Albert v. City of Hartford
| Decision Date | 21 December 2007 |
| Docket Number | No. 3:03 CV 1280(DJS).,3:03 CV 1280(DJS). |
| Citation | 529 F.Supp.2d 311 |
| Parties | Daniel ALBERT, Plaintiff, v. CITY OF HARTFORD, et al., Defendants. |
| Court | U.S. District Court — District of Connecticut |
Norman A. Pattis, Bethany, CT, for Plaintiff.
Helen Apostolidis, Corporation Counsel's Office, Hartford, CT, for Defendants.
The Plaintiff, Daniel Albert ("Albert"), a police officer with the Hartford Police Department ("HPD"), brings this five count action against the City of Hartford ("City Defendant"), various members of the HPD ("Individual Defendants"), and the City Defendant and the Individual Defendants, together ("Defendants"), for the alleged wrongful demotion, suspension and retaliation that he suffered.
Albert filed the Original Complaint on July 24, 2003, alleging (1) violation of the Fourteenth Amendment Right to Equal Protection, as to the Defendants; (2) violation of the Fourteenth Amendment Right to Procedural and Substantive Due Process, as to the Defendants; and (3) violation of 42 U.S.C. § 1983, as to the City Defendant. On June 30, 2004, Albert filed an Amended Complaint alleging two additional causes of action, (4) intentional infliction of emotional distress, as to the Defendants; and (5) violation of the First Amendment Right against retaliation, as to the Individual Defendants. The Individual Defendants named in Count Five are Hartford Police Chief Bruce Marquis ("Chief Marquis"), Hartford Police Assistant Chief Kevin Jones ("Assistant Chief Jones"), Hartford Police Assistant Chief William Reilly ("Assistant Chief Reilly"), Hartford Police Captain Stephen Heslin ("Captain Heslin"), Hartford Police Captain Katherine Perez ("Captain Perez"), Hartford Police Lieutenant David Kenary ("Lieutenant Kenary"), Hartford Police Captain Mark Pawlina ("Captain Pawlina"),1 and Interim City Manager Albert Ilg ("Manager Ilg").2
On August 5, 2004, the Defendants filed an Answer to the Amended Complaint denying liability on all counts and asserting the special defenses of failure to state a claim upon which relief can be granted, qualified immunity, lack of jurisdiction and the failure to exhaust administrative remedies.3 On September 20, 2004, the Defendants filed a motion for summary judgment (dkt.# 58) as to the entire Amended Complaint, a memorandum (dkt.#.59), a local rule 56(a)(1) statement (dkt.# 60), and the affidavit of Colleen Kenton ("Kenton") (dkt.# 61). On December 6, 2004, Albert filed a memorandum in opposition (dkt.# 69) to the Defendants' motion for summary judgment. The Defendants filed a reply to Albert's memorandum in opposition to the motion for summary judgment on December 30, 2004. Further, on December 30, 2004, the Defendants submitted a motion to strike (dkt.# 75) portions of the evidence that Albert submitted along with his opposition to the motion for summary judgment.4 For the following reasons, the Defendants' motion for summary judgment (dkt.# 58) is GRANTED in part and DENIED in part.
This case concerns Albert's promotion to lieutenant, demotion to sergeant, transfer to detention, and various other events that he claims to have suffered as a result of filing the instant lawsuit. Albert, a white male, was promoted to the rank of police lieutenant by Chief Marquis on May 27, 2001.5 The terms of Albert's promotion were governed by equal opportunity policies, including, the Charter of the City of Hartford ("the Charter"), the City of Hartford Personnel Rules and Regulations ("Personnel Rules"), and the collective bargaining agreement between the City of Hartford and the Hartford Police Union ("the CBA"). In accordance with the Personnel Rules, an officer who is promoted enters a "probationary or working test period" lasting between three and twelve months. (Dkt.# 61, Ex. 2.) If the employee does not successfully complete the probationary period, the employee is reinstated to the position that he or she occupied prior to the promotion. The probationary period is regarded as an integral part of the competitive examination process. The period is utilized by supervisors and department heads for observing the employee's work, securing the most effective adjustment of a new employee to his position, and for rejecting any employee whose performance does not meet the required work standards. (Dkt.# 61, Ex. 2.)
During the probationary period an officer is subject to probationary employee performance evaluations ("performance evaluations"). During Albert's probationary period, he received three performance evaluations that graded his work in the areas of dependability, job knowledge, skills anti human relations.6 Each evaluation was completed initially by Albert's immediate supervisor, Captain Heslin, and then forwarded up the chain of command to the Assistant Chief of Police and the Chief of Police, who then either concurred, dissented or altered Captain Heslin's assessment.
Albert's first performance evaluation was completed by Captain Heslin on August 2, 2001. Captain Heslin rated Albert's performance as satisfactory and Assistant Chief Jones and Chief Marquis concurred with the rating.8
On August 29, 2001, Albert responded to a report of a suspicious package located at the federal building in Hartford, Connecticut. The parties dispute Albert's handling of this event. According to Albert, he arrived at the scene, spoke with building a security guard, and found a vinyl suitcase behind a concrete bench outside of the building. Albert argues that the suitcase was not suspicious and that the record shows that the situation was not a bomb threat. (Dkt.# 61, Ex. 15.) Albert explained his response to Captain Heslin who then sent Assistant Chief Jones a memorandum dated October 1, 2001, which stated: (Dkt.# 61, Ex. 4.) Assistant Chief Jones disagreed with Captain Heslin's recommendation and, in an October 3, 2001, memorandum stated `that Albert violated Order 7-1 of the HPD. Order 7-1 requires that officers who encounter suspicious packages safeguard the scene to ensure that no one touches the package.9
Albert contends that he did not fail to comply with Order 7-1 because the HPD had not received a bomb threat, the suit-case did not turn out to be a bomb, and because the only reason that Albet's response was reported to Captain Heslin was due to the fact that the reporter of the incident had a personal vendetta against Albert. Further, Albert asserts that an investigation was not initiated until the date of his demotion. On October 11, 2001, Captain Heslin completed a "Report of Disciplinary Infraction," which charged Albert with violating Section 6.08 of the HPD's Code of Conduct, "negligent failure to comply with any lawful orders, procedures, directives, or regulations, oral or written."10 (Dkt.# 70, Ex. 1.) Albert was notified, by letter dated November 27, 2001, to attend a disciplinary hearing regarding the package incident. Although Albert does not dispute that the hearing resulted in an oral reprimand by Chief Marquis, he argues that the explanation of his actions were unjustly rejected.
On October 16, 2001, Albert responded to a report from the Connecticut Children's Medical Center that a white powder had been found. The Medical Center feared the power might have been anthrax. While at the scene, Albert concluded that white powder found in a patient's room was laundry detergent.11 Again, the parties dispute the appropriateness of Albert's response. The Defendants claim that Captain Pawlina received a complaint from a citizen regarding Albert's actions. In his deposition, Captain Pawlina testified that he contacted the complainant over the phone and ultimately decided not to refer the incident to Internal Affairs Division. (Dkt. # 70, Ex. 15, Captain Pawlina Depo. pp. 23, 30.) Although Captain Pawlina could have initiated formal disciplinary proceedings against Albert, Captain Pawlina did not do so but, instead, counseled Albert on the incident.12 Although Albert admits that Captain Pawlina counseled him, Albert notes that he did not receive any formal discipline regarding this incident until the day of his demotion.
On October 16, 2001, Albert responded to a second complaint fearing anthrax, at 866 Main Street, Hartford, Connecticut. The parties dispute whether a complaint was filed by Assistant Fire Chief M.A. Parker ("Assistant Chief Parker") and whether Albert received counseling from Captain Heslin regarding this incident.
On or about November 16, 2001, Captain Heslin completed Albert's first probationary employee performance evaluation. The evaluation referenced Albert's responses to the package incident and the two complaints fearing anthrax. Captain Heslin determined that Albert had a need for improvement and Assistant Chief Jones and Chief Marquis concurred with the evaluation.13 Despite these facts, Albert continues to contest that he handled the package incident and the complaints fearing anthrax, properly.
On March 6, 2002, HPD's Internal Affairs Division commenced an investigation into allegations that Albert regularly removed newspapers from a D.B. Mart, read the papers and returned them without paying. The investigation was conducted by Sergeant Richard Calderone ("Sergeant Calderone"), whom Albert believed to be fair and impartial. Sergeant Calderone completed a "Report of Disciplinary Infraction," on March 20, 2002, which sustained a violation of Section 1.00 of the HPD's Code of Conduct, "Conduct...
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