Piscottano v. Town of Somers

• Decision Date: 14 October 2005
• Docket Number: No. 3:01CV1311(CFD).,3:01CV1311(CFD).
• Citation: 396 F.Supp.2d 187
• Court: U.S. District Court — District of Connecticut
• Parties: Ann PISCOTTANO, Plaintiff v. TOWN OF SOMERS, Gordon J. Mello, Conrad McIntire, Jr. Defendants

396 F.Supp.2d 187

Ann PISCOTTANO, Plaintiff v. TOWN OF SOMERS, Gordon J. Mello, Conrad McIntire, Jr. Defendants

No. 3:01CV1311(CFD).

United States District Court, D. Connecticut.

October 14, 2005.

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Michael P. Farrell, West Haven, CT, for Plaintiff.

James P. Mooney, Kelly & Mooney, Fairfield, CT, Raymond J. Kelly, James J. Walker, Diana, Conti & Tunila, Manchester, CT, for Defendant.

RULING ON MOTION FOR SUMMARY JUDGMENT

DRONEY, District Judge.

The plaintiff, Ann Piscottano, brought this action against the Town of Somers, Connecticut ("Somers") and two former town employees, Gordon J. Mello and Conrad McIntire, Jr.¹ This case concerns a claim that Mello, as First Selectman of Somers, refused to allow Piscottano to address the Somers Board of Selectmen concerning the conduct of McIntire at a meeting of the Board of Selectmen on May 21, 2001.

In her one-count complaint, Piscottano alleges that the defendants: (1) violated her right to free speech and to seek redress of grievances under the First Amendment of the United States Constitution; and (2) violated her right to due process of law under the Fifth Amendment of the United States Constitution. By way of an amended complaint, Piscottano also alleges that the defendants violated various similar rights provided to her by the Connecticut Constitution² and added claims for violations of due process and equal protection under the Fourteenth Amendment of the United States Constitution.³ Pending is the defendants' motion for summary judgment. For the following reasons, that motion is granted in part and denied in part.

I Background⁴

Piscottano is a resident of Somers. Defendant Mello was the First Selectman for Somers, and, as such, presided over meetings of the three-member Board of Selectmen ("Board"). The other Selectmen were Richard Jackson and Phillips Roland.⁵ Defendant McIntire was the Recreation Director for Somers. The position of Recreation Director was covered by a collective bargaining agreement between Somers and the town's employees.

In 2001, Piscottano became concerned that McIntire was providing private tennis lessons and coaching during the time when she believed he should have been fulfilling his duties as Recreation Director. On May 10, 2001, Piscottano wrote a letter to Mello requesting that the topic of McIntire's alleged misconduct be placed on the agenda for the regularly scheduled May 21, 2001 Board meeting. In her letter to Mello, Piscottano also requested that the Board provide notice to McIntire of her proposed agenda item.

In his affidavit submitted in support of his motion for summary judgment, Mello states that, in response to Piscottano's letter, he reviewed McIntire's timecards, spoke to various individuals and interviewed McIntire. Mello further states that his investigation cleared McIntire of any wrongdoing, and that he sent Piscottano a letter indicating that her request would not be added to the agenda for the May 21, 2001 Board meeting.⁶ A copy of the written agenda for the May 21 Board meeting shows that Piscottano's proposed topic was not scheduled for discussion, but the agenda had two items denoted "audience comments." (Plaintiff's Local Rule 56(a)(2) statement, Ex. F).

On May 21, 2001, Piscottano attended the meeting of the Board. During the portion of the meeting devoted to audience comments, Piscottano attempted to speak on McIntire's alleged misconduct. Before Piscottano could reach the substance of her proposed comments, however, Mello cut her off, stating: "There will be no discussion, no dialogue, no talking, no comments about a person who belongs to a union." (Trans. of 5/21/2001 meeting, Plaintiff's Local Rule 56(a)(2) statement, Ex. B). After engaging in an animated discussion with Roland and Jackson about adding Piscottano to the agenda,⁷ Mello declared the meeting to be in recess.⁸ In his deposition, Mello described his purpose for recessing the meeting as follows:

A member of the Board of Selectmen wished to amend the agenda and to add an executive session to the agenda [concerning Piscottano's complaint about McIntire], which is illegal. You can't do that. Plus, it would have been in violation of the union contract. My ending the meeting and the inability for Ms. Piscottano to not be able to continue was not because of me. It was because a member of the Board of Selectmen wanted to violate state laws and procedural law and violate the union contract.

The meeting eventually resumed, and comments were heard from audience members on a variety of subjects, including comments from Piscottano concerning a topic unrelated to McIntire. At some point, after Roland expressed his displeasure with Mello's refusal to add Piscottano's topic concerning McIntire to the agenda, Mello again recessed the meeting. When the meeting resumed, a follow-up discussion ensued. Roland made another motion to add that topic to the agenda, and Mello once again recessed the meeting. When the meeting resumed for the fourth time, Piscottano sought clarification from Mello concerning his refusal to add her to the agenda. Mello stated:

We have to go into executive session. Here's the bottom line. This is a representative form of government. Legally we do not have to have any audience comments whatsoever at any of our meetings. The only time citizens are allowed to speak, legally, are at town meetings. So by allowing audience comment we don't have a problem with that, but I'm not going to get into a controversial dissertation with people because someone had the mistaken belief that someone has done something wrong. Okay. I will say this, that the situation has been thoroughly investigated, okay, and there is no problem. There will be a problem, okay, if people persist down this path as we have had to pay for in the past. Okay. So I am trying to save this town unnecessary expenditures, okay. And if someone has, or believe that they have found someone where there is some type of infraction or they have broken the law, then you by my guest you go see the state's attorneys general and you proceed from there. It's as simple as that.

Not satisfied with that explanation, Piscottano continued to ask for clarification of his decision. Eventually, Mello stated: "I am not pursuing it any further. I am the Chair of this meeting. I will tell you what's going to happen and what is not going to happen. Does anyone else have a question?" (Id., Ex. B.) For the third time, Roland made a motion to add Piscottano to the agenda, which was seconded by Jackson. Mello failed to act on Roland's motion, and recessed the meeting until 7:00 p.m. the following day. The record reveals that Piscottano never commented on McIntire's alleged misconduct at the May 21, 2001 Board meeting.⁹ Piscottano did not make any additional attempts to add the subject of McIntire's alleged misconduct to the agenda for a future Board meeting. (Defendants' Rule 56(a)(1) statement, ¶ 56; Plaintiff's Rule 56(a)(2) statement, ¶ 56).

On June 20, 2001, McIntire brought an action against Piscottano in the Superior Court of Connecticut, concerning, in part, this sequence of events, setting forth state claims for: (1) defamation; (2) "false light"; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress. That action remains pending in the Superior Court.

On July 11, 2001, Piscottano brought the instant action in this Court. Pending is the defendants' motion for summary judgment.

II Summary Judgment Standard

In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir.2000). The burden of showing that no genuine factual dispute exists rests upon the moving party. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.2000) (citing Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994)). Once the moving party has met its burden, in order to defeat the motion the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 255, 106 S.Ct. 2505, and present such evidence as would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000).

In assessing the record, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Graham, 230 F.3d at 38. "This remedy that precludes a trial is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton, 202 F.3d at 134. "When reasonable persons, applying the proper legal standards, could differ in their responses to the question" raised on the basis of the evidence presented, the question must be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000).

III Discussion

Piscottano's claims are set forth pursuant to 42 U.S.C. § 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

"Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere."...