D'Angelo v. McGoldrick

685 A.2d 319, 239 Conn. 356, 1996 Conn. LEXIS 442

• Court: Supreme Court of Connecticut
• Decided: December 3, 1996
• Docket: 15444
• Status: Published

Opinions

PETERS, J.

General Statutes § 31-51q’ provides a cause of action for damages for an employee who has been disciplined or discharged on account of the exercise by such employee of various constitutional rights including the freedom of speech. The principal issue in this case is whether the plaintiffs, Eugene D’Angelo and Vincent DeRosa, can prevail in their cause of action under this statute without establishing a causal connection between their disciplinary transfers and the exercise of their constitutional rights. The complaint of the plaintiffs, two Connecticut state troopers, alleged that the defendants,^{1 2} Captain John McGoldrick, the commanding officer of the statewide narcotics task force (task force), and Nicholas Cioffi, the commissioner of the department of public safety, had wrongfully transferred them from the task force³ for exercising their rights to free speech. After a court trial, the trial court rendered judgment for the defendants. The plaintiffs appealed from this judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. The plaintiffs, who were state troopers assigned to the northwest office of the task force, had concerns about alleged misconduct at the task force on the part of Sergeant John Petrowski. On February 8,1993, DeRosa voiced his complaint to a former supervisor, Sergeant William McGuire. Thereafter, McGuire spoke with D’Angelo, who described another of Petrowski’s alleged transgressions. McGuire brought these allegations to the attention of officials at the internal affairs unit of the Connecticut state police and, at their request, summarized the plaintiffs’ allegations in a written memorandum on February 9, 1993 (McGuire memorandum). McGuire left room for four signatures, identified by typed names, on the bottom of the memorandum: each of the plaintiffs, Sergeant Dennis Coyle (another task force officer), and himself.

During this same period in early 1993, McGoldrick, the commander of the task force, had begun to consider restaffing the northwest office of the task force. Animosity had developed between McGuire and Petrowski, and, although McGuire was no longer part of the task force, McGoldrick concluded that the hostility between these two sergeants had fostered a feud between their respective supporters in the northwest office. This, he felt, had resulted in a decline in productivity. To remedy the problem, in late 1992 or early 1993, McGoldrick had ordered Petrowski’s transfer out of the unit.

On Februaiy 4, 1993, McGoldrick met with other supervisors at the task force to discuss further personnel changes. During this meeting, McGoldrick decided to transfer the plaintiffs, whom he considered to be allies of McGuire and participants in the intra-office feud.

On February 9, 1993, upon learning that the plaintiffs had been making copies of some of Petrowski’s time records, McGoldrick decided to accelerate the plaintiffs’ transfers. On the morning of February 10, 1993, McGoldrick, along with other task force leaders, met with the plaintiffs. Stating that he was “tired of recriminations,” McGoldrick informed the plaintiffs that they would immediately be transferred to units outside the task force. Only later that afternoon did the plaintiffs sign the McGuire memorandum.

In their present suit against the defendants, the plaintiffs claim that their transfers were triggered by their allegations against Petrowski and the resulting McGuire memorandum. They maintain that the transfers violated § 31-51q because the transfers were disciplinary measures intended to punish them for exercising their right to free speech.

The trial court concluded, for a number of reasons, that the plaintiffs had failed to establish their claims under § 31-51q. First, the trial court determined that, rather than rising to the level of constitutionally protected speech, the plaintiffs’ allegations against Petrowski constituted merely an “internal feud among employees.” Second, the trial court found that, even if the plaintiffs had engaged in constitutionally protected speech, they had failed to demonstrate a causal link between their transfers and their derogatory statements about Petrowski. Third, the court found that the plaintiffs had also failed to prove that their conduct had “not substantially or materially interfere[d]” with their work. See General Statutes § 31-51q. Finally, the trial court interpreted § 31-51q not to encompass the plaintiffs’ transfers within the term “discipline,” and not to include either of the defendants within the term “employer.”

Although on appeal the plaintiffs dispute all of the trial court’s determinations,⁴ we will confine our consideration to the validity of the trial court’s conclusion with respect to causation. Without proof of a causal connection, there has been no compliance with the requirement in § 31-51q of “discipline or discharge on account of the exercise by [an] employee of rights guaranteed by the . . . United States Constitution or . . . the constitution of the state . . . .” The issue of causation has two components: (1) did the trial court, as a matter of law, use the proper test; and (2) did the trial court make a finding of fact that is not clearly erroneous. In the circumstances of this case, we conclude that the judgment of the trial court should be affirmed because, factually, the plaintiffs have failed to make out a prima facie case under § 31-51q.

Section 31-51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employees’ exercise of enumerated constitutionally protected rights.⁵ See Lewis v. Gaming Policy Board, 224 Conn. 693, 711, 620 A.2d 780 (1993).

The statute does not, however, indicate what burden it imposes on an employee to prove that a disciplinary measure was taken “on account of the exercise” of these enumerated rights.

The trial court determined that in order to prevail under the statute, the plaintiffs had the burden of establishing three elements: “(1) that [they] were exercising rights protected by the first amendment to the United States constitution or by an equivalent provision of the Connecticut constitution; (2) that [they were transferred] ‘on account of [their] exercise of first amendment or equivalent state constitutional rights; and (3) that [their] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [their] bona fide job performance or with [their] working relationship with [their] employer.” (Internal quotation marks omitted.)

The plaintiffs contend that the trial court’s three part test was improper and propose instead that we should adopt the test set forth in Schnabel v. Tyler, 230 Conn. 735, 750, 646 A.2d 152 (1994). In Schnabel, a police officer filed an action against his police chief for, inter alia, retaliating against him in response to his criticism of the chief. Id., 736-37. He brought his claim under a federal statute, 42 U.S.C. § 1983,⁶ alleging a violation of his first amendment rights. In reviewing his claim, we affirmed the rights of public employees to speak, without fear of retribution, on matters of public concern. Id., 749. We recognized, however, the government’s “legitimate interest in regulating the speech of its employees . . . .” (Internal quotation marks omitted.) Id.

To accommodate these “competing interests,” we adopted a “balancing test.” Schnabel v. Tyler, supra, 230 Conn. 749; see Bieluch v. Sullivan, 999 F.2d 666, 670 (2d Cir. 1993), cert. denied, 510 U.S. 1094, 114 S. Ct. 926, 127 L. Ed. 2d 219 (1994). To establish a prima facie case under this test, the public employee must prove that: “(1) his speech can be fairly characterized as constituting speech on a matter of public concern; and (2) [his] speech was at least a substantial or motivating factor in the [transfer] . . . .” (Emphasis added; internal quotation marks omitted.) Schnabel v. Tyler, supra, 750. If the employee proves these two elements, the burden then shifts to the employer, who may still avoid liability by proving either that: “(1) he would have made the same decision in the absence of the protected conduct; or [(2) the employee’s] conduct interfered with the [government agency’s] effective and efficient fulfillment of its responsibilities to the public . . . .” (Internal quotation marks omitted.) Id.; Frank v. Relin, 1 F.3d 1317, 1328-29 (2d Cir.), cert. denied, 510 U.S. 1012, 114 S. Ct. 604, 126 L. Ed. 2d 569 (1993).

We need not decide today whether the legal analysis announced in Schnabel for actions brought under 42 U.S.C. § 1983 applies equally to actions brought under § 31-51q. Even if we were to assume, arguendo, that the Schnabel test governs § 31-51q actions, the plaintiffs must still meet the burden imposed upon them by the Schnabel test. This they have failed to do. In its memorandum of decision, the trial court explicitly found the “absence of any evidence to support [the plaintiffs’] claim that [they] were transferred on account of their alleged protected activity . . . .” (Emphasis added.)

Contrary to the plaintiffs’ suggestion, we do not read the trial court’s language so literally as to mean that the plaintiffs did not produce any evidence from which an inference could have been drawn to support their contention, irrespective of the inferences that the court actually did (or did not) draw. Rather, we read this language, consistent with its context and the rest of the trial court’s memorandum of decision, to mean that the trial court was not persuaded by any of the evidence adduced to support the plaintiffs’ contention.

Because the trial court’s finding is supported by the record, we conclude that the plaintiffs, having failed to adduce any persuasive evidence to support their claims that the allegations against Petrowski entered into the defendants’ decision to transfer them, have likewise failed to establish that these allegations were “at least a substantial or motivating factor” in their transfers. Schnabel v. Tyler, supra, 230 Conn. 750. In light of this finding, the plaintiffs have not satisfied the second prong of the Schnabel test.

The plaintiffs contend, however, that the trial court’s factual finding with regard to causation was “unsupported by the evidence.” Appellate review of findings of fact “is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 598, 682 A.2d 972 (1996).

Mindful of this limited scope of review, we hold that the record contains sufficient support for the trial court’s finding that the plaintiffs’ transfer was not a product of their allegations against Petrowski. McGoldrick testified that, at a time well before the plaintiffs complained about Petrowski, he had considered ordering transfers out of the northwest office of the task force in order to boost productivity there. The trial court heard testimony that McGoldrick had met with other officers to discuss transfers from the northwest office five days before McGuire brought the plaintiffs’ allegations to the attention of the internal affairs unit. McGoldrick further testified that he first became aware of the McGuire memorandum on March 17, 1993, more than a month and a half after he had ordered the plaintiffs’ transfers. We conclude that this evidence renders the trial court’s finding not clearly erroneous. See Dornfried v. October Twenty-Four, Inc., supra, 230 Conn. 636.

Seeking to diminish the force of this evidence, the plaintiffs point to portions of the trial record that, they claim, demonstrate that McGoldrick was aware of and motivated by the McGuire memorandum in ordering the plaintiffs’ transfers.⁷ The trial court, however, credited McGoldrick’s testimony that he did not learn of the McGuire memorandum until March 17, 1993. We have reviewed the entire transcript and conclude that the trial court was well within its discretion in determining that the evidence weighed in the defendants’ favor. “Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role.” (Internal quotation marks omitted.) Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988).⁸

In light of the trial court’s finding of fact, which we conclude was not clearly erroneous, the plaintiffs have failed to establish the requisite causal connection between their alleged exercise of constitutional rights in their complaints about Petrowski and their transfers to another duty station. In the absence of causation, their claims under § 31-51q cannot be sustained.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN and KATZ, Js., concurred.

1 General Statutes § 31-51qprovides in relevant part: “Liability of employer for discipline or discharge of employee on account of employee’s exercise of certain constitutional rights. Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge 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, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages. . . .''

2 The plaintiffs also named as a defendant Major Reuben Bradford, the commanding officer of the bureau of criminal investigations. At the close of the plaintiffs' case, however, the trial court granted the defendants’ motion to dismiss with respect to Bradford. The plaintiffs have not challenged this decision.

3 Pursuant to their union contract, the plaintiffs initially filed grievances with the state police department’s labor relations unit seeking reinstatement to the task force. Their grievances were both denied. The plaintiffs then pursued their claims through arbitration. On March 4, 1995, an arbitrator ruled that the plaintiffs had been transferred in violation of their union contract and ordered their- reinstatement. The plaintiffs, however, had each already attained the rank of sergeant and chose not to reassume their positions as task force troopers.

4 The plaintiffs claim that flaws in the trial court’s analysis stem from its incorporation of portions of the defendants’ trial brief into the memorandum of decision. We have previously expressed disapproval of a trial court’s verbatim adoption of one parly’s findings of fact. Grayson v. Grayson, 202 Conn. 221, 223, 520 A.2d 225 (1987). In this case, however, the trial court did not adopt that portion of the defendants’ brief that proposed findings of fact. The trial court, moreover, was within its discretion in composing its memorandum of decision; Long v. Schull, 184 Conn. 252, 258, 439 A.2d 975 (1981); and provided legal and factual analysis sufficient for this court to review its judgment.

5 The statute encompasses rights guaranteed by the first amendment to the United States constitution, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The statute also encompasses rights guaranteed by §§ 3,4 and 14 of article first of the Connecticut constitution. Article first, § 3, provides: “The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.” Article first, § 4, provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Article first, § 14, provides: “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with Ihe powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.”

6 Title 42 of the United States Code, § 1983, entitled “Civil Action for Deprivation of Rights,” provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

7 The plaintiffs contend: (1) that McGoldrick testified that he did not believe 1hat the decline in the northwest office’s productivity was due to the plaintiffs; (2) that no defense witness could clearly articulate what sort of “feuding” had taken place in the northwest office; and (3) that McGoldrick, in his testimony, expressed only a “vague belief” that tire plaintiffs had copied some of Petrowski’s time sheets and, therefore, he could not have been motivated by this information.

8 The plaintiffs make three other arguments with regard to the trial court’s finding on causation. First, they contend that abundant “circumstantial evidence,” such as the plaintiffs’ noteworthy employment records and the temporal proximity between the creation of the McGuire memorandum and their transfers, suggests that their transfers were directly related to their allegations against Petrowski. In making these arguments, the plaintiffs invite us to weigh the evidence in this case. Weighing evidence, however, is beyond the scope of our review. See Temple v. Meyer, supra, 208 Conn. 407.

Next, the plaintiffs point out that Coyle, who also had a signature line on the McGuire memorandum but who never actually signed it, was not transferred. They contend that this demonstrates that the transfers were int ended as retribution against only those who voiced openly 1 heir concerns about Petrowski. Again, to the extent that this argument goes to the weight of the evidence, we have determined that the trial court’s finding was not clearly erroneous, and we are thus bound by that finding. We point out, however, that at the time of the transfer on the morning of February 10, 1993, Coyle and both plaintiffs were in the exact same position vis-a-vis the McGuire memorandum: none of them had yet signed it. Thus, even if McGoldrick knew about the McGuire memorandum, he would have also believed Coyle was making the same allegations. The fact that Coyle was not also transferred, therefore, only buttresses the trial court’s finding that the transfers were not retaliatory.

Finally, the plaintiffs draw our attention to the fact that the trial court refused to dismiss the case against McGoldrick and Ciofi'i at the conclusion of the plaintiffs’ case. The plaintiffs claim that this refusal contradicts the trial court’s posttrial finding that there was no evidence showing causation. 0n a motion to dismiss, however, all of the plaintiffs’ evidence must be considered true and “interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 609-10, 440 A.2d 810 (1981). “Once a case is presented to the trial court for final decision, [however] the trier is released from having to treat the plaintiffs evidence as true and can disbelieve any evidence, even if the evidence is uncontroverted.” (Internal quotation marks omitted.) Walshon v. Walshon, 42 Conn. App. 651, 654, 681 A.2d 376 (1996). Thus, we find no inconsistency in the trial court’s initial refusal to grant a motion to dismiss, and its conclusion, at the end of the case, that the plaintiffs had failed to adduce any evidence to support their claims.