Holmes v. Town of East Lyme, Civil No. 3:09cv2088 (JBA)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtJanet Bond Arterton
PartiesPaul Holmes, Plaintiff, v. The Town of East Lyme, Paul Formica, and Richard Crooks, Defendants.
Docket NumberCivil No. 3:09cv2088 (JBA)
Decision Date30 March 2012

Paul Holmes, Plaintiff,
v.
The Town of East Lyme, Paul Formica, and Richard Crooks, Defendants.

Civil No. 3:09cv2088 (JBA)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Dated: March 30, 2012


RULING ON MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Paul Holmes filed suit against Defendants the town of East Lyme, First Selectman Paul Formica, and Resident State Trooper Sergeant Richard Crooks. Plaintiff claims violations of the state whistleblower law, Conn. Gen. Stat. § 31-51m (Count One), unlawful retaliatory termination in violation under Conn. Gen. Stat. § 31-51q (Count Two), violations of due process property and liberty interests under 42 U.S.C. § 1983 (Counts Three and Four), common law defamation and false light invasion of privacy against the Town, Defendant Formica and Defendant Sergeant Richard Crooks (Counts Five and Six), and, against Defendant Sergeant Richard Crooks only, intentional infliction of emotional distress (Count Seven).

Plaintiff moves for partial summary judgment against the Town of East Lyme and Paul Formica [Doc. # 60] on Counts Three and Four (Plaintiff's due process claims), and also moves separately for summary judgment on Counts Five and Six (Defamation and False Light Invasion of Privacy claims) against Sergeant Crooks [Doc. # 64]. Defendants Town of

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East Lyme and Paul Formica cross-move for summary judgment [Doc. # 66] on all counts against them, as does Defendant Richard Crooks [Doc. # 63].

For the reasons discussed below, Plaintiff's motion for summary judgment against the Town and Formica will be granted in part and denied in part, and his motion for summary judgment against Crooks will be denied in its entirety. All Defendants' motions for summary judgment will be granted in part and denied in part.

I. Factual Background

Paul Holmes began working as a part-time police officer for the Town of East Lyme in 1985. In East Lyme, a part-time police officer is known as a "special constable."|Since 1987, Plaintiff has been employed by the Connecticut Department of Transportation, and he continues to work there. For a number of years, Plaintiff was reappointed as a part-time police officer every six months (Holmes Dep., Ex. A to Town's Loc.'s R. 56(a) 1 Stmt [Doc. # 66-4] at 34), and this was considered "a long-standing practice" in the Town that has continued even after part-time officers were added to the collective bargaining unit in 1990 (Award of Arbitrator in the Matter of the Arbitration between AFSCME Council 15 Local 2852 and The Town of East Lyme, August 28, 2009, Ex. 3 to Pl.'s Loc. R. 56(a)1 Stmt. at 2; Arb. 6/17/08 F. Kent. Sistare's Testimony, Ex. 25, at 64:25-65:3).

Defendant Formica is the First Selectman of the Town of East Lyme, and was designated to act as Chief of Police. Defendant Richard Crooks is employed by the Connecticut State Police, and held the position of Resident State Trooper for the Town of East Lyme from January 2007 to April 2008. The Resident State Trooper is the highest certified police officer in the Police Department, and provides services to the Town through a contract with the Connecticut Department of Public Safety.

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In 2005, the Town of East Lyme and East Lyme Police Local 2852 Council 15, AFSCME entered into a collective bargaining agreement that was in effect from July 1, 2005 to June 30, 2009. Since 1987, Plaintiff was a member of the Union. Sergeant Paul Renshaw is employed as an East Lyme Police Officer, and also serves as President of the Union.

Town police officers fill out weekly time cards that record the number of hours that they worked, along with notes about each set of hours. At his deposition, Plaintiff testified that he learned how to fill out his time card by talking to other officers in the police department. (Holmes Dep. at 24:2-4.) Plaintiff also testified that the number of hours worked, and the rates at which a part-time officer was paid, depended on the type of work that the officer was doing: "that's what we always did. . . . if [you're not already scheduled to work and] you go to court, you get a four-hour block of time at time-and-a-half." (Id. at 26:11-13.)

In December 2006, then-East Lyme Administrative Sergeant Terry Saffioti noted errors in Plaintiff's time card, and wrote a memo to Plaintiff asking for clarification and for the hours that Plaintiff actually worked. (Dec. 4, 2006 Memorandum from Sgt. Saffioti to Holmes, Ex. 24 to Crooks' Loc. R. 56(a)1 Stmt.) In June 2007, due to budgetary concerns, Sergeant Crooks issued a directive consistent with Section 5.5.2 of the union contract that no overtime was to be issued without his approval. (Crooks Aff. ¶ 9.) The directive was copied to the First Selectman at that time, Beth Hogan. (Id.) Administrative Sergeant Saffioti was tasked with reviewing the time cards, and if there were discrepancies between the work schedule and submissions for overtime, Sergeant Saffioti would make a note on the time card. (Crooks Aff. ¶ 11; Pl.'s Dep. at 53:15-54:7.) Sergeant Saffioti noted several issues with

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Plaintiff's time cards in 2007, and Sergeant Saffioti and Plaintiff had a "verbal altercation about Holmes working a shift for which he was not initially scheduled." (Crooks Aff. ¶ 13.)

Prior to December 2007, Plaintiff made several complaints regarding the conduct of East Lyme Police Sergeant Paul Saffioti and Defendant Crooks. On October 1, 2007, Plaintiff wrote a memo to Defendant Crooks, stating, "Sergeant Saffioti is blatantly disregarding the advice of other Sergeants to correct the way he charges time and willfully continues to make the same mistakes." (October 1, 2007 Memorandum from Paul Holmes to Sgt. Crooks, Ex. 4 to Pl.'s 56(a)1 Stmt.) Plaintiff also stated: "Recently, Sergeant Saffioti berated me in the presence of another East Lyme officer making inappropriate comments and threatening to file insubordination charges against me . . . I feel Sergeant Saffioti continues to harass me and this needs to stop immediately." (Id.) On November 29, 2007, Plaintiff wrote a memo to Beth Hogan, the First Selectman, alluding to a meeting he had recently had with her, and stating that "since the meeting, tensions between Sergeant Saffioti and myself have escalated. I am always on guard for my safety when around Sergeant Saffioti." (November 29, 2007 Memorandum from Paul Holmes to Beth Hogan, Ex. 5 to Pl.'s 56(a)1 Stmt.) In his memo to Hogan, Plaintiff also wrote, "Sergeant Crooks and yourself have acknowledged there is a problem between Sergeant Saffioti, others, and myself. . . . Please advise me of what actions or investigations you have undertaken to resolve the hostile work environment Sergeant Saffioti has created at the East Lyme Police Department and that Sergeant Crooks has condoned." (Id.) Plaintiff was not the only officer to complain of Sergeant Saffiotis behavior, as Lieutenant Fusaro, the Captain of the Connecticut State Police and Commanding Officer, received correspondence from another officer, Joseph Dunn, also complaining about the

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hostile work environment created by Sergeant Saffioti. (Fusaro Aff., Ex. 4 to Crooks' 56(a)1 Stmt. ¶ 6.)

On November 29, 2007, First Selectman Beth Hogan wrote a letter to Sergeant Saffioti thanking him for his service, and assigning Sergeant San Juan to be the new Administrative Sergeant, effective December 3, 2007. On December 3, 2007, Defendant Paul Formica began serving as the Town's First Selectman in place of Ms. Hogan. Plaintiff did not follow up with Mr. Formica about his November 29, 2007 memo to Ms. Hogan.

In October and November 2007, a criminal investigation that Plaintiff was involved in required his testimony in court as a witness on November 1 and November 16, 2007. Plaintiff mistakenly listed November 6, 2007 instead of November 1, 2007 as the date he appeared in court on his time card. In December 2007, Defendant Crooks alleged that Plaintiff had not appeared in court on November 6 or November 16, 2007 but that Plaintiff had submitted time cards requesting payment for appearing in court on those dates. Sergeant Crooks did not notice the discrepancy at first, writing, "On 11/11/07, OFC Paul Holmes submitted his weekly time card requesting payment for four (04) hours of overtime for an 11/06/07 court appointment. . . . I did not question this overtime request and authorized payment." (December 20, 2007 Memorandum from Richard Crooks to Lt. Louis Fusaro, Commanding Officer, Ex. 36 to Pl.'s 56(a) 1 Stmt. at 1.) However, Crooks did notice that there was an issue with the November 16 court date, writing, "On 11/18/07, OFC Paul Homes submitted his weekly time card requesting payment for four (04) hours of overtime for an 11/16/07 court appearance. . . . I was aware that Holmes, Sergeant San Juan, and Detective Marr had been subpoenaed for Stanford's trial on 11/16/07, but that the case had been adjudicated." (Id.) Crooks stated further,

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I asked OFC Holmes about this overtime and . . . [he] stated that he was never informed that he was not required to appear in court. OFC Holmes stated that he left work on Friday, 1//16/07, that he drove to GA-10 [the courthouse] in New London, and that upon his arrival, was informed that his appearance in court was no longer required. OFC Holmes stated that he requested four hours of overtime because he left work and actually went to court.

(Id.) Plaintiff denies that Sergeant Crooks ever followed up with him, and states that "Crooks did not question me about my having appeared at court on any date in November, 2007." (Pl.'s Aff. ¶ 10.)

Sergeant Crooks began an investigation into Plaintiff's time...

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