Nyenhuis v. Metropolitan District Commission et al

Filing 107

ORDER granting 59 Defendants' Motion for Summary Judgment. Signed by Judge Alvin W. Thompson on 7/1/2011. (Jean-Louis, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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GABRIELE NYENHUIS,
:
:
Plaintiff,
:
:
v.
:
:
THE METROPOLITAN DISTRICT
:
COMMISSION, CHARLES P. SHEEHAN,:
SERGEANT JAMES HARDING, and
:
OFFICER MATTHEW DANVILLE,
:
:
Defendants.
:
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Case No. 3:08CV069(AWT)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff, Gabriele Nyenhuis (“Nyenhuis”), brings this
action against the defendants, the Metropolitan District
Commission (the “MDC”), Sergeant James Harding (“Harding”) in his
official and individual capacities, and Officer Matthew Danville
(“Danville”) in his individual capacity.1

The Revised Amended

Complaint contains the following claims: Count One, as to all
defendants, violation of 42 U.S.C. § 1983, based on the First
Amendment; Count Two, as to all defendants, violation of 42
U.S.C. § 1983, based on denial of equal protection of the laws;
Count Three, as to the MDC, violation of Connecticut General
Statutes § 31-51q; Count Four, as to defendants Harding, in his
individual capacity, and Danville, violation of 42 U.S.C. § 1983,
based on deprivation of liberty by means of a defamatory
statement, i.e., a “stigma-plus” claim; Count Five, as to

1

The plaintiff withdrew the complaint as to Charles P.
Sheehan (“Sheehan”). (See Doc. No. 16.)

defendants Harding, in his individual capacity, and Danville,
defamation; Count Seven, as to the MDC, a Monell claim pursuant
to 42 U.S.C. § 1983; and Count Eight, as to Harding, in his
individual capacity, and Danville, intentional infliction of
emotional distress.

The defendants have moved for summary

judgment on all the remaining counts.

For the reasons set forth

below, the defendants’ motion for summary judgment is being
granted.
I.

FACTUAL BACKGROUND
The MDC is a municipal corporation created and existing as a

political subdivision of the state of Connecticut.

The MDC

Police Department protects and patrols approximately 30,000 acres
of property owned by the MDC in Connecticut.

The plaintiff was

hired by the MDC Police Department in July 2002.
A.

CHRO/EEOC Complaint

In 2003, the plaintiff began experiencing a series of
discriminatory acts relating to her age and gender, including an
incident where her supervisor, defendant Harding, harassed and
yelled at her and treated her differently from a younger female
officer.

In June 2005, the plaintiff and another female officer

filed complaints with the Connecticut Commission on Human Rights
and Opportunities (the “CHRO”) against the MDC and Harding.

The

plaintiff’s CHRO complaint claimed age and sex discrimination.
In it, the plaintiff alleged that she had been “poorly evaluated
on or about March 2005"; that she had been continuously

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“retaliated against on the basis of [her] participation in a
civil rights issue . . .”; that she had been slandered; and that
defendant Harding had “revealed her private, confidential medical
information” to a third person.
Mot.”) (Doc. No. 59) Ex. L)

(Defs.’ Mot. Summ. J. (“Defs.’

The plaintiff’s CHRO complaint was

dual-filed with the Equal Employment Opportunity Commission (the
“EEOC”).
The MDC then retained the services of UHY Advisors (“UHY”),
a business consulting firm, to evaluate the MDC Police
Department.

UHY’s objective “was to conduct a limited

operational review of the Patrol Division to ascertain the
validity of several complaints by employees . . . [alleging]
instances of management retaliation and derogatory comments . . .
favoritism and unequal treatment of officers.”

(Pl.’s Opp’n

Defs.’ Mot. Summ. J. (“Opp.”) (Doc. No. 92) Ex. 3 at p.2) With
the evaluation underway, the plaintiff withdrew the CHRO and EEOC
complaints.

In September 2005, UHY identified several areas of

deficiencies in the MDC with respect to its operations; however,
UHY did not find any information “that conclusively
substantiate[d] allegations of management retaliation and
favoritism.” (Id. at 5)
B.

Atkins Incident

On April 19, 2006, the plaintiff worked the evening shift
and was assigned to the West Hartford Reservoir.

The plaintiff

closed half of the West Hartford Reservoir gate early to prevent
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people from coming in.

After closing half the gate, the

plaintiff was involved in an incident with Stephen Atkins
(“Atkins”), a West Hartford resident who was a frequent visitor
to the West Hartford Reservoir.
public until 8:00 p.m.
7:25 p.m.

The reservoir was open to the

The plaintiff closed half the gate at

Atkins entered the reservoir soon after she did so.

The plaintiff told Atkins that the reservoir was closed, and
Atkins informed the plaintiff that she should leave him alone and
he was just walking his dog.
for a walk.
officer.

Atkins proceeded to take his dog

The plaintiff contacted Danville, her backup

Danville agreed to come to the scene and assist the

plaintiff, but he advised the plaintiff that it would take him
awhile to get to there because he was in Winsted.

While Danville

was en route to the reservoir, Danville contacted Harding to
notify him that he was leaving his assignment to backup the
plaintiff, and to report on the situation.

Harding stated to

Danville that they could not prevent people from entering the
reservoir before 8:00 p.m.
Meanwhile, Atkins returned from walking his dog in the
reservoir and walked towards his vehicle.
approximately 10 minutes.

The plaintiff approached Atkins and

asked him for identification.
vehicle.

His walk had lasted

Atkins ignored her and went to his

Atkins had begun to turn his vehicle around to exit the

reservoir when the plaintiff approached the driver’s side of the
vehicle on foot.

There was an exchange of words between the
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plaintiff and Atkins, and Atkins began to drive towards the gate.
The plaintiff sprayed her department-issued pepper spray at
Atkins and his vehicle as he was driving towards the gate.
The plaintiff contacted Danville a second time, alerting him
to the events that had just taken place, including the fact that
she had pepper sprayed Atkins’ vehicle.

The plaintiff also

called the West Hartford Police Department (the “WHPD”) and spoke
to Officer Nicholas Roman (“Roman”) about the incident.

The

plaintiff did not tell Roman that she had used pepper spray
during the incident.

When Roman called the plaintiff to report

that assistance would be provided, the plaintiff told Roman that
Danville was coming to assist her and she no longer needed
assistance from the WHPD.

Danville arrived at the West Hartford

Reservoir at approximately 7:50 p.m.

The plaintiff stated that

she wanted to arrest Atkins for trespassing and interfering.
Danville did not believe there was probable cause to arrest
Atkins and told the plaintiff so.
C.

No arrest was made.

Investigation and Arrest of Nyhenuis

On April 20, 2006, Atkins contacted the WHPD to lodge a
complaint against the plaintiff.

Thereafter, Harding was

contacted by the WHPD and advised that a citizen wanted to make a
complaint.

Harding met with Atkins at the WHPD station.

Atkins

told Harding that he wanted to make a civilian complaint of
assault.

Harding then talked with the WHPD about whether it

could conduct the investigation with respect to Atkins’ complaint
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because Harding did not want to investigate a member of his own
department.

Harding met with MDC chief executive officer

Sheehan, an individual from human resources and an officer who
was second in command to alert them to the incident involving
Atkins and to place the plaintiff on administrative duty so the
plaintiff would not be interacting with Atkins until the matter
was resolved.

Later that day, the plaintiff was placed on paid

administrative duty.

Harding took the plaintiff’s gun, sent the

plaintiff home and told her to write a report about the incident.
On April 23, 2006, Danville submitted a report on the Atkins
incident.

On April 24, 2006, the plaintiff submitted a report to

Harding on the Atkins incident.

On April 25, 2006, the WHPD

agreed to conduct an investigation into the criminal aspects of
Atkins’ complaint.

Lieutenant Joseph LaSata (“LaSata”) was

assigned to investigate Atkins’ complaint.

As part of the

investigation, LaSata interviewed Atkins, Harding, Danville,
Roman and a citizen named Philip Mays, who was a witness to the
incident.

The plaintiff declined to be interviewed, but

submitted a case report on May 3, 2006.

Atkins submitted a

written statement in which he accused the plaintiff of using
excessive force and referred to her as a “menace to the
community.”

(Defs.’ Mot. at Ex. L)

version of the incident.

Mays corroborated Atkins’

LaSata identified a number of

inconsistencies in the report submitted by the plaintiff and the
accounts of the incident given by Mays and Atkins.
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He concluded

that the plaintiff had submitted and signed an official MDC
police report knowing that the information in it was false, and
that she had accused Atkins of criminal offenses that had not
been comitted.
On June 7, 2006, after the WHPD investigation was completed,
the WHPD issued a warrant for the plaintiff’s arrest charging her
with one count of Assault in the Third Degree in violation of
Conn. Gen. Stat. § 53a-61, one count of Reckless Endangerment in
the Second Degree in violation of Conn. Gen. Stat. § 53a-64, and
one count of Falsely Reporting an Incident in the Second Degree
in violation of Conn. Gen. Stat. § 53a-180c.
arrested on June 14, 2006.

The plaintiff was

On November 6, 2007, after a trial in

Connecticut Superior Court in Hartford, the plaintiff was found
not guilty on all charges.

On November 8, 2007, the plaintiff

returned to her patrol duties with the MDC.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law.
R. Civ. P. 56(c).

Fed.

See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Gallo v. Prudential Residential Servs., 22 F.3d
1219, 1223 (2d Cir. 1994).

When ruling on a motion for summary

judgment, the court may not try issues of fact, but must leave
those issues to the jury.

See, e.g., Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. of
Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the trial

court’s task is “carefully limited to discerning whether there
are any genuine issues of material fact to be tried, not to
deciding them.

Its duty, in short, is confined . . . to issue-

finding; it does not extend to issue-resolution.”

Gallo, 22 F.3d

at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine

. . . if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248

(internal quotation marks omitted).

A material fact is one that

would “affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248.

Only those facts that must be decided

in order to resolve a claim or defense will prevent summary
judgment from being granted.
prevent summary judgment.

Immaterial or minor facts will not

See Howard v. Gleason Corp., 901 F.2d

1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d
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33, 41 (2d Cir. 2000)(quoting Delaware & Hudson Ry. Co. v.
Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
However, the inferences drawn in favor of the nonmovant must be
supported by evidence.

“[M]ere speculation and conjecture” is

insufficient to defeat a motion for summary judgment.

Stern v.

Trustees of Columbia University, 131 F.3d 305, 315 (2d Cir. 1997)
(quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118,
121 (2d. Cir. 1990)).

Moreover, the “mere existence of a

scintilla of evidence in support of the [nonmovant’s] position”
will be insufficient; there must be evidence on which a jury
could “reasonably find” for the nonmovant.

Anderson, 477 U.S. at

252.
III. DISCUSSION
A.

Counts One and Three: § 1983 First Amendment
Retaliation and Conn. Gen. Stat. § 31-51q

“Connecticut courts have concluded that the application of
[Conn. Gen. Stat.] section 31-51q is coextensive with that of the
First Amendment, and therefore, the two provisions are to be
interpreted identically.”

Baldyga v. City of New Britain, 554 F.

Supp. 2d 268, 278 (D. Conn. 2008).

“To support a claim that he

was retaliated against for his speech, 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

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adverse employment action. . . .

Speech is [on] a matter of

public concern if relates to any matter of political, social, or
other concern to the community.”
quotation marks omitted).

Id. (citations and internal

“Whether an employee’s speech

addresses a matter of public concern is a question of law for the
court to decide, taking into account the content, form, and
context of a given statement as revealed by the whole record.”
Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999).

“Where the

speech is on a matter of personal interest only, the ‘government
officials should enjoy wide latitude in managing their offices,
without intrusive oversight by the judiciary . . . .’”

Baldyga,

554 F. Supp. 2d at 278(quoting Connick v. Myers, 461 U.S. 138,
146 (1983)).
The plaintiff contends that she was retaliated against in
connection with the Atkins incident because she had filed her
CHRO/EEOC complaint.

She asserts that the CHRO/EEOC complaint

dealt with the operation of the MDC and its police department,
and with the MDC’s failure to address systemic issues with
respect to the police department.

However, the plaintiff’s

CHRO/EEOC complaint references only specific instances of
discrimination against the plaintiff because of her age and/or
gender and retaliation against the plaintiff.

There is no

indication in the plaintiff’s CHRO/EEOC complaint that the
plaintiff was attempting to speak on a matter of public concern,
as opposed to matters of personal interest.
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Thus, the plaintiff has not created a genuine issue of
material fact as to whether she was retaliated against because
she exercised her First Amendment rights.

Accordingly, the

motion is being granted as to Counts One and Three.
B.

Count Two: § 1983 Equal Protection

In Engquist v. Oregon Department of Agriculture, 553 U.S.
591 (2008), the United States Supreme Court stated that “[i]n
concluding that the class-of-one theory of equal protection has
no application in the public employment context - and that is all
we decide - we are guided, as in the past, by the ‘common-sense
realization that government offices could not function if every
employment decision became a constitutional matter.’” 553 U.S. at
607.

See Clayton v. City of Middletown, 564 F. Supp. 2d 105, 115

(D. Conn. 2008)(applying Engquist to municipalities).
In the instant case, the plaintiff is employed by a
municipal corporation.

Accordingly, the motion is being granted

as to Count Two.
C.

Count Four: § 1983 Deprivation of Liberty

“A § 1983 liberty interest claim . . . referred to as a
‘stigma plus’ claim . . . requires a plaintiff to allege (1) the
utterance of a statement about her that is injurious to her
reputation, ‘that is capable of being proved false, and that . .
. she claims is false,’ and (2) ‘some tangible and material
state-imposed burden . . . in addition to the stigmatizing
statement.’”

Velez v. Levy, 401 F.3d 75, 87 (2d Cir.
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2005)(citation omitted; internal quotation marks omitted).
“[B]ecause [a] free-standing defamatory statement . . . is not a
constitutional deprivation, but is instead properly viewed as a
state tort of defamation, . . . the ‘plus’ imposed by the
defendant must be a specific and adverse action clearly
restricting the plaintiff’s liberty - for example, the loss of
employment . . . or the termination or alteration of some other
legal right or status.”

Id. at 87-88 (citations omitted;

internal quotation marks omitted).

“Burdens that can satisfy the

‘plus’ prong under this doctrine include the deprivation of a
plaintiff’s property, . . . and the termination of a plaintiff’s
government employment . . .

Other circuits have found that

direct interference with a plaintiff’s business may also
constitute a ‘plus’ under this doctrine. . . .

However,

‘deleterious effects [flowing] directly from a sullied
reputation,’ standing alone, do not constitute a ‘plus’ under the
‘stigma plus’ doctrine.”

Sadallah v. City of Utica, 383 F.3d 34,

38 (2d Cir. 2004)(citations omitted).
Assuming arguendo that the plaintiff can establish that a
defamatory statement was made, the plaintiff has failed to create
a genuine issue of material fact as to whether she suffered an
adverse action that restricted her liberty.

The plaintiff

contends that she suffered such an adverse action because she
used her vacation and earned time to attend hearings as a result
of her arrest in connection with the Atkins incident and she had
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to meet with her attorney and prepare for court to defend against
the criminal charges against her.

She states that she used 192

hours of sick time, 47.5 hours of earned time and 249.5 hours of
vacation time.
However, mere financial harm to the plaintiff as a result of
the alleged defamation is not sufficient to constitute the stateimposed burden for purposes of a stigma-plus claim.

The Second

Circuit observed in Sadallah that damage to business reputation,
deprivation of the good will in a business, and discouraging
customers from patronizing a business are “not ‘in addition to’
the alleged defamation . . . but rather are direct ‘deleterious
effects’ of that defamation.”

Sadallah, 383 F.3d at 39.

“A

generalized allegation of financial harm is insufficient to meet
the required ‘tangible injury’ element for a § 1983 action based
on injury to one’s reputation.”
2d 258, 265 (W.D.N.Y. 1998).

Cherry v. Jorling, 31 F. Supp.

“Most, if not all, charges of

defamation are inevitably accompanied by financial loss. . . .
[H]owever, . . . financial harm resulting from government
defamation alone is insufficient to transform a reputation
interest into a liberty interest.”

Sturm v. Clark, 835 F.2d

1009, 1012-13 (3d Cir. 1987)(citing Paul v. Davis, 424 U.S. 693
(1976)).

Here, the plaintiff’s employment was never terminated

and she was not deprived of any legal right or status.

The

plaintiff’s sole claimed harm, financial loss that was a direct
deleterious effect of the alleged defamation, is not sufficient
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to support a stigma-plus claim.
Accordingly, the plaintiff has not created a genuine issue
of material fact as to whether she suffered an adverse action
restricting her liberty in addition to a stigmatizing statement,
and the motion is being granted as to Count Four.
D.

Count Seven: § 1983 Monell Claim

As discussed above, the plaintiff has not created a genuine
issue of material fact as to whether there was a violation of her
rights under the United States Constitution.

As a consequence,

there is no genuine issue of material fact as to whether such a
violation occurred as a result of any policy, custom or practice
of defendant MDC.

Accordingly, the motion is being granted as to

Count Seven.
E.

Count Five - Defamation, and Count Eight - Intentional
Infliction of Emotional Distress

Because summary judgment has been granted as to all of the
plaintiff’s federal-law claims, the court declines, pursuant to
28 U.S.C. § 1367(c), to exercise supplemental jurisdiction over
the plaintiff’s remaining state law claims for defamation and
intentional infliction of emotional distress.

See Valencia ex

rel. Franco v. Lee, 316 F. 3d 299, 305 (2d Cir. 2003)(“[I]n the
usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent
jurisdiction doctrine-judicial economy, convenience, fairness,
and comity-will point toward declining to exercise jurisdiction

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over the remaining state-law claims.”)(quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
IV.

CONCLUSION
For the reasons set forth above, the defendants’ Motion for

Summary Judgment (Doc. No. 59) is hereby GRANTED.
The Clerk shall enter judgment accordingly and close this
case.
It is so ordered.
Dated this 1st day of July 2011 at Hartford, Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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