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Green v. East Haven Police Dep't

United States District Court, D. Connecticut

December 19, 2017

DYANNA GREEN, Plaintiff,


          Vanessa L. Bryant United States District Judge

         This case involves an employment discrimination action brought by Plaintiff Dyanna Green (“Plaintiff” or “Green”) who served as a records attendant for the East Haven Police Department (“EHPD”) for approximately 13 years. Plaintiff contends Defendant Town of East Haven (“Defendant” or “Town”) discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and Conn. Gen. Stat. § 46a-60, et seq. Defendant moves Motion for Summary Judgment, arguing that certain alleged discriminatory acts are time-barred and that Plaintiff fails to establish a prima facie case for relief. [Dkt. 49]. For the foregoing reasons, this motion is GRANTED.


         The following facts are derived from the parties' undisputed Local Rule 56(a)(1) and 56(a)(2) statements and evidence on the record. In May 2001 at the age of 47, Plaintiff Green began her employment with East Haven Police Department, where she worked as a records attendant for approximately 13 years. [Dkt. 49-2 (D. Conn. Civ. L. R. 56(a)(1) Stmt.) ¶ 1; Dkt. 54-10 (D. Conn. Civ. L. R. 56(a)(2) Stmt.) ¶ 1]. Her duties included processing arrest and accident reports, typing search and arrest warrants as well as misdemeanor and infraction tickets, and entering data into the EHPD system. [Dkt. 49-2 ¶ 2; Dkt. 54-10 ¶ 2]. Plaintiff and Sandy Depoto worked together as the sole full-time records attendants from her start date to Ms. Depoto's retirement in 2012. [Dkt. 54-9 (Pl.'s Aff.) ¶6]. Denise Spallone also joined the team as a part-time records attendant in approximately 2007. Id. After Ms. Depoto retired in 2012, Jennifer Ward was hired as her replacement. [Dkt. 49-2 ¶ 6; Dkt. 54-10 ¶ 6]. Plaintiff contends Ms. Ward was approximately 30 years old at the time she was hired. See [Dkt. 54-9 ¶ 7]. At no time relevant to this decision was there a position titled “senior” records attendant. [Dkt. 49-2 ¶ 5; Dkt. 54-10 ¶ 5].

         The EHPD underwent senior managerial and policy changes beginning in 2012 that impacted the Records Department. Brent Larrabee was appointed Chief of Police in 2012, [Dkt. 54-9 ¶ 7], and he appointed Lieutenant David Emerman as Supervisor of the Records Division to replace Captain Joe Slane, [Dkt. 49-2 ¶ 3; Dkt. 54-10 ¶ 3; see Dkt. 49-4 (Emerman Dep.) at 10:7-:11-5]. Officer James Naccarato joined the EHPD in 2012, [Dkt. 49-8 (Mot. Summ. J. Ex. 6, Naccarato Dep.) at 6:1-12], and was the Internal Affairs Officer at all times relevant to this case. [Dkt. 49-2 ¶ 10; Dkt. 54-10 ¶ 10].

         The EHPD had formal policies and procedures governing internal affairs, including a Code of Conduct and an internal affairs investigation process. [Dkt. 49-2 ¶¶ 11-12; Dkt. 54-10 ¶¶ 11-12]. Part of Officer Naccarato's role entailed investigating violations of these policies and procedures. [Dkt. 49-2 ¶ 13; Dkt. 54- 10 ¶ 13]. EHPD's policy on Internal Affairs Officer and Complaints provides, “[t]he Police Chief has the authority to determine the merits of an investigation” and discipline an employee accordingly. [Dkt. 49-9 (Mot. Summ. J. Ex. 7 (Policy 208.2) at 14 of PDF; see Dkt. 49-2 ¶¶ 29-30; Dkt. 54-10 ¶¶ 29-30].

         Termination was a multi-step process. After an internal affairs investigation the Police Chief had the authority to issue a “verbal reprimand, written reprimand (warning), suspension, [and to] enter into negotiation with the Union regarding alternate types of discipline or corrective alternatives.” [Dkt. 4-4 at 14 of PDF]. But if allegations were more serious, the Police Chief could then refer the investigation to the Board of Police Commissioners (“BPC”). [Dkt. 49-9 at 14 of PDF; see Dkt. 49-2 ¶¶ 30-32; Dkt. 54-10 ¶¶ 30-32]. The BPC had “authority to suspend without pay for an unlimited period of time, dismiss, reduce the charges, or terminate the employee” and was to conduct a “full Board hearing during which evidence [would be] presented.” [Dkt. 49-9 at 14 of PDF; see Dkt. 49-2 ¶¶ 33-34; Dkt. 54-10 ¶¶ 33-34].

         Plaintiff also experienced a few changes to her employment over the couple of years after Ms. Depoto's retirement and prior to her own retirement. In April 2013, Plaintiff's hours were altered; her start time was moved back one hour from 7:00 am to 8:00 am and her end time moved back from 3:00 pm to 4:00 pm. [Dkt. 49-2 ¶ 7; Dkt. 54-10 ¶ 7]. On September 29, 2014, the job responsibilities of Plaintiff and Ms. Ward were switched. [Dkt. 49-2 ¶ 8; Dkt. 54-10 ¶ 8]. On October 10, 2014, Plaintiff requested to come into work early after a long weekend, [Dkt. 49-2 ¶ 9; Dkt. 54-10 ¶ 9; Dkt. 49-7 (E-mail 10/10/14)], and she stated the following reasons:

Dave, past practice in the records room since I have been here, 13 years, and for the years before, the senior clerk always had first choice of coming in early after a long weekend. So, my question is if you would like me to first organize the paperwork for Jen to begin processing when she comes in and then attend to my other duties, or just work on my regular duties instead?

[Dkt. 49-7]. Lieutenant Emerman instructed her to report according to her regular duties. Id.

         I. Incident Leading to Suspension

         On Friday, December 5, 2014, an incident occurred giving rise to Plaintiff's placement on administrative leave with pay.[1] [Dkt. 49-2 ¶ 14; Dkt. 54-10 ¶ 14]. Plaintiff took without permission a can of biscuits from the refrigerator and a basket from the kitchen area. [Dkt. 49-2 ¶¶ 18-20; Dkt. 54-10 ¶¶ 18-20]. She believed the biscuits were for communal use or were abandoned (she planned to cook them for the office over the weekend), and she intended to borrow the basket as she had previously done and observed other employees do the same. [Dkt. 54-9 ¶¶ 21-22]. In the early afternoon, Lieutenant Murgo sent an email to the EHPD employees:

We had two (2) canisters of Buttermilk flavored Pillsbury biscuits that was brought in on Thanksgiving by one of our officers. There is now one canister left, which means one canister grew legs and walked away. If YOU are in possession of Pillsbury Grands Flaky layers Buttermilk biscuits, please return them to their rightful owner. We work in a police department people. Too many things grow legs here. Thank you.

[Dkt. 54-2 (Opp'n Ex. 1, E-mail 12/05/14)]. After receiving this e-mail, Plaintiff asked Lieutenant Emerman if there were cameras in the kitchen. [Dkt. 49-2 ¶ 21; Dkt. 54-10 ¶ 21].

         Plaintiff attempted to return the biscuits to the refrigerator, but when she arrived in the kitchen carrying the biscuits in a bag she discovered the refrigerator covered with yellow tape and a “crime scene” sign. [Dkt. 49-2 ¶ 22; Dkt. 54-10 ¶ 22; Dkt. 54-3 (Opp'n Ex. 4, Photographs); Dkt. 54-9 ¶ 27]. Chief Larrabee confronted Plaintiff and inquired about the contents of her bag, to which she responded that the bag contained her salad. [Dkt. 54-9 ¶ 29]. Plaintiff contends that Chief Larrabee looked in the bag, saw the can of biscuits, and escorted her back to her work station. Id. According to Plaintiff, Chief Larrabee then noticed another bag near her desk containing the wire basket, and Plaintiff explained that she intended to use it over the weekend for a Hannukah party. Id. She was then advised to leave the office and contact her union representative. Id. Plaintiff maintains that food and kitchen items are “regularly borrowed, misplaced or taken from the EHPD's communal refrigerator and breakroom” but never has anyone sent e-mails or used crime scene tape and a sign in response. Id. ¶ 26.

         II. Subsequent Investigation

         On the same day of the incident, Officer Naccarato visited Plaintiff's home with forms documenting her suspension with pay. [Dkt. 54-9 ¶ 30; Dkt. 54-7 (Opp'n Ex. 7, Investigation Report) at 2 of PDF (“At approximately 1535 hours I went to Dyanna's home . . . to get her department keys and have her sign her notice of suspension.”); [Dkt. 49-11 (Mot. Summ. J. Ex. 9, Admin. Leave Notice) (establishing suspension with pay during pendency of internal investigation)]. He thereafter interviewed Plaintiff on December 11, 2014, which uncovered information about the December 5 incident as stated above. [Dkt. 49-12 (Mot. Summ. J. Ex. 10, Interview Tr.)]. During this interview, Plaintiff explained she felt “kind of negative things” from Chief Larrabee within the first few weeks of his joining the office. Id. at 13 of PDF. She recognized she was “obviously not a JEN and . . . not a MARCIA” but that she put in over 13 years of work and no one had ever told her that officers could not trust her. Id. Plaintiff referenced her volunteer activities for the union and overall commitment to the EHPD community. Id. Officer Naccarato ultimately concluded that Plaintiff violated the Code of Conduct by engaging in “unbecoming conduct, ” which is defined as “[a]ny willful action or conduct which impedes the Department's efforts to achieve its goals, values, or beliefs as stated in the mission statement and code of ethics, brings discredit on the Department, or impairs the operation or efficiency of the Department or any member.” See [Dkt. 49-8 at 115:1-116:8; Dkt. 49-10 (Mot. Summ. J. Ex. 8, Policy 203.1) at 8 of PDF]. Officer Naccarato believes discipline includes “up to termination.” [Dkt. 49-8 at 116:4-5].

         Plaintiff avers that she spoke with Officer Naccarato after the interview and asked him “what was going to happen to [her].” [Dkt. 54-9 ¶ 31]. Officer Naccarato purportedly stated, (1) that she had stolen from the EHPD, (2) that “Chief Larrabee and other members of the EHPD no longer trusted [her] or wanted [her] to continue working at the EHPD, (3) that her termination was likely, and (4) she should retire or resign if it was possible. Id. Officer Naccarato does not remember this conversation, but stated in his deposition, “[I]f she asked me, I would have told her what I thought.” [Dkt. 49-8 at 34:17-18]. He would have told her, “[I]t's stealing from a police department, you have the potential to get fired for it. We have a disciplinary matrix that we go by and that's where it falls in ...

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