United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer, United States District Judge
Christine Bourne used to work as a payroll supervisor as an
employee of the City of Middletown at the Middletown Board of
Education. At the same time, she also held an elective office
as treasurer for the City of Middletown. While employed at
the Board of Education, she raised a number of concerns to
the City's mayor about possibly fraudulent financial
practices at the Board of Education. After speaking with the
mayor and then giving a statement to the police, plaintiff
alleges that she was subject to retaliation at her workplace
at the Board of Education, culminating within several months
in her suspension and transfer to another city position that
plaintiff believes was a demotion.
has now filed this federal lawsuit against four defendants:
the City of Middletown (“the City”); the
Middletown Board of Education (“the Board”);
Michael Frechette, who was the superintendent of the Board of
Education while plaintiff worked there; and Nancy Haynes, who
was plaintiff's supervisor at the Board of Education.
Plaintiff principally alleges that she was subject to
“whistleblowing” retaliation on the basis of her
exercise of free speech to expose the financial
irregularities at the Board of Education, and that she was
suspended and transferred without being afforded her right to
due process. The parties have all filed cross-motions for
reasons set forth below, I will grant and deny these motions
in whole and in part as follows:
• Free Speech Retaliation (Counts One and
Two). As to plaintiff s First Amendment claims,
I DENY the motions for summary judgment with respect to the
City, the Board, and plaintiff. I conclude there are several
genuine issues of fact as to whether defendants impermissibly
retaliated against plaintiff for protected speech. I GRANT
defendants Frechette and Haynes's motion for summary
judgment. I conclude that they are entitled to qualified
immunity on plaintiffs federal cause of action, because it
was not clearly established that their actions violated
plaintiffs constitutional rights. I also conclude that
Frechette and Haynes are not individually liable as
plaintiffs “employer” under plaintiffs state law
cause of action, Conn. Gen. Stat. § 31-51q.
• Battery (Count Three). As to
plaintiff s battery claim, I DENY Haynes' motion for
summary judgment. I conclude that plaintiff has adduced
sufficient evidence for a reasonable jury to conclude that
Haynes committed an intentional battery against her.
• Whistleblower Protection (Count
Four). As to plaintiff s whistleblower protection
claim under state law, I DENY all parties' motions for
summary judgment (subject to the understanding that this
claim is properly alleged against the City and the Board
only). As with plaintiffs First Amendment claims, I conclude
that there are several genuine issues of material fact as to
whether plaintiff was disciplined in connection to protected
• Procedural Due Process (Count Five).
As to plaintiff s due process claim, I GRANT defendants'
motions for summary judgment and DENY plaintiffs motion with
respect to plaintiffs pre-transfer suspensions. I conclude
that plaintiff was not deprived of a property right when she
was suspended with pay. With respect to plaintiffs
post-suspension transfer, I DENY the motions for summary
judgment by plaintiff and the City, and GRANT the motion by
the Board and Frechette. I conclude that genuine issues of
fact remain with respect to plaintiff's claim that her
transfer amounted to a demotion and with respect to the
amount of process she was due. But I also conclude that only
the City may be liable for any violation of plaintiff's
due process rights that did occur, because the City, and not
the Board, had final authority in the matter.
was employed by the City beginning in 1994. In October 2008,
plaintiff began working for the Board as a payroll
supervisor. Beginning in 2009, she began reporting to
defendant Haynes, the Board's business manager. Doc.
#96-13. Defendant Frechette, meanwhile, was the Board's
superintendent. Doc. #96-8. During that time, plaintiff was
also the elected treasurer for the City, which was a
part-time elected position separate from her position with
the Board. Doc. #97-38 at 3-8.
2009 or early 2010, plaintiff became concerned with a number
of issues related to the Board's finances. See
Doc. #97-38. One of her concerns was that the Board was
issuing purchase orders that had no vendor identified, but
instead listed “99999” in the place of a
vendor's name. This made it difficult to keep track of
the order's intended recipient. Id. at 21.
Another concern was that the Board was reimbursing certain
employees for mileage expenses in what plaintiff thought to
be excessive amounts. Id. at 13-14. Still another
concern was that the Board was carrying money over from one
fiscal year to the next, rather than returning it to the City
as plaintiff believed was required. Id. at 23.
communicated some of these concerns to Haynes between fall
2009 and May 2010. Id. at 11-23. Plaintiff also
discussed the issue of mileage reimbursements and
“99999” orders with the City's mayor,
Sebastian Giuliano, a number of times before May 2010. Doc.
#92-23 at 13-14. Giuliano learned of the Board's use of
the 99999 orders from plaintiff and from Tracy Vess, a clerk
in the Board's business office. Doc. #97-43 at 7-14.
14, 2010, there was a large public gathering in Middletown
called the San Sebastian Feast, which Giuliano and plaintiff
attended. At the feast, Giuliano asked plaintiff about the
Board's accounting practices. Doc. #92-4 at 3-4.
Plaintiff said that she thought the Board was holding money
that belonged to the City, and she was concerned that the
Board's accounting practices were inappropriate. Doc.
#92-3 at 61-65. She asked Giuliano to speak with the
City's finance director about the Board's practices.
Doc. #92-4 at 6-7.
at the feast, Giuliano also received a report from Debra
Milardo, the City's personnel director, about a
conversation between Haynes and another Board employee
regarding a plan to go into the Board's offices the next
day (a Saturday) and alter documents. Doc. #92-23 at 5-6. The
following morning, Milardo contacted plaintiff and asked her
to give a statement to the Middletown Police Department
regarding her concerns. Doc. #92-4 at 9. Plaintiff met with
the police, and said in a written statement that she was
concerned that the Board's staff were planning to destroy
or alter records in the accounts payable department.
According to plaintiff's statement, clerical staff had
recently become aware of possible accounting discrepancies.
Doc. #97-32 at 2.
day, the police began an investigation into the Board's
possible misuse of funds. Police met with Frechette and gave
him a notice signed by Giuliano that directed him to preserve
all of the Board's records. Doc. #97-29 at 2; Doc. #97-30
at 2. The City also sent two officers to the Board's
business offices. Doc. #97-34 at 2.
alleges that these events precipitated a campaign of
retaliation by the Board against her for her communication
with Giuliano and the police. According to plaintiff, over
the ensuing days and weeks she was deprived of flexibility in
her work schedule, was deprived of information that was
necessary to do her job, ceased to be included in office
functions, was deprived of overtime, and her office was
vandalized. Doc. #97-38 at 31-34; Doc. #97-39 at 34- 37. Near
the end of her tenure with the Board, plaintiff was suspended
with pay for approximately two days, Doc. #97-8 at 2, and
told that the Board's payroll office had been
“compromised” and “had to be
investigated.” Doc. #96-13 at 176. Plaintiff also
testified that when she returned from suspension, Haynes
confronted and physically assaulted her, grabbing her arm and
scratching her as she attempted to leave the office. Doc.
#97-39 at 40.
meantime, the Board had sued the City, contending that the
City's actions taken while investigating the Board went
beyond the City's authority and interfered with the
Board's operations. Doc. #96-26 at 3-4. Eventually, as
part of the settlement in that suit, the City agreed to
transfer plaintiff from her position with the Board to a
budget analyst position in the City's Parks and
Recreation Department. Doc. #97-57; Doc. # 97-23; Doc. #92-4
at 36. The settlement provided that plaintiff would not
subsequently be appointed to any position within the Board
unless the Board's superintendent requested it. Doc.
#97-57 at 7. Plaintiff was not given a choice in the
transfer. Doc. #97-49 at 43.
filed a union grievance to protest her transfer from the
Board of Education to the Parks and Recreation Department.
Following a hearing, an arbitrator ruled in plaintiff's
favor, concluding that there was no “just cause”
for her transfer:
In the final analysis, then, the finding is compelling that
Ms. Bourne, who was doing a good job in her role as Payroll
Supervisor, was removed from her position involuntarily and
demoted. Why? Because employees including the Superintendent
at the Board of Education resented the fact that she was
selected by the Mayor to fill the position in the first
place; then later on they wanted her ousted because she
played a role in uncovering their unorthodox business
Doc. #132-2 at 14.
brought this suit against the City, the Board, Frechette, and
Haynes. Counts One and Two of her amended complaint allege
causes of action pursuant to Conn. Gen. Stat. § 51-31q
and 42 U.S.C. § 1983, contending that defendants
unlawfully retaliated against plaintiff because of her
exercise of constitutional rights to free speech. Count Three
alleges a state law claim of battery against defendant
Haynes. Count Four alleges a state law claim pursuant to
Conn. Gen. Stat. § 51-31m of unlawful retaliation
against plaintiff for engaging in protected
“whistleblowing” activity. Lastly, Count Five
alleges a cause of action pursuant to 42 U.S.C. § 1983
for a violation of plaintiff's constitutional right to
due process in connection with her suspensions and transfer
to a new employment position.
have moved for summary judgment on all counts. Plaintiff has
cross-moved for summary judgment on all counts other than the
battery claim. Docs. #92-97.
principles governing a motion for summary judgment are well
established. Summary judgment may be granted only if
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(a); see also
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per
curiam). “A genuine dispute of material fact
exists for summary judgment purposes where the evidence,
viewed in the light most favorable to the nonmoving party, is
such that a reasonable jury could decide in that party's
favor.” Zann Kwan v. Andalex Grp. LLC, 737
F.3d 834, 843 (2d Cir. 2013). The evidence adduced at the
summary judgment stage must be viewed in the light most
favorable to the non-moving party and with all ambiguities
and reasonable inferences drawn against the moving party.
See, e.g., Tolan, 134 S.Ct. at 1866;
Caronia v. Philip Morris USA, Inc., 715 F.3d 417,
427 (2d Cir. 2013). All in all, “a ‘judge's
function' at summary judgment is not ‘to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for
trial.'” Tolan, 134 S.Ct. at 1866 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
One and Two - Free Speech Retaliation
One and Two of the complaint allege that defendants
retaliated against plaintiff because of her constitutionally
protected speech activities. Both the U.S. Constitution and
the Connecticut Constitution protect the rights of government
employees under certain circumstances to engage in free
speech and not to be subject to retaliation by their
government employer because of their exercise of protected
speech. See Garcetti v. Ceballos, 547 U.S. 410,
417-20 (2006) (First Amendment); Trusz v. UBS Realty
Investors, LLC, 319 Conn. 175, 191- 211 (2015)
(Connecticut Constitution, art. 1st, §§ 4 & 5).
order to prove a claim of retaliation for engaging in
constitutionally protected speech, a government employee must
show: (1) that she has engaged in speech of the type that is
subject to protection in the government employment context;
(2) that her government employer took adverse action against
her; and (3) that there was a causal connection between the
protected speech or association and the adverse action.
See Matthews v. City of New York, 779 F.3d 167, 172
(2d Cir. 2015) (describing elements of First Amendment
retaliation claim by public employee).
argues that she engaged in protected speech when she spoke
with Giuliano about her concerns that the Board was
mishandling its finances and when she soon thereafter gave a
statement to the Middletown police department. She asserts
that defendants impermissibly retaliated against her because
of this speech. Doc. #97-1 at 20-28. The parties dispute each
element of plaintiff's claim-whether she was engaged in
protected speech, whether she suffered an adverse action, and
whether there was a causal connection between her protected
speech and any adverse action. I will therefore consider each
of these three elements in turn.
determine whether a public employee's speech is protected
from retaliation for purposes of a First Amendment
retaliation claim, courts engage in a two-step inquiry.
See Matthews, 779 F.3d at 172. First, a court must
determine as a threshold matter “whether the employee
spoke as a citizen on a matter of public concern.”
Ibid. This “public concern”
determination itself “encompasses two separate
sub-questions: (1) whether the subject of the employee's
speech was a matter of public concern and (2) whether the
employee spoke ‘as a citizen' rather than solely as
an employee.” Ibid. (internal quotation marks
omitted). Even when an employee speaks about a subject matter
of public concern, if the employee has done so pursuant to
her official duties rather than in her capacity as a
concerned citizen, then her speech is not subject to
protection under the First Amendment, and she is thus not
protected from adverse action by the employer. See
Garcetti v. Ceballos, supra; Ricciuti v.
Gyzenis, 834 F.3d 162, 168 (2d Cir. 2016).
that the employee's speech is made as a citizen about a
matter of public concern, then the second step considers
whether the employer has adequate reasons to restrict the
employee's speech. This second step is often referred to
as a Pickering balancing analysis. See Pickering
v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty.,
391 U.S. 563, 568 (1968); Matthews, 779 F.3d at
172-73. The Pickering analysis asks “whether
the relevant government entity ‘had an adequate
justification for treating the employee differently from any
other member of the public based on the government's
needs as an employer.'” Matthews, 779 F.3d
at 172 (quoting Lane v. Franks, 134 S.Ct. 2369, 2380
(2014)); see also Anemone v. Metropolitan Transp.
Auth., 629 F.3d 97, 114-15 (2d Cir. 2011) (describing
First Amendment speech rights of public employees).
analytic framework I have just described is somewhat
different for purposes of a claim arising under the
Connecticut Constitution (as alleged in Count One) if the
claim arises from speech that was made by an employee
pursuant to her official duties (as distinct from speech made
by an employee as a concerned citizen). Rejecting the U.S.
Supreme Court's decision in Garcetti v.
Ceballos, supra, the Connecticut Supreme Court
has made clear that an employee does not categorically lose
her right to be free from retaliation for any speech that she
makes pursuant to her official duties; instead, if such
speech was made pursuant to her official duties, it may still
be protected from retaliation if the employee spoke out about
highly significant matters of public concern such as official
dishonesty, deliberately unconstitutional action, other
serious wrongdoing, or threats to health and safety. See
Trusz, 319 Conn. at 210-11, 216-17.
Whether plaintiff's speech was on a matter of public
matter of public concern is one that “relates to any
matter of political, social, or other concern to the
community.” Singer v. Ferro, 711 F.3d 334, 339
(2d Cir. 2013). To evaluate whether speech is addressed to a
matter of public concern, courts look to “the content,
form, and context of a given statement, ” and consider,
among other things, “whether the ...