Case Information
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GUY SCAIFE,
Plaintiff , No. 3:18-cv-00740 (MPS) v.
CITY OF MERIDEN,
Defendant . RULING ON MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff, Guy Scaife, brings this suit against Defendant, City of Meriden (the “City”), alleging that the City retaliated against him for speaking out about alleged wrongdoing by terminating his employment as City Manager in violation of Connecticut General Statutes § 31– 51q. Plaintiff also alleges that the City breached the covenant of good faith and fair dealing, breached its contractual obligations, and deprived Plaintiff of his property and liberty interests without due process in violation of the 14 th Amendment to the United States Constitution. ECF No. 37. The City has filed a motion for summary judgment as to all of Plaintiff’s claims. ECF No. 57. For the reasons set forth below, the City’s motion for summary judgment is GRANTED IN PART and DENIED IN PART.
II. FACTS
The following facts are taken from the parties’ Local Rule 56(a) Statements and are undisputed unless otherwise indicated.
Plaintiff was hired as City Manager for the City of Meriden in accordance with a written employment agreement for a three-year term. ECF No. 61-1 at ¶ 1; ECF No. 57-3 at 1-2. The employment agreement provided that “[n]othing in this Agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from his position with the City, subject only to рroviding to the City Council written notice of his intention to do so sixty (60) days prior to his effective date of resignation.” ECF No. 61-1 at ¶ 2; ECF No. 57-3 at 2. The agreement also provided that “[n]othing in this agreement shall prevent, limit or otherwise interfere with the right of the City Council to terminate the services of the Employee at any time.” Id. It stated that if Plaintiff was terminated without cause before the end of a three-year term, he would continue to receive salary and benefits for 6 months. Id.
The City Charter grants the City Council the power to appoint and remove the City Manager by a majority vote. ECF No 61-1 at ¶¶ 4-5; ECF No. 57-5 at 9, 11. Specifically, the City Charter provides that the City Manager “shall be appointed and may be removed or suspended with or without pay by the City Council. Said appointment, removal or suspension shall be at least by a majority vote of the full membership of the City Council. . . . The [City] Manager may be suspended without or without pay . . . or may be removed by vote of at least the majority of the full membership of the City Council with or without cause.”
On September 6, 2016, Plaintiff began his employment for the City of Mеriden as City Manager. ECF No. 61-1 at ¶¶ 7, 11. Plaintiff’s affidavit asserts that in the beginning of 2017, he “discovered a deceptive financial scheme that was unethical and involved significant dollars.” ECF No. 61-2 at 7 ¶ 20. He “began reporting the financial improprieties to the City leadership and in discussions with the full Council” and “raised the concerns regarding the financial issues in a formal leadership meeting held on February 16, 2017.” ECF No. 61-2 at 19 ¶¶ 77-78. On February 8, 2017, Dennis Waz, the Director of the Public Utilities Department (the “PUD”), wrote a memo to Plaintiff describing these financial improprieties. ECF No. 61-2 at 47. Mr. Waz was concerned “about the amount of funding Public Utilities contributes to the General Fund for in-kind services.” Id. According to Mr. Waz’s calculations, contributions to some departments were “in excess of 40% and up to 88%.” That calculation meant, according to Plaintiff, that the “not for profit municipality utility that provides water and sewer services, was paying over 2 million dollars per year for ‘in-kind services’ from the City, and passing on the cost to its customers, which included not just City of Meriden water and sewer users but also users from neighboring Towns. . . .” ECF No. 61-2 at 7 ¶ 21. According to Plaintiff, the overcharging had been increasing year after year because the City Finance Director, Mike Lupkas, had been “automatically increasing” the cost allocated to the PUD by 3% every year for at least ten years, without any rationale, while the remainder of the town budgets were growing at less than 1% per year during the same ten year period. Id. at 7 ¶ 22.
On May 16, 2017, this expense-allocation issue was raised at the Public Utilities Commission meeting. ECF No. 61-2 at 50-52. A motion was made, and unanimously carried, to spend $37,000 on hiring Wright-Pierce, an engineering firm, to perform a forensic study. Id. at 51-52. Wright-Pierce produced a draft report in December 2017. ECF No. 61-2 at 54. The draft report concluded, “[i]t appears that the financial support provided by [PUD] is inequitable and for some Departments may be considered excessive.” Id. at 77. Plaintiff was still employed by the City when the draft report was issued, and he and Mr. Lupkas provided input on the draft to Wright-Pierce in preparation for the final report. ECF No. 61-3 at 20. According to Mr. Waz, the final report was issued in January 2018, after Plaintiff had been tеrminated. Id. at 22.
Plaintiff states that he began reporting these and other financial improprieties to the City leadership in 2016 and the beginning of 2017. ECF No. 61-2 at 19 ¶ 77. For example, according to Plaintiff, he called for an Executive Session on January 17, 2017 during which extensive discussions occurred; he raised concerns during a formal leadership meeting attended by, among others, Mr. Lupkas and Miguel Castro, a member of the City Council and the chairman of the City Finance Committee, on February 16, 2017; he attempted to present his budget proposal on April 28, 2017 but was blocked by Mr. Castro; and he expressed concerns in correspondence to leadership dated May 24 and 27, 2017. Id. at 19-20 ¶¶ 77, 78, 80, 84.
Some of Plaintiff’s reports concerned Mr. Castro. Plaintiff alleges that Mr. Castro and Mr. Lupkas worked together on the Finance Committee and that Mr. Castro was a “supporter” of Mr. Lupkas. On April 27, 2017, Plaintiff emailed Mr. Castro a powerpoint presentation for an upcoming City finance meeting that included “numerous reductions in expenses.” ECF No. 61-2 at 129. Mr. Castro responded to Plaintiff via email requesting that he “hold off on the powerpoint presentation since we didn’t add a presentation on the agenda.” Id. at 128. Lori Canney, the Council Clerk, replied to Mr. Castro stating that she “never list[s] powerpoint presentations on the [Finance] agendas,” to which Mr. Castro responded, “Thank yo[u] for the clarification.” Id. at 19 ¶¶ 81, 128.
On May 24 and May 27, 2017, Plaintiff emailed Council Majority Leader Brian Daniels, Council Minority Leader Daniel Brunet, as well as Mayor Kevin Scarpati expressing concern over Mr. Castro’s tabling of a Capital Improvement Program (“CIP”) resolution Plaintiff had submitted for funding projects. ECF No. 61-2 at 20 ¶¶ 82 & 84, pp. 133 & 136. Plaintiff wrote, “I am formally requesting something tangible be done to resolve this problem.” Id. at 133. Mayor Scarpati replied that he was “appalled by what took place . . . and fe[lt] that if decisions [were] made going into a meeting regarding a given item, they should be properly vetted and discussed before tabling.” Id. at 141. Mr. Brunet reiterated Mayor Scarpati’s concerns via email stating, “This was an important component of the budget that had no rationale for immediate tabling.” at 139.
Other reports involved Mr. Luрkas and lawyers in the City’s Legal Department, Michael Quinn and Deborah Moore. On July 8, 2017, Plaintiff gave Mr. Lupkas an annual performance evaluation and placed him on a performance plan, highlighting that his “lack of focus in certain areas was resulting in ‘unnecessary cost to the taxpayers,’” according to Plaintiff. ECF No. 61-2 at 25 ¶ 111. Plaintiff also asserts that on August 21, 2017, he recommended Mr. Lupkas’ removal to the HR Director and Council Leadership. Id. at 25 ¶ 113. According to Plaintiff, he “raised concerns regarding the unethical conduct of Attorneys Quinn and Moore throughout the summer and fall of 2017 to the Council Members.” Id. at 38 ¶ 179.
In June 2017, the City Council began a performance evaluation of Plaintiff’s first year of employment. ECF No. 61-1 at ¶ 8. The process included asking department heads and Council Members to complete anonymous evaluations. Id.; ECF No. 57-6 at 18-20; ECF No. 57-7 at 8. Council Members and Mayor Scarpati had access to an electronic evaluation through the platform “Survey Monkey” that they could submit electronically or print and submit. ECF No. 57-6 at 18-20; ECF No. 57-7 at 8. The department heads received paper versions. ECF No. 57-6 at 19. According to Plaintiff, “[t]he majority of [his] evaluations were all positive,” and he “had a favorable response from those with the largest departments,” although, “those involved in the retaliatory process put negative comments in [his] reviews and then leaked them to the press to portray [him] in a negative light.” ECF No. 61-2 at 23 ¶ 101.
On October 30, 2017, the City Council convened a regular meeting in which Council Member Daniels, seconded by Council Member Brunet, made a motion to increase Plaintiff’s salary by 2% to be retroactive to July 2017. ECF No. 57-10 at 1, 12. Council Member Sonya Jelks spoke at the meeting and stated that “she [was] not for a salary increase.” at 13. She agreed “that there has been some improvement in some things that are definitely going to be beneficial to us[,] but she thinks that the majority of the savings and benefit are still to be proven. . . . He eliminated some job roles and that is concerning to her. . . . [She] hasn’t seen any savings yet and that will be a continuing concern for her. . . . [H]onestly speaking the City Manager’s performance has been a mixed bag. . . .Therе are still some ongoing concerns [regarding] his management style and some of the behaviors he has put forth.” Id. Council Member Castro also spoke against the salary increase. Id. at 13-14. Mr. Castro expressed concerns over the city budget increase of a little over $2.5 million. Id.
Council Members Daniels, Battista, Rich, Brunet, Williams, Shamock, and the Mayor spoke in favor of the salary increase. Id. at 12-15. Council Member Daniels listed several of Plaintiff’s accomplishments, including, but not limited to, resolving an issue with the Humane Society, accomplishing a mill rate goal, staying on top of the Housing Authority while relocating tenants, closing old projects and repurposing money, and updating technology. Id. at 12-13. Mr. Daniels also praised Plaintiff for saving the City “something north of a million dollars per year. . . .” Id. at 13. Council Member Cathy Battista stated that she had been hesitating on the issue for money reasons. Id. at 14. She “emphasize[d] that
she has full confidence in the City Manager that he is going to address those things including the recommendations that were made during our Executive Session and she has confidence in that but she also wаnts to make a public statement that she is also strongly supportive of our staff and our staff’s concerns. City staff has gone through a big change in the past year and it has been difficult for some and everyone has their opinions and thoughts like that. This is not the place for any conversation and it has been a difficult time for everyone but she is [in] favor of [the salary increase] because she can specifically point to things that the City Manager has done, that she has seen, that she has worked with him on and she appreciates that.”
The motion for salary increase passed 9:2 with Ms. Jelks and Mr. Castro voting against the increase. ECF No. 61-1 at ¶ 11; ECF No. 57-9 at 9; ECF No. 57-10 at 15.
On November 3, 2017, Juliet Burdelski, the City’s Economic Development director, emailed Plaintiff, Council Member David Lowell, and Deborah Moore, the City Attorney, indicating that she had been contacted by the FBI on October 30, 2017 to request a meeting “to discuss an ongoing investigation into the City Manager [Plaintiff].” ECF No. 61-1 at ¶ 16; ECF No. 57-12 at 5; ECF No. 61-2 at ¶ 40. She also raised concerns that Plaintiff had been “engaging in low level retaliation” against her, explained she did not think that a meeting to discuss the situation would be productive, and submitted her resignation. ECF No. 57-12 at 5.
In early December 2017, Mr. Lowell, who was then Council Majority Leader, contacted City Corporation Counsel, Michael Quinn, regarding Plaintiff’s termination. ECF No. 61-1 at ¶ 28; ECF No. 57-13 at 5. Attorney Quinn testified that Mr. Lowell asked him to prepare a synopsis of employee concerns regarding Plaintiff, prior to the majority party’s submission of a resolution to terminate Plaintiff’s employment. ECF No. 61-1 at ¶ 29; ECF No. 57-13 at 10. He prepared the synopsis, but when Mr. Lowell indicated that he was in favor of termination, Attorney Quinn became concerned about “claims that would be raised” regarding his own impartiality and suggested Mr. Lowell work with outside counsel on the issue. ECF No. 57-13 at 7. Attorney Floyd Dugas from Berchem Moses was retained and most of the discussions regarding termination took place between Mr. Lowell and Attorney Dugas. at 7-8.
Attorney Quinn also testified about employee complaints regarding Plaintiff that he had investigated in January 2017—“the CIRMA matter.” ECF No. 61-5 at 5-6. In either December 2016 or January 2017, Ms. Burdelski and Wilma Petro, the City’s purchasing аgent, had raised concerns with Attorney Quinn about the process by which CIRMA, a third-party administrator for workers’ compensation claims, had been awarded a City contract. ECF No. 67-3 at 5-7; ECF No. 61-2 at 13 ¶ 44. Attorney Quinn had believed that Ms. Burdelski “felt that there might be a quid pro quo going on between CIRMA and [Plaintiff] as she was brought into the meeting to discuss availability of sufficient office space for CIRMA within the City of Meriden.” at 5. Attorney Quinn did an initial investigation into Ms. Petro’s concerns and concluded “there wasn’t anything that [he] thought had happened that was wrong[.]” ECF No. 61-5 at 6.
Towards the end of the summer of 2017, Council Members Daniels, Lowell, and Battista asked Attorney Quinn to look into the CIRMA issue again, in further depth. ECF No. 61-5 at 4- 5. Outside counsel, Berchem Moses, was hired to look at it so that Attorney Quinn’s “own role would not be questioned if a decision was reached that someone didn’t like.” ECF No. 67-3 at 8. According to Attorney Quinn, Berchem Moses “ultimately reached a similar conclusion that [he] reached,” which was that although the concerns had merit, he “did not think they rose to the level of needing to do anything further.” ECF No. 61-5 at 3; ECF No. 67-3 at 6. The outside invеstigation cost the City $19,057. ECF No. 61-5 at 3. On November 28, 2017, according to Plaintiff, he “wrote to City Council and the Mayor recommending that Attorney Quinn not be re- appointed a[s] Corporation Counsel.” Id. at ¶ 180.
On December 8, 2017, Ms. Petro emailed Attorneys Moore and Quinn stating, “I have been made aware that the [Plaintiff] is interested in having me fired. I am alleging retaliation as I believe that this is because he is aware that I am a ‘whistle blower’ and formally complained in January that he had been behaving unethically on numerous occasions.” ECF No. 57-15 at 5. Plaintiff responded via email to Attorney Moore and requested a copy of the formal complaint. Id. at 3. Attorney Moore replied that all she had was the email, but that she suspected Ms. Petro had been referencing the CIRMA investigation. Id. at 2.
On December 4, 2017, David Lowell was sworn in as the Majority Leader, replacing Mr. Daniels. ECF No. 61-2 at 156. The next day, December 5, 2017, Plaintiff emailed Mr. Lowell about “[a]n important personnel related item” and attached an email exchange between himself and Mr. Daniels that had taken place on November 26 and 27, 2017. Id. In his email, Plaintiff requested that City Council consider his “Termination Recommendation” letter from late August, as well as performance issues involving “the leadership within the Legal Department.” Id. 156- 57. [1]
Other reports by Plaintiff concerned Council Member Jelks. On December 13, 2017, Plaintiff emailed Council Member Lowell reporting that Ms. Jelks “has been blind copying communications with him and different council members to the Record Journal.” ECF No. 57-6 at 9-10; ECF No. 57-9 15-16; ECF No. 57-21 at 1. The email states that there had been a continuous leak of information to the Record Journal and so it had been “obvious from the beginning that one or more Council members were a significant source of the leaks.” Id. Plaintiff had requested the IT director to perform an email server search and the search produced three emails that Council Member Jelks had forwarded using the blind copy function so that the other individuals included on the chain would not be aware of the Record Journal’s inclusion and so that any “reply all” responses would automatically be sent to the Record Journal. On December 15, 2017, Plaintiff reported that Council Member Jelks had also blind copied emails to the NAACP, an action that Plaintiff regarded as a violation of the City’s Code of Ethics. ECF No. 61-1 ¶ 51; ECF No. 57-4 at 29; ECF No. 57-4 at 12; ECF No. 57-22 at 1.
Ms. Jelks, an NAACP member “informally,” testified about blind copying Jason Teal at the NAACP from her personal email on a communication dated October 23 in which they discussed HR Manager questions. ECF No. 67-2 at 6, 8. Marci Noguiera had been hired as the HR manager in January 2017 and reported to Plaintiff. ECF No. 61-10 at 1; ECF 67-2 at 5. According to Ms. Jelks, the NAACP had “requested a meeting, they asked us to negotiate a meeting with Marci or with the city manager, which we did, and these were the questions they wanted us to ask.” ECF No. 61-7 at 5, 8; ECF No. 67-2 at 6-7.
Ms. Nogueira stated in her affidavit that the NAACP made inquiries “that were focused on [her] activities as the head of HR and [her] qualifications. . . . Having worked in the HR field for many years, [she] had prior dealings with the NAACP. However, this meeting with the NAACP was different. The questioning by the NAACP did not have a neutral tone. The meeting started in an accusatory tone as if [she] had done something wrong and had to defend [her]self.” ECF No. 61-10 at 3.
On December 14, 2017, Council Member Lowell notified Plaintiff that there would be a resolution on the agenda for the meeting the following Monday, December 18, 2017, to terminate his employment. ECF No. 61-1 at ¶ 32. On December 15, 2017, the agenda for the December 18 meeting was posted, listing the resolution to terminate Plaintiff. ECF No. 61-1 at ¶ 33; ECF No. 57-16 at 2. All twelve Council Members, namely Battista, Brunet, Carabetta, Cardona, Castro, Daniels, Fontanella, Graham, Jelks, Lowell, Rich, Shamock, and Williams, attended the public meeting held on December 18, 2017. ECF No. 61-1 at ¶ 34; ECF No. 57-17 at 1.
At the public meeting, Council Members Lowell and Cardona presented Item 15, the resolution to terminate Plaintiff “without cause before the end of the three (3) year term provided that the City pays the [Plaintiff] his annual salary plus benefits for six (6) months after notice of termination.” ECF No. 57-17 at 10. During discussion on Item 15, Council Member Lowell stated that there had been “escalating discord in and around City Hall,” that the discord “was not a surprise to [Plaintiff],” and that “the escalating discord [was] not a surprise to the Mayor . . . [or] to the Minority Leader or his caucus as he has been in previous Executive Sessions, Council meetings and has been included in communications between or about City Staff and the [Plaintiff].” Id. at 10-11. He said the termination was not about “any one event or situation. . . . [or] any one employee or department head interaction or any one disagreement with the [Plaintiff].” Id. at 11. “This is about[,] as evidenced by tonight’s agenda[,] this entire body of twelve council members who have expressed concern with the escalating discord.” Id.
Council Member Williams spoke and asked why the termination was done in secrecy. Id.
at 13.
I mean, we had, and when I say we, I’m referring to the Mayor, myself, Councilor Shamock, Councilor Brunet, we didn’t learn about this literally until the 12 th hour. We had no idea that this was even on the radar screen. Is there a reason why this wasn’t brought to the Minority Leader’s attention so we could have a dialogue and better understand maybe the grounds for termination, which quite frankly, I don’t agree with. at 12-13. A lengthy discussion ensued in which several Council Members spoke on a variety of issues including the 2% raise that Plaintiff had received on October 30, 2017, the CIRMA issue, the FBI investigation, and the payment of six months’ salary plus benеfits due to Plaintiff as a result of terminating his employment without cause. Id. at 12-24. Plaintiff spoke about his impression of the events that took place leading up to the Council meeting and his plans moving forward, should he be retained as the City Manager. Id. at 24-25. Specifically, he said,
I have also found and reported to you ethical violations, intentional efforts to do severe damage to my professional reputation. My blowing the whistle on these wrong doings by senior staff and Councilors has resulted in numerous retaliatory acts starting back a year ago and it has gone through and to include this resolution of termination planned for tonight. . . . [W]e really ought to step back and think about what wasn’t done when I first started complaining, first verbally and then began putting it in writing as late as last November of acts by senior staff as well as Councilmembers that were doing things in conjunction with.
Id. at 25.
Plaintiff stated that if the termination resolution failed, he would “proceed with the disciplinary actions [he] requested on the Finance Director [Mr. Lupkas] . . . continue to blow the whistle on those wrong doings, whether it be staff or Council members . . . and file[] [an] official ethics complaint . . . on actions by some Council members.” Id. at 25-26. Eight Council Members voted to terminate Plaintiff’s employment and the four other members left the meeting and were not present for the vote. Id. at 27. The motion to terminate Plaintiff without cause effective immediately carried 8:0. Id.
On December 19, 2017, the day after Plaintiff’s termination, Cheryl Costello, who was hired in November, 2016 by Plaintiff for the position of Communications Manager, received a note slipped under her office door that said “You Two Are Next To Go,” with a smiley face drawn on each side of the text. ECF No. 61-13 at 1, 3; ECF No. 61-2 at ¶ 142. At the time, Ms. Costello shared an office space with the Director of IT and Facilities, Russ Ford, another individual hired by Plaintiff. ECF No. 61-13 at 1; ECF No. 61-2 at ¶ 142. Ms. Costello stated in her affidavit that “[i]t was obvious that the note was directed to him and me.” Ms. Battista admitted during her deposition that she had had a conversation with Doreen Roddy, an assistant in the City manager’s office, in which Ms. Battista said something to the effect of “Two down, two to go.” ECF No. 61-4 at 26, 31-32.
The City provided Plaintiff with healthcare, disability, and life insurance benefits fоr six months following the termination and Plaintiff kept his City issued phone until June 2018. ECF No. 61-1 at ¶¶ 40-41. In October 2018, Plaintiff obtained a supervisor position with the Dead River Company. Id. at ¶ 43. On January 16, 2020 Plaintiff was slated to start working as the Interim Town Manager in Thetford, Vermont. Id. at ¶ 44.
Although the parties are in general agreement about the sequence of events, Plaintiff casts them as motivated by retaliation for his reporting of alleged wrongdoing and by a desire to cover up that wrongdoing. ECF No. 61 at 13. The City does not dispute that Plaintiff raised concerns and issues regarding Mr. Lupkas, Mr. Castro, Mr. Quinn, and Ms. Jelks. ECF No. 61-1 at ¶¶ 55, 59, 70, 74, 80. It argues, however, that Plaintiff’s raising of those concerns had no influence on the Council Members’ decision to terminate Plaintiff. Instead, the City maintains that Plaintiff’s termination was a direct result of the growing discord between Plaintiff and City employees. ECF No. 57 at 17.
The City has submitted evidence, which Plaintiff disputes, that Council Members Lowell, Daniels, Battista, Jelks, Cardona, and Graham voted to terminate Plaintiff due to the discord between Plaintiff and City staff and the low morale of City employees. See ECF Nos. 57-6 at 20- 21 (In response to attorney question—“that’s the rеason for the discharge then, discord?” Mr. Lowell responded “Yes.”); 57-8 at 3 ¶ 25 (Mr. Daniels submitted a declaration stating “I voted to terminate [Plaintiff] . . . based on the strong sense that I had that the business of the City was grinding to a halt due to the enormous amount of friction between [Plaintiff] and a growing segment of City employees.”); ECF No. 57-7 at 22-23 (Ms. Battista testified “It’s always been how [Plaintiff] behaved and spoke to city staff, not whether he was right or wrong. He may have been right, but it was his delivery. It was how he did things that was intimidating and broke morale.”); ECF No. 57-9 at 17-18 (Ms. Jelks testified that the reason for her vote to terminate was “[a] number of things,” but that the “primary reason was the business of the city was not being conducted and the environment.”); ECF No. 57-11 at 2 (Mr. Cardona submitted a declaration in which he stated “I voted to terminate [Plaintiff] due to my opinion of the manner in which he acted with staff and the public and the growing tension with City staff.”); ECF No. 57-23 at 1 ¶¶ 7, 10 (Mr. Graham submitted a declaration in which he stated that his “decision to terminate [Plaintiff] was because [he] believed the morale of the City employees was at an all- time low and [he] sensed that the City would lose good еmployees.”). The City also offers evidence that Council Member Fontanella voted to terminate Plaintiff’s employment because the majority leader, Mr. Lowell, asked him to and because he respected Mr. Lowell’s opinion. at ¶ 82; see also ECF No. 57-14 at ¶¶ 6, 7 (Mr. Fontanella submitted a declaration in which he stated that “[t]he majority leader, David Lowell, asked that I support the termination of [Plaintiff]. . . . I voted for the termination as I respect the opinion of Mr. Lowell and he requested my support of the resolution of termination.”).
Plaintiff argues that those stated reasons are pretextual and that the discord was “manufactured.” ECF No. 61-1 at ¶¶ 14, 56. He asserts that the Council Members “made the decision to terminate because they knew that the scheme of overcharging PUD was about to come to an end. They rushed the termination resolution once the PUD study was released and the ethics issues of Mr. Castro and Jelks were raised. Plaintiff uncovered financial improprieties and one of them was about to cause a huge budget deficit that they would be forced to addrеss.” ECF No. 61-1 at ¶ 56; see also Plaintiff’s denials at ¶¶ 56, 60, 63, 67, 71, 75, 81. According to Plaintiff, the majority party rushed to terminate him within days of his report to the Council that Ms. Jelks had violated the City’s Ethics Policy by blind copying the Record Journal and NAACP on private emails, ECF No. 57-22 at 1; ECF No. 61 at 11-12, and within days of his report that Mr. Castro had also committed an ethics violation. ECF No. 61 at 11.
According to Plaintiff, Wright-Pierce completed its draft PUD report in the first week of December, and on December 11, 2017 he, Mr. Lupkas, and Mr. Waz met with Wright-Pierce to review the findings. ECF No. 61-2 at 9-10 ¶¶ 31-32. The draft report “showed an annual over allocation to the PUD in excess of $871,000.” at 10 ¶ 32, p. 80. [2] Plaintiff asserts that at that meeting, he “made it clear” that he “intended to present the study and findings to the City Council and the new budget would reflect the correct allocation to the [PUD]. The final report was to be sent to [the City] by January.” ECF No. 61-2 at 10 ¶ 32. Plaintiff does not assert that he discussed the draft report with Council Members, but argues that “it was obvious to everyone that [he] would implement the findings of the study.” ECF No. 61 at 10. During this period, according to Plaintiff, Plaintiff was pressing for Mr. Lupkas to be terminated, but the Majority Council Members needed Mr. Lupkas to avoid implementation of the PUD study, which would create a budget deficit—a situation that would not be in the best interest of the majority party since addressing it would require cuts or tax increases. ECF No. 61-1 at ¶ 14; ECF No. 61-2 at 10 ¶ 33.
Another motivation for retaliation, according to Plaintiff, was the ethical concern Plaintiff had raised regarding Mr. Castro. ECF No. 61-1 at ¶ 5. Plaintiff asserts that he had received a complaint in the first week of December 2017 from the Neighborhood Association that Mr. Castro had “threatened to take away City funding from the President of the Neighborhood Association unless the Association President removed an individual, who had been Mr. Castro’s political opponent, from a leadership role at the Association.” ECF No. 61-2 at 28 ¶ 131. Plaintiff avers that he reported the matter to the Council leadership on December 11, 2017 and stated that “[Mr.] Castro’s actions were a clear ethics violation and action must be taken.”
III. LEGAL STANDARD
“Summary judgment is appropriate only if the movant shows that there is no genuine
issue as to any material fact and the movant is entitlеd to judgment as a matter of law.”
Tolan v.
Cotton
,
IV. DISCUSSION
A. Retaliation (Count One)
Plaintiff alleges that the City retaliated against him in violation of Connecticut General
Statutes § 31–51q.
[3]
Section 31–51q “prohibits employers from disciplining or discharging
employees in retaliation for exercising their right to free speech.”
O’Connor v. Pierson
, 568 F.3d
64, 67 (2d Cir. 2009);
see also D’Angelo v. McGoldrick
,
“To make out a prima facie § 31–51q claim against the City, [Plaintiff] must show that
(1) the speech at issue was made as a citizen on matters of public concern rather than as an
employee on matters of personal interest; (2) he suffered an adverse employment action; and (3)
the speech was at least a substantial or motivating factor in the adverse employment action.”
Lynch v. Ackley
,
If Plaintiff satisfies his burden on the elements of a prima facie case, the “defendant may avoid liability by showing, by a preponderance of the evidence, that it would have taken the 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 between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages....”
same adverse employment action even in the absence of protected speech.”
Karagozian v.
Luxottica Retail North America
, 147 F. Supp.3d 23, 31 (D. Conn. 2015);
see also Matusick v.
Erie County Water Authority
,
The City does not dispute, for the purposes of this motion, that Plaintiff engaged in protected conduct or that Plaintiff suffered the adverse action of termination. ECF No. 67 at 5. The City argues, however, that Plaintiff has “failed to present evidence sufficient to establish a causal connection between his termination” and the protected speech. Id. The City also argues that it would have terminated Plaintiff even in the absence of the protected speech. ECF No. 57-1 at 16.
After considering the evidence in the record in the light most favorable to Plaintiff, I conclude that Plaintiff and the City have both presented evidence to support their theories as to the motivation behind Plaintiff’s termination such that the issue cannot be decided as a matter of law, but must be reserved for a jury. A reasonable jury could credit the testimony of the Council Members and find that the City fired Plaintiff due to the growing discord between Plaintiff and City employees. ECF Nos. 57-6 at 20-21; 57-8 at 3 ¶ 25; 57-7 at 22-23; 57-9 at 17-18; ECF No. 57-11 at 2; ECF No. 57-23 at 1 ¶¶ 7, 10; ECF No. 57-14 at ¶¶ 6, 7. On the other hand, a reasonable jury could credit Plaintiff’s evidence that the claim of “discord” was a pretext and the true motivation was retaliation for Plaintiff’s reports about financial improprieties and ethical violations.
Plaintiff offers the following evidence from which a reasonable juror could find that his termination was substantially motivated by his reporting of financial and ethical issues. Three days before his termination, Plaintiff reported to the Council majority leader that Council Member Jelks was blind copying the NAACP and the Record Journаl on emails, actions that Plaintiff considered violations of the City’s ethical code. ECF No. 61-1 ¶ 51; ECF No. 57-4 at 29; ECF No. 57-4 at 12; ECF No. 57-22 at 1. Seven days before his termination, Plaintiff reported Mr. Castro’s alleged ethical violation to the Council leadership. ECF No. 61-2 at 27-28 ¶ 131. He also followed up at that time on the legal department issues, inquiring if anything would be done regarding his recommendation that Attorney Quinn not be re-appointed. ECF No. 61-2 at 39 ¶ 180. Thirteen days before his termination, he followed up with the new Council majority leader on his recommendation that Mr. Lupkas be terminated. ECF No. 61-2 156-57. From the temporal proximity of these reports, a reasonable juror could find that the Council voted to terminate Plaintiff out of retaliation.
Plaintiff also points to the similarity between a note slipped under the door of a City employee, the day after Plaintiff was terminated, and Council Member Battista’s statement to Ms. Roddy—both relaying the same message “Two down, two to go.” ECF No. 61-4 at 31-32. A reasonable jury could find from this evidence that Ms. Battista and others acting with her were motivated to terminate Plaintiff out оf retaliatory animus.
The parties have offered evidence that tells two different versions of a story about what caused the City to terminate Plaintiff’s employment, rendering the question as to which version to credit one of credibility that only a jury may answer. See Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”) (citation and internal quotation marks omitted); Hayes v. New York City Dept. of Corrections , 84 F.3d 614, 619 (2d Cir. 1996) (explaining that the “court should not weigh evidence or assess the credibility of witnesses” when applying the summary judgment standard. “Th[ose] determinations are within the sole province of the jury.”) (citations omitted).
Further, the same evidence raises a genuine factual dispute about whether the City would
have taken the same adverse employment action even in the absence of the protected speech. The
record raises an inference that the City would not have terminated Plaintiff if he had not reported
financial and ethical violations. Plaintiff received a 2% raise at the October 30 th meeting in
which severаl Council Members as well as the Mayor spoke about benefits and improvements
Plaintiff had provided as City Manager. ECF No. 57-10 at 12-15. As of that time, there was
evidence that the majority of Council Members supported Plaintiff. But just over a month later,
beginning in early December, Plaintiff made the above-mentioned reports – including reports
raising ethical concerns about Ms. Jelks and Mr. Castro – and, within days, the Council Members
voted to terminate him. This is enough to allow a reasonable juror to conclude that he would not
have been terminated but for his reports. Only a jury can decide whether the Council was acting
out of retaliatory animus or out of a desire to remove a source of discord among City employees.
See Smith
,
I therefore deny summary judgment as to Count One.
B. Breach of Implied Covenant of Good Faith and Fair Dealing (Count Two)
Implicit in every contract is a duty of good faith and fair dealing that neither party will do
anything that will injure the right of the other party to receive the benefit of the agreement
. See
Capstone Bldg. Corp. v. Am. Motorist Ins. Co.
,
The principle is not generally applicable to termination claims in the context of an at-will
employment contract.
See id.
at 788 (declining “to transform the requirement of good faith into
an implied condition that an employee may be dismissed only for good cause.”). “Where
employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith
in exercising this contractual right.” at 789;
see also Geysen v. Securitas Sec. Serv. USA, Inc.
,
An exception to that rule exists when the termination of an at-will employee violates
some important public policy.
See McKinstry v. Sheriden Woods Health Care Center, Inc.
, 994
F. Supp. 2d 259, 267 (D. Conn. 2014) (“In order to state a claim for breach of the implied
covenant of good faith and fair dealing, a plaintiff must allege ‘a demonstrably improper reason
for dismissal, a reason whose impropriety is derived from some important violation of public
policy.’”)
quoting Morris v. Hartford Courant Co.
,
When it terminated Plaintiff’s employment, the City was exercising its contractual right,
an action not deemed to be in bad faith unless Plaintiff can show a violation of an important
public policy.
Magnan,
C. Breach of Contract (Count Three)
“The elements of a breach of contract claim are the formation of an agreement,
performance by one party, breach of the agreement by the other party, and damages
.” Meyers v.
Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C.
,
Plaintiff makes the same argument about the City’s alleged violation of “procedural rules” in the Charter described above, i.e., he argues that the City breached the agreement because members of the majority party on the Council decided to terminate him before the December 18 th Council meeting, which was contrary to the Charter provision vesting the right to terminate the City Manager in the Council as a whole. I reject this argument for the same reasons set forth above. Plaintiff has not offered evidence sufficient to create a genuine dispute of material fact that would show that the City breaсhed the employment agreement. I therefore grant summary judgment as to Count Three.
D. Deprivation of Property Interest (Count Four)
Plaintiff argues that the City Charter rules governing his termination created a constitutionally protected property interest in his employment, such that he was entitled to some form of pre-termination hearing under the Due Process Clause of the Fourteenth Amendment. ECF No. 61 at 36-37. This claim fails too, however, because the only “rule” in the Charter limiting the City’s ability to terminate the Plaintiff’s employment without cause was the requirement of a majority vote of the Council, and that requirement did not create a property interest.
The determination of whether Plaintiff was deprived of property without due process
involves a two-step process: First, I must “determine whether some source of law other than the
Constitution, such as a state or federal statute, confers a property right on the plaintiff. . . . Once
such a property right is found, [I] must determine whether that property right ‘constitutes a
property interest for purposes of the Fourteenth Amendment.’”
Taravella,
E. Deprivation of Liberty Interest (Count Five)
Plaintiff claims that the City made false statements about him that raised “significant
roadblocks in his ability to continue in his profession,” thereby depriving him of a liberty interest
without due process. ECF No. 61 at 37. It is well established that a “person's interest in his or her
good reputation alone, apart from a more tangible interest, is not a liberty or property interest
sufficient to invoke the procedural protections of the Due Process Clause or create а cause of
action under § 1983.”
Patterson v. City of Utica,
First, the plaintiff must ... show that the government made stigmatizing statements about [him]—statements that call into question [the] plaintiff's good name, reputation, honor, or integrity. . . . [S]tatements that denigratе the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession will satisfy the stigma requirement. Second, a plaintiff must prove these stigmatizing statements were made public. Third, the plaintiff must show that the stigmatizing statements were made concurrently with, or in close temporal relationship to, the plaintiff's dismissal from government employment.”
(citations, internal quotation marks, and emphasis omitted).
A Plaintiff need not be deprived completely of his ability to practice his profession but
must demonstrate that the statements put up significant roadblocks in his ability to practice his
profession. “The test of whether a state employer’s decision not to rehire an employee denies that
employee due process is met when it deprives her of the freedom to take advantage of other
employment opportunities.”
Donato v. Plainview-Old Bethpage Cen. Sch. Dist.
,
When I construe the facts in the light most favorable to Plaintiff, I find that Plaintiff has
raised a genuine issue of material fact as to Count Five. A reasonable jury could find that the
statements that Council Members made at the public hearing called into question Plaintiff’s
reputation and his competence as a professional. For example, Mr. Lowell stated that the
termination was about the “entire body of twelve council members who have expressed concern
with the escalating discord,” and that it was about “an admission from the Minority caucus that
they in fact believe there is something within the context of their discussion with the City
Manager that should have been toned down.” ECF No. 61-2 at 93. After the meeting, the local
newspaper, The Record Journal, published an article stating that Plaintiff “was terminated after a
party line vote by the City Council in December, with some councilors saying he caused
‘discord’ in City Hall.” ECF No. 61-2 at 204. A reasonable juror could find from this evidence
that Council members made statements at the meeting that “denigrate[d Plaintiff’s] cоmpetence
as a professional and impugn[ed his] professional reputation.”
Segal
,
The record also raises a material question of fact as to whether the comments the Council
Members made during the termination put a significant roadblock in Plaintiff’s continued ability
to practice his profession.
See Donato
,
Finally, it is undisputed that the statements by Council Member Lowell and others concerning “discord” were made at the same public meeting at which the termination occurred, which is sufficient to satisfy the public element and the temporal proximity element of a stigma plus claim. ECF No. 57-17 at 1, 27. Because there are triable issues of fact with respect to the liberty interest claim, I deny summary judgment as to Count Five.
V. CONCLUSION
For the reasons set forth above, I hereby GRANT in part Defendant’s motion for summary judgment.
IT IS SO ORDERED. /s/
Michael P. Shea, U.S.D.J.
Dated: Hartford, Connecticut
October 8, 2020
Notes
[1] The email does not name Mr. Lupkas explicitly, but the sequence of events as set forth in Plaintiff’s affidavit connects the “Termination Recommendation” letter to Plaintiff’s recommendation for Mr. Lupkas’ removal on August 21, 2017. ECF No. 61-2 at 25-26 ¶ 113, 119. The email also does not name Attorney Quinn, but Plaintiff’s affidavit connects “leadership within the Legal Department” to Attorneys Quinn and Moore. See Id. at ¶¶ 40, 89, 92, 175, 179, 180.
[2] Plaintiff apparently arrives at the $871,000 calculation by subtracting the proposed PUD contribution to the budget ($1,066,418) from the current PUD contribution to the budget ($1,938,141). ECF No. 61-2 at 80.
[3] Conn. Gen Stat. § 31–51q provides in relevant part: “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