United States District Court, D. Connecticut
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.
C. Hall United States District Judge.
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
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.
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.
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.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.
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.
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.
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,
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.
STANDARD OF REVIEW
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
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.”)
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.
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.
Maturo Defendants' Motion for Summary Judgment
Count One: Section 1983 First Amendment Retaliation Claim
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). 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).
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.
Statute of Limitations
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.
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.
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.
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.
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
Denial of Training and Special Assignments
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.
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.”).
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.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.
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 ...