Burns v. Rovella

CHRISTOPHER BURNS, Plaintiff, v. JAMES C. ROVELLA, et al., Defendants.

Civil No. 3:19-cv-553 (JCH)

United States District Court, D. Connecticut

September 20, 2021

RULING ON MOTION FOR SUMMARY JUDGMENT (DOC. NO. 125) AND RELATED MOTIONS AND ORDERS (DOCS. NOS. 126, 129, 133 135, 138)

JANET C. HALL U.S. DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Christopher Burns (“Burns”) brings this action against the Connecticut Department of Emergency Services and Public Protection (“DESPP”) and several of its employees, pursuant to section 1983 of title 42 of the United States Code. See Second Am. Compl. (Doc. No. 78). Previously this court issued Rulings dismissing aspects of Burns' initial Complaint, see Ruling (“Oct. 2019 Ruling”) (Doc. No. 48) at 35-36, and aspects of his First Amended Complaint, see Ruling (“Feb. 2020 Ruling”) (Doc. No. 76) at 29-32. Burns' Second Amended Complaint asserts claims for violations of the family care provision of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., against DESPP, Commissioner James C. Rovella (“Rovella”), former Commissioner Dora B. Schriro (“Schriro”), Colonel George F. Battle (“Battle”), and Colonel Stavros J. Mellekas (“Mellekas”); and for violations of his right to due process of law, under the Fourteenth Amendment to the U.S. Constitution, against Schriro and Battle. See Second Am. Compl. ¶¶ 89-111 (Doc. No. 78).

Before the court is the defendants' Motion for Summary Judgment, as to all claims. See Defs.' Mot. for Summ. J. (Doc. No. 125); Mem. in Supp. of M. for Summ. J. (“Defs.' Mem.”) (Doc. No. 125-2); Defs.' Reply Br. in Further Supp. of M. for Summ. J. (“Defs.' Reply”) (Doc. No. 134). Burns opposes this Motion. See Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. (“Pl.'s Mem.”) (Doc. No. 132). Defendants have also filed three Motions to Seal, along with a Motion for Leave to File Excess Pages for their reply brief. Mot. to Seal (Docs. Nos. 126, 129, 135); Mot. for Permission to File Oversized Reply to Pl.'s Opp'n to Defs.' Mot. for Summ. J. (“Mot. for Excess Pages”) (Doc. No. 133). Plaintiff opposes the first Motion to Seal in part and the Motion for Leave to File Excess Pages in full. Pl.'s Mem. in Opp'n to Mot. to Seal (Doc. No. 128); Pl.'s Mem. in Opp'n to M. for Leave to File Excess Pages (Doc. No. 137). Finally, the court also addresses here its Order to Show Cause (Doc. No. 138) and plaintiff's response (Doc. No. 139).

For the reasons discussed below, the court grants the defendants' Motion for Summary Judgment. It also grants their Motions to Seal and their Motion for Leave to File Excess Pages nunc pro tunc, and it seals plaintiff's unredacted Rule 56(a)2 Statement, Memorandum of Law, and Exhibits.

II. BACKGROUND

A. Local Rule 56 Statements

At the outset, the court finds it useful to address several serious deficiencies in plaintiff's Local Rule 56(a)2 Statement.

First, plaintiff's Statement goes well beyond the page limits set out in Rule 56. Before filing their Local Rule 56(a)1 Statement, defendants appropriately filed a Motion for Leave to File Excess pages, which was granted by the court in advance of their Motion for Summary Judgment. See Defs.' Mot. for Leave to File Oversized 56(a)1 Statement in Supp. of Defs.' Mot. for Summ. J. (Doc. No. 123); Order Granting Mot. for Leave to File Excess Pages (Doc. No. 124). Defendants thereafter filed a 23-page Rule 56(a)1 Statement. Rule 56(a)2 limits plaintiff's response to “twice the length of the moving party's Local Rule 56(a)1 Statement, ” and also allows for a separate “Additional Material Facts” section of no more than nine pages. D. Conn. L. Civ. R. 56(a)2. Without leave of the court, plaintiff greatly exceeded the limits for his Rule 56(a)2 Statement by 40 pages.

Second, plaintiff inappropriately uses his denial of certain material facts brought forth by defendants to attempt to introduce new facts into the record. For example, in paragraph 40 of their Local Rule 56(a)1 Statement, defendants make the simple assertion that “Sgt. Asselin immediately notified Lt. DelGrosso, who notified his chain of command, due to the criminal nature of [the steroid allegation made against the plaintiff].” Defs.' Local R. 56(a)1 Statement at ¶ 40 (“Defs.' R. 56(a)1 Stmt”) (Doc. No. 125-1). This statement is supported by the deposition testimony of both Asselin and DelGrosso. Id. Plaintiff, however, purports to deny the paragraph in full. Pl.'s Local R. 56(a)2 Statement at ¶ 40 (“Pl.'s R. 56(a)2 Stmt”) (Doc. No. 132-1). Rather than cite evidence demonstrating that either Asselin did not notify DelGrosso or that DelGrosso did not notify his chain of command, plaintiff instead uses his denial as an opportunity to make broad-based attacks on the credibility of the individual who made the complaint and the investigation writ large.^[1] To the extent that such allegations are appropriate, they should be included in the “Additional Material Facts” section of the Rule 56(a)2 Statement. Instead, plaintiff has used his denials in an attempt to introduce new facts into the record and frustrate the nine-page limit in Rule 56(a)2(ii).

Third, plaintiff's Rule 56(a)2 Statement is replete with instances where he purports to deny or bring forth facts but does not do so properly, either because the denial is not responsive to the fact asserted or because the fact or denial is not supported by evidence that would be admissible at trial. In paragraph 115, for example, defendants assert information about administrative actions taken against another sergeant accused of wrongdoing. Defs.' R. 56(a)1 Stmt at ¶ 115. The statement in that paragraph relates only to that Sergeant, saying that “his police powers were suspended after initial investigation and prior to his arrest. He remains administratively assigned to the traffic unit with no police powers.” Id. Plaintiff attempts to deny this fact, but none of the evidence he cites relates to the sergeant the paragraph is about - it is entirely focused on Burns. Pl.'s R. 56(a)2 Stmt at ¶ 115. Similarly, in the first paragraph of his “Additional Material Facts” section, Burns alleges that he “was suspended of his police powers by [ ] Battle and Schriro on July 30, 2018 in retaliation for his using FMLA leave for his daughter.” Pl.'s Local R. 56(a)2 Additional Material Facts at ¶ 1 (“Pl.'s Additional Material Facts”) (Doc. No. 132-1). In support of this allegation, he cites to paragraph 103 of his Affidavit. Id. Paragraph 103 of the Affidavit discusses a “Connecticut State Police Trooper” who “is suspected of using and distributing illegal steroids as part of a body building enterprise.” Aff. of Christopher Burns, Pl.'s Ex. 2 at ¶ 123 (Doc. No. 1323). This is not simply an errant citation: nowhere else in the Affidavit is there support for the allegation that Battle and Schriro suspended plaintiff of his police powers to retaliate against him for his use of FMLA.

Indeed, a careful examination of plaintiff's Rule 56(a)2 Statement reveals that it is littered with instances where he makes claims that are not substantiated by evidence. For example, Burns makes much of the case of another Connecticut State Trooper who he suspects is using steroids. In his “Additional Material Facts” section, he asserts that “[t]here has been no action taken against [the trooper] despite his obvious use of steroids.” Pl.'s Additional Material Facts at ¶ 9. In support of this statement, he cites to his Affidavit, which in turn cites to exhibits 53 and 54.^[2] Exhibits 53 and 54 consist of nothing more than two photographs of the trooper in question flexing his muscles. Pl.'s Ex. 53 (Doc. No. 132-8); Pl.'s Ex. 54 (Doc. No. 132-8). Yet Burns relies entirely on these two photos to conclude that the trooper was “obviously” using steroids, and then leverages that accusation against defendants to suggest that he was treated differently than a similarly situated officer who had not taken FMLA leave.^[3]

In their Reply, defendants urge the court not to consider the plaintiff's Rule 56(a)2 Statement at all, due to these deficiencies. Defs.' Reply at 2-5. The court declines to go that far. However, where plaintiff has failed to properly deny facts; has not provided specific citations to support his denials; cites to inadmissible evidence or evidence that does not support his claims; or presents facts that are extraneous and immaterial, the court deems defendants' facts admitted, or declines to consider the facts put forth by plaintiff. The court applies this standard as it lays out the material facts below.

B. Facts

The following facts are taken primarily from defendants' Local Rule 56(a)1 Statement of Facts, and, as discussed above, from plaintiff's Local Rule 56(a)2 Statement of Facts and Additional Material Facts section when appropriately supported by admissible evidence.

Plaintiff Burns has been a Connecticut State Police Trooper since June 2001. Second Am. Compl. at ¶ 13; Defs.' Answer and Affirmative Defenses at ¶ 13 (“Defs.' Answer”) (Doc. No. 88). In 2006, he became a Detective at the Eastern District Major Crimes Unit (EDMC), and on or about November 2014, he was assigned to Troop C within the EDMC. Second Am. Compl. at ¶ 14; Defs.' Answer at ¶ 14; Defs.' R. 56(a)1 Stmt at ¶ 16; Pl.'s R. 56(a)2 Stmt at ¶ 16.

Burns has a severely disabled child who requires special care. Second Am. Compl. at ¶ 16. Because his daughter was undergoing spinal surgery, Burns sought FMLA family-care leave to care for her. Second Am. Compl. at ¶ 17. Burns' request was approved, and he began taking leave on July 11, 2018. Defs.' R. 56(a)1 Stmt at ¶ 21. His leave was extended several times until October 8, 2018.^[4] Id.

On July 12, the day after he began taking leave, Sergeant Asselin, in consultation with Lieutenant DelGrosso, submitted...