Ferrara v. Maturo

          RULING RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. NO. 64), DEFENDANTS BRANCATI AND COPPOLA'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 71), AND REMAINING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 74).

          Janet C. Hall United States District Judge.

         I. INTRODUCTION

         The plaintiff, Vincent Ferrara, brings eight claims against the defendants Mayor Joseph Maturo, Chiefs of Police Edward Lennon and Brent Larrabee, Deputy Chief of Police James Naccarato, Police Sergeants Craig Michalowski and Kevin Klarman, Police Officer Robert Brockett, the Town of East Haven (“the Town”), and the East Haven Board of Police Commissioners (“EHBPC”), (collectively the “Maturo Defendants”), and against Director of Administration and Management Sal Brancati and Assistant Director of Administration and Management Joseph Coppola (collectively the “Brancati Defendants”). Ferrara alleges that the Maturo Defendants retaliated against him for cooperating with the Department of Justice (“DOJ”) in its investigation of the East Haven Police Department (“EHPD”), and committed torts under Connecticut common law. See Amended Complaint (“Am. Compl.”) (Doc. No. 55) ¶ 1. Ferrara also alleges that both the Maturo Defendants and the Brancati Defendants violated the Family Medical Leave Act (“FMLA”). Id.

         The defendants seek summary judgment in their favor as to all counts except for Count Four, which alleges intentional infliction of emotional distress. Ferrara seeks summary judgment in his favor as to Counts Three, Seven, and Eight. For the reasons stated below, the Maturo Defendants' Motion for Summary Judgment (Doc. No. 74) is granted in part and denied in part, the Brancati Defendants' Motion for Summary Judgment (Doc. No. 71) is granted, and Ferrara's Motion for Summary Judgment (Doc. No. 64) is denied.

         II. FACTS^[1]

         Ferrara was employed as a police officer by the East Haven Police Department (“EHPD”) beginning in 2007. Maturo Defendants' Local Rule 56(a)(2) Statement of Facts in Opposition to Summary Judgment (“Maturo SOF”) (Doc. No. 88) ¶ 1. In late 2010, the Federal Bureau of Investigation (“FBI”) began a criminal investigation into claims that the EHPD had engaged in biased policing, unconstitutional searches and seizures, and the use of excessive force. Id. ¶¶ 2-3. Ferrara assisted and cooperated in the investigation. Id. ¶ 3. Ferrara met with the FBI on more than eight occasions and was registered as a “Confidential Human Source.” Id. ¶ 14. At the conclusion of the investigation, on December 19, 2011, the Department of Justice (“DOJ”) issued a letter to Mayor Maturo. Id. ¶ 15. The letter noted DOJ's “grave concerns” that EHPD leadership was “creating a hostile and intimidating environment” for those seeking to assist the investigation. Id. The letter also noted a finding that “EHPD officers and staff who cooperated” with the investigation were “subjected to retaliation and intimidation.” Id. ¶ 16.

         Ferrara turned over posters regarding “snitches” and “rats” to the FBI, and at least one other officer cooperating with the investigation testified to the fact that someone placed a dead rat in an empty dumpster at his home. Id. ¶¶ 27, 29. Ferrara stated that he was identified as an informant by a Town Attorney, and that Lennon was aware of his identity as an informant. Id. ¶¶ 40-42. The defendants deny this fact. Id.^[2]In January 2015, Ferrara complained that he was not being “backed up” on calls, and that Brockett was telling people that Ferrara was a “rat.” Id. ¶ 62.

         Ferrara testified before a grand jury in February 2011 in relation to the DOJ investigation. Id. ¶ 25. After the filing of a Complaint by the United States against the EHPD in November 2012, the United States and the Town of East Haven entered into an agreement, a month later, to a conditional dismissal and Order imposing requirements on the EHPD to improve policing. See id. ¶¶ 57-59. The Order, inter alia, barred all forms of retaliation based on cooperation in an investigation. Id. ¶ 59. Following a final report, federal monitoring of the EHPD ceased on December 13, 2017. See id. ¶¶ 65-66, 71-72.

         Lennon authorized an audit of Ferrara's emails in November 2017. Id. ¶ 74. The audit developed into an internal investigation after Brockett discovered emails containing nude or partially nude photos of several women. See id. ¶¶ 74-75. Lennon suspended Ferrara with pay on December 15, 2017. Id. ¶ 81.

         On April 30, 2018, Ferrara applied for FMLA status, based on a diagnosis of glioblastoma, a form of brain cancer. Id. ¶¶ 85-86. Ferrara's work status was changed from paid suspension to FMLA status. Id. ¶ 87. Ferrara claims that this was done without notice to him and that he never “sought” FMLA leave, which the defendants deny. Id. ¶¶ 87-88, 96.^[3] As of September 1, 2018, Ferrara ran out of accrued paid time off, has not been paid, and has had to pay for his contribution to medical insurance. Id. ¶ 103.

         III. STANDARD OF REVIEW

         Summary judgment is proper only where, construing the evidence in the light most favorable to the non-movant, “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). On a motion for summary judgment, the moving party bears the burden of establishing the absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). If the moving party satisfies that burden, the nonmoving party must set forth specific facts demonstrating that there is ‘a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). A genuine issue exists where the evidence is such that a reasonable jury could decide in the non-moving party's favor. See, e.g., Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The court's role at summary judgment “is to determine whether genuine issues of material fact exist for trial, not to make findings of fact.” O'Hara v. Nat. Union Fire Ins. Co. of Pittsburgh, 642 F.3d 110, 116 (2d Cir. 2011). Unsupported allegations do not create a material issue of fact and cannot overcome a properly supported motion for summary judgment. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). The non-moving party “may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [their] version of the events is not wholly fanciful.” D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.1998) (collecting cases). Additionally, the evidence the court considers in ruling on a motion for summary judgment must be admissible evidence, or evidence that could be readily reduced to an admissible form at trial. See LaSalle Bank National Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) (“Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial.”) (citation omitted).

         IV. DISCUSSION

         A. Preliminary Issues

         At the outset, the court notes that it previously dismissed Count Five, which alleges that the defendants violated section 52-557n of the Connecticut General Statutes. See Ruling (Doc. No. 25). Though the court's Ruling addressed a prior version of Ferrara's Complaint, the Second Amended Complaint contains the same claim. Ferrara makes no argument as to why the court's earlier dismissal would not apply to this identical claim; indeed, he states it is “withdrawn.” Pl. Mem. 2 n.3. Because the court previously dismissed this claim, Count Five of the Second Amended Complaint is dismissed.

         It is undisputed that “Counts Seven and Eight are the only counts containing any substantive allegations as to Defendants Brancati and Coppola.” See Brancati Def.'s MSJ at 4 n.2; Pl.'s Reply to Brancati MSJ at 4 (“Defendants Sal Brancati and Joseph Coppola (‘Brancati Defendants') have filed a separate motion for summary judgment. Counts Seven and Eight are the only counts directed against these defendants.”). To the extent that any other counts in the Second Amended Complaint might be construed to raise claims against the Brancati Defendants, they are dismissed.

         B. Maturo Defendants' Motion for Summary Judgment

         1. Count One: Section 1983 First Amendment Retaliation Claim

         Count One of the Second Amended Complaint alleges that the Maturo Defendants retaliated against Ferrara for his protected speech on a matter of public concern, in violation of the First Amendment. See Second Am. Compl. ¶ 78. To prevail on a claim for First Amendment retaliation, a plaintiff must prove “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 106- 07 (2d Cir. 2001; see also Odermatt v. New York City Dep't of Educ., 694 Fed.Appx. 842, 845 (2d Cir. 2017), cert. denied sub nom. Odermatt v. Way, 139 S.Ct. 1183, 203 L.Ed.2d 201 (2019). The “causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action.” Blum v. Schlegel, 18 F.3d 1005, 1010 (2d. Cir. 1994). When a speaker is a public employee, he must also prove that his speech was “on matters of public interest . . . and made as member of the public, rather than as an employee.” Id. (internal quotations and citations omitted).^[4] If a plaintiff proves these elements, a defendant “has the opportunity to demonstrate by a preponderance of the evidence that it would have undertaken the same adverse employment action even ‘in the absence of the protected conduct.'” Id. (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

         The Maturo Defendants argue that summary judgment in their favor is warranted because Ferrara failed to establish a causal connection between his protected speech and any adverse actions against him. See Maturo Defs.' MSJ at 5. The Maturo Defendants also argue that any retaliatory actions alleged to have taken place more than three years before the filing of Ferrara's original Complaint are time-barred. See id. at 6. The court first addresses the Maturo Defendants' statute of limitations argument.

         a. Statute of Limitations

         Ferrara acknowledges that “[t]he statute of limitations applicable to § 1983 claims is ‘borrowed' from that 'for the analogous claim under the law of the state where the cause of action accrued, which in Connecticut is three years.'” Ferrara Opp. Maturo MSJ (Doc. No. 90) at 17 (quoting Thompson v. Rovella, 734 Fed.Appx. 787, 788-89 (2d Cir. 2018)). He argues, however, that the continuing violation doctrine tolled the statute of limitations in this case. See id. at 18.

         A section 1983 claim generally accrues when a plaintiff knows or has reason to know of the harm. Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009). The continuing violation doctrine is a limited exception to that rule. Id. As the Second Circuit recently held, in a case involving a police officer raising First Amendment retaliation claims, the continuing violation doctrine does not apply to “discrete unlawful acts, even where those discrete acts are part of a ‘serial violation,' but [rather applies] to claims that by their nature accrue only after the plaintiff has been subjected to some threshold amount of mistreatment.” Hadid v. City of New York, 730 Fed.Appx. 68, 72 (2d Cir. 2018) (quoting Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015)). And in Birch v. City of New York, 675 Fed.Appx. 43, 44 (2d Cir. 2017), the Second Circuit similarly concluded that the continuing violation doctrine did not apply to toll a police officer's First Amendment retaliation claims where the Complaint was based “primarily on a series of discrete alleged retaliatory events such as punitive transfers, undesirable assignments, and poor performance reviews.” Id.

         Here, Ferrara argues that, “[s]ince the practice of threats, ostracism, excessive scrutiny, retaliatory investigations and discipline have been continuous from the time plaintiff cooperated with the FBI, there is no delay between [Ferrara's] protected speech and the adverse employment actions.” Ferrara Opp. Maturo MSJ at 18. Ferrara relies upon Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018), for the proposition that “all of [Ferrara's] complaints are actionable.” See Ferrara Opp. Maturo MSJ at 18. However, nothing in Flores supports application of the continuing violation doctrine in this case. First, Flores was a case involving the Federal Tort Claims Act, not a claim of First Amendment retaliation. See Flores, 885 F.3d at 120. Second, the Flores court concluded that the continuing violation doctrine did not apply to Flores' claim, because Flores “ha[d] not shown a continuous practice or policy that violated his rights.” Id. at 122.

         Ferrara has provided some evidence supporting a conclusion that some EHPD and Town employees engaged in discrete acts of retaliation against him and others who assisted with the DOJ investigation. See, e.g., Ferrara SOF ¶ 41 (alleging Town Attorney “pointed out” Ferrara as an FBI informant); id. ¶ 45 (disparaging comments about “cooperators” were placed on bulletin board in EHPD headquarters). Viewed in the light most favorable to Ferrara, the facts support at best an inference that unidentified members of the EHPD engaged in retaliatory conduct based on Ferrara's cooperation with the FBI. See Maturo SOF ¶¶ 44-45 (stating, without specificity, that “defendants” harassed Ferrara after learning of his cooperation). However, discrete retaliatory conduct does not form a basis for the application of the continuing violation doctrine. Hadid, 730 Fed.Appx. at 72. Ferrara has failed to come forward with evidence that any of the named defendants were responsible for a practice or policy of retaliation or acted pursuant to such a policy or practice.

         The court therefore concludes that conduct occurring more than three years before the filing of the instant Complaint-before March 1, 2014-cannot be the basis for Ferrara's retaliation claims.

         b. Denial of Training and Special Assignments

         The defendants argue that summary judgment as to Ferrara's First Amendment retaliation claim in Count One, based upon denials of training and special assignments, should be granted as to Maturo, Naccarato, Klarman, Michalowski, and Brockett. The Maturo Defendants argue that the foregoing defendants “had no involvement” in assigning officers to training or special details and assignments. Id. at 8. Ferrara does not contest the Maturo Defendants' argument that summary judgment should be granted in favor of Maturo, Naccarato, Klarman, Michalowski, and Brockett as to retaliation claims based on denial of training or special assignments. See Ferrara Opp. Maturo MSJ at 9 (clarifying that Ferrara's “claims for denial of specialty assignments is [sic] directed against Chief[s] Larrabee and Lennon”). In the absence of any genuine issue of fact as to the involvement of the aforementioned defendants, and with no arguments by Ferrara to the contrary, summary judgment is granted as to Maturo, Naccarato, Klarman, Michalowski, and Brockett insofar as Count One is based on retaliatory denial of training or special assignments against Ferrara.

         As to Larrabee and Lennon, the Maturo Defendants contest only the third element of a retaliation claim, arguing that there is no genuine issue of material fact as to whether a causal connection exists between Ferrara's protected speech and any alleged adverse employment action. See Maturo Defs.' MSJ at 6 (“Summary Judgment should be granted as to Count One because Plaintiff cannot establish a causal connection between any purported adverse action and his cooperation with the FBI.”).

         As to Larrabee, Ferrara responds, inter alia, that issues of fact remain as to Larrabee's motivation with regard to Ferrara's unsuccessful application to a DEA taskforce. See Ferrara Opp. Maturo MSJ at 8. The court agrees. In his deposition, Larrabee testified that the selection for the DEA taskforce took place in conjunction with DEA Special Agent Jay Hanson. See Larrabee Deposition (Doc. No. 90-5) at 7:8- 18.^[5]Larrabee testified that both he and Special Agent Hanson played a role in deciding whether candidates were qualified for the position. See id. at 7:8-10, 7:14-19 (stating that both Larrabee and Hanson interviewed all three candidates for DEA taskforce, and both decided that a third candidate, Hatchel, was not qualified for the position). Larrabee testified that, “when it came down to the final selection, Jay Hanson indicated his choice was [Officer Jeff] Vailette and [Larrabee] concurred.” Id. at 7:20-22. Larrabee testified that, in his opinion, Vailette “was a much better interview” than Ferrara. Id. at 8:8. Larrabee also stated that Vailette would, in his opinion, “be a team player.” Id. at 8:12-13.

         A reasonable jury could infer from Larrabee's testimony that a substantial motivating factor in Larrabee's conclusion that Ferrara was not suited for the DEA taskforce was that he was not, or would fail to be, a “team player.” The jury could also reasonably infer from the evidence that Larrabee's view of Ferrara-as not being a team player-was influenced by Ferrara's participation in the federal investigation of the EHPD. If a jury was to so find, it could reasonably conclude that the denial of a position on the DEA taskforce was based in substantial part on Ferrara's protected conduct of assisting the investigation of the EHPD. The court cannot conclude that no reasonable juror could find that a causal connection existed between Ferrara's ...