Vinci v. Quagliani et al
ELECTRONIC ORDER granting 27 Defendants' Motion for Summary Judgment. Signed by Judge Charles S. Haight, Jr on 9/7/12. (Hornstein, A)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
LISA WHITNEY YARBOR,
GRACE HENDRICKS, and
RULING ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
HAIGHT, Senior District Judge:
Introduction and Summary of Facts
Plaintiff Domenic Vinci, a public employee, brings this action against Ronald Quagliani, Lisa
Whitney Yarbor, Thomas Gallagher, Alexander Botte,1 Grace Hendricks, and Richard K. Smith
("Defendants") in their individual capacities. Plaintiff alleges a First Amendment claim based upon
actions and events which Plaintiff claims constituted employment retaliation for constitutionally
protected activity, specifically Plaintiff's freedoms of speech and association.2 Defendants now make
Alexander Botte passed away in 2010, and is no longer a Defendant in this action. In
February of 2010, a suggestion of death was filed with the Court. In July of 2010, Robert E.
Buckhold, Jr., a representative of Botte's estate, was added as a Defendant in Botte's stead.
The Court notes that while it finds Plaintiff's claims to be primarily related to Plaintiff's
freedom of speech as they concern his public support for a particular political candidate, rather
a Motion for Summary Judgment [Doc. 27], seeking a summary disposition of all claims Plaintiff
alleges in his Amended Complaint [Doc. 30]. For the reasons given below, summary judgment
against those claims is appropriate.
A number of facts are undisputed. Plaintiff was at all times relevant to this action a police
officer employed by the City of West Haven. At the time he filed his Amended Complaint, he had
been a member of the West Haven Police Department (hereafter the "Department") for eighteen
years. The Plaintiff also served on the West Haven Democratic Town Committee (hereafter the
"Democratic Town Committee" or the "Committee"), which he apparently joined in the spring of
2005. At all times relevant hereto, Quagliani was the Chief of Police of the Department, and at
various relevant times Yarbor, Gallagher, Botte, Smith, and Hendricks were members of the West
Haven Board of Police Commissioners (the "Board").
Plaintiff avers that in the spring of 2005, together with fifty-three other members of the
Democratic Town Committee, he endorsed John Picard as candidate for mayor of West Haven. As
a result of this vote, the Committee refused to endorse the incumbent, Richard Borer, despite the fact
that Borer was a member of the Democratic party. Although Borer did not receive his party's
backing for reelection, he nonetheless ran for mayor as an independent. Borer was defeated by
than his freedom of association, to the extent that his claims encompass the latter, i.e., to the
extent that Plaintiff is also claiming that he was retaliated against due to his association with the
local political committee in which he voted for a mayoral candidate or his association with the
candidate's candidacy itself, the Court notes that the standards by which a court is to evaluate
claims premised upon a retaliation for either reason are the same. See, e.g., Cobb v. Pozzi, 363
F.3d 89, 104-5 (2d Cir. 2004) ("We see nothing ... that would limit the public concern
requirement to First Amendment claims based on free speech, as opposed to claims premised on
other forms of First Amendment expression, and we are not alone in that observation.") (citations
omitted). For convenience, the Court will on occasion refer to Plaintiff's actions as "speech" in
Picard in 2005. Plaintiff claims, without providing significant evidence to support his assertions,
that Defendants remained loyal to Borer once Picard became mayor. Plaintiff also claims, without
offering evidence outside his own testimony, that he was warned that his support for Picard might
have negative consequences at work. After the election, Plaintiff claims that the Defendants jointly
and severally "engaged in a campaign to harass, intimidate and punish" Plaintiff for Plaintiff's
opposition to Borer's candidacy. [Doc. 30] at 2-4.
Plaintiff claims that prior to the 2005 mayoral election, he had enjoyed an unblemished career
as a West Haven police officer. He had been appointed to the rank of detective in 2003, and at that
time he was assigned to the Special Victims Unit of the Department (hereafter the "SVU"). He was
still working in the SVU when in March 2005 he applied for and obtained a position as a School
Resource Officer/Youth Officer for West Haven High School. Although Plaintiff was taking on a
new role with West Haven High School, he reportedly agreed to finish the still-active SVU cases to
which he had been assigned.
In December of 2005, Plaintiff was suspended from the Department for a ten-day period.
This suspension was issued by Defendant Quagliani pursuant to a report written by Plaintiff's
supervisor. The stated reason behind the suspension was the Plaintiff's late filing of several police
reports, as well as the manner in which Plaintiff had investigated eight specific cases that had been
assigned to him as an SVU Detective. This suspension was later unanimously overturned by a panel
of the Connecticut State Department of Labor's Board of Mediation and Arbitration after a hearing
and inquiry. The panel's accompanying report included a strongly worded critique of the initial
Department decision to suspend Plaintiff, as well as a reference to "other problems raised in this case
of a political nature which [the panel] found to be improper on the part of the West Haven Police
Department." [Doc. 32] Ex. 7, at 3-4.
In March of 2006, Plaintiff, along with another police Detective, was found by those
Defendants who were members of the West Haven Board of Police Commissioners (i.e., all
Defendants excepting Quagliani) to have mishandled a bomb threat at the West Haven High School
at which both Plaintiff and the other Department employee worked as police liaisons. This finding
was made pursuant to a Board hearing, and its immediate result was a decision to demote the
Plaintiff from his then-position of Detective Grade A to Patrolman Grade A. Following an
arbitration settlement, this demotion was later reduced to a 45-day duration.
Plaintiff claims that the acts of each Defendant were intentional, inspired by malice, and
related to Plaintiff's support for a particular mayoral candidate. Plaintiff further claims that as a
direct and proximate result of these acts, he suffered "anxiety, humiliation, loss of reputation in the
community, ascertainable economic loss and the violation of his rights under the First Amendment
to the United States Constitution." [Doc. 30] at 4.
Each individual Defendant has filed sworn answers to discovery interrogatories propounded
by Plaintiff, denying Plaintiff's claims. With the exception of Quagliani, Defendants swear that they
were not aware in 2005 that the Plaintiff was on the Democratic Town Committee. [Doc. 27] Ex.
A at 4. All Defendants deny having any knowledge about who Plaintiff endorsed or for whom
Plaintiff voted during the 2005 West Haven mayoral election. Id. at Ex. E. Defendants also plead
two affirmative defenses. The first affirmative defense Defendants raise is that the claims and
allegations set forth by the Plaintiff, "even if taken as true, do not state a claim for relief under 42
U.S.C. §§ 1983 or 1988, as any deprivation ... therein does not rise to the level of a constitutional
tort." [Doc. 10] at 4. The second affirmative defense Defendants raise is that their "acts and conduct
... to the extent that they occurred as alleged ... were discretionary acts which were undertaken in
good faith performance of their official duties as municipal officers, without malice" and, moreover,
were "reasonable under the circumstances of which [Defendants] were aware [and] did not violate
any clearly established constitutional rights of [Plaintiff]." Id. As such, Defendants contend that
they "have a qualified immunity defense from all liability therefor." Id.
Standard of Review
The standards for summary judgment are familiar. Summary judgment is appropriate when
"there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment
as a matter of law." Fed R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). When ruling on a summary judgment motion, the court must construe the facts in
evidence in the light most favorable to the nonmoving party. It must also resolve all ambiguities and
draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
"Only when reasonable minds could not differ as to the import of the evidence is summary
judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). A nonmoving party, such
as the Plaintiff in this case, must therefore present affirmative evidence in order to defeat a properly
supported motion for summary judgment. When "a motion for summary judgment is properly
supported by documentary and testimonial evidence ... the nonmoving party may not rest upon the
mere allegations or denials of his pleadings, but rather must present significant probative evidence
to establish a genuine issue of material fact." Marczeski v. Gavitt, 354 F.Supp. 2d 190, 193 (D.
Conn. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). To present a "genuine"
issue of material fact, there must be contradictory evidence "such that a reasonable jury could return
a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
Should the nonmoving party fail to make a sufficient showing on an essential element of his
case with respect to which he has the burden of proof, summary judgment against him is appropriate.
Celotex Corp. v. Catrett, 477 U.S. at 322. A "complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23.
If the nonmoving party submits evidence that is "merely colorable," summary judgment may be
granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. The "mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment." Id. at 247-48.
Elements of a First Amendment Retaliation Claim
In order to survive a motion for summary judgment on a First Amendment retaliation claim,
a plaintiff who is a government employee must present evidence which demonstrates: (1) that the
speech at issue was protected; (2) that the plaintiff suffered an adverse employment action; and (3)
that there was a causal connection between the allegedly protected speech and the adverse
employment action. See, e.g., Everitt v. DeMarco, 704 F.Supp. 2d 122, 129 (D. Conn. 2010);
Cotarelo v. Village of Sleepy Hollow Police Department, 460 F.3d 247, 251 (2d Cir. 2006) (quoting
Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000)); Scott v. Coughlin, 344 F.3d 282, 287
(2d Cir. 2003). The causal connection between the speech and the adverse employment action "must
be sufficient to warrant the inference that the protected speech was a substantial motivating factor
in the adverse employment action." Cotarelo v. Village of Sleepy Hollow Police Department, 460
F.3d at 251 (quoting Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994)).3
Defendants claim that in addition to these elements, there exists a fourth requesite
element that a public employee need prove in order to successfully make a First Amendment
retaliation claim: that a court find that the defendant's alleged retaliation actually chilled the
plaintiff's exercise of his or her First Amendment rights. For example, in [Doc. 27-1]
Defendant's Motion for Summary Judgment, Defendants write that "[a] fourth element that the
Plainitff must prove in order to prevail [in the case at bar] is that the Defendants' actions chilled
the exercise of the [P]laintiff's First Amendment rights." [Doc. 27-1] at 11. Defendants also
include a subsection of this Brief entitled: "The Plaintiff has not presented sufficient evidence to
create an issue of fact as to the actually chilled element of his First Amendment claim." Id.
Defendants' claim is inapposite. Established case law demonstrates that the requirement
of a "chilling effect" is not in fact applicable to the multi-part test by which a government
employee's First Amendment retaliation claim is evaluated. While it is true that a private citizen,
in order to make a First Amendment claim, must show: (1) that he has an interest protected by
the First Amendment; (2) that defendants' actions were motivated or substantially caused by his
exercise of that right; and (3) that defendants' actions effectively chilled the exercise of his First
Amendment right, this test is readily distinguished from that for a public employee who alleges
First Amendment retaliation, the elements of which are enumerated in the text supra.
In Everitt v. DeMarco, 704 F.Supp. 2d 122 (D. Conn. 2010), this Court analyzed the
distinction in a thoughtful opinion by Judge Bryant:
The elements of a First Amendment retaliation claim are dependent on the "factual
context" of the case. A public employee who alleges First Amendment retaliation must
prove the following: (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 or she suffered
an adverse employment action; and (3) the speech was at least a substantial or motivating
factor in the adverse employment action. A private citizen, on the other hand, must show:
(1) he has an interest protected by the First Amendment; (2) defendants' actions were
motivated or substantially caused by his exercise of that right; and (3) defendants' actions
effectively chilled the exercise of his First Amendment right.
Id. at 129-30 (emphasis added, internal quotation marks and citations omitted); see also Curley v.
Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (concerning a private citizen who brought a
First Amendment retaliation claim). The Court further notes that Marczeski v. Gavitt, the 2005
District of Connecticut case to which Defendants primarily cite in order to support their
proposition that this Court must consider whether Plaintiff's actions have been chilled in the case
at bar, concerned a private citizen who sued two members of the New London Police
Department, and not a government employee. 354 F.Supp. 2d 190, 191 (D. Conn. 2005).
Accordingly, in its evaluation of whether summary judgment is appropriate in the case at
Even if a plaintiff succeeds in showing these factors, his or her employer may nonetheless
escape liability and prevail on a motion for summary judgment if the employer is able to establish
that the same adverse employment action would have occurred "even in the absence of the protected
speech." Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287
(1977); Sullivan v. Stein, 487 F. Supp. 2d 52, 85 (2d Cir. 2007) ("Even if the plaintiff demonstrates
these factors, the defendant can still prevail on a motion for summary judgment if it can show that
it would have taken the same adverse ... action even in the absence of the protected conduct.")
(quoting Cotarelo v. Village of Sleepy Hollow Police Department, 232 F.3d at 252); Blum v.
Schlegel, 18 F.3d at 1010.4
Protected Speech or Expression
As stated supra, the first element that must be satisfied in a successful First Amendment
retaliation claim made by a government employee is a showing that the speech or expression in
question was in fact protected. For an employee's speech to have been protected, a court must find
that the employee spoke as a citizen on a matter of public concern.5 Garcetti v. Ceballos, 547 U.S.
bar, the Court does not consider or address those aspects of Defendants' briefing that pertain to
whether Defendants' allegedly retaliatory behavior had any chilling effect on Plaintiff's actions.
A government employer may also avoid liability for First Amendment retaliation if the
employer can show "that the plaintiff's expression was likely to disrupt the government's
activities, and that the likely disruption was sufficient to outweigh the value of the plaintiff's First
Amendment expression." Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2004) (citations omitted). As
this latter means of avoiding liability is inapplicable with regard to in the instant case, the Court
does not address it further.
While public employees "do not surrender their First Amendment rights to comment on
matters of public interest by virtue of their acceptance of government employment," when
"playing the role of employer, the state possesses greater leeway to control employees' speech
that threatens to undermine its ability to perform its legitimate functions." Cobb v. Pozzi, 363
F.3d 89, 101 (2d Cir. 2004) (quoting Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir. 1999) and
410, 418-20 (2006); Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir. 1993). If the court cannot make such
a finding, the plaintiff has no First Amendment cause of action based on his or her employer's
alleged reaction to the speech. Connick v. Myers, 461 U.S. 138, 147 (1983); see also, e.g., Garcetti
v. Ceballos, 547 U.S. at 418-20. "[W]hen a public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon matters only of personal interest, ... a federal
court is not the appropriate forum in which to review the wisdom of a personnel decision taken by
a public agency allegedly in reaction to the employee's behavior." Connick v. Myers, 461 U.S. at
147. Thus in order to "make out a prima facie case on such a claim," a government employee "must
... establish first that [his or] her speech can be fairly characterized as constituting speech on a matter
of public concern." Frank v. Relin, 1 F.3d at 1328; Cotarelo v. Village of Sleepy Hollow Police
Department, 232 F.3d at 252 (citing same).
Speech is considered to deal "with matters of public concern when it can be fairly considered
as relating to any matter of political, social, or other concern to the community." Snyder v. Phelps,
131 S. Ct. 1207, 1216 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). In deciding
whether an individual's speech is of public or private concern, the court must examine the "content,
form, and context of that speech, as revealed by the whole record." Id. at 1211 (quoting Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (internal quotations
removed)). In considering these factors, "no factor is dispositive, and it is necessary to evaluate all
aspects of the speech," id., thereby balancing the interest of the employee "as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in
citing Pickering v. Bd. of Educ. of Township High School District 205, 391 U.S. 563, 568 (1968)
(internal quotations omitted)); see also, e.g., Garcetti v. Ceballos, 547 U.S. 410, 418-20 (2006).
promoting the efficiency of the public services it performs through its employees." Pickering v. Bd.
of Educ. of Township High School District 205, 391 U.S. 563, 568 (1968).
The speech at issue in the case at bar concerns Plaintiff's activities on the West Haven
Democratic Town Committee, specifically a vote that Plaintiff cast as a member of this Committee
to endorse a particular candidate for mayor over the incumbent, to whom Plaintiff contends the
Defendants remained loyal, and other expressions of support Plaintiff purportedly made. Amended
Complaint [Doc. 30] at ¶¶ 1, 12, 15.
Plaintiff asserts that "[b]y nominating and supporting a political candidate, [he] was
exercising his sacred rights as an American to associate with a political party and participate in the
democratic process." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for
Summary Judgment [Doc. 32] at 9. The Court agrees with this contention, and concludes that both
casting a political vote and generally supporting a particular political candidate are without question
matters of public concern. See generally, e.g., Gronowski v. Spencer, 424 F.3d 285, 292-93 (2d Cir.
2005). The Court also finds that by conducting himself in this manner, Plaintiff was acting as a
citizen. Plaintiff satisfies the first element of a First Amendment retaliation claim.
Defendants in fact admit that "the Plaintiff, as a private individual in his private time, has a
constitutionally protected right to support a political candidate." [Doc. 28] at 27. However,
somewhat perplexingly, Defendants appear to argue that if the Plaintiff did not discuss politics at
work, then his speech did not merit protection. In [Doc. 40] Defendants' Reply to Plaintiff's
Opposition to Motion for Summary Judgment, Defendants state: "In Plaintiff's own words, he did
not discuss politics at work, nor did he discuss matters of public concern at work. As such ... the
Plaintiff has failed to establish that his First Amendment claim involves a matter of public concern,
rather than an attempt to address his own personal grievances." [Doc. 40] at 7-8. Even a cursory
survey of U.S. Supreme Court decisions, however, shows that First Amendment protections for
public employees may indeed apply to employee speech made inside or outside of the workplace,
assuming the appropriate elements are present. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563
(in which the relevant speech was a teacher's letter to a local newspaper addressing issues including
the funding politics of the teacher's school board); Garcetti v. Ceballos, 547 U.S. at 420 (which
unequivocally states that "[e]mployees in some cases may receive First Amendment protection for
expressions made at work," thereby implying that they also receive these protections outside of
To the extent that Defendants are claiming that Plaintiff's constitutionally protected
expression must have taken place in the workplace to merit the protections at issue here, the Court
Adverse Employment Action
The Second Circuit has defined an adverse action in a First Amendment retaliation case as
"retaliatory conduct that would deter a similarly situated individual of ordinary firmness from
The Court also disagrees with Defendants' apparent argument that because (as
Defendants seem to assert) Plaintiff's speech was supposedly connected with his official job
duties – Defendants do not specify in what way this might have been the case – Plaintiff was
therefore not speaking as a citizen for purposes of First Amendment protections. See [Doc. 45]
Summary of Authority Supplementing Defendants' Motion for Summary Judgment. While the
Court without hesitation agrees with Defendants that case law has well established that a public
employee's speech made pursuant to his or her official job duties is not constitutionally protected
– see, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) – the Court does not find this fact, or that
line of case law, to be relevant to the case at bar in any cognizable way. Neither Defendants' nor
Plaintiff's briefing states any fact that could possibly tie Plaintiff's casting a vote in favor of a
particular mayoral candidate, or Plaintiff's expressions and actions of support for that candidate,
or, for that matter, Plaintiff's very membership on a local political committee, to Plaintiff's
official duties as a West Haven Police Detective.
exercising his or her constitutional rights." Washington v. County of Rockland, 373 F.3d 310, 320
(2d. Cir. 2004) (internal quotation marks omitted). Accordingly, a plaintiff need not demonstrate
a material change in employment terms or conditions in order to establish that he was subjected to
an adverse employment action so long as the plaintiff is able to show that "the retaliatory conduct
in question would deter a similarly situated individual of ordinary firmness from exercising his or
her constitutional rights." Otte v. Brusinski, 440 Fed. Appx. 5, 7 (2d Cir. 2011) (citations and
internal quotation marks omitted).
In the past, courts have understood adverse actions in the First Amendment context to include
threats involving administrative disciplinary proceedings as well as suspensions without pay,
reasoning that because such actions could have a deterrent effect on other employees who wish to
behave in similar ways, they ought to be considered adverse for purposes of examining and ruling
upon a First Amendment retaliation claim. See, e.g., Washington v. County of Rockland, 373 F.3d
310, 320-21 (2d Cir. 2004).
In the case at bar, the Court finds that the disciplinary actions taken against Plaintiff Vinci,
including demotions and suspensions without pay, clearly constitute adverse actions within this
rubric, as they would without doubt deter a similarly situated individual from expressing his or her
own constitutional rights, assuming arguendo that such an individual associated these adverse
actions with Plaintiff's protected speech or expression.
The essence of Plaintiff's claim is that the disciplinary actions taken against him were the
result of – i.e., motivated and caused by – the Defendants' retaliation for his support of Picard as a
West Haven mayoral candidate in the 2005 election. According to Vinci's deposition, he first
manifested that support in the spring of 2005, when Vinci attended a meeting of the Democratic
Town Committee, joined the Committee for the first time, and at the same meeting cast a vote to
endorse Picard as the party's mayoral candidate (the meeting took the form of a caucus). Thereafter,
Vinci displayed a sign for Picard in front of his home, performed routine and low-profile services
at campaign headquarters, and voted for Picard in the general election. Plaintiff contends that these
actions on his part led the Defendants to retaliate against him. He lays particular stress upon his vote
for Picard during the Committee caucus.
As discussed supra, Vinci's vote to endorse Picard is a form of protected speech under the
Constitution; so is his support of Picard during the campaign; and the subsequent disciplinary actions
against him may be characterized as adverse employment actions. The first two elements of a First
Amendment retaliation claim are accordingly satisfied. The case thus turns upon the third element,
which requires Vinci to prove that there was a causal connection between the protected speech and
the adverse employment action. To restate that proposition: In the absence of any direct evidence
that Defendants retaliated against Vinci because of his vote for and support of Picard (and the record
contains none), Vinci's ultimate burden is to produce evidence admissible at a trial which is
sufficient to warrant an inference by the jury that the protected speech was a substantial moving
factor in the adverse employment action.
In order to prove the third element of a First Amendment retaliation claim, a government
employee plaintiff must establish "a causal connection between defendants' allegedly retaliatory
conduct and [the plaintiff's] protected speech." Washington v. County of Rockland, 373 F.3d 310,
320-21 (2d Cir. 2004). Notably, while a government employee pleading a First Amendment
retaliation action "can establish the causal connection between protected expression and an adverse
employment determination indirectly by showing that the protected activity was followed [either]
by adverse treatment in employment, or directly by evidence of retaliatory animus," courts in this
Circuit nonetheless have held that a plaintiff may not solely "rely on conclusory assertions of
retaliatory motive to satisfy the causal link." Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (citing
Morris v. Lindau, 196 F.3d 102, 110-11 (2d Cir. 1999) (abrogated on other grounds) (internal
quotations omitted)). A plaintiff must therefore provide the Court with "some tangible proof to
demonstrate that [his] version of what occurred was not imaginary." Id. (emphasis added).
"[W]ide-ranging speculation about what may have motivated" a defendant employer to act is,
"[w]ithout some proof in the record [of] retaliatory animus toward" the plaintiff and without any
"evidence to contradict [a defendant's] testimony" to the contrary, simply insufficient to make a First
Amendment retaliation claim. Deters v. Lafuente, 368 F.3d 185, 190 (2d Cir. 2004)
The case of Washington v. County of Rockland is instructive. There, the Second Circuit held
that plaintiffs, employees of a sheriff's department, could not succeed in making out a First
Amendment retaliation claim based upon defendants' decision to file administrative disciplinary
charges against plaintiffs, stating that "although plaintiffs suffered an adverse employment action,
their retaliation claim fails nonetheless because they did not demonstrate a causal connection
between the adverse employment action and the protected speech." 373 F.3d at 313. The Second
Circuit specified that in order "to satisfy the causal connection requirement of the prima facie case,
plaintiffs must show that their" protected speech was "a substantial motivating factor" in the
department's decision to initiate administrative disciplinary charges against them. Id. at 321
In order to do so, the plaintiffs needed to "aver some tangible proof
demonstrating that their protected speech animated [the sheriff's department's] decision to initiate
disciplinary charges," and could "not rely on conclusory assertions of retaliatory motive." Id.
(emphasis added, internal quotations and citations omitted.). Accordingly, "[a]bsent some record
evidence that" the sheriff's department "and its officials possessed retaliatory animus toward them,"
the Court of Appeals held that there was insufficient evidence for a finding of First Amendment
retaliation, and the plaintiff's claim was rejected. Id.
Similarly, in the case of Mangiafico v. Blumenthal, decided five years ago by this Court, the
plaintiff, a department of corrections captain named Sebastian Mangiafico, claimed that he was
retaliated against after telling his department's Deputy Commissioner that he intended to file a
lawsuit against the Connecticut State Attorney General with regard to a denial of legal representation
for a work-related incident. 2007 WL 283115 at *7 (D. Conn. Jan. 30, 2007). While Mangiafico
alleged that the Deputy Commissioner relayed this message to the department Commissioner, the
Deputy Commissioner denied in sworn testimony that Mangiafico had ever told him of his intent to
sue. On this record, the Court concluded that any allegation that the Deputy Commissioner relayed
such a message to the Commissioner would be no more than "rank speculation." Id. The Court
likewise found Mangiafico's alternative argument, that the department Commissioner would have
learned of Mangiafico's lawsuit against the Attorney General through workplace "rumor mills," to
be "similarly speculative." Id. The Court further held that the argument that a causal connection
could be found due to the timing of the plaintiff's transfer – i.e., which took place only days after the
plaintiff filed his lawsuit – "could not be mere coincidence" had not been supported by any "tangible
proof" that the Commissioner even knew of Mangiafico's lawsuit prior to her decision to transfer him
to another facility. Id.
Given the evidence provided and the allegations made in the case at bar, the third element
of causal connection breaks down into two sub-questions. First: Did a particular Defendant either
know that at the caucus meeting of the Democratic Town Committee in 2005, Vinci voted to endorse
Picard or that, subsequent to that vote, Vinci was supporting Picard's candidacy? Second: Was that
knowledge a substantial moving factor in a Defendant's subsequent subjecting of Vinci to
disciplinary proceedings? The second question does not arise unless the first question is answered
in the affirmative. After reviewing the evidence provided by both parties, the Court finds, as with
the nature of the causal evidence provided in Washington and Mangiafico, that Plaintiff has simply
not provided sufficient evidence that there is a causal link between the adverse employment actions
he alleges he has suffered and his activities on the West Haven Democratic Town Committee,
specifically his voting for and otherwise supporting the mayoral candidacy of John Picard.
The Court takes note that Plaintiff's 2005 ten-day suspension was overturned, and that
following a hearing, an inquiring panel at the State of Connecticut Department of Labor's State
Board of Mediation and Arbitration issued a report stating that it had "unanimously [found] that
[Plaintiff] should not have been suspended for ten days without pay," that "[t]here were a substantial
number of cases which were offered as evidence that supported the ... position that [Plaintiff] had
been treated unfairly in this matter," and, as well, that "there were other problems raised in this case
of a political nature which [the panel] found to be improper on the part of the West Haven Police
Department." [Doc. 32] ex. 7, at 3-4. Assuming without deciding that this report would be
admissible at trial as a "public record," see F.R. Evid. 803(8), its vague and undefined reference to
"problems ... of a political nature" is not probative of Plaintiff's theory that he was retaliated against
specifically because of his vote for, or his support of, Picard. Furthermore, the report states that after
these "problems ... of a political nature" arose, Vinci "immediately went to [Defendant Quagliani]
and resolved them without further ado," id. at 4, suggesting that there is no connection between
whatever problems were "resolved" and the facts giving rise to this action.
The Court also notes that both of the adverse incidents occurred subsequent to Plaintiff's
averred support of Picard, and takes note of Plaintiff's reported contentions (unsupported by any
other evidence submitted to the Court) that at least two other Department detectives, both of whom
Plaintiff believes did know how Plaintiff had voted in the spring of 2005 Committee mayoral caucus,
had warned Plaintiff to be careful "because politics can get [someone] into trouble," and that Plaintiff
should "watch [his] back" and "be careful," respectively, [Doc. 32] Ex. 1 at 64-66, as well as the fact
that Plaintiff testifies that generally "there [were] a lot of comments" within the Department "that
there [were] going to be problems." Id. at 64-65.
However, without presenting any evidence beyond Plaintiff's own reports and accounts of
departmental rumors and varying degrees of speculation and likelihood that Defendants were even
aware of which candidate Plaintiff supported for the 2005 West Haven mayoral election, much less
that Defendants' adverse actions arose out of such support on the part of Plaintiff or were primarily
motivated by such support, Plaintiff has not presented enough evidence under the legal standards set
forth by prior case law for a First Amendment retaliation claim to survive Defendants' motion for
summary judgment. As in the cases of Washington and Mangiafico, this Court is constrained to
conclude that the evidence presented in support of Plaintiff's claim is too tenuous, too conclusory,
and ultimately too lacking in "tangible proof."
Perhaps not surprisingly, Defendants' own testimony does not assist Plaintiff in any way.
Defendant Quagliani states under oath in an interrogatory answer that he "never knew who [Plaintiff]
supported, endorsed, or voted for in the 2005 West Haven mayoral election" and that he "was never
aware of [Plaintiff's] vote at the Democratic Town Committee." [Doc. 27] Ex. E at 3. These claims
are echoed by Defendants Thomas Gallagher, id. at 6, Grace Hendricks, id. at 9, Richard K. Smith,
id. at 12, and Lisa Whitney Yarbor, id. at 16. Indeed, all Defendants except Quagliani swear that
in the relevant time period they did not even know that Vinci was a member of the Committee. But
that is not the main point. The main point is that if Defendants did not know how Vinci voted or
which mayoral candidate Vinci was supporting, they cannot be said to have retaliated against him
for casting that vote or for giving that support.
Such "interrogatory answers" may be considered on a motion for summary judgment. Fed
R. Civ. P. 56(c)(1)(A). Defendants offer these answers to demonstrate that "there is no genuine
dispute as to [the] material fact" of causal connection, and that they are "entitled to judgment as a
matter of law" dismissing Plaintiff's retaliation claim. Fed R. Civ. P. 56(a). Plaintiff's opposition
to that motion, thus supported, "must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the matters
stated." Fed R. Civ. P. 56(c)(4).
While Plaintiff claims that several of the Defendants knew of his vote for Picard in the
Committee caucus and general mayoral elections, his assertions are conclusory at best. Even if some
of the Defendants were present at the caucus at which Plaintiff cast his vote, this does not mean that
they heard and noted for whom Plaintiff was voting. Further, even if some or all of the Defendants
were aware of who Plaintiff supported in the 2005 West Haven mayoral campaign, Plaintiff has not
produced any evidence that there was animus toward him on those grounds – or, for that matter, that
Defendants themselves even supported Picard's opposition. Indeed, the testimonial evidence
Plaintiff relies upon to oppose Defendants' summary judgment motion consists principally of his own
deposition, taken by counsel for Defendants. Selected pages from this deposition transcript were
submitted with the parties' briefs. The Court has considered Plaintiff's testimony in its entirety. That
testimony falls well short of establishing that a genuine dispute exists with respect to the existence
vel non of a causal connection between Vinci's vote to endorse Picard and the West Haven Police
Department's subsequent disciplinary actions against him.
Vinci testified that he had become dissatisfied with the administration of West Haven's multiterm mayor, Richard Borer, and thought there should be a change. Vinci favored John Picard for that
office. Both Borer and Picard were registered Democrats. The West Haven Town Democratic
Committee held a meeting and caucused during the spring of 2005 to endorse its candidate for the
general election in November. Vinci, who had not previously been active in local politics, decided
to join the Committee. A few weeks to a month before the spring 2005 Committee meeting, Vinci
informed Police Chief Ronald Quagliani, a Defendant in this action, of that intention. Quagliani had
no objection to Vinci joining the Town Democratic Committee "as long as it's not going to interfere
with your job," which Quagliani did not foresee: according to Vinci's testimony, Quagliani said to
him, "'Yeah, you endorse certain candidates,' something like that, 'But I don't see a problem.' And
that was basically the extent of our conversation." Tr. 25-26.7 Vinci did not testify then, and does
not contend now, that he told Quagliani during that meeting of his intention to vote for Picard over
Borer for mayor.
Vinci attended the spring meeting of the Town Democratic Committee and became a member
during that meeting. The Committee held its caucus at the meeting and Vinci participated, casting
his vote for Picard. Asked if he had previously expressed a preference for Picard over Borer, Vinci
References are to the transcript of Vinci's deposition, conducted on January 29, 2010.
testified: "Not that I can recall." Tr. 27. Vinci acknowledged that he knew he was going to vote for
Picard before he became a member of the Committee during the caucus meeting; Defendants'
counsel then asked Vinci: "Did you talk about that with anybody at the police department, that you
knew you were going to support whoever was running against [Borer] because it was time for a
change?" And Vinci responded: "No, I don't discuss politics at work." Counsel (following up):
"Ever?" Vinci: "No. I don't make phone calls. I don't do that stuff at work." Tr. 40-41.
Given that testimony, Defendants' counsel asked Vinci for the basis of his contention that
"anybody at the police department knew who it was that you supported in the election." Tr. 41.
Vinci's response, in substance, was that a police officer named Brian Reilly and Grace Hendricks,
a Police Commissioner and a Defendant in the action, were present at the meeting and could have
seen Vinci cast his vote for Picard. Tr. 41-42. Subsequently, Defendants' counsel put it to Vinci that
a comment by Reilly later in the campaign established that Reilly "either wasn't there or wasn't
paying attention to who you voted for at the caucus, because he didn't even know you were on the
Democratic Town Committee; fair to say?" Vinci responded: "Yes." Tr. 48. As for Hendricks, she
has sworn under oath in her responses to Interrogatories 1 and 2 that: "I never knew the plaintiff was
on the Democratic Town Committee in 2005" and "I never knew who the plaintiff supported,
endorsed or voted for in the 2005 West Haven mayoral election." There is no evidence directly
contradicting those denials. As Vinci's testimony about Reilly shows, accepting that Hendricks was
present at the Committee caucus (which is open to the public, Tr. 43), that presence is not
inconsistent with a lack of awareness on her part of how another individual voted in endorsing a
Vinci testified that after the Committee chose Picard as the Democratic mayoral candidate,
Borer ran as an independent. During the general campaign, Vinci performed routine and low-profile
tasks at the Democratic/Picard headquarters: making phone calls, stuffing envelopes, helping with
mailings. Tr. 48-49. While such relatively modest political activity is sufficient to identify Vinci
to some extent within the greater West Haven community as a Picard supporter, it is not probative
of any Defendant's knowledge of Vinci's caucus vote for Picard over Borer, or an intent to retaliate
against Vinci either because of that vote or because of Vinci's endorsement of Picard.
That vote is central to Vinci's retaliation claim against these Defendants, as this deposition
Q. Is it your contention from your complaint that your First
Amendment right of free speech was abridged by the discipline taken
Q. What speech is it that you made that you were retaliated against
A. I feel that I have the right to vote for who I feel that I think would
be doing the right thing for the city. And I feel that I thought the new
person would do a good job for the City of West Haven. And when
I made that historic vote and ousted the seven-year incumbent, that I
was retaliated against soon after.
Q. So the speech is the vote you made at the caucus, right?
A. I am sorry, did I say speech?
Q. Well, the First Amendment protects freedom – free speech. And
I am asking – so it can conduct. So I am asking: What action is it that
you took that you believe you were retaliated against for? And the
action was the vote, right?
Q. It's not like you were discussing matters of public concern at
work, for instance, correct?
Q. Is that correct?
A. That's correct, yes.
During this testimony, some momentary confusion arose because Vinci, a layman, did not
immediately grasp the constitutional concept familiar to lawyers that a vote is a form of protected
speech. However, the theory of Plaintiff's retaliation claim is entirely clear: Vinci claims the
disciplinary actions against him were intended by Defendants to retaliate for Vinci's caucus vote (an
"historic" vote, in Vinci's perception) to endorse Picard over Borer, the "seven-year incumbent." The
difficulty for Vinci in opposing Defendants' summary judgment motion lies in the failure of his
deposition testimony to furnish any evidence that any Defendant knew how Vinci had voted on that
occasion. Each Defendant swears that he or she did not know. To be sure, those denials standing
alone are not determinative of the issue, but they constitute admissible evidence on a key element
of the claim, and have the effect under Rule 56 practice of putting Vinci to his proof on the question
of Defendants' knowledge (on which the ultimate question of causal connection depends).
The conclusion to which Vinci's deposition testimony inextricably leads is that the catalyst
for his retaliation suit may be found in comments made to him by others: friends, colleagues,
acquaintances. Indeed, Vinci's deposition testimony shows that the principal, perhaps the only,
catalyst for his retaliation action lies in remarks made to him by others (not by any Defendant) after
Vinci's vote for Picard at the caucus meeting. He testified: "There was a lot of comments made after
I did that, after I made that vote in the spring of '05 that there was going to be problems. A lot of
people were talking about that." These were people at work with Vinci. Q. By counsel: "So work
people said things about the fact you were going to have problems because of your caucus vote?"
A. "Yes. People got back to me and were saying things, yes. . . . . a lot of people. . . . A detective
that sits right next to me, Detective James Sweetman. . . . He said to me, 'Just be careful. Be careful
because, you know, politics can get you into trouble.'. . . . There was other people. . . . People were
calling my house." One of these was a detective, Joseph Vecellio. He called after the caucus vote
and, as Vinci reported: "Just told me to watch my back, be careful." Tr. 64-68. Sweetman and
Vicellio were the only two "friendly cautioners" whose names Vinci could recall at his deposition.
One may accept this testimony in its entirety: It is of no legal consequence on this motion,
for two reasons. First, the cautionary notes sounded by Vinci's well-wishers, known or anonymous
on this record, fall well short of evidencing any particular Defendant's knowledge that Vinci voted
for Picard at the caucus, or an intent to retaliate based upon that knowledge. Accordingly, those
declarations are insufficient to contradict the Defendants' sworn denials that they possessed such
knowledge. Second, even if these declarations by other individuals could be construed as probative
of a Defendant's knowledge or intent, Vinci could not testify about them at a trial because the
declarations, offered for the truth of their assertions that Vinci was in political trouble because of his
vote, would constitute inadmissible non-party hearsay. As we have seen, a party opposing his
adversary's properly supported motion for summary judgment must submit evidentiary material that
would be admissible at the trial.
Thus, although Vinci has manifestly suffered adverse employment actions, and although the
speech at issue is doubtlessly protected by the First Amendment, Vinci has not demonstrated a causal
connection between the adverse employment action and the protected speech. The standards for
summary judgment are clear: the "mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment," Anderson v. Liberty
Lobby, Inc., 477 U.S. at 247-48, and, furthermore, the "complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Celotex Corp. v. Catrett, 477 U.S. at 322-23. In the case at bar, the Plaintiff, the nonmoving party,
has submitted evidence that at the very most is "merely colorable;" accordingly, summary judgment
may be granted to the Defendants. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. The
"mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment." Id. at 247-48. This analysis applies equally to
all arguable aspects of Plaintiff's claims, be they viewed as claimed retaliation for freedom of speech
or for freedom of association.
The Court does not doubt the sincerity with which Plaintiff asserts that Defendants'
disciplinary actions against him were wrongful, or that those actions caused Plaintiff great distress.
However, the law requires that a claim for wrongful retaliation be established by proof of each of
the elements discussed in this Ruling. There is a reason for that requirement of proof: A public
servant's right to be free from retaliation by his or her superiors for exercise of constitutional rights
must be balanced against the rights of those other servants of the public interest to be free from
unproven or unprovable accusations of wrongdoing.
Having carefully considered the record in this case, and having viewed that record in the light
of governing Supreme Court and appellate court decisions, this Court concludes that the Defendants'
motion for summary judgment must succeed. Given that conclusion, the Court need not and does
not reach arguments concerning whether Defendants may claim qualified immunity or any other
For the foregoing reasons, Defendants' Motion for Summary Judgment [Doc. 27] is
GRANTED in all respects.
The Clerk is directed to enter judgment in favor of the Defendants and each of them, and
against the Plaintiff, dismissing the complaint with prejudice, and to close the case.
It is SO ORDERED.
Dated: New Haven, Connecticut
September 7, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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