Morgan v. Bubar, 28151.

CourtAppellate Court of Connecticut
Writing for the CourtBeach
Citation975 A.2d 59,115 Conn.App. 603
PartiesSusan MORGAN v. Ruthe BUBAR et al.
Docket NumberNo. 28151.,28151.
Decision Date14 July 2009

Nancy A. Brouillet, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chapple, assistant attorney general, for the appellants (defendants).

Andrew R. Cellemme, New London, for the appellee (plaintiff).



At times, principles conflict. Here, the questions presented are whether a right to pursue a defamation action is subordinate to the right to complain through appropriate administrative channels and whether state employees may be sued for damages for failing to investigate such complaints. The defendants, Ruthe Bubar Robert Carini and Lora A. Castronova, appeal from the trial court's denial of their motion for summary judgment. The defendants claim that the court improperly denied their motion for summary judgment, which claimed (1) that Bubar was entitled to absolute immunity and (2) that Carini and Castronova were entitled to qualified immunity. We agree and reverse the judgment of the trial court.

The following facts were presented to the court by way of the pleadings and documents accompanying the motion for summary judgment. They are not in dispute for the purpose of our resolution of the defendants' appeal. At relevant times, the plaintiff, Susan Morgan, and the defendants were employees of the department of correction and were assigned to the York Correctional Institution in Niantic. The plaintiff instituted this action against the defendants by way of a four count complaint. Counts one and two of the amended complaint alleged claims sounding in defamation against Bubar. Both of the allegedly defamatory statements in this case involve accusations by Bubar that the plaintiff choked her at some point in early 1999. Count one alleged defamation arising out of statements by Bubar during a meeting on August 10, 2000, attended by an affirmative action officer, the plaintiff and several coworkers. Count two alleged defamation arising out of a memorandum dated August 8, 2000, written by Bubar to Castronova, in which Bubar reiterated an earlier statement that she had made to Castronova regarding the alleged choking incident.

Counts three and four of the amended complaint alleged deprivations of the plaintiff's rights to due process and equal protection under the fourteenth amendment to the United States constitution and were brought pursuant to 42 U.S.C. § 1983. They were brought against Carini and Castronova, respectively. These two counts alleged that Carini's and Castronova's failure to investigate Bubar's choking allegations, as required by a state executive order on workplace violence and various department of correction directives, deprived the plaintiff of her due process and equal protection rights because an investigation would have refuted the allegations and "cleared the plaintiff's name...." Counts three and four also alleged that the failure to investigate resulted in employment actions that were adverse to the plaintiff.

The defendants moved for summary judgment on the grounds that, inter alia, Bubar's allegedly defamatory statements are entitled to absolute immunity because they were made in the course of an administrative affirmative action complaint and that Carini and Castronova are entitled to qualified immunity as public officials because they allegedly violated no clearly defined constitutionally protected rights of the plaintiff. The court denied the defendants' motion, and the defendants moved for an articulation of the court's ruling. In its articulation, the court rejected the defendants' absolute immunity argument on the ground that "[t]he evidence submitted by the defendants ... does not meet their burden of showing that there is no genuine issue of material fact as to whether the August 10, 2000 meeting was part of an affirmative action investigation or complaint." The court also rejected the defendants' qualified immunity argument on the ground that "genuine issues of material fact exist as to the reasonableness of [Castronova's and Carini's] conduct." Additional facts will be set forth as necessary.

We begin by setting forth the applicable standard of review.1 "Summary judgment shall be rendered forthwith if the pleadings affidavits and 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.... The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.... When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003).

The determination of whether an affirmative action investigation constitutes a quasi-judicial proceeding is a question of law over which our review is plenary. Whether particular conduct is by its nature part of or in furtherance of a quasi-judicial proceeding for the purposes of triggering absolute immunity, however, depends on the particular facts and circumstances of each case. See Craig v. Stafford Construction, Inc., 271 Conn. 78, 83-84, 856 A.2d 372 (2004). "Whether an official is entitled to qualified immunity presents a question of law that must be resolved de novo on appeal." Fleming v. Bridgeport, 284 Conn. 502, 518, 935 A.2d 126 (2007).


As a preliminary matter, we must address the issue of whether the denial of the defendants' motion for summary judgment is a final judgment from which they immediately may appeal.2 We conclude that the court's rulings on the portions of the defendants' appeal that pertain to their claims of absolute immunity and qualified immunity may be addressed by this court.3 "As a general rule, an interlocutory ruling may not be appealed pending the final disposition of a case." Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 784, 865 A.2d 1163 (2005). A denial of a motion for summary judgment, however, "which had been filed on the basis of colorable claim of absolute immunity, constitutes an appealable final judgment." Id., at 787, 865 A.2d 1163. Like sovereign immunity, the doctrine of absolute immunity "protects against suit as well as liability—in effect, against having to litigate at all." Id., at 786, 865 A.2d 1163. In the present case, the defendants' claim of absolute immunity is at least colorable because, most apparently, our case law consistently has recognized such immunity in similar factual settings. See, e.g., Craig v. Stafford Construction, Inc., supra, 271 Conn. at 88-96, 856 A.2d 372; Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992); Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986). The defendants' claim that Bubar is entitled to absolute immunity is properly before this court.

We next address whether the court's ruling with respect to the defendants' qualified immunity claims constitutes a reviewable final judgment. In counts three and four of the amended complaint, the plaintiff alleged that Carini and Castronova violated her constitutional rights and thereby violated 42 U.S.C. § 1983. Although state courts have concurrent jurisdiction over claims brought under § 1983, state courts must apply federal law in determining whether a defendant is immune from prosecution. See Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Sullins v. Rodriguez, 281 Conn. 128, 136, 913 A.2d 415 (2007); Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994) ("[A] claim for qualified immunity from liability for damages under § 1983 raises a question of federal law ... and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials." [Citations omitted; internal quotation marks omitted.]). In considering whether a district court's denial of a claim of qualified immunity was an appealable final decision under federal law, the United States Supreme Court directly addressed the question of whether a finding of qualified immunity in the context of a § 1983 action compels immunity from suit as well as from liability. In Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the court stated that "[t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." In this state, consistent with federal law, an otherwise interlocutory judgment may immediately be appealable "where the order or action so concludes the rights of the parties that further proceedings cannot affect them." State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The defendants' claim that the court improperly denied the motion for summary judgment as to whether Carini and Castronova are entitled to qualified immunity is properly before this court.


We turn now to Bubar's absolute immunity claim. The dispositive issues are whether the setting in which her statements were made was a quasi-judicial proceeding and, if so, whether the alleged defamatory statements were made in the course of the proceeding and related to the subject matter of that proceeding. Count one concerns allegedly defamatory statements made by Bubar in a meeting on August 10, 2000. Count two concerns statements made by Bubar in a memorandum to Castronova that was dated August 8, 2000. The memorandum requested an affirmative action proceeding, and the August 10 meeting was, according to Bubar, part of the affirmative action process. Bubar argues that the...

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