UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : SCOTT VENTURA, : : Plaintiff, : CIVIL NO. : v. : : 3:06 CV 630 (EBB) TOWN OF MANCHESTER : MARK MONTMINY : HOWARD BEELER, : : Defendants. : RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE Plaintiff Scott Ventura (“Plaintiff” or “Ventura”) a former police officer, brings this four-count complaint against his former employer, the Town of Manchester (the “Town”), and his supervising officers, Captain Mark Montminy (“Montminy”) and Sergeant Howard Beeler (“Beeler”) of the Manchester Police Department (“MPD”). Counts One and Two are actions pursuant to 42 U.S.C. § 1983 to redress violations of Plaintiff’s rights under the First and Fourteenth Amendments, respectively; Count Three is an action pursuant to 42 U.S.C. § 1985 alleging that the individual defendants conspired to deprive Plaintiff of his rights and privileges as a U.S. citizen; and Count Four asserts a claim under Conn. Gen. Stat. § 31-51q. Defendants have moved for summary judgment on all claims. Case 3:06-cv-00630-EBB Document 92 Filed 09/02/08 Page 1 of 61
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UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUT
:
SCOTT VENTURA, ::
Plaintiff, : CIVIL NO.:
v. :: 3:06 CV 630 (EBB)
TOWN OF MANCHESTER :MARK MONTMINY :HOWARD BEELER, :
:Defendants. :
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TOSTRIKE
Plaintiff Scott Ventura (“Plaintiff” or “Ventura”) a former
police officer, brings this four-count complaint against his former
employer, the Town of Manchester (the “Town”), and his supervising
officers, Captain Mark Montminy (“Montminy”) and Sergeant Howard
Beeler (“Beeler”) of the Manchester Police Department (“MPD”).
Counts One and Two are actions pursuant to 42 U.S.C. § 1983 to
redress violations of Plaintiff’s rights under the First and
Fourteenth Amendments, respectively; Count Three is an action
pursuant to 42 U.S.C. § 1985 alleging that the individual
defendants conspired to deprive Plaintiff of his rights and
privileges as a U.S. citizen; and Count Four asserts a claim under
Conn. Gen. Stat. § 31-51q. Defendants have moved for summary
judgment on all claims.
Case 3:06-cv-00630-EBB Document 92 Filed 09/02/08 Page 1 of 61
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Currently pending before the court are (1) Defendants’ motion
for summary judgment [Doc. No. 75] and (2) Defendants’ motion to
strike portions of Plaintiff’s Local Rule 56(a)(2) Statement and
affidavit submitted in support of his opposition to Defendants’
motion for summary judgment. [Doc. No. 84]. Defendants have also
filed a motion to supplement their memorandum for summary judgment
with recent legal authority. [Doc. No. 88]. For the following
reasons, Defendants’ motion to strike [Doc. No. 84] is GRANTED IN
PART and DENIED IN PART, and Defendants’ motion for summary
judgment [Doc. No. 75] is GRANTED IN PART and DENIED IN PART.
Defendants’ motion to supplement their memorandum [Doc. No. 88] is
GRANTED.
Motion to Strike
A. Standard of Review
Fed. R. Civ. P. 56(e)(2) provides that “[w]hen a motion for
summary judgment is properly made and supported, an opposing party
may not rely merely on allegations or denials in its own pleading;
rather, its response must – by affidavits or as otherwise provided
in this rule – set out specific facts showing a genuine issue for
trial.” Local Rule 56(a)(3) states that “[e]ach statement of
material fact by a movant in a Local Rule 56(a)1 Statement, and
each denial by an opponent in a Local Rule 56(a)2 Statement, must
be followed by a specific citation to (1) the affidavit of a
witness competent to testify as to the facts at trial and/or (2)
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evidence that would be admissible at trial.”
Courts in this district differ on whether a motion to strike
is appropriate during the summary judgment process. Compare
Newport Electric, Inc. v. Newport Corp., 157 F. Supp. 2d 202, 208
(D. Conn. 2001) (stating that a motion to strike is the proper
vehicle for a movant to challenge evidence submitted in opposition
to a motion for summary judgment) with Martin v. Town of Westport,
---F.Supp.2d ----, 2008 WL 2388913, at *3 (D. Conn. 2008)(stating
that “in the context of summary judgment, motions to strike are
unnecessary and produce only redundant statements by the court that
it has not relied on such inadmissible evidence in deciding the
summary judgment motion”) (internal citations and quotation marks
omitted) and Dragon v. I.C. System, Inc., 241 F.R.D. 424, 426 (D.
Conn. 2007) (viewing summary judgment briefing as an adequate and
appropriate way to challenge the validity of an affidavit, but
recognizing that “the federal rules provide no other technique for
challenging affidavits, . . . [and that] courts have been willing
to view motions to strike as calling the propriety of affidavits
into question”) (internal citations and quotation marks omitted).
The court will consider Defendants’ motion to strike,
especially given that there is no dispute that “[a] party may not
create an issue of fact by submitting an affidavit in opposition to
a summary judgment motion that, by omission or addition,
contradicts the affiant’s previous deposition testimony.” Hayes v.
Case 3:06-cv-00630-EBB Document 92 Filed 09/02/08 Page 3 of 61
1“Pl. Ex.” refers to the exhibits attached to Plaintiff’s memorandum inopposition to Defendants’ motion for summary judgment.
4
N.Y.C. Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996); see also
Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995)
(“it is well-settled in this circuit that a party’s affidavit which
contradicts his own prior deposition testimony should be
disregarded on a motion for summary judgment.”).
B. Discussion
In the instant case, Defendants maintain that ¶¶ 16, 20, 23,
35, 43, 44, 46, 47, 28, 33, and 76 of Plaintiff’s affidavit
submitted in support of his opposition to Defendants’ motion for
summary judgment contradict his prior deposition testimony, and
should be stricken as a result. After reviewing these paragraphs
and the relevant deposition testimony, Defendants’ motion to strike
is GRANTED IN PART and DENIED IN PART.
Paragraph 16
Paragraph 16 of Plaintiff’s affidavit states that “[he] did
not tell Captain Abbie that [he] suspected Sergeant Marvin was
defrauding the town by putting in for overtime he did not actually
work.” Ventura Aff. at ¶ 16 (Pl. Ex. A)1. This statement refers
to a July or August 2004 meeting between Captain Abbie and
Plaintiff about Sergeant Marvin’s abusive and bullying behavior.
In his deposition testimony about this meeting, Plaintiff stated
that he spoke to Captain Abbie about Sergeant Marvin’s abusive
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behavior, as well as “other things, such as, my suspicion with his
altering of time and how he could work overtime, but he would order
us to work for free. I remember saying, I am not that sure but I
think that’s slavery. John Marvin told us, if you don’t volunteer
your time, I will shove you back to patrol. So it’s my way or the
high way.” Ventura Depo. at 25-26 (Pl. Ex. C).
Defendants argue that Plaintiff’s deposition testimony that he
raised his “suspicion with [Sergeant Marvin’s] altering of time”
refers to Sergeant Marvin’s theft of overtime. However, Plaintiff
maintains that his testimony is ambiguous on this point, and more
logically refers to Sergeant Marvin altering the hours that his
subordinate officers actually worked and for which they should have
been paid. Pl’s. Mem. in Opp. to Mot. to Strike at 7 [Doc. No. 86].
In other words, he maintains that he was testifying only about
Sergeant Marvin working overtime (e.g. working and being paid for
overtime) while forcing the traffic officers to “volunteer” their
time after work (e.g., work for free).
However, in a subsequent meeting with Captain Montminy,
Plaintiff referred to the fact that he had previously brought up
Sergeant Marvin’s theft of overtime in his meeting with Captain
Abbie. Ventura Depo. at 135 (Pl. Ex. C) ("[a]nd then while I was
sitting there, because it came up in Captain Abb[ie]'s interview,
I said, well, I have a suspicion, and my exact words were, I
suspect that Sergeant John Marvin is on the books and working when
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he is not here.”) (emphasis added). Defendants also cite
Plaintiff’s interrogatory responses, where he stated that at his
meeting with Captain Abbie, he informed Captain Abbie “of John
Marvin’s abusive and demeaning behavior, of instances where Marvin
ordered the officers in the traffic division to ‘volunteer’ their
time, and thus work without pay . . . of his fear of retaliation by
Marvin, and of Marvin’s abuse of department overtime.” Defs.’
Reply to Pl’s. Opp. to Defs. Mot. for Summ. J., Ex. 2 at 9 [Doc No.
87]. This response clearly distinguishes between Sergeant Marvin’s
abuse of department overtime and his requirement that traffic unit
officers “volunteer” their time. For these reasons, Defendants’
motion to strike ¶ 16 of Plaintiff’s affidavit is GRANTED.
Paragraphs 20, 23
In ¶ 20 of Plaintiff's affidavit, he states that he "was not
ordered to speak with Captain Montminy." Ventura Aff. at ¶ 20 (Pl.
Ex. A). In ¶ 23, he states that "[d]uring this conversation, I
voluntarily told Captain Montminy that I suspected Sergeant Marvin
was stealing overtime." Id. at 23. These statements refer to an
October 2004 meeting between Plaintiff and Captain Montminy.
Defendants argue that these statements conflict with
Plaintiff's deposition, where he testified that he was “summoned”
to a meeting with Captain Montminy and that the purpose of the
meeting was for Captain Montminy to follow up on the issues
associated with Sergeant Marvin. Ventura Depo. at 134, 138 (Pl.
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Ex. C).
Plaintiff makes the following arguments in response. First,
he argues that being “summoned” to a meeting is distinct from being
ordered to speak at the meeting. Thus, he maintains that his
deposition statement that he was “summoned” to the October 2004
meeting is fully consistent with his affidavit statement that he
spoke voluntarily at this meeting. Second, Plaintiff argues that
Captain Montminy was not seeking information about Sergeant
Marvin’s theft of overtime in this meeting, and that the issue
would not even have come up had Plaintiff not volunteered his
suspicions.
In his deposition testimony, Plaintiff stated: “[a]nd then
while I was sitting there, because it came up in Captain Abb[ie]’s
interview, I said, well, I have a suspicion, and my exact words
were, I suspect that Sergeant John Marvin is on the books and
working when he is not here. And the other officers chimed in,
and, I followed that with examples of why I felt that way.”
Ventura Depo. at 135 (Pl. Ex. C). Plaintiff also testified that
Captain Montminy told him not to repeat the overtime theft
accusation without solid evidence, and that “we were just asking
him to look into it, keep an eye on it.” Id. at 137. This
deposition testimony does not contradict Plaintiff’s affidavit
statement that he voluntarily raised the theft of overtime issue,
rather than being ordered to speak about it. Thus, the Court
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DENIES Defendants’ motion to strike ¶¶ 20 and 23 of Plaintiff’s
affidavit.
Paragraph 35
Paragraph 35 of Plaintiff's affidavit states that he “was not
ordered to speak during the meeting with Chief Berry; rather I
spoke voluntarily”. Ventura Aff. at ¶ 35 (Pl. Ex. A). This
statement refers to a February 2005 meeting between Chief Berry and
the four officers in the Traffic Unit.
In his deposition, Plaintiff testified that, immediately prior
to this meeting, he and the other traffic unit officers again
discussed their suspicions that Sergeant Marvin was continuing to
steal overtime. Plaintiff testified that he remembered telling
Officer Poist that they needed to all step forward, and that
Plaintiff was the one who “pulled Captain Reeves out [of training]
and informed him what was going on.” Ventura Depo. at 148 (Pl. Ex.
C). Later on that day or the next, the four officers, along with
Captains Reeves, Abby and Montminy, met with Chief Berry. Id. at
151.
Plaintiff argues that it is illogical to suggest that he was
“ordered” to speak at a meeting that he and the other officers
requested. Defendants note that, during this meeting, Chief Berry
told Plaintiff that he was “going to do a thorough investigation
and you are going to participate.” Id. at 153-154. However,
Plaintiff’s deposition testimony suggests that he and the other
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officers spoke about Sergeant Marvin before Chief Berry made this
statement. See id. at 152-53 (Plaintiff testifying that the
officers made their complaints, that Chief Berry became upset, that
Plaintiff asked him if it was the first time he had heard about
these allegations against Sergeant Marvin, that it “went downhill
from there”, and then that Chief Berry said that “we are going to
do a thorough investigation and you are going to cooperate.”).
Thus, Plaintiff’s affidavit statement does not directly contradict
his deposition testimony. Defendants’ motion to strike ¶ 35 is
DENIED.
Paragraphs 43, 44, 46, and 47
Paragraphs 43, 44, 46, and 47 of Plaintiff’s affidavit relate
to his involvement in the criminal investigation of Officer Lowry:
43. On March 4, 2005, as part of the criminal investigationinto Officer Lowry, Lieutenant San Antonio asked me to give astatement about Officer Lowry.
44. I declined to give a statement at that time.
46. On March 14, 2005, I voluntarily sought out LieutenantSan Antonio and asked to give a statement.
47. At no time was I ordered to give a statement; I chosevoluntarily to come forward as a witness.
Plaintiff’s deposition testimony describes three interactions
with Lieutenant San Antonio regarding the Lowry investigation.
Initially, Captain Reeves called Plaintiff while he was in Traffic
Court and told him he needed to report back to the MPD and see
Case 3:06-cv-00630-EBB Document 92 Filed 09/02/08 Page 9 of 61
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Lieutenant San Antonio. Ventura Depo. at 110 (Pl. Ex. C). When
asked if he felt that he could have refused to speak to Lieutenant
San Antonio, Plaintiff replied: “[w]ell, a lieutenant wants to talk
to you, then it’s a direct order.” Id. During this first meeting
with Lieutenant San Antonio, Plaintiff indicated that he would
cooperate in the Lowry investigation, but wanted to speak to his
union representative first. Id. at 109.
A few days later, a no-contact order was issued against
Plaintiff. Id. Plaintiff testified that “they issued [the] no-
contact order against me without getting my side of the story and
I said, listen, I want to sit down and talk to you guys. I felt I
was, this is what you want, I’ll give you the interview. You
refused to investigate my claim that I am innocent. [Officer Lowry]
is constantly contacting me and this no-contact order is false
accusations. So if I got to go on the record in an interview, then
that’s what I’ll do.” Id. at 106-107.
A few days after the no-contact order, Plaintiff gave a
statement to Lieutenant San Antonio. In his deposition, the
following colloquy took place regarding this statement:
Q: Okay. Now, I guess you testified earlier that as part of theLowry investigation, Lieutenant San Antonio originally came toyou asking for a statement and at that time you did not givea statement?
A: That’s correct. I did not.Q: Okay. How did it come about that you ultimately gave a
statement?A: I went to Lieutenant San Antonio freely of my own accord.Q: So when you finally did give a statement, did he come to you
again asking for a statement, or did you go to him saying, I
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want to give a statement?A: The second time I went to him. I believe I called him at his
house and said, I want to give a statement. Id. at 300.
Plaintiff ultimately gave a statement, which was then typed up
by Lieutenant San Antonio and signed by Plaintiff. Id. at 111.
Defendants argue that Plaintiff’s deposition testimony
conflicts with his affidavit statements, and that “at no time did
the Plaintiff testify that he was free to disregard the order from
[Lieutenant] San Antonio or that he was absolved of the
responsibility to participate in the investigation.” Reply to
Pl’s. Opp. to Defs’. Mot. to Strike at 5 [Doc. No. 87]. Defendants
point to Plaintiff’s testimony that he was called into the initial
meeting with Lieutenant San Antonio, and his admission that when “a
lieutenant wants to talk to you, it’s a direct order.” Id.
However, Plaintiff also testified that he “went to Lieutenant
San Antonio freely of [his] own accord” when he ultimately did give
a statement, which does not directly contradict ¶ 46 of his
affidavit statement that he “voluntarily sought out Lieutenant San
Antonio.” He testified that, at his first meeting with Lieutenant
San Antonio, he expressed his desire to speak to a union
representative before giving a statement, which does not contradict
¶ 44 of his affidavit statement that he “declined to give a
statement” at that time. Moreover, ¶ 43 of Plaintiff’s affidavit,
where he stated that he was “asked” to give a statement during his
initial meeting with Lieutenant San Antonio is not inconsistent
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with his testimony that he was “ordered” to attend this meeting.
Thus, Defendant’s motion to strike ¶¶ 43, 44, and 46 of Plaintiff’s
affidavit is DENIED.
Defendants maintain that ¶ 47 of Plaintiff’s affidavit, where
he stated that he “chose voluntarily to come forward as a witness”,
is contradicted by his deposition testimony stating that he asked
Lieutenant San Antonio to tell officers who were harassing him that
he was ordered to cooperate in the investigation. Ventura Depo. at
16 (Pl. Ex. C) (Plaintiff testifying that he expressed concern for
his safety and asked Lieutenant San Antonio to “please confront
[the other officers] and tell the guys, hey, I was ordered to
cooperate with the investigation, it was the right thing to do, and
I did and I came forward, again, not only as an officer but as a
taxpayer” and that Lieutenant San Antonio’s response was to say
that Plaintiff should “go live your life and be happy, put this
behind you”). Indeed, Plaintiff’s deposition testimony is not
clear on this point. While Defendants rightly point out that
Plaintiff testified that he asked Lieutenant San Antonio to tell
his fellow officers that he was ordered to participate in the Lowry
investigation, Plaintiff also testified that his participation was
voluntary. See, e.g. Ventura Depo. at 300 (“I went to Lieutenant
San Antonio freely of my own accord.”). Therefore, Defendant’s
motion to strike ¶ 47 is DENIED.
Paragraphs 28, 33, and 76
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Defendants move to strike ¶¶ 28, 33, and 76 of Plaintiff’s
affidavit on the grounds that they contain legal conclusions that
are not supported by the relevant evidence.
Paragraphs 28 and 33 state the following:
28. I believed that Sergeant Marvin’s behavior was wrong, andas a citizen and taxpayer of Manchester I felt anobligation to do something about it.
33. I was not ordered to speak to Captain Reeves; I did sobecause I felt it was the right thing to do, and because,as a taxpayer of Manchester and a citizen, I believed theintegrity of the department was being damaged by anofficer who was defrauding the town.
“Legal conclusions offered by both lay and expert witnesses
are inadmissible because it is not for a witness to instruct the
court on the law.” Brown-Criscuolo v. Wolfe, No. 3:05cv01486, 2007
WL 2439421, at *2 (D. Conn. Aug. 24, 2007). To the extent that
these paragraphs assert that Plaintiff was “acting as a citizen”
for the purposes of the court’s First Amendment analysis, these
paragraphs are inadmissible.
Paragraph 76 states:
76. The Town of Manchester contested my application forunemployment benefits, although it did not contestOfficer Lowry’s or Ms. Cushman’s. It is a documentedfact that the town made written false statements to thelabor dept. so I would be denied unemployment benefits.
Defendants argue that Plaintiff’s statement that the Town of
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Manchester made written false statements is a conclusory statement
not supported by any admissible evidence.
The “written false statements” that Plaintiff references
appear to be the Town’s assertion, in opposing Plaintiff’s
application for unemployment benefits, that Plaintiff had
voluntarily resigned. See Pl’s. Local Rule 56(a)(2) Statement at
¶ 40 (admitting that “the Town of Manchester opposed his
application for benefits, asserting that he had resigned
voluntarily,” but denying Defendants’ statement that his
resignation was voluntary).
Although Plaintiff is free to make factual assertions related
to this issue, the use of the phrase “documented fact” suggests
that it is already established that the Town made false statements
in opposing Plaintiff’s application for unemployment benefits.
Because there is nothing to support this statement, the court will
disregard this portion of ¶ 76.
In sum, Defendants’ motion to strike is GRANTED IN PART and
DENIED IN PART. In addition, the court will disregard those
portions of Plaintiff’s 56(a)(2) Statement that are not supported
by admissible evidence.
II. Motion for Summary Judgment
A. Standard of Review
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The standard for summary judgment is well established. A
moving party is entitled to summary judgment if it demonstrates
that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
An issue of fact is “material” if it “might affect the outcome of
the suit under the governing law”, while an issue of fact is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); see
also Konikoff v. Prudential Ins. Co. Of Am., 234 F.3d 92, 97 (2d
Cir. 2000). Upon motion, and following adequate time for
discovery, Rule 56(c) requires that summary judgment be entered
against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 2552 (1986). This showing may be made by “pleadings,
depositions, answers to interrogatories, and admissions on file,
and the Town’s failure to indicate that Plaintiff was eligible for
re-hire meets this standard.
Second, while “a merely discourteous work environment does not
rise to the level of First Amendment retaliation,” Second Circuit
precedent “allows a combination of seemingly minor incidents to
form the basis of a constitutional retaliation claim once they
reach a critical mass.” Phillips, 278 F.3d at 109. In this case,
a rational fact-finder could conclude that the incidents cited by
Plaintiff, including being denied backup and being labeled as a
rat, would deter a person of ordinary firmness from exercising his
constitutional rights. See, e.g. Phillips, 278 F.3d at 110
(holding that the plaintiff provided sufficient evidence of
harassment, retaliatory conduct, and adverse working conditions,
and noting that “[w]hile the incidents-such as defendants’ failure
to provide her with an adequate bullet-proof vest or proper
instruction regarding transfer of a prisoner, or defendants’
humiliating instruction to plaintiff about use of a time clock-may
seem minor when viewed in isolation, a finder of fact looking at
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them collectively over a period of several years reasonably could
find that they rise to the level of actionable harm.”).
Plaintiff also claims he was constructively discharged because
the alleged harassment and retaliation he suffered left him with no
choice but to resign from the MPD.
“Constructive discharge of an employee occurs when an
employer, rather than directly discharging an individual,
intentionally creates an intolerable work atmosphere that forces an
employee to quit involuntarily.” Chertkova v. Connecticut Gen.
Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). “A court must find
a constructive discharge where the employee resigns because an
employer causes to exist such conditions of such an unpleasant or
difficult nature that any reasonable person in the employee’s place
would do the same.” Flaherty v. Metromail Corp., 235 F.3d 133, 138
(2d Cir. 2000).
Defendants argue that Plaintiff’s claim of constructive
discharge is belied by the fact that, prior to Plaintiff’s
resignation, he received favorable evaluations, including a
positive reference from Chief Berry when he was looking for
unemployment in South Carolina. Defendants also note that Chief
Berry transferred Sergeant Marvin out of the Traffic Unit, a move
that the Plaintiff characterized as “very positive”, and that
Plaintiff received a five-month extended vacation prior to his
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4However, Defendants’ conduct after Plaintiff resigned would logicallybe irrelevant to his claim of constructive discharge, because Plaintiff claimsthat he was forced to resign because of mistreatment that occurred while hewas employed by the MPD. See, e.g. Stein v. New York State Dept. of MotorVehicles, 841 F.Supp. 42, 50 (N.D.N.Y. 1993) (finding unpersuasive aplaintiff’s argument that the court “retroactively consider . . . allegedpost-discharge retaliatory [conduct] as proof that [the] discharge was basedupon a retaliatory motive.”).
47
resignation.
However, from the admissible evidence that Plaintiff has put
forth, a rational fact-finder could conclude that Plaintiff’s work
conditions were such that he had “no choice” but to resign.4 For
example, Plaintiff was told that, upon returning from his leave, he
would be transferred to the Patrol Unit, a less desirable position
where he would work with and be supervised by the same officers who
allegedly called him a rat and denied him backup. In addition,
although Defendants argue that the fact that the other officers in
the Traffic Unit did not resign indicates that conditions could not
have been so intolerable for a “reasonable person”, there is
evidence in the record suggesting that Plaintiff was subject to
additional negative treatment as a result of his participation in
the Lowry/Cushman investigation.
C. Whether there was a causal connection between Plaintiff’s
speech and the employment actions at issue
In a First Amendment retaliation case, “[t]he causal
connection must be sufficient to warrant the inference that the
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protected speech was a substantial motivating factor in the adverse
employment action, that is to say, the adverse employment action
would not have been taken absent the employee's protected speech.
Causation can be established either indirectly by means of
circumstantial evidence, for example, by showing that the protected
activity was followed by adverse treatment in employment, or
directly by evidence of retaliatory animus.” Morris v. Lindau, 196
Plaintiff has not alleged the existence of a formal policy.
However, he contends that a reasonable jury could conclude that
“there existed a custom or practice within the [MPD] of retaliating
against officers who cross ‘the thin blue line’”. Pl’s. Mem. in
Opp. to Defs.’ Mot. for Summ. J. at 26-27 [Doc. No. 79]. The court
agrees. As previously noted, Plaintiff has put forth evidence
Case 3:06-cv-00630-EBB Document 92 Filed 09/02/08 Page 49 of 61
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that, if believed by the trier of fact, would demonstrate that he
experienced multiple incidents of harassment as a result of his
participation in the Marvin and Lowry/Cushman investigations. In
addition, the other officers in the Traffic Unit testified that
they were subject to negative treatment as a result of their
participation in the Marvin investigation. See, e.g. Barry v. New
York City Police Dept., No. 01 Civ.10627, 2004 WL 758299, at *13
(S.D.N.Y. Apr. 7, 2004) (finding that a reasonable jury could find
a custom of retaliation against officers who expose police
misconduct because “[u]nlike other cases in which courts have found
insufficient evidence of a custom of retaliation, plaintiff's
witnesses speak from firsthand experience about the blue wall of
silence and plaintiff alleges to have suffered a wide range of
retaliatory acts as opposed to one discrete instance of
retaliation.”). Thus, Plaintiff has presented evidence of a custom
of retaliation against those violating the “blue line” to support
his claim against the Town of Manchester and the individual
defendants in their official capacities.
III. Fourteenth Amendment
Plaintiff alleges a violation of the Fourteenth Amendment by
claiming that he was discriminated against “because of the exercise
of his First Amendment rights”, or in the alternative, that he was
“intentionally treated differently from others similarly situated
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5Defendants have filed a motion to supplement their memorandum insupport of summary judgment with the Supreme Court’s recent decision inEngquist. As is explained infra, the court finds that Engquist iscontrolling. Thus, Defendants’ motion [Doc. No. 88] is GRANTED.
51
and there is no rational basis for the difference in treatment.”
Amend. Compl. at ¶¶ 74,76 [Doc. No. 17].
As to Plaintiff’s first claim, the Second Circuit does not
recognize a claim for retaliation pursuant to the Fourteenth
Amendment. See Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996)
(“Although claims of retaliation are commonly brought under the
First Amendment ... and may also be brought under Title VII, ... we
know of no court that has recognized a claim under the equal
protection clause for retaliation following complaints of racial
discrimination”).
Furthermore, as explained below, Plaintiff’s second claim is
no longer viable after the Supreme Court’s recent decision in
Engquist v. Oregon Dept. Of Agriculture,128 S.Ct. 2146 (2008).5
The Fourteenth Amendment provides that “[n]o state shall ...
deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV, § 1. “Traditionally, the Equal
Protection clause of the Fourteenth Amendment protects against
[classification-based] discrimination.” Goldfarb v. Town of West
Hartford, 474 F.Supp.2d 356, 366 (D. Conn. 2007) (internal
quotation marks omitted). In some circumstances, the Supreme Court
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has also extended the equal protection guarantee to individuals who
allege no specific protected class-based discrimination, but
instead claim that they have been irrationally singled out as a so-
called “class of one”. See Village of Willowbrook v. Olech, 528
U.S. 562, 120 S.Ct. 1073 (2000).
In Engquist, the Supreme Court concluded that a “class of one”
equal protection claim is not cognizable in the public employment
context. Engquist v. Oregon Dept. Of Agriculture, 128 S.Ct. 2146
(2008). The Court reasoned that a “class of one” theory was a
“poor fit” in the public employment context, where “to treat
employees differently is not to classify them in a way that raises
equal protection concerns, [but r]ather to simply exercise the
broad discretion that typically characterizes the employer-employee
relationship.” Engquist, 128 S.Ct. at 2155. The Court also
expressed concern that ratifying such a claim would “impermissibly
constitutionalize the employee grievance”. Id. at 2157 (internal
citations and quotation marks omitted); see also id. at 2156 (“If,
as [the plaintiff] suggests, plaintiffs need not claim
discrimination on the basis of membership in some class or group,
but rather may argue only that they were treated by their employers
worse than other employees similarly situated, any personnel action
in which a wronged employee can conjure up a claim of differential
treatment will suddenly become the basis for a federal
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constitutional claim.”).
Plaintiff argues that Engquist is inapplicable because he “is
not claiming that he is a ‘class of one’”. Pl’s. Mem. in Opp. to
Defs.’ Mot. to Suppl. Mot. for Summ. J. at 1 [Doc. No. 90].
Rather, Plaintiff states that he is one of four officers – the
Traffic Unit – who experienced retaliation after participating in
the investigation of Sergeant Marvin. Id.
However, ¶ 84 of Plaintiff’s complaint, alleging that “the
plaintiff was intentionally treated differently from others
similarly situation [sic] and there is no rational basis for the
difference in treatment”, is a recitation of a “class of one”
claim. See e.g. Village of Willowbrook v. Olech, 528 U.S. 562,
564, 120 S.Ct. 1073 (2000) (“[o]ur cases have recognized successful
equal protection claims brought by a ‘class of one,’ where the
plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.”).
Although Plaintiff attempts to broaden his “class” to include
the other officers in the Traffic Unit, Plaintiff’s complaint
clearly focuses on him alone. See Amend. Compl. at ¶ 83 (alleging
that Defendants “deprived the plaintiff of equal protection of the
laws by treating him differently from those similarly situated. .
.”. (emphasis added). In addition, while Plaintiff alleges that
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his fellow traffic officers engaged in some of the same conduct
that he did, he also alleges that he engaged in additional conduct
that subjected him to retaliation – specifically, his participation
in the Lowry/Cushman investigation. Id. at ¶¶ 19-21.
For these reasons, Defendant’s motion for summary judgment as
to Plaintiff’s equal protection claim under the Fourteenth
Amendment is GRANTED.
IV. 42 U.S.C. 1985(3)
Plaintiff alleges that the individual Defendants violated 42
U.S.C. § 1985 by conspiring to deprive him of his rights and
privileges as a United States citizen.
To state a cause of action under § 1985, a plaintiff must
allege (1) a conspiracy; (2) for the purpose of depriving a person
or class of persons of the equal protection of the laws; (3) an
overt act in furtherance of the conspiracy; and (4) injury to the
plaintiff’s person or property, or a deprivation of a right or
privilege of a citizen of the United States. Thomas v. Roach, 165
F.3d 137, 146 (2d Cir. 1999). A conspiracy “need not be shown by
proof of an explicit agreement but can be established by showing
that the ‘parties have a tacit understanding to carry out the
prohibited conduct.’” LeBlanc-Sternberg v. Fletcher, 67 F.3d 412,
427 (2d Cir. 1995) (quoting United States v. Rubin, 844 F.2d 979,
984 (2d Cir. 1988). However, the plaintiff must show that “‘some
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racial, or perhaps otherwise class-based, invidiously
discriminatory animus [lay] behind the conspirators’ action.’” Id.
(quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790,
1798 (1971)).
Plaintiff has presented evidence of alleged retaliation by
Sergeant Beeler and Captain Montminy, as well as evidence that
Sergeant Beeler was a friend of Officer Lowry. However, he has
not produced any proof, circumstantial or otherwise, of an
understanding between Captain Montminy and Sergeant Beeler to
deprive him of his rights. Even if he had, Plaintiff’s asserted
class membership as part of the Traffic Unit is insufficient for
1985(3) purposes. See Bray v. Alexandra Women’s Health Clinic, 506
U.S. 263, 269 113 S.Ct. 753, 759 (1993) (stating that “[w]hatever
may be the precise meaning of a ‘class’ for purposes of [§
1985(3)’s extension] beyond race, the term unquestionably connotes
something more than a group of individuals who share a desire to
engage in conduct that the § 1985(3) defendant disfavors.”).
Therefore, Defendant’s motion for summary judgment as to Count
3 of Plaintiff’s complaint, alleging a violation of 42 § 1985(3),
is GRANTED.
V. Qualified Immunity
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Under the doctrine of qualified immunity, “government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The “threshold inquiry . . . is whether
plaintiff’s allegations, if true, establish a constitutional
violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If they do
not, then the inquiry is over. Saucier v. Katz, 533 U.S. 194, 201
(2001). However, “if a [constitutional] violation could be made
out on a favorable view of the [plaintiff’s] submissions, the next,
sequential step is to ask whether the right was clearly
established.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
A legal right is clearly established if the contours of the
right are “sufficiently clear that a reasonable person would
understand that what he is doing violates the right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). The Second Circuit “[has]
interpreted this standard to require three elements: (1) . . .
[that] the right in question [be] defined with ‘reasonable
specificity’; (2) [that] the decisional law of the Supreme Court
and the applicable circuit court support the existence of the right
in question; and (3) [that] under preexisting law a reasonable
defendant official would have understood that his or her acts were
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