Cathy Cubilla v. Town of Montville et al. (2014)

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

Count one of the plaintiff Cathy Cubilla's March 12, 2012 substitute complaint alleges a violation of General Statutes § 31–51m by the defendant Town of Montville (town).   Count two alleges the town violated General Statutes § 31–51q.   Count three alleges intentional infliction of emotional distress by the town's former mayor, Joseph Jaskiewicz.   On September 17, 2013, the defendants filed a motion for summary judgment as to all three counts.   On November 8, 2013, the plaintiff filed an opposing brief, with exhibits.   The defendants filed a reply memorandum on November 18, 2013, and the motion was argued at short calendar that same day.   The plaintiff filed an amendment to her reply on November 21, 2013.

FACTS

Summary judgment is appropriate only when it is the sole conclusion a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The court views the evidence in the light most favorable to the nonmoving party.   Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).   Statements that are merely conclusions are not considered evidence.   Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Reducing the voluminous and conflicting evidence in this light, and although what follows are by no means all the facts necessary to resolve this case, there is no substantial dispute about the following facts.

In February of 1989, the plaintiff began working as an administrative secretary to the town's chief executive, whose title was “first selectman.”   (Eventually, the chief executive's title changed to “mayor.”)   Between 1989 and 2011, the number of town employees grew roughly fivefold, to about 125.   Until 2009, the plaintiff's duties (but not her written job description) gradually included more and more work in the area of personnel management, commonly known as “human resources,” a field in which the plaintiff had little training.   When, in 2003, defendant Jaskiewicz became the town's mayor, he kept the plaintiff on as his assistant.   As the number of town employees grew and the complexity of human resources management increased, the plaintiff began to advocate for the hiring of a human resources professional to handle the town's employment matters.   In November of 2009, that was done:  Katherine Christopher was hired as the town's human resources director.

In May of 2011, the plaintiff learned that the Montville Town Council planned to eliminate the human resources position.   On June 9, 2011, that was done by reducing the funding for the human resources director position to one dollar:  Ms. Christopher was soon laid off.

On the afternoon of Wednesday, June 22, 2011, the plaintiff expressed to Jaskiewicz concern about the implications of the Town Council's decision.   The details of that conversation and of Jaskiewicz's actions and volume are hotly contested.   It appears at least that Jaskiewicz responded to the plaintiff by raising his voice, throwing files twice, and telling the plaintiff loudly that, if she did not like the way things were, she should get out.   He then went into his office and slammed the door.   The plaintiff was shocked and extremely upset.   That day was her last day at that job.   She had her daughter call town hall the next two days, Thursday and Friday, to say that the plaintiff was not able to come to work.   On Monday, June 27, 2011, the plaintiff applied for unemployment compensation and, in effect, resigned from her job with the town.   Jaskiewicz received notice of the unemployment compensation claim the next day and immediately wrote the plaintiff a letter accepting her resignation.

On October 6, 2011, the plaintiff filed the initial complaint in this case with the same counts and claims as the substituted complaint.¹

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.”   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.  Id.

I. Count One Against Town of Montville (Violation of General Statutes § 31–51m)

General Statutes § 31–51m, also known as the Connecticut Whistleblower Statute, “prohibits employers from disciplining, discharging or otherwise penalizing any employee because he reports violations or suspected violations of law to a public body, or because he participates in an investigation, hearing or inquiry by a public body, or a court action.” ²  S. Harris, 14 Connecticut Practice Series:  Employment Law (2005) § 1:7, p. 50.   The general purpose of a whistleblower statute is to “protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions” given that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.”  Garcetti v. Ceballos, 547 U.S. 410, 425–26, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).

A cause of action against a municipal employer under the General Statutes § 31–51m statute consists of three elements:  (1) that the employee, or someone on his or her behalf, reported, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer;  (2) that employer discharged, disciplined or otherwise penalized the employee;  and (3) that there was a causal connection between his participation in the protected activity and his discharge.   See General Statutes §§ 31–51m(b);  see also Arnone v. Enfield, 79 Conn.App. 501, 507, 831 A.2d 260 (2003).

The town contends that the plaintiff has adduced no evidence establishing that she made a report to a public body, given that she only relayed her concerns to her supervisor, Mayor Jaskiewicz.  “An essential element of a claim under General Statutes § 31–51m is that the plaintiff reported a violation to a public body.”   Lebow v. American Chemical & Refining, Superior Court, judicial district of Waterbury, Docket No. 112554 (August 1, 1994, Sylvester, J.) [12 Conn. L. Rptr. 277].   The statute defines “public body” as “any public agency, as defined in subdivision (1) of section 1–200, or any employee, member or officer thereof, or ․ any federal agency or any employee, member or officer thereof.” ³  General Statutes § 31–51m(a)(4).   While “[t]he case law construing these definitions is not abundant”;  14 S. Harris, supra, § 1:7, p. 53;  this statutory definition is broad.   The mayor of a town would generally be an “executive ․ office of ․ [a] political subdivision of the state” or, simply, an “official ․ of [a] town.”   See General Statutes § 1–200(1)(A).   However, in this case, viewing the allegations of the substitute complaint in the light most favorable to denying the present motion, the plaintiff was reporting to the mayor her concerns about the decision, policy, plan or proposed action of the mayor himself.   The court finds nothing in the text or apparent intent of § 31–51m creating a cause of action for discipline or even discharge of a municipal employee for “reporting” to her or his supervisor that the employee has concerns about a decision, policy, plan, action or proposed action of the supervisor, no matter how deep the concern or how serious its subject may be.   In other words, for a cause of action against a municipality under § 31–51m to exist, the whistle must be blown, so to speak, to a third party:  the “public body” to whom or to which the report is made must be a third party, not the individual supervisor of the employee about whose decision, policy, plan, action or proposed action the employee is concerned.   Interpreting the statute liberally, because of its remedial nature;  Fairchild Heights, Inc. v. Dickal, 305 Conn. 488, 502, 45 A.3d 627 (2012);  does not lead to a different result because common sense still applies.   As a matter of policy, whatever salutary effect on municipal supervisors' decisions or conduct there might be in knowing there is a risk of suit against their employers under § 31–51m for disciplining an employee who reports concern about their decisions or conduct is outweighed by the prospect of litigation due to extending the statute to such reports without the clearly intended public benefit of notice of the concern to a third-party public body.   Retaliation for such “reports” or complaints may be actionable under other statutory or common-law theories, but not under § 31–51m.   There is no genuine issue of material fact regarding whether the plaintiff was engaged in an activity protected by § 31–51m, i.e., reporting her concerns to a third-party public body, the town's motion for summary judgment must be granted as to count one.

II. Count Two Against Town of Montville (Violation of General Statutes § 31–51q)

General Statutes § 31–51q “creates a statutory cause of action for damages against any employer for any employee who has been subjected to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States [c]onsitution or section 3, 4, or 14 of article first of the [c]onstitution of the state ․” ⁴ (Internal quotation marks omitted.)  Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999).  “A clear prerequisite to the application of § 31–51q, however, is that the speech at issue must be constitutionally protected ․” Schumann v. Dianon Systems, Inc., 304 Conn. 585, 600, 43 A.3d 111 (2012).   The town argues that it is entitled to summary judgment for three reasons which the court will discuss in this order:  (1) the plaintiff's speech was not protected by the state or federal constitutions;  (2) there is no evidence of a causal connection between the plaintiff's speech and Jaskiewicz's conduct;  and (3) there is no evidence that the plaintiff was discharged.

1. Protected Speech

The town contends that the plaintiff's speech was not protected because her statements were made pursuant to her duties as a town employee.   It is true that an employee's speech does not receive first amendment protection under the United States constitution if it was made pursuant to the employee's official duties.  Garcetti v. Ceballos, supra, 547 U.S. 424.   Applying Garcetti v. Ceballos, at least to the plaintiff's federal constitutional claim, the court must first “determine whether an employee is speaking pursuant to his official duties.”  Schumann v. Dianon Systems, Inc., supra, 304 Conn. 604;  see Douglas v. Mystic Motor Inn, Inc., Superior Court, judicial district of New London, Docket No. CV–13–6018304–S (December 31, 2013, Devine, J.).  “The speech need not be contemplated by the employee's formal job description ․ [O]n-the-job speech generally is pursuant to an employee's duties when it is part-and-parcel of his concerns about his ability to properly execute his duties.”  (Citations omitted;  internal quotation marks omitted.)  Schumann v. Dianon Systems, Inc., supra, 304 Conn. 614.   If the employee is speaking pursuant to his official duties then the speech is not protected by the first amendment.  Id., 616–17.   On the other hand, the first amendment protects some expressions related to one's job.  Garcetti v. Ceballos, supra, 547 U.S. 421.   True to the principles of free speech, the subject of speech need not be profound, concern scandal or illegality, or have regional let alone national moment to be protected.   Speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community ․” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d. 708 (1983).   Speech does not lose its protection because it is private rather than public.  Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415–16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).   Speech does not lose its protection because it is not confined entirely to matters of public concern.  Connick v. Myers, supra, 461 U.S. 149–50.

Returning to the pertinent factual finding, above, “the plaintiff expressed to Jaskiewicz concern about the implications of the Town Council's decision.”   As far as this court can tell, the plaintiff's speech—the exact content of which is disputed—did relate to her ability properly to execute her duties, including the new duties she was expecting to receive from Jaskiewicz.   However, as the factual finding shows, the court cannot conclude that the plaintiff's speech was confined to that ability:  if only because it would involve weighing the evidence, the court cannot conclude, as a matter of law, that the plaintiff, the Mayor's secretary, said nothing that it was not her job to say.  (Furthermore, as discussed below, the court finds Garcetti does not limit the plaintiff's rights under the state constitution to speech on topics outside her duties.)

The next concern, under both federal and state constitutional analyses, is that an employee's speech enjoys neither federal nor state constitutional protections unless it is related to a matter of public concern.  Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 811 (1968);  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 778, 734 A.2d 112 (1999).  “An employee's speech addresses a matter of public concern when the speech can ‘be fairly considered as relating to any matter of political, social, or other concern to the community ․’ “ DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003), quoting Connick v. Myers, supra, 461 U.S. 146.

The town claims that the plaintiff's speech constituted mere private complaining about the nature of her job duties.   Two years ago, examining a prior version of count two, Judge Martin found that “[t]he subject matter of the plaintiff's statements was not solely related to a private dilemma between the parties, but also concerned the assumption of significant duties by an unqualified individual that could have wide-ranging effects on town employees and the town itself.”   Cubilla v. Montville, Superior Court, judicial district of New London, Docket No. CV–11–6010874–S (February 17, 2012, Martin, J.).   Although a prior ruling in a case is not talismanic;  Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982) (key is not divergence from prior ruling but which view is right);  the plaintiff has supported her allegations with evidence and this court agrees with Judge Martin's public concern analysis.   While the standard on a motion to strike is different than the standard on this motion, only by finding that the evidence offered by the town disproved Judge Martin's pleading-based conclusion as a matter of law could this court agree with the town on this point.   That there is a dispute over exactly what the plaintiff said does not help the town because the court does not weigh the evidence on a motion for summary judgment.   See Masse v. Perez, 139 Conn.App. 794, 798, 58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61 A.3d 803 (2013).   This court finds that there is a material question of fact as to whether the plaintiff's statements to Jaskiewicz during the subject incident concerned a matter of public concern and, therefore, was protected under the first amendment of the United States Constitution.   Section 4 of article first of the Connecticut constitution ⁵ has been held to provide at least as much protection of speech as the federal first amendment.  State v. Linares, 232 Conn. 345, 378–79, 655 A.2d 737 (1995).   It follows that there is also a material question of fact as to whether the plaintiff's speech is protected by the state constitution.

In the context of public employment, the plaintiff's claim that her federal constitutional rights were violated would be subject to the limitation found in Garcetti v. Ceballos, supra, 547 U.S. 424, to speech outside her official duties.   However, a claim under § 31–51q exists if an employer “subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by ․ section ․ 4 ․ of article first of the [c]onstitution of the state.” § 31–51q.   Recent superior court decisions have disagreed as to whether the “official duties” limitation for employees set out by the United States Supreme Court in Garcetti v. Ceballos applies to the free speech provisions under the Connecticut constitution.   The town cites Judge Schuman's opinion in Cabrera v. American School for the Deaf, applying Garcetti to claims under the Connecticut constitution, and argues that our Supreme Court would likely follow Judge Schuman's analysis.   Cabrera v. American School for the Deaf, Superior Court, judicial district of Hartford, Docket No. CV–12–6035273–S (February 26, 2013, Schuman, J.) [55 Conn. L. Rptr. 637].   The town neglects Judge Peck's thorough discussion of this issue in Matthews v. Department of Public Safety, in which the court concluded that the free speech protections under the Connecticut constitution are broader than those under the federal constitution and, therefore, Garcetti did not apply.   Matthews v. Department of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV–11–6019959–S (May 31, 2013, Peck, J.) [56 Conn. L. Rptr. 262].   The present motion requires discussion of these opinions.

Both Judge Schuman and Judge Peck based their respective analyses on the six factors laid out by the Connecticut Supreme Court for determining whether a Connecticut constitutional provision is coextensive with its federal counterpart.  State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992).  “These factors are:  (1) the text of the operative constitutional provision;  (2) holdings and dicta of this court and the Appellate Court;  (3) persuasive and relevant federal precedent;  (4) persuasive sister state decisions;  (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers;  and (6) contemporary economic and sociological considerations, including relevant public policies.”  Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157, 957 A.2d 407 (2008).   Judge Schuman focused on the absence of evidence that the Connecticut constitutional framers intended to protect employment speech and cited decisions from California, Maryland, and South Dakota adopting Garcetti.⁶  Cabrera v. American School for the Deaf, supra, Docket No. CV–12–6035273–S.   Judge Schuman's opinion also shared the United States Supreme Court's concern over constitutionalizing employee grievances and stressed the other statutory and common-law remedies available to Connecticut employees for whistleblowing and wrongful termination.  Id. The court concluded that “[i]f Garcetti did not apply under the state constitution, a litigant could easily avoid [its] policy considerations merely by citing the state constitution instead of the federal constitution in raising his or her claim.”  Id.

Judge Peck, on the other hand, began by opining that the Connecticut constitution “reads as an affirmative grant of free speech to the individual, rather than a limitation on the government's right to restrict free speech as does the first amendment.”  Matthews v. Department of Public Safety, supra, Docket No. CV–11–6019959–S.   The court further emphasized the Connecticut Supreme Court's preference for a flexible, fact intensive approach to examining expressive rights, as opposed a categorical one.  Id., citing State v. Linares, supra, 232 Conn. 345.   The court animadverted that “[t]oo often those in favor of Garcetti focus on the supervisor's ability to run an office as [the supervisor] sees fit and ignore the strong interest in ensuring ‘the proper performance of government functions.’   This proper performance implies an interest that all citizens share in making sure that governmental entities are doing what they are supposed to do.”  (Emphasis in original.)  Id. The court commended the Garcetti test for its simplicity, certainty, and predictability, but ultimately determined that those virtues were outweighed by the “public's interest in receiving informed opinion.”  (Internal quotation marks omitted.)  Id. Quoting Justice Souter's dissent in Garcetti, Judge Peck stressed:  “[P]ublic employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public.   Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues ․ This is not a whit less true when an employee's job duties require him to speak about such things:  when, for example, a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory 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.”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  Id., quoting Garcetti v. Ceballos, supra, 547 U.S. 433 (Souter, J., dissenting).

After review of Matthews and Cabrera, two extraordinarily thorough opinions, this court is of the opinion that the United States Supreme Court's decision in Garcetti does not restrict employees' expressive rights under the Connecticut constitution to those which are outside their employment duties.   If an employer can tell an employee not to express something of public concern and, thus, deprive the employee of a cause of action under § 31–51q if the employee is disciplined for expressing that concern, any employer could nullify the statute.   Further discussion of the Geisler factors is unnecessary other than to adopt Judge Peck's basic analysis and paraphrase her public policy concern about separating the citizen's interest and the employee's duty when government officials have made a decision, or have taken an action, which the employee reasonably and in good faith believes to be inimical to the community's or government's interest and the employee's speech concerns that decision or action.   The law must not be interpreted so as to undermine its very purpose.   See Matthews v. Department of Public Safety, supra, Docket No. CV–11–6019959–S.

2. Causation

The town next contends that there is insufficient evidence to establish any causal connection between the plaintiff's statements and the former mayor's conduct.  “Courts in Connecticut have consistently held that the causation element of a section 31–51q claim requires that plaintiff prove that his speech was at least a substantial or motivating factor in the adverse employment action ․” (Footnotes omitted.)   14 S. Harris, supra, § 1:8, p. 70.   Accordingly, the issue is whether the plaintiff's expressing her concerns regarding the human resources position was a substantial or motivating factor in Jaskiewicz's alleged tirade causing the plaintiff to resign.   Often the causation issue seems to be one of timing.  “A causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action ․ but the inquiry into whether the temporal proximity establishes causation is factual in nature.”  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009).   In this case, the plaintiff's affidavit and the deposition excerpts offered by both parties suggest that the former mayor's aggressive conduct occurred immediately following, and as a response to, the plaintiff's expressions of concern.

The town argues that there is insufficient evidence of causation, as a matter of law, because the notice to the town of the plaintiff's unemployment compensation application stated that she resigned because of “personal reasons.”   That assumes that the only discipline in this case, for purposes of § 31–51q is the plaintiff's discharge.   Jaskiewicz's response to the plaintiff's speech, whether viewed as a tirade or merely as an admonition, appears to this court to have been a kind of discipline.   The plaintiff's stated reason for resigning—while relevant at trial with respect to the issue of constructive discharge—is not conclusive as to causation for § 31–51q purposes.   The causation inquiry concerns the motivation for Jaskiewicz's response to the plaintiff's speech, not just the plaintiff's resignation.   Accordingly, there exists a genuine issue of material fact as to whether the plaintiff's speech was a substantial or motivating factor in causing her to be disciplined within the meaning of the statute.

3. Whether the Plaintiff Was Discharged

The town argues that there is no evidence to establish that the plaintiff was discharged, given that she voluntarily resigned her position with the town.   The plaintiff concedes that she resigned, but alleges that she was constructively discharged.  “Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily ․ Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  Brittell v. Dept. of Correction, 247 Conn. 148, 178, 717 A.2d 1254 (1998).   Determining whether a reasonable person would have felt compelled to resign is an inherently fact bound inquiry not easily lending itself to summary adjudication.   In this case, the plaintiff has presented evidence that, on June 22, 2011, the former mayor screamed at the plaintiff for minutes, with red face and spittle, jabbed his finger at her face and threw files and told her, essentially, to accept the status quo or “get out.”   The court finds evidence sufficient to create a genuine issue of material fact regarding whether the plaintiff was constructively discharged.

For the above reasons, the town's motion for summary judgment as to count two must be denied.

III. Count Three against Joseph Jaskiewicz (Intentional Infliction of Emotional Distress).

Jaskiewicz, the defendant in count three, claims he is entitled to summary judgment because, as matter of law, the plaintiff cannot meet her burden of proof of intentional infliction of emotional distress.⁷  The elements of this tort are as follows:  “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Watts v. Chittenden, 301 Conn. 575, 586, 22 A.3d 1214 (2011).  “Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  (Citations omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000).   People in our society's workplaces should expect vicissitudes such as rivalries, personality conflicts, discourtesy and even significant distress but not conduct that transgresses all bounds of socially tolerable behavior.  Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002).  “In considering the threshold question for intentional infliction of emotional distress claims, Connecticut courts have also considered whether an alleged harasser was in a position of authority ․” Holmes v. East Lyme, 866 F.Sup.2d 108, 136 (D.Conn.2012).

Jaskiewicz asserts that the evidence, even considering the evidence submitted by the plaintiff on this motion, is insufficient to establish the requisite extreme and outrageous conduct.   In support, he cites decisions rejecting plaintiffs' intentional infliction of emotional distress claims based on employers' insults and generalized abuse of employees.   See, e.g., Fogarty v. Forman School, Superior Court, judicial district of Litchfield, Docket No. CV–10–6002940–S at *4 (March 10, 2011, Roche, J.) (head of plaintiff's department systematically demeaned, harassed, insulted and berated plaintiff:  intentional infliction of emotional distress count stricken);  Valencia v. St. Francis Hospital & Medical Center, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV–94–0538867–S at *8 (April 3, 1996, Hennessy, J.) (plaintiff's supervisor grabbed her arm in front of other people, pulled her into room and yelled at her:  summary judgment granted).   The plaintiff responds with decisions which have permitted such claims based on similar conduct.   See, e.g., Wilk v. Abbott Terrace Health Center, Superior Court, judicial district of Waterbury, Docket No. CV–06–5001328–S at *10–11 (August 15, 2007, Upson, J.) (plaintiff's supervisor screamed at and berated her, leaned above her threateningly, trapping her in her chair, pointed finger close to her face:  motion to strike denied;  Oppenheim v. Gruell, Superior Court, judicial district of New Haven, Docket No. CV–03–0472301–S (January 11, 2005, Corradino, J.) [38 Conn. L. Rptr. 533] (supervisor verbally abused plaintiff in two meetings in presence of co-workers:  summary judgment denied).⁸

Here, the defendant asks the court to rule that, as a matter of law, Mayor Jaskiewicz's conduct—at least yelling at the plaintiff for multiple minutes, jabbing his finger at her face and throwing down files—was not outrageous;  that it was within the bounds of socially tolerable behavior.   Only by crediting Jaskiewicz's version of events and discrediting the plaintiff's version could the court so find.   Jaskiewicz fails to bear his burden of proof of the absence of a triable issue of material fact on count three.   See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 10–11.   Jaskiewicz's motion for summary judgment on count three must be denied.

The defendants' motion for summary judgment (# 127) is granted as to count one and denied as to counts two and three.

Cole–Chu, J.

FOOTNOTES

FN1. The substituted complaint, dated and filed March 6, 2012, alleges, “Jaskiewicz is the Mayor of the Town and has served in that position since November 10, 2003.”   In fact, by that time, a new mayor had taken office..  FN1. The substituted complaint, dated and filed March 6, 2012, alleges, “Jaskiewicz is the Mayor of the Town and has served in that position since November 10, 2003.”   In fact, by that time, a new mayor had taken office.

FN2. The relevant portion of § 31–51m(b) reads as follows:  “No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.   No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer.   The provisions of this subsection shall not be applicable when the employee knows that such report is false.”.  FN2. The relevant portion of § 31–51m(b) reads as follows:  “No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.   No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer.   The provisions of this subsection shall not be applicable when the employee knows that such report is false.”

FN3. Subsection (1) of section 1–200 defines public agency as “[a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions ․” General Statutes § 1–200(1)(A)..  FN3. Subsection (1) of section 1–200 defines public agency as “[a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions ․” General Statutes § 1–200(1)(A).

FN4. The exact language of the statute reads:  “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 [c]onstitution or section 3, 4, or 14 of article first of the [c]onstitution 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 attorneys fees to the employer.”   General Statutes § 31–51q..  FN4. The exact language of the statute reads:  “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 [c]onstitution or section 3, 4, or 14 of article first of the [c]onstitution 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 attorneys fees to the employer.”   General Statutes § 31–51q.

FN5. Sec. 4 of article first provides, “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for abuse of that liberty.”.  FN5. Sec. 4 of article first provides, “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for abuse of that liberty.”

FN6. In Matthews v. Department of Public Safety, supra, Docket No. CV–11–6019959, Judge Peck acknowledged that many other states, including Arizona, Georgia, Michigan, Ohio, and Illinois, have interpreted their constitutional free speech provisions as being coextensive with the first amendment..  FN6. In Matthews v. Department of Public Safety, supra, Docket No. CV–11–6019959, Judge Peck acknowledged that many other states, including Arizona, Georgia, Michigan, Ohio, and Illinois, have interpreted their constitutional free speech provisions as being coextensive with the first amendment.

FN7. The plaintiff claims that count three “is not based on a single incident but rather a pattern and practice of abuse and rage.”   November 8, 2013, brief in opposition to motion for summary judgment, p. 53.   She claims, “[t]his case is about frequent abusive assaults over a period of years ․” Id., p. 56.   The court has disregarded these claims in ruling on the present motion because there are no such allegations in the substituted complaint..  FN7. The plaintiff claims that count three “is not based on a single incident but rather a pattern and practice of abuse and rage.”   November 8, 2013, brief in opposition to motion for summary judgment, p. 53.   She claims, “[t]his case is about frequent abusive assaults over a period of years ․” Id., p. 56.   The court has disregarded these claims in ruling on the present motion because there are no such allegations in the substituted complaint.

FN8. “Some courts hold that [it] is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to establish the tort of intentional infliction of emotional distress ․ and other courts seem to hold that a person's status as an employee affords him or her greater protection from insult and outrage than if she or he were a stranger to [the] employer defendants ․” Oppenheim v. Gruell, supra, Docket No. CV–03–0472301–S at *9. Of course, what matters is whether the facts, case by case, meet the elements of the tort..  FN8. “Some courts hold that [it] is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to establish the tort of intentional infliction of emotional distress ․ and other courts seem to hold that a person's status as an employee affords him or her greater protection from insult and outrage than if she or he were a stranger to [the] employer defendants ․” Oppenheim v. Gruell, supra, Docket No. CV–03–0472301–S at *9. Of course, what matters is whether the facts, case by case, meet the elements of the tort.

Cole–Chu, Leeland J., J.