263 Conn. 639 | Conn. | 2003
Opinion
The defendants, Mark Richens, Kenneth J. Robert, Robert Carterud and the department of transportation of the state of Connecticut (department), appeal
The plaintiff is a former employee of the department whom the defendants had transferred and demoted after he had cooperated with the state police in a criminal investigation of several fellow employees, including Carterud. The plaintiff brought this action under 42 U.S.C. § 1983 and § 31-51q, alleging that the defendants,
The jury reasonably could have found the following facts. Prior to the events giving rise to this action, the plaintiff had been employed as a carpentry supervisor at Bradley International Airport (airport), a state-owned and operated facility. In late 1997, the plaintiff was relocated to a new office within terminal B of the airport. The plaintiffs new office abutted a public area of terminal B, including a baggage claim and a men’s bathroom. The office was separated from that public area by a single locked door, through which the plaintiff, and only the plaintiff, was authorized to enter his office. The opposite side of the plaintiffs office abutted a workshop that led to a high security area of the airport, known as the “airport operations area” (operations
The operations area is a location where commercial airline jets refuel and load and unload baggage for national and international flights. This is a highly secured area of the airport because commercial airline jets are vulnerable targets for acts of terrorism. All employees authorized to work in or around the operations area, including the plaintiff, received specialized security training and were regularly tested in security protocol. The employees who worked in the operations area were responsible for observing the grounds and reporting the presence of any suspicious packages or persons. In addition, employees were required to prevent other persons from following them through secured doors. Federal Aviation Administration agents and plainclothes police officers posing as unauthorized persons would test the employees’ compliance with these security rules by attempting to follow employees through secured doors or loitering about the operations area, and observing the employees’ reactions. These security measures reflected the importance of maintaining a high level of security in the operations area of the airport, so as to ensure that no malfeasance would place a flight at risk.
In summary, controlling access to the plaintiffs office was critical to airport security and general public safety for two major reasons. First, the plaintiffs office was a potential conduit from a public area of the airport, near the baggage claim of terminal B, to a highly secure area of the airport, the operations area, where commercial airliners refueled and loaded and unloaded baggage. Second, the plaintiffs office contained the key bank,
The plaintiff was the only person who was issued a key to his office. If another employee needed a key from the key bank, the proper procedure was to contact the plaintiff, who would then consult Fazzino, who would then determine whether to issue such a key through the plaintiff. The proper procedure was not, by contrast, for someone, even another employee, simply to enter the plaintiffs office and open the key bank.
Soon after moving into his new office, the plaintiff suspected that someone had been entering his office, because certain items were out of order or missing. The plaintiff examined the two doors to his office and noticed marks near the handles and latches of the doors and along the doorjambs. This indicated to the plaintiff, a skilled carpentry supervisor, that someone might have gained entry to the office by prying the doors open. The plaintiff reinforced the doors with striker plates in order to prevent anyone from prying the doors open again. In addition, the plaintiff painted over the existing piy marks in order to determine whether someone was currently attempting to gain entry to the office forcibly.
Within two weeks of taking these measures, the plaintiff noticed fresh pry marks on both of the doors to his office. The plaintiff was unsure, however, whether anyone had gained entiy into his office. In order to determine whether someone was, in fact, breaking into his office, and, if so, to determine which of the doors was being opened, the plaintiff began to set objects
The objects placed against the doors remained undisturbed for several weeks. On Friday evening, December 5, 1997, the plaintiff locked his office and placed the objects against the doors, in accordance with his usual routine. When the plaintiff returned to his office on the following Monday, he noticed that the plastic object that he had placed on the hinge of one of the doors had fallen off, indicating that someone had broken into his office over the weekend. The plaintiff immediately noticed new pry marks on the door, the wall and the doorjamb, which had been tom away from the door. Upon entering his office, the plaintiff checked the other door, leading to the operations area, and noticed that the metal object that he had placed against that door had fallen, indicating that someone had breached that door as well.
The plaintiff was extremely concerned about the airport’s security. This was because both the key bank and the operations area, where flights were vulnerable to attack or sabotage while loading, unloading and fueling, had been breached by the person or persons who had broken into his office.
The marks that the plaintiff previously had noticed on the other side of the door to the operations area indicated to the plaintiff that an inside employee might be responsible. Not knowing whom to tmst, the plaintiff chose not report the incident to Carterud and Richens, who were his immediate supervisors. Instead, the plaintiff reported the incident directly to Robert, who then held the title of airport administrator, which was the highest managerial position at the airport. As he testi
The state police maintained a station at the airport, in the same building as the plaintiffs office. The plaintiff and Robert went to the station and reported the incident to Sergeant Brian Kennedy. The plaintiff gave substantially the same statement to the police that he had given to Robert. An officer then accompanied the plaintiff and Robert to the plaintiffs office to investigate. After corroborating the physical signs of the break-in, they returned to the station, where the plaintiff signed a written statement describing the factual circumstances of the incident.
The police decided that the next logical step would be video surveillance of the plaintiffs office. Robert
The police installed a hidden video camera in the plaintiffs office. Each day, they replaced and reviewed a twenty-four hour videotape to determine whether it revealed any activity. The police instructed the plaintiff to tell no one about the investigation, explaining that there would be a greater risk that the person or persons responsible would learn of the investigation, and avoid future detection and responsibility for their acts.
For several weeks, the video surveillance revealed no activity in the plaintiffs office. In late January, 1998, the plaiutlff took several days of sick leave to recover from a medical procedure. Before leaving, the plaintiff surrendered one of the keys to his office to Carterud, in order to allow access to the key bank in the event that the security division were to authorize the issuance of a key to an employee.
The video surveillance revealed unusual activity in the plaintiffs office during Ms leave of absence. People were entering the plaintiffs office with paper bags and searching Ms desk, Ms file cabinet and the key bank. As they searched the plaintiffs belongings and the key bank, these people removed several items, placmg them in the paper bags. The police attempted to contact the pla.iutiff, but learned that he was away on sick leave. Upon Ms return, the police asked the plaintiff to view a videotape of the activity in Ms office and to identify any person that he recogmzed. The police also asked the plaintiff to explain, if he could, why the people depicted on the tape were engaged in the activities displayed. The plaintiff recogmzed all of the persons entering Ms office as Ms fellow employees, mcluding Carterud, but the plaintiff was unable fully to explain what they were doing, or why. The plaintiff did offer the suggestion that they might have been removing sup
The police asked the plaintiff to examine his office. Upon entering, the plaintiff immediately noticed that someone had “gone through” his entire office, including the key bank. The key bank had been left unlocked by the person or persons who had entered it. The police asked the plaintiff to sign another written statement, containing each of these facts, and the plaintiff complied. In that statement, the plaintiff stressed his concerns about maintaining the security of the key bank, to safeguard airport security.
The police acted quickly on the information and located each of the persons identified on the videotape and questioned them about their activities in the plaintiffs office. The police questioned Carterud at his home on Sunday. Carterud was angered by the encounter. Carterud directed his anger at the plaintiff, and speculated that the plaintiff had been “setting [him] up . . . .” When Richens learned of Carterud’s anger toward the plaintiff, he became angered as well because he was “left out of the loop” and surprised by the investigation. Richens and Carterud soon met and planned to take action against the plaintiff.
Richens and Carterud then spoke with Robert and obtained his direct authorization to terminate all of the
The defendants removed all of the plaintiffs powers, privileges and responsibilities. They confiscated all of his equipment, tools and supplies, including his truck, telephone and keys to various areas of the airport. The defendants terminated the plaintiffs budget for administering projects, and ordered the supply shop to refuse to honor any of the plaintiffs requests for supplies. For two months after the defendants’ actions, the plaintiff essentially had no job responsibilities whatsoever, and he was left to wander the airport aimlessly. Despite the defendants’ purported concern for violence flowing from contact with employees in the area, the defendants did not change the plaintiffs work location. Thus, the plaintiff continued to be in regular contact with angry, and potentially violent employees. Additionally, the plaintiff endured degradation at the hands of other employees, who laughed or smirked at him in passing.
After this two month period, Robert reassigned the plaintiff to assist a handyman. Robert asked the plaintiff if he would accept such a reassignment. When the plaintiff refused, Robert nonetheless transferred him to assist the handyman. In this capacity, the plaintiff traveled between other, smaller airports owned by the state
The menial jobs in which the plaintiff assisted were so trivial that personnel at the remote airports found his presence confusing, and frequently asked the plaintiff embarrassing questions, such as: “[W]hat did you do to deserve to be out here with [the handyman].” The area personnel found the plaintiffs presence to be confusing because there was insufficient work for the handyman alone, and neither the handyman nor the plaintiff was provided with a budget to undertake more projects.
Ultimately, Richens and Carterud decided to transfer the plaintiff back to the airport after discovering that there was insufficient funding for the assistant handyman job. The defendants
The superintendent complained to the defendants regularly about the plaintiffs inconvenient location in his office. No one had ever been placed within the superintendent’s office before and, based on the limited space, the placement was inappropriate. After one month of frequent complaints, the defendants relented, and moved the plaintiffs workplace into a storage closet, filled with carts, supplies and garbage, which was piled onto the floor. The storage closet was located off of the carpenter’s workshop—the very workshop that held the ostensibly hostile employees that the defendants had claimed should not be in contact with the plaintiff. The plaintiff was forced, due to the configuration of the office and the key access he was given, to access his office by exiting the building and reentering through the workshop, resulting in frequent contact with the hostile employees. The plaintiff objected to this relocation, but the superintendent stated that he had no ability to prevent it because “[a] decision was made and that is where [he] was going to go.”
After numerous requests, the superintendent finally managed to procure for the plaintiff a key to an inside corridor leading to the supply closet where he was working. Despite the convenience that the key would supply, the plaintiff refused to accept it, because the key was stamped with the following code: “ASS 1.” Based on the encoding system, this stamp was not a proper code. When the superintendent and the plaintiff
The plaintiffs duties changed under the supervision of the superintendent. The superintendent placed the plaintiff in charge of hand delivering toilet paper to all areas of the airport, including locations where the plaintiffs purportedly hostile former employees might be located, and might be prone to continue to humiliate him. The delivery duties assigned to the plaintiff had been assigned previously only to inmates from Somers correctional institution, whom the airport employed while they remained in custody for criminal convictions.
Despite the turbulent history of the relationship between the superintendent and the plaintiff, the superintendent experienced a crisis of conscience concerning the plaintiffs treatment at the hands of the defendants. After their first meeting following the reassignment, the superintendent took the plaintiff aside and explained the circumstances to him. The superintendent told the plaintiff that the defendants had confessed to him that they sought to “get rid of’ the plaintiff and that they thought that, based on the superintendent’s personal conflict with the plaintiff, the superintendent would be the ideal person to degrade and goad the plaintiff, causing him to lose control and react adversely to his working conditions, thereby manufacturing cause to terminate him. The superintendent did not approve of the defendants’ actions and stressed to the plaintiff that he had “no part in [it] . . . .” The
Again, the plaintiff vigorously objected to reassignment, but the defendants took no action to restore his privileges and responsibilities as a carpentry supervisor. Finally, the plaintiff resorted to filing grievances with the union to challenge his involuntary transfers. The grievances were sustained in short opinions
Throughout the entire relevant period, the defendants took no action legitimately to alter the plaintiffs official designation as a carpentry supervisor, because such action would have required formalized reasoning based upon an evaluation of the plaintiffs abilities as a supervisor. The plaintiffs written performance evaluations as a supervisor, authored by the defendants, were consistently superlative. The authors of the grievance opinions determined that the defendants “essentially gut[ted]” the plaintiff s job without justification, whatever the title he still officially held. Even in the face of authoritative orders from the state labor commissioner to restore the plaintiff to his official position, however, the defendants continued to refuse to do so.
The defendants continued to take no action to address the asserted potential violence of the other employees, despite requests by the plaintiff, and despite the defendants’ assertion that potential violence was the primary concern motivating their actions against
The plaintiff then filed this action for damages under § 31-51q and 42 U.S.C. § 1983, alleging that the defendants, acting under color of law, had deprived him of his rights to freedom of speech and equal protection. See footnotes 2 and 3 of this opinion for the text of 42 U.S.C. § 1983 and § 31-51q. At the close of all the evidence, the defendants moved for a directed verdict in their favor and the trial court denied that motion in an oral ruling.
Prior to the jury’s deliberations, the plaintiff moved to have all of the factual issues related to the § 31-51q count resolved by the jury, rather than by the court. The trial court orally denied that motion, indicating that it would decide the issues involved in the § 31-51q count.
The defendants moved for remittitur and to set aside the verdict, on essentially the same grounds raised in their motion for a directed verdict. The trial court denied those motions and rendered judgment in favor of the plaintiff on: (1) the 42 U.S.C. § 1983 count, in conformity with the jury verdict and interrogatories; and (2) the § 31-51q count.
I
The defendants first claim that the plaintiff failed to establish a violation of his right to freedom of speech under the first amendment to the United States constitution and, therefore, that the trial court improperly failed to render judgment for them. The defendants do not dispute the legal proposition that, as agents of a state government, they may not retaliate against an employee, such as the plaintiff, for exercising his right to freedom of speech under the first amendment. Cf. Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684,
Before addressing these arguments, however, we set forth the applicable standard of review. Ordinarily, a jury or trial court’s findings of fact are not to be overturned on appeal unless they are clearly erroneous. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997). Thus, we ordinarily review the findings of fact made by the jury, in its verdict and specific interrogatories, and by the trial court in its judgment, for clear error.
In certain first amendment contexts, however, appellate courts are bound to apply a de novo standard of review. For example, in the context of government employee speech, such as the present case, the “inquiry into the protected status of . . . [that] speech is one of law, not fact.” Connick v. Myers, supra, 461 U.S. 148 n.7. As such, an appellate court is “compelled to examine for [itself] the [government employee’s] statements in issue and the circumstances under which they
We note that in Brown v. K.N.D. Corp., 205 Conn. 8, 14, 529 A.2d 1292 (1987), we determined that the independent review standard did not apply where “no penalty [had been] imposed for the exercise of first amendment rights . . . .” We reasoned that “an appellate court should have no authority under the guise of independent review to upset [such a] determination.” Id. Brown involved a claim of “actual malice” in a libel action, not a claim by a government employee that he
A
First, the defendants claim that the trial court should have determined that the plaintiffs speech fairly could not be characterized as constituting speech on a matter of public concern, which is a prerequisite to claims by government employees that their rights to free speech have been infringed by their government employers. See id., 142. Specifically, the defendants argue that the plaintiffs speech exclusively addressed the security of his own personal property, namely, his work space and several personal items that he suspected had been taken by someone who had broken into his office.
It is by now well established that a state government may not compel individuals to relinquish their first amendment rights as a condition to obtaining government employment. Harman v. New York, 140 F.3d 111, 117 (2d Cir. 1998); see also Pickering v. Board of Education, supra, 391 U.S. 568 (court had “unequivocally rejected” that legal proposition in “numerous prior decisions”). The prevailing view during the early 1950s was exactly the reverse. Under that earlier view, government employment was seen as a privilege, rather than a right, and conditions to employment that interfered with employees’ freedom of speech generally were held to be constitutional because the employees “are at liberty to retain their beliefs and associations and go elsewhere.” Adler v. Board of Education, 342 U.S. 485, 492, 72 S. Ct. 380, 96 L. Ed. 517 (1952). Justice Holmes advanced that view in an early case written for the Supreme Judicial Court of Massachusetts. See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892) (“[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman”). With the abandonment of the “rights” and “privileges” distinction as a constitutional
In Pickering v. Board of Education, supra, 391 U.S. 568, however, the court also recognized that a government “has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” The court then set forth a general principle governing the constitutionality of government restrictions on the speech of its employees: in evaluating the constitutionality of government restrictions on an employee’s speech, a court must “arrive at a balance between 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 . . . .’’Id.
In Connick v. Myers, supra, 461 U.S. 150, the court added a modification to the general “balancing” test promulgated in Pickering. Under Connick, if a government employee’s speech “cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary ... to scrutinize the reasons for [his or] her discharge.” Id., 146. The court reasoned that if an employee’s speech addresses matters of exclusively private concern, the government interest in “latitude [to manage] their offices, without intrusive oversight by the judiciary”; id.; would outweigh the first amendment interests in the speech, “absent the most unusual circumstances . . . .’’Id., 147.
Our independent review of the record leads us to the conclusion that the plaintiffs speech fairly can be considered to relate to a matter of political and social concern to the community. The record makes clear that, when the plaintiff spoke to the police, he was concerned about the security of the airport because both the key bank and the operations area had become exposed to someone who had broken into his office. After September 11, 2001, when the trial in this case took place, the concept that airport security was a matter of political and social concern to the community could not be seriously questioned. The evidence, including part 107 of the Federal Aviation Regulations,
Indeed, the defendants do not argue that airport security is a matter of exclusively private concern. Instead, the defendants challenge the finding that the plaintiff was motivated by concern for airport security. The gravamen of the defendants’ argument is that, in his first written statement to the police, the plaintiff reported, among other things, that personal items were missing
First, in the very statement that the defendants cite, the plaintiff did, in fact, mention his concerns about the security of the key bank, which held dozens of high security keys, which, if taken, would allow any person who took them access to several secure areas of the airport. These areas included the airport personnel offices, the security offices and the operations area. Unauthorized access to these keys would have posed serious risks both to airport security and public safety. In recognition of these dangers, the airport security division promulgated strict rules governing access to the key bank and key issuance. Second, the statement mentions that both doors had been breached by an intruder: the door to the public area, and the door that led to the highly secure operations area. As discussed previously, maintaining security in the operations area is critical to airport and public safety because commercial jets are located there, and vulnerable to malfeasance as they prepare for flight. Third, in a later statement, the plaintiff explicitly stated his concern for airport safety after realizing that the key bank had been breached by a person who had entered his office.
B
Next, the defendants claim that, even if the plaintiffs speech fairly could be characterized as constituting speech on a matter of public concern, their legitimate employment interest in taking action against the plaintiff in reaction to his speech outweighed the first amendment interest in his speech. See Pickering v. Board of Education, supra, 391 U.S. 568. We disagree.
The defendants do not dispute that they were substantially motivated by the plaintiffs speech when they took action against him. Therefore, we proceed under Pickering v. Board of Education, supra, 391 U.S. 568, to “balance . . . the interests of the [plaintiff], 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” to
We begin with the first amendment interests associated with the plaintiffs speech. As discussed previously, the plaintiffs speech concerned a breakdown in security at the airport. Someone had pried open a locked door that prevented the public from entering the vulnerable operations area of the airport. Furthermore, someone had broken into the airport key bank, which held dozens of keys to several secure areas of the airport, including the security offices, the airport personnel offices, and the operations area. It is difficult to overestimate the political and social significance of this governmental security failure, particularly in light of the terrorist attacks on September 11, 2001. The first amendment interest in encouraging, rather than suppressing, the plaintiffs speech about this breakdown in airport security is great.
By contrast, the state’s interest in “promoting the efficiency of [its] services” by taking action against the plaintiff for his speech about a critical breach of airport security, is minimal. Pickering v. Board of Education, supra, 391 U.S. 568. The defendants argue that they had an important interest in preventing disruption in the workplace—by demoting and removing the plaintiff— because other employees harbored intense hostility toward the plaintiff as a result of his speech. The record demonstrates, however, that this concern for disruption was pretexfual
The pretextual, unreasonable nature of the defendants’ concern for disruption or violence is underscored
n
Next, the defendants claim that there was insufficient evidence to support the jury’s determination that the plaintiffs right to equal protection had been violated. Specifically, the defendants contend that the “jury’s finding [concerning the equal protection counts] is clearly erroneous because the record contains no evidence regarding similarly situated employees, a necessary element to proving an equal protection claim.” We disagree.
Ill
Next, we address the defendants’ claim that the trial court improperly found that they were not entitled to qualified immunity in its ruling on their motion for a directed verdict. The defendants argue that “reasonable persons in [their] situation would not have known that the plaintiffs statements were protected by the first amendment,” or that their actions against the plaintiff “would violate his first amendment or equal protection rights.” More specifically, the defendants argue that because their actions against the plaintiff were motivated by a desire to “quell the turmoil in the workplace,” rather than to retaliate against the plaintiff for his speech, and because they did not know that the plaintiffs speech involved airport security, reasonable persons in their position could not have known that their actions were unconstitutional. Thus, the defendants’ contentions rest on those two factual premises. We disagree with the defendants’ argument.
It is well settled that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutoiy or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555, 565 [98 S. Ct. 855,55 L. Ed. 2d 24] (1978); Wood v. Strickland, [420 U.S. 308,322,95 S. Ct. 992,43 L. Ed. 2d 214 (1975)].” Harlow v. Fitzgerald, 457 U.S. 800, 818,102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). The defendants’ factual premises concerning their actions, however, are simply unsupported by the record. First, as discussed previously in this opinion, the jury reasonably found that the defendants demoted and reassigned the plaintiff in
IV
Finally, the defendants argue that the jury’s award of punitive damages against Robert was both unsupported by evidence of his “personal involvement” in the action taken against the plaintiff, and inconsistent with the jury’s determination that Robert was not hable for compensatory damages. We decline to address these claims because they were not raised before the trial court. See footnote 16 of this opinion.
The judgment is affirmed.
In this opinion the other justices concurred.
The defendants appealed to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Section 1983 of title 42 of the United States Code provides in relevant 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 . . . .”
General Statutes § 31-51q provides: “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship
The defendants also claim on appeal that the trial court improperly failed to make a necessary subordinate finding when it determined that the department had violated § 31-51q. We do not address this claim because it is not justiciable. “Justiciability requires [inter alia] . . . that the determination of the controversy will result in practical relief to the complainant.” (Citations omitted.) State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982). All of the damages, costs and attorney’s fees awarded in the trial court judgment at issue in this appeal were awarded pursuant to 42 U.S.C. § 1983. Although the court found the “issues for the plaintiff” on the count of the complaint alleging a violation of § 31-51q, the court made no award of damages pursuant to that finding. Thus, even if the court’s findings under § 31-51q were improper, we could not provide any practical relief for the department, which was the only defendant implicated in that count.
The defendants do not dispute that their alleged conduct in this action was under color of state law. See Ex parte Virginia, 100 U.S. 339, 347, 25 L. Ed. 676 (1879) (fourteenth amendment applies to any state agent exerting power of state). “Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition [of the fourteenth amendment]; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.” Id.
As we explain later in this opinion, however, the parties agreed that the question of the protected status of the plaintiffs speech was committed to the trial court.
Even prior to the events of September 11, 2001, the notion that commercial airliners were vulnerable to acts of terrorism was a matter of common sense. “[J]uries are not required to leave common sense at the courtroom door.” State v. Maxwell, 29 Conn. App. 704, 710, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509 U.S. 930, 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993), citing State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). “Jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the
The plaintiff realized that someone might have pried the doors open long before he had arrived, perhaps for legitimate reasons. Repainting the doorways was an effective means for determining whether someone had been prying the doors open since he had arrived because a fresh coat of paint would be marred by, and thus reveal, a successive effort to pry the doors open.
When pressed for an explanation as to why the state was removing his telephone, the repairman replied: “Frank, I am just doing what I am told.”
As a result, personnel at the small, remote airports often assumed that the plaintiff was sent to administer a new budget.
By this time, Robert had been transferred to a different position. Therefore, for convenience, from this point in time forward in the recitation of the facts we refer to Richens and Carterud as the defendants.
The plaintiff and the superintendent had clashed previously when the superintendent had begun ordering the plaintiff to perform his carpentry work differently and attempted to begin supervising the plaintiff’s employees in their work. Because the plaintiff was the carpentry supervisor, and the superintendent was not in command of the carpentry unit, the plaintiff told the superintendent to cease attempting to take over those responsibilities.
Carterad stated that “ASS” innocently stood for “Airport Storage Shop.” The plaintiff was familiar with the proper encoding system because he previously had been in charge of handling keys for the airport. When the plaintiff suggested that they talk to Fazzino, the security division person in charge of issuing keys, to corroborate the innocent explanation, Carterad replied: “Fuck Lisa Fazzino,” and admitted that she had no knowledge of the key.
The plaintiffs ultimate assignment to work for the superintendent, with no further supervisory authority, was determined to violate article 15 of the applicable union contract because the plaintiffs “job classification [had], as its core, supervisory responsibilities.” The hearing officer found that the “remov[al] [of] this portion of the [plaintiffs] duties essentially guts the job.”
That ruling is not before us in this appeal.
The jury’s responses to the specific interrogatories may be summarized as follows:
I. VIOLATION OF 42 U.S.C. § 1983, FIRST AMENDMENT
1. The plaintiffs speech was motivated by matters of both public and personal concern.
2. The defendants proved by a fair preponderance of tire evidence that they reasonably believed that the plaintiffs speech was or was likely to be disruptive of the operation of the airport.
3. The plaintiff proved by a fair preponderance of the evidence that the plaintiffs speech, and not the actual or likely disruption, was a substantial motivating factor in the defendants treatment of the plaintiff.
4. Richens and Carterud, but not Robert, were substantially motivated by the plaintiffs speech.
5. The defendants acted with malicious intent to violate the plaintiffs rights or unlawfully injure him or with a callous or reckless disregard of his rights.
6. Richens and Carterud, but not Robert, were so motivated.
II. VIOLATION OF 42 U.S.C. § 1983, EQUAL PROTECTION
7. Each of the defendants violated the plaintiffs right to equal protection of the laws by subjecting him to treatment different than other similarly situated department employees.
8. In subjecting the plaintiff to such treatment, each of the defendants acted with malicious intent to violate the plaintiffs rights or unlawfully injure him or with a callous or reckless disregard of his rights.
9. Richens, Carterud and Robert were so motivated.
III. TOTAL AWARD
10. Fair, just and reasonable compensatory damages:
A. $75,000 against Richens.
B. $75,000 against Carterud.
C. $0 against Robert.
Total award: $150,000 in compensatory damages.
11. Punitive Damages:
A. $50,000 against Richens.
B. $50,000 against Carterud.
Total award: $150,000 in punitive damages.
We note that there is an apparent inconsistency inherent in the jury’s failure to award any compensatory damages against Robert, while awarding punitive damages against him. The defendants raise this inconsistency as their final claim in this appeal. See part IV of this opinion.
“Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.” Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d 955 (2000).
We note that, on appeal, the defendants also argue that, as a matter of law, the plaintiffs speech did not involve a matter of public concern because it was delivered in the course of his duties as an employee. Cf. Volberg v. Pataki, 917 F. Sup. 909,916-17 (N.D.N.Y.) (“ ‘at-will high-level policy-making employee’ ” speech “in the course of her employment” unprotected under first amendment), aff'd, 112 F.3d 507 (2d Cir. 1996), cert. denied, 520 U.S. 1119, 117 S. Ct. 1252, 137 L. Ed. 2d 333 (1997). As the plaintiff correctly observes, the defendants never raised that legal argument before the trial court. Therefore, we decline to address it. Cf. Carrol v. Allstate Ins. Co., 262 Conn. 433, 450-51 n.13, 815 A.2d 119 (2003) (“[O]ur normal practice [is to decide] an appeal on the same basis on which it was tried in the trial court. See State v. Bell, 188 Conn. 406, 413, 450 A.2d 356 [1982].”).
We are cognizant that, as a part of the entire context of the plaintiffs speech, his employment duties are relevant to the question of whether his
Part 107 of the Federal Aviation Regulations require the approval and implementation of extensive security systems and procedures. These regulations are too voluminous to reproduce in this opinion.
In his statement to the police on February 7, 1998, the plaintiff stated that, upon returning to his office from sick leave, he observed that “[t]he key bank on the wall had been entered [and was] still unlocked. This bank holds [the] high security keys for the entire airport . . . .”
The jury also specifically found that the potential disruption flowing from the plaintiffs speech was not a substantial motivating factor in the defendants’ decision to take action against the plaintiff.
Carterud testified that he felt violated by the police investigation into his unexplained entry into the plaintiffs office and the key bank. He was particularly angered when the police arrived at his house on a Sunday and interrogated him in his kitchen. He stated, “I don’t think [the police] should have been walking around my house and maybe I am wrong . . . but that was probably what upset me . . . .” Carterud also explained that his anger stemmed from the thought that the plaintiff had been “setting [him] up
The equal protection clause of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
In their reply brief, the defendants assert that “the issue of the lack of personal involvement of . . . Robert to justify an award of punitive damages was raised [in] the defendants’ motion for remittitur, filed on October 29, 2001.” The defendants attempt to support this assertion by citing their memorandum of law in support of their motion for remittitur. Upon reviewing the entire memorandum, we find no trace of the claim that Robert was not personally involved in the actions taken against the plaintiff. In that memorandum, the defendants argued that their actions were justified, rather than malicious, because they sought to avoid disruption in the workplace. In fact, in footnote 1 of that memorandum, the defendants argued that “[i]t is clear from the evidence that. . . Carterud played no role in the employment decisions affecting the plaintiff. All the decisions of which the plaintiff complains were taken by either . . . Richens or .. . Robert.” (Emphasis added.)