Horvath v. City of Hartford

178 Conn.App. 504

176 A.3d 592

John K. HORVATH

v.CITY OF HARTFORD

AC 39132

Appellate Court of Connecticut.

Argued September 20, 2017

Officially released December 12, 2017

Richard J. Padykula, with whom, on the brief, was Leon M. Rosenblatt, West Hartford, for the appellant (plaintiff).

John P. Shea, Jr., Hartford, for the appellee (defendant).

Alvord, Prescott and Bishop, Js.

BISHOP, J.

The plaintiff, John K. Horvath, appeals from the summary judgment rendered in favor of the defendant, the city of Hartford. On appeal, the plaintiff asserts that the trial court's judgment was in error because disputed issues of material fact exist concerning whether he was retaliated against, and later constructively discharged, by the defendant in violation of General Statutes § 31–51m as a result of his whistle-blowing activities while in the defendant's employ. In response, the defendant claims that summary judgment was appropriate because, in opposition to its motion for summary judgment, the plaintiff offered no evidence that the defendant constructively discharged him by intentionally creating an intolerable work environment compelling him to resign. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. In 2011, the defendant employed the plaintiff as an assistant chief of police for the Hartford Police Department (department). At the time, the department's command structure was comprised of the chief of police, two deputy chiefs and three assistant chiefs. On April 11, 2011, in response to an internal complaint, the plaintiff requested an investigation into the actions of Neville Brooks, commander of the department's internal affairs division. In September, 2011, the city hired Marcum

LLP

to conduct an independent review of the operations of the internal affairs division. Following the release of the Marcum LLP report, the plaintiff sent a letter on December 1, 2011, to Daryl Roberts, the chief of police, setting forth his concerns regarding "numerous errors, omissions and intentional misrepresentations" contained in the Marcum LLP report.

On May 17, 2011, the Hartford city council passed a financial resolution reducing its budget by $1,750,000, including a reduction of $300,000 in department's executive command level expenses. This budget included funding for the plaintiff's position. The cuts were accomplished, in part, by the retirement of Lester McKoy, an assistant chief of police. On May 24, 2012, James Rovella, who became the interim chief of police after Roberts retired in December, 2011, informed the plaintiff that his position as assistant chief was going to be eliminated from the budget. In the same conversation, however, Rovella assured him that "his job was safe."¹

In June, 2012, the plaintiff had a series of interviews with the University of Massachusetts in Amherst, Massachusetts, for the position of chief of police and subsequently accepted the position on September 4, 2012.

The plaintiff left his employ with the department as assistant chief of police on September 21, 2012.

On May 14, 2013, the plaintiff filed a single count amended complaint alleging that the defendant had penalized him by constructively discharging him from his employment in violation of § 31–51m because "he investigated and reported, verbally and in writing, Brooks' actual or suspected violations of state law, municipal ordinance, and pertinent regulations."² Thereafter, the defendant filed a motion for summary judgment in which it claimed, inter alia, that there existed no genuine issue of material fact in support of the plaintiff's claim that he was constructively discharged. On April 13, 2016, the trial court issued a memorandum of decision granting the defendant's motion. This appeal followed. Additional facts will be provided as necessary.

I

We first set forth the applicable standard of review. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. 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.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact ... [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) McClancy v. Bank of America, N.A. , 176 Conn. App. 408, 412–13, 168 A.3d 658 (2017).

Additionally, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.... Practice Book § 17–46 provides in relevant part that affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (Citation omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell–James , 163 Conn. App. 648, 655, 137 A.3d 1 (2016). "A conclusory assertion ... does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of a motion for summary judgment." Hoskins v. Titan Value Equities Group, Inc. , 252 Conn. 789, 793–94, 749 A.2d 1144 (2000). Last, summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp. , 233 Conn. 732, 751, 660 A.2d 810 (1995).

Section 31–51m protects an employee from retaliatory discharge when the employee has complained about a suspected violation of a state or federal law or regulation. Arnone v. Enfield , 79 Conn. App. 501, 506–507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003). Section 31–51m (b) provides in relevant part: "No employer shall discharge, discipline or otherwise penalize any employee because (1) 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.... 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."

"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 in original; internal quotation marks omitted.) Brittell v. Dept. of Correction , 247 Conn. 148, 178, 717 A.2d 1254 (1998). "A claim of constructive discharge must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign."

Seery v. Yale–New Haven Hospital , 17 Conn. App. 532, 540, 554 A.2d 757 (1989). "Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge.... Through the use of constructive discharge, the law recognizes that an employee's voluntary resignation may be, in reality, a dismissal by the employer." (Citation omitted; internal quotation marks omitted.) Id. Moreover, "[i]n order to meet the high standard applicable to a claim of constructive discharge, a plaintiff is required to show both (1) that there is evidence of the employer's intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign." (Internal quotation marks omitted.) Irizarry v. Lily Transportation Corp. , 266 F.Supp.3d 600, 605, 2017 WL 3037782, *4 (2017), citing Adams v. Festival Fun Parks, LLC , 560 Fed. Appx. 47, 49 (2d Cir. 2014).³

II

On appeal, the plaintiff makes two claims: (1) that he was constructively discharged from his employment in violation § 31–51m, and (2) that he was otherwise penalized as a consequence of his whistle-blowing activities at the department in violation of the same statute. In regard to this second claim, the plaintiff asserts that "a reasonable jury could conclude that [the] defendant's actions amounted to a retaliatory penalty and discipline for the plaintiff['s] reporting of abuses of authority...." In response, the defendant argues that the court correctly rendered summary judgment as to the plaintiff's retaliatory discharge claim, and that the plaintiff's second claim is outside the scope of the complaint and has been raised for the first time on appeal. In sum, the defendant claims that the plaintiff relied solely on retaliatory constructive discharge in his pleadings and, therefore, cannot now raise additional theories of recovery that are based on discipline or penalty untethered to his wrongful discharge claim. Because we...