JOHN K. HORVATH
CITY OF HARTFORD
Richard J. Padykula, with whom, on the brief, was Leon M.
Rosenblatt, for the appellant (plaintiff).
P. Shea, Jr., for the appellee (defendant).
Alvord, Prescott and Bishop, Js.
plaintiff, John K. Horvath, appeals from the summary judgment
rendered in favor of the defendant, the city of Hartford. On
appeal, the plaintiff asserts that the trial court's
judgment was in error because disputed issues of material
fact exist concerning whether he was retaliated against, and
later constructively discharged, by the defendant in
violation of General Statutes § 31-51m as a result of
his whistle-blowing activities while in the defendant's
employ. In response, the defendant claims that summary
judgment was appropriate because, in opposition to its motion
for summary judgment, the plaintiff offered no evidence that
the defendant constructively discharged him by intentionally
creating an intolerable work environment compelling him to
resign. We affirm the judgment of the trial court.
following facts and procedural history are relevant to the
resolution of this appeal. In 2011, the defendant employed
the plaintiff as an assistant chief of police for the
Hartford Police Department (department). At the time, the
department's command structure was comprised of the chief
of police, two deputy chiefs and three assistant chiefs. On
April 11, 2011, in response to an internal complaint, the
plaintiff requested an investigation into the actions of
Neville Brooks, commander of the department's internal
affairs division. In September, 2011, the city hired Marcum
LLP to conduct an independent review of the operations of the
internal affairs division. Following the release of the
Marcum LLP report, the plaintiff sent a letter on December 1,
2011, to Daryl Roberts, the chief of police, setting forth
his concerns regarding ‘‘numerous errors,
omissions and intentional misrepresentations''
contained in the Marcum LLP report.
17, 2011, the Hartford city council passed a financial
resolution reducing its budget by $1, 750, 000, including a
reduction of $300, 000 in department's executive command
level expenses. This budget included funding for the
plaintiff's position. The cuts were accomplished, in
part, by the retirement of Lester McKoy, an assistant chief
of police. On May 24, 2012, James Rovella, who became the
interim chief of police after Roberts retired in December,
2011, informed the plaintiff that his position as assistant
chief was going to be eliminated from the budget. In the same
conversation, however, Rovella assured him that
‘‘his job was safe.''
June, 2012, the plaintiff had a series of interviews with the
University of Massachusetts in Amherst, Massachusetts, for
the position of chief of police and subsequently accepted the
position on September 4, 2012. The plaintiff left his employ
with the department as assistant chief of police on September
14, 2013, the plaintiff filed a single count amended
complaint alleging that the defendant had penalized him by
constructively discharging him from his employment in
violation of § 31-51m because ‘‘he
investigated and reported, verbally and in writing,
Brooks' actual or suspected violations of state law,
municipal ordinance, and pertinent
regulations.''Thereafter, the defendant filed a motion
for summary judgment in which it claimed, inter alia, that
there existed no genuine issue of material fact in support of
the plaintiff's claim that he was constructively
discharged. On April 13, 2016, the trial court issued a
memorandum of decision granting the defendant's motion.
This appeal followed. Additional facts will be provided as
first set forth the applicable standard of review.
‘‘The standards governing our review of a trial
court's decision to grant a motion for summary judgment
are well established. Practice Book [§ 17-49] provides
that summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable to
the nonmoving party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles of
substantive law, entitle him to a judgment as a matter of law
. . . and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . A material fact . . .
[is] a fact which will make a difference in the result of the
case. . . . Finally, the scope of our review of the trial
court's decision to grant [a] motion for summary judgment
is plenary.'' (Internal quotation marks omitted.)
McClancy v. Bank of America, N.A., 176 Conn.App.
408, 412-13, 168 A.3d 658 (2017).
‘‘[o]nly evidence that would be admissible at
trial may be used to support or oppose a motion for summary
judgment. . . . Practice Book § 17-46 provides in
relevant part that affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.''
(Citation omitted; internal quotation marks omitted.)
Midland Funding, LLC v. Mitchell-James, 163
Conn.App. 648, 655, 137 A.3d 1 (2016). ‘‘A
conclusory assertion . . . does not constitute evidence
sufficient to establish the existence of a disputed material
fact for purposes of a motion for summary judgment.''
Hoskins v. Titan Value Equities Group, Inc., 252
Conn. 789, 793-94, 749 A.2d 1144 (2000). Last, summary
judgment ‘‘is appropriate only if a fair and
reasonable person could conclude only one way.''
Miller v. United Technologies Corp., 233 Conn. 732,
751, 660 A.2d 810 (1995).
31-51m protects an employee from retaliatory discharge when
the employee has complained about a suspected violation of a
state or federal law or regulation. Arnone v.
Enfield, 79 Conn.App. 501, 506-507, 831 A.2d 260, cert.
denied, 266 Conn. 932, 837 A.2d 804 (2003). Section 31-51m
(b) provides in relevant part: ‘‘No employer
shall discharge, discipline or otherwise penalize any
employee because (1) the employee, or a person acting on
behalf of the employee, reports, verbally or in writing, a
violation or a suspected violation of any state or federal
law or regulation or any municipal ordinance or regulation to
a public body . . . . No municipal employer shall discharge,
discipline or otherwise penalize any employee because the
employee, or a person acting on behalf of the employee,
reports, verbally or in writing, to a public body concerning
the unethical practices, mismanagement or abuse of authority
by such employer. The provisions of this subsection shall not
be applicable when the employee knows that such report is
discharge of an employee occurs when an employer, rather than
directly discharging an individual, intentionally
creates an intolerable work atmosphere that forces an
employee to quit involuntarily. . . . Working conditions are
intolerable if they are so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt
compelled to resign.'' (Citations omitted; emphasis
in original; internal quotation marks omitted.) Brittell
v. Dept. of Correction, 247 Conn. 148, 178, 717 A.2d
1254 (1998). ‘‘A claim of constructive discharge
must be supported by more than the employee's subjective
opinion that the job conditions have become so intolerable
that he or she was forced to resign.'' Seery v.
Yale-New Haven Hospital, 17 Conn.App. 532, 540, 554 A.2d
757 (1989). ‘‘Normally, an employee who resigns
is not regarded as having been discharged, and thus would
have no right of action for abusive discharge. . . . Through
the use of constructive discharge, the law recognizes that an
employee's voluntary resignation may be, in reality, a
dismissal by the employer.'' (Citation omitted;
internal quotation marks omitted.) Id. Moreover,
‘‘[i]n order to meet the high standard applicable
to a claim of constructive discharge, a plaintiff is required
to show both (1) that there is evidence of the employer's
intent to create an intolerable environment that forces the
employee to resign, and (2) that the evidence shows that a
reasonable person would have found the work conditions so
intolerable that he would have felt compelled to
resign.'' (Internal quotation marks omitted.)
Irizarry v. Lily Transportation Corp., Docket No.
3:15-CV-1386 (DJS), 2017 WL 3037782, *4 (D. Conn. July 18,
2017), citing Adams v. Festival Fun Parks, LLC, 560
Fed.Appx. 47, 49 (2d Cir. 2014).
appeal, the plaintiff makes two claims: (1) that he was
constructively discharged from his employment in violation
§ 31-51m, and (2) that he was otherwise penalized as a
consequence of his whistle-blowing activities at the
department in violation of the same statute. In regard to
this second claim, the plaintiff asserts that ‘‘a
reasonable jury could conclude that [the] defendant's
actions amounted to a retaliatory penalty and discipline for
the plaintiff['s] reporting of abuses of authority . . .
.'' In response, the defendant argues that the court
correctly rendered summary judgment as to the plaintiff's
retaliatory discharge claim, and that the plaintiff's
second claim is outside the scope of the complaint and has
been raised for the first time on appeal. In sum, the
defendant claims that the plaintiff relied solely on
retaliatory constructive discharge in his pleadings and,
therefore, cannot now raise additional theories of recovery
that are based on discipline or penalty untethered to his
wrongful discharge claim. Because we agree that the
plaintiff's second claim has been raised for the first
time on appeal and is not framed as a distinct claim in the
plaintiff's complaint, it does not warrant detailed
analysis. Accordingly, we discuss it briefly before turning
to the wrongful discharge claim.
complaint alleges that the plaintiff ‘‘was
constructively discharged on September 21, 2012.'' In
three subsequent paragraphs, the complaint further repeats
that the ‘‘defendant penalized the plaintiff by
discharging him . . . .'' Nowhere in the complaint
does the plaintiff frame a claim for relief on the basis of
other forms of retaliation, such as ‘‘disciplined
or otherwise penalize[d], '' as described in §
31-51m (b). In short, in his complaint, he claims that he was
constructively discharged as a consequence of his
whistle-blowing actions. A plaintiff's claims are, of
course, framed by and limited to those made in the complaint.
Mamudovski v. BIC Corp., 78 Conn.App. 715, 732, 829
A.2d 47 (2003) (‘‘[a] fundamental tenet in our
law is that the plaintiff's complaint defines the
dimensions of the issues to be litigated'' [internal
quotation marks omitted]), appeal dismissed, 271 Conn. 297,
857 A.2d 328 (2004). Additionally, we decline to consider his
attempt to raise claims of alternative forms of retaliation
for the first time on appeal. See, e.g., Murphy v.
EAPWJP, LLC, 306 Conn. 391, ...