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On March 26, 2015, this court granted the defendants motion to dismiss with
respect to the board of selectman as defendants and counts two, six, and
seven as well as count threes due process claim. See document no. 41.
2
29 U.S.C. 621.
The remaining
Specifically, Goodmaster
Goodmaster further
On August 24,
Goodmaster.
settlement agreement.
On March 8, 2013, Goodmaster turned sixty-five years old.
Connecticut General Statute 7-430 provides for the mandatory
retirement of police officers at age sixty-five.
However, an
individual may extend his employment beyond the age of sixtyfive at his request and with the annual approval of the
legislative body.
1989.
towns having a town council, the council; for other towns, the
selectman, the common council or other similar body of
officials.
request to the BOPC to extend his employment for one year and
four months beyond his sixty-fifth birthday.
On September 13, 2012, the BOPC voted to extend
Goodmasters employment until March 8, 2014.
granted by a vote of two to one.
present for the hearing.
According to Holcomb, he
Goodmaster
At the hearing,
Ann Marie
Drugonis and Gary Bruce aver that they voted against the
extension because they were of the opinion that officers should
be retired at age sixty-five as contemplated by Conn. Gen. Stat.
7-430, and Drugonis did not want to set a precedent of
granting extensions.
Bruno contend that they denied the request based on the fact
that Goodmaster had refused the offer of a special assignment.
According to the defendants, Ann Marie Drugonis, Gary Bruce, and Alfred
Bruno were all unaware of Goodmasters previously filed suit against the
town, and Nicole Klarides-Ditria does not recall whether or not she was aware
of it at the time of the vote. Goodmaster has provided no evidence to the
contrary.
7
In response,
In September 2014,
Celotex Corp.
Am. Intl Corp., 664 F.2d 348, 351 (2d Cir. 1981) (quoting
Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1319-20
(2d Cir. 1975)).
A dispute concerning material fact is genuine if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.
963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
Cir. 1991).
Id.
Specifically, they
argue that the ADEA and the CFEPA provide state and local
governments an exception [to the bona fide occupational
qualification requirement] covering the employment of law
enforcement officers and firefighters.
He avers
434 F.3d 177, 180 (2d Cir. 2006); see 29 U.S.C. 623(a),
631(a).
The CFEPA contains a similar law enforcement exception. Conn. Gen. Stat.
46a-60(b)(1)(C) provides in relevant part: The provisions of this section
concerning age shall not apply to . . . the termination of employment of
persons in occupations, including police work and fire-fighting, in which age
is a bona fide occupational qualification. See Farrar v. Town of Stratford,
537 F.Supp.2d 332, 348 (D. Conn. 2008) (The Connecticut Supreme Court looks
to federal precedent when interpreting and enforcing the CFEPA.).
11
29 U.S.C. 623(j)(1)(B)(1).
Feldman, 434
Accordingly, the court will analyze the ADEA and CFEPA age discrimination
claims together.
11
12
Goodmaster also argues that his extension was denied because of the
potential effect on younger officers on the promotion list. However, as
explained infra, such a concern is legally justifiable under 623(j). See
Feldman v. Nassau County, 434 F.3d 177, 184 (2d Cir. 2006) (holding that
evidence that a hiring plan discriminates on the basis of age rather than
13
Cook v. CBS,
Id.13
The
13
The defendants
This
As explained
for towns having a town council, the council; for other towns,
the selectman, the common council or other similar body of
officials.
The
Miller,
delegation of power.
marks omitted).
Goodmaster denies having been offered a special assignment,
but admits that he would have rejected such an offer had one
been made.
363 F.3d 89, 109 (2d Cir. 2003) (The defendants belief on this
point ultimately may have been mistaken, but such a mistake does
not transform the basis of the defendants decision from a
genuine belief . . . to a [retaliatory] animus.).
The court concludes that, without more,15 Goodmasters
allegations do not provide evidence sufficient to avoid summary
judgment on the issue of whether the proffered explanations for
the [denial] were pretextual.
15
II.
concern.
Cir. 2015) (citing Cox v. Warwick Valley Cent. School Dist., 654
F.3d 267, 272 (2d Cir. 2011)).
Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)); see also
21
If the answer
While the
Rather, in his
The second
23
18
A. Public Concern
A matter of public concern is one that relat[es] to any
matter of political, social, or other concern of the community.
Connick v. Myers, 461 U.S. 138, 146 (1983).19
Whether an
Id. at 147-48.
In
18
Because the second complaint was filed on December 7, 2012 three days
after the board of selectman declined Goodmasters request for extension,
there is no causal connection between this particular complaint and the
adverse employment action.
19
The inquiry into the protected status of speech is one of law, not fact.
Connick v. Myers, 461 U.S. 138, 148 n.7 (1983).
24
Jackler v.
Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (citations omitted).
[A] topic is a matter of public concern for First Amendment
purposes if it is of general interest, or of legitimate news
interest, or of value and concern to the public at the time
of the speech.
20
In
Matthews v. City of New York, 773 F.3d 167, 169 (2d Cir. 2015),
a police officer complained to his precincts commanding officer
and another executive officer about a quota system that he
believed was damaging to the police departments core mission.
The court concluded that his complaint about a precinct-wide
policy was neither part of his job description nor part of the
practical reality of his everyday work as a patrol officer. Id.
at 174.
Id. at 176.
His
See Ross
v. Breslin, 693 F.3d 300, 307-08 (2d Cir. 2012) (holding that a
payroll clerks speech was not protected when her official
duties included reporting pay irregularities to her supervisor).
Further, he made those complaints directly to his superior as
part of his official responsibilities as a detective sergeant.
As such, the court concludes that the complaints made to Chief
Meltzer about the specific management issues within the
department are not protected.
28
Causal Relationship
School Dist. Board of Ed., 444 F.3d 158, 167 (2d Cir. 2006)
(internal citation omitted).
Id.
not drawn a bright line to define the outer limits beyond which
a temporal relationship is too attenuated to establish a causal
relationship between the exercise of a federal constitutional
right and an allegedly retaliatory action.
Gorman-Bakos v.
30
Cobb, 363
Though Goodmaster
escape liability.
Cir. 1998).
21
Goodmaster admitted during his deposition that he did not have any evidence
that Miller knew about [his] commentary on the police departments
mismanagement or that he was offended or upset by it. Similarly, the only
evidence that McConologue took an adverse action against Goodmaster is based
on hearsay. Goodmaster alleges that the former police commissioner Jim
Simpson told him that McConologue told Simpson that Goodmaster was 65 and .
. . ha[d] to go. Apart from the unreliability of such testimony,
McConologues statement that Goodmaster was 65 and . . . ha[d] to go is
contrary to Goodmasters allegation that she wanted his request denied due to
some retaliatory animus over his protected speech.
32
this argument.
Even if there is evidence that the adverse employment
action was motivated in part by protected speech, the government
can avoid liability if it can show that it would have taken the
same adverse action in the absence of the protected speech.
Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998); see Mt.
Healthy City School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274
(1977) (establishing the mixed-motive defense). The burden is on
the defendant to make out this defense.
Anemone v. Metropolitan
Id.
[A]
35
CONCLUSION
For the foregoing reasons, the defendants motion for
summary judgment (document no. 45) is GRANTED in all respects.
The clerk is directed to enter judgment in favor of the
defendants and against the plaintiff, dismissing the complaint
with prejudice, and to close the case.
It is so ordered this 8th day of February 2016, at
Hartford, Connecticut.
___ _/s/_____
___
Alfred V. Covello
United States District Judge
36