United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY
MICHAEL P. SHEA, U.S.D.J.
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.
following facts, which are taken from the parties' Local
Rule 56(a) statements and supporting exhibits, are undisputed
unless otherwise indicated.
Ms. Blue's Appointment to the Office of Development and
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.
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.
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.
Ms. Okafor's Alleged Use of Unbid Grant Writing
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. 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
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
Id. at ¶ 19.
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.
The Budget Dispute, BOA Meeting, and Memorandum
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.
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.
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.”).
Ms. Blue's Termination
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.
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.
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.
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).
Retaliation for Reporting a Violation of Law (Count
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.
Prima Facie Case
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.
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
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.
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.
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 ...