Milardo v. Westbrook

Filing 41

ORDER granting 35 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 08/10/2015. (LaPre, E.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
RHEA MILARDO,
Plaintiff,
v.
TOWN OF WESTBROOK,
Defendant.

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CIVIL ACTION NO.:
3:13-cv-01232-VAB

AUGUST 10, 2015

RULING ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Rhea Milardo, brought this action under 42 U.S.C. § 1983 against the
Town of Westbrook, Connecticut ("the Town" or "Westbrook") alleging that it retaliated
against her because of her protected speech in violation of the First Amendment. The
Town has moved for summary judgment. For the reasons that follow, the motion is
GRANTED.
I.

BACKGROUND
Plaintiff formerly served as a part-time constable in Westbrook, Connecticut.

ECF No. 35-2 ¶¶ 1-3; ECF No. 36-1 ¶¶ 1-3. During her time as a constable, Milardo
was employed by the Town and supervised by a Connecticut Resident State Trooper
assigned to Westbrook (which lacks a stand-alone police department). Id. She was
also a member of Westbrook Police Union, Local 1257 (the “Union"). ECF No. 35-2 ¶ 4;
ECF No. 36-1 ¶ 4.
In March 2003, Milardo filed a lawsuit ("Milardo I") naming as defendants the
Town, the Union, and a co-worker named Douglas Senn. ECF No. 35-5. Her complaint
alleged that Senn had discriminated against her because of her gender and that the

1

Town and Union had sanctioned his conduct. See generally id. The case settled in
December 2004. ECF No. 35-2 ¶ 8; ECF No. 36-1 ¶ 8.
Following the disposition of Milardo I, the record discloses nothing of note until
June 18, 2008. On the evening of June 18, Milardo was assigned to marine patrol with
another constable, Roger Powers. ECF No. 35-2 ¶¶ 9-10; ECF No. 36-1 ¶¶ 9-10. The
two decided to forego marine patrol (which involves monitoring the Town's shoreline in a
boat) because of strong thunderstorms. ECF No. 35-2 ¶ 11; ECF No. 36-1 ¶ 11. They
patrolled by car instead. Id.
Around 7:45 p.m., Powers parked their cruiser outside a mini-mart, and Milardo
went inside. ECF No. 35-2 ¶¶ 12-13; ECF No. 36-1 ¶¶ 12-13. While Powers waited
alone in the car, he received a tip from a concerned citizen: about half a mile away, a
woman was standing alone in a field, arms outstretched, looking upward into the storm.
ECF No. 35-2 ¶¶ 14-15; ECF No. 36-1 ¶¶ 14-15. The tipper expressed concern for the
woman's safety. ECF No. 35-2 ¶ 16; ECF No. 36-1 ¶ 16. By the time Milardo exited the
mini-mart and entered the cruiser, Powers was calling dispatch about the woman in the
field. ECF No. 35-2, ¶ 18; ECF No. 36-1, ¶ 18. In a later investigation, Milardo would
tell state and local authorities that she heard Powers describe the woman's
circumstances. ECF No. 35-2 ¶¶ 38-40; ECF No. 36-1 ¶¶ 38-40.
After ending the call to dispatch, Powers and Milardo did not immediately drive to
the field to check on the woman. They instead drove to the marina where the police
boat was docked, spent ten minutes checking its bilge pumps, responded to another call
at a different location, and stayed there for five or ten minutes. ECF No. 35-2 ¶¶ 21-24;
ECF No. 36-1 ¶¶ 21-24. Only then did they drive to the field. ECF No. 35-2 ¶ 25; ECF

2

No. 36-1 ¶ 25. Arriving, they did not exit their cruiser, but looked out the windows in an
effort to spot the woman. ECF No. 35-2 ¶ 26; ECF No. 36-1 ¶ 26. They did not see her
and left. ECF No. 35-2 ¶ 27; ECF No. 36-1 ¶ 27. The next morning, the woman's body
was found in Long Island Sound not far from the field. ECF No. 35-2 ¶ 29; ECF No. 361 ¶ 29.
The State Police and the Town investigated the incident, and Milardo was placed
on paid administrative leave. ECF No. 35-2 ¶¶ 32-46; ECF No. 36-1 ¶¶ 32-46. In
January 2009, the Westbrook Board of Selectmen determined that Milardo's failure to
promptly come to the woman's aid constituted neglect of duty. It terminated her
employment. Powers was also terminated. ECF No. 35-2 ¶¶ 49-50; ECF No. 36-1 ¶¶
49-50.
Milardo responded by filing a grievance. ECF No. 35-2 ¶ 51; ECF No. 36-1 ¶ 51.
In February 2012, the Connecticut State Board of Mediation and Arbitration ("SBMA")
determined that Milardo's conduct had not warranted termination under the Union's
contract with the Town. It reduced her penalty to a three-year suspension that ended
on February 12, 2012. ECF No. 35-2 ¶ 68; ECF No. 36-1 ¶ 68. The Town appealed the
SBMA's decision in state court but withdrew the appeal on June 29, 2012. ECF No. 352 ¶ 73; ECF No. 36-1 ¶ 73. The plaintiff alleges that, after withdrawing its appeal, the
Town attempted to negotiate her resignation, but she refused.1 Compl. ¶¶ 21, 23.
At that time, however, Milardo had not served as a constable for some three and
a half years, and her certification as an officer had lapsed on June 30, 2011. ECF No.

1

Plaintiff submitted no evidence of these alleged negotiations. Nonetheless, the Court concludes infra
that the any alleged speech in connection with such negotiations was not protected by the First
Amendment.

3

35-2 ¶ 71; ECF No. 36-1 ¶ 71. To obtain recertification, the Town required her to attend
the Connecticut State Police Academy ("the Academy"), a six-month residential training
program.2 ECF No. 35-2 ¶ 74; ECF No. 36-1 ¶ 74. In August, the Town arranged
Milardo's enrollment in Academy session 340, scheduled to begin on January 4, 2013.
ECF No. 35-2 ¶ 75; ECF No. 36-1 ¶ 75.
On August 27, 2012, the Town sent a letter notifying Milardo of her enrollment.
ECF No. 35-29; ECF No. 35-47 ¶ 20. It directed the letter to an address identified in its
records as Milardo's.3 ECF No. 35-47 ¶ 22. The plaintiff, however, had moved, leaving
only her ex-husband at that location. ECF No. 35-44 at 238. Milardo never received
the letter. Id. The correspondence was also carbon-copied to Milardo's union attorney,
but Milardo did not receive notice of her enrollment that way either. Id. at 236. The
Town sent another notification letter on November 15 (also carbon-copied to the
plaintiff's union attorney), this time by certified mail. It was signed for by "E. Milardo" at
the location to which it was addressed. ECF No. 35-2 ¶¶ 80–82; ECF No. 36-1 ¶¶ 80–
82; ECF No. 36-1, (B) ¶¶ 9, 10. The signing "E. Milardo" was evidently Milardo's exhusband, and neither that letter nor the one sent to her attorney found its way to the

2

At her deposition, the plaintiff testified that when an officer's certification lapses and she does not obtain
recertification within a year, the Town has authority to permit her to complete a one-week training course
instead of the six-month Academy training. ECF No. 36-3 at 221, 272. In the fall of 2012, the Town
explained its decision not to waive the Academy requirement by pointing to Milardo's long absence from
law enforcement and her "history." See ECF No. 37-3 at 5.
3

The plaintiff denies the Town's assertion that it sent the letter to her last known address that it had on
file, ECF No. 36-1 ¶ 79, but offers no evidence to the contrary. Milardo's bare denial carries no weight at
summary judgment. Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (“[M]ere conclusory allegations
or denials in legal memoranda or oral argument are not evidence and cannot by themselves create a
genuine issue of material fact where none would otherwise exist.”) (internal quotation marks and citation
omitted).

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plaintiff.4 Milardo did not receive her enrollment materials until December 14. ECF No.
35-2 ¶ 85; ECF No. 36-1 ¶ 85.
On receipt of her notification, Milardo perceived two difficulties. First, the
materials included forms that needed to be signed by the Town, and participation in the
Academy required certain equipment to be furnished by Westbrook. The forms did not
yet have the requisite signatures, ECF No. 36-3 at 263, and Milardo lacked some of the
required equipment, id. at 267. Milardo never personally notified the Town about this
issue, but her lawyer told her that he was in contact with the Town’s attorney.5 The
forms were never signed and the Town never provided the equipment.
Second, the Academy required Milardo to obtain clearance to engage in physical
training by undergoing a medical examination. ECF No. 35-2 ¶ 87; ECF No. 36-1 ¶ 87.
Milardo tried to arrange an appointment with a doctor she had never seen before, but
the earliest date she could secure was January 7 or 8 – several days after the start of

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The defendant points to an affidavit from Karen Boisvert, a training officer at the Academy, to show that
Milardo had notice of her January enrollment. Boisvert stated in her affidavit that, in a September
conversation, Milardo acknowledged to her that she was enrolled in the January Academy class. ECF
No. 35-49 at 2. But the plaintiff testified in her deposition that she did not receive any notification of her
enrollment until December. ECF No. 36-3, at 232:12-14. On the defendant's motion for summary
judgment, the Court must resolve this factual contest in the plaintiff's favor.

5

In her deposition, Milardo testified that although she never told the Town about the forms or the
equipment, she did tell her lawyer. ECF No. 36-3 at 264–65. She also stated that her lawyer told Town
officers about the problems: "He told me, I don't know how many times . . . . he was in contact with [the
Town's attorney] multiple times," and "I believe [the attorney] was in contact with [Town officials] multiple
times." ECF No. 35-44, at 268; ECF No. 36-3, at 265, 269. The Town argues that the statement made
by Milardo’s lawyer (that he was in contact with the Town's attorney "multiple times") is inadmissible
hearsay that cannot be considered on summary judgment. However, while a party may “object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible in
evidence,” Fed. R. Civ. P. 56(c)(2), this simply means that the evidence must be capable of presentation
in admissible form at the time of trial; it does not require that the materials be presented in an admissible
form on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean that
the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid
summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own
witnesses.”). Because Milardo’s lawyer would be able to testify at a trial that he was in contact with the
Town’s attorney multiple times regarding the forms and equipment, his hearsay statement on that point
may be considered on summary judgment.

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the Academy. ECF No. 35-2 ¶¶ 89-92; ECF No. 36-1 ¶¶ 89-92; ECF No. 35-44, at 259.
The Town learned of this trouble. On December 18, its attorney e-mailed Milardo's
lawyer to notify him that the Town had arranged for Milardo to be seen by a different
physician before the start of the Academy. ECF No. 35-33 at 2.
The plaintiff declined the Town's offer. ECF No. 35-2 ¶ 96; ECF No. 36-1 ¶ 96.
In her deposition, she stated that she preferred to see a doctor of her own choosing
because she doubted that the Town's proffered physician would maintain her as a
patient in the future. ECF No. 35-44, at 262. Milardo also admitted that she knew that
her failure to see a doctor before January 4 would preclude her from taking part in the
Academy. Id. at 262–63.
When the first day of the Academy arrived on January 4, the plaintiff did not
attend. ECF No. 35-2 ¶ 99; ECF No. 36-1 ¶ 99. On January 8, her attorney wrote a
letter to the Town charging that its failure to provide Milardo with needed materials had
prevented Milardo from participating. ECF No. 35-36. The Board of Selectmen then
terminated her employment based on her failure to attend the Academy. ECF No. 35-2
¶ 106; ECF No. 36-1 ¶ 106.
II.

DISCUSSION
Milardo brought this lawsuit under 42 U.S.C. § 1983 alleging that the Town

violated her First Amendment rights by retaliating against her for engaging in protected
speech. To make out the elements of her case, she must show that “(1) the speech at
issue was made as a citizen on matters of public concern rather than as an employee
on matters of personal interest, . . . (2) . . . she suffered an adverse employment action,
. . . and (3) the speech was at least a substantial or motivating factor in the [adverse

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employment action]." Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir. 2005) (quoting
Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003)). If such a showing is made, the
defendant may escape liability if it demonstrates "by a preponderance of the evidence
that it would have taken the same adverse action in the absence of the protected
speech." Mandell v. Cnty. of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003).
Milardo identifies a handful of instances of protected speech, including filing
Milardo I, ECF No. 1 ¶ 6, lodging a complaint with the Town when the Resident State
Trooper allegedly harassed her about Milardo I, id. ¶ 8, rejecting the defendant's
attempt to secure her resignation through settlement, id. ¶ 23, grieving her 2009
termination, id. ¶ 14, and accusing the Town (through her attorney) of preventing her
from attending the Academy, id. ¶ 27. Milardo asserts that the defendant retaliated
against her by forcing her to attend the January Academy session instead of an earlier
session or a one-week recertification program, by refusing to provide her with materials
for the Academy, and by terminating her employment. The Town argues that Milardo
did not engage in protected speech and that it did not retaliate against her for anything
that she said. It asserts that all of its decisions about Milardo's employment were
justified either by her careless behavior on June 18, 2008 or by her failure to attend the
Academy. The Town also contends that under the law of municipal liability, it cannot be
charged with the Board of Selectmen's decision to fire the plaintiff.
A.

Standard of Review

On a motion for summary judgment, the Court's limited role is to determine
whether the record presents triable issues. Summary judgment is proper only if "the
movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it
might influence the outcome of the case under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is "genuine" if the evidence
would permit a reasonable juror to decide the point in favor of the non-movant. Id. The
Court must view the record evidence in the light most favorable to the party opposing
the motion, drawing all reasonable inferences in the non-movant's favor. Gallo v.
Prudential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
B.

Municipal Liability

Under § 1983, a municipality is not strictly liable for the constitutional torts of its
employees. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691
(1978). Rather, municipal liability attaches only when execution of the municipality's
"policy or custom" inflicts injury. Id. at 694. Municipal policy is reflected in the decisions
of those local officials who "possess[] final authority to establish municipal policy with
respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481–82
(1986). A subordinate whose decisions are "subject to review by the muncipality's
authorized policymakers" is not a final decisionmaker in the estimation of § 1983, and
her decisions neither represent municipal policy nor subject her employer to liability.
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Whether an official has "final
policymaking authority" is a question for the Court and must be determined by reference
to state law. Id. at 123.
The defendant argues that the Board of Selectmen's decision to terminate
Milardo's employment does not give rise to municipal liability because the Board lacks
"final policymaking authority" concerning personnel decisions. The Town submits that

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the collective bargaining agreement between the Union and the Town permits an
employee to grieve a Board decision before the SBMA. As a result, it argues, the
Board's determinations are "subject to meaningful review" by the SBMA, which means
that the Board does not have final policymaking authority.
The Court disagrees. Whether the Board is a policymaker for the Town depends
on whether its word is final within the Town's structure of government, not on whether a
neutral decisionmaker ultimately can undo its decisions. Indeed, if the possibility of
review by a neutral third-party sufficed to negate final policymaking authority at the
municipal level, the existence of the judiciary (which can generally undo a municipality's
unlawful decisions) would nullify the doctrine of Pembauer and Praprotnik. See Everitt
v. DeMarco, 704 F. Supp. 2d 122, 139 (D. Conn. 2010) (rejecting argument that police
commission did not have final policymaking authority because its decision was subject
to review by SBMA and noting that it "would lead to the illogical conclusion that the
Commission lacks final policymaking authority because this Court could ultimately
decide that the Defendants' conduct was unconstitutional and therefore overturn its
decision"). Under state and local law, the Board's personnel decisions cannot be
reviewed by another municipal entity. Westbrook is therefore properly charged with the
Board's decision to fire Milardo.
The cases cited by Westbrook are distinguishable because higher levels of
review and policymaking existed within the municipality at issue. For instance, in Albert
v. City of Hartford, 529 F. Supp. 2d 311, 330–31 (D. Conn. 2007), the court held that a
Hartford police chief was not a policymaker because his authority to hire and fire
employees was constrained by the city’s charter, city manager, personnel rules, and

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Court of Common Council – all within the municipality’s structure of government.
Similarly, in McDonald v. Bd. of Educ. of City of New York, No. 01 CIV.1991 NRB, 2003
WL 21782685, at *3 (S.D.N.Y. July 31, 2003), the court held that a school district
administrator was not a policymaker in part because a New York state statute expressly
provided that only the board of education had final authority to approve discontinuance
of a teacher’s probationary service, and because the chancellor of the New York City
Board of Education needed to sign the report of a Board of Education hearing officer
regarding the plaintiff’s performance rating.
C.

Timeliness

The statute of limitations in this § 1983 case is three years, and the plaintiff filed
suit on August 26, 2013. See Walker v. Jastremski, 430 F.3d 560, 562 (2d Cir. 2005)
(limitation period for § 1983 claim in Connecticut is three years). The defendant argues
that some of the conduct described in the complaint, such as harassment by the
Resident State Trooper and Milardo's first termination, occurred prior to August 26,
2010 and is therefore not actionable. Milardo agrees.6 See ECF No. 36 at 4. The
Court joins the parties’ conclusion; the only actionable instances of alleged retaliation
are those that occurred in connection with Milardo's reinstatement, failure to attend the
Academy, and ultimate termination.
D.

Protected Speech

When the government acts as an employer it has significant latitude to control
the speech of its employees. An employee's speech is unprotected unless the

6

She does, however, correctly point out that these actions are appropriately considered as background
evidence in support of her claim. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

10

employee speaks as a citizen on a matter of public concern. Garcetti v. Ceballos, 547
U.S. 410, 418 (2006).
1.

As a Citizen

Under Garcetti, an employee's speech is not protected at all if she speaks in her
capacity as a government employee instead of in her capacity as a citizen. Garcetti,
547 U.S. at 418. This inquiry is a "practical one" that seeks to determine whether the
employee spoke pursuant to his or her official responsibilities. Id. at 421, 424. If
speech "owes its existence to a public employee's professional responsibilities,”
Garcetti reasons, restricting it does not infringe the employee’s First Amendment
freedoms. Id. at 421.
The defendant argues that, with the exception of Milardo I, none of the speech
identified in the plaintiff's complaint is protected under Garcetti. These instances of
speech include: a complaint made by Milardo on June 12, 2008, stating that the
Resident State Trooper was harassing her because of Milardo I; her January 2009
grievance contesting her first termination; Milardo's alleged rejection of the Town's
attempt to negotiate her resignation in October 2012; and Milardo's attorney's letter to
the defendant, sent on January 8, 2013, alleging that Westbrook's failure to provide the
plaintiff with needed equipment prevented her from attending the Academy. In support
of its argument, the Town cites a number of Second Circuit cases that apply Garcetti to
reject First Amendment claims based on internal complaints and union grievances.
ECF No. 35-1 at 23-27.
Responding to the "litany" of cases marshaled by the defendant, Milardo writes:
"[I]f that is the Second Circuit law at this point the plaintiff submits that it is, indeed, an

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unwarranted extension of the law and does not comport with Supreme Court
precedent." ECF No. 36 at 8.
Whether Second Circuit precedent concerning employee speech comports with
Garcetti itself is irrelevant. This Court has no authority to overrule the line of Second
Circuit cases interpreting Garcetti. This Court concludes that Weintraub v. Bd. of Educ.,
593 F.3d 196 (2d Cir.) and its progeny compel the conclusion that all instances of
speech identified in the plaintiff’s complaint other than the filing of Milardo I were not
made as a citizen because they owed their existence to the plaintiff’s official
responsibilities. The plaintiff had an official responsibility to report the Resident State
Trooper’s alleged harassment to the Town, ECF No. 35-50, and her grievance, her
alleged rejection of resignation negotiations, and her attorney’s letter were internal
communications and complaints made through employment-related channels, were not
conveyed to the public, and have no relevant analogue to citizen speech. Weintraub,
593 F.3d at 203-04 (filing a union grievance is a channel of discourse unavailable to
non-employee citizens and having no relevant citizen analogue). Accordingly, the Court
will look only to the plaintiff’s filing of Milardo I to determine whether that speech
regarded a matter of public concern.
2.

Public Concern

The Town argues that, although Milardo I was citizen speech, it was not speech
on a matter of public concern.7 Whether an employee speaks on a matter of public
concern "must be determined by the content, form, and context of a given statement, as
revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147–48 (1983). The
7

Consistent with the concession discussed above, the plaintiff does not address any speech except
Milardo I in her public-concern argument. See ECF No. 36 at 9-10.

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public-concern test has proved difficult of application, particularly when (as in this case)
speech takes the form of a lawsuit against a public agency. Such lawsuits, on the one
hand, often address important questions about the operation of government; on the
other, they typically do so to procure relief that is purely personal to the plaintiff.
As a general rule, a lawsuit is more likely to implicate a matter of public concern if
it addresses "pervasive or systemic misconduct" by public officials than if it alleges
isolated instances of misfeasance. Huth v. Haslun, 598 F.3d 70, 75 (2d Cir. 2010); see
also Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993) ("Had
Saulpaugh's complaints to her supervisors implicated system-wide discrimination they
would have unquestionably involved a matter of 'public concern.'"). So too if it appears
that the suit is "part of an overall . . . effort to correct allegedly unlawful practices or
bring them to public attention" rather than a mere endeavor to obtain relief "of a
personal nature." Salpaugh, 4 F.3d at 143 (internal quotation marks and citations
omitted).
However, a plaintiff with a purely personal grievance against her employer
cannot transform her suit into one affecting the public interest simply by adorning her
complaint with conclusory allegations of widespread misconduct or systemic abuses.
See Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008) ("The Complaint
accuses the City of routinely tolerating the violation of whistleblower rights . . . arguably
hinting at some broader public purpose. However, retaliation against the airing of
generally personal grievances is not brought within the protection of the First
Amendment by 'the mere fact that one or two of [a public employee's] comments could
be construed broadly to implicate matters of public interest.'") (quoting Ezekwo v. New

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York City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991)) (alteration in
original).
The question is whether the misconduct alleged in Milardo I was a personal
matter affecting the plaintiff alone, or a pervasive issue of interest to the whole public.
The Court concludes it was the latter and that the filing of Milardo I was therefore
protected speech.
It is true, as the Town points out, that Milardo I was in part "a complaint about
personal discrimination" based on the plaintiff's gender. ECF No. 35-1 at 29. The
primary conduct in issue was that of Douglas Senn, another Westbrook constable who
had allegedly called Milardo demeaning names, commented that he would not work with
a woman, and told other constables not to sign up for shifts with Milardo to deprive her
of needed backup. ECF No. 35-5 at 4–5. Even though they raise questions about
gender discrimination within a public agency – a matter that, viewed broadly, concerns
the public – these allegations are by themselves too personal to Milardo to warrant
protection. See Saulpaugh, 4 F.3d at 143.
But Milardo's complaint also alleged a broader pattern of discrimination within
Westbrook town government and the Union. Milardo charged that racial and gender
hostility were so widespread in the Union ranks that Senn felt comfortable making
offensive comments about women and racial minorities in his remarks at a Union
election. ECF No. 35-5 ¶ 30. She asserted that a member of the Board of Selectmen
had once publicly berated her at a Town event, also owing to her gender. Id. ¶ 34. She
alleged that other constables abided by Senn's directive not to sign up for shifts with
Milardo, endangering her and threatening to compromise the public safety. Id. at ¶¶ 23-

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28. And she complained that despite Senn's offensive and unlawful conduct, the Union
had supported him and tried to publicly discredit Milardo. Id. ¶¶ 133-34. Fairly read, the
complaint paints a picture of a public agency in which the discriminatory views and
actions of a few officials were known, tolerated, and facilitated by others.8 As a result,
the Court concludes that Milardo I alleged systemic abuses in a government agency
and that those allegations were of concern to the public. Consequently, Milardo's
speech in filing Milardo I was protected by the First Amendment.
E.

Adverse Employment Actions

Not every action taken against an employee in retaliation for her protected
speech violates the First Amendment. Rather, "in the context of a First Amendment
retaliation claim . . . only retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights constitutes
an adverse action" that will support a claim. Zelnik v. Fashion Inst. of Tech., 464 F.3d
217, 225 (2d Cir. 2006) (internal quotation marks omitted). The rule contemplates that
actions short of discharge or refusal to promote can constitute adverse actions for First
Amendment retaliation purposes. The Second Circuit has made clear that less dramatic
reprisals, "includ[ing] negative evaluation letters, express accusations of lying,
assignment of lunchroom duty, reduction of class preparation periods, failure to process
8

Some courts have held discriminatory conduct to be insufficiently pervasive in part because the plaintiff
failed to allege that other employees (as opposed to the plaintiff alone) also experienced discrimination.
See, e.g., Miller v. City of Ithaca, No. 3:10-cv-597, 2010 WL 3809842, at *11 (N.D.N.Y. Sept. 22, 2010)
("Plaintiff does not identify, or complain of, specific instances of discrimination or retaliation suffered by
anyone other than himself."). Milardo I did not allege specific discriminatory conduct against particular
individuals other than the plaintiff. However, at the time Milardo allegedly experienced gender
discrimination, she was the only female constable in Westbrook. ECF No. 35-5 ¶ 16. When the sole
female member of a public agency alleges with particularity a workplace environment in which some
officials practice gender-based hostility and others tolerate it, the Court cannot say that she has not
spoken on a matter of public concern simply because no other employees experienced similar genderbased discrimination.

15

teacher's insurance forms, transfer from library to classroom teaching as an alleged
demotion, and assignment to classroom on fifth floor which aggravated teacher's
physical disabilities" can all qualify. Id. at 226 (internal quotation marks and citation
omitted).
The plaintiff has identified four purported adverse employment actions. She
asserts (1) that the Town refused her requests to be placed in the July or October 2012
Academy class, even though seats were available; (2) that it refused to reinstate her as
a constable in February 2012 after her three-year suspension ended (which entailed
refusing to permit her to complete a one-week recertification course in lieu of the full
Academy); (3) that it intentionally prevented her from attending the January 2013
Academy; and (4) that it ultimately terminated her employment. The Town argues that
only the last constitutes an adverse employment action.
1.

July and October Academy Classes

The plaintiff argues that the defendant maliciously denied her requests to be
placed in the July or October Academy class even though seats were available. The
Court cannot hold that this constituted an adverse employment action, however,
because the plaintiff has not introduced evidence sufficient to permit the inference that it
occurred.
The defendant's brief acknowledges that the Academy hosted classes in July and
October of 2012. But there is no evidence that the plaintiff asked Westbrook officials to
place her in either of the earlier classes,9 there is no evidence that Westbrook officials

9

Milardo did ask a training officer at the State of Connecticut Department of Emergency Service and
Public Protection if she might attend the October class, ECF No. 35-49 at 2, but no evidence suggests
that this desire was communicated to the defendant.

16

denied her request, and there is no evidence that the Academy could have
accommodated Milardo if such a request had been made. The plaintiff's brief – which
was untimely filed and which, in fourteen pages, cites to the record just twice – identifies
no evidence to support Milardo's assertions on this point. Nor does the plaintiff's Rule
56(a)(2) statement so much as mention the July or October Academy classes. Nor has
the Court's own search turned up any evidence that supports the plaintiff's argument.
Consequently, no reasonable juror could find that the Town denied Milardo's request to
be placed in an earlier Academy class.
2.

Refusal to Reinstate the Plaintiff

After the SBMA overturned Milardo's termination and ordered her reinstatement,
the Town appealed the SBMA’s decision in state court. It also declined to permit the
plaintiff to obtain recertification through a one-week course instead of through a sixmonth Academy class. ECF No. 36-1 ¶¶ 6-7. As a result, Milardo was not scheduled to
obtain recertification until January 2013. Had the Town accepted the SBMA's decision
and waived the Academy requirement, Milardo presumably could have been reinstated
earlier. The plaintiff argues that imposing this delay amounted to an adverse
employment action.
The Town makes two arguments in response. The first is that it did not refuse to
reinstate Milardo. Rather, it was unable to reinstate her, because her certification had
lapsed. This argument is unavailing because the record supports the inference that the
Town could have streamlined her reinstatement by waiving the Academy requirement
but chose not to. ECF No. 37-3 at 5.

17

The Town's second argument is that delaying the plaintiff's recertification denied
her a mere "training opportunity." It identifies cases standing for the proposition that
preventing an employee from receiving training is not an adverse employment action.
But its cases are distinguishable. In one, for instance, the plaintiff complained that the
police department for which he worked had not approved him to attend a class about
administering Breathalyzer tests. See Miller v. City of Ithaca, No. 3:10 Civ. 597, 2012
WL 1977974, at *5, *7 (N.D.N.Y. June 1, 2012). No evidence suggested that the
plaintiff's missed training opportunity had any broader effect on his employment. Id. at
*5. Similarly, in Santiago v. City of New York, No. 05-CV-3668 (RRM)(VVP), 2009 WL
935720, at *5 (E.D.N.Y. Mar. 31, 2009), the plaintiff was denied a promotion as a result
of being denied a training opportunity, but did not lose her job. Here, in contrast,
Milardo's inability to obtain recertification prevented her from working as a constable.
Thwarting an employee from working altogether might easily deter a person of ordinary
firmness from exercising her First Amendment rights.10 The Court therefore concludes
that the Town's refusal to reinstate Milardo via the one-week certification course was an
adverse employment action.
3.

Intentionally Preventing the Plaintiff from Attending the
Academy

The plaintiff argues that the Town took action against her by intentionally
preventing her from attending the January Academy class. According to Milardo, the
Town procured her absence by "intentionally and maliciously" mailing her enrollment
10

The defendant also argues that its refusal to reinstate the plaintiff has not affected her financially,
because she has since been paid for the period between February 2012 and January 2013. (A
November 2013 administrative award ordered the Town to pay back wages. ECF No. 35-51 at 3, 10.)
This is relevant in a damages inquiry, but it does not alter the Court’s conclusion that the Town’s initial
conduct amounted to an adverse employment action.

18

notification to the wrong address and by failing to sign certain forms and furnish her with
equipment. The record evidence, however, does not permit a reasonable inference that
Milardo's failure to attend the Academy owed to intentional obstruction by Town officials.
Accordingly, the Court concludes that these were not adverse employment actions.
Three considerations inform this conclusion.
First, Westbrook has introduced evidence showing that it twice mailed Milardo's
enrollment materials to her last address of record, and the plaintiff has adduced no
evidence to the contrary. ECF No. 35-47 ¶ 22; ECF No. 35-2 ¶¶ 79, 82; ECF No. 36-1
¶¶ 79, 82. The second time, the materials arrived by certified mail and were signed for
by an "E. Milardo." ECF No. 35-2 ¶ 81; ECF No. 36-1 ¶ 81. Moreover, each mailing
was carbon-copied to the plaintiff's union attorney. ECF No. 35-2 ¶ 78; ECF No. 36-1 ¶
78. Finally, the undisputed evidence shows that when Westbrook learned that Milardo
had not received her materials, it rectified the error. See ECF No. 35-2 ¶ 85; ECF No.
36-1 ¶ 85.
The plaintiff has produced no evidence tending to show that the Town
intentionally mailed her enrollment package to the wrong address. Instead, she opines
that Westbrook's claim of innocent error is "absurd" and that it is “ludicrous” to suggest
that a law enforcement agency is "incapable of ascertaining" a former employee's
address. ECF No. 36-1 ¶ 79. But Westbrook does not argue that it was "incapable of
ascertaining" where the plaintiff lived; it argues that it incorrectly assumed that its
records reflected her current address. Milardo offers no evidence that casts doubt on
the Town's assertion of honest mistake.

19

Second, the plaintiff has failed to produce evidence to support its contention that
the Town "refused to provide the plaintiff with the necessary materials to" attend the
Academy. ECF No. 36 at 6. While Plaintiff has introduced some evidence that her
lawyer was generally in contact with the Town’s lawyer about getting the necessary
forms and equipment, she has not introduced any evidence that the Town affirmatively
refused any of her lawyer’s requests. Plaintiff testified at her deposition that “[the Town]
did nothing to attempt to send me to the Academy. Without the signatures on the
paperwork, I could not have attended the Academy.” ECF No. 35-44 at 263:10-14.
This statement, however, lacks support in the record evidence. When the Town did
receive notice that Milardo was struggling to make arrangements to attend the Academy
– she could not procure a timely medical appointment – it quickly addressed her
difficulty by engaging a doctor to perform the required examination. ECF No. 35-33 at
2. On this record, there is no factual basis from which a juror could conclude that the
defendant consciously avoided furnishing Milardo with the materials she needed for the
Academy.
Moreover, irrespective of the defendant's failure to sign forms and provide the
plaintiff with supplies, Milardo would not have attended the Academy in any case. On
December 18, the Town notified the plaintiff that it had arranged for her to have a
physical before the January Academy began. Id. Milardo refused the Town's offer even
though she knew that it would prevent her from participating in the Academy training.
ECF No. 35-2 ¶ 96-97; ECF No. 36-1 ¶ 96-97; ECF No. 35-44, at 262–63. Because the
plaintiff’s own decision ensured that the she would fail to attend, it cannot properly be
said that want of signatures or supplies caused her to miss the Academy.

20

Finally, even if the Court were to conclude that the defendant refused to provide
Milardo with signatures and supplies and that doing so constituted an adverse
employment action, such action was temporally remote from the filing of Milardo I, and,
as discussed infra, Milardo has failed to adduce evidence to sufficient to permit a
reasonable inference that the filing of Milardo I motivated such action.
4.

Termination of the Plaintiff’s Employment

The termination of the plaintiff’s employment was an adverse employment action
for purposes of a First Amendment retaliation claim. Zelnik, 464 F.3d at 225. The
defendant does not dispute this. ECF No. 35-1 at 34.
F.

Causation

A First Amendment retaliation claim fails absent some causal connection
between protected speech and adverse action. The plaintiff bears the burden to show
that her speech was a "substantial motivating factor in the adverse employment action.”
Smith v. Cnty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015). A plaintiff may establish the
requisite causal relationship through evidence of retaliatory animus, or by showing close
temporal proximity between the protected speech and the adverse employment action.
Id. The defendant argues that Milardo has failed to adduce evidence sufficient to permit
the inference that her protected speech, Milardo I, caused the defendant to delay her
reinstatement or to terminate her employment. The Court agrees.
1.

Evidence of Retaliatory Animus

Milardo asserts that she has introduced evidence of retaliatory animus by
identifying "ongoing hostilities" between herself and the Town that began around the
time of her lawsuit and continued until her termination in 2013. ECF No. 36 at 12–13.

21

The Court understands this to be a reference to the Town's investigation of her conduct
after the events of June 18, 2008, its decision to place her on paid administrative leave
soon afterward, its termination of her employment in January 2009, its resistance to
reinstating her after the SBMA's decision in February 2012, her ultimate termination,
and harassment by the Resident State Trooper because of Milardo I.
Setting aside for the moment the allegations concerning the Resident State
Trooper, none of these "instances of hostility" shows retaliatory animus predicated on
Milardo I. The earliest incident the plaintiff identifies – investigation of her conduct in
June 2008 – postdated the filing of Milardo I by more than five years. Moreover, the
suggestion that this investigation was somehow motivated by Milardo's lawsuit is belied
by the record. The investigation commenced shortly after Milardo and another
constable failed to respond properly to a report of a citizen in danger.11 There is no
factual basis from which a juror could conclude that this incident – or those occurring
later, such as Milardo's first termination and the Town's alleged reluctance to reinstate
her – was substantially motivated by her lawsuit from years earlier.
The alleged harassment by the Resident State Trooper fails to support the
plaintiff's argument for a different reason. Here, Milardo asserts maltreatment
predicated on her protected speech, which might conceivably be argued to connect her
2003 lawsuit to the adverse actions identified in this case. But the plaintiff has
introduced no evidence showing that this harassment occurred. Her brief fails to cite to
the record on the point. Her 56(a)(2) statement does not mention the alleged
harassment. The Court’s review of the record turned up nothing to support Milardo's
11

Note that the other constable, who was not the plaintiff in Milardo I, was likewise investigated and
likewise terminated.

22

allegation. Juries decide cases on evidence, not on bare assertions. There is no
factual basis in this record that the plaintiff experienced the alleged harassment after
Milardo I.
2.

Temporal Proximity

For mere temporal proximity to give rise to an inference of causation, the
protected speech and the adverse action must occur "very close" in time. Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The point at which a temporal
relationship becomes too attenuated to support a causal inference has not been
precisely identified, but generally speaking it is a question of months, not years.
Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999) ("Claims of retaliation are
routinely dismissed when as few as three months elapse between the protected . . .
activity and the alleged act of retaliation.").
Here, the earlier of the two adverse employment actions remaining in the case –
the Town's decision not to reinstate Milardo immediately after the SBMA ruling via a
one-week certification course – occurred in February 2012. Milardo I was filed in March
2003. The lapse of nine years is far too long to support the inference that the two
events were causally related. E.g., Murray v. Town of Stratford, 996 F. Supp. 2d 90,
122 (D. Conn. 2014) (temporal proximity was too tenuous to find causation where nine
years separated plaintiff’s prior lawsuit and defendant’s decision not to hire plaintiff).
The plaintiff suggests that in determining the question of causation, the Court
may properly consider speech that is unprotected under Garcetti, such as a 2008
complaint about harassment by the Resident State Trooper12 and the 2009 grievance

12

As is true of the harassment itself, no record evidence shows that this complaint actually occurred.

23

that followed her first termination. These instances of speech, of course, occurred
closer in time to the events of 2012-13 than did Milardo I. The plaintiff argues that they
provide a "linkage" establishing that the "adverse actions by the defendant that followed
those unprotected complaints were in fact motivated by the initial lawsuit." ECF No. 36
at 9.
This is unpersuasive. Because these instances of speech were unprotected, the
Town was free to respond to them by taking action against her. As to the argument that
the Town's alleged decision to retaliate against Milardo because of her 2009 wrongful
termination grievance establishes that it was actually retaliating against her because of
her 2003 gender-discrimination lawsuit, there is no factual basis in the record for
inferring that Westbrook retaliated against Milardo because she grieved her termination.
Because the plaintiff has not demonstrated a causal connection between her
protected speech and an adverse employment action, summary judgment will enter for
the defendant.14
III.

CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment

(ECF No. 35) is hereby granted. The clerk is directed to enter judgment in the
defendant’s favor and to close this case. SO ORDERED at Bridgeport, Connecticut this
tenth day of August, 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

14

In light of this disposition, the Court does not reach the Town's argument under Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

24