Matthews v. Blumenthal et al
MEMORANDUM OF DECISION granting 132 Motion for Judgment on the Pleadings. The Clerk is instructed to close this case. Signed by Judge Warren W. Eginton on 4/11/2011. (Cepler, C.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SGT. ANDREW N. MATTHEWS,
COL. EDWARD LYNCH,
MAJ. CHRISTOPHER ARCIERO,
LT. WILLIAM PODGORSKI, COL. THOMAS
DAVOREN, COMMISSIONER JOHN
MEMORANDUM OF DECISION ON DEFENDANTS’
MOTION FOR JUDGEMNT ON THE PLEADINGS
Plaintiff Sergeant Andrew N. Matthews of the Connecticut State Police brings
this action alleging a violation of his First Amendment rights by defendants Col. Edward
Lynch, Maj. Christopher Arciero, Lt. William Podgorski, Col. Thomas Davoren and
Commissioner John Dannaher III.1 Now pending is defendants’ motion for judgment on
the pleadings (Doc. #132), which, for the following reasons, will be granted.
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
As on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court accepts
all allegations of the operative complaint as true for purposes of ruling on a motion
pursuant to Fed. R. Civ. P. 12(c).2
Former-Attorney General Richard Blumenthal was originally named as a
defendant in this action. Plaintiff dismissed all claims against Blumenthal pursuant to
the first amended complaint.
At the time defendants filed their motion, the operative complaint was the
first amended complaint. In response to defendants’ qualified immunity argument,
Plaintiff is a sergeant employed by the Connecticut State Police (“CSP”).
Defendants Lynch, Arciero, Podgorski and Davoren are each members of the CSP.
Defendant Dannaher is the Commissioner of the Connecticut Department of Public
Safety. Each is sued only in his individual capacity.
Between July 2004 and July 2005, plaintiff worked as an internal affairs officer
for the CSP. His responsibilities included investigating complaints of misconduct by the
members of the CSP.
In the course of his duties, plaintiff learned that the CSP had a pattern and
practice of covering up the misconduct of its officers. This misconduct included the
commission of crimes, driving while intoxicated, family violence, misuse of state funds
and other acts which would bring discredit to the CSP. Plaintiff disclosed information
about favoritism within the CSP to the New York State Police (“NYSP”) and the
Connecticut Attorney General’s Office. This favoritism had resulted in complaints
against certain troopers being quashed if those troopers were the favorites of senior
officers. Plaintiff offered sworn testimony to the NYSP, who had been asked to
investigate claims that the CSP was engaged in covering up trooper misconduct.
In June 2005, plaintiff sought the advocacy and protection of the Attorney
General’s Office as a whistleblower pursuant to the Connecticut whistleblower statute,
Conn. Gen. Stat. § 4-61dd, telling members of the Attorney General’s Office and the
Connecticut Auditors of Public Accounts about affirmative acts of corruption that he had
plaintiff sought to file a second amended complaint, which defendants did not oppose.
The Court granted plaintiff’s motion (Doc. #164) and will look to the second amended
complaint (Doc. #165) as the operative one in this ruling.
witnessed as a member of the CSP. Plaintiff was designated as a whistleblower by the
Attorney General’s Office in August 2005.
On June 6, 2006, plaintiff wrote a letter to the Attorney General’s Office alleging
that defendant Lynch had moved him to headquarters in direct retaliation for providing
information to the Attorney General’s Office. On May 9, 2007, the Attorney General’s
Office released the “Report of the Office of the Attorney General Pursuant to Section 461dd of the Connecticut General Statues. Report on the Allegations of Retaliation
Against Sgt. Andrew Matthews of the Connecticut State Police.”
After plaintiff broke ranks with the CSP and disclosed the CSP’s involvement
with covering up misconduct by active officers, defendants Lynch, Podgorski and
Arciero decided that plaintiff should be isolated from contact with other officers. As
such, he was ordered transferred from the Internal Affairs office to an office in
headquarters and to other locations where his activities could more easily be monitored
and where he would be in closer proximity to known targets of corruption investigators.
Shortly after arriving at headquarters, a note was left on plaintiff’s desk bearing
the word, “Cancer.” Because of this note and other matters, plaintiff expressed concern
for his physical safety to defendants Lynch, Podgorski and Arciero. Despite this, he
was forced to remain at headquarters.
In late 2006, the NYSP report was publicized. It indicated that the CSP had a
pattern and practice of tolerating unethical and unlawful acts of its troopers.
In June 2006, plaintiff filed a complaint with the Connecticut Commission on
Human Rights and Opportunities that he had been retaliated against in his employment
by members of the CSP. A hearing was scheduled for May 2007.
In early 2007, plaintiff’s union complained to defendants Davoren, Podgorski and
Arciero that the union feared for plaintiff’s physical safety as a result of his whisteblower
status and because plaintiff was known to speak publicly about corruption within the
CSP. Defendants Davoren, Podgorski and Arciero refused to permit plaintiff to take a
paid leave of absence. In addition, defendants Davoren, Podgorski and Arciero caused
an internal affairs investigation of plaintiff to be undertaken regarding acts alleged to
have occurred years earlier.
Defendant Dannaher was aware that plaintiff was given whistleblower status by
the Attorney General’s Office. On November 1, 2007, Dannaher assigned plaintiff to
Brainard Field as his work location even though he had received a letter from the
Attorney General’s Office expressing concern regarding this work location for plaintiff.
Dannaher also received a letter from plaintiff’s counsel regarding the hostile and
potentially violent work location for plaintiff at Brainard Field. In part, this letter stated:
I have no doubt that Sgt. Matthews is walking into an extremely
hostile, possibly dangerous, environment for him to be in.
Based on my discussion with Trooper Steve Samson, the
troopers at Brainard Field do not want Sgt. Andy Matthews, the
whistleblower, at their location. I believe the internal affairs
investigation of the aviation unit at Brainard Field which is
being conducted by Lt. Marty Lane will also substantiate this
hostile environment. According to Trooper Samson, the other
troopers believe that Sgt. Matthews was responsible for
Trooper Samson's whistleblower complaint regarding the
trooper who threatened to shoot not only troopers but civilians
at Brainard Field. This trooper, who is under internal
investigation, is still working and carrying a gun.
Dannaher appointed Lieutenant Spellman to the board for the recent CSP lieutenant’s
exam. Dannaher was aware that Spellman had filed a complaint against plaintiff which
made plaintiff the subject of an internal affairs investigation and that Spellman was
furious with plaintiff for coming forward as a whistblower.
Plaintiff alleges that defendants’ acts were intended to silence him and force him
to leave public employment.
A motion for judgment on the pleadings under Rule 12(c) is evaluated like a
motion to dismiss pursuant to rule 12(b)(6). Patel v. Contemporary Classics of Beverly
Hills, 259 F.3d 123, 126 (2d Cir. 2001). As with a motion to dismiss, it is meant “merely
to assess the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.” Ryder Energy Distribution v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (referring to motion to dismiss).
When deciding a rule 12(c) motion, the court must accept all well-pleaded allegations
as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467
U.S. 69, 73 (1984) (referring to motion to dismiss).
Plaintiff claims that he faced retaliation because of his whistleblowing activities in
violation of the First Amendment to the United States Constitution.
For plaintiff’s claim to be viable, his speech must have been protected under the
First Amendment. Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008).
Protected speech must be made by plaintiff as a citizen and be on a matter of public
concern. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). If plaintiff did not speak as a
citizen or the speech is not on a matter of public concern, he can have no First
Amendment retaliation claim. Sousa v. Roque, 578 F.3d 164, 169 (2d Cir. 2009).
The Court must first determine whether plaintiff was speaking as a citizen for
First Amendment purposes pursuant to Garcetti. In Garcetti, the Supreme Court held
that “when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” 547
U.S. at 421. Thus, if plaintiff's speech was required by his job as a state trooper, then
his statements are not protected speech. If not, the Court must consider whether
plaintiff's statements addressed a matter of public concern. Connick, 461 U.S. 138.
Whether an employee spoke “pursuant to” his job duties is an objective, practical
inquiry. Garcetti, 547 U.S. at 424; Weintraub v. Bd. of Educ., 593 F.3d 196, 202 (2d
Cir. 2010). The “pursuant to” inquiry turns on whether the speech “owes its existence to
a public employee's professional responsibilities.” Garcetti, 547 U.S. at 421;
Weintraub, 593 F.3d at 202. In construing an employee’s job duties, the Garcetti Court
[f]ormal job descriptions often bear little resemblance to the
duties an employee actually is expected to perform, and the
listing of a given task in an employee's written job description
is neither necessary nor sufficient to demonstrate that
conducting the task is within the scope of the employee's
professional duties for First Amendment purposes.
Garcetti, 547 U.S. at 424-25. Rather, courts have found that speech pursuant to official
duties or “in furtherance of such duties” qualifies. See Weintraub, 593 F.3d at 202. In
Weintraub, the Court of Appeals concluded that a public employee spoke pursuant to
his official job duties when his speech was “part-and-parcel of his concerns” about his
ability to “properly execute his duties.” Id. The Court did not mandate the speech be
“required by, or included in, the employee's job description, or in response to a request
by the employer.” Id.
The Fifth Circuit has held that where an employee speaks not only up the chain
of command, but to persons outside his workplace, “those external communications are
ordinarily not made as an employee, but as a citizen.” Davis v. McKinney, 518 F.3d
304, 313 (5th Cir. 2008); Carter v. Inc. Vill. of Ocean Beach, 693 F. Supp. 2d 203, 210
(E.D.N.Y. 2010); see also Garcetti, 547 U.S. at 423 (“Employees who make public
statements outside the course of performing their official duties retain some possibility
of First Amendment protection because that is the kind of activity engaged in by citizens
who do not work for the government.”).
According to the complaint, plaintiff spoke to the NYSP and the Attorney
General’s Office regarding his concerns about misconduct within the CSP. He further
alleged that his job duties include investigating complaints of trooper misconduct.
These activities lead to the conclusion that plaintiff spoke pursuant to his professional
duties, and, therefore, his speech is not protected by the First Amendment under
Plaintiff attempts to show that his speech was not made pursuant to his official
duties because he was acting as a whistleblower pursuant to Conn. Gen. Stat. § 4-61dd
and because he reported the misconduct outside his chain of command. These
arguments do not change the Court’s conclusion.
As to plaintiff’s whistleblower contention, “investigating and reporting crime are
the core functions of a law enforcement officer.” Paola v. Spada, 2007 U.S. Dist. LEXIS
99307 (D. Conn. Dec. 7, 2007), aff’d, 372 Fed. Appx. 143 (2d Cir. 2010). As a police
officer with the Internal Affairs office, plaintiff was charged with investigating and
reporting crime. See Paola, 2007 U.S. Dist. Lexis 99307, *7-8 (discussing
responsibilities of police officers under Connecticut law); Conn. Gen. Stat. § 29-7.
When plaintiff saw misconduct, he reported it to authorities who are “tasked by statute
to investigate reports of corruption and wrongdoing within Connecticut State Agencies
and Department.” The rejection of plaintiff’s claim then boils down to the fact that he
was a police officer charged with reporting crime and that he did in fact report
misconduct to the agencies to which he was supposed to report such misconduct.
It does not matter than all citizens are permitted to report misconduct to the
NYSP or the Attorney General’s Office. In cases where courts have found that a welldefined statutory avenue for all citizens meant that the plaintiff was speaking as a
citizen, it was because the plaintiff reported to a body outside of his job responsibilities.
For example, in Caraccilo v. Vill. of Seneca Falls, the court denied summary judgment
because it could not conclude that plaintiff was required by her job duties to report to
those agencies to which she had reported. The chief focus was not whether the
avenue was open to all – citizens and employees – but rather on why the plaintiff
utilized that avenue. See Caraccilo, 582 F. Supp. 2d 390, 412 (W.D.N.Y. 2008).
In addition, in Anemone v. Metro. Transp. Auth., the Court of Appeals held that a
plaintiff who reported misconduct to the district attorney was not protected by the First
Amendment. The Court’s conclusion rested on the fact that although the district
attorney was outside of his chain of command, the plaintiff had spoken pursuant to
what he believed to be his official duty. 629 F.3d 97, 115-17 (2d Cir. 2011).
Finally, the pre-Garcetti opinion in Cioffi v. Averill Park Central Sch. Dist. Bd. of
Educ. similarly involves a plaintiff who held a press conference to report misconduct of
a public concern. In that case, plaintiff was not required to report the misconduct to the
audience that he did. See Cioffi, 444 F.3d 158 (2d Cir. 2006). Cioffi supports the
oddity that plaintiff’s speech may be protected when made to one audience but not, as
here, when made to another. See Morales v. Jones, 494 F.3d 590, 598 (7th Cir. 2007);
see also Garcetti, 547 U.S. at 427 (Stevens, J., dissenting).
Plaintiff raises the form of his actions over the substance. The case law under
Garcetti suggests that an employee’s professional duties and responsibilities are to be
interpreted broadly. It is therefore not appropriate to look only to the form of plaintiff’s
actions. His actions in informing authorities about misconduct within the CSP, however
laudatory, was done in accordance with his professional duties and responsibilities as a
state trooper. As such, they are not protected by the First Amendment. Plaintiff’s
complaint will be dismissed.
For the foregoing reasons, defendants’ motion for judgment on the pleadings
(Doc. #132) is GRANTED. The Clerk is instructed to close this case.
Dated at Bridgeport, Connecticut, this 11th day of April, 2011.
Warren W. Eginton
Senior United States District Judge
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