Goldberg v. Whitman, Civ. No. H-88-840 (AHN).

• Citation: 743 F. Supp. 943
• Decision Date: 15 August 1990
• Docket Number: Civ. No. H-88-840 (AHN).
• Court: U.S. District Court — District of Connecticut
• Parties: Kenneth D. GOLDBERG v. Dana WHITMAN, Jr., et al.

743 F. Supp. 943

Kenneth D. GOLDBERG v. Dana WHITMAN, Jr., et al.

Civ. No. H-88-840 (AHN).

United States District Court, D. Connecticut.

July 23, 1990.

Reconsideration Granted August 15, 1990.

Martin S. Stillman, Stillman & DiCara, Rocky Hill, Conn., for plaintiff.

William S. Zeman and Joel M. Ellis, West Hartford, Conn., for defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT

NEVAS, District Judge.

This case raises the complex question of whether a court may consider a legislator's motive in enacting a statute where that statute is, in all other respects, constitutionally valid. This is a claim by a former supernumerary police officer of the Town of Rocky Hill, Connecticut against the Town, the Town Manager, the Mayor and the members of the Town Council. Kenneth D. Goldberg alleges that after he sided with the Rocky Hill Police Chief in a dispute over racism within the police department he was subjected to a campaign of harassment and eventually discharged when the Town Council voted to eliminate the supernumerary program entirely. Goldberg asserts that these actions were motivated solely by a desire to retaliate against him for having exercised his first amendment right to speak out on an issue of public concern.

The defendants have now moved for summary judgment. For the reasons set forth below, the motion is granted only as to defendants Waldron and Delaney and denied as to all others.

I. Background¹

Plaintiff Kenneth D. Goldberg had been a supernumerary police officer in the Town of Rocky Hill for a number of years prior to 1987, when the events germane to this lawsuit took place. In 1984 Goldberg was selected officer of the year by the Rocky Hill Police Department. Goldberg Affidavit ¶ 4. By 1987 Goldberg was commander of the supernumeraries², wore a uniform indicating his rank and received a higher rate of pay than his fellow officers. Id. ¶ 7. At various times the Town Council had permitted Goldberg to attend out-of-state training programs in crime prevention at Town expense. Id. ¶ 3. In his affidavit Goldberg states that he "enjoyed a good working relationship with the Town Manager and the Town Council." Id. ¶ 3. In a 1985 memorandum, Town Manager Dana Whitman, Jr. stated that Goldberg had "done an outstanding job as part-time Crime Prevention Officer" and commended his "interest and dedication." Goldberg Affidavit ¶ 14 (Attachment B-18).

On or about April 7, 1987 Lt. Herbst of the Rocky Hill Police Department ("the Department") cancelled the dispatch of a police cruiser sent to investigate a report of two suspicious looking men driving around a mall parking lot. Complaint ¶ 5. The report referred to the two as only "Puerto Ricans" and "suspicious looking." Id. Soon after the cruiser was recalled the Department received a civilian complaint that an automobile had indeed been stolen from the area in which the two individuals were sighted. Lt. Herbst filed a report on the incident, stating that he felt race should not be a factor in determining whether or not to stop a person and describing what he termed "pervasive racism" within the Department. Id. ¶ 6. Lt. Herbst also noted Police Chief Philip Schnabel had advised him "that in the future a unit should be dispatched and that a supervisor also respond in order to monitor the situation and ensure that no constitutional infringements or dangerous procedures occur." Riley Affidavit ¶ 2 (Attachment A). Herbst stated that he would "comply with the Chief's advisement if such situation arises in the future." Id.

In response to the civilian complaint Chief Schnabel found that "Lt. Herbst acted in the best interests of the Department in attempting to avoid a possible constitutional violation based on race," Whitman Affidavit ¶ 17 (Attachment I), and held the lieutenant to be "Exonerated." This ruling was in apparent reference to the Department's established procedure for processing civilian complaints. Written guidelines provide that after investigation a final report shall reach one of the following conclusions: Unfounded, Exonerated, Unsubstantiated or Substantiated. "Exonerated" is defined as "incident occurred, but was in compliance with proper procedures." Id. ¶ 19 (Attachment J).

On June 15, 1987 the Town Council held a meeting, attended by Town Manager Whitman and Mayor Paul Doukas, at which the propriety of Lt. Herbst's actions was discussed. Asked to present his position, Chief Schnabel stated that under the law as he understood it "probable cause would have been needed prior to stopping this vehicle and there was not probable cause." Whitman Affidavit ¶ 18 (Attachment D). Although the Chief acknowledged that Lt. Herbst had made a mistake and in the future police cruisers would respond to similar calls, he felt no need to take disciplinary action against Lt. Herbst as he "had an excellent record and has used his judgment." Id. Throughout the meeting the Chief defended this position against repeated criticism by the Town Council members and a number of Rocky Hill residents. Id. at 10-16.

Goldberg contends that after Chief Schnabel made his position known at this public meeting he (Goldberg) expressed his support for the Chief to a number of Town officials, including police officers and Council members Waldron and Delaney. Ellis Affidavit ¶ 3 (Attachment A at 43). As a result, Goldberg contends, the defendants took a series of actions in retaliation. On September 4, 1987 he was removed as commander of the supernumeraries and the position was eliminated. On September 17, 1987 Goldberg wrote to the City Manager inquiring into obtaining benefits accorded Town employees working in excess of twenty hours per week. Four days later, on September 21, the Town Council voted to restrict supernumeraries to 19 hours per week unless authorization issued from the Town Manager. Goldberg asserts that he was the only supernumerary working more than twenty hours per week on average. On May 6, 1987, just four months earlier, the Council had voted to allow supernumeraries to average 24 hours per week up to a maximum of 40 hours in any one week. Goldberg Affidavit ¶¶ 8-9.

Goldberg further alleges that immediately following the June 15 meeting he became the subject of a series of memoranda, mostly authored by Town Manager Dana Whitman, which he characterizes as "harassing and demeaning." Id. ¶ 14.³ In the memos the Town Manager repeatedly questions why Goldberg is referred to as "commander" of the supernumeraries after his removal from that position on September 4, 1987; reprimands Goldberg for working in plain clothes and in an unmarked vehicle; states that Goldberg should wear a silver rather than gold badge; instructs Chief Schnabel not to permit Goldberg to work on a volunteer basis; and criticizes Goldberg's habit of picking up police mail. Id. (Attachment B).

At a meeting on April 11, 1988, the Town Council voted to eliminate the position of supernumerary police officer altogether effective July 1, 1988. Whitman Affidavit ¶ 3 (Attachment B). Council members Delaney and Waldron voted against this measure, which passed by a 7-2 vote. Id.⁴ As a result of eliminating the program the Town saved $24,430 in the 1988-89 fiscal year. Id. ¶ 8 (Attachment G). In the budget for the 1989-90 fiscal year, however, the Town found it "necessary to add $40,000 to the Overtime account to make up for the termination of the supernumarary force during the 1988-89 budget deliberations." Goldberg Affidavit ¶ 12 (Attachment A).

According to Chief Schnabel, some time after the vote Town Manager Whitman contacted a number of the former supernumeraries and offered to make them "Special Constables" pursuant to Conn.Gen. Stat. § 7-92. Goldberg received no such offer. Schnabel Affidavit ¶ 7. For example, Dolores Carotenuti, who as a supernumerary had been responsible for investigating sex crimes, was offered the designation of Sex Crimes Specialist with Constable Status. Carotenuti Affidavit ¶ 5. At oral argument plaintiff's counsel gave details of the provisions allegedly made for the other supernumeraries, but these allegations do not appear in any of the affidavits.

II. Discussion

A. Standards for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered only when a review of the entire record demonstrates "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A dispute over a material fact exists if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The initial burden is on the moving party to establish that no relevant facts are in dispute. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The burden then shifts to the nonmoving party "to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Rule 56(e), Fed.R.Civ.P.).

In determining whether a genuine factual issue has been raised, the court's responsibility is not to resolve disputes between the parties but only to assess whether there are any factual issues to be tried. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). In so deciding, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). As long as the plaintiff adduces sufficient facts to substantiate the elements of his claim, summary judgment is inappropriate. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553.

In their memoranda the...