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Bourne v. City of Middletown

United States District Court, D. Connecticut

March 27, 2017

CITY OF MIDDLETOWN, et al., Defendants.


          Jeffrey Alker Meyer, United States District Judge

         Plaintiff 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.

         Plaintiff 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 summary judgment.

         For the 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 speech.
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.


         Plaintiff was employed by the City beginning in 1994.[1] 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.

         In late 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.

         Plaintiff communicated some of these concerns to Haynes between fall 2009 and May 2010.[2] 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.

         On May 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.

         While 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.

         That 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.

         Plaintiff 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.

         In the 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.

         Plaintiff 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 practices.

Doc. #132-2 at 14.

         Plaintiff 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.

         Defendants 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.


         The 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 (1986)).

         Counts One and Two - Free Speech Retaliation

         Counts One and Two of the complaint allege that defendants retaliated against plaintiff because of her constitutionally protected speech activities.[3] 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).

         In 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).

         Plaintiff 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.

         1. Protected Speech

         To 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).

         Assuming 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).

         The 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.

         A. Whether plaintiff's speech was on a matter of public concern

         A 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 ...

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