Miron v. University of New Haven Police, 17596.

Decision Date25 September 2007
Docket NumberNo. 17596.,17596.
Citation284 Conn. 35,931 A.2d 847
CourtConnecticut Supreme Court
PartiesSusan M. MIRON v. UNIVERSITY OF NEW HAVEN POLICE DEPARTMENT et al.

Lewis Chimes, with whom, on the brief, were Stephen Fitzgerald, Lynda Rizzo, New Haven, and Alexandra Block, for the appellant (plaintiff).

Aaron S. Bayer, Hartford, with whom were Kim E. Rinehart, New Haven, and, on the brief, Cheryl E. Johnson, Elliot B. Spector and William C. Berry, Hartford, for the appellees (defendants).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.*

BORDEN, J.

The plaintiff in this tort action, Susan M. Miron, appeals1 from the judgment of the trial court rendered in favor of the defendants, the University of New Haven Police Department (university), and two sergeants of the university's police department, David Sweet and Richard Montefusco. The plaintiff claims that the court improperly: (1) afforded a qualified privilege to the statements of Sweet; (2) excluded relevant testimony pertaining to the effect of Sweet's statements; and (3) precluded relevant comparative evidence of disparate treatment. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In July, 1999, the plaintiff began her career in law enforcement as an officer with the university's police department. During the first four months of her career, she attended the Connecticut state police academy training program. Thereafter, she was assigned to patrol the university's campus under the supervision of Sweet, who recently had been promoted to sergeant. From time to time, the plaintiff also was supervised by Montefusco. Due to a severe ear infection for which she underwent surgery, the plaintiff was absent from work for two weeks in January, 2000. That same month, the university's police chief, Henry Starkel, evaluated the plaintiff's performance as "satisfactory" in sixteen categories and "commendable" in two.2 In February, 2000, the plaintiff obtained her police officer standards and training certification. In June, 2000, in anticipation of the conclusion of the plaintiff's probationary period with the university, Starkel again evaluated the plaintiff's performance. In that evaluation, he indicated that the plaintiff's performance was deficient in certain areas, chiefly her attention to detail in written reports.

In April, 2000, the plaintiff applied for a position with the Glastonbury police department. As part of that department's review of the plaintiff's application, a Glastonbury investigator interviewed Sweet and Starkel in June, 2000.3 In addition Sweet completed an employment questionnaire. During the interview, Sweet and Starkel intimated that the plaintiff too often had been absent from work. Specifically, they indicated that from July 1, 1999, to June, 30, 2000, the plaintiff had been out of work due to illness a total of nineteen days, and that she also had used eleven vacation days. Sweet and Starkel also stated that on one occasion, the plaintiff had been out of work on an approved medical leave but had been seen dancing at a nightclub.4 In his written remarks, Sweet evaluated the plaintiff's leadership ability as "poor" and indicated that, at times, she had been "negative or uncaring...." He described her police skills as "marginal at best," clarifying that by that he meant: "her report writing skills, the way she interviews people, her lack of confidence when pulling over a motor vehicle." In July, 2000, the Glastonbury police department rejected the plaintiff's application.

In June, 2000, the plaintiff applied for a position with the Enfield police department. As part of that department's background investigation, one of its detectives interviewed Sweet, who again completed a questionnaire. In his written statement to the Enfield police department, Sweet indicated that the plaintiff had a "know it all at[t]itude" and that "her performance is not where it should be...." He also opined that the plaintiff was not "ready to work for [a] regular [p]olice [department] but maybe in time and [with] additional training she would be." Despite Sweet's negative statements, the Enfield police department hired the plaintiff who joined the force on a probationary basis in August, 2000.

Thereafter, the plaintiff commenced the first five week phase of a sixteen week training program under the supervision of Charles Grasso, a field training officer with the Enfield police department. As part of that training program, Grasso completed daily reports of the plaintiff's performance, and the field training coordinator, Sergeant William Zaczynski, completed weekly reports. The reports were on standardized forms. The daily observation form provided a scale of one to seven in thirty-one categories, with the score of seven representing superior skill and scores of four and above considered "acceptable." The "coordinator's weekly report" provided space for narrative responses in certain categories, including strengths and weaknesses, recommendations, and additional comments.

In his daily reports, Grasso assigned the plaintiff a score of four in most categories, but consistently scored the plaintiff lower in the areas of orientation and officer safety. Grasso also criticized the plaintiff's use of the radio and, at times, her temperament. In his weekly reports, Zaczynski voiced concern about the plaintiff's overall performance, namely, her weaknesses in officer safety and "field performance under stress," as well as her difficulty navigating town roads. Accordingly, he added an additional four weeks to the plaintiff's first phase of training, stating that "[i]f there is not significant improvement in [the plaintiff's] performance, I can not recommend she continue." (Emphasis in original.)

For two of those four weeks, Zaczynski assigned the plaintiff to a different field training officer, Marianne Christensen. He did so "on the outside chance" that the plaintiff's lack of progress "might be a personality conflict...." At the conclusion of that two week period, however, Christensen also reported that the plaintiff struggled in the areas of orientation and officer safety. She stated that, "[d]ue to the inconsistencies with [the plaintiff's] performance on basic skills, I can not recommend [she] move on to [p]hase [two]." At that point, Zaczynski recommended that the plaintiff not continue with the program. The deputy chief of the Enfield police department, however, ordered the plaintiff to attend an additional week of training, during which she was assigned to field training officer Edward Kaczmarek. After that final week of intensive remedial training, Kaczmarek also concluded that the plaintiff was not ready to advance to phase two. On November 14, 2000, the plaintiff received notice of her termination from the Enfield police department.

Thereafter, the plaintiff initiated the present action for: (1) defamation and tortious interference with a business expectancy by Sweet, as to the plaintiff's application with the Glastonbury police department; (2) defamation and tortious interference with a business expectancy by Sweet and Montefusco, as to the plaintiff's discharge from the Enfield police department; and (3) intentional infliction of emotional distress on the part of Montefusco. In support of her claims, the plaintiff alleged not only that Sweet's negative comments in reference to the plaintiff's employment applications with the Glastonbury and Enfield police departments were defamatory, but also that, during the course of her training with the Enfield police department, Sweet and Montefusco had communicated further disparaging remarks about the plaintiff to members of the Enfield police department. The jury returned a verdict in favor of the defendants. The plaintiff subsequently filed a motion to set aside the verdict, which motion the court denied. This appeal followed. Additional facts and procedural history will be set forth as necessary.

The plaintiff's first claim is that the trial court improperly concluded that Sweet's statements to the Glastonbury police department were subject to a qualified privilege. Specifically, the plaintiff contends that General Statutes §§ 31-128e5 and 31-128f6 of the Connecticut personnel files act, and the state's blacklisting statute; General Statutes § 31-51;7 preclude the application of a qualified privilege to statements made in the context of an employment reference. We disagree.

The following additional facts and procedural history are relevant to this claim of the plaintiff. At the close of evidence, the parties submitted proposed jury instructions and interrogatories to the court. Over the plaintiff's objection, the court instructed the jury that Sweet's statements to the Glastonbury police department were subject to a qualified privilege. The court charged the jury that "the statements made by [Sweet] to the investigators from Glastonbury . . . in the course of interviews conducted as part of background checks of the plaintiff . . . are protected by qualified privilege." The court then explained that qualified privilege could be overcome by establishing that Sweet acted "with malice," which the court broadly described as follows: "[Y]ou ordinarily think of malice as hatred, ill will, a desire to injure, or like feelings on the part of one person toward another. The meaning which we give malice in law includes such feelings, but also includes any improper or unjustifiable motives." The court added that malice also exists if Sweet acted without good faith or with knowledge of the falsity, or reckless disregard as to the truth, of the statements.8 The jury interrogatories reflected that charge.9 Although the jury concluded that Sweet had defamed the plaintiff, it did not find that Sweet's statements were made with malice. See footnote 9 of this opinion.

Whether a communication is made upon an occasion of privilege is a question of...

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