McKiernan v. Amento, CV010453718S.

CourtSuperior Court of Connecticut
Writing for the CourtGilardi
Decision Date02 October 2003
PartiesDorinda McKiernan, v. Carl J. Amento.
Docket NumberCV010453718S.

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Dorinda McKiernan,
Carl J. Amento.
Superior Court of Connecticut, Judicial District of New Haven, at New Haven.
Decided October 2, 2003.
Filed October 2, 2003

By Gilardi, J.

In 1979, the plaintiff began her employment with the town of Hamden as an account clerk in its finance department. She remained in that department until 1991, when she accepted the newly-created position of account clerk in Hamden's police department. The plaintiff's responsibilities included, among other things, assisting the chief of police in the police department's budget preparations.

In April 2000, however, Hamden's legislative council passed a budget for the ensuing fiscal year that eliminated the plaintiff's position and salary from the police department's budget and transferred the plaintiff's position back to Hamden's finance department, as of July 1, 2000. According to the plaintiff, the legislative council passed this budget on the recommendation of Gagliardi and with the concurrence of Amento, both of whom, the plaintiff alleges, sought to exact revenge for her active and public support of various candidates in Hamden's 1997 and 1999 mayoral races.

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Later, on June 7, 2000, Riccitelli, in his capacity as deputy chief of police, issued a letter of reprimand to the plaintiff in which he criticized her review of the police department's accounts, noting that her inaccurate projections embarrassed the office of the chief of police and forced the department to violate a labor agreement. Riccitelli also censured the plaintiff for her disrespectful attitude toward Donald Gray, a police department captain responsible for reviewing budget matters. Distressed by the letter, the plaintiff contacted Hamden's employee assistance program and was ultimately referred to a psychologist, who advised the plaintiff not to return to work.

On June 20, 2000, while the plaintiff was on sick leave, Riccitelli dispatched two police officers to the plaintiff's home to hand deliver a second letter of reprimand. In this letter, Riccitelli criticized the plaintiff for a second account shortfall based on her inaccurate projections and warned her that any future shortages would result in more serious disciplinary action. According to the plaintiff, Riccitelli issued the two letters of reprimand in retaliation for her opposition to the hiring of Riccitelli's

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stepdaughter as a temporary worker in Hamden's tax department, because it would have violated the union's contract with the town of Hamden.

Distraught by these events, the plaintiff remained on sick leave until her benefits ran out in December 2000, and, on January 26, 2001, the town of Hamden and Amento terminated the plaintiff's employment because she never returned to work. The plaintiff subsequently filed this ten-count complaint against the defendants, in which she alleges a violation of her right to free speech guaranteed by the United States and Connecticut constitutions, respectively (counts one and two); intentional infliction of emotional distress (counts three, four, and nine); a violation of her right to free speech, equal protection, and due process guaranteed by the United States constitution (counts five and six); defamation (count seven); a violation of her right to due process guaranteed by the United States constitution (count eight); and negligent infliction of emotional distress (count ten).1

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The defendants move for summary judgment as to all ten counts of the plaintiff's complaint on the grounds that: they are entitled to qualified immunity, immunity under General Statutes § 52-557n(a)(2)(A), legislative immunity, and conditional privilege; their conduct was neither extreme nor outrageous; the plaintiff's claims under the Connecticut constitution are not recognized in Connecticut; and the plaintiff fails to state a claim for which relief can be granted under the United States constitution. In support, the defendants filed memoranda of law and the following exhibits: certified deposition transcript of John Ambrogio, a former chief of police; letter of reprimand, dated June 7, 2000; letter of reprimand, dated June 19, 2000; affidavit of James Hliva, Hamden's director of finance; certified deposition transcript of Nolan; certified deposition transcript of Riccitelli; certified deposition transcript of Evelyn Parise, legislative assistant to Hamden's legislative council; certified deposition transcript of Gagliardi; letter of reassignment, dated July 25, 2000. In opposition, the plaintiff filed memoranda of law, the affidavit of the plaintiff and

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the certified deposition transcript of Amento.

"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Id., 252. "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by

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showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Id., 252-53.

Count One

In count one, the plaintiff alleges that Amento and Gagliardi retaliated against her for engaging in speech protected under the first amendment, in violation of 42 U.S.C. § 1983.2 The plaintiff claims that Amento and Gagliardi violated her free speech rights when, in retaliation for her support of various candidates in Hamden's 1997 and 1999 mayoral races, Gagliardi, with Amento's concurrence, recommended to the town council that it pass a budget that eliminated the plaintiff's position from the police department. The defendants move for summary judgment as to count one on the ground that the plaintiff's first amendment claim is

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inadequate as a matter of law, as there was no adverse employment action.

The Supreme Court has held that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment . . . It also recognized that the state has an interest as an employer in regulating speech by employees so as to promote the efficiency of public services performed by its employees . . . Acknowledging the wide variety of fact situations where critical statements by

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a public employee may be thought to furnish grounds for dismissal, the Supreme Court has declined to lay down a general standard against which all such statements may be judged . . . Instead, to assess the extent to which a state may regulate the speech of its employees, courts must balance the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees . . .

Before this balancing test is reached, a plaintiff making a First Amendment retaliation claim under § 1983 must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination . . . If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of

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the protected conduct.

(Citations omitted; internal quotation marks omitted.) Morris v. Lindau, 196 F.3d 102, 109-10 (2d Cir. 1999).

The defendants challenge the sufficiency of the plaintiff's evidence as to the second element, i.e., the existence of an adverse employment decision. A plaintiff may prove an "adverse employment decision" either by presenting evidence of "the classic examples of discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand"; Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002); or by showing that "(1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace . . . Incidents that are relatively minor and infrequent will not meet the standard, but otherwise minor incidents that occur often and over a longer period of time may be actionable if they attain the critical mass of unreasonable inferiority." Id.

In this case, the alleged adverse employment decision was the defendants' causing the plaintiff to be transferred from the police department

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to the finance department. "[A] transfer is an adverse employment action if it results in a change in responsibilities so...

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