Opinion
No. HHB CV05 4007098
December 4, 2008
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiff Robert Jase was arrested as a result of an incident that occurred at work on July 9, 2003. The plaintiff was meeting with the city Personnel Director to describe a dispute that the plaintiff was having with certain of his subordinates, when the plaintiff used the words "if I wanted to kill them, I could just get a gun" or words to that effect. A report was made to the police, the plaintiff was arrested, and eventually he was terminated from employment with the city.
After his criminal case was dismissed, the plaintiff brought this action against the city and certain of its officials claiming that their conduct constituted malicious prosecution, defamation, violation of the employee free speech statute, and negligent infliction of emotional distress. The defendants have moved for summary judgment claiming that the plaintiff cannot produce facts sufficient to support going forward to trial on any of these causes of action. The plaintiff opposes summary judgment.
THE PARTIES
At the time of the events that gave rise to this dispute, the plaintiff was the Sanitarian Supervisor in the Environmental Health Division of the City of New Britain Health Department. The defendant Gregory Steltner was the Administrative Director of Health for the City. The defendant John R. Byrne was the Personnel Director for the City. The defendant Lucian Pawlak was the mayor of the City of New Britain.
THE STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that he is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist, Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
The plaintiff contends that the law requires that the court take the well-pleaded facts of the complaint to be true on a motion for summary judgment. That is not the law. The plaintiff has entirely misread the cases that he cites in support of this proposition. Citing VIP of Berlin, LLC v. Berlin, 287 Conn. 142, 143 (2008), the plaintiff points out that the trial court assumed the truth of the plaintiff's allegations in the complaint in that case; but a full reading of the case reveals that this was so not because that was the law of summary judgment, but because those allegations were not seriously contested and the contested issue was a pure question of law rather than of fact. In Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980), the court construed all well-pleaded facts of the complaint as true, because the court was reviewing the granting of judgment after a motion to strike, and not determining the propriety of a grant of summary judgment. Likewise, DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 (1976), involved judgment after sustaining a demurrer, under the old rules of pleading. Indeed throughout his brief, the plaintiff mistakes the standard for surviving a motion to strike with the standard for surviving a motion for summary judgment.
THE SUPPORTING AND OPPOSING DOCUMENTS
The plaintiff further contends that the movant on a motion for summary judgment is required to file an affidavit under Conn. P.B. § 17-45. That is an incomplete and essentially erroneous statement of the law. Conn. P.B. § 17-45 states that the motion "shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Here the motion of the defendants is supported by the Requests for Admissions (deemed as admitted as no objection nor other response is on file); a copy of the arrest warrant; a copy of the search warrant and return (showing the weapons seized from the plaintiff); a copy of the transcript of the hearing on the accelerated rehabilitation application before the Hon. Susan Handy; a copy of the Workplace Violence Policy of the City of New Britain; copies of correspondence between the plaintiff and the defendants; copies of portions of the transcript of the extensive arbitration hearing before the State Board of Mediation and Arbitration; a copy of the decision of the arbitrators; a copy of the decision denying unemployment compensation to the plaintiff and the like.
Aside from the fact that some of the documents are not certified or otherwise authenticated, a fact that neither side raises as an issue, both sides have complied with the basic requirements of 17-45 with respect to their supporting papers.
THE COUNTS IN THE COMPLAINT
The operative complaint is a substituted complaint dated May 2, 2007, #113. The complaint contains six counts: the First Count against the City and Byrne for Malicious Prosecution; the Second Count against Steltner for Defamation; the Third Count against Pawlak for Defamation; the Fourth Count against all defendants for violation of Conn. Gen. Stat. § 31-51q; the Fifth Count against all defendants for negligent infliction of emotional distress; and the Sixth Count, against the City alone, seeking indemnification for the city employees in the event that the plaintiff prevails.
The defendants move for summary judgment on the grounds that the plaintiff cannot prove the elements of the torts of malicious prosecution, defamation, violation of Conn. Gen. Stat. § 31-51q, and negligent infliction of emotional distress. The defendants assert that the material undisputed facts show that the City of New Britain and its employees made truthful statements about the plaintiff and took appropriate action, through reports to law enforcement agencies and others, about the plaintiff's conduct, so that they are either not liable or are entitled to a privilege for their statements and conduct.
THE UNDERLYING INCIDENT
The plaintiff's lawsuit springs from conduct the defendants took in response to an incident in which the plaintiff met with and made statements to the defendant John Byrne, the city's Personnel Director. The plaintiff was upset that his subordinate employees were accusing him of "trying to give them radiation poisoning and kill them" through the placement of a lead testing device too close to their work station. Plaintiff's Testimony, State Board of Mediation and Arbitration ("BMA") Hearing, January 15, 2004, page 180. The plaintiff then said "if I wanted to kill them, it would be a lot faster to get a gun and shot [sic] them . . . I did not say I was going to get a gun and shot [sic] them or that I had any interest in doing so."
In his papers contesting the denial of unemployment compensation benefits, the plaintiff confirmed that he had made the following statement: "Now that you're accusing me of radiation poisoning, if I wanted them dead I would get a gun, it would be quicker." BMA Hearing Transcript, page 181. The plaintiff said that he told Byrne that "I was sick of the bullshit. I was sick of the phoney complaints that were groundless that were being put against me . . . that I would be taking the next two days as sick time because I wanted to avoid any confrontations." The plaintiff told Byrne, "I might commit myself so that I could get a rest." BMA Hearing Transcript, pp. 182, 184.
The plaintiff specifically denies saying, when offered help by another city employee, "A semiautomatic weapon would help me." BMA Hearing Transcript, p. 185. The plaintiff denies making any other references to weapons. Id., p. 186. The plaintiff admits being angry during the meeting with Byrne. Id., p. 185.
Later, on several occasions, the plaintiff stated that he was obviously kidding when he made the statements to Byrne. The plaintiff claims that his statements were taken out of context and affirmatively misrepresented by the defendants in such a way as to make it appear that he was actually making a threat when he was doing no such thing. Rather he claims that he was making a legitimate complaint to his own supervisor about the conduct of subordinate employees. The plaintiff characterizes his statements as hyperbole.
After his arrest for disorderly conduct, the plaintiff applied for and was granted accelerated rehabilitation. His case was thereafter dismissed on June 23, 2005.
THE RESPONSE OF THE DEFENDANTS
The defendants have a different version of the words that were said by the plaintiff and the context and tone of the statements. They point out that the Application for Arrest Warrant indicates that Captain Michael Sullivan of the New Britain Police Department interviewed Sandy Loether, Personnel Administrator for the City, who heard plaintiff's conversation with Byrne, and Pat Toscano, the president of the plaintiff's union, with whom the plaintiff had met moments before. The arrest warrant application states that the plaintiff said to Loether "maybe a semi-automatic would help [him]," and said to Toscano "I think I need to get a gun to deal with these people." The arrest warrant was approved by the court (Alexander, J.), as was a search warrant, based on the same information. The plaintiff was arrested and charged with disorderly conduct. The police seized three guns from the plaintiff's home.
Citing the city's Workplace Violence Policy, which prohibits "[m]aking a suggestion or otherwise intimating that an act to injure persons or property is `appropriate,'" the defendants undertook a series of meetings and hearings, consistent with the plaintiff's union's collective bargaining agreement, to terminate the plaintiff's employment. The city terminated the plaintiff, effective August 27, 2003. The plaintiff grieved his termination, along with his union, up through a hearing before the State Board of Mediation and Arbitration. The Board upheld his termination on July 1, 2005.
THE FIRST COUNT: MALICIOUS PROSECUTION
In order to make out a case of malicious prosecution, the plaintiff must prove four elements: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice. McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982).
Recent case law has emphasized that if the defendant knowingly presented information to law enforcement authorities that the defendant knew to be false, that fact can satisfy the first element of the claim — the initiation or procurement of criminal proceedings against the plaintiff — even if the defendant did not actively seek the arrest of the plaintiff. Bhatia v. Debek, 287 Conn. 397, 408-09 (2008).
As for the special defense of qualified or limited immunity advanced by the defendants, this immunity is available only if the defendant has made "a full and truthful disclosure." Id.
In other words, a private citizen who knowingly provides false information to a public officer is not entitled to the limited immunity provided under the initiation element, even if that person brought no pressure to bear on the public officer and left the decision to prosecute entirely in the hands of that public officer.
CT Page 19209 McHale v. W.B.S. Corp., supra, 187 Conn. 447, 449, cited in Bhatia v. Debek, supra, 407 (2008).
As to the second element, it is not disputed that the criminal proceedings terminated in the plaintiff's favor with a dismissal on June 23, 2005.
As to the third element, that the defendant acted without probable cause, in this particular case this is a matter that is disputed. Whether the plaintiff's statements and the tone of the statements were as characterized by the plaintiff or as characterized by the defendant are questions for the trier of fact. That constellation of facts will necessarily be the basis for a determination of whether probable cause existed or not.
On the fourth element, malice, once again, it is up to the trier of fact to determine what was said, how it was said, and whether the entire incident was thereafter reported accurately and in context to law enforcement personnel. If the trier finds that the facts are as stated by the plaintiff, the trier will be free to draw the inference that the defendants reported the plaintiff's statement and conduct to the police for a purpose "other than that of bringing an offender to justice," McHale v. W.B.S. Corp., supra, 447, and so the fourth element may be found to be satisfied.
The facts that are in dispute are sufficiently material to the malicious prosecution claim that this court cannot grant summary judgment on the first count.
THE SECOND AND THIRD COUNTS: DEFAMATION
The plaintiff alleges in the Second Count of his complaint that the defendant Gregory Steltner, acting as the Administrative Director of Health for the City of New Britain, made false statements in three letters dated August 11, 2003, July 23, 2003, and July 10, 2003, copies of which were sent to certain third parties. The specific statements identified in the complaint that the plaintiff claims are false are 1) that "Jase's comments and threats . . . were in clear violation of the City's Violence in the Workplace Policy . . . regarding the use of guns against employees under his supervision," August 11 letter, "[Jase's] statements are in violation of the Workplace Violence Policy Statement dated January 22, 1999 . . . ," July 23, 2003 letter, and "comments you made to City personnel yesterday . . . were in violation of the City of New Britain's Workplace Violence Policy . . . ," July 10, 2003. The complaint alleges that these letters were circulated to James Castelot who is the representative of Mr. Jase's union, and to John R. Byrne, Steltner's co-defendant who was the Personnel Director.
There are other statements in the letters concerning the background of the incident, but the plaintiff has identified in the complaint only Steltner's stated conclusion about the workplace violence policy as constituting the defamation.
In the Third Count the plaintiff alleges that the defendant Lucian Pawlak made an identical statement regarding the Workplace Violence Policy and the use of guns against employees in his letter of August 26, 2003, in which Pawlak terminated the plaintiff from employment with the city. A copy of that letter was sent to Castelot, Steltner, and Byrne.
The original of the Steltner and Pawlak letters went to the plaintiff with a copy of each to plaintiff's attorney Harold Geragosian. The communications to Geragosian cannot satisfy the "publication" requirement, as they do not constitute publication to a third party.
In order to make out a case of defamation, the plaintiff must prove that the defendants "published false statements that harmed the [plaintiff] and that the defendants were not privileged to do so." Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 193 (1992). In addition the plaintiff must prove that the false statements injured his reputation. DeVito v. Schwartz, 66 Conn.App. 228, 234 (2001), citing W. Presser W. Keeton, Torts, (5th Ed. 1984), p. 773.
The defendant has interposed a special defense that the statements were the truth, see Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228-29 (2004); that the statements were ones of opinion instead of fact, see Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999); and that the defendants, under all the circumstances, acted under a privilege in making the statements, see Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986).
As for the special defense of truth, the analysis here is no different than in the previous section regarding malicious prosecution: the facts are disputed and the court cannot construe these disputed facts in favor of or against either party at this stage. Whether it is true or false that the plaintiff violated the Workplace Violence Policy must be left up to the trier of fact. The defendants attempt to make much of the fact that a panel of the State Board of Mediation and Arbitration found that the plaintiff made a threat and violated the Workplace Violence Policy. Indeed the defendants have asserted both res judicata and collateral estoppel as additional special defenses. But there is no analysis in the City's brief of whether either of these legal rubrics is applicable here, and it remains entirely unclear whether the determination of the Board would even be admissible evidence at trial.
On the issue of opinion, the defendants do no more than assert in their brief that Steltner's and Pawlak's statements were ones of opinion. This court disagrees. The statement that the plaintiff has violated the Workplace Violence Policy necessarily implies the underlying fact that the plaintiff made the statements and engaged in the conduct that the plaintiff denies. The statement in each of the letters appears at this stage to be more than a statement of mere opinion.
Finally, as to privilege, the record is simply too sparse at this point to determine if the statements in the letters from Steltner and Pawlak to others were ones that are covered by the privilege. The defendants assert that the statements were all within the context of a "quasi judicial proceeding," see Petyan v. Ellis, supra, or that the internal communications were privileged because they were the mandatory notices required under the collective bargaining agreement. Either may be the case, but without a more expansive record, the court simply cannot tell whether the procedure followed by Steltner or Pawlak is one that is covered by a privilege of some kind.
Indeed the plaintiff disputes that Steltner was properly acting as the Administrative Director of Health and asserts that Steltner should not have been involved in this process at all.
THE FOURTH COUNT: VIOLATION OF THE FREE SPEECH STATUTE
The defendants are more successful in their assertion that Conn. Gen. Stat. § 31-51q does not apply to the undisputed facts of this case. That statute provides a private right of action to an employee who is subjected to discipline or discharge on account of having exercised his Constitutional rights to free speech. In order to maintain an action under this statute, the employee's speech must address a matter of public concern, that is, "relating to a matter of political, social, or other concern to the community." See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). While the statute provides a remedy to an employee who expresses himself about matters of public concern, it provides no protection and no such remedy with respect to statements that address wholly personal matters. Daley v. Aetna Life Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999). Whether an employee's speech addresses a matter of public concern is a question of law to be determined in light of the content, form, and context of a given statement, as revealed by the whole record. Id. 777.
Whatever the precise words of the plaintiff, and quite apart from whether those words constituted a threat to fellow employees, it is undisputed that his statements were about a personnel matter at work. The plaintiff was angry that certain subordinate employees had made complaints about him that he felt were unjustified. Accepting as true the plaintiff's version of what was said, his statements cannot reasonably be viewed as addressing a matter of public concern. Quite the contrary, his statements to the defendant Byrne were an effort to explain how overblown were the complaints of his co-workers, to try to convince Byrne that it was merely a personality clash and not a dispute about workplace safety or even department policy. At no point did the plaintiff attempt to couch his statements as ones that involved a matter of public, rather than private, concern.
That being so, the protections of the state and federal constitutions, through Conn. Gen. Stat. § 31-51q, do not extend to this situation. Rather the employer is free to manage its workplace without intrusive oversight by the judiciary. Connick v. Myers, supra, 147. On the undisputed facts, as a matter of law, the plaintiff cannot prevail on this count.
THE FIFTH COUNT: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The plaintiff claims that the conduct of the defendants constituted negligent infliction of emotional distress "as a result of [plaintiff's] termination of employment as well as the events that led up to it and the entire course of this matter." Substituted Complaint, Fifth Count. In his papers in opposition to summary judgment, the plaintiff states that the defendants took his statements out of "contest" [sic], that they failed to conduct an adequate investigation of the incident, and that instead of handling it internally the defendants reported it to the police, resulting in his arrest and his eventual termination.
In order to succeed on his claim for negligent infliction of emotional distress, the plaintiff must plead and prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm. Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); see also Morris v. Hartford Courant Co., 200 Conn. 676, 683-84, 513 A.2d 66 (1986); 2 Restatement (Second), Torts § 313 (1965).
However, the Supreme Count has held that in the employment context, where every termination is likely to cause some amount of emotional distress, the plaintiff's claim must be founded upon
unreasonable conduct of the defendant in the termination process. The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior [ internal quotation marks and citations omitted].
Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).
There are no facts, disputed or otherwise, to suggest that the defendants engaged in any conduct during the termination process that meets this standard.
THE SIXTH COUNT
The Sixth Count, against the City of New Britain, invokes the provisions of Conn. Gen. Stat. § 7-465, which provides that a town shall indemnify any of its employees who negligently cause "physical injury" to the claimant. The damages claimed by the plaintiff are not ones for physical injuries, notwithstanding his claim that he suffered emotional distress as a result of the termination from employment and the defense of the criminal prosecution. Moreover, the statute specifically excludes libel and slander from its scope. The plaintiff cannot prove that he is entitled to prevail under this statute against the city, given the causes of action that survive this motion.
CONCLUSION
The Motion for Summary Judgment is denied with respect to the First, Second, and Third Count. The Motion is granted with respect to the Fourth, Fifth, and Sixth Count.
It is so ordered.