August 25, 2011, Cecchini complained to a Sergeant named Shawn Bolden about the stop. (Id. ¶ 28.) Bolden told Cecchini to draft a report detailing the complaint, which Cecchini did. (Id. ¶ 29; ECF No. 52-4 at 165-66.) At that time, the Town of Bloomfield required police department employees to report other employees' misconduct through the chain-of-command as soon as practicable, including improper arrest, improper search, differential treatment, and harassment. (Def's LRS ¶¶ 38-42; Pl.'s LRS ¶¶ 38-42.)

         Some time in the following weeks, two individuals at the Bloomfield Police Department followed up on Cecchini's report. First, Bolden spoke with Bowen. (Id. ¶¶ 33-34.) Then, on September 16, 2011, a Lieutenant named Alvin Schwapp met with Bowen to discuss his concerns related to the stop. (Id.) Bowen told Schwapp that he understood and accepted responsibility. (Id. ¶ 34.) The Bloomfield Police Department did not take further action to investigate the complaint or discipline Bowen. (Id. ¶¶ 35-37.) Cecchini maintains, and Defendants dispute, that Bolden's and Schwapp's actions did not amount to an investigation, at a minimum because they did not interview any witnesses to the alleged misconduct. (Pl.'s LRS ¶ 37.)

         After filing the report, Cecchini spoke with other officers in the Bloomfield Police Department about Bowen's misconduct. (Pl .'s LRS ¶ II.8; Def's LRS Reply ¶ II.8; ECF No. 52-4 at 24-25.) Cecchini stated at his deposition that he does not know whether Bowen was aware of these conversations. (ECF No. 52-4 at 24-25.) However, he claims that “everybody” in the police department was aware of the complaint he had made against Bowen, and that the complaint “was left on Sergeant Bolden's desk for everybody to view for over a week.” (ECF No. 55-6 at 10.)

         Cecchini further claims, and Defendants dispute, that he spoke with individuals outside of the police department about Bowen's misconduct and what “he felt was a policy of racial profiling.” (Pl.'s LRS ¶¶ 53-54; ECF No. 55-5 ¶¶ 16-17.) Specifically, Cecchini states that he,

reported it to Retired Bloomfield Officers Danny Rosenthal, Mark Darren, Robert Lostimolo, Robert Black, Ray Kitchens, Richie Lyons, Blue Hills Fire Chief Farmer, Fire Chief Riley, Bloomfield Captain Rilet, Lt, Riley, fireman Goldstien. Lt. Davis, Channel 3 reporter, Len Bestoff, CT state Police Rick Conneyor, Hartford Police Officer Pat Farrell, Elks club member Robert Coffee, South Windsor Police Chris Duchesne, my neighbors Sandy Dorosure and Tony Leone who is CT probation officer, Fran Politis, Bloomfield Garage, Kurt Neligon, Bloomfield Car Care….

(sic) (ECF No. 55-5 ¶ 16.)[2] Cecchini does not give dates for any of these conversations, and does not state whether or not he believes any of the Defendants were aware of them.

         4. Further Conflicts with Bowen (Fall 2011 - Early 2013)

         According to Cecchini, about 30 days after the August 25, 2011 complaint, Bowen (still an officer) yelled “what kind of cop rats on another cop” and pointed his gun at Cecchini. (Def.'s LRS ¶¶ 61-63; Pl.'s LRS ¶¶ 61-63.)[3] Defendants dispute the details of this incident. (Id.) Then, following Bowen's promotion to Sergeant on March 30, 2012, Cecchini claims (and Defendants again dispute) that Bowen took a number of additional actions targeting him. Cecchini claims that Bowen insulted him, took his bus duty away, denied his requests to work out during his shift, and excessively scrutinized his patrol activities. (Id. ¶¶ 65-75.) Cecchini also claims that Bowen removed a gun from his locker and gave it to another officer to return to him, stating “I found your gun and that was a free bee next time will be a problem.” (Id. ¶¶ 55-59.) The precise timing of these incidents is unclear.

         5. Cecchini's Union Testimony (February 2013)

         In February 2013, a Bloomfield police officer named Donald Rajtar faced disciplinary proceedings for working overtime without obtaining supervisor permission. (Id. ¶ 187.) Cecchini participated in Rajtar's disciplinary hearing, testifying about the overtime policy and presenting a petition signed by union members as an exhibit. (Pl.'s LRS ¶¶ II.16, 19; Def.'s LRS Reply ¶¶ II.16, 19.) Cecchini claims, and Defendants dispute, that Willauer and Hammick made angry comments to him surrounding this hearing. According to Cecchini, prior to the hearing, Willauer said, “Are you ready for me?” and “Are you just going to throw shit on the wall?” (Id. ¶ 189.) Cecchini also claims that Hammick initially denied him entry to the hearing, required him to produce a subpoena in order to attend, and angrily stated “I don't like being jackpotted” after the testimony had concluded. (Id. ¶¶ 190, II.17.)

         6. Two Disciplinary Incidents (May and July 2013)

         On May 1, 2013, Chief Hammick disciplined Cecchini for “failing to respond to a dispatched medical call as soon as practicable without undue delay.” (Def.'s LRS ¶¶ 108-10; Pl.'s LRS ¶¶ 108-10; ECF No. 52-5 at 72.) Cecchini had been dispatched to help a seventy-year old suffering from chest pains and low blood pressure, but was delayed because he went back inside the restaurant where he had been having lunch. (Def.'s LRS ¶¶ 103-05; Pl.'s LRS ¶¶ 103-05.) Cecchini received a written reprimand and assignment to develop and perform a training session within 60 days. (Id. ¶ 109, ECF No. 52-5 at 72.) He waived his right to a hearing and agreed to take the discipline as he felt he was at fault. (Def.'s LRS ¶ 110; Pl .'s LRS ¶ 110.)

         On July 25, 2013, Hammick disciplined Cecchini a second time (in response to a report by Willauer) for performing his duties in a “careless or negligent manner.” (Def.'s LRS ¶ 118; Pl .'s LRS ¶ 118; ECF Nos. 52-5 at 73-87.) Cecchini had received information about a possible threat to students at a high school, but did not make a case incident report, immediately notify a supervisor, or investigate the case. (Def.'s LRS ¶¶ 111-12, 115; Pl.'s LRS ¶¶ 111-12, 115.) Cecchini received a written reprimand and one day of suspension. (Id. ¶ 118.) He stated that he took responsibility for the incident and waived his right to a hearing. (Id. ¶¶ 117, 119.)

         Some time after that, Hammick told Cecchini that he wanted him to give up his field training responsibilities. (Id. ¶ 121.) Defendants claim that this was due to the two disciplinary incidents. (Id. ¶ 122.) Cecchini claims that it was not due to discipline and that Hajdasz “repeatedly harassed [him] for days” to give up the pin. (ECF No. 55-5 ¶¶ 40-41.) Cecchini also claims that four other individuals retained their field training responsibilities despite engaging in worse or equal conduct. (Def.'s LRS ¶¶ 126-34; Pl.'s LRS ¶¶ 126-34.) Some of those individuals also lost field training responsibility for a period, but had it restored after performance improved. (Id. ¶¶ 136-37.)

         7. Further Conflicts with Willauer (July 2013 and Unknown Times)

         On July 3, 2013, Willauer e-mailed Cecchini to request information about his allegations of racial profiling against Bowen. (Def.'s LRS ¶ 210; Pl.'s LRS ¶ 210; ECF Nos. 55-15; 55-16; 55-17; 55-18; 55-19; 55-20.) Cecchini directed Willauer to his August 25, 2011 report, and Willauer responded, “The information brought to my attention alleges that you have accused Sgt.

         Bowen of engaging in racial profiling and that you have discussed reporting his behavior to the NAACP.” (Def.'s LRS ¶ 216; Pl.'s LRS ¶ 216; ECF No. 55-17.) On July 7, 2013, Cecchini wrote:

Reporting any complaint to the NAACP was discussed with Off. Aliano. My fear was and is that I would be the subject of backlash for making the original complaint. I've framed the searches as being the issue. Sorry this wasn't included in my original response. I have not contacted the NAACP or any other organization regarding the complaint. It has been frustrating because there was no closure.

(ECF No. 55-19.) Willauer responded on July 11, 2013, writing that there was no evidence to support Cecchini's allegations of racial profiling, reminding him of his responsibility to report misconduct, and stating, “I remind you that reckless accusations of misconduct on the part of another employee can also result in discipline.” (ECF No. 55-20.)

         Cecchini also claims, and Defendants deny, that Willauer took other actions against him, but Cecchini does not provide any specific dates. First, at some point in 2013, Willauer refused to issue him a bulletproof vest. (Pl.'s LRS ¶¶ 224-27; ECF No. 55-5 ¶¶ 62-63.) According to Cecchini, “Willauer stated that I missed the date for getting measured and that's why in addition to not giving a shit if I got shot he didn't give me one.” (Id.) Cecchini then received a vest. (Def.'s LRS ¶ 227; Pl.'s LRS ¶ 227.) Second, Willauer denied Cecchini's requests for time off. (Pl.'s LRS ¶ 198.) Third, while handing out racial profiling cards at a roll call, Willauer looked at Cecchini and said, “We all know this is bullshit.” (Pl.'s LRS ¶ II.32.) Finally, Willauer was generally hostile to Cecchini, failing to acknowledging his greetings and rolling his eyes. (Pl.'s LRS ¶ 221.)

         8. Racial Profiling Seminar (September 2013)

         In September 2013, the Bloomfield Police Department sent Cecchini to a seminar in Hartford on racial profiling. (Pl.'s LRS ¶ II.26; Def.'s LRS Reply ¶ II.26.) The seminar included representatives from the NAACP, ACLU, U.S. Department of Justice, the Hartford Courant, and Channel 3 News. (Id.) Plaintiff claims, and Defendants dispute, that at the seminar he spoke with ACLU and U.S. Department of Justice representatives “about my concerns with racial profiling, pretextual stops, illegal searches at the Bloomfield Police Department.”[4] (Pl.'s LRS ¶ II.27; ECF No. 55-5 ¶ 115.) He does not claim that anyone in the Police Department was aware of those conversations.

         9. Lack of Promotion and Late Performance Review (Late 2013-Early 2014)

         On November 3, 2013, Cecchini was not promoted to sergeant despite being eligible. (Def.'s LRS ¶ 405; Pl.'s LRS ¶ 405.) For promotions within the Bloomfield Police Department, the Town Human Resources Department and an outside consultant create a ranked eligibility list based on a written examination, oral examination, and years of service. (Id. ¶¶ 389-96.) The Chief of Police then interviews the three top ranked candidates and selects among them. (Id. ¶ 396.) The Town Manager is the final decision maker and approves those recommendations, but Town Manager Schenck has never failed to promote a candidate selected by the Chief of Police. (Id. ¶¶ 378-79.) Chief Hammick's practice is to select the top candidate from the eligibility list. (Id. ¶ 397.) According to Defendants, Hammick follows this practice unless there are extenuating circumstances such as disciplinary problems. (Id.) According to Cecchini, Hammick has promoted candidates with disciplinary problems “on numerous occasions.” (Id.) Cecchini cites a detective, Spellman, who he claims was promoted after leaving his gun in a bathroom open to the public. (ECF No. 55-5 ¶ 34.) On November 3, 2013, Hammick promoted the first ranked candidate on the eligibility list, Nicola Aliano, to sergeant-Cecchini was ranked third. (Def.'s LRS ¶ 405; Pl.'s LRS ¶ 405.)

         Next, there was an issue with Cecchini's performance review for the rating year December 16, 2012 to December 15, 2013. (Id. ¶ 297.) Cecchini's direct supervisor, Sergeant Martinez, gave Cecchini a rating of “sometimes exceeds expectations” for the rating area “quality of work.” (Id. ¶ 302.) Then, after reviewing the rating, Hajdasz asked Fredericks to find out how Martinez reached such a rating when Cecchini had two disciplinary incidents during the rating period. (Id. ¶¶ 290-315; ECF No. 52-8 at 114-21.) Cecchini notes that an arrow in the copy of his performance evaluation points from “exceeds expectations” to “meets expectations” and maintains (while Defendants deny) that Hajdasz and Fredericks made the inquiry to attempt to have his score lowered. (Id.) On February 18, 2014, Martinez responded, among other things, that he “would have assessed Officer Cecchini either an ‘Outstanding Performance' or ‘Exceeds expectations', in the ‘Quality of Work' category, however [he] did take into account the fact that he did have two sustained disciplines during the rating period.” (ECF No. 52-8 at 119.) In the end, Cecchini's performance review did not change, although Cecchini received it late. (Def.'s LRS ¶¶ 311-13; Pl.'s LRS ¶¶ 311-13.)

         10. Sick Time and Uniform Shirt Investigations (Late 2013-April 2014)

         Some time in late 2013, at Willauer's instigation, Hammick investigated Cecchini for sick time abuse and required him to provide medical notes to substantiate his sick time absences. (Id. ¶¶ 319-23.) Willauer was responsible for conducting monthly reviews of sick time for everyone in the patrol division, which included noting whether officers had taken large amounts of sick leave, whether that leave was attached to days off, and whether officers had a low sick leave balance. (Id. ¶¶ 319-20.) In addition to Cecchini, Willauer suggested that two other officers and a sergeant be required to provide medical notes. (Id. ¶ 324.) Defendants claim, and Cecchini disputes, that Cecchini was suspected of abusing sick time due to his attendance record and low sick leave reserves. (Id. ¶ 322.)

         Next, in April 2014, Cecchini was investigated due to reports of a missing uniform shirt. (Id. ¶ 235.) On April 16, 2014, an officer stated that he believed his uniform shirt was in Cecchini's locker. (Id.) Bowen sent a department-wide email asking officers to check their lockers, and on April 28, 2014, Bowen found the shirt in Cecchini's locker. (Id. ¶¶ 238-39.) Willauer questioned Cecchini about the shirt, and recommended that discipline should not issue. (Id. ΒΆ ...

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