Opinion
HHDCV136037900
04-13-2016
John K. Horvath v. City of Hartford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion for summary judgment filed by the defendant, City of Hartford. Claiming there are no material issues of fact in dispute with respect to the plaintiff's cause of action pursuant to General Statutes § 31-51m, the defendant asserts that the plaintiff cannot prevail as a matter of law in its action against the City of Hartford. The plaintiff, a former police officer employed by the City of Hartford, objects to the motion for summary judgment claiming that there are material issues of fact in dispute and, therefore, the defendant is not entitled to judgment as a matter of law.
SUMMARY OF FACTS
From 1994 through September 21, 2012, the plaintiff was employed by the Hartford Police Department. In January 2011, he was appointed to the position of Assistant Chief of Police. In April 2011, the plaintiff learned of allegations that Lieutenant Neville Brooks (Brooks), Commander of the Internal Affairs Division of the Hartford Police Department, was allegedly abusing the investigative powers of his office. After the plaintiff concluded that Brooks was in fact abusing his authority and jurisdiction, he and other command staff members of the department communicated that information to the Chief of Police, Daryl Roberts, verbally on April 6 and 7, 2011, and in writing on April 11, 2011. Subsequently, Brooks was removed from his position in the Internal Affairs Division. The plaintiff alleges that one month after he reported the abuses of Brooks, on or about May 17, 2011, the defendant " began orchestrating the elimination of the plaintiff's position under the pretext of a reduction of expenses at the 'Executive Command' of the Hartford Police Department."
In May 2011, the Hartford Court of Common Council passed a Financial Resolution cutting $1,750,000 from the 2011-2012 City budget proposed by the Mayor in an effort to reduce expenditures. Of that sum, $300,000 was allocated to be cut from the Executive Command level of expenses of the Hartford Police Department, however, the Resolution did not demand the elimination of any positions or otherwise direct how the savings were to be realized. Chief Roberts responded to the Council's mandated cuts with a number of reductions, including eliminating the Assistant Chief position held by Lester McKoy.
Corporation Counsel, Sandra Kee Borges (Borges), commissioned an investigation and report concerning the Internal Affairs Division and the conduct of Brooks, which investigation supported the plaintiff's and command staff's concerns. The plaintiff was critical of the investigation and voiced a need for corrective action to be taken with regard to Brooks' intentional and negligent actions, expressing those criticisms verbally and in writing (by letter dated December 1, 2011) through the chain of command and they were ultimately expressed to Borges and Mayor Pedro Segarra.
Chief Roberts retired on December 31, 2011, and on or about February 14, 2012, James Rovella (Rovella) was appointed Interim Chief of Police. The plaintiff alleges that Rovella thereafter " began to manipulate his professional responsibilities, usurp his authority as Assistant Chief, and diminish many of his substantive duties, " by doing the following. In March 2012, the plaintiff was removed from the negotiating team handling contract negotiations with the Union, Rovella asked him to delay an opportunity to attend Law Enforcement Executive Development Training with the FBI in May 2012, the plaintiff was cut out of department initiatives and decision-making that were " germane" to his position as Assistant Chief, he was excluded from a multi-agency meeting to address violent crime in Hartford, and he was not included in a previously scheduled meeting that covered special events planning in Hartford. Additionally, in April 2012, Rovella approved overtime for a police explorer program without informing the plaintiff, who chaired the overtime committee.
Former Chief Roberts had approved the plaintiff for Law Enforcement Executive Development Training roughly eighteen months earlier, but the plaintiff had not been selected until March 2012. Furthermore, the plaintiff does not dispute that he had no contractual or other right to attend the training, the training was not routinely provided to department officers, and no other members of the command staff had been provided the training under both Chief Roberts and Rovella.
The plaintiff alleges he was cut out of communications regarding a vendor outreach program, cut out of the police visibility project to improve community perception, and removed as the departmental representative for the new Public Safety Complex Project, without explanation.
On March 22, 2012, the plaintiff applied for the position of Police Chief-Director of Public Safety with the University of Massachusetts Amherst Police Department. In May 2012, the Council passed a budget for fiscal year 2012-2013, which included funding for the plaintiff's position. On May 24, 2012, Rovella met with the plaintiff and informed him that his job was safe, however, the plaintiff alleges that Rovella informed him that his position was going to be eliminated, but Rovella was working on an early retirement for him. The plaintiff received a written offer dated July 2, 2012, for the Chief of Police of the University of Massachusetts Amherst position with a starting salary of $140,000 and a start date of September 24, 2012. On August 15, 2012, the plaintiff was informed by Tom Bowley, the Hartford Police Department's Fiscal Manager, that his position was funded for the fiscal year. The plaintiff accepted the Chief of Police position on September 4, 2012, and by letter dated September 7, 2012, he resigned from his position with the Hartford Police Department, indicating his last day of service would be September 21, 2012. At the time the plaintiff resigned, he was earning $127,000 a year.
Up until the plaintiff's resignation, he retained such duties as: leading Compstat meetings; leading the Police Budget Committee; serving on the Policy and Procedure Committee; serving on the Firearms Discharge Board of Inquiry; serving on the Safety Committee; serving on the Health and Wellness Committee; serving as a CTIC Policy Board member; and serving as a police representative to the Homeless Working Group. Although the plaintiff resigned prior to completing his twenty years of service, he remained eligible to receive and did start receiving a retirement allowance in the amount of $56,083 annually, in April 2014.
LEGAL STANDARD
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).
In arguing that it is entitled to judgment as a matter of law, the defendant claims that the undisputed and admissible material facts demonstrate that the plaintiff cannot establish that he was constructively discharged. Specifically, the plaintiff cannot establish that the defendant intentionally created an intolerable work atmosphere that forced the plaintiff to resign from his position.
In response, the plaintiff argues that he was penalized, retaliated against, and constructively discharged for engaging in activities protected by General Statutes § 31-51m. The plaintiff argues that the " retaliation was manifested in the following ways: (1) the defendant's execution of a predetermined plan to eliminate the plaintiff's position under the pretext of budgetary cuts following his report of abuses of authority; (2) the usurpation and manipulation of the plaintiff's professional duties by then Interim Police Chief Rovella; (3) Chief Rovella informing the plaintiff explicitly that his position was being eliminated; (4) an attempt by the defendant to buy out the plaintiff's remaining retirement years; and (5) the effective elimination of Assistant Chief position altogether." Thus, the plaintiff argues, that a reasonable jury could conclude that manipulation of the Hartford Police Department's budget regarding the plaintiff's position, the diminution of his substantive duties, coupled with the attempts to eliminate his position, was a retaliatory penalty and discipline for his reporting abuses of authority of the Hartford Police Department's Internal Affairs Division.
DISCUSSION
General Statutes § 31-51m(b) provides in relevant part: " No employer shall discharge, discipline or otherwise penalize any employee because (1) the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, (2) the employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action . . . No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer. The provisions of this subsection shall not be applicable when the employee knows that such report is false."
" In an action under § 31-51m(b), plaintiff has the initial burden under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), of proving by a preponderance of the evidence a prima facie case of retaliatory discharge. See LaFond v. General Physics Services Corp., 50 F.3d 165, 172 (2d Cir. 1995) (holding that Connecticut courts would apply federal employment discrimination standards to a claim of retaliatory discharge under § 31-51m). This consists of three elements: (1) that he engaged in a protected activity as defined by § 31-51m(b); (2) that he was subsequently discharged from his employment; and (3) that there was a causal connection between his participation in the protected activity and his discharge." Ritz v. Town of East Hartford, 110 F.Supp.2d 94, 98 (D.Conn. 2000).
For purposes of this motion, the defendant does not dispute that the plaintiff has established the first element of his prima facie case under § 31-51m(b) to the extent that the plaintiff reported concerns of abuse and unethical conduct by Lieutenant Neville Brooks and requested an independent investigation regarding Brooks' conduct. The defendant, however, does dispute that the plaintiff has established, pursuant to his theory of constructive discharge, the second element of his prima facie case.
Constructive Discharge
" Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge . . . Through the use of constructive discharge, the law recognizes that an employee's voluntary resignation may be, in reality, a dismissal by an employer . . . Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily . . . Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign . . . Accordingly, [a] claim of constructive discharge must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign." (Citations omitted; emphasis in original; internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998).
" To plead a prima facie case of constructive discharge, a plaintiff must allege two elements. First, the plaintiff must show that the defendant acted deliberately to create an intolerable work environment. Deliberateness exists only if the actions complained of were intended by the employer as an effort to force the employee to quit . . . The second element requires that the working conditions be intolerable. Intolerability is measured by a reasonable person standard and not by the employee's subjective feelings." (Citation omitted; internal quotation marks omitted.) Leson v. ARI of Connecticut, Inc., 51 F.Supp.2d 135, 143 (D.Conn. 1999). " A claim of constructive discharge cannot survive a motion for summary judgment based only on the employee's subjective beliefs about his working conditions. Instead, the employee must present some objective evidence of intolerable working conditions." Zephyr v. Ortho McNeil Pharmaceutical, 62 F.Supp.2d 599, 608 (D.Conn. 1999).
" In addition, courts have found that [t]he standard to prove a constructive discharge is indeed a demanding one. Martin v. CitiBank, N.A., 762 F.2d 212, 217 (2d Cir. 1985). Given this strict standard, several courts have summarily rejected claims alleging a constructive discharge. For example, a reassignment of job responsibilities coupled with allegations of harassment has been found to be insufficient to establish a claim for constructive discharge. See, e.g., Lombardo v. Oppenheimer, 701 F.Supp. 29, 31 (D.Conn. 1987) (transfer to a monotonous and demeaning job along with cold treatment from supervisors is insufficient to support a claim); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (no constructive discharge when employer made it clear it wished employee to remain as employee and there was no loss of pay in new position). Similarly, in Leson v. ARI of Connecticut, Inc., supra, the court granted summary judgment for the defendant where the plaintiff, who was being reassigned to a new position that she viewed as a demotion, claimed constructive discharge and quit before ever working one day at the new position. In that case, the court found there was no constructive discharge because [a] reasonable person will usually explore alternative avenues before coming to the conclusion that resignation is the only option." (Internal quotation marks omitted.) Dumas v. Bridgeport Board of Education, Superior Court, judicial district of Waterbury, Docket No. CV-05-4005258-S, (January 11, 2008, Upson, J.).
Here, the plaintiff attempts to create an issue of material fact through the use of inadmissible evidence and self-serving assertions of fact and/or conclusory statements with no evidence to support those assertions. " Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). " Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 636, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party, whether raised at oral argument or in written pleadings; such allegations must be supported by counteraffidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 178, 73 A.3d 742 (2013).
To establish a constructive discharge claim, the plaintiff alleges that threats of termination were made to him and that his position was being eliminated. The plaintiff does not, however, provide any admissible evidence to support this. On May 17, 2011, the Hartford Court of Common Council passed a Financial Resolution cutting $1,750,000 from the 2011-2012 City budget proposed by the Mayor. Of that amount, $300,000 was allocated to be cut from the Executive Command level expenses of the Hartford Police Department. Nevertheless, the Resolution did not require the elimination of any positions or otherwise prescribe how the savings were to be realized. In response, Chief Roberts made a number of reductions, including eliminating the Assistant Chief position held by Lester McKoy, effective June 30, 2011. McKoy, however, was eligible for immediate normal retirement. The plaintiff does not provide any admissible evidence that his position was directly targeted to be eliminated. In fact, the defendant provides admissible evidence that the plaintiff's position was never eliminated.
The communication between the plaintiff and Rovella on May 24, 2012, is disputed. The plaintiff alleges that Rovella informed him that his position was being eliminated, which the defendant disputes. The plaintiff also admits that Rovella informed him on the same day that his " job was safe." Furthermore, the plaintiff admits that Hartford Police Department's Fiscal Manager, Tom Bowley, confirmed to the plaintiff that his position was funded and filled, and that his position was budgeted for the fiscal year commencing July 1, 2012, through June 30, 2013. There is no evidence that the plaintiff was confronted with a situation where he had to resign or be fired and, moreover, the evidence shows that the plaintiff's position remained funded and filled for the following year. The defendant provided a copy of the Adopted Payroll Analysis Budget for the City of Hartford Police Department for Fiscal Year 2012-2013 and a proper affidavit from Jeff Hallin, the Acting Director of Management, Budget and Grants for the City of Hartford, attesting to his personal knowledge of the facts asserted therein. The Budget shows funding for two Assistant Police Chief positions belonging to the plaintiff and Brian Heavren. Thus, the defendant argues that the plaintiff would not have been terminated had he not resigned. Viewing the evidence in the light most favorable to the plaintiff, the court finds that the plaintiff has not sufficiently established that the defendant, or its agents, informed him that he would be terminated at any time in the foreseeable future.
Next, the defendant argues that the plaintiff did not suffer adverse conduct sufficient enough to establish that his work conditions were so objectively intolerable that he had no choice but to resign. The plaintiff must show that the employer engaged in deliberate action and the work environment must be shown to be so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. See Brittell v. Dept. of Connection, supra, 247 Conn. 178.
The plaintiff never alleges that he was demoted, his pay was reduced, he was transferred to an inferior position, or that he suffered any other significant change in his employment. Instead, the plaintiff's complaints consist of dissatisfaction with adjustments to his work assignments. The plaintiff argues that the defendant diminished and manipulated his professional duties and responsibilities by: removing him from the Collective Bargaining Negotiating Team; denying the plaintiff's request to attend an FBI Law Enforcement Executive Development Training; excluding the plaintiff from a special events planning meeting; cutting him out from department initiatives such as vendor outreach programs, the police visibility project, and the new public safety complex project; and excluding him from a multi-agency meeting held to address violent crime in Hartford. " [A]n employee's dissatisfaction with his job responsibilities and assignments do not suffice to establish a claim of constructive discharge." Zephyr v. Ortho McNeil Pharmaceutical, supra, 62 F.Supp.2d 608.
Moreover, the plaintiff also assumed additional responsibilities resulting from McKoy's departure. The plaintiff kept all of his duties as Assistant Chief of the Detective Bureau and assumed additional duties of Operations. The plaintiff assumed the responsibilities for the Patrol Division and Uniform Services. Although the plaintiff may have experienced trivial changes in his working conditions, they were not so objectively intolerable that a reasonable person would be compelled to resign, especially when the plaintiff took on more responsibilities after McKoy left the police department in June 2011. Furthermore, the plaintiff's compensation was never adversely affected during this time.
Finally, the plaintiff began seeking other employment in early 2012. He applied for a Police Chief-Director of Public Safety position with the University of Massachusetts Amherst Police Department on March 22, 2012, well before he was allegedly informed that his position had been eliminated on May 24, 2012. On July 2, 2012, the plaintiff was offered the position and accepted it on September 4, 2012. The plaintiff's new employment was at a higher pay of $140,000 per year. Although the plaintiff resigned prior to completing twenty years of service, he commenced receiving a retirement allowance of $56,083 annually starting April 2014. Consequently, the fact that the plaintiff accepted a new position with a higher pay before he resigned significantly undermines a claim of constructive discharge. See Zephyr v. Ortho McNeil Pharmaceutical, supra, 62 F.Supp.2d 609 (when plaintiff resigned he had already accepted higher paying position with rival pharmaceutical company and court noted that although not relevant to his working conditions, this undisputed fact was pertinent to why he resigned and further undermined his claim of constructive discharge).
In viewing the evidence in the light most favorable to the plaintiff, this court concludes that the plaintiff has failed to proffer evidence to support a claim that the defendant intentionally created an intolerable work environment such that he felt compelled to resign. Since the plaintiff has not met the demanding standard required to establish a claim of constructive discharge, the court grants the motion for summary judgment.