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Blue v. City of New Haven

United States District Court, D. Connecticut

January 31, 2019

MENDI BLUE Plaintiff,


          MICHAEL P. SHEA, U.S.D.J.

         The plaintiff, Mendi Blue (“Ms. Blue”), filed this action challenging a decision by the City of New Haven (“the City”) to terminate her employment as New Haven's Director of Development and Policy. In the operative complaint, Ms. Blue alleges retaliation in violation of Connecticut's “whistleblower” protection statute, violation of her federal and state free speech rights, breach of contract, and discrimination on the basis of race and color. ECF No. 43. The City has moved for summary judgment on all counts. ECF No. 77. For the reasons set forth below, the motion for summary judgment is GRANTED as to the federal free speech and breach of contract claims, and DENIED as to the retaliation, state free speech, and racial discrimination claims.

         I. Facts

         The following facts, which are taken from the parties' Local Rule 56(a) statements and supporting exhibits, are undisputed unless otherwise indicated.[1]

         A. Ms. Blue's Appointment to the Office of Development and Policy

         Ms. Blue volunteered on Mayor Harp's mayoral campaign. ECF No. 79-1 at ¶ 2. After Mayor Harp was elected, she hired Ms. Blue to be New Haven's Director of Labor Relations on January 1, 2014. Id. at ¶ 3. A few months later, in May 2014, Mayor Harp appointed Ms. Blue to a newly-created position: Director of Office of Development and Policy (“ODP”). Id. at ¶ 7. The appointment was made pursuant to Section 4(a) of the Revised City Charter, id., which provides that “[t]he Mayor shall appoint a secretary to the Mayor and other employees in the Office of the Mayor, who shall serve under the direction of and subject to removal at the pleasure of the Mayor, id. at ¶ 4.

         The Board of Alders (“BOA”) is the legislative body of the City of New Haven, id. at ¶ 8, and voted to fund the ODP Director position, id. at ¶ 9. In approving the position, the BOA adopted an ordinance requiring the ODP Director to provide quarterly reports to the BOA regarding the City's progress in securing grant funding. Id. at ¶ 10. As ODP Director, Ms. Blue was also responsible for identifying, coordinating, and applying for grants. Id. at ¶ 11. In the course of this job, she was expected to work in partnership with the Mayor and department heads. Id.

         Ms. Blue received a copy of the Employee Handbook and City policies at a new hire orientation held sometime within her first three months on the job. Id. at ¶ 5. The Employee Handbook's “disciplinary process” provision includes the following language:

Normally, discipline will be administered in accordance with the principles of progressive discipline. Progressive discipline provides for increasingly serious disciplinary measures. However, the severity of any disciplinary action is dependent upon the nature of the offense.
In some situations, employee behavior is so serious that immediate termination is warranted. If the City's investigation of the situation reveals that the employee committed what it determines to be a serious offense, then termination without progressive discipline may be required.

Id. at ¶ 6.

         B. Ms. Okafor's Alleged Use of Unbid Grant Writing Services

          Mayor Harp hired Martha Okafor (“Ms. Okafor”) as the Community Services Administrator on May 28, 2014. Id. at ¶ 12. As the head of the community services administration, Ms. Okafor assumed the responsibility of trying to generate additional resources for her office. Id. at ¶ 13. On June 3, 2014, Mayor Harp sent a memo to all coordinators and department heads, requesting that they inform ODP (Ms. Blue's department) of all grant seeking, proposal writing, and fundraising-related activities within their departments.” Id. at ¶ 14.[2] Shortly after she was hired, Ms. Okafor began contracting with Farnam Associates (“Farnam”), an outside consultant, for grant writing services. Id. at ¶ 16. Ms. Okafor was required to follow the procedures set forth in Article XV, § 1 (C) of the Revised City Charter when working with outside consultants. The relevant provision of the charter states:

Whenever any work is necessary to be done, or any supply is needed, and the several parts of said work or supply shall together involve the expenditure of more than five thousand dollars ($5, 000.00), or such other amount established by the Board of Alders by Ordinance, such work shall be done or supply acquired pursuant to written contract, under such regulations as the Board of Alders may establish by Ordinance. All such contracts shall be founded on sealed bids or proposals made in compliance with Public Notice published at least ten (10) Days before the time fixed for opening said bids or proposals. If the Purchasing Agent shall not deem it for the interest of the City to reject all bids, the Purchasing Agent shall award the contract to the lowest responsible bidder.

Id. at ¶ 19.

         Ms. Blue became aware that Ms. Okafor was outsourcing grant writing services to Farnam without putting the work out to bid. Id. at ¶ 17. She soon began expressing concern to Mayor Harp, and others in the administration, that Ms. Okafor was awarding grant writing contracts without going through the bidding process required by the City Charter. Id. at ¶ 18. Ms. Okafor was advised that she needed to work with the purchasing office to issue requests for proposals when utilizing outside consultants. Id. at ¶ 24. In addition, the purchasing agent held a training session for everyone in the City who had occasion to utilize outside contractors. Id. The parties disagree whether Ms. Okafor began to follow the procedures in 2016. Id. at ¶ 26. The City states that by the beginning of 2016, Ms. Okafor only retained Farnam's services after putting a work request out to bid, while Ms. Blue states that Ms. Okafor was still retaining Farnam without following the proper procedures. Id. Specifically, Ms. Blue states that a contract between the City and Farnam was executed retroactively on February 18, 2016 with an effective date of January 1, 2016, and that Farnam had been selected and had begun work before the contract was put out to bid. Id.

         C. The Budget Dispute, BOA Meeting, and Memorandum

         The City states that Mayor Harp issued a directive to her department heads and coordinators informing them that when she submits a proposed budget to the BOA, the time for lobbying in favor of a particular department is over, and they must support the budget before the BOA. Id. at ¶ 34. Ms. Blue states that the directive was not articulated “in an effective and official manner” and that that the only clear statement of this policy came in writing after her termination. Id. In any case, the City states that Ms. Blue knew that the Mayor expected all of her directors to support the budget once it was presented to the BOA. Id. at ¶ 38. While Ms. Blue testified that she generally knew about this policy, she also stated that the policy had not always been followed in the past. Id.

         In January 2016, Ms. Blue spoke with Mayor Harp about adding two new positions for the Office of Development and Policy to the proposed budget. Id. at ¶ 27. On March 29, 2016, however, shortly before Ms. Blue was scheduled to speak to the BOA Finance Committee, she was informed that those two positions were not in the Mayor's budget. Id. at ¶ 28. At the meeting, the Alders questioned Ms. Blue about grants she had worked on and the money her office brought into the City. Id. at ¶ 29. The next day, Ms. Okafor testified before the BOA Finance Committee and was asked “how grants work in the city in its entirety.” Id. at ¶ 30-31. Ms. Blue was not present during Ms. Okafor's testimony, but she listened to a recording of it and felt that it was her responsibility to respond to the BOA's inquiry. Id. at ¶ 31.

         On April 7, 2016, Ms. Blue submitted an 11-page memo to the BOA. Id. at ¶ 32. In the memo, she requested funding for two new positions in her office, stating that “[t]hough these positions were not included in the proposed 2016-17 budget, I appeal to this Committee to fund these positions.” Id. at ¶ 33. At the time she submitted this memo, she knew that the two positions were not in the Mayor's budget. Id. at ¶ 37. The memo also reported Ms. Okafor's practice of awarding grant writing contracts without a bidding process in violation of city rules. See, e.g., Defendant's Ex. R at 5 (calling attention to Ms. Okafor's “violation of every city policy (formal or informal) related to the production of grants.”).

         D. Ms. Blue's Termination

         After submitting the memo, Ms. Blue was out of the office for almost two weeks, first attending a conference and then on vacation. ECF No. 79-1 at ¶ 41. A few days after returning to the office, Ms. Blue was terminated. Id. at ¶ 42 & 47. At the termination meeting, Mayor Harp read from a script. Id. at ¶ 43; Defendant's Ex. U. Mayor Harp stated that Ms. Blue had violated her trust, and that she had caused her embarrassment. Id. at ¶ 44. She further indicated that if Ms.

         Blue had wanted to advocate for new positions, the time to do so was before the budget was submitted, and the request for new positions was a deliberate violation of the directive to speak with one voice. Id. She also stated that Ms. Blue had disrupted the operations of her office and the budget process. Id. The parties agree that Mayor Harp terminated Ms. Blue's employment for violating her trust and for “deliberately disobeying a directive that disrupted the operations of her office and the budget process.” Id. at ¶ 47.

         The City states that Mayor Harp did not indicate, at any point, that she was upset that Ms. Blue had complained about Ms. Okafor. Id. at ¶ 45. Ms. Blue testified that she could not recall exactly what the Mayor said she was upset about at the termination meeting. Id.

         II. Legal Standard

         Summary judgment is appropriate only when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (internal quotation marks and citations omitted). “A fact is material when it might affect the outcome of the suit under governing law, ” and “an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal citations and quotation marks omitted). The moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences” in favor of the non-moving party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).

         III. Discussion

         A. Retaliation for Reporting a Violation of Law (Count One)

         Conn. Gen. Stat. § 31-51m prohibits an employer from discharging, disciplining, or otherwise penalizing an employee because (1) the employee reported a violation or suspected violation of a law, regulation, or ordinance to a public body, or (2) the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body. Conn. Gen. Stat. § 31-51m(b). This claim is analyzed under the McDonnell Douglas burden-shifting framework. Arnone v. Town of Enfield, 831 A.2d 260, 266 (Conn. App. 2003) (“[W]histle-blowing claims for retaliatory discharge typically invite analysis under the framework first established in McDonnell Douglas.”). As such, the plaintiff must establish a prima facie case of retaliation by demonstrating that: (1) she engaged in activity protected by § 31-51m; (2) she was subsequently terminated from her employment; and (3) a causal connection exists between her participation in the protected activity and her termination. Fasoli v. City of Stamford, 64 F.Supp.3d 285, 295-96 (D. Conn. 2014). If Ms. Blue meets this initial burden, the City must produce evidence of a nonretaliatory reason for the termination. Arnone, 831 A.2d at 266. Then, to survive summary judgment, Ms. Blue “must offer some significantly probative evidence showing that the [City's] proffered reason is pretextual.” Id. at 267.

         1. Prima Facie Case

         a. Public Body

         The City argues that Ms. Blue cannot establish a prima facie case “because she did not report an alleged violation to a third party public body.” ECF No. 77-1 at 14. I disagree. Section 31-51m offers protection to those who report violations to a “public body” and defines such a body by reference to the definition of “public agency” in subdivision (1) of section 1-200. Conn. Gen. Stat. § 31-51m(b) & (a)(4). Section 1-200 defines “public agency” as any “executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency.” Conn. Gen. Stat. § 1-200(1)(A). The BOA is the legislative body for the City of New Haven, ECF No. 77-1 at 15, and therefore falls within the definition of “public body.” The City relies on Cubilla v. Town of Montville, 2014 WL 1565899 (Conn. Super. Mar. 18, 2014) to argue that the report must be made to a third party and the BOA does not qualify as a third party. ECF No 77-1 at 14-15. In Cubilla, however, “the plaintiff was reporting to the mayor her concerns about the decision, policy, plan or proposed action of the mayor himself.” Cubilla v. Town of Montville, 2014 WL 1565899, at *2 (Conn. Super. Mar. 18, 2014). The Cubilla court explained that the “whistle must be blown” to a party other than “the individual supervisor of the employee about whose decision, policy, plan, action or proposed action the employee is concerned.” Id. The present case is distinct from Cubilla, because Ms. Blue was not terminated after she reported the alleged violation to the person whose action concerned her, Ms. Okafor, or to her supervisor, Mayor Harp. Rather, she was terminated shortly after she reported her concerns to the BOA, which, as noted, is a public body for purposes of § 31-51m.

         b. Causation

         The City next argues that there is no evidence of a causal connection between Ms. Blue's termination and her alleged protected activity. ECF No. 77-1 at 15. I disagree. To establish a causal connection, Ms. Blue “must show that the protected action was a motivating factor for employer retaliation, but not necessarily the only factor.” Karagozian v. Luxottica Retail N.A., 147 F.Supp.3d 23, 33 (D. Conn. 2015) (internal quotation marks and citations omitted). She may do so “indirectly, by circumstantial evidence, such as by showing that the protected activity was followed closely in time by adverse treatment in employment.” Fasoli v. City of Stamford, 64 F.Supp.3d 285, 297 (D. Conn. 2014); see also Cifra v. G.E. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation marks and citations omitted) (“The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.”).

         In this case, Ms. Blue was terminated just a few weeks after submitting her memorandum-which reported Ms. Okafor's violation, among other things-to the BOA. ECF No. 79-1 at ¶¶ 32, 42, 47 & 48. Courts in this circuit “have declined to draw a ‘bright line' defining the outer limits beyond which causation based on temporal proximity may be established, ” Bierce v. Town of Fishkill, 656 Fed.Appx. 550, 552 (2d Cir. 2016), but this case falls well within the outer limits, see Cifra, 252 F.3d at 217 (finding a twenty-day lapse sufficient to constitute indirect evidence of causation); Bierce, 656 Fed.Appx. At 552 (same based on a few-month lapse); Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 555 (2d Cir. 2001) (same based on five-month lapse). Moreover, the discussion in the memorandum was the first time Ms. Blue reported Ms. Okafor's violations to a public body. ECF No. 79 at 10. All previous complaints about Ms. Okafor's practices had been made within the Mayor's administration; Ms. Blue had expressed concern about Ms. Okafor's use of unbid third-party grant writing services to others in the administration since 2014, ECF No. 79-1 at ¶ 18, yet Mayor Harp did not take adverse action against her until she sent the memorandum to the BOA. This permits an inference of causation and is sufficient to show a prima facie case as to causation.

         There are also genuine issues of material fact as to which components of the memorandum-the parts discussing Ms. Okafor's violations or the parts disagreeing with the Mayor's budget-led to Ms. Blue's termination. Indeed, this is a complicated issue of fact because the two components are woven together throughout the memorandum: Ms. Blue referred to Ms. Okafor's violations in the memorandum to encourage the BOA to fund two positions in her department-in contravention of the Mayor's budget. Defendant's Ex. R at 7 (Ms. Blue's memorandum to the BOA states: “I encourage this Committee not to reward repeated, willful and knowing violations of city policies and questionable consulting services investments with an increased ‘fund development' contract budget for the Community Services Administration.”). The fact that the whistle-blowing speech was so closely tied to speech that could form a legitimate basis for termination also raises a question of material fact regarding causation.

         Especially because the Court must draw all reasonable inferences in Ms. Blue's favor at this stage, the temporal proximity of Ms. Blue's public disclosure to her termination, together with the close connection between the protected speech and the speech that could form a legitimate basis for termination, raise genuine issues of material ...

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