Sivek v. Baljevic

• Decision Date: 27 January 1999
• Docket Number: No. CV960391873S,CV960391873S
• Citation: 758 A.2d 473
• Court: Connecticut Superior Court
• Parties: (Conn.Super. 1999) FRANCES D. SIVEK v. JANE BALJEVIC

758 A.2d 473 (Conn.Super. 1999)

FRANCES D. SIVEK v. JANE BALJEVIC

No. CV960391873S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN, AT NEW HAVEN

January 27, 1999,^* Filed

John R. Williams, for the plaintiff.

Bercham, Moses & Devlin, the defendant.

Before: SILBERT, J.

OPINION:

Memorandum of decision on defendant's motion for summary judgment.

SILBERT, J.

The plaintiff, Frances Sivek, a history teacher at Foran High School in Milford, brought this complaint against her principal, the defendant, Jane Baljevic, under 42 U.S.C. 1983 based on an alleged infringement of her first amendment rights to free speech. The undisputed facts are that while in class, the plaintiff made certain Statements on the Subject of immigration that were criticized by the parents of one of her students. The defendant discussed the situation with the plaintiff and then wrote a memorandum, which was eventually placed in the principal's personal file, although not in the plaintiffs personnel file, criticizing the plaintiff for the way that she handled the parents' complaint. The defendant sought to have the plaintiff sign the memorandum to confirm her receipt and understanding of it, but the plaintiff refused to do so. The plaintiff has asked the defendant to destroy the memorandum, and the defendant has declined.

On the basis of these facts, the plaintiff claims in count one that she has suffered extreme emotional distress and that she has also suffered an infringement of her constitutional rights to freedom of speech and due process of law. The second count of the complaint repeats the allegations of the first and adds the claim that the defendant's actions were "malicious, extreme and outrageous."

The defendant argues on the basis of these undisputed facts that the entire episode complained of by the plaintiff was "nothing but a trivial employment matter not implicating the first amendment." The defendant thus contends that she is entitled to judgment as a matter of law.

Summary judgment must be granted 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. Practice Book 17-49; Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994); Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). A "material" fact is one that will make a difference in the outcome of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). In ruling on a summary judgment motion, the court merely determines whether an issue of fact exists, but does not try the issue if it does exist. Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975).

The purpose of summary judgment is to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970); Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 253 A.2d 22 (1968). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991).

Once the moving party has submitted evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983); Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). It is not enough 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 under Practice Book [ 17-45]." Bartha v. Waterbury House Wrecking Co., supra, 12. "'The movant has the burden of showing the non-existence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.'" Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F. Supp. 311, 314 (D. Conn. 1962); Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).

The party opposing a properly supported motion for summary judgment may not rest on mere allegation or denial but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), cited in Salamon v. Krusiewicz, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV870429008 (October 6, 1988) (Goldberg, J.) (14 Conn. Law Trib., No. 45, p. 31).

A review of the pleadings and materials submitted both in support of and in opposition to summary judgment reveals that in fact nowhere is it alleged that it was any "speech" on the part of the plaintiff that triggered the defendant's criticism of the plaintiff. Indeed, other than the reference to the parents' complaint that the plaintiff had "said something racial in their daughter's classroom relative to immigration," there has been absolutely no evidence as to the content of the "speech" in question. All of the undisputed facts confirm that the defendant's actions related only to the way in which the plaintiff handled the parents' complaint, and not to her conduct or statements in the classroom. It is absolutely clear that the plaintiff was not criticized because of what she said in the classroom, but rather for the manner in which she dealt with complaining parents.

The plaintiff argues, however, that by writing a memorandum concerning the incident and maintaining it in her own files, the defendant has chilled her exercise of free speech in the classroom in the future. To demonstrate how unreasonable this position is, it is worth printing the memorandum to the plaintiff from the defendant in its entirety: "I am writing this summary as a follow-up to our two meetings about the recent concerns of the parents of one of your students which they expressed both to you and in a letter to me.

"I want to be sure that you understand how important it is that all parents feel that they are able to approach you with any questions or concerns (about their student or about the way you conduct the class or about the course content). It is also important that all parents feel that, when they express concerns or ask questions, you listen, understand, and address their concerns. When any parents leave a conference feeling that you have not answered their questions fully or truthfully it is a problem for you, for me as principal, and for the whole school as we try to ensure that Foran and each Foran teacher is respected and has an excellent reputation in the community.

"In the future if you know of any parent who is upset about anything like this, please let me know immediately so we can take steps to resolve the situation in a positive way as quickly as possible. An example of how we can sometimes solve a problem together is the case last year when a parent called me wanting to move a student from your class and you called the parent and apparently reassured her so that she didn't pursue that request.

"Two other things I want to be sure you understand [are] the importance of responding quickly in situations such as these and the fact that changing the student's class does not resolve the main problem, which is the parent's perception that there is a problem and that they needed to request a change of class. In this case, since our efforts to resolve the problem were delayed because of your illness, I did call and suggest a change to honors level. However, I am very reluctant to let a student change in situations like these for fear that it will precipitate other requests, which would obviously be a problem for you, for me, for the school, and for the school district.

"Thank you for the time you spent meeting with me on this issue."

The memorandum contains the additional notation by the defendant, dated January 18, 1996, that "Mrs. Sivek acknowledges that she has a copy of this at home. This is the second copy. Mrs. Sivek will not sign that she is receiving this. She will get back to me with comments but won't say by when. J. Baljevic."

A teacher's right to freedom of speech is constitutionally protected; Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); but courts are reluctant to intervene in conflicts that arise in the dally operation of public schools unless they "directly and sharply implicate basic constitutional values." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228 (1968); East Hartford Education Association v. Board of Education, 562 F.2d 838, 856-57 (2d Cir. 1977) (en banc) (reversing panel majority). Local school authorities and school administrators have broad discretion to prescribe curriculum, set classroom standards, and evaluate the conduct of teachers "in light...