D'Angelo v. McGoldrick

• Decision Date: 03 December 1996
• Docket Number: No. 15444,15444
• Citation: 685 A.2d 319,239 Conn. 356
• Court: Connecticut Supreme Court
• Parties: Eugene D'ANGELO et al. v. John McGOLDRICK et al.

Page 319

685 A.2d 319

239 Conn. 356

Eugene D'ANGELO et al. v. John McGOLDRICK et al.

No. 15444.

Supreme Court of Connecticut.

Argued Sept. 25.

Decided Dec. 3, 1996.

John K. McDonald, Waterbury, for appellants (plaintiffs).

Margaret Q. Chapple, Assistant Attorney General, with whom were Henri Alexandre, Assistant Attorney General, and, on the brief, Richard Blumenthal, Attorney General, for appellees (defendants).

Before CALLAHAN, C.J., and BORDEN, BERDON, KATZ and PETERS, JJ.

PETERS, Associate Justice.

General Statutes § 31-51q ¹ provides a cause of action for damages for an employee who has been disciplined or discharged on account of the exercise by such employee of various constitutional rights including the freedom of speech. The principal issue in this case is whether the plaintiffs, Eugene D'Angelo and Vincent DeRosa, can prevail in their cause of action under this statute without establishing a causal connection between their disciplinary transfers and the exercise of their constitutional rights. The complaint of the plaintiffs, two Connecticut state troopers, alleged that the defendants, ² Captain John McGoldrick, the commanding officer of the statewide narcotics task force (task force), and Nicholas Cioffi, the commissioner of the department of public safety, had wrongfully transferred them from the task force ³ for exercising their rights to free speech. After a court trial, the trial court rendered judgment for the defendants. The plaintiffs appealed from this judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. The plaintiffs, who were state troopers assigned to the northwest office of the task force, had concerns about alleged misconduct at the task force on the part of Sergeant John Petrowski. On February 8, 1993, DeRosa voiced his complaint to a former supervisor, Sergeant William McGuire. Thereafter, McGuire spoke with D'Angelo, who described another of Petrowski's alleged transgressions. McGuire brought these allegations to the attention of officials at the internal affairs unit of the Connecticut state police and, at their request, summarized the plaintiffs' allegations in a written memorandum on February 9, 1993 (McGuire memorandum). McGuire left room for four signatures, identified by typed names, on the bottom of the memorandum: each of the plaintiffs, Sergeant Dennis Coyle (another task force officer), and himself.

During this same period in early 1993, McGoldrick, the commander of the task force, had begun to consider restaffing the northwest office of the task force. Animosity had developed between McGuire and Petrowski, and, although McGuire was no longer part of the task force, McGoldrick concluded that the hostility between these two sergeants had fostered a feud between their respective supporters in the northwest office. This, he felt, had resulted in a decline in productivity. To remedy the problem, in late 1992 or early 1993, McGoldrick had ordered Petrowski's transfer out of the unit.

On February 4, 1993, McGoldrick met with other supervisors at the task force to discuss further personnel changes. During this meeting, McGoldrick decided to transfer the plaintiffs, whom he considered to be allies of McGuire and participants in the intra-office feud.

On February 9, 1993, upon learning that the plaintiffs had been making copies of some of Petrowski's time records, McGoldrick decided to accelerate the plaintiffs' transfers. On the morning of February 10, 1993, McGoldrick, along with other task force leaders, met with the plaintiffs. Stating that he was "tired of recriminations," McGoldrick informed the plaintiffs that they would immediately be transferred to units outside the task force. Only later that afternoon did the plaintiffs sign the McGuire memorandum.

In their present suit against the defendants, the plaintiffs claim that their transfers were triggered by their allegations against Petrowski and the resulting McGuire memorandum. They maintain that the transfers violated § 31-51q because the transfers were disciplinary measures intended to punish them for exercising their right to free speech.

The trial court concluded, for a number of reasons, that the plaintiffs had failed to establish their claims under § 31-51q. First, the trial court determined that, rather than rising to the level of constitutionally protected speech, the plaintiffs' allegations against Petrowski constituted merely an "internal feud among employees." Second, the trial court found that, even if the plaintiffs had engaged in constitutionally protected speech, they had failed to demonstrate a causal link between their transfers and their derogatory statements about Petrowski. Third, the court found that the plaintiffs had also failed to prove that their conduct had "not substantially or materially interfere[d]" with their work. See § 31-51q. Finally, the trial court interpreted § 31-51q not to encompass the plaintiffs' transfers within the term "discipline," and not to include either of the defendants within the term "employer."

Although on appeal the plaintiffs dispute all of the trial court's determinations, ⁴ we will confine our consideration to the validity of the trial court's conclusion with respect to causation. Without proof of a causal connection, there has been no compliance with the requirement in § 31-51q of "discipline or discharge on account of the exercise by [an] employee of rights guaranteed by the ... United States Constitution or ... the constitution of the state...." The issue of causation has two components: (1) did the trial court, as a matter of law, use the proper test; and (2) did the trial court make a finding of fact that is not clearly erroneous. In the circumstances of this case, we conclude that the judgment of the trial court should be affirmed because, factually, the plaintiffs have failed to make out a prima facie case under § 31-51q.

Section 31-51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employees' exercise of enumerated constitutionally protected rights. ⁵ See Lewis v. Gaming Policy Board, 224 Conn. 693, 711, 620 A.2d 780 (1993).

The statute does not, however, indicate what burden it imposes on an employee to prove that a disciplinary measure was taken "on account of the exercise" of these enumerated rights.

The trial court determined that in order to prevail under the statute, the plaintiffs had the burden of establishing three elements: "(1) that [they] were exercising rights protected by the first amendment to the United States constitution or by an equivalent provision of the Connecticut constitution; (2) that [they were transferred] 'on account of' [their] exercise of first amendment or equivalent state constitutional rights; and (3) that [their] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [their] bona fide job performance or with [their] working relationship with [their] employer." (Internal quotation marks omitted.)

The plaintiffs contend that the trial court's three part test was improper and propose instead that we should adopt the test set forth in Schnabel v. Tyler, 230 Conn. 735, 750, 646 A.2d 152 (1994). In Schnabel, a police officer filed an action against his police chief for, inter alia, retaliating against him in response to his criticism of the chief. Id., at 736-37, 646 A.2d 152. He brought his claim under a federal statute, 42 U.S.C. § 1983, ⁶ alleging a violation of his first amendment rights. In reviewing his claim, we affirmed the rights of public employees to speak, without fear of retribution, on matters of public concern. Id., at 749, 646 A.2d 152. We recognized, however, the government's "legitimate interest in regulating the speech of its employees...." (Internal quotation marks omitted.) Id.

To accommodate these "competing interests," we adopted a "balancing test." Schnabel v. Tyler, supra, 230 Conn. at 749, 646 A.2d 152; see Bieluch v. Sullivan, 999 F.2d 666, 670 (2d Cir.1993), cert. denied, 510 U.S. 1094, 114 S.Ct. 926, 127 L.Ed.2d 219 (1994). To establish a prima facie case under this test, the public employee must prove that: "(1) his speech can be fairly characterized as constituting speech on a matter of public concern; and (2)[his] speech was at least a substantial or motivating factor in the [transfer]...." (Emphasis added; internal quotation marks omitted.) Schnabel v. Tyler, supra, at 750, 646 A.2d 152. If the employee proves these two elements, the burden then shifts to the employer, who may still avoid liability by proving either that: "[ (1) ] he would have made the same decision in the absence of the protected conduct; or [ (2) the employee's] conduct interfered with the [government agency's] effective and efficient fulfillment of its responsibilities to the public...." (Internal quotation marks omitted.) Id.; Frank v. Relin, 1 F.3d 1317, 1328-29 (2d Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993).

We need not decide today whether the legal analysis announced in Schnabel for actions brought under 42 U.S.C. § 1983 applies equally to actions brought under § 31-51q. Even if we were to assume, arguendo, that the Schnabel test governs § 31-51q actions, the plaintiffs must still meet the burden imposed upon them by the Schnabel test. This they have failed to do. In its memorandum of decision, the trial court explicitly found the "absence of any evidence to support [the plaintiffs'] claim that [they] were transferred on account of their alleged protected activity...." (Emphasis added.)

Contrary to the plaintiffs' suggestion, we do not read the trial court's language so literally as to mean that the plaintiffs did not produce any evidence...