Blue v. New Haven
Filing
86
ORDER: For the reasons set forth in the attached, the Defendant's 77 motion for summary judgment is GRANTED IN PART and DENIED IN PART. Signed by Judge Michael P. Shea on 1/31/2019. (Ram, Megha)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MENDI BLUE
No. 3:16-cv-1411 (MPS)
Plaintiff,
v.
CITY OF NEW HAVEN
Defendant.
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Mendi Blue (“Ms. Blue”), filed this action challenging a decision by the
City of New Haven (“the City”) to terminate her employment as New Haven’s Director of
Development and Policy. In the operative complaint, Ms. Blue alleges retaliation in violation of
Connecticut’s “whistleblower” protection statute, violation of her federal and state free speech
rights, breach of contract, and discrimination on the basis of race and color. ECF No. 43. The
City has moved for summary judgment on all counts. ECF No. 77. For the reasons set forth
below, the motion for summary judgment is GRANTED as to the federal free speech and breach
of contract claims, and DENIED as to the retaliation, state free speech, and racial discrimination
claims.
I.
Facts
The following facts, which are taken from the parties’ Local Rule 56(a) statements and
supporting exhibits, are undisputed unless otherwise indicated.1
The Plaintiff’s Rule 56(a) statement is mis-numbered. It contains two paragraphs numbered “5”
and two paragraphs numbered“16” while there are no paragraphs numbered “6” or “20.” I have
used the correct numbers in this opinion.
1
1
A. Ms. Blue’s Appointment to the Office of Development and Policy
Ms. Blue volunteered on Mayor Harp’s mayoral campaign. ECF No. 79-1 at ¶ 2. After
Mayor Harp was elected, she hired Ms. Blue to be New Haven’s Director of Labor Relations on
January 1, 2014. Id. at ¶ 3. A few months later, in May 2014, Mayor Harp appointed Ms. Blue to
a newly-created position: Director of Office of Development and Policy (“ODP”). Id. at ¶ 7. The
appointment was made pursuant to Section 4(a) of the Revised City Charter, id., which provides
that “[t]he Mayor shall appoint a secretary to the Mayor and other employees in the Office of the
Mayor, who shall serve under the direction of and subject to removal at the pleasure of the
Mayor, id. at ¶ 4.
The Board of Alders (“BOA”) is the legislative body of the City of New Haven, id. at ¶ 8,
and voted to fund the ODP Director position, id. at ¶ 9. In approving the position, the BOA
adopted an ordinance requiring the ODP Director to provide quarterly reports to the BOA
regarding the City’s progress in securing grant funding. Id. at ¶ 10. As ODP Director, Ms. Blue
was also responsible for identifying, coordinating, and applying for grants. Id. at ¶ 11. In the
course of this job, she was expected to work in partnership with the Mayor and department
heads. Id.
Ms. Blue received a copy of the Employee Handbook and City policies at a new hire
orientation held sometime within her first three months on the job. Id. at ¶ 5. The Employee
Handbook’s “disciplinary process” provision includes the following language:
Normally, discipline will be administered in accordance with the principles of
progressive discipline. Progressive discipline provides for increasingly serious
disciplinary measures. However, the severity of any disciplinary action is dependent upon
the nature of the offense.
In some situations, employee behavior is so serious that immediate termination is
warranted. If the City’s investigation of the situation reveals that the employee committed
2
what it determines to be a serious offense, then termination without progressive discipline
may be required.
Id. at ¶ 6.
B. Ms. Okafor’s Alleged Use of Unbid Grant Writing Services
Mayor Harp hired Martha Okafor (“Ms. Okafor”) as the Community Services
Administrator on May 28, 2014. Id. at ¶ 12. As the head of the community services
administration, Ms. Okafor assumed the responsibility of trying to generate additional resources
for her office. Id. at ¶ 13. On June 3, 2014, Mayor Harp sent a memo to all coordinators and
department heads, requesting that they inform ODP (Ms. Blue’s department) of all grant seeking,
proposal writing, and fundraising-related activities within their departments.” Id. at ¶ 14.2 Shortly
after she was hired, Ms. Okafor began contracting with Farnam Associates (“Farnam”), an
outside consultant, for grant writing services. Id. at ¶ 16. Ms. Okafor was required to follow the
procedures set forth in Article XV, § 1 (C) of the Revised City Charter when working with
outside consultants. The relevant provision of the charter states:
Whenever any work is necessary to be done, or any supply is needed, and the several
parts of said work or supply shall together involve the expenditure of more than five
thousand dollars ($5,000.00), or such other amount established by the Board of Alders by
Ordinance, such work shall be done or supply acquired pursuant to written contract,
under such regulations as the Board of Alders may establish by Ordinance. All such
contracts shall be founded on sealed bids or proposals made in compliance with Public
Notice published at least ten (10) Days before the time fixed for opening said bids or
proposals. If the Purchasing Agent shall not deem it for the interest of the City to reject
all bids, the Purchasing Agent shall award the contract to the lowest responsible bidder.
Id. at ¶ 19.
Ms. Blue became aware that Ms. Okafor was outsourcing grant writing services to
Farnam without putting the work out to bid. Id. at ¶ 17. She soon began expressing concern to
2
Ms. Blue testified that she authored the first draft of this memo, but did not know what changes
had been made, if any, before Mayor Harp signed and distributed it.
3
Mayor Harp, and others in the administration, that Ms. Okafor was awarding grant writing
contracts without going through the bidding process required by the City Charter. Id. at ¶ 18. Ms.
Okafor was advised that she needed to work with the purchasing office to issue requests for
proposals when utilizing outside consultants. Id. at ¶ 24. In addition, the purchasing agent held a
training session for everyone in the City who had occasion to utilize outside contractors. Id. The
parties disagree whether Ms. Okafor began to follow the procedures in 2016. Id. at ¶ 26. The
City states that by the beginning of 2016, Ms. Okafor only retained Farnam’s services after
putting a work request out to bid, while Ms. Blue states that Ms. Okafor was still retaining
Farnam without following the proper procedures. Id. Specifically, Ms. Blue states that a contract
between the City and Farnam was executed retroactively on February 18, 2016 with an effective
date of January 1, 2016, and that Farnam had been selected and had begun work before the
contract was put out to bid. Id.
C. The Budget Dispute, BOA Meeting, and Memorandum
The City states that Mayor Harp issued a directive to her department heads and
coordinators informing them that when she submits a proposed budget to the BOA, the time for
lobbying in favor of a particular department is over, and they must support the budget before the
BOA. Id. at ¶ 34. Ms. Blue states that the directive was not articulated “in an effective and
official manner” and that that the only clear statement of this policy came in writing after her
termination. Id. In any case, the City states that Ms. Blue knew that the Mayor expected all of her
directors to support the budget once it was presented to the BOA. Id. at ¶ 38. While Ms. Blue
testified that she generally knew about this policy, she also stated that the policy had not always
been followed in the past. Id.
4
In January 2016, Ms. Blue spoke with Mayor Harp about adding two new positions for
the Office of Development and Policy to the proposed budget. Id. at ¶ 27. On March 29, 2016,
however, shortly before Ms. Blue was scheduled to speak to the BOA Finance Committee, she
was informed that those two positions were not in the Mayor’s budget. Id. at ¶ 28. At the
meeting, the Alders questioned Ms. Blue about grants she had worked on and the money her
office brought into the City. Id. at ¶ 29. The next day, Ms. Okafor testified before the BOA
Finance Committee and was asked “how grants work in the city in its entirety.” Id. at ¶ 30-31.
Ms. Blue was not present during Ms. Okafor’s testimony, but she listened to a recording of it and
felt that it was her responsibility to respond to the BOA’s inquiry. Id. at ¶ 31.
On April 7, 2016, Ms. Blue submitted an 11-page memo to the BOA. Id. at ¶ 32. In the
memo, she requested funding for two new positions in her office, stating that “[t]hough these
positions were not included in the proposed 2016-17 budget, I appeal to this Committee to fund
these positions.” Id. at ¶ 33. At the time she submitted this memo, she knew that the two
positions were not in the Mayor’s budget. Id. at ¶ 37. The memo also reported Ms. Okafor’s
practice of awarding grant writing contracts without a bidding process in violation of city rules.
See, e.g., Defendant’s Ex. R at 5 (calling attention to Ms. Okafor’s “violation of every city policy
(formal or informal) related to the production of grants.”).
D. Ms. Blue’s Termination
After submitting the memo, Ms. Blue was out of the office for almost two weeks, first
attending a conference and then on vacation. ECF No. 79-1 at ¶ 41. A few days after returning to
the office, Ms. Blue was terminated. Id. at ¶ 42 & 47. At the termination meeting, Mayor Harp
read from a script. Id. at ¶ 43; Defendant’s Ex. U. Mayor Harp stated that Ms. Blue had violated
her trust, and that she had caused her embarrassment. Id. at ¶ 44. She further indicated that if Ms.
5
Blue had wanted to advocate for new positions, the time to do so was before the budget was
submitted, and the request for new positions was a deliberate violation of the directive to speak
with one voice. Id. She also stated that Ms. Blue had disrupted the operations of her office and
the budget process. Id. The parties agree that Mayor Harp terminated Ms. Blue’s employment for
violating her trust and for “deliberately disobeying a directive that disrupted the operations of her
office and the budget process.” Id. at ¶ 47.
The City states that Mayor Harp did not indicate, at any point, that she was upset that Ms.
Blue had complained about Ms. Okafor. Id. at ¶ 45. Ms. Blue testified that she could not recall
exactly what the Mayor said she was upset about at the termination meeting. Id.
II.
Legal Standard
Summary judgment is appropriate only when the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “In making that determination, a court must view the evidence in the
light most favorable to the opposing party.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(internal quotation marks and citations omitted). “A fact is material when it might affect the
outcome of the suit under governing law,” and “an issue of fact is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal citations and quotation marks
omitted). The moving party bears the burden “of showing that no genuine factual dispute exists .
. . , and in assessing the record to determine whether there is a genuine issue as to any material
fact, the court is required to resolve all ambiguities and draw all factual inferences” in favor of
the non-moving party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).
III.
Discussion
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A. Retaliation for Reporting a Violation of Law (Count One)
Conn. Gen. Stat. § 31-51m prohibits an employer from discharging, disciplining, or
otherwise penalizing an employee because (1) the employee reported a violation or suspected
violation of a law, regulation, or ordinance to a public body, or (2) the employee is requested by
a public body to participate in an investigation, hearing, or inquiry held by that public body.
Conn. Gen. Stat. § 31-51m(b). This claim is analyzed under the McDonnell Douglas burdenshifting framework. Arnone v. Town of Enfield, 831 A.2d 260, 266 (Conn. App. 2003)
(“[W]histle-blowing claims for retaliatory discharge typically invite analysis under the
framework first established in McDonnell Douglas.”). As such, the plaintiff must establish a
prima facie case of retaliation by demonstrating that: (1) she engaged in activity protected by §
31-51m; (2) she was subsequently terminated from her employment; and (3) a causal connection
exists between her participation in the protected activity and her termination. Fasoli v. City of
Stamford, 64 F. Supp. 3d 285, 295–96 (D. Conn. 2014). If Ms. Blue meets this initial burden, the
City must produce evidence of a nonretaliatory reason for the termination. Arnone, 831 A.2d at
266. Then, to survive summary judgment, Ms. Blue “must offer some significantly probative
evidence showing that the [City’s] proffered reason is pretextual.” Id. at 267.
1. Prima Facie Case
a. Public Body
The City argues that Ms. Blue cannot establish a prima facie case “because she did not
report an alleged violation to a third party public body.” ECF No. 77-1 at 14. I disagree. Section
31-51m offers protection to those who report violations to a “public body” and defines such a
body by reference to the definition of “public agency” in subdivision (1) of section 1-200. Conn.
Gen. Stat. § 31-51m(b) & (a)(4). Section 1-200 defines “public agency” as any “executive,
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administrative or legislative office of the state or any political subdivision of the state and any
state or town agency.” Conn. Gen. Stat. § 1-200(1)(A). The BOA is the legislative body for the
City of New Haven, ECF No. 77-1 at 15, and therefore falls within the definition of “public
body.”
The City relies on Cubilla v. Town of Montville, 2014 WL 1565899 (Conn. Super. Mar.
18, 2014) to argue that the report must be made to a third party and the BOA does not qualify as
a third party. ECF No 77-1 at 14-15. In Cubilla, however, “the plaintiff was reporting to the
mayor her concerns about the decision, policy, plan or proposed action of the mayor himself.”
Cubilla v. Town of Montville, 2014 WL 1565899, at *2 (Conn. Super. Mar. 18, 2014). The
Cubilla court explained that the “whistle must be blown” to a party other than “the individual
supervisor of the employee about whose decision, policy, plan, action or proposed action the
employee is concerned.” Id. The present case is distinct from Cubilla, because Ms. Blue was not
terminated after she reported the alleged violation to the person whose action concerned her, Ms.
Okafor, or to her supervisor, Mayor Harp. Rather, she was terminated shortly after she reported
her concerns to the BOA, which, as noted, is a public body for purposes of § 31-51m.
b. Causation
The City next argues that there is no evidence of a causal connection between Ms. Blue’s
termination and her alleged protected activity. ECF No. 77-1 at 15. I disagree. To establish a
causal connection, Ms. Blue “must show that the protected action was a motivating factor for
employer retaliation, but not necessarily the only factor.” Karagozian v. Luxottica Retail N.A.,
147 F. Supp. 3d 23, 33 (D. Conn. 2015) (internal quotation marks and citations omitted). She
may do so “indirectly, by circumstantial evidence, such as by showing that the protected activity
was followed closely in time by adverse treatment in employment.” Fasoli v. City of Stamford,
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64 F. Supp. 3d 285, 297 (D. Conn. 2014); see also Cifra v. G.E. Co., 252 F.3d 205, 217 (2d Cir.
2001) (internal quotation marks and citations omitted) (“The causal connection needed for proof
of a retaliation claim can be established indirectly by showing that the protected activity was
closely followed in time by the adverse action.”).
In this case, Ms. Blue was terminated just a few weeks after submitting her
memorandum—which reported Ms. Okafor’s violation, among other things—to the BOA. ECF
No. 79-1 at ¶¶ 32, 42, 47 & 48. Courts in this circuit “have declined to draw a ‘bright line’
defining the outer limits beyond which causation based on temporal proximity may be
established,” Bierce v. Town of Fishkill, 656 Fed. Appx. 550, 552 (2d Cir. 2016), but this case
falls well within the outer limits, see Cifra, 252 F.3d at 217 (finding a twenty-day lapse sufficient
to constitute indirect evidence of causation); Bierce, 656 Fed. Appx. At 552 (same based on a
few-month lapse); Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d
545, 555 (2d Cir. 2001) (same based on five-month lapse). Moreover, the discussion in the
memorandum was the first time Ms. Blue reported Ms. Okafor’s violations to a public body.
ECF No. 79 at 10. All previous complaints about Ms. Okafor’s practices had been made within
the Mayor’s administration; Ms. Blue had expressed concern about Ms. Okafor’s use of unbid
third-party grant writing services to others in the administration since 2014, ECF No. 79-1 at ¶
18, yet Mayor Harp did not take adverse action against her until she sent the memorandum to the
BOA. This permits an inference of causation and is sufficient to show a prima facie case as to
causation.
There are also genuine issues of material fact as to which components of the
memorandum—the parts discussing Ms. Okafor’s violations or the parts disagreeing with the
Mayor’s budget—led to Ms. Blue’s termination. Indeed, this is a complicated issue of fact
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because the two components are woven together throughout the memorandum: Ms. Blue referred
to Ms. Okafor’s violations in the memorandum to encourage the BOA to fund two positions in
her department—in contravention of the Mayor’s budget. Defendant’s Ex. R at 7 (Ms. Blue’s
memorandum to the BOA states: “I encourage this Committee not to reward repeated, willful
and knowing violations of city policies and questionable consulting services investments with an
increased ‘fund development’ contract budget for the Community Services Administration.”).
The fact that the whistle-blowing speech was so closely tied to speech that could form a
legitimate basis for termination also raises a question of material fact regarding causation.
Especially because the Court must draw all reasonable inferences in Ms. Blue’s favor at
this stage, the temporal proximity of Ms. Blue’s public disclosure to her termination, together
with the close connection between the protected speech and the speech that could form a
legitimate basis for termination, raise genuine issues of material fact and satisfy Ms. Blue’s
burden to establish a prima facie case on the causation element.
2. Non-Retaliatory Reason for Termination
In response to Ms. Blue’s claim, the City has provided a legitimate, non-retaliatory
reason for terminating her. The City states that Mayor Harp issued a directive to her department
heads and coordinators informing them that when she submits a proposed budget to the BOA, the
time for lobbying in favor of a particular department is over, and they must support the budget
before the BOA. ECF No. 79-1 at ¶ 34. Ms. Blue states that the directive was not clearly
communicated, but she admitted at her deposition that she was aware of it. ECF No. 79-1 at ¶ 38;
Defendant’s Ex. A at 114-15.
The parties agree that Ms. Blue’s memorandum to the BOA included an appeal for two
new positions in her department despite those positions not being included in the Mayor’s
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budget. ECF No. 79-1 at ¶¶ 33, 37. In addition, the parties agree that at the termination meeting,
Mayor Harp “indicated that if Blue had wanted to advocate for new positions, the time to do so
was before the budget was submitted, and that Blue’s April 7th request for the new positions was
a deliberate violation of her directive to speak with one voice, and that she had disrupted the
operations of her office and the budget process.” Id. at ¶ 44. Finally, Ms. Blue agrees with the
City that Mayor Harp terminated her employment “for violating her trust and for deliberately
disobeying a directive that disrupted the operations of her office and the budget process.” Id. at ¶
47. This is a non-retaliatory and legitimate reason for terminating Ms. Blue. Thus, to survive
summary judgment, Ms. Blue must produce some evidence that this reason was pretext.
3. Pretext
Once a defendant articulates a legitimate, non-retaliatory reason for the adverse
employment action, the plaintiff has “an opportunity to show that the reason was merely a
pretext for retaliation.” LaFond v. Gen. Physics Services Corp., 50 F.3d 165, 173 (2d Cir. 1995).
At this stage, “the evidence that a plaintiff presented in support of her prima facie case may be
sufficient to satisfy her ultimate burden of proof,” although “that will not necessarily be the
case.” Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 517 (Conn. 2012); see also Craine v.
Trinity College, 259 Conn. 625, 644 (Conn. 2002) (explaining that “[a]lthough the presumption
created by the prima facie case disappears, the plaintiff may rely upon the evidence used in
establishing the prima facie case to prove the ultimate issue” in a sex-discrimination case
analyzed under the McDonnell-Douglas burden-shifting framework); LaFond, 50 F.3d at 174
(“Pretext may be demonstrated either by the presentation of additional evidence showing that the
employer’s proffered explanation is unworthy of credence, or by reliance on the evidence
comprising the prima facie case, without more.”) (internal quotation marks and citation omitted).
11
Here, Ms. Blue relies on the evidence in her prima facie case, specifically noting that she
reported a violation of city rules to the BOA, was terminated shortly thereafter, and had never
before received negative feedback about her job performance. ECF No. 79 at 11. I find that the
content of the memorandum, namely the close connection between the whistle-blowing speech
and the unprotected speech, together with the temporal proximity between publication of the
memo and Ms. Blue’s termination, raise a genuine issue of material fact to be tried in this case.
Based on this evidence, a reasonable juror could conclude that Ms. Blue was terminated because
she reported Ms. Okafor’s violations to a public body, despite the fact that the City provided a
legitimate, non-retaliatory reason for terminating her. Accordingly, summary judgment on Ms.
Blue’s § 31-51m claim is DENIED.
B. Retaliation for Exercising Free Speech (Counts Two and Three)
Ms. Blue alleges that she was terminated for exercising her right to free speech in
violation of Conn. Gen. Stat. § 31-51q and 42 U.S.C. § 1983. Although these claims share
several elements, there are important differences, and I assess each in turn.
1. 42 U.S.C. § 1983
In order to make out a prima facie claim of free speech retaliation under § 1983, Ms.
Blue “must establish a prima facie case by bring[ing] forth evidence showing that [1] [s]he has
engaged in protected First Amendment activity, [2] [s]he suffered an adverse employment action,
and [3] there was a causal connection between the protected activity and the adverse employment
action.” Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (internal quotation marks
and citation omitted). The City argues that Ms. Blue cannot make out a prima facie case as she
was not engaged in protected speech. I agree.
The applicability of the First Amendment to speech by government employees is
governed by two principal inquiries. “The first requires determining whether the employee spoke
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as a citizen on a matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the speech. If the answer
is yes, then the possibility of a First Amendment claim arises.” Garcetti v. Ceballos, 547 U.S.
410, 418 (2006) (internal citations omitted). “In Garcetti, the Court parsed the first of the above
‘two inquiries’ into separate questions as to (1) whether the subject of the employee’s speech
was a matter of public concern and (2) whether the employee spoke ‘as a citizen’ rather than
solely as an employee.” Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011). Here, the City
argues that Ms. Blue was not engaged in protected speech because she did not speak as a citizen.
ECF No. 77-1 at 18-19.
“[W]hen public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the Constitution does
not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410,
421 (2006). Thus, an employer’s decision to restrict speech that stems from “a public employee’s
professional responsibilities does not infringe any liberties the employee might have enjoyed as a
private citizen,” and is therefore permissible. Id. at 421-22. In determining whether an individual
spoke as a citizen, “[t]he critical question under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.” Montero v. City of Yonkers, New York, 890
F.3d 386, 397–98 (2d Cir. 2018) (internal quotation marks omitted).
Ms. Blue argues that she was acting as a citizen because responding to the inquiry by the
BOA “was not part of her job description.” ECF No. 79 at 13. However, this assertion is
contradicted by her own deposition testimony:
Q: And is it your testimony that although that request was made during Ms. Okafor’s
testimony, you believed it was your responsibility to respond to that inquiry, as well?
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A [Ms. Blue]: Yes. I believe they said someone. Something to that effect. So I believed it
was my responsibility to be the person responsive to questions about grants in the City.
Q. Okay. Even though you weren’t there?
A [Ms. Blue]: Yes.
Q: All right. Why would you think that the Board of Alders [] requested you to provide
that information when you weren’t there?
A [Ms. Blue]: Because they specifically invoked my office and said they had confusion
about my testimony in relation to Martha’s testimony.
Defendant’s Ex. A at 79-80. In her memorandum, Ms. Blue states that “[i]f the alders had [asked
her for clarification], there would be more credence to the City’s argument that Ms. Blue was
doing her job, and was not acting as a citizen.” ECF No. 79 at 13. But her testimony clearly
states that she “believed it was [her] responsibility” to submit a memorandum responding to the
BOA’s concerns. Defendant’s Ex. A at 79. This is further supported by Ms. Blue’s allegations in
the complaint, where she stated that she “submitted a memorandum to the BOA Finance
Committee in response to its request” and “followed her usual practice with respect to all her
reports to BOA.” ECF No. 43 at ¶¶ 27-28. Finally, the memorandum itself demonstrates that she
wrote it pursuant to her official duties: it is addressed from “Mendi Blue, Director of
Development and Policy,” and in it, Ms. Blue states that “[a]s the Director of the Office of
Development and Policy . . . I believe I am in the best position to respond to [the BOA’s]
inquiries.” Defendant’s Ex. R at 1.
Ms. Blue further argues that her statements were not part of the normal course of her
duties because in her memorandum to the BOA she “characterizes herself as a citizen by
referencing the fact that she was born and raised in New Haven, that three generations of her
family lived there, and that she has more than 100 family members still living there.” ECF No.
79 at 14. However, Ms. Blue immediately follows her discussion of these ties to the City with
14
statements that she takes her “role as the Office’s Director and a steward of taxpayer dollars
seriously,” and “would spend any money allocated to the Office of Development and Policy with
that personal lens always in mind.” Defendant’s Ex. R at 11. Thus, Ms. Blue referenced her
family’s history in New Haven to bolster her request for funding—a request that she made in her
professional capacity as Director of Development and Policy rather than as a citizen. Id. at 1.
Moreover, as both parties recognize, Ms. Blue was required by ordinance to provide quarterly
reports to the BOA about her office’s performance. ECF No. 77-1 at 19; ECF No. 79 at 13. And
in her role as Director of Development and Policy, she testified before the BOA Finance
Committee and answered questions about grants and the sources of funding she brought into the
City. ECF No. 79-1 ¶ 29. Thus, the record makes clear that speech to the BOA about grant
funding is exactly the type of speech “ordinarily within the scope of [Ms. Blue’s] duties.”
Montero, 890 F.3d at 397-98.
As such, there is no genuine dispute that the memorandum containing the allegedlyprotected speech was written in the course of Ms. Blue’s duties, and not as a citizen. Because the
City is entitled to judgment as a matter of law on this issue, summary judgment as to Count
Three is GRANTED.
2. Conn. Gen. Stat. § 31-51q
An employer violates Conn. Gen. Stat. § 31-51q when it discharges an employee “on
account of the exercise by such employee of rights guaranteed by the first amendment to the
United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state,
provided such activity does not substantially or materially interfere with the employee’s bona
fide job performance or the working relationship between the employee and the employer.” To
establish a prima facie claim, Ms. Blue must establish: “(1) that [s]he engaged in constitutionally
15
protected speech, (2) that h[er] employer took an adverse action against h[er], and (3) that there
was a causal relationship between the protected activity and the adverse action.” Karagozian,
147 F. Supp. 3d at 35.
Further, the framework set forth in McDonnell Douglas applies. Perez-Dickson v.
Bridgeport Bd. of Educ., 2016 WL 7742923, at *3 (Conn. Super. Dec. 5, 2016) (explaining that
the McDonnell Douglass framework “applies to free speech retaliation claims made pursuant to
§§ 1981, 1983, and 31–51q”); see also Fasoli, 64 F. Supp. 3d at 296 (“[A]lthough the
evidentiary framework for analyzing First Amendment retaliation claims under § 1983 and
Conn. Gen.Stat. § 31–51q is not expressly referred to in the case law as falling under
the McDonnell Douglas rubric, it is still essentially the same.”). Under this framework, the City
must produce evidence of a nonretaliatory reason for the termination, and then the burden shifts
back to Ms. Blue to “produce evidence from which a reasonable jury could find that the
employer’s stated reason is merely pretext for illegal retaliation.” Perez-Dickson, 2016 WL
7742923, at *3 (internal citation omitted).
The Court must also consider whether the protected activity “substantially or materially
interfere[d] with [Ms. Blue’s] bona fide job performance or the working relationship between
[Ms. Blue] and [the City].” Conn. Gen. Stat. § 31-51q.
Finally, the City may avoid liability if it can show that it would have terminated Ms. Blue
in the absence of protected conduct. Karagozian, 147 F. Supp. 3d at 38.
a. Prima Facie Case
The City does not contest the second element of the prima facie case, but it argues that
Ms. Blue did not engage in constitutionally protected speech and that she failed to establish the
requisite causal relationship. ECF No. 77-1 at 17.
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i.
Protected Speech
The City argues that Ms. Blue was not engaged in protected speech because she
submitted the memorandum “as part of the normal course of her duties” and “was acting in her
own self-interest.” ECF No. 77-1 at 19. This argument is unavailing as applied to Ms. Blue’s §
31-51q claim. The Connecticut Supreme Court has held that the Garcetti framework, discussed
above in relation to the First Amendment, does not apply to claims arising under the state
constitutional provisions referred to in § 31-51q because “precedent favors a broader reading of
the free speech provisions of the state constitution than of the first amendment.” Trusz v. UBS
Realty Inv’rs, LLC, 319 Conn. 175, 205 (Conn. 2015). Under the Connecticut Constitution,
“even when an employee speaks pursuant to her official duties, the employee’s speech will be
protected so long as it is a comment on official dishonesty, deliberately unconstitutional action,
other serious wrongdoing, or threats to health and safety.” Brown v. Off. of State Comptroller,
211 F. Supp. 3d 455, 478 (D. Conn. 2016) (internal quotation marks omitted), aff’d in part,
appeal dismissed in part sub nom, Brown v. Halpin, 885 F.3d 111 (2d Cir. 2018). “The fact that
the alleged violation of the law is regulatory or civil, not criminal, does not prevent it from being
considered a ‘serious wrongdoing.’” Id.
In this case, Ms. Blue’s memorandum made allegations about Ms. Okafor’s improper
contracting of unbid work to a vendor. ECF No. 43 at 8. This concerns both a violation of the
City Charter and the management of taxpayer money—which is enough to make it “serious
wrongdoing.” Thus, it is protected by the Connecticut Constitution even though Ms. Blue was
speaking pursuant to her official duties. Brown, 211 F. Supp. 3d at 478 (“Examples of official
dishonesty and/or serious wrongdoing include: ‘when . . . a public auditor speaks on his
discovery of embezzlement of public funds, when a building inspector makes an obligatory
17
report of an attempt to bribe him, or when a law enforcement officer expressly balks at a
superior’s order to violate constitutional rights he is sworn to protect.’”) (quoting Trusz, 319
Conn. at 199). Here, because the speech concerns serious wrongdoing and is sufficiently serious
as a matter of law, summary judgment is not warranted on this ground.
ii.
Causation
The City next argues that Ms. Blue cannot establish the requisite causal connection. ECF
No. 77-1 at 19-20. I disagree for the same reasons discussed above in Section III.A.1.b.
b. Non-Retaliatory Reason for Termination
As discussed above in Section III.A.2, the City has provided a legitimate, non-retaliatory
reason for terminating Ms. Blue. Thus, Ms. Blue must produce some evidence that this reason
was pretext.
c. Pretext
As discussed above in Section III.A.3, the temporal proximity of Ms. Blue’s disclosure to
her termination, together with the close connection between the protected speech and
unprotected speech, raise genuine issues of material fact. Based on this evidence, a reasonable
juror could conclude that Ms. Blue was terminated because of her protected speech regarding
Ms. Okafor’s alleged violations, despite the fact that the City provided a legitimate, nonretaliatory reason for terminating her.
d. Interference with Job Performance or Working Relationship
The next inquiry under § 31-51q is whether Ms. Blue’s exercise of her rights
“substantially or materially interfere[d] with [her] bona fide job performance or the working
relationship between [her] and [the City].” Conn. Gen. Stat. § 31-51q. “Connecticut Courts apply
the balancing test the Supreme Court set out in Pickering v. Board of Education to assess
18
whether this prong has been met.” Karagozian, 147 F. Supp. 3d at 37 (internal citations omitted).
The balancing test requires the Court to weigh “the extent of the disruption caused by the
employee’s speech on [1] workplace discipline, [2] harmony among co-workers, [3] working
relationships, [4] the employee’s job performance, [5] the responsibilities of the employee within
the agency and [6] whether the speech is made publicly or privately.” Schumann v. Dianon Sys.,
Inc., 304 Conn. 585, at 623-24 (Conn. 2012). Under this balancing test, “the ultimate question is
whether the employee’s right to speak is outweighed by the public employer’s interest in the
effective operation of the workplace.” McEvoy v. Spencer, 124 F.3d 92, 98 (2d Cir. 1997).
In the absence of binding precedent, state and federal trial courts have split on whether
the plaintiff or the defendant bears the burden at this step. Matthews v. Dept. of Pub. Safety, 2013
WL 3306435, at *8 (Conn. Super. May 31, 2013) (noting that “no appellate authority has
weighed in on this issue”). Although the majority approach places the burden on the plaintiff, see
Buscetto v. St. Bernard Sch. of Montville, Inc., 2013 WL 1111582, at *6 (Conn. Super. Feb. 22,
2013) (collecting cases), I predict that the Connecticut Supreme Court would place the burden on
the defendant for substantially the same reasons set forth by Judge Peck in Matthews v.
Department of Public Safety:
[I]f [the plaintiff] w[as] required to prove a lack of a substantial and material interference,
he would be forced to prove a negative, which is a difficult if not impossible task. This
would place the court in the peculiar position of requiring the plaintiff to plead either an
extensive and exhaustive recitation of all events that may have involved interference or a
boilerplate that would not give significant factual detail and would likely involve a legal
conclusion In contrast, by placing the burden on the defendant to plead a substantial and
material interference as a special defense, the defendant is able to allege specific facts
concerning any incidents of disruption because, as the employer, it has a wider and better
knowledge of disruptive events. This creates a situation well suited for an affirmative
defense, and, in light of the case law, interpretation of the statutory text and confines of
logic, it makes more sense that it is the defendant's burden to prove a substantial and
material interference.
19
Matthews, 2013 WL 3306435, at *10 (internal citation and footnote omitted); see also Travelers
Ins. Co. v. 633 Third Associates, 14 F.3d 114, 119 (2d Cir. 1994) (“Where the substantive law of
the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how
the highest court of the forum state would resolve the uncertainty or ambiguity.”). In addition, as
noted by Judge Peck, the placement of the “substantial[] or material[] interfere[ence]” language
in the statute after a comma and after the word “provided,” see Conn. Gen. Stat. § 31-51q, is at
least consistent with the notion that the General Assembly intended that a showing of substantial
or material interference be an affirmative defense. Id.
In the present case, the City argues that Ms. Blue’s speech was unduly disruptive of her
employment with the City, but does not cite any evidence to support this argument. First, the
City asserts that there was “potential for disruption to the Mayor’s office and the City’s
budgetary process” in light of Ms. Blue’s close working relationship with the Mayor and the
position of trust that she occupied. ECF No. 77-1 at 22 (emphasis added). Second, the City
asserts that there was “actual disruption to the City’s operations” since “Mayor Harp was forced
to field questions from the media regarding the matter and to defend her budget.” Id. The City
does not cite an affidavit from the Mayor or any other evidence to support these arguments.
Although the City does not point to this language, the Court notes that the termination
script does include the following language about disruption to the Mayor’s office:
7. You have caused disruption in the operations of this office and in its orderly dealings
with the budget process.
Your actions—taken in the face of your obligations to me and in the face of what you
know and acknowledge to be the plain, stated rules—was, in my opinion, intended to
disrupt the orderly course of operations of the budget process; to cause me
embarrassment. . . all for your own personal gain or aggrandizement.
You knew that what you did would likely interfere with the Administration’s—with
my—governmental operations and relationships.
20
8. I am thoroughly and completely disappointed by, and at a complete loss to understand
or explain, your considered and deliberate violation of the reasonable rules and policies
for ensuring orderly governmental operations and am personally offended by this breach
or [sic] trust.
Defendant’s Ex. U. However, all of these statements are conclusory and there are no specific
facts evidencing incidents of disruption or interference. See Matthews, 2013 WL 3306435, at *10
(explaining that the burden is placed on the defendant to plead a substantial and material
interference as a special defense because “the defendant is able to allege specific facts
concerning any incidents of disruption”) (emphasis added).
In addition, the temporal proximity between Ms. Blue’s termination and her protected
speech counsels against granting summary judgment on the basis that her speech interfered with
her job performance or working relationships. See Algarin v. LB & O, LLC, 2017 WL 3879306,
at *3 (Conn. Super. July 19, 2017) (finding that the protected “speech did not interfere with [the
plaintiff’s] employment because he was notified that he was to be discharged the same day as his
speech”); see also Schulz v. Auto World, Inc., 2016 WL 7135040, at *9 (Conn. Super. Oct. 25,
2016) (“This court is persuaded that the employee’s failure to plead that his speech did not
materially interfere with [his] job performance or [his] working relationship with the [employer]
is not fatal to stating a claim upon which relief may be granted under § 31–51q given that he
alleges that he was terminated immediately after the speech was made.”) (internal quotation
marks omitted).
Thus, the City has not met its burden of showing that Ms. Blue’s speech “substantially or
materially interfere[d] with [her] bona fide job performance or the working relationship between
[her] and the [City],” Conn. Gen. Stat. § 31-51q, thereby making summary judgment
inappropriate on this ground.
21
e. Termination in the Absence of Protected Speech
Finally, “[u]nder Mount Healthy, if the defendant can show that [s]he would have taken
the adverse employment action, even in the absence of plaintiff’s protected conduct, summary
judgment is warranted.” Karagozian, 147 F. Supp. 3d at 38. In establishing this defense, the
defendant “may not rely solely on the occurrence of unprotected misconduct: [it] must also
articulate and substantiate a reasonable link between that misconduct and [its] specific adverse
actions.” Smith, 776 F.3d at 125. Showing that the defendant “might have or could have” taken
adverse action on legitimate grounds is insufficient. Zehner v. Jordan-Elbridge Bd. of Educ., 666
Fed. Appx. 29, 32 (2d Cir. 2016) (unpublished). “The unprotected conduct, standing alone, must
justify the adverse actions.” Smith, 776 F.3d at 122.
In this case, the City summarily states that “Mayor Harp would have terminated Blue’s
employment irrespective of the claimed protected speech regarding Okafor,” ECF No. 77-1 at
20, without citing an affidavit from the Mayor or any other evidence suggesting that the
unprotected conduct “standing alone” would have led to the termination. Moreover, as discussed
above, the protected speech was closely tied to the unprotected speech, Defendant’s Ex. R at 7,
and the memorandum’s publication was close in time to Ms. Blue’s termination, ECF No. 79-1 at
¶¶ 33, 41, 42. These factors raise a genuine issue of material fact concerning the Mayor’s
motivations in terminating Ms. Blue and, viewing the evidence in the light most favorable to Ms.
Blue, a reasonable jury could infer that she was terminated because of the protected conduct and
would not have been terminated in its absence. This precludes summary judgment. Smith, 776
F.3d at 125 (“Summary judgment is precluded where questions regarding an employer’s motive
predominate in the inquiry regarding how important a role the protected speech played in the
22
adverse employment decision.”) (internal quotation marks, citation, and alteration omitted).
Accordingly, summary judgment on the § 31-51q claim is DENIED.
C. Breach of Contract (Count Four)
Ms. Blue alleges that the City’s decision to terminate her employment without providing
her progressive discipline was in breach of her employment contract. ECF No. 43 at 9. The City
argues that Ms. Blue did not have an agreement with the City that required progressive
discipline; that, even assuming there was such an agreement, there was no breach; and that, in
any case, the alleged agreement would be trumped by the City Charter. ECF No. 77-1 at 23.
Even assuming that the Employee Handbook constitutes an agreement and the City
Charter did not trump the provisions in the handbook, as Ms. Blue alleges, the breach of contract
claim fails. Although the handbook states that “[n]ormally, discipline will be administered in
accordance with the principles of progressive discipline,” ECF No. 79-1 at ¶ 6, such discipline
was by no means guaranteed. Indeed, the Employee Handbook also states: “In some situations,
employee behavior is so serious that immediate termination is warranted. If the City’s
investigation of the situation reveals that the employee committed what it determines to be a
serious offense, then termination without progressive discipline may be required.” Id.
“Where the language of the [writing] is clear and unambiguous, the [writing] is to be
given effect according to its terms. A court will not torture words to import ambiguity where the
ordinary meaning leaves no room for ambiguity.” 19 Perry St., LLC v. Unionville Water Co., 294
Conn. 611, 623 (Conn. 2010). Moreover, “any ambiguity in a contract must emanate from the
language used in the contract rather than from one party’s subjective perception of the terms.”
Connecticut Light and Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109 (Conn. 2006)
(internal quotation marks and citations omitted). Here, there is no ambiguity that while
23
progressive discipline was “normal[],” there were circumstances in which immediate termination
was permitted. Thus, Ms. Blue was not contractually entitled to progressive discipline in all
circumstances. Furthermore, as the City notes, Ms. Blue does not respond to the City’s argument
that the Employee Handbook includes language authorizing immediate termination and therefore
there was no breach. ECF No. 81 at 8. Accordingly, summary judgement is GRANTED as to
Count Four, and I do not reach the City’s remaining arguments concerning Ms. Blue’s breach of
contract claim.
D. Race Discrimination (Counts Five and Six)
Ms. Blue alleges racial discrimination in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”) and the Connecticut Fair Employment Practices Act (“CFEPA”). ECF No. 43
at 9-12. Connecticut courts “look to federal law for guidance on interpreting state employment
discrimination law, and the analysis is the same under both.” Feliciano v. Autozone, Inc., 316
Conn. 65, 73 (Conn. 2015). For both claims, Ms. Blue must show “that (1) [she] is a member of
a protected class; (2) [she] was qualified for the position; (3) [she] suffered an adverse
employment action; and (4) the adverse employment action occurred under circumstances that
give rise to an inference of discrimination.” Id. Then, under the McDonnell Douglas framework,
the City may show a nondiscriminatory justification for the termination. Id. at 74. To succeed on
her claim, Ms. Blue must then demonstrate that the nondiscriminatory reason is a pretext and her
termination was motivated by bias. Id.
1. Prima Facie Case
The parties agree that Ms. Blue meets the first three components of her prima facie case,
but the City argues that she cannot establish an inference of discriminatory intent. ECF No. 77-1
at 25-27. I disagree.
24
An inference of discrimination may be drawn from a “showing of disparate treatment—
that is, a showing that the employer treated [the] plaintiff less favorably than a similarly situated
employee outside h[er] protected group.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d
Cir. 2003) (internal quotation marks and citation omitted). The comparators “must be similarly
situated in all material respects,” Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.
1997), but what constitutes “all material respects” “varies somewhat from case to case,” Graham
v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). “An employee is similarly situated to coemployees if they were (1) subject to the same performance evaluation and discipline standards
and (2) engaged in comparable conduct.” Ruiz v. County of Rockland, 609 F.3d 486, 493–94 (2d
Cir. 2010) (internal quotation marks and citations omitted). “The allegedly similarly situated
person’s conduct need not be identical to the plaintiff’s, but must have ‘a reasonably close
resemblance.’” Westry v. Stamford Bd. of Educ., 2018 WL 4054881, at *5 (D. Conn. Aug. 24,
2018) (quoting Graham, 230 F.3d at 40). “Although ‘similarly situated’ is generally a question
of fact for the jury, a court can make the determination on a motion for summary judgment if the
plaintiff fails to raise a genuine issue of material fact.” Westry, 2018 WL 4054881, at *5.
In this case, Ms. Blue offers four comparators—Dean Esserman (Police Chief), Matthew
Nemerson (Economic Development Administrator), Garth Harries (former Superintendent of
Schools), and Doug Hausleden (Director of Public Transportation, Traffic, and Parking)—who
are all white men. I find that Dean Esserman and Garth Harries are not appropriate comparators
as a matter of law, and that Ms. Blue may not rely on Doug Hausleden for purposes of summary
judgment.
First, Ms. Blue was “subject to removal at the pleasure of the Mayor,” and therefore
faced a markedly different standard for discipline and termination than both Mr. Esserman and
25
Mr. Harries. ECF No. 43 at ¶¶ 4 & 7. Mr. Esserman could be removed only for just cause. Id. at
¶ 53. Although Ms. Blue seeks to minimize this difference by arguing that Mayor Harp “could
have set in motion the process by which Esserman would have been terminated if she had chosen
to,” ECF No. 79 at 21, her argument is unavailing. The difference between just cause protection
and serving at the pleasure of the mayor is important in determining whether two individuals are
similarly situated. See Senese v. Longwood C. Sch. Dist., 330 F. Supp. 3d 745, 767 (E.D.N.Y.
2018) (explaining that “any similarly situated employee would have to be a probationary
employee” because a “probationary employee is subject to being disciplined or terminated in a
fundamentally different manner than permanent employees”); Graham, 230 F.3d at 42
(explaining that “to be similarly situated, [the comparators] must have been subject to the same
disciplinary standards”). Similarly, Mr. Harries was subject to a significantly different removal
process than Ms. Blue. As Ms. Blue explained during her deposition, Mayor Harp “didn’t
independently supervise [Mr. Harries]” and it was the Board of Education that had the power to
remove him from his position. Defendant’s Ex. A at 192-93.
Ms. Blue also fails to show that Mr. Esserman’s or Ms. Harries’ conduct bears a
“reasonably close resemblance” to her conduct. Graham, 230 F.3d at 40. Mr. Esserman was
involved in two serious incidents. First, in September 2014, he verbally abused an usher at a
Yale football game when the usher asked to see his tickets. ECF No. 43 at ¶ 29. Mayor Harp sent
Mr. Esserman a letter of reprimand in relation to this incident. Id. at ¶ 30. Second, in July 2016,
Mr. Esserman verbally berated a waitress and disrupted other patrons in the restaurant. Id. at ¶¶
33-34. Mayor Harp gave Mr. Esserman a “15-day paid sabbatical” in response to this incident.
Id. at ¶ 34. As to Mr. Harries, Ms. Blue explains in her deposition that “[i]t was widely believed
that [Mr. Harries] wasn’t acting in the best interest of the City. Many parents and community
26
members weren’t happy with his performance. Probably the most egregious thing is the multimillion dollar deficit he was running.” Plaintiff’s Ex. 9 at 193. While Mr. Esserman and Mr.
Harries may have acted in ways that were embarrassing to Mayor Harp and her administration,
their conduct was vastly different from Ms. Blue’s conduct, which included “deliberately
disobeying a directive,” id. at ¶ 47, and undermining the Mayor’s budget proposal, Defendant’s
Ex. R.
Finally, Ms. Blue argues that Mr. Esserman’s conduct was “far more egregious and
damaging than [her] actions.” ECF No. 79 at 21. While Ms. Blue can rely on evidence that Mr.
Esserman and Mr. Harries committed different but more serious offenses to prove
discrimination, “[t]he determination that two acts are of comparable seriousness requires—in
addition to an examination of the acts—an examination of the context and surrounding
circumstances in which those acts are evaluated.” Graham, 230 F.3d at 40. Here, as described
above, Mr. Esserman and Mr. Harries were subject to very different discipline standards and
engaged in very different conduct. They were not “similarly situated in all material respects,”
Shumway, 118 F.3d at 64, nor did their conduct bear “a reasonably close resemblance” to Ms.
Blue’s conduct, Graham, 230 F.3d at 40.
Ms. Blue also offers Mr. Hausleden as a comparator, but the sham affidavit doctrine
precludes any consideration of whether he is similarly situated to Ms. Blue. This doctrine
“prohibits a party from defeating summary judgment simply by submitting an affidavit that
contradicts the party’s previous sworn testimony.” Moll v. Telesector Resources Group, Inc., 760
F.3d 198, 205 (2d Cir. 2014) (internal quotation marks and citation omitted) (emphasis in
original). “If a party who has been examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior testimony, this would greatly
27
diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). This doctrine
applies to facts that contradicted previous deposition testimony “by omission or addition.” Ibid.
Ms. Blue mentions Mr. Hausleden for the first time in her supplemental response and
accompanying affidavit. ECF No. 80 and 80-1. These filings came after the City filed its motion
for summary judgement and after Ms. Blue submitted her response. In the affidavit, Ms. Blue
states that Mr. Hausleden and Mayor Harp had a dispute over bike usage in New Haven, but that
Mayor Harp told her she could not terminate Mr. Hausleden because he is a white male and
would help her with the white vote in the East Rock neighborhood. ECF No. 80-1 at ¶¶ 1 & 2.
The City notes that Ms. Blue “testified at length about the basis for her race and color
discrimination claims, yet she never once mentioned any conversations with Mayor Harp [until
she submitted affidavits following the City’s motion for summary judgment] wherein Harp
allegedly referenced the race of employees in discussing whether or not to terminate their
employment.” ECF No. 81 at 5. During her deposition, Ms. Blue was asked to list “every
employee” who she believed “engaged in more egregious behavior but was afforded progressive
discipline.” ECF No. 82 at 3. She was later asked, twice, whether she had “any other evidence to
base [her] claim of race and or color discrimination.” Id. at 13, 16. Despite these opportunities,
she did not mention Mr. Hausleden at any point during her deposition. Thus, her affidavit
contradicts her deposition testimony by omission, and “factual issues created solely by an
affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” Hayes,
84 F.3d at 619.
The fourth and final individual Ms. Blue offers as a comparator is Matthew Nemerson.
Mr. Nemerson serves as the Economic Development Administrator in Mayor Harp’s
28
administration. ECF No. 79 at 22. Unlike the individuals discussed above, Mr. Nemerson is
similarly situated to Ms. Blue and the comparison supports an inference of discrimination. The
New Haven City Charter provides that the Mayor has the power to appoint Department Heads.
ECF No. 78-8 at 1. Therefore, as the Economic Development Administrator, Mr. Nemerson
likely served at the pleasure of the Mayor, Id. at 3 (“The Mayor shall appoint . . . other
employees in the Office of the Mayor, who shall serve under the direction of and subject to
removal at the pleasure of the Mayor.”), and was “subject to the same performance evaluation
and discipline standards” as Ms. Blue, Ruiz, 609 F.3d at 493–94 (internal quotation marks and
citations omitted).
Furthermore, in her deposition, Ms. Blue states that Mayor Harp “would talk a lot about
the fact that [Mr. Nemerson] would represent himself in ways that were not consistent with her
views.” ECF No. 82 at 12. Specifically, Ms. Blue said that the Mayor’s platform was focused on
“economic development in the neighborhood of New Haven,” but Mr. Nemerson “primarily only
focused on downtown.” Id. While this conduct is not identical to Ms. Blue’s conduct, it is
sufficiently similar as both Ms. Blue and Mr. Nemerson publicly disagreed with Mayor Harp’s
public stance on an issue. See Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)
(“[C]ircumstances must bear a reasonably close resemblance, but need not be identical.”);
Westry, 2018 WL 4054881, at *5 (quoting Graham, 230 F.3d at 40) (“The allegedly similarly
situated person’s conduct need not be identical to the plaintiff’s, but must have ‘a reasonably
close resemblance.’”). Here, I find that there is enough resemblance to raise an issue of fact for
the jury.
29
Mr. Nemerson was placed on an unpaid leave of absence. ECF No. 80-1 at ¶ 4. Because
Mr. Nemerson is similarly situated to Ms. Blue, and he was placed on leave instead of being
terminated, Ms. Blue has met her burden in establishing a prima facie case.
2. Non-Discriminatory Reason for Termination
As discussed above in Section III.A.2, the City has provided a legitimate, nondiscriminatory reason for terminating Ms. Blue. Thus, to survive summary judgment, Ms. Blue
must produce some evidence that this reason was pretext.
3. Pretext
Once the defendant “has produced evidence that it acted for a non-discriminatory reason,
[the plaintiff] may no longer rely on the presumption of discrimination raised by the prima facie
case.” Holcomb v. Iona College, 521 F.3d 130, 141 (2d Cir. 2008). The question becomes
“whether, without the aid of the presumption, [the plaintiff] has raised sufficient evidence upon
which a reasonable jury could conclude by a preponderance of the evidence that the decision to
fire [her] was based, at least in part, on [protected activity].” Id. At this stage, “the evidence that
a plaintiff presented in support of her prima facie case may be sufficient to satisfy her ultimate
burden of proof,” although “that will not necessarily be the case.” Perez-Dickson v. City of
Bridgeport, 304 Conn. 483, 517 (Conn. 2012); see also LaFond, 50 F.3d at 174 (internal
quotation marks and citation omitted) (“Pretext may be demonstrated either by the presentation
of additional evidence showing that the employer’s proffered explanation is unworthy of
credence, or by reliance on the evidence comprising the prima facie case, without more.”)
Here, Ms. Blue largely relies on her prima facie case, specifically, the assertion that
Mayor Harp did not terminate a white man when he publicly disagreed with her, but did
terminate Ms. Blue for similar conduct. ECF No. 79 at 25-26. At the summary judgment stage,
30
“the court is required to resolve all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought.” LaFond, 50 F.3d at 175. Drawing all inferences in
Ms. Blue’s favor, a reasonable juror could conclude from the evidence that she was terminated
while a similarly situated white individual was not, despite the fact that the City satisfied its
burden and provided a legitimate, non-retaliatory reason for terminating her.
The City correctly points out that the “same actor” inference together with the fact that
Mayor Harp is also African American weigh against a finding of discrimination. See Benedith v.
Malverne Union Free Sch. Dist., 38 F. Supp. 3d 286, 319 (E.D.N.Y. 2014) (“[W]hen the person
who made the decision to fire was the same person who made the decision to hire, it is difficult
to impute to [him] an invidious motivation that would be inconsistent with the decision to hire.”);
Tucker v. New York City, 2008 WL 4450271, at *5 (S.D.N.Y. Sept. 30, 2008), aff’d, 376 Fed.
Appx. 100 (2d Cir. 2010) (unpublished) (“[A]ny inference of race discrimination is further
undermined by the fact that all three superintendents under whom Tucker worked as well as
three of his four direct supervisors at the DOE were also African-American.”). But given that
Ms. Blue has identified, at least for summary judgment purposes, a similarly situated comparator
who was treated differently, she has done enough to preclude summary judgment. Accordingly,
summary judgment on Ms. Blue’s race discrimination claims are DENIED.
IV.
Conclusion
For the reasons set forth above, the City’s motion for summary judgment is GRANTED
IN PART and DENIED IN PART.
IT IS SO ORDERED.
/s/ MICHAEL P. SHEA
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
January 31, 2019
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