Ann Burdick v. Dr. Christopher Clouet et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 127)

Facts & Procedural History

The present action was filed by the plaintiff, Ann Burdick, against the defendants, Dr. Christopher Clouet, the New London Board of Education (“Board”), and the city of New London.   The following facts are undisputed.   The plaintiff has been employed by the Board since 1994.   In 1999, the plaintiff was assigned as the “Secretary:  Registrar—New London High School.”   This position involved taking grades issued by teachers and putting them on student transcripts, as well as compiling all of the student grades for their transcripts.   Clouet served as the Superintendent of Schools in New London from approximately February of 2004 through June 2009.

The plaintiff's complaint is centered upon an e-mail that Clouet sent on December 12, 2007, to employees of the New London public school system.   In this e-mail, the plaintiff alleges that Clouet “identified the plaintiff, Burdick, as the cause of the New London public school system's high drop-put rate.”

The December 12, 2007 e-mail states:  “Colleagues- I realize that there has been an abundance of rumors regarding possible transfer of staff.   I thought that I would share the facts.   Yesterday, I met and discussed the details with all individuals involved.   Mr. Thompson and Mr. Svencer will remain in their current positions.   Dr. Hudson will come to the MS, Ms. Acosta will go to the HS. Ms. Jemars will go to the HS, Ms. Burdick will come to the MS. These transfers become effective when we return after winter break.   Each of these individuals will bring energy and talent to their new positions and I would expect them to be welcomed at their new schools.   The reason for these moves is to pursue some new approaches in reducing our drop-out rate.   I do expect that each and everyone of us is committed to reducing the drop-out in the spirit of cooperation and trying new approaches.   Can we change the pattern of 40% of our HS students not completing HS? I believe we can.   It is a pre–K–12 project, and we can all contribute to the needed changes.   I think we can all agree it is an injustice to our most vulnerable students to have such a high percentage become marginalized in the workplace by lack of education.   There are no simple solutions, but we share a responsibility as educators to reverse this trend.   I know that many of us found the report on “drop-out factories” to be offensive.   The recent “report card” from ConnCAN was even more disturbing.   We can only change the (inaccurate and unjust) perception of our schools, our professional work and our students by altering the outcomes.   Reducing the drop-out rate is something we can do!   Chris.”  There was no change in the plaintiff's salary or fringe benefits due to the transfer, which became effective January 2, 2008.   Additional facts will be set forth as needed.

The defendants filed a motion for summary judgment and memorandum in support on January 10, 2011.   The defendants seek summary judgment on counts one through seven of the plaintiff's amended complaint, filed October 3, 2008.   The operative complaint alleges:  (1) libel against Clouet;  (2) libel per se against Clouet;  (3) common law negligence against Clouet;  (4) indemnification against New London pursuant to § 7–465;  (5) violation of § 31–51q against all of the defendants;  (6) negligence, pursuant to § 52–557n, against the Board of Education;  and (7) negligence, pursuant to § 52–557n, against New London.   The plaintiff filed an objection and memorandum in opposition on February 24, 2011.   The defendants filed a reply on March 4, 2011.   Argument on said motion and objections thereto was heard on May 3, 2011.

Discussion

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   First, the court will address counts one, two, three and five.   Next, it will address counts four, six, and seven.

Counts One and Two:  Libel and Libel Per Se Against Clouet

The defendants argue that they are entitled to summary judgment on counts one and two because the statements in the e-mail from Clouet to employees of the New London public school system are not defamatory.  “Defamation is comprised of the torts of libel and slander.   Defamation is that which tends to injure reputation in the popular sense;  to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him ․ Slander is oral defamation ․ Libel, which we are concerned with in the present case, is written defamation.”  (Citations omitted;  internal quotation marks omitted.)  Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851–52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).

“To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).   For a claim of defamation to be actionable, the statement must be false.  Id., 228.   Further, “[a] defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  (Internal quotation marks omitted.)  Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004).

Moreover, “[l]ibel per se ․ is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages ․ When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation.   [She] is required neither to plead nor to prove it ․ The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him.”   (Citation omitted;  internal quotation marks omitted.)  Lyons v. Nichols, 63 Conn.App. 761, 767–68, cert. denied, 258 Conn. 906 (2001).

Based on the evidence submitted to the court in favor of and in opposition to this motion, the court is satisfied that the defendants are entitled to summary judgment on these counts.   The defendants have not published any false statements regarding the plaintiff.   The plaintiff's claims against the defendants are based solely on the December 12, 2007 e-mail.   The only mention of the plaintiff in this email is the fact that she was being transferred to the middle school, the truthfulness of which is uncontested by the plaintiff.   The email does not assign blame to any single individual for the drop-out rate problem, but rather, indicates that it will require the efforts of every staff member from the pre-K grade level to 12th grade in order to reduce the drop-out rate.   There is nothing defamatory in the email regarding the plaintiff.   As such, the statements contained in the email cannot serve as the basis for either her libel or her libel per se claim against Clouet.

Count Three:  Common Law Negligence Against Clouet

In her amended complaint, the plaintiff alleges that Clouet was negligent in one or more of the following ways:  “He incorrectly identified the plaintiff as being the cause of the high drop-out rate in the New London public school system;  He incorrectly attributed job responsibilities to the plaintiff that she does not possess;  He failed to verify if the plaintiff was the cause of the high drop-out rate before publicizing it;  and He incorrectly publicized that the plaintiff was the cause of the high drop-out rate in the New London school system.”   The defendants argue that the plaintiff's negligence claim is addressed by the exclusivity provision of the Workers' Compensation Act, § 31–284(a).   In the alternative, the defendants argue that they are entitled to summary judgment because the plaintiff cannot establish breach of a duty owed to her by the defendants.

As to the defendant's first argument, § 31–284(a) provides, in relevant part:  “An employer ․ shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment ․” Section 31–275(16), which defines terms within the Act, states:  “(A) ‘Personal injury’ or ‘injury’ includes, in addition to accidental injury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee's employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.  (B) “Personal injury” or “injury” shall not be construed to include ․ (iii) A mental or emotional impairment that results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.”

The injuries alleged in the present case are not caused by an accident, repetitive trauma or acts, or an occupational disease and, therefore, are not covered by the Workers' Compensation Act. Thus, the plaintiff is not barred by the exclusive remedy provisions of § 31–284(a) from asserting a common law negligence claim against the defendants.   As a result, the court will address the defendants' alternative argument in regard to this count.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ [T]he existence of a duty of care is an essential element of negligence ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.”  (Citations omitted;  internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139–40, 2 A.3d 859 (2010).

The defendants point to the collective bargaining agreement, which regulates the terms and conditions of the plaintiff's employment with the defendants, as being the source of the defendants' duty to the plaintiff.   In regard to this agreement, the plaintiff does not allege that the agreement was breached and “does not seek any remedy pursuant to the rights and obligations of the Collective Bargaining Agreement.”   In fact, “[t]he plaintiff agrees that the defendants were within [their] rights under the Collective Bargaining Agreement to transfer the plaintiff to a new position at [the] Middle School.”   Further, the Board of Education's policy expressly allowed for the plaintiff's transfer.   In conceding that the collective bargaining agreement was not breached, the plaintiff argues that the defendants breached their duty of reasonable care in announcing the plaintiff's transfer via e-mail.   Specifically, the plaintiff points to the Board's policy concerning “Acceptable Computer Network Use.”

There is no genuine issue of material fact that Clouet's e-mail announced a transfer that was permitted under the collective bargaining agreement and the Board's policy.   The email truthfully asserted that effective January 2, 2008, the plaintiff would be transferred to the middle school.   As previously discussed, this statement was not libelous.   The court is satisfied that an e-mail from a superintendent announcing staff transfers is in line with the Board's computer policy.   Clouet is entitled to summary judgment as to the plaintiff's negligence count because the plaintiff cannot establish a legally recognized duty that was breached by Clouet in the manner in which he made and/or announced her transfer.

Count Five:  Violation of § 31–51q Against All Defendants

Section 31–51q states:  “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 attorneys fees as part of the costs of any such action for damages.   If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney's fees to the employer.”

“Section 31–51q protects from retaliatory discharge an employee who invokes constitutionally guaranteed free speech rights that, in turn, protect statements that address a matter of public concern.”  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 776, 734 A.2d 112 (1999).  “In order to plead a violation of Section 31–51q, the plaintiff must allege:(1) that [she] was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution;  (2) that [she] was fired on account of [her] exercise of such rights;  and (3) that [her] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [her] bona fide job performance or with [her] working relationship with [her] employer.”  (Internal quotation marks omitted.)   Sierra v. State, Superior Court, judicial district of Hartford, Docket No. CV 00 0803588 (June 4, 2001, Beach, J.) (29 Conn. L. Rptr. 734, 736).

In count five of her amended complaint the plaintiff alleges that the following provides the basis of her § 31–51q claim against the defendants.   She alleges that in May 2007 and in October 2007, she was instructed to “manipulate grades and/or credits of student(s) enrolled at New London High School” and that she, “through written correspondence and oral statements, communicated to her direct supervisors that the alteration of student grades ․ was an unethical action.”   She also refers to Clouet's December 12, 2007 email and her January 2, 2008 transfer to the middle school.   Finally, she alleges that as a result of this transfer, she was removed from her position as the “Public Relations Director” at the high school.

On December 21, 2007, the plaintiff sent an e-mail to Daniel Sullivan, the principal of New London High School, which represented that a student graduated in June of 2007 without the requisite credits and that the matter remained unresolved.   The plaintiff sent this communication so that someone would look into the matter.   The court has also been provided with a correspondence from the plaintiff, dated March 31, 2003, which is not referred to in her amended complaint and as such, will not be addressed by the court.

As to this count, the defendants are entitled to summary judgment for several reasons.   As to the plaintiff's claim that Clouet violated § 31–51q, that statute does not provide for individual liability.  “While no appellate court of this state has had occasion to consider the question of whether § 31–51q creates individual liability in any person other than the employer, the federal district court in Nyenhuis v. Metropolitan District Commission, [604 F.Sup.2d 377, 384–85 (D.Conn.2009) ], held that that statute by its terms applies only to the employer.   Skaats v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 08226902 (September 4, 2009, Aurigemma, J.) (finding other employees were not employers and could not be held personally liable under § 31–51q).   See also Maisano v. Congregation Or Shalom, Superior Court, judicial district of New Haven, Docket No. CV 07 4027175 (January 26, 2009, Holden, J.) (47 Conn. L. Rptr. 152) (granting motion to strike counts against individual employees or agents because § 31–51q applies only to employers by its plain language);  Holub v. Babcock, Superior Court, judicial district of Fairfield, Docket No. CV 95 0319683 (June 27, 1996, Grogins, J.) (denying motion to strike because owner of company falls within definition of employer in § 31–51q).”   Ortega v. All–Star Transportation, LLC, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 09 5008684 (December 17, 2009, Bellis, J.) (49 Conn. L. Rptr. 51, 53).   Therefore, the plaintiff's § 31–51q claim against Clouet must fail.

As to the plaintiff's § 31–51q claim against New London, the defendants argue that the city is not the plaintiff's employer.   Thus, while the plaintiff may bring a § 31–51q claim against the Board, it may not assert one against New London.   The plaintiff has offered no opposition to this argument and as such, New London is also entitled to summary judgment on this count.

Finally, the court will address the plaintiff's § 31–51q claim against the Board.   The court need not decide whether the plaintiff, in her December 21, 2007 e-mail to Daniel Sullivan “exercis[ed] rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution.”   Suffice to say that the court agrees with the defendants that the plaintiff's § 31–51q claim against the Board must fail because there is no genuine issue of material fact that the plaintiff was not discharged or disciplined.   As to the latter, one Superior Court noted that “there is no appellate definition of ‘discipline’ in the context of § 31–51q ․” Charron v. Griswold, Superior Court, judicial district of New London, Docket No. CV 06 5000849 (December 14, 2009, Peck, J.).

Thus, “[i]n determining whether the failure to promote constituted ‘discipline’ within the meaning of § 31–51q, the court [in Bombalicki v. Pastore, Superior Court, judicial district of New Haven, CV 03 78772 (May 10, 2000, Blue, J.) 27 Conn. L. Rptr. 183, affd on other grounds, 71 Conn.App. 835, 804 A.2D 856 (2002) ] examined the dictionary definition of ‘discipline’;  the legislative history of § 31–51q;  the statutory text;  analogous statutes using the term ‘discipline’;  and policy considerations.   Thus, the court stated that ‘[d]iscipline’ involves affirmative acts of punishment that ․ leave the recipients in a less happy state than that which they enjoyed before the punishment began.   A withholding of a benefit—even a benefit that was due or promised—does not fit this pattern.  ‘Discipline’ is an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness.”   (Internal quotation marks omitted.)   McIntyre v. Fairfield University, Superior Court, judicial district of Fairfield, Docket No. CV 02 0391471 (March 3, 2003, Doherty, J.) (34 Conn. L. Rptr. 219, 221).

Neither her December 21, 2007 e-mail nor her January 2, 2008 transfer from the high school to the middle school, resulted in any change to her salary or to her fringe benefits.   In her amended complaint, the plaintiff alleges that she was discharged from her duties as the “Public Relations Director” at the high school.   The defendants argue that “Public Relations Director” was not a position, but rather an assignment for which a small stipend is provided.

In regard to this argument, the plaintiff herself provides the court with a July 12, 2007 letter from Ivan Sadler, Director of Human Resources and Operations, which informed her that she was appointed as the Public Relations Director at New London High School for the 2007 to 2008 academic year for a salary of $1,077.00.   Moreover, the plaintiff's deposition reveals that her union, the Professional Secretaries Association of New London Public Schools, did not file a grievance on her behalf.   Despite the plaintiff's request, the union refused to file a grievance because her transfer was not considered a reprimand or demotion and was not in violation of the collective bargaining agreement.   In light of this evidence, the court agrees with the defendants that there is no genuine issue of material fact that the plaintiff's § 31–51q claim must fail because she was not disciplined in any manner.

Count Four:  Indemnification against New London pursuant to § 7–465

Section 7–465(a), in relevant part, states:  “Any town, city or borough ․ shall pay on behalf of any employee of such municipality ․ all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property ․ This section shall not apply to libel or slander proceedings brought against any such employee and, in such cases, there is no assumption of liability by any town, city or borough ․”

In order for New London to be liable under § 7–465(a), there must be a finding of liability against Clouet as to the plaintiff's negligence count;  the libel counts are expressly excluded from the statute's coverage.   As discussed above, Clouet is entitled to summary judgment on the plaintiff's negligence count.   Therefore, New London cannot be found liable under this statute, and, accordingly, it is entitled to summary judgment on count four.

Counts Six and Seven:  Negligence, pursuant to § 52–557n, against the Board and New London

Section 52–557n, in pertinent part, states:  “(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ․ (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ․ (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

In counts six and seven, the plaintiff alleges that:  “The injuries to the plaintiff, were caused by the negligence and carelessness of the defendant, Clouet, and the agents, servants, employees, and/or board members of the defendants, the Board of Education and the city, through the acts or omissions in the operation of the New London school system in one or more of the following ways:  In failing to supervise its agents, representatives, or employees to ensure that they do not pressure other employees into taking unethical action or action contrary to public policy;  In failing to develop, maintain, oversee, and monitor a reporting system for employees who were pressured by other employees to take unethical action;  and In failing to provide any adequate safeguards and/or protection for employees who report unethical action to their direct supervisors.”

“[M]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).  “Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint ․ [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52–557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.”  (Internal quotation marks omitted.)  Bonington v. Westport, supra, 297 Conn. 307–08.

From the plaintiff's complaint, it is clear that the acts complained of are discretionary given that “[t]he hallmark of a discretionary act is that it requires the exercise of judgment.”  (Internal quotation marks omitted.)   Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006);  see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988) (considerations of who to hire, how to train such people, and how to supervise employees are decisions requiring use of judgment and discretion).   As a result, the Board and New London are entitled to summary judgment as to counts six and seven.

Order

For all of the foregoing reasons, the defendants' motion for summary judgment is hereby granted in its entirety.

Devine, J.

Devine, James J., J.