Opinion
Civil Action No. 3:95cv302 (AWT)
March 31, 1998
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the court on the defendants' motion for summary judgment. For the reasons set forth below, the defendants' motion is being denied, in part, and granted, in part.
I. FACTUAL BACKGROUND
The plaintiff in this action is an employee of the Town of Guilford, Connecticut. Complaint at First Count, ¶ 9; Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Opposition") [doc. #24] at 1. During the period relevant to the Complaint, he served as a full-time emergency dispatcher with the Guilford Communications Department. Complaint at First Count, ¶ 9; Memorandum of Law in Support of Motion for Summary Judgment ("Defendants' Memo") [doc. #18] at 3. The defendants in this action are: the Town of Guilford; Edward Lynch, First Selectman of Guilford at the times relevant to the Complaint; and Charles E. Herrschaft, Jr., Director of the Guilford Ambulance Service and Communications Department at the times relevant to the Complaint. Complaint at ¶¶ 4-6.
In 1992, the plaintiff was elected president of the local chapter of the government employees union, Defendants' 9(c) Statement of Undisputed Facts [doc. #19] at ¶ 1; Complaint at f 11, a position which he held for one year, Defendants' Memo at 3; Deposition of Jeffrey B. Larsen of October 24, 1995 ("Larsen Dep.") at: 16. In his capacity as local union president, the plaintiff claims to have "associated with and represented the employment interests of certain employees of the defendant Town of Guilford." Complaint at 11; see also Plaintiff's Opposition at 3 ("plaintiff was engaged in resolving several grievances in consultation with . . . the union's national representative").
The plaintiff alleges that, beginning in 1992 and continuing at least until the time he filed the instant suit, the defendants deprived him of work and subjected him to various other adverse employment actions in retaliation for "his assertiveness as a union president". Plaintiff's Opposition at 1; Plaintiff's Statement of `Material Facts Which Are in Dispute [doc. #23] at ¶ 3; Complaint at ¶ 14. The defendants' acts which are alleged to have been motivated by retaliatory animus include:
(a) failing to provide him with "crossover" work as an ambulance assistant, Complaint at ¶ 13;
(b) failing to hire him as a full-time Emergency Medical Technician ("EMT"), Complaint at 15;
(c) failing to pay him the full hourly rate for paramedics, Complaint at 16;
(d) failing to provide him with a full Guilford Ambulance uniform, Complaint at 17;
(e) issuing written warnings to him for (i) arriving late to work three times, (ii) allowing a civilian into the emergency dispatch center, and (iii) allowing the door of the dispatch center to remain open, Complaint at ¶¶ 18-20; and
(f) suspending him for one week without pay for (i) failing to follow proper emergency dispatch procedures, (ii) initiating an emergency dispatch with improper notification tones, and (iii) engaging in disruptive behavior; Complaint at f 21; Plaintiff's Opposition at Exh. 9 (notification of suspension letter).
In support of his claim of retaliation, the plaintiff offers a letter by Peter Schaumburg, Director of the Guilford Ambulance Service and Communications Department in 1992, in which Schaumburg states that he was instructed by defendant Lynch to cease assigning the plaintiff to "crossover" work as an ambulance assistant and that he was threatened with disciplinary action if he continued to so assign the plaintiff. Plaintiff's Opposition at Exh. 2. In this letter, Schaumburg expresses his "feeling that denying [the plaintiff] access to scheduled ambulance shifts was probably related to his union activities . . ." Id.
As for the disciplinary actions taken with respect to the plaintiff, the plaintiff admits most of the charges made against him. See Larsen Dep. at 47-69. However, the plaintiff claims that other employees of the emergency dispatch center committed the same or similar violations without suffering similar penalties. Complaint at ¶¶ 18-21.
The plaintiff offers some evidence of the lack of uniformity in disciplinary action taken by the defendants. See, e.g., Larsen Dep. at 54 (claiming others arrived late for work); Plaintiff's Opposition at Exh. 3 (noting number of civilians allowed access to dispatch center shortly before plaintiff was reprimanded for this); Larsen Dep. at 47-48 (claiming others were present: when door of dispatch area was left open); Plaintiff's Opposition at Exh. 5, 6 (noting failures by others to follow proper emergency dispatch procedures).
The First Count of the plaintiff's Complaint alleges violations of the plaintiff's rights to freedom of speech, association and petition for redress under the First and Fourteenth Amendments to the United States Constitution; the Second Count advances an equal protection claim under the Fourteenth Amendment; and the Third Count alleges a violation of the plaintiff's Fourteenth Amendment right to procedural due process. The first three counts are brought pursuant to 42 U.S.C. § 1983. The Fourth Count advances a state law tort claim of intentional infliction of emotional distress. The defendants seek summary judgment as to all counts of the plaintiff's Complaint.
II. LEGAL STANDARD
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). It is the substantive law governing the case that identifies those facts which are material on motions for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). The burden of showing that no genuine factual dispute exists rests on the moving party. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
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 party against whom summary judgment is sought. Anderson, 477 U.S. at 255;Gallo, 22 F.3d at 1223; Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). The inferences to be drawn from the evidence submitted in support of the motion must be viewed in the light most favorable to the party opposing it. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Ramseur, 865 F.2d at 465.
A court cannot try issues of fact on a motion for summary judgment; it can only determine whether there are issues to be tried. Heyman v. Commerce Industry Ins. Co., 534 F.2d 1317, 1319-20 (2d Cir. 1975); see Anderson, 477 U.S. at 255. With the foregoing standard in mind, the court turns to the relevant facts. III. FIRST AMENDMENT CLAIM
The essence of the plaintiff's claims under the First Count is that the defendants conspired to punish him for exercise of his First Amendment rights to freedom of speech, association and petition for redress. In particular, the plaintiff alleges that the defendants subjected him to adverse employment actions in retaliation for his conduct as president of the local union. The court concludes, on the record before it, that the defendants are entitled to judgment as a matter of law on the First Count.
As to the freedom of association and right to petitition claims, the defendants' motion for summary judgment is granted, absent objection.See Plaintiff's Opposition at 5-6 (opposing the defendants' summary judgment motion as to the First Count, but failing to address the free association or petition for redress issues). As to the freedom of speech claim, the defendants argue that summary judgment should enter because, as a matter of law the plaintiff's speech was not a matter of public concern . The court agrees.
The defendants also argue, in the alternative, that summary judgment should enter because the defendants' conduct forming the basis of the plaintiff's Complaint did not constitute adverse employment action. Given that the court finds summary judgment to be appropriate on the basis of the threshold issue of "public concern", the court does not reach this alternative argument.
The Supreme Court has ruled that a public employee who seeks to recover, pursuant to section 1983, on the grounds that adverse action has been taken against him because of the exercise of his First Amendment speech rights must establish that his speech or conduct addressed a matter of public concern. Pickering v. Board of Education. 391 U.S. 563, 568 (1968); Connick v. Myers. 461 U.S. 138, 147-48 (1983); see also Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir.), cert. denied, 502 U.S. 921 (1993); Ezekwo v. New York City Health and Hospitals Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013 (1991)). This element of the plaintiff's claim is a question of law. Connick, 461 U.S. at 148 n. 7; Heil v. Santoro. No. 94 Civ. 9109 (BDP), 1997 WL 102461, at *4 (S.D.N.Y. Feb. 28, 1997).
The question of "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick. 461 U.S. at 147-48; Ezekwo. 940 F.2d at 781. It is well-established that a "public employee's speech on matters of purely personal interest or internal office affairs does not constitute a matter of public concern and is therefore riot entitled to constitutional protection."Heil, 1997 WL 102461, at *4; see Connick. 461 U.S. at 148-49; Ezekwo. 940 F.2d 775, 781; Morgan v. City of Milford. 914 F. Supp. 21, 23 (D. Conn. 1996). Moreover, the "considerations underlying the `public concern' test apply as equally to union activities as they would to any other speech by a public employee."Heil, 1997 WL 102461, at *4; see e.g., Boals v. Gray, 775 F.2d 686, 696 (6th Cir. 1985) (where employee received additional two-day suspension because he asked to have a union representative present, that statement did not touch on matter of public concern); Gros v. Port Washington Police Dist., 944 F. Supp. 1072, 1081 (E.D.N.Y. 1996) (plaintiff, president of local police union, did not speak out on matters of public concern where conversations officer had regarding promotions related only to his own personal desire to be promoted to rank of sergeant); Broderick v. Roache. 751 F. Supp. 290, 293 (D. Mass. 1990) (statements made by plaintiff, president of local police union, which related only to internal departmental employment matters were not statements of public concern).
[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick, 461 U.S. at 148-49.
Viewed in light of these considerations, the court finds, as a matter of law, that the plaintiff's speech cannot "be fairly considered as relating to any matter of political, social, or other concern to the community". Connick. 461 U.S. at 146. For example, at his deposition the plaintiff admitted that he never picketed any town offices nor held any public meetings. Larsen Dep. at 30. In addition, he was unable to recall any employees on whose behalf he filed union grievances other than himself and one Page Putney (whom the defendants identify as the plaintiff's sister). Larsen Dep. at 18; see Defendants' Memo at 6. While the court agrees with the plaintiff that, under the proper circumstances, "the ability of a union representative to fulfill his functions without retaliation in the workplace", Plaintiff's Opposition at 5, is a matter of public concern, here the plaintiff has presented no evidence that he undertook any of the types of union activity which courts have considered constitutionally protected from adverse employment action. See, e.g., Heil, 1997 WL 102461, at *5 (improper labor practice charge filed by plaintiff, president of local police union, raised allegations of bad faith bargaining and violations of state labor law by defendant municipality — both matters of at least arguable social and political concern); Gros, 944 F. Supp. at 1082 (statements by plaintiff, president of local police union, regarding alleged unlawful activity on the part of a police commissioner could be considered to raise matters of public concern).
What the record does show is that the plaintiff filed at least five personal grievances against the Town of Guilford, for, inter alia: (i) the failure to hire him as a full-time EMT, Larsen Dep. at 36; (ii) the failure to pay him the full hourly rate for paramedics, Plaintiff's Opposition at Exh. 10; (iii) the failure to provide him with a full Guilford Ambulance uniform, Plaintiff's Opposition at Exh. 10; (iv) the disciplinary action taken against him in the form a written warning, Larsen Dep. at 56-57; and (v) the disciplinary action taken against him in the form a week's suspension without pay, id. at 104. The record also reveals that the document offered by the plaintiff to show that "he was engaged in resolving several grievances in consultation the union's national representative", Plaintiff's Opposition at 3, merely shows that he received a copy of a letter sent out by that representative. See Plaintiff's Opposition at Exh. 10. Moreover, two of the three grievances or potential grievances referred to in the letter were the plaintiff's own personal complaints.See id.
The court should not speculate as to what activities of "public concern" the plaintiff may have undertaken when the record shows none. The plaintiff, in order to avoid summary judgment, must show the presence of a genuine issue by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in his favor, to establish the existence of that element at trial. See Celotex Corp. v. Catrett. 477 U.S. 317, 322-23 (1986); Turtur v. Rothschild Registry International, Inc., 26 F.3d 304, 309 (2d Cir. 1994). This the plaintiff has failed to do.
Accordingly, because the plaintiff's speech and conduct as union president was not a matter of public concern, the defendants' motion for summary judgment as to the plaintiff's First Amendment claim is being granted. IV. EQUAL PROTECTION CLAIM
As noted above, the defendants' motion for summary judgment as to the freedom of association and right to petition claims is granted, absent objection.
The Second Count of the plaintiff's Complaint claims that the actions of the defendants in depriving the plaintiff of work and in subjecting him to other adverse employment actions violated his right to equal protection of the laws under the Fourteenth Amendment. The court concludes that the defendants are entitled to summary judgment on this Count.
In the Second Circuit, it is well-settled that a violation of equal protection by selective enforcement arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) the selective treatment was motivated by (i) an intention to discriminate on the basis of impermissible considerations, such as race or religion, (ii) an intention to inhibit or punish the exercise of constitutional rights, or (iii) malicious or bad faith intent to injure a person. Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996); Zahra v. Town of Southold. 48 F.3d 674, 683 (2d Cir. 1994).
As to the first element, the court finds that genuine issues of material fact exist as to whether the plaintiff was selectively treated by the defendants, compared with other similarly situated employees of the Town of Guilford. See footnote 1 (above).
However, as to the second element, the plaintiff alleges selective treatment based upon an intentional effort by the defendants to punish him for exercising his First Amendment rights. Complaint at Second Count, ¶ 22; see also id. at First Count, ¶¶ 13, 14, 22. The plaintiff does not allege selective treatment based upon his race or religion; nor does he allege that the defendants maliciously subjected him to adverse employment actions with the intent to injure him. Therefore, because the court has found that the plaintiff's First Amendment claims cannot survive the defendants' motion for summary judgment, see Part III (above), and his equal protection claim is premised on the First Amendment claim, the plaintiff's equal protection claim must likewise fail.
V. PROCEDURAL DUE PROCESS CLAIM
The Third Count of the plaintiff's Complaint alleges a violation of the plaintiff's Fourteenth Amendment right to procedural due process. This claim is premised on the defendants' act of suspending the plaintiff for one week without pay, on January 18, 1995, "without affording [him] advance notice or any fair or proper opportunity to be heard, to defend himself against the said false accusations, or to clear his name. . . ." Complaint at Third Count, ¶ 12.
Although, in his memorandum in opposition, the plaintiff attempts to bring various other alleged deprivations into his procedural due process claim, see Plaintiff's Opposition at 7, the Third Count of the Complaint is clearly limited to a claim based on the suspension without pay.
"In order to sustain an action for deprivation of property without due process of law, a plaintiff must `first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process.'" Local 342 v. Town of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994) (quotingMehta v. Surles. 905 F.2d 595, 598 (2d Cir. 1990) (per curiam)). The property right that the plaintiff must identify is generally created by state law. Cybulski v. Cooper, 891 F. Supp. 68, 70 (D. Conn. 1995) (citingBoard of Regents v. Roth. 408 U.S. 564, 576-77 (1972)). In addition, constitutionally-protected property interests may also be created by contract or mutual agreement. Id. (citingBrock v. Roadway Express, Inc., 481 U.S. 252, 260-61 (1987)).
The defendants here argue that the Third Count fails as a matter of law because the plaintiff's one week suspension does not amount to a deprivation of any property interest cognizable under the Fourteenth Amendment. The plaintiff counters that he has alleged a deprivation of a "clearly defined property right" secured by "the terms of his union contract" and "Connecticut state statutes". Plaintiff's Opposition at 7.
In addition, the defendants assert that, while the plaintiff was not constitutionally entitled to any predisciplinary procedure, hewas in fact given an opportunity to explain his violations prior to his suspension. The court does not reach this argument.
Neither the Supreme Court nor the Court of Appeals for the Second Circuit has directly addressed whether a five-day suspension without pay amounts to the requisite loss of a tangible property interest, see Gilbert v. Homar, 117 S.Ct. 1807, 1811 (1997), and the issue has received inconsistent treatment in the federal courts, Berardinelli v. Town of Newburgh, 895 F. Supp. 56, 57 n. 3 (S.D.N.Y. 1995) (citing cases).
However, the Second Circuit has been hesitant to expand the definition of "property" within the context of the Fourteenth Amendment. See SD Maintenance Co., Inc. v. Goldin, 844 F.2d 962, 967 (2d Cir. 1988) ("the course of the law in this Circuit has not moved beyond according procedural due process protection to interests other than those well within the contexts illustrated byGoldberg [v. Kelley, 397 U.S. 254 (1970)] and Roth"). Moreover, in that case the court stated, in dicta, that a property interest arises in the employment context "only where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause." S D Maintenance Co., Inc., 844 F.2d at 967. This view has been adopted by district courts in this circuit, which have refused to find that government employees subject to lesser disciplinary actions have been deprived of a constitutionally-protected entitlement. See, e.g.,Williams v. Perry. 960 F. Supp. 534, 538 (D. Conn. 1996) ("Removal from various work assignments, lack of work assignments, requiring higher standards of performance and conduct, harsher forms of discipline, all fail to demonstrate deprivation of a pecuniary property interest."); Weg v. Macchiarola, 729 F. Supp. 328, 338 (S.D.N.Y. 1990) (holding that suspension of a public employee without a hearing did not violate due process); Gates v. Sicaras, 706 F. Supp. 169, 172 (D. Conn.* 1989) (questioning whether plaintiff was deprived of a property interest in his public employment where he was never terminated from his position, but was merely suspended).
In light of the above authority, the court finds that the plaintiff in this case is unable to sustain an action for deprivation of property without due process of law premised upon his one-week suspension without pay. Indeed, the court can reach no other conclusion given the fact that the plaintiff has failed to proffer any evidence concerning "the terms of his union contract" and "Connecticut state statutes" which allegedly support his "clearly defined property rights." VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
The plaintiff's due process claim is further weakened by the fact that, as the result of a grievance he filed against the town, the plaintiff was reimbursed for the suspension without pay. Larsen Dep. at 104. Thus, even if the one week suspension deprived the plaintiff of a constitutionally-cognizable property interest, the grievance process utilized by the plaintiff afforded a post-deprivation remedy sufficient to satisfy the demands of the Due Process Clause. See Cybulski. 891 F. Supp. at 71.
The Fourth Count of the Plaintiff's Complaint advances a state law tort claim of intentional infliction of emotional distress. The plaintiff bases this claim upon the series of adverse employment actions taken by the defendants which, the plaintiff alleges, were motivated by retaliatory animus.
Under Connecticut law, in order for the plaintiff to prevail on his intentional infliction of emotional distress claim, he must show: (1) that the defendants intended to inflict emotional distress, or that they knew or should have known that emotional distress was a likely result of their conduct; (2) that their conduct was extreme and outrageous; (3) that their conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.Petyan v. Ellis, 200 Conn. 243, 253 (1986). "Liability for intentional infliction of emotional distress requires `conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.'" Delaurentis v. City of New Haven, 220 Conn. 225, 267 (1991) (quoting Petyan, 200 Conn. at 254 n. 5).
Here, the defendants argue that they are entitled to summary judgment because the conduct complained of by the plaintiff cannot be considered "extreme and outrageous". However, where reasonable minds might differ as to whether an actor's conduct is sufficiently extreme and outrageous to impose liability, the claim must go to the jury. Reed v. Signode Corp., 652 F. Supp. 129, 137 (D. Conn. 1986); Brown v. Ellis, 40 Conn. Sup. 165, 167-68 (Conn.Super.Ct. 1984). Resolving all ambiguities and drawing all factual inferences in favor of the plaintiff, Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 258 (1986), the court finds that a reasonable trier of fact could conclude that the defendants' various actions with respect to the plaintiff, taken cumulatively, constituted "extreme and outrageous" conduct. Accordingly, the defendants motion as to the Fourth Count of the Complaint is being denied.
VII. CONCLUSION
For the foregoing reasons, the defendants' Motion for Summary Judgment [doc. #17] is hereby DENIED, in part, and GRANTED, in part. Judgment shall enter in favor of the defendants on the First, Second and Third Counts of the Complaint.
It is so ordered.