Milardo v. Town of Westbrook

120 F. Supp. 3d 206, 2015 U.S. Dist. LEXIS 104365, 2015 WL 4723661
CourtDistrict Court, D. Connecticut
DecidedAugust 10, 2015
DocketCivil Action No. 3:13-cv-01232-VAB
StatusPublished
Cited by5 cases

This text of 120 F. Supp. 3d 206 (Milardo v. Town of Westbrook) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milardo v. Town of Westbrook, 120 F. Supp. 3d 206, 2015 U.S. Dist. LEXIS 104365, 2015 WL 4723661 (D. Conn. 2015).

Opinion

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

VICTOR A. BOLDEN, District Judge.

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 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 exitéd thé 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 ¶¶ 38^0.

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 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 [212]*212far from the field. ECF No. 35-2 ¶29; ECF No. 36-1 ¶ 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 Í2, 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. 35-2 ¶ 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. 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 Mi-lardo’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 plaintiffs 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 ex-husband, and neither that letter nor the one [213]*213sent to her attorney found its way to the 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,' Mi-lardo 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 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.

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120 F. Supp. 3d 206, 2015 U.S. Dist. LEXIS 104365, 2015 WL 4723661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milardo-v-town-of-westbrook-ctd-2015.