Martinsky v. Bridgeport et al
Filing
72
ORDER granting 43 Motion for Summary Judgment. See attached Order. Signed by Judge Vanessa L. Bryant on 9/2/11. (Hildebrand, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM C. MARTINSKY,
Plaintiff,
v.
CITY OF BRIDGEPORT, CHARLES
PARIS, FRANK SANTORA, JAMES
VIADERO and JAMES HONIS,
Defendants.
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
3:09-cv-759 (VLB)
September 2, 2011
MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [Dkt. #43 and #47]
INTRODUCTION
Plaintiff, a former Sergeant employed by the City of Bridgeport Police
Department [“BPD”] brought this action: 1) under 42 U.S.C. §1983 and
Connecticut common law against Defendants Paris, Santora, Viadero, and Honis,
who are and/or were officers in the BPD, for false arrest in violation of the Fourth
Amendment to the United States Constitution and Connecticut statutory common
law, and 2) under the American with Disabilities Act [ADA], 42 U.S.C. §12101 et.
seq., and Connecticut’s Fair Employment Practices Act [CFEPA], C.G.S. § 46a-51
et seq., to seek redress against the City of Bridgeport for disability
discrimination.
1
I.
FACTUAL BACKGROUND
A. June 11, 2007 Incident
Several years prior to the incident on June 11, 2007, Sgt. Martinsky
(Plaintiff) and Sgt. Paris (Defendant Paris) co-owned a restaurant business known
as the Savoy Bar and Grill [“Savoy”]. [Dkt. #63, Pl. Rule 56 Stmt. ¶13]. The Savoy
was located in a building at the corner block of State Street and Markle Court in
Bridgeport, CT. Id. In October 2005, the parties’ business arrangement ended
when Plaintiff sold his share of the business to “Savoy on State, LLC,” a group in
which Paris had an interest, and Paris continued to retain an interest in the Savoy
up to the date of the incident on June 11, 2007. Id. at ¶14. Pursuant to the sale,
Plaintiff sold and the LLC bought Plaintiffs interest in the assets of the restaurant,
including furniture, fixtures, equipment, and inventory contained within the
restaurant. [Dkt. #63, Ex. #20, at 1]. To effect this transfer of assets, the parties
created a detailed inventory of the property included in the sale, which was
attached to the agreement. Id. at pp.2-3. Sgt. Paris and his girlfriend, Ms. Viglione,
were not involved in these negotiations and were not familiar with the terms of
the agreement or the inventory list. [Dkt. #63, Ex. #7a, at 70-75].
Plaintiff visited the Savoy on June 11, 2007 while on duty and in uniform.
[Dkt. #63, Ex. #1b, Dep. of Martinsky at 152:13-16; 152-53:25-1]. During the course
of the visit, Plaintiff represented to Mike Falcigno, the owner of an adjacent
business, City Lights Gallery, that the building custodian had given him
permission to access the basement of the building, and asked that Mr. Falcigno
2
grant him access to the common area of the basement so that he could retrieve
two circus posters because the Savoy had gone out of business. [Dkt. #63, Pl.
Rule 56 Stmt. ¶¶18, 20]. Mr. Falcigno, having access to a key to the shared
basement area, granted Plaintiff’s request and unlocked and let Plaintiff into the
shared area. Id. at ¶19.
While in the shared basement area, Plaintiff identified objects that he
claimed were his lawful possessions, consisting of two antique PT Barnum
Circus posters, two framed portraits, a neon beer light, a ceramic pot, some wine
glasses, and seven chafing dishes. He moved these items into the adjacent City
Lights Gallery’s private locked storage area which can only be accessed from the
common space of the building with the use of a key. [Dkt. #63, Ex. #1b, Dep. of
Martinsky at 136-141]. The items were covered by a flag or a piece of fabric. [Dkt.
#63, Pl. Rule 56 Stmt. ¶38]. Sgt. Paris, off duty and doing work at the Savoy, was
later notified by Mr. Facigliano that he had given Plaintiff access to the basement
and that Plaintiff had removed several items from the Savoy storage area. Id. at ¶¶
16, 21. Later in the day, Plaintiff received call from Mike Falcigno informing him
that Sgt. Paris was angry and yelling about posters, worried that someone had
taken his things whilst conducting an inventory review. [Dkt. #63, Ex. #1b Dep. of
Martinsky at 151:10-12].
When Sgt. Paris found out that Plaintiff had removed items from the Savoy
basement area, he called Lt. Santora on his personal cell phone to notify him that
Plaintiff had stolen property from the Savoy and asked him to come to the scene.
3
[Dkt. #63, Pl. Rule 56 Stmt. ¶¶6, 11]. The BPD then dispatched Lt. Santora to the
location. Id. at ¶7.
Plaintiff arrived at the scene at the same time as Lt. Santora. [Dkt. #63, Ex.#
1b Dep. of Martinsky, at 151-52:13-23]. Once Plaintiff arrived at the Savoy, Sgt.
Paris allegedly threatened him, stating “[he] will kill [him]” and that “[he’s] going
to have [Plaintiff’s] pension.” Id. at 278:14-25; [Dkt. #63, Pl. Rule 56 Stmt. ¶9].
During this dispute, Sgt. Paris told Lt. Santora that Plaintiff had stolen property
belonging to either him or the Savoy, having gone into the basement earlier and
taken various items. [Dkt. #63, Pl. Rule 56 Stmt. ¶11]. Among the items that Sgt.
Paris alleged that Sgt. Martinsky had stolen were two antique PT Barnum Circus
posters, two framed portraits, a neon beer light, a ceramic pot, some wine
glasses, and seven chafing dishes. See [Dkt. #63, Ex. #12a, Bridgeport Police
Department Incident Report No. 070611-244, dated June 11, 2007, at Bates #12].
Plaintiff claimed these items were not included in the asset sale when Plaintiff
sold his share of the Savoy to Sgt. Paris in October 2005, and that documentation
existed to support his assertion.[Dkt. #63, Ex.#1b, Dep. of Martinsky at 166:19-24].
In his deposition, Sgt. Paris stated that he initially told Lt. Santora over the phone
that he “found that [Plaintiff] ... came in and removed items from the Savoy that
the Savoy owned and took them and hid them.” [Dkt. #63, Ex. #7b, Dep. of Paris at
152:4-7]. However, later in his deposition, Paris testified in contrast to his prior
assertion that Plaintiff did not own the allegedly stolen items, stating that he told
Lt. Santora and the officers at the scene, or would have told them if they had
4
asked, that the circus posters did not belong to the Savoy but rather to Plaintiff’s
friend. Id. at 154-60.
Lt. Santora instructed Plaintiff to wait while he talked to Sgt. Paris and
examined the scene. [Dkt. #63, Pl. Rule 56 Stmt. ¶12]. Lt. Santora then spoke to
Mr. Falcigno, who was at the scene. [Dkt.#44, Defs. Rule 56 Stmt. ¶12]. All of the
doorways by which to gain access to the common area of the basement were
locked. [Dkt. #63, Pl. Rule 56 Stmt. ¶33]. Plaintiff did not have a key to any of
those doors. Id. at ¶35. Lt. Santora saw the allegedly stolen items under the stairs
of the City Lights Gallery covered by a piece of fabric. Id. ¶37.
When asked, Plaintiff admitted to having moved these items from the
common space of the building basement into the locked storage area of the City
Lights Gallery. Id. at ¶42. Plaintiff also admitted to having moved the items for the
purpose of securing them in a locked area where they would be inaccessible to
other persons with access to the common space of the building basement. Id.
After exiting the building, Lt. Santora spoke with Plaintiff about the items in
the basement, and Plaintiff again claimed that he owned the items at issue. [Dkt.
#63, Pl. Rule 56 Stmt. ¶46]. Lt. Santora returned about 15-20 minutes later and
informed Plaintiff he was being arrested, despite Plaintiff’s attempts to tell Lt.
Santora that the posters were his. Id. at ¶14.
Other officers arrived at the scene including Deputy Chief James Honis. Id.
at ¶51. Plaintiff told Deputy Chief Honis that the items were his and that he had
documentation of ownership. Once Honis confirmed that Plaintiff would give a
5
statement and produce the documentation, Honis told Plaintiff that he could
leave. Id.
Although Deputy Chief Honis told Plaintiff he could leave, Lt. Viadero (who
was then in charge because he was the senior officer from the Detective Division
and had been summoned by Honis), instructed Plaintiff to stay. [Dkt. #63, Pl. Rule
56 Stmt. ¶51]. Paris’s girlfriend and member of the LLC that owned the Savoy,
Jennifer Viglione, then arrived at the scene. Id. at ¶27. Plaintiff contends that the
officers did not formally interview Ms. Viglione at the scene, but that she provided
a statement to Lt. Viadero three days later representing that her boyfriend, Paris,
had called her to tell her that he had noticed that several items were missing from
the basement, including the two circus posters. Id.
Paris continued to threaten Plaintiff while Paris, Santora, Honis, Viadero
and other officers who had arrived at the scene gathered on the corner and
Plaintiff waited across the street. [Dkt. #63, Ex.#1c. Dep. of Martinsky at 284:1620]. Lt. Viadero and the other officers at the scene were aware that Plaintiff was
disputing ownership of the items, but felt that there was an element of deception
in Plaintiff’s actions in visiting the building, removing items from the basement,
placing them in a locked compartment, covering them to avoid detection, and
planning to return for the items at a later time. [Dkt. #44, Defs. Rule 56 Stmt. ¶54].
Lt. Viadero returned and told Plaintiff, as Santora had done previously, that he
was being arrested. [Dkt. #63, Pl. Rule 56 Stmt. ¶55].
Once Lt. Santora issued Plaintiff a misdemeanor summons for larceny in
the fifth degree, he was permitted to leave. Id. at ¶¶57-58. However, later that
6
evening, Lt. Santora contacted Plaintiff and demanded that the Plaintiff return to
sign the summons, which Lt. Santora neglected to have him do earlier. Id. at ¶58.
Lt. Santora told Plaintiff that unless returned as requested, he would bring
Plaintiff into the BPD and subject him to a formal booking process. Plaintiff met
Lt. Santora, signed the summons, and was allowed to leave. Id.
B. Discrimination and Hostile Work Environment
Plaintiff alleges that Paris’ irrational and menacing behavior in conjunction
with Paris’ explicit threat to kill Plaintiff on June 11th made Plaintiff fear for his
life. [Dkt. #1, Pl. Compl. ¶44]. Further, Plaintiff alleges that Lt. Santora and Lt.
Viadero’s actions in refusing to listen to Plaintiff and arresting him to appease
Paris, as well as Deputy Chief Honis’ ratification of Plaintiff’s arrest made Plaintiff
fear for his safety in the Department. Id. at ¶45.
On his first day back at work after the incident, Plaintiff was called into a
meeting with then Chief Bryan T. Norwood, Deputy Chief Honis, and one or two
union representatives, at which time the Chief formally informed Plaintiff that he
was being placed on administrative status and assigned to booking, that he
would be subject to a disciplinary inquiry, and that he would not be allowed to
work overtime or to work with the public until the matter was resolved. [Dkt. #63,
Ex. #1b, Dep. of Martinsky at 176-179, 185-86; Ex. #23]. In response, Plaintiff
informed Chief Norwood that he believed that had not done anything wrong and
that he had been threatened by Paris and feared for his physical safety. Id.
7
After Plaintiff’s arrest, Plaintiff alleges that Sgt. Paris continued to act in an
angry and menacing manner, specifically alleging that: (1) Sgt. Paris went to
court while on-duty and/or in uniform on dates when plaintiff was scheduled to
appear in connection with the criminal charges against him and spoke to the
prosecutors and glared at Plaintiff in an intimidating manner [Dkt. #63, #1c, Dep.
of Martinsky at 211-12, 216]; (2) Sgt. Paris contacted the prosecutors handling
the criminal charges against Plaintiff and improperly attempted to influence them
to increase the charges against Plaintiff to a felony so that Plaintiff would face a
more substantial penalty and/or the loss of his job if convicted [Dkt.#63, Ex. #1b,
Dep. of Martinsky at 193-197; (3) Sgt. Paris went to see Mr. Falcigno, together with
one or more other officers, in an attempt to influence and/or intimidate him into
providing a written statement that would be more supportive of the criminal
charges against Plaintiff Id. at 290-293; and (4) he went to booking while Plaintiff
was working without apparent reason and behaved in an intimidating manner
toward Plaintiff. Id. at 207-208, 296.
Plaintiff alleges that he became increasingly fearful of further harassment
and/or retaliation by Sgt. Paris and/or his friends in the BPD because of their
actions and because the administration did not respond to Plaintiff’s concerns.
Plaintiff asserts that he then began to suffer from acute anxiety, immobilizing
panic attacks, and depression due to his arrest and the circumstances at work.
During this time Plaintiff did not challenge his assignment to booking. [Dkt. #63,
Ex. #1b, Dep. of Martinsky at 206-208; Ex. #1c, Dep. of Martinsky at 227].
8
The criminal charges against the Plaintiff were dismissed on October 2,
2007. [Dkt. #63, Pl. Rule 56 Stmt. ¶67]. After the criminal charges were dropped,
the Plaintiff then went to the Chief around Oct. 2, 2007 and again informed him
that he was afraid of Sgt. Paris and his friends and requested permission to stay
in booking where he felt less threatened due to the presence of video
surveillance. Id. at ¶68.
On October 9, 2007, Plaintiff submitted a letter to then Chief Bryan
Norwood in which he informed him of a conflict he had with Sgt. Paris, Lt.
Santora, Lt. Viadero, and Captain Brian McCarthy and his corresponding fear of
retaliation. [Dkt. #63, Pl. Rule 56 Stmt. ¶69]. The letter also stated that Plaintiff
expected to have pending civil matters in the future regarding his arrest and
reiterated his desire to remain in booking so that he would have as little contact
as possible with the listed officers. Id. at ¶70. The Chief granted Plaintiff’s request
to stay in booking. Id.
In December 2007, Capt. Porter notified Plaintiff that he was being taken
out of booking and assigned to his regular patrol duties after the first of the year
due to the Department’s needs. Id. at ¶¶86; 87. Plaintiff pleaded with Capt. Porter
to reconsider his assignment to patrol from booking and again noted his safety
concerns. Id. at ¶88. Capt. Porter responded that sergeants typically rotated
through booking, and that Plaintiff’s prolonged assignment to booking was in
conflict with that policy. Id. at ¶¶84, 85]. Additionally, Capt. Porter informed
Plaintiff that all police officers, regardless of rank or assignment, must be able to
perform full duty work, meaning that all officers must be capable of performing all
9
duties of an officer with a post in patrol. [Dkt. #44, Defs. Rule 56 Stmt. ¶124; Ex. P,
¶20].
Between June 11, 2007 and the beginning of his sick leave began on
January 2, 2008, Plaintiff did not make any other written requests to be assigned
to another position in the BPD. [Dkt. #63, Pl. Rule 56 Stmt. ¶93]. During this time
period, Plaintiff had no contact with Sgt. Paris during the course of his
employment other than Plaintiff’s allegations that: (1) Sgt. Paris came into the
booking office once while Plaintiff was working without apparent reason and
behaved in an intimidating manner; and (2) Sgt. Paris sent Plaintiff a letter, dated
August 24, 2007, stating that Plaintiff was being taken off the overtime list
because he had not worked overtime for 60 days. [Dkt. #63, Pl. Rule 56 Stmt.
¶77.; Ex. #1b-c, Dep. of Martinsky at 207-08, 212, 294-96].
Plaintiff asserted that he was psychologically incapable of working patrol
at that time and his condition deteriorated to such an extent as a result of
defendants’ actions that he was forced to go out on sick leave as of January 2,
2008. [Dkt. #63, Pl. Rule 56 Stmt. ¶95]. Plaintiff admits that prior to January 2,
2008, he had not specifically informed his superiors that he had a medical or
psychiatric condition or disability that made him unable to return to regular patrol
duty. Id. at ¶93. Plaintiff contends, however, that his superiors knew or should
have known that he was suffering from “debilitating fear and anxiety.” Id.
10
C. Medical Treatment
Once on medical leave from the BPD, Plaintiff immediately sought
treatment from a psychologist. [Dkt. #63, Ex. #1c, Dep. of Martinsky at 225].
Plaintiff’s psychologist referred him to Dr. Klugman, a psychiatrist, who
diagnosed Plaintiff with “Panic Disorder” on or around February 19, 2008 and
prescribed medications. Id. at Ex. #9 at Bates 2. Dr. Klugman also notified the
BPD of Plaintiff’s diagnosis. Dr. Klugman determined, around May 2008, that
Plaintiff’s injury had resulted in a permanent disability with respect to his current
condition. Id.
On November 26, 2008, after he had been on medical leave and receiving
medication and treatment for his injuries for almost a year, Plaintiff met with then
Acting Chief Joseph Gaudett to discuss the possibility of returning to work with
an accommodation for his health situation. [Dkt. #63, Pl. Rule 56 Stmt. ¶98]. At
the meeting, Plaintiff requested placement in the canine unit. Id. at ¶100.
Consistent with his preference for the protection of video surveillance available in
booking, Plaintiff thought he would be better suited for work in the canine unit
because he would feel safer with a police dog at his side for protection from
physical harm and the separation of the canine unit would allow him to work
independently from the officers who had threatened and/or taken other adverse
action against him. Id. at ¶¶101-04. Lt. Perez then informed Plaintiff that the Chief
had rejected his request for placement in the canine unit. Id. at ¶115. He noted
that assignment in the canine unit is a seniority bid position according to the
BPD’s collective bargaining agreement. Id. at ¶105. The seniority bid process
11
requires that any open position be posted, and the most senior officer to have
submitted a bid be assigned to that open position. Id. at ¶106. Defendants
contend that Plaintiff’s assignment in the unit might have violated the collective
bargaining agreement. Defendants further contend that no open position existed
at the time of Plaintiff’s request. [Dkt. #44, Defs. Rule 56 Stmt. ¶¶105-13].
Lt. Perez then suggested that Plaintiff may be fit for placement in the
training unit. [Dkt. #63, Pl. Rule 56 Stmt. ¶115]. Plaintiff did not feel able to return
to work in the training unit because he understood that the unit was “wide open”
and every police officer in the BPD, including Paris, had access to and attended
training in the building such that he would not feel protected. Id. Additionally
Plaintiff noted that placement in the training unit was a less desirable position for
him. Id. at ¶118.
On or around January 19, 2009, BPD notified Plaintiff that he would be
subject to a psychiatric examination to determine, among many things, his
fitness for duty. Id. at ¶126. After reviewing records related to Plaintiff’s medical
treatment and evaluating Plaintiff on March 9, 2009, the psychiatrist who
examined Plaintiff on behalf of the City, Dr. Mark Rubenstein, diagnosed Plaintiff
with Panic Disorder without Agoraphobia resulting from Plaintiff’s work
environment, the various incidents with his co-worker, his arrest, and other
issues concerning the situation. Id. at ¶129. Dr. Rubenstein ultimately determined
that Plaintiff was unable to return to his former duties or to any duties with the
BPD. Id. at ¶130.
12
Plaintiff was retired on a disability pension on September 15, 2009, based
on a finding that he was permanently disabled for the performance of his duties
by reason of mental or physical disability resulting from injury received or
exposure endured in the performance of his duty. Id. at ¶133.
II. STANDARD OF REVIEW
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court “construe[s] the
evidence in the light most favorable to the non-moving party and . . . draw[s] all
reasonable inferences in its favor.” Huminski v. Corsones, 396 F.3d 53, 69-70 (2d
Cir. 2004). “[I]f there is any evidence in the record that could reasonably support
a jury’s verdict for the non-moving party, summary judgment must be denied.”
Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313,
315 (2d Cir. 2006) (internal quotation marks omitted). “The moving party bears
the burden of showing that he or she is entitled to summary judgment.”
Huminski, 396 F.3d at 69. “[T]he burden on the moving party may be discharged
by ‘showing’—that is pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002). “If the party moving for summary judgment
demonstrates the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence
that would be sufficient to support a jury verdict in its favor.” Burt Rigid Box, Inc.
v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
13
III. ADA & CFEPA CLAIMS
Plaintiff brings a claim under the ADA alleging that he suffers from ongoing
conditions including panic attacks, anxiety and depression which substantially
limit one or more of his major life activities, and that these conditions qualify as a
disability within the meaning of 42 U.S.C. §12101 and C.G.S. §46a-51. [Dkt. #1, Pl.
Compl. ¶76]. Plaintiff’s claim under the ADA further alleges that the Defendant,
the City of Bridgeport, failed to investigate or evaluate the nature of these
disabilities in response to his request to remain in booking as an
accommodation, and that the Defendant discriminated against by subjecting him
to a hostile work environment, refusing to provide him with reasonable
accommodation for his disabilities, and rendered him disabled from work as of
January 2, 2008. Id. at ¶¶77-78. Plaintiff asserts that this conduct constitutes
employment discrimination on the basis of disabilities in violation of 42 U.S.C.
§1201 and C.G.S. §46a-51. Id. at ¶¶79, 83.
Defendants’ motion for summary judgment challenges Plaintiff’s claim for a
violation of the ADA on several grounds. Defendants’ assert that there is no
genuine issue of material fact that: (1) Plaintiff is not a qualified individual with a
disability under the meaning of the ADA; (2) Defendants did not fail to
accommodate the Plaintiff’s claimed disability; (3) Defendants did not create,
maintain or foster a hostile work environment as to Plaintiff. Additionally,
Defendants motion for summary judgment challenges Plaintiff’s claim for a
14
violation of CFEPA on the grounds that there is no genuine issue of material fact
that the Defendants’ conduct fails to meet the legal standard for the claim.
The conduct which Plaintiff alleges violated the ADA occurred prior to
January 1, 2009 and is therefore analyzed pursuant to the statue as it existed
prior to the ADA Amendments Act of 2008, which went into effect on January 1,
2009.
Disability is defined under the ADA as “(A) a physical or mental impairment
that substantially limits one or more of the major life activities. . .; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.” See
Title 42 U.S.C. §12102(2); Francis v. City of Meriden, 129 F.3d 281, 283 (2d Cir.
1997). As the Equal Employment Opportunity Commission (“EEOC”) is the
agency that bears the responsibility for implementing specific provisions of the
ADA, the Second Circuit generally defers to the EEOC regulations in construing
the ADA’s terms. See Mueller v. Costello, 187 F.3d 298, 312 & n.5 (2d Cir. 1999)
(according “great deference” to the Equal Employment Opportunity
Commission’s interpretation of “disability” in employment discrimination case
under title I).
In order to present a prima facie case of discrimination under the ADA, a
plaintiff must establish that: (1) the employer is subject to the statute under which
the claim is brought; (2) Plaintiff is an individual with a disability within the
meaning of the statute in question; (3) Plaintiff could perform the essential
functions of the job, with or without reasonable accommodation; and (4) the
employer had notice of the plaintiff’s disability and failed to provide such
15
accommodation. See Capobianco v. City of New York et al., 422 F.3d 47, 56 (2d
Cir. 2005) (citing Shannon v. New York City Transit Auth., 332 F.3d 95, 99 (2d Cir.
2003); Desmond v. Yale-New Haven Hosp., Inc., 738 F.Supp.2d 331, 343 (D.Conn
2010).
Defendants do not contest the applicability or the sufficiency of the
allegations of the Complaint regarding the first element. It is undisputed that BPD
is subject to the requirements of the ADA. The Defendants argue, however, that
Plaintiff has failed to present sufficient evidence to establish the second, third
and fourth elements of a prima facie case of discriminatory termination.
A. REQUIREMENT TWO: DISABLED UNDER THE MEANING OF THE ADA AND
CFEPA
1. DISABILITY UNDER THE ADA
To qualify as a disability under the ADA, the relevant impairment must be
of a nature that “substantially limits one or more of the major life activities.” 42
U.S.C. §12102(2)(A). While the list is not exhaustive, according to the EEOC
“major life activities” include, inter alia, caring for oneself, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. §1630.2(i). Whether
an impairment substantially limits a life activity is determined by considering: (1)
the nature and severity of the impairment; (2) the duration of the impairment; and
(3) the impairment’s permanent or long-term impact. 29 C.F.R. §1630.2(j)(2).
Although the determination of whether an individual is disabled within the
meaning of the ADA is both individualized and fact specific, an individual is only
substantially limited by an impairment when it renders the individual
16
“[s]ignificantly restricted as to the condition, manner, or duration under which
[he] can perform a major life activity as compared to . . . the average person in the
general population[.]” Reeves v. Johnson World Services, Inc., 140 F.3d 144, 151
(2d Cir. 1998); 29 C.F.R. §1630.2(j).
a. ADA MAJOR LIFE ACTIVITY STANDARD
Plaintiff’s impairments are not sufficient to constitute a disability within the
meaning of the ADA. To meet the ADA’s categorical definition of “being
disabled,” the claimant must show that the claimed physical or mental
impairment substantially limits one or more of the major life activities. Rogers v.
City of New York, 359 Fed.Appx. 201, 203 (2d Cir. 2009) (citing 42 U.S.C.
§12102(2)(A) & (c); Ryan v. Grae & Rybicki. P.C. 135 F.3d 867, 869 (2d Cir. 1998)).
While Plaintiff’s impairment relates to “major life activities,” such as thinking,
concentrating and interacting with others, his impairment of these activities does
not rise to the level of “substantially limiting” a life activity.
Plaintiff’s impairment is appropriately classified as a mental impairment
under the ADA. A mental impairment can encompass “any mental or
psychological disorder, such as . . . emotional or mental illness” EEOC
Regulations to Implement the Equal Employment Provisions of the Americans
with Disabilities Act, 29 C.F.R. 1630.2(h)(2) (2007). Plaintiff claims that the incident
on June 11, 2007 led him to suffer from acute anxiety, debilitating fear, frequent
immobilizing panic attacks, stress and anxiety about the circumstances at work,
sleeplessness, decreased concentration and the ability to socialize and interact
17
with others, and other physical symptoms, including stomach and chest pains,
faintness, and diarrhea. [Dkt. #63, Ex. #8, Bates #22; Ex. #9, Bates #9; Ex. #10 at
Bates ##5, 10]. A psychiatrist examining Plaintiff on behalf of the BPD later
diagnosed him with Panic Disorder without Agoraphobia. Id. at Ex.#9, Dr.
Rubenstein 4/03/09 Report at 10. Defendants do not appear to dispute that
Plaintiff suffers from a “mental impairment” within the meaning of the ADA.
Plaintiff’s alleges that the symptoms relating to his diagnosed Panic
Disorder - abdominal pain and panic attacks - have affected several major life
activities such as the ability to work, sleep, think, concentrate, and interact with
others while working for the BPD. [Dkt. #63, Ex.#9, Dr. Klugman 4/03/09 Report at
Bates # 9. In order to make a successful ADA claim, Plaintiff must show that his
mental impairment substantially limits any of these major life activities. 29 C.F.R.
§1630.2(j)(2). To establish that major life activities are substantially limited by his
mental impairment, Plaintiff must demonstrate that certain factors relating to the
impairment, including (1) the nature and severity of the impairment; (2) the
duration of the impairment, and (3) the impairment’s permanent or long-term
impact, indicate that his ability to perform those life activities is substantially
limited as compared to an average individual’s ability to conduct the same life
activity. Reeves v. Johnson World Services Inc., 140 F.3d 144, 151 (2d Cir. 1998);
29 C.F.R. §1630.2(j). Under the ADA, an impairment that is “episodic” qualifies as
a disability “if it would substantially limit a major life activity when active.” 29
C.F.R. §1630.2(j)(1)(vii).
18
b. MAJOR LIFE ACTIVITIES - NON-WORKING
Plaintiff has presented sufficient evidence to indicate that his impairment is
severe. Plaintiff’s impairment, a diagnosed Panic Disorder, is “a quite serious
disorder” according to an independent psychiatrist who examined him. [Dkt. #63,
Ex. #10, at Bates #10]. The disorder has caused Plaintiff to experience panic
attacks that seemed “physical” and that caused him to feel “immobilized” with
anticipatory anxiety. Id. at 4. These panic attacks caused Plaintiff “‘chest pains,
stomach pains, and shortness of breath,’” along with “faint feelings [and]
diarrhea.” Id.
However, even though at times Plaintiff’s impairment was severe, the
evidence presented is insufficient to establish a substantial limitation on a life
activity in comparison to an average individual. Plaintiff was still able to think and
interact with others at BPD and continued to communicate with his children. Id.
at 10; Ex.#11, Report of Dr. Schechter 2/28/11, at 4. Despite his panic attacks,
Plaintiff was able to work in booking between June 2007 and December 2007.
Moreover, Plaintiff disclosed to Dr. Klugman that while his ability to sleep may
have deteriorated shortly after his arrest in June 2007, it then improved from
October through December, shortly before he went on leave from the Department
in January 2008. [Dkt. #63, Ex. #9, Dr. Klugman Report, 2/19/08, Bates #6]. Dr.
Klugman noted that Plaintiff’s panic disorder did not prevent him from
maintaining a relationship with his children, enjoying watching a basketball
game, or cooking for himself. Id.
19
While Dr. Klugman noted that Plaintiff still suffered panic attacks at least
once a day, the degrees of the attacks varied. Id. at Bates #9. Although Dr.
Rubenstein found that “[i]t is also probabl[e] that his psychiatric disability will
continue into the future and that it is permanent by this time,” the nature of
Plaintiff’s disability did not cause the complete loss of his ability to interact with
others. [Dkt. #63, Ex. #10, Dr. Rubenstein 4/03/09 Report, at 10; Ex. #11, Dr.
Schechter Report, 2/28/11 at 4 (finding that as of 9/22/10 Martinsky’s panic attacks
have “left him with social avoidance” but he still remains in contact with his
children].
Even construing the evidence in the light most favorable to the Plaintiff, he
has failed to present sufficient evidence that his mental impairment substantially
limited non-work-related major life activities, such as the ability to sleep, think,
concentrate, and interact with others as compared to an average person.
c. MAJOR LIFE ACTIVITY - THE ABILITY TO WORK
Plaintiff also alleges that his panic disorder has substantially limited the
major life activity of working. The major life activity of working is subject to more
stringent restrictions with respect to whether a person is disabled under the ADA.
The EEOC has stated that in the context of working:
(i) The term substantially limits means significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable training, skills and
abilities. The inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working. 29 C.F.R. §
1630(j)(3).
20
The Supreme Court has narrowed the EEOC’s definition of “substantially limited”
when asserting an ADA claim regarding the major life activity of working, holding
that “[w]hen the major life activity under consideration is that of working, the
statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege
that they are unable to work in a broad class of jobs.” Sutton v. United Air Lines,
527 U.S. 471, 492 (1999), superseded by statute, ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat 3553, as recognized in Ragusa v. Malverne Union
Free Sch. Dist., 381 Fed.Appx. 85, 88 (2d Cir. 2010). In order “to be substantially
limited in the major life activity of working . . . one must be precluded from more
than one type of job, a specialized job, or a particular job or choice.” Sutton v.
United Air Lines, 527 U.S. 471, 492 (1999).
Evidence in the record indicates that Plaintiff’s anxiety did not preclude
him from a broad class of jobs. Rather, Plaintiff’s “anxiety is specifically related
to the police department.” [Dkt. #63, Ex.#9, Dr. Klugman 5/7/09 Record, Bates #1].
An independent evaluation found that “it is highly probable that [Plaintiff] could
not work in any capacity for the Bridgeport Police Department,” but “[i]t is
possible he might be able to work in another police department[.]” [Dkt. #63, Ex.
#10, Dr. Rubenstein 4/03/09 Report, at 10 (emphasis in original)]. Further,
evidence in Plaintiff’s independent medical examination describes his diagnosis
as “anticipatory anxiety, generalized anxiety, with regard to the Bridgeport Police
Department, and specific anxiety as occurring at work and for various reasons
related to work.” Id.
21
Plaintiff’s inability to continue to work in the capacity as a Sergeant in the
Bridgeport Police Department does not qualify him as impaired from the major
life activity of working. See Giordano v. City of New York, 274 F.3d 740, 748 (2d
Cir. 2001) (“inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working”). In addition, Plaintiff
must provide evidence of the qualifications for other employment that he cannot
satisfy because of his impairment to demonstrate that his impairment precludes
him from obtaining employment in a broad class of jobs. Id. at 749-50.
Plaintiff noted taking “i.t.” (likely “information technology”) or computer
classes, looking to acquire his real estate license, and exploring business ideas
as a means of seeking other employment, but did not include any evidence to
suggest that his disability prevents him from working in those fields. [Dkt. #63,
Ex. #9, Dr. Klugman Report, Bates # 11(Treatment Note 5/19/08 & 9/08/08);
(Treatment Note 7/14/08); (Treatment Note 11/16/09)]. Plaintiff noted to his
psychiatrist in May 2010 that he was “looking for work without success,” but did
not indicate that his impairment hindered him from attaining work. Id. at Bates
#12 (Treatment Note 5/10/10).
Because Plaintiff has not presented evidence to demonstrate that his
mental impairment rendered him unable to perform a broad class of jobs, he has
failed to present sufficient evidence that his mental impairment substantially
limited the major life activity of working.1
1
Defendants’ Motion for Summary Judgment also argued that the BPD did not
regard Plaintiff as disabled, however this argument was not raised in Plaintiff’s
Complaint, nor did Plaintiff address this argument in his Memorandum in
Opposition to Defendants’ Motion for Summary Judgment. Plaintiff argues solely
22
2. DISABLED UNDER CFEPA
Count B of Plaintiff’s Complaint incorporates all of the claims against the
Defendant City as pleaded in the ADA claim, but brings them under the state law
equivalent of the ADA, the Connecticut Fair Employment Practices Act, Conn.
Gen. Stat. §46a-60(a)(1), et. seq. (hereinafter “CFEPA”). The standard for
analyzing whether or not an individual is disabled under CFEPA is significantly
broader than the ADA standard. See Beason v. United Technologies Corp., 337
F.3d 271 (2d Cir. 2003) (holding that CFEPA’s definition of physical disability is
broader than the ADA’s). Whereas the definition of disability under the ADA
includes the requirement that the physical impairment substantially limit one or
more major life activity, the CFEPA definition of disability includes “any
individual who has any chronic physical handicap, infirmity or impairment.” See
id. at 6-7. Although Plaintiff’s condition, Panic Disorder without Agoraphobia
causing abdominal pain and panic attacks likely qualifies as a disability under
CFEPA, it is unnecessary for the Court to reach a determination on this point
because Plaintiff’s CFEPA claim has not established that he was denied a
reasonable accommodation. The standards regarding reasonable
accommodation are identical under the ADA and CFEPA. Curry v. Allan S.
Goodman, Inc., 286 Conn. 390, 403-04 (2008). Accordingly, the same analysis
applies to the Plaintiff’s CFEPA claim as to the ADA claims. Although Plaintiff’s
mental impairment qualifies as a disability under the broader standard of CFPA,
that he was disabled under the meaning of the ADA. Accordingly, the Court need
not address this argument.
23
the BPD’s provision of a reasonable accommodation precludes both Plaintiff’s
CFEPA and ADA disability claims.
B. REQUIREMENT THREE: ABILITY TO PERFORM ESSENTIAL FUNCTIONS
WITH OR WITHOUT ACCOMODATION
On January 2, 2008, Plaintiff left his post in patrol on sick leave, asserting
that he was psychologically incapable of working patrol. Defendants argue that
patrol duties are an essential function of employment as a member of the BDP.
Plaintiff disputes this assertion, arguing that it was not uncommon for officers to
be placed in short and long-term non-patrol assignments, thereby indicating that
patrol is not an essential function of the duties of a member of the BDP.
The EEOC regulations define the term “essential functions” as “the
fundamental job duties of the employment. 29 C.F.R. §1630.2(n)(1). As further
guidance, the regulations list the following factors for consideration in
determining whether a duty is an “essential function”:
(i) [. . .] the reason that the position exists is to perform that function; (ii)
[there are a] limited number of employees available among whom the
performance of that job function can be distributed; and/or (iii) the function
[is] highly specialized so that the incumbent in the position is hired for his
or her expertise or ability to perform the particular function. 29 C.F.R.
§1630.2(n)(2).
Lastly, the regulations provide a non-exclusive list of evidence that may
appropriately be considered in evaluating whether or not a job function is
essential. This list of permissible evidence includes “the employer’s judgment as
to which functions are essential,” and “the consequences of not requiring the
incumbent to perform the function.” 29 C.F.R. §§1630.2(n)(3)(i), (iv).
24
The Second Circuit, in Stone v. City of Mount Vernon, articulated the proper
analysis for determining whether a job function is essential, including
consideration of “the employer’s judgment, written job descriptions, the amount
of time spent on the job performing the function, the consequences of not
requiring plaintiff to perform the function, mention of the function in any
collective bargaining agreement, the work experience of past employees in the
job, and the work experience of current employees in similar jobs. 118 F.3d 92, 97
(2d Cir. 1997). In Price v. City of New York, the Second Circuit emphasized that a
court may not simply rely on the defendant’s assertion regarding whether or not a
function is essential, but must careful consider all of the relevant factors,
including, but not limited to, those listed in Stone. 264 Fed.. Appx. 66, 68-69 (2d
Cir. 2008).
In support of its motion for summary judgment, the BDP relies on the
testimony of Chief Gaudett stating that “all police officers in the Bridgeport Police
Department, regardless of rank or assignment, must be able to perform ‘full duty’
work, meaning that all officers must be capable of performing all duties of an
officer with a post in patrol. [Dkt. #44, Defs. Rule 56 Stmt. ¶124; Ex. P, ¶20]. This
evidence is consistent with the EEOC regulations as evidence of “the employer’s
judgment as to which functions are essential.” 29 C.F.R. §1630.2(n)(3)(i).
To refute the Defendants assertion that the patrol duty is an essential
function, Plaintiff argues that officers are regularly assigned to long-term
positions not involving a patrol function. However, even viewing the facts in the
light most favorable to the Plaintiff, Plaintiff’s evidence is insufficient to create a
25
factual dispute regarding the status of patrol duties as an essential function of
the duties of a member of the BDP. Plaintiff’s evidence, taken as true, would
merely indicate that officers are sometimes placed in short-and long-term
positions that do not involve patrol functions, but Plaintiff has not provided
evidence to suggest that the such placements are permanent such that the BDP
has allowed an employee to maintain a position within the Department who could
not perform a patrol function if required to do so.
The cases upon which Plaintiff relies in support of his argument are
inapposite, because they address the question of essential function in
circumstances where other employees were placed in permanent positions not
requiring the performance of the relevant function. See Russell v. City of New
York, No. CV05-0948, 2006 WL 2333729 (E.D.N.Y. 2006) (“If as a matter of practice
the NYPD employs police officers in permanent non-patrol positions, this would
refute defendants’ assertion that patrol or firearm duty is an essential function of
the job”); Price, 264 Fed.Appx. at 68 (considering Plaintiff’s identification of six
permanently disabled employees allowed to remain employed). Plaintiff has not
presented any evidence to establish that officers of the BDP have been placed in
permanent positions not involving a patrol function.
However, even if Plaintiff’s evidence was sufficient to present a disputed
fact regarding patrol as an essential function, it would be immaterial because the
evidence from the record clearly establishes that Defendants provided a
reasonable accommodation.
26
C. REQUIREMENT FOUR: FAILURE TO PROVIDE REASONABLE
ACCOMODATION
Assuming arguendo that Plaintiff was otherwise qualified to perform the
essential functions of his job, with or without reasonable accommodation, under
both the ADA and CFEPA, the failure to provide reasonable accommodations for
an individual with a disability can constitute discrimination. Wernick v. Federal
Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) (citing 42 U.S.C. §
12112(b)(5)(A)). Even if Plaintiff has a qualified disability under the ADA and
CFEPA, the BDP provided Plaintiff with a reasonable accommodation.
Under the ADA, an employer is required to make “reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability . . . unless [the] covered entity can
demonstrate that the accommodation would place an undue hardship on the
operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A).
In Borkowski v. Valley Cent. School Dist., the Second Circuit recognized
that when raising a reasonable accommodation claim, Plaintiff bears the burden
of production in identifying a reasonable accommodation. 63 F.3d 131, 138.
Further, the Second Circuit explained that “reasonable” in the context of the ADA
is a “relational term: it evaluates the desirability of a particular accommodation
according to the consequences that the accommodation will produce.” Id.
Determining what is reasonable “requires an inquiry not only into the benefits of
the accommodation but into its costs as well.” Id. Once a disabled individual has
suggested to his employer a reasonable accommodation, the employer must
27
engage in an “informal, interactive process” with the disabled individual “to
identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” Curry, 286
Conn. at 416 (citing 29 C.F.R. §1630.2(o)(3). This interactive process requires that
the employer make “a good faith effort to participate in that discussion.” Curry,
286 Conn. at 416. However, in McBride v. BIC Consumer Products Mfg. Co. Inc.,
the Second Circuit held that an employer’s failure to engage in a sufficient
interactive process cannot alone form the basis of a claim under the ADA, rather
to avoid summary judgment, a plaintiff must also establish that he or she was
qualified for the position at issue. 538 F.3d 92 (2d Cir. 2009).
Here, Plaintiff proffered two potential reasonable accommodations. In
December 2007, after receiving notification that he was being assigned back to
patrol starting in January, 2008, Plaintiff requested to continue his assignment in
booking. [Dkt. #63, Pl. Rule 56 Stmt. ¶88]. In November 2009, Plaintiff requested
assignment to BPD’s canine unit. Id. at ¶100.
Assuming arguendo that BPD was aware of Plaintiff’s disability between
June 2007 and December 2007, BPD was not required to grant his request to
remain in booking. The ADA does not obligate an employer to provide an
employee with the accommodation requested; the employer need only provide
some reasonable accommodation. See Hennenfent v. Mid Dakota Clinic, P.C., 164
F.3d 419 (8th Cir. 1998) Moreover, although a reasonable accommodation may
include reassignment of an employee to a vacant position for which he or she is
qualified, the ADA does not require an employer to create a new position in order
28
to provide an accommodation. Picinich v. United Parcel Service, 321 F.Supp.2d
485, 505 (N.D.N.Y 2004). BPD had an established policy of rotating officers
through booking, rather than letting an officer remain in a position in booking for
an extended period of time. [Dkt. #44, Defs. Rule 56 Stmt. ¶84]. Therefore, there
was no vacancy in booking to provide a potential reasonable accommodation.
See Picinich, 321 F.Supp.2d at 505 (holding that the ADA does not require
employers to create a new position for an employee in order to accommodate him
or her).
Further, Plaintiff’s second request to be placed in the canine unit did not
suggest a reasonable accommodation. In or around November or December
2008, Plaintiff approached Chief Gaudett and spoke with him about the possibility
of coming back to work and being assigned to the canine unit. [Dkt. #44, Def. Rule
56 Stmt., ¶¶98-100]. Chief Gaudett considered this request, but ultimately denied
it. Assignment to the canine unit is governed by the Bridgeport police collective
bargaining agreement, which provides that assignment to the unit must be done
through a seniority bid process. Id. at ¶105; Ex.B, at 232:16-23. When a vacancy
arises in the unit, all interested candidates must submit their names and the most
senior applicant is automatically selected for the position. Id. at ¶106; Ex. P, ¶13.
In U.S. Airways, Inc. v. Barnett, the Supreme Court held that an employer
may not automatically reject a proposed accommodation as unreasonable where
appointment to the position would violate an established seniority system. 535
U.S. 391 (2002). However, the Court emphasized that ordinarily, a proposed
accommodation in violation of a seniority system would not constitute a
29
reasonable accommodation. Id. at 403. In order to refute this conclusion, a
plaintiff must present special circumstances warranting a finding that, “despite
the presence of a seniority system (which the ADA may not trump in the run of
cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” Id.
at 405. As further clarification, the Court provided an example of such special
circumstances, stating that “plaintiff might show, for example, that the employer,
having retained the right to change the seniority system unilaterally, exercises
that right fairly frequently, reducing employee expectations that the system will
be followed—to the point where one more departure, needed to accommodate an
individual with a disability, will not likely make a difference.” Id. at 405. Moreover,
the Court noted that collectively bargained seniority systems, as opposed to
seniority systems unilaterally imposed by management, are more likely to prevent
a proposed accommodation from being “reasonable.” Id. at 404.
BDP’s seniority system is the product of a collective bargaining agreement.
[Dkt. #44, Defs. Rule 56 Stmt. ¶105]. Plaintiff has not presented any special
circumstances warranting deviation from the seniority system and has therefore
failed to sustain his burden to establish that the desired position would be a
reasonable accommodation, despite the conflict with a seniority system.
Additionally, no vacant positions existed in the canine unit at the time of
Plaintiff’s request. The organizational structure of the canine unit required only
one sergeant as a supervisor, and at the time Mr. Martinsky made his request,
that position was filled. Id. at ¶¶ 112-113; Ex. P, ¶17. The ADA does not require the
BPD to create a position as part of a reasonable accommodation. See Norville v.
30
Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (holding that employers
need not create a new job to accommodate a disabled employee).
Therefore, Plaintiff’s proposed assignment to the canine unit was not a
reasonable accommodation due to the fact that it would violate the collective
bargaining agreement and the position was not vacant. Plaintiff has not met his
burden in providing a reasonable accommodation that would not cause an undue
burden on the Bridgeport Police Department.
A. BPD’s Reasonable Accommodation of Reassignment to the Training Unit
In an attempt to accommodate Plaintiff’s disability, the BPD offered him a
position in the Training Unit. Unlike the position in the canine unit, an
assignment to the training academy is a non-patrol position, located in a separate
building in an entirely different location from the rest of the department. [Dkt. #63,
Pl. Rule 56 Stmt. ¶116; #2, Aff. of Martinsky at ¶24]. Plaintiff asserted that an
assignment in the training academy did not provide a reasonable accommodation
because the training unit was not under video surveillance and to his knowledge
every officer, including those with whom he was in conflict, had access to the
training area. See Id. at ¶¶106-07, 109-13. Thus, Plaintiff contends that assignment
to the training unit was not only a less desirable position, but also would not
address his safety concerns. See Id. at ¶¶117-18.
The reasonableness of an accommodation under the ADA involves a caseby-case inquiry which considers the effectiveness of the modification in light of
the nature of the disability in question and the cost of implementing the
31
modification. Goldring v. Sillery Mayer & Partners, 199 F.Supp.2d 55, 62 (citing
Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995). A reasonable
accommodation can include reassignment to a vacant position. See id; see also
42 U.S.C. § 12111(9)(B); 34 C.F.R. §104.12.
After determining that Plaintiff’s requested accommodations of a
permanent assignment in booking and an assignment to the canine unit were
contrary to established BDP policies, the department suggested that Plaintiff be
assigned to the training unit. [Dkt. #44, Defs. Rule 56 Stmt. ¶115]. The training
unit offered a vacant, non-patrol position indoors and separate from the rest of
the department. As part of the training unit, Plaintiff could continue to hold a
supervisory position with the same status as his previous position and the BDP
would not have to incur added costs in meeting patrol duties or violate the BPD’s
collective bargaining agreement. The assignment to the training unit addresses
Plaintiff’s primary concerns by allowing him to avoid resuming duties in patrol
yet remain an active officer and would keep him separated from the officers by
whom he felt threatened. Compliance with the ADA does not require employers to
provide the exact accommodation requested. Alster v. Goord, 745 F.Supp.2d 317
(S.D.N.Y. 2010) (citing Cole v. Goord, No. 05-Civ. 2902 (GEL), 2009 WL 2601369
(S.D.N.Y. Aug. 25, 2009)). BDP’s placement of Plaintiff in the training unit
constituted a reasonable accommodation under the ADA standards. There is
therefore no reasonable view of the evidence whereby BDP failed to
accommodate Plaintiff’s disability and Plaintiff’s claim of failure to accommodate
cannot stand.
32
III. HOSTILE WORK ENVIRONMENT
Plaintiff alleges in his complaint that the BPD’s conduct towards him
regarding his disability created a hostile work environment in violation of the
ADA’s anti-discrimination provisions. BPD asserts that Plaintiff did not notify the
BDP of his disability until January 2008, after he had already gone on medical
leave. Therefore, BPD argues that Plaintiff cannot allege any set of facts to
establish that BPD discriminated against him because of his disability as no one
in the Department had any actual or constructive knowledge of his disability from
June 11, 2007 through January 2, 2008.
Although Plaintiff asserts that the ADA gives rise to a cause of action for
hostile work environment, the Second Circuit has not explicitly decided whether
this cause of exists under the ADA. Farina v. Branford Bd. of Educ., No. 3:09-CV49 (JCH), 2010 WL 3829160, at * 15 (D. Conn. Sept. 23, 2010) (citing Bonura v.
Sears Roebuck & Co., 62 Fed.Appx. 399, 400 n. 3 (2d Cir. 2004)). Nonetheless,
some district courts within the Second Circuit have recognized such claims. See
e.g., Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 584 (S.D.N.Y
2008). Moreover, “the circuits that have reached this question have answered it in
the affirmative.” Bonura, 62 Fed.Appx. at 400 n.3. However, even if the ADA
supports such a cause of action, Plaintiff cannot establish the elements of a
hostile work environment claim.
Courts that have recognized hostile work environment claims under the
ADA apply the same standard utilized in Title VII cases. See e.g., Shaver v.
33
Independent Stave Co., 350 F.3d 716, 720 (8th Cir. 2003) (“In determining whether
a hostile work environment claim has been made out under the ADA, we think it
proper to turn to standards developed elsewhere in our anti-discrimination law,
adapting them to the unique requirements of the ADA”); Fox v. General Motors
Corp., 247 F.3d 169, 176-77 (4th Cir. 2001) (noting that several other circuits have
held that the ADA includes a cause of action for hostile environment harassment
modeled after the Title VII cause of action, and so holding); Flowers v. Southern
Regional Physician Services Inc., 247 F.3d 229, 235-36 (5th Cir. 2001) (“A cause of
action for disability-based harassment is ‘modeled after the similar claim under
Title VII’”) (citation omitted).
As the Second Circuit recognized in Kassner v. 2nd Ave. Delicatessen Inc.,
in order to prevail under the standard, a plaintiff must establish two elements.
First, for a work environment to be sufficiently hostile so as to be actionable, the
workplace must be “permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently pervasive to alter the conditions of the victim’s
employment.” 496 F.3d 229, 240 (2d Cir. July, 2007) (citing Brennan v. Metro
Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999). The determination of hostility
“depends on whether a reasonable person would find the work environment to be
hostile and whether plaintiffs subjectively perceived it to be so. Id.
In evaluating a hostile work environment claim, a court should consider the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance. See Harris v.
34
Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Quinn v. Green Tree Credit Corp., 159
F.3d 759, 767-68 (2d Cir. 1998). “Generally, isolated incidents of harassment do
not give rise to a hostile work environment claim; instead, the incidents must be
‘sufficiently continuous and concerted in order to be deemed persuasive.’”
Balonze v. Town Fair Tire Ctrs., No. 3:02cv2247, 2005 WL 752198, at *8 (D.Conn.
Mar. 31, 2005) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)).
“‘Simple teasing, offhand comments, and isolated incidents . . . will not amount to
discriminatory changes in the terms and conditions of employment sufficient to
meet the threshold of severity or pervasiveness.’” Crawford v. N.Y. Life Ins. Co.,
No. 04-CV-1853, 2006 WL 2792779, at *8 n. 4 (E.D.N.Y. Sept. 27, 2006) (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Second, to successfully raise a hostile work environment claim, a plaintiff must
show that “a specific basis exists for imputing the conduct that created the
hostile environment to the employer.” Murray v. N.Y. Univ. Coll. Of Dentistry, 57
F.3d 243, 249 (2d Cir. 1995) (citing Karibian v. Columbia Univ., 14 F.3d 773, 779 (2d
Cir. 1994). “[E]mployer liability for a hostile environment created by coworkers, or
by a low-level supervisor who does not rely on his supervisory authority in
carrying out the harassment, attaches only when the employer has ‘either
provided no reasonable avenue for complaint or knew of the harassment but did
nothing about it.” Id. (quoting Kotcher v. Rosa & Sullivan Appliance Ctr. Inc., 957
F.2d 59, 63 (2d Cir. 1992)); see Karibian, 14 F.3d at 780.
Plaintiff has not established either element of a hostile work environment
claim under the ADA. Even construed in the light most favorable to Plaintiff, the
35
non-moving party, Plaintiff’s allegations regarding the treatment he was
subjected to at the BPD do not suggest a work environment permeated with
discriminatory intimidation, ridicule, and insult based on his disability. Rather,
Plaintiff asserted that Defendant Paris’s menacing behavior and explicit threat to
kill him on June 11th made Plaintiff fear for his life. See [Dkt. #63, Pl. Rule 56
Stmt., Disputed Facts ¶¶21, 25, 29 (describing the symptoms Plaintiff
experienced, including acute anxiety, debilitating fear, immobilizing panic
attacks, stomach and chest pains, faintness and diarrhea)]. Plaintiff’s increased
panic and discomfort in the workplace based on these threats and fear of
retaliation prompted Plaintiff to request remaining on booking duty for an
extended period of time. Id. at ¶27. Therefore, Plaintiff’s asserted anxiety at work
stemmed from the threat of retaliation, not from any ridicule based on Plaintiff’s
alleged disability.
In fact, Plaintiff did not disclose his disability to superiors at the BPD until
he went on sick leave on January 2, 2008. Plaintiff’s letter in October 2007 to
Chief Norwood requesting to remain in booking stemmed from his need for video
surveillance due to his fear of retaliation, not from a disclosed disability. See [Dkt.
69, Def. Reply to Pl. Motion for Summary Judgment, Ex. H]. Plaintiff’s letter
began by stating his intention “to officially inform you of the conflict I have with
certain officers.” Id. Plaintiff’s letter continued to state his request to have “no
contact with the following officers [. . .] since I fear retaliation.” Id. This letter
clearly conveys a fear of retaliation, rather than an environment permeated with
discriminatory insult and ridicule.
36
Plaintiff’s two allegedly adverse interactions with Sgt. Paris between the
June 11, 2007 incident and his departure on sick leave January 2, 2008 include:
(1) Sgt. Paris entering the booking office once while Plaintiff was working without
apparent reason and; (2) sending Plaintiff a form letter, stating that Plaintiff was
being taken off the overtime list because he had not worked overtime for 60 days.
[Dkt. #63, Pl. Rule 56 Stmt. ¶77]. This conduct on the part of Defendant Paris
could not constitute harassment against Plaintiff based on his disability because
his disability was undiagnosed until February 2008, and was not conveyed to his
superiors until January 2, 2008. Id. at ¶¶ 93, 94. Although Sgt. Paris’s two
instances of contact with Plaintiff may have led Plaintiff to feel threatened, these
two instances of contact included no mention of Plaintiff’s disability, and thereby
cannot be found to constitute disability-based harassment actionable under the
ADA. 42 U.S.C. §12112(a) (providing that no employer covered by the ADA “shall
discriminate against a qualified individual with a disability because of the
disability of such individual” (emphasis added).
Plaintiff asserts that his superiors subjected him to a hostile work
environment because of his condition by denying his requested accommodations
despite being aware that he felt physically threatened and terrified of returning to
patrol, that it would likely result in the exacerbation of his condition, and/or that
plaintiff could not continue working if he was sent to patrol. [Dkt. #63, Pl. Rule 56
Stmt. ¶94]. However, even if his superiors conduct in denying his requests
amounted to harassment under the ADA, this conduct could not have been on the
basis of his disability because prior to January 2, 2008, Plaintiff admittedly had
37
not made his superiors aware of the fact that he had a medical or psychiatric
condition or disability that made him unable to return to patrol duty. Id. at ¶93.
Moreover, rather than demonstrating discriminatory intent or harassment,
BPD’s actions demonstrate an attempt to accommodate Plaintiff’s fears. After
Plaintiff went on sick leave and BPD became aware of a potential disability, BPD
then afforded Plaintiff the opportunity to work in the training unit as a reasonable
accommodation for his panic disorder. Neither Sgt. Paris nor BPD’s actions
amount to a hostile work environment due to Plaintiff’s alleged disability.
Plaintiff’s facts concerning his discrimination allegation, taken as true, do
not provide any issue of material fact for which a reasonable jury could find in his
favor. Plaintiff has not presented sufficient evidence to prove that discrimination
was the real reason for his termination and that BPD did not offer a reasonable
accommodation. Accordingly, summary judgment as to Plaintiff’s ADA and
CFEPA claim must be granted.
V. FALSE ARREST CLAIM
False arrest claims regarding Defendant Paris must be analyzed apart from
claims against other members of the Bridgeport Police Department (Frank
Santora, James Viadero, and James Honis). As plaintiff’s ex-business partner,
Defendant Paris possessed a different level of knowledge as to the ownership of
the disputed items than Defendants Santora, Viadero, and Honis. Due to this
heightened level of knowledge regarding the alleged larceny that occurred on
38
June 11, 2007, the false arrest claims against Paris must be analyzed separately
from the other defendants.
A. False Arrest Claims Against Defendants Santora, Viadero, and Honis
In analyzing a Section 1983 false arrest or imprisonment, federal courts
apply the law of the state where the arrest occurred. Davis v. Rodriguez, 364 F.3d
424, 433 (2d Cir. 2004). Under Connecticut law, the applicable law for false arrest
and false imprisonment is identical. Russo v. City of Bridgeport, 479 F.3d 196, 204
(2d Cir. 2007). Accordingly, the Court will address these issues jointly. The
applicable law in Connecticut provides that, “‘[f]alse imprisonment, or false
arrest, is the unlawful restraint by one person of the physical liberty of another.’”
Id. at 204 (2d Cir. 2007) (quoting Outlaw v. City of Meriden, 43 Conn. App. 387, 392
(1996)). Connecticut law places the burden on the false arrest plaintiff to prove
the absence of probable cause. See Davis, 364 F.3d at 433 (citing Beinhorn v.
Saraceno, 23 Conn.App. 487, 491, 582 A.2d 208 (1990)); see also Vangemert v.
Strunjo, No. 3:08CV00700 (AWT), 2010 WL 1286850, at *4 (D.Conn. Mar. 29, 2010).
In their motion for summary judgment, Defendants argue that they had
probable cause to arrest Plaintiff for violating Connecticut’s misdemeanor
larceny statute, Conn. Gen. Stat. §53a-125a, and therefore they cannot be held
liable for a false arrest claim. Additionally, Defendants argue that Plaintiff was
never seized under the meaning of the Fourth Amendment because he was
issued a summons rather than being formally arrest and booked at the police
department.
39
1. Seizure under the Fourth Amendment
As the Second Circuit has recognized, “Section 1983 claims of deprivations
of liberty related to criminal prosecutions implicate the Fourth Amendment right
to be free of unreasonable seizure of the person.” Burg v. Gosselin, 591 F.3d 95,
97 (2d Cir. 2010) (citation omitted). Accordingly, a plaintiff seeking to assert such
a claim must “show some deprivation of liberty consistent with the concept of
‘seizure.’” Id. (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995). Although in Burg, the Second Circuit held that “a pre-arraignment, nonfelony summons requiring no more than a later court appearance does not
constitute a Fourth Amendment seizure,” the court expressly noted that a plaintiff
may be seized if directed to remain in place while the police officer prepares the
summons. 591 F.3d at 96, 101.
Here, although Plaintiff arrived voluntarily at the scene at the same time as
Lt. Santora, Plaintiff alleges that the instructions he received from several officers
to remain on the scene amounted to a seizure under the Fourth Amendment
because he felt that he was not free to leave. Specifically, Plaintiff alleges that Lt.
Santora directed Plaintiff to wait while he spoke with Sgt. Paris. [Dkt. #63, Pl. Rule
56 Stmt. ¶64]. Plaintiff further alleges that when Lt. Santora returned, he advised
plaintiff that he was being arrested for stealing the Savoy’s property. [Dkt. #44,
Defs. Rule 56 Stmt. ¶47]. Plaintiff then claims that Defendants Honis and Viadero
arrived on the scene around the time Lt. Santora informed plaintiff of his arrest.
[Dkt. #1, Pl. Compl. ¶27]. Plaintiff claims that Honis told him that he could leave if
40
he would agree to come into the detective bureau the next day to give a
statement. Id. at ¶¶ 30-32. However, Plaintiff then alleges that Viadero again told
Plaintiff he was being arrested and said that he couldn’t leave. Id. at ¶ 33.
Construing all facts in favor of Plaintiff, the non-moving party, the Court
assumes arguendo that the orders to remain, coming from on-duty police
officers, constituted a seizure under the Fourth Amendment, as Plaintiff,
consistent with a reasonable person in his situation, did not feel free to leave.
Amore v. Novarro, 624 F.3d 522, 532 fn. 13 (2d Cir. 2010) (citing Burg, 591 F.3d at
96, n.3). However, even assuming that Plaintiff was seized under the Fourth
Amendment while instructed to remain on the scene, Plaintiff’s claim of false
arrest fails because he cannot sustain his burden of proving that the Defendant
officers lacked probable cause.
2. Defense of Probable Cause
It is well established that probable cause is a complete defense to an action
for false arrest. Russo, 479 F.3d at 203 (“in Connecticut, a false arrest claim
cannot lie when the challenged arrest was supported by probable cause”).
Moreover, a claim for false arrest turns only on “the validity of the arrest, and not
on the validity of each charge, or indeed any charge actually invoked by the
arrest officer at the time of the arrest.” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.
2006). The Second Circuit has held that “Federal and Connecticut law are
identical in holding that probable cause to arrest exists when police officers have
‘knowledge or reasonably trustworthy information of facts and circumstances
that are sufficient to warrant a person of reasonable caution in the belief that the
41
person to be arrest has committed or is committing a crime.’” Walczyk v. Rio, 496
F.3d 139, 156 (2d Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996)). The Second Circuit further explained that “probable cause is a fluid
concept . . . not readily, or even usefully, reduced to a neat set of legal rules . . .
While probable cause requires more than a mere suspicion of wrongdoing, its
focus is on probabilities, not hard certainties.” Id. (internal quotation marks and
citation omitted). Moreover, the Second Circuit instructed that “[i]n assessing
probabilities, a judicial officer must look to the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” Id. In sum, probable cause “requires only such facts as make
wrongdoing or the discovery of evidence thereof probable.” Id. at 157. Another
court in this district has held that “the court may determine the existence of
probable cause as a matter of law ‘if there is no dispute as to the pertinent events
and the knowledge of the officers[.]’” Johnson v. Ford, 496 F. Supp. 2d 209, 213
(D. Conn. 2007) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
For the charge of larceny to be supported by probable cause, the facts and
circumstances known to the Defendants at the time the summons was issued
must have been sufficient to warrant a person of reasonable caution to believe
that Plaintiff had violated the elements of Conn. Gen. Stat. §53a-110,
appropriating property and withholding it. Walczyk, 496 F.3d, at 156.
Here, it is undisputed that Plaintiff took property from the common area of
the basement, secured it in a different, locked section of the Gallery that was
inaccessible to the supposed owners of the items, and covered the items so they
42
could not be seen. [Dkt. #44, Defs. Rule 56 Stmt. ¶¶40-42; Dkt #63, Pl. Rule 56
Stmt. ¶42]. Plaintiff admitted to the questioning officers that he moved the
property. [Dkt. #44, Defs. Rule 56 Stmt. ¶¶52-53; Dkt. #63, Pl. Rule 56 Stmt. ¶¶5253]. The officers then visited the basement area and confirmed the fact that the
items were locked in an inaccessible place. [Dkt. #44, Defs. Rule 56 Stmt. ¶43].
The officers were aware that Plaintiff was disputing ownership of the items, but
felt that Plaintiff’s actions, in visiting the building while on duty, removing items
from the basement, placing the items in a locked compartment, and obscuring the
items from vision, demonstration an element of deception. Id. at ¶54.
The facts and circumstances available to the Defendant officers at the time
the summons was issued were sufficient to warrant a person of reasonable
caution to believe that Plaintiff had committed larceny. Walczyk, 496 F.3d, at 156.
Despite the disputed element of ownership the officers acted on reliable
information at the scene to conclude that there was probable cause to believe
that the property did not in fact belong to the Plaintiff. The officers were directly
told by both Sgt. Paris and Ms. Viglione that the property moved to the City Lights
Gallery belonged to them as proprietors of the Savoy restaurant. [Dkt. #44, Defs.
Rule 56 Stmt. ¶¶28-30, 39]. Both individuals stated to officers at the scene that
Plaintiff had no legal right to enter the basement and that he had sold his rights to
the business more than a year beforehand. Id. at ¶¶13-14, 28-30. They further
specifically informed the officers that the items Plaintiff moved into the locked
storage area of another business in fact belonged to the Savoy. Id. at ¶¶28-30, 39.
Moreover, Plaintiff himself admitted to having moved the property to the locked
43
area of the basement, asserting a right to the circus posters but not the other
items, and the officers verified its placement in the locked area.
Whether or not the statements made by Sgt. Paris and/or Ms. Viglione were
truthful is irrelevant as long as the defendant officers relied on them in good faith.
See Escalera v. Lynn, 361 F.3d 737, 745 (2d Cir. 2004) (“[T]he actual accuracy or
veracity of the statement is irrelevant to a determination of whether [defendant]
has arguable probable cause. Rather, the question is whether [defendant] could
have reasonably relied on it”). Moreover, it was appropriate for the officers to rely
on the information provided to them by Sgt. Paris and Ms. Viglione. Ms. Viglione,
as the potential victim of a crime, is entitled to a high degree of credibility. See
Martel v. South Windsor, 345 Fed.Appx. 663, 664 (2d Cir. 2009) (“when information
is received from a putative victim . . . probable cause exists unless the
circumstances raise doubt as to the person’s veracity”) (citing Curley v. Village of
Suffern, 268 F.3d 65, 70 (2d Cir. 2001)). No evidence exists to indicate that the
defendants knew anything about Ms. Viglione’s relationship with the Plaintiff to
detract from the truthfulness of her statements. Absent evidence to the contrary,
defendants reasonably relied on her reports as the victim of the alleged crime.
Even assuming arguendo that defendants could not rely on Defendant
Paris’s statements, Defendants could reasonably rely on the statements made to
them by an eyewitness to the supposed theft, Mr. Falcigno, which affirmed
Defendant Paris’s assertions. [Dkt. #44, Defs. Rule 56 Stmt. ¶¶23-26]. Based on
the questioning of the Plaintiff, Defendant Paris, Mr. Falcigno, and Ms. Viglione,
the Defendants fulfilled their responsibility to determine whether probable cause
44
existed. As the Second Circuit has recognized, “[p]robable cause does not
require an officer to be certain that subsequent prosecution of the arrestee will be
successful. It is therefore of no consequence that a more thorough or probing
investigation might have cast doubt upon the situation.” Krause v. Bennett, 887
F.2d 362, 371 (2d Cir. 1989) (internal quotations omitted) (quoting United States v.
Manley, 634 F.2d 978, 984 (2d Cir. 1980)).
Plaintiff’s allegations that the Defendants had an improper motive in
issuing Plaintiff a summons, or that they conspired with Defendant Paris to
effectuate an unlawful arrest are irrelevant. Where probable cause exists for the
arrest, the officer’s underlying motive in arresting and charging the plaintiff will
not be examined by the courts. See Singer v. Fulton County Sheriff, 63 F.3d 110,
120 (2d Cir. 1995) (“We have held previously that if the officer either had probable
cause or was qualifiedly immune from subsequent suit [ . . . ] then we will not
examine the officer’s underlying motive”).
The Court’s determination that Defendants’ had probable cause to issue
Plaintiff the summons also establishes that Defendants’ are entitled to qualified
immunity. The doctrine of qualified immunity “protects government officials from
liability for civil damages insofar as their conduct does not violate established
statutory or constitutional rights of which a reasonable person should have
known.” Pearson v. Callahan, 555 U.S. 223 (2009) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Because Defendants’ had probable cause to issue the
summons, the arrest did not violate Plaintiff’s statutory or constitutional rights.
45
B. Qualified Immunity
The doctrine of qualified immunity “protects government officials from
liability for civil damages insofar as their conduct does not violate established
statutory or constitutional rights of which a reasonable person should have
known.” Pearson v. Callahan, 555 U.S. 223 (2009) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Qualified immunity “shield[s] executive employees from
civil liability under §1983 if either (1) their conduct did not violate clearly
established rights of which a reasonable person would have known, or (2) it was
objectively reasonable [for them] to believe that their acts did not violate these
clearly established rights.” Pearson, 555 U.S. at 815-816 (citing Saucier v. Katz,
553 U.S. 194 (2001); see also Okin v. Village of Cornwall-On-Hudson Police Dep’t,
577 F.3d 415, 433 (2d Cir. 2009) (“A police officer who has an objectively
reasonable belief that his action are lawful is entitled to qualified immunity.”)
As the Court has determined, Defendants had probable cause to issue
Plaintiff a summons. Defendants’ conduct was therefore consistent with
Plaintiff’s Fourth Amendment right to be free of an unlawful or false arrest, and
Defendants are entitled to qualified immunity.
Plaintiff’s alleged facts concerning his false arrest claim, taken as true, do
not provide any issue of material fact for which a reasonable jury could find in his
favor. Plaintiff has not presented sufficient evidence to prove that Defendants
lacked probable cause to issue him a summons. Accordingly, summary judgment
as to Plaintiff’s false arrest claim against Defendants Santora, Viadero, and Honis
must be granted.
46
C. False Arrest Claim Against Defendant Paris
In analyzing a Section 1983 false arrest or imprisonment, federal courts
apply the law of the state where the arrest occurred. Davis v. Rodriguez, 364 F.3d
424, 433 (2d Cir. 2004). Under Connecticut law, the applicable law for false arrest
and false imprisonment is identical. Russo v. City of Bridgeport, 479 F.3d 196, 204
(2d Cir. 2007). Accordingly, the Court will address these issues jointly. The
applicable law in Connecticut provides that, “‘[f]alse imprisonment, or false
arrest, is the unlawful restraint by one person of the physical liberty of another.’”
Id. at 204 (2d Cir. 2007) (quoting Outlaw v. City of Meriden, 43 Conn. App. 387, 392
(1996)). Connecticut law places the burden on the false arrest plaintiff to prove
the absence of probable cause. See Davis, 364 F.3d at 433 (citing Beinhorn v.
Saraceno, 23 Conn.App. 487, 491, 582 A.2d 208 (1990)); see also Vangemert v.
Strunjo, No. 3:08CV00700 (AWT), 2010 WL 1286850, at *4 (D.Conn. Mar. 29, 2010).
Defendant Paris argues that he, along with the arresting officers, had
probable cause to arrest Plaintiff for violating Conn. Gen. Stat. §53a-125a,
misdemeanor larceny and therefore cannot be held liable for a false arrest claim.
Additionally, Defendant Paris argues that Plaintiff was never seized under the
meaning of the Fourth Amendment because he was issued a summons rather
than formally booked at the police department.
1. Plaintiff was seized
47
As discussed above, the Court assumes arguendo that Plaintiff was seized
under the meaning of the Fourth Amendment, of his reasonable belief that he was
not free to leave the scene.
2. False Arrest
Under Connecticut law, “[a] person is not liable for false imprisonment
unless his act is done for the purpose of imposing a confinement, or with
knowledge that such confinement will, to a substantial certainty, result from it.”
Green v. Donroe, 186 Conn. 265, 268 (1982) (citing 32 Am. Jur. 2d, False
Imprisonment s 9; Restatement of Torts (Second) § 43). Further, it is well
established that probable cause is a complete defense to an action for false
arrest. Russo, 479 F.3d at 203 (“in Connecticut, a false arrest claim cannot lie
when the challenged arrest was supported by probable cause”).
As a preliminary matter, the Court takes note that at the time Defendant
Paris called Lt. Santora to notify him of his concern that Plaintiff had committed a
crime on the premises of the Savoy restaurant, Defendant Paris was off duty.
[Dkt. #44, Def. Rule 56 Stmt. ¶16, Dkt. #63, Pl. Rule 56 Stmt. ¶16]. Therefore,
unless Plaintiff can establish that Defendant was acting under color of law,
Defendant Paris, as a citizen acting in his individual capacity and not as an on
duty police officer, may not be liable under §1983 for false arrest. See Pitchell v.
Callahan, 13 F.3d 545, 547-548 (2d Cir. 1994) (holding that in order to maintain a
section 1983 action, the conduct complained of must have been committed under
color of state law). As the Second Circuit in Pitchell explained, acting under the
48
color of law means “under the ‘pretense of law’ and that ‘acts of officers in the
ambit of their personal pursuits are plainly excluded.’” 13 F.3d at 547-548 (citing
Screws v. United States, 325 U.S. 91, 111 (1945). An analysis of whether an
officer was acting under the color of law requires more than “a simple
determination as to whether an officer was on or of duty when the challenged
incident occurred.” Id. at 548.
Here, Defendant Paris has admitted that he was acting under color of law at
the time that he contacted the BPD and Lt. Santora, stating that “I was just letting
them know as a police officer - - and I am a police officer twenty-four hours a day
- - that I saw a - - what I believe was a larceny and I’m reporting it to my - - or a
supervisor, somebody at a higher rank than I was.” [Dkt.# 63, Ex.#7b, Dep. of
Paris at 150:14-18].
Even though Defendant Paris admits that he was acting under color of law
at the time that he contacted Lt. Santora to report Plaintiff’s alleged theft,
Plaintiff’s claims for false arrest under §1983 and under Connecticut state law
cannot lie because Defendant Paris had probable cause to arrest Plaintiff, and
probable cause is a defense to a claim for false arrest. See Zainc v. City of
Waterbury, 603 F.Supp.2d 368, 387 (D.Conn 2009) (recognizing that probable
cause is a complete defense to claims of false imprisonment and false arrest, and
that under Connecticut law, a claim for malicious prosecution against a private
person requires the plaintiff to prove that the defendant acted without probable
cause).
49
3. PROBABLE CAUSE
Applying the legal standard for probable cause delineated above, even
construing the facts in the light most favorable to the Plaintiff, it is apparent that
Defendant Paris had probable cause to believe that Plaintiff had stolen property
belonging to the Savoy. As Plaintiff notes in his Memorandum of Law in
Opposition to Defendants’ Motion for Summary Judgment, although the Plaintiff
had created inventory list, detailing specifically which assets and items of
property were transferred to the restaurant pursuant to the sale of his ownership
interest in the business, Defendant Paris and his girlfriend, Ms. Viglione, were not
involved in the negotiations of the sale, were not at the closing, and were not
familiar with the terms of the sales agreement. [Dkt. #63, Pl. Mem. in Opp. to Defs.
Motion for Summary Judgment, at 3; Ex. #7a, Dep. of Paris at 70-75]. Therefore,
Defendant Paris would not have known if Plaintiff had retained an ownership
interest in any of the restaurant property. Moreover, Defendant Paris was notified
by Mr. Falcigno that Plaintiff gained access to the basement storage area by
claiming to have permission of the building custodian, took several items of
property from the restaurant’s storage area, moved them to a locked portion of
the basement and hid them from view. [Dkt. #44, Defs. Rule. 56 Stmt. ¶¶18-21; Dkt.
#63, Pl. Rule 56 Stmt. ¶¶18-21]. These facts and circumstances are more than
sufficient to warrant a person of reasonable caution to believe that Plaintiff had
committed or was committing a crime. See Walczyk, 496 F.3d at 156.
50
4. PARIS’S QUALIFIED IMMUNITY CLAIM
Defendant Paris asserts that even if Plaintiff successfully establishes a
deprivation of his constitutional rights through false arrest, he is shielded from
liability under the doctrine of qualified immunity. Under the standard for qualified
immunity most recently articulated by the Supreme Court in Pearson v. Callahan,
an executive employee is shielded from civil liability under §1983 if either “(1)
their conduct did not violate clearly established rights of which a reasonable
person would have known, or (2) it was objectively reasonable [for them] to
believe that their acts did not violate these clearly established rights.” Pearson,
555 U.S. at 815-816 (citing Saucier v. Katz, 553 U.S. 194 (2001); see also Okin v.
Village of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009) (“A
police officer who has an objectively reasonable belief that his action are lawful is
entitled to qualified immunity.”)
As the Court has determined, Defendant Paris had probable cause to arrest
Plaintiff. Defendant Paris’ conduct was therefore consistent with Plaintiff’s Fourth
Amendment right to be free of an unlawful or false arrest, and Defendant Paris is
entitled to qualified immunity.
Plaintiff’s facts concerning his false arrest claim, taken as true, do not
provide any issue of material fact for which a reasonable jury could find in his
favor. Plaintiff has not presented sufficient evidence to prove that Defendant
Paris lacked probable cause to effectuate his arrest. Accordingly, summary
51
judgment as to Plaintiff’s false arrest claim against Defendant Paris must be
granted.
IV. CONCLUSION
Based on the above reasoning, Defendants’ motion for summary judgment
is GRANTED.
IT IS SO ORDERED.
/s/
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 2, 2011.
52
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?