Patrick T. McMahon v. City of Middletown (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BACKGROUND

This vigorously contested matter arises out of the removal of the plaintiff, Patrick McMahon, as the acting chief of police for the city of Middletown, Connecticut, and the subsequent termination of the plaintiff as the deputy chief of police in said city.   The plaintiff's Substitute Revised Complaint, dated September 17, 2012, sets out his claim in two counts.   The First Count relates to termination of employment without just cause.   That Count alleges fact relating to the appointment of the plaintiff as Acting Chief of Police of the city of Middletown while retaining his permanent position of Deputy Chief of Police.   It alleges various facts relating to the Middletown political scene and incidents leading to the plaintiff's termination of employment.   The Second Count deals with the plaintiff's claim of breach of the covenant of good faith and fair dealing, alleging that the defendant city owed such a covenant to the plaintiff relating to his employment contract and that it had been violated.   After various interlocutory pleadings, the defendant, City of Middletown, filed a Motion for Summary Judgment as to the first and second counts of plaintiff's complaint dated September 17, 2013.   A hearing was held in this court at New London on February 18, 2015, at which the parties were heard in argument to the court.   Both parties were well represented by counsel.   Voluminous documentation was filed in advance by both parties.

THE LAW

“Summary judgment is a method of resolving litigation when 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).

“While [a party's] deposition testimony is not conclusive as a judicial admission;  General Statutes § 52–200;  it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact.”  Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).   Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

“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.)   Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  (Internal quotation marks omitted.)  McKinney v. Chapman, 103 Conn.App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).

“Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)   Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1979), citing Practice Book § 17–46.  “It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard.”  Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

When a contract of employment contains an express or implied agreement that an employee cannot be terminated without just cause, the employer cannot terminate the employee for a reason that is either arbitrary or capricious or made in bad faith.  Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980).  “Although just cause substantially limits managerial discretion, this simply means that employers are forbidden to act arbitrarily or capriciously.   In other words, an employer who wishes to terminate an employee for cause must do nothing more rigorous than proffer a proper reason for dismissal.”  (Internal quotation marks omitted;  internal citations omitted).   Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 539, 733 A.2d 197 (1999).

CLAIMS OF THE PARTIES

The defendant, City of Middletown, in its Motion for Summary Judgment has listed three reasons for the granting of its motion:  (1) There is no genuine issue of material fact as to whether the plaintiff was terminated for just cause;  (2) There is no genuine issue of material fact as to Plaintiff's claim for breach of the covenant of good faith and fair dealing;  and (3) Lack of subject matter jurisdiction because plaintiff did not exhaust administrative remedies by appealing the finding of just cause to arbitration as required by Section 11 of the Personnel Rules.

Plaintiff, on the other hand, claims that there are several issues of material fact relating to the determination of “just cause” and the determination of his claim for breach of covenant of good faith and fair dealing.   Plaintiff disputes the claimed requirement for arbitration which the defendant alleges is required by the Personnel Rules.

DISCUSSION

The defendant has raised the issue of the jurisdiction of the court by claiming that the plaintiff was required by Section 11 of the Personnel Rules to seek arbitration before bringing the action.

That claim is based upon the terms of those rules which provide an alternative for the terminated employee to go to arbitration or the superior court.   The claim is made by the defendant that this court cannot obtain jurisdiction from the Personnel Rules.   The city cites the case of Danzinger v. Demolition Bd. Of City of Stamford, 18 Conn.App. 40 (1989) but that case is inapposite being an administrative appeal and not a contract action for termination of employment.

The court rejects the defendant's claim and finds that the Superior Court does have jurisdiction to determine the matter.   This ruling is consistent with this court's prior ruling on the defendant's Motion to Strike, dated August 7, 2013, which this court takes to be the law of the case.   That prior ruling was based upon a finding that Count One of the plaintiff's complaint is not an appeal but a plenary action for breach of contract.

The Motion for Summary Judgment of the defendant, City of Middletown, is denied as it relates to both the First and Second Counts of the Plaintiff's complaint of September 17, 2013, for the following reasons.

First Count:  Just Cause

There is no dispute that under the appropriate city rules the plaintiff's employment could only be terminated for “just cause.”   Section 11 of the Cities' Personnel Rules, dealing with “Separation of Service” includes a definition of just cause.

Separation of Service

Employees covered under this policy are not considered “at will” employees.   Separation of service must meet standards as set forth under “Just Cause.”   For definition purposes, Just Cause shall mean the following:

1.  Is there substantial evidence that the employee committed the offense charged?

2. Did the employer give the employee forewarning that this conduct was unacceptable and could lead to discipline?

OR

3.  Is the offense so serious that any employee may properly be expected to know that such conduct is improper and punishable?

4. If the employee has been disciplined for breaking a rule, is that rule reasonably related to orderly, efficient and safe operation of the employer's organization?

5. Has the employer applied the rules, orders and penalties evenhandedly and without discrimination to all employees?

6. Was the degree of discipline administered appropriate considering (a) the seriousness of the offense, (b) any extenuating circumstances and (c) the employee's work record and seniority?

Separation of service of any defined, non-bargaining position employee will be for cause, but in no case may anyone be removed for political reasons.   In the event of dismissal of any director, the Mayor shall notify said director in writing of such action and the reasons therefore not more than one month prior to the effective date of such dismissal.

Any employee separated for “Just Cause” is entitled to appeal their separation through the American Arbitration Association (AAA) or Superior Court.   The cost for Arbitration shall be equally shared between the City and the employee.   In the event the employee is successful in defending a separation action, the City shall reimburse the employee for any out of pocket costs assumed including but not limited to legal fees.   The Police Chief, pursuant to Connecticut General Statute § 7–278 shall not be terminated without cause as defined by the Statute.

In the event that the employee agrees to proceed in such manner, an employee separated for “Just Cause” may request a hearing before the Common Council on the separation.   The exercise of this option shall not bar the employee's right to further appeal the matter to AAA or Superior Court.

Intent to resign.—Defined, non-bargaining positions are to give at least 3 weeks notice and if less notice is given, the defined, non-bargaining position personnel will lose 25% of unused sick time.

In its brief the defendant starts the argument that the plaintiff's termination satisfied the just cause requirement with the claim that evidence that the plaintiff was drinking alcoholic beverages while off duty, wearing a badge and carrying a visible gun constituted “just cause” for termination.   There is conflicting evidence as to what the plaintiff was drinking.   The conflict itself in various of the plaintiff's statements is claimed by the defendant as further evidence supporting the just cause claim.

This evidence is similar to the social worker's statement in Martinez because in that case, the defendant's argument was that the inconsistencies in the victim's statements to the social worker could give the inference that the victim was lying.  State v. Martinez, supra, 295 Conn. 774.   The court rebuffed that argument by pointing out that a recantation by a victim does not equate to a lie.  Id.;  see also State v. Morales, 45 Conn.App. 116, 125, 694 A.2d 1356 (1997) (“[a] poor or flawed memory by [the victim] in making an accusation is not sufficient to supply evidence of falsity”), appeal dismissed, 246 Conn. 249, 714 A.2d 677 (1998).   In the present case, although there are department reports indicating that the victim gave inconsistent statements regarding the 1992 incident, the defendant does not offer any link between these inconsistencies and the mother's statements, nor would such inconsistencies necessarily support a conclusion that the victim was lying.   See State v. Martinez, supra, 774.   Further, the defendant fails to offer any other foundation, such as eyewitness observations, on which the victim's mother may have based her statement.  State v. Clifford P., 124 Conn.App. 176 (2010) (emphasis added).

But the plaintiff points out in his argument that neither the Personnel Rules of the city or any other written policy prohibits the drinking of alcoholic beverages under those off duty circumstances.   Also there is evidence that a former Mayor of the City had indicated to the plaintiff on at least one occasion that drinking at social events was not a problem.   The court finds that there is a genuine issue of material fact with regard to whether the conduct which is supported by the defendant's documentation does in fact constitute just cause as defined in Section 11, above.

Also, on that same issue, there is no evidence that the plaintiff was “forewarned” that the conduct was unacceptable and could lead to discipline (not to mention termination).   That calls into play the alternative of paragraph 3 of section 11 of the Rule which requires that, to constitute “just cause” the offense is “so serious that any employee may properly be expected to know such conduct is improper and punishable” (emphasis added).   The court finds that there is a genuine issue of material fact as to whether the conduct relied upon by the city is “so serious.”

Next, the defendant claims support for its Motion for Summary Judgment from what it alleges is the evidence of the plaintiff's untruthfulness.   The documentation provided in this regard consists of various statements the plaintiff made about his use of alcohol at various times.   We must bear in mind that inconsistencies and contradictions within a witness's testimony or between that testimony and other evidence do not necessarily mean that the witness is lying.   Failures of memory may be the reason for some inconsistencies and contradictions;  also, it is not uncommon for two honest people to witness the same event, yet perceive or recall things differently.   The court finds that there is a genuine issue of material fact as to whether the plaintiff was being untruthful or simply recalling the circumstances differently at different times.

Lastly, the defendant claims a statement of the plaintiff indicated his intention to “retaliate” against any employee who spoke ill of him.   That claim comes from the wording of a Press Release.

That Press Release said:

Finally I would like to be clear on this point.   When any person, group or party attacks my good name and professional reputation they are in for a fight.   I will challenge any and all allegations about my “credibility” from any person, regardless of the position, rank or office they hold.   I look forward to an independent, objective and timely investigation to clear my name and to hold those accountable who have made knowingly false accusations.

The court finds that the press release relied upon is subject to more than one interpretation and because of that creates a genuine issue of material fact as to the meaning of the words used, even if they can be properly attributed to the plaintiff.

Second Count:  Breach of the Covenant of Good Faith and Fair Dealing

There is no dispute as to the existence of a covenant of good faith and fair dealing with regard to the contract of employment enjoyed by the plaintiff.   It is well settled that statements in an employer's personnel manual can create either an express or implied contract between employer and employee.  Gaudio v. Griffin Health Servs.   Corp., 249 Conn. 523, 532, 733 A.2d 197, 204 (1999).  “[E]very contract carries an implied duty requiring that neither party do anything that will injure the other to receive the benefits of the agreement.”  (Internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (2004).  “This principle is called the implied covenant of good faith and fair dealing.   The implied covenant of good faith and fair dealing exists in every contract.”   Hirschfeld v. Machinist, 151 Conn.App. 414, 427, 95 A.3d 1167, 1174 (2014).

To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith ․ Bad faith in general implies either actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.

(Emphasis in original;  internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432–33, 849 A.2d 382 (2004).

The defendant has two claims with respect to that allegation by the plaintiff.   First, the city claims that an allegation of breach of the covenant of good faith and fair dealing is an intentional tort.   And, the claim goes, as such the city enjoys the benefit of the doctrine of governmental immunity and cannot be held liable.   The defendant cites several cases which are inapposite.   The court finds for this purpose under these circumstances such a claim is a contract claim, not a tort claim and, therefore, not covered by the doctrine of governmental immunity.   As an alternative claim the defendant city claims in their brief that because, it would argue, the first count should fail the second count is derivative and would also fail.   Wherever the outcome of that logic would lead us, it is not helpful to the defendant because the court has not granted the summary judgment with respect to the first count.   Moreover, the defendant city has claimed that the plaintiff has no evidence of bad faith, but simply “self-serving assertions” with no evidence to support them.   Here the plaintiff points to the admission of the mayor who fired him that the mayor had a prior position in opposition to the plaintiff for various reasons before the specific controversy giving rise to this litigation arose.   Also there is evidence in sworn depositions that the continued service by the plaintiff was a controversy in a political election which was being held at or around the time of the termination of the plaintiff.   The plaintiff points also to the evidence that the mayor did not follow up any of the claims made by the plaintiff during the Laudermill Hearing.   Plaintiff also points out that the decision to terminate him was made in what he claims was 3 seconds after the hearing at which his views were to be heard, and also that he was ordered to bring his city issued gun, badge and vehicle to the hearing suggesting that the decision was already made before he had an opportunity to give his views on the matter.

Under these circumstances, the court finds that there is a genuine issue of material fact as to whether or not the defendant acted in bad faith in the termination of the plaintiff.

The defendant's Motion for Summary Judgment is denied.

Leuba, JTR

Leuba, Robert C., J.T.R.