Schwartz v. Anderson

98 F.Supp.3d 460

Daniel R. SCHWARTZ, Plaintiff

v.Gregory J. ANDERSON, Cecile L. Baccanale, Michael J. Eagen, Donna B. Munroe, Peter J. Nicholls and Richard A. Simoniello, Defendants.

Case No. 3:10–CV–0644 RNC.

United States District Court, D. Connecticut.

Signed March 29, 2015.

John R. Williams, Rose Longo–McLean, John R. Williams & Associates, LLC, New Haven, CT, for Plaintiff.

Antoria D. Howard, Carolyn Ennis, Josephine S. Graff, Attorney General's Office, Hartford, CT, for Defendants.

RULING AND ORDER

ROBERT N. CHATIGNY, District Judge.

Plaintiff Daniel R. Schwartz brings this action pursuant to 42 U.S.C. § 1983 against six employees of the University of Connecticut (“UConn”) alleging that his employment at UConn was terminated because he engaged in protected speech. The defendants have moved for summary judgment principally on the grounds that the termination did not violate the First Amendment and they are entitled to qualified immunity. I conclude that even if plaintiff's speech could be viewed as meriting protection under the First Amendment in one or more instances, a reasonable official in the defendants' position could think otherwise and thus they are entitled to qualified immunity as a matter of law.¹

I. Background

The following account draws from the largely undisputed facts, with any contested points resolved in favor of the plaintiff. The defendants are or were UConn employees connected with the university's animal research program. At the relevant times, Gregory Anderson served as Vice Provost for Research and Graduate Education and Dean of the Graduate School; Cecile Baccanale directed UConn's Office of Animal Research Services (“OARS”) (and supervised the plaintiff in his work between July 2007 and September 2008); Michael Eagen acted as a University Labor and Employment Specialist; Donna Munroe was UConn's Vice President for Human Resources and Payroll; Peter Nicholls was the Provost and Executive Vice President for Academic Affairs; and Richard Simoniello was the University's Program Director for Animal Care Services and Compliance. ECF No. 39–2 at 1–2.

In 1995, plaintiff began working part-time as a veterinarian at a UConn animal research facility. The following year he accepted a full-time position as an Attending Laboratory Animal Veterinarian. Id. at 2. As an Attending Veterinarian, his duties included diagnosing and treating sick and injured research animals, working with federal and state regulatory agencies to ensure compliance with law, developing programs to train staff, and advising his superiors and the University about any failures to meet regulatory standards. ECF No. 42, Ex. 4. In 1998, he became the first Director of the newly created OARS, a UConn office that performs scientific research using animals. ECF No. 39, Ex. G at 20.

The parties agree that after 1998, plaintiff and his superiors were often at odds. He was removed as Director of OARS in 2000. Id. In June 2001, the OARS Interim Director reviewed plaintiff's performance and found that although he was skilled in animal medicine, he was failing to discharge his duties in certain respects. ECF No. 39, Ex. C:1. The Interim Director indicated in a memorandum that plaintiff failed to meet regularly with other members of staff, did not consistently aid fellow workers in carrying out their responsibilities, and cultivated a “vindictive” and “unprofessional” attitude. Id. In 2002, Vice Provost Ian Hart wrote a letter to the plaintiff citing many of the same concerns and criticizing plaintiff's “apparent unwillingness to accept what is intended as constructive criticism.” ECF No. 39, Ex. C:3. In the letter, Hart cautioned that “a second year of poor evaluations will cause us to seriously review your overall competency for the position of Attending Veterinarian.” Id.

After several years of relative calm, the relationship between plaintiff and his employer began to deteriorate again. In late 2005 or early 2006, OARS created a new job description for plaintiff that decreased some of his responsibilities and seems to have eliminated his duty to monitor OARS's compliance with federal and state guidelines. ECF No. 42, Ex. 5. The next month, defendant Anderson reprimanded plaintiff by letter after he refused to provide a health certificate for laboratory mice that UConn was shipping overseas. The letter warned plaintiff that “further similar incidents may result in disciplinary action up to and including dismissal for cause.” ECF No. 39, Ex. C:7. A similar communication followed in May, this time because plaintiff had refused to assist a colleague who requested his aid. ECF No. 39, Ex. C:5. Following these incidents, UConn denied plaintiff a salary adjustment in August 2006, but its decision was ultimately reversed after a union grievance. ECF No. 42–1 at 4.

In December 2007, Anderson chastised plaintiff again, this time for denying another veterinarian's request to euthanize a rabbit, making an “untrue and disparaging remark about a colleague” in an e-mail, and rebuffing superiors' requests to work on weekends and holidays. ECF No. 39, Ex. C:6. The following July, defendant Baccanale e-mailed defendant Eagen to report that plaintiff had refused to tend to an injured mouse, which threatened to compromise an important research project. ECF No. 39, Ex. M. (Plaintiff disputes the accuracy of this report.) UConn placed plaintiff on paid administrative leave on July 29, 2008, and terminated his employment that September. ECF No. 42–1, at 4. Defendants state that plaintiff was fired because he had a long record of substandard performance and disagreeable behavior.

Plaintiff contends that UConn terminated his employment because he made a habit of notifying superiors and outside entities about serious problems within OARS. He cites a number of e-mails and phone calls he initiated to various individuals, some affiliated with the University and some not, concerning such matters as the proper treatment of laboratory animals and the protocol for accessing controlled substances. Plaintiff does not dispute that his superiors reprimanded him on a number of occasions between 1996 and 2008, but he asserts that they did so chiefly to retaliate against him for whistleblowing. He identifies four complaints that occasioned retaliation by his superiors.

A. Drug Control Violations

Veterinarians at OARS used a number of controlled substances to treat research animals. As a matter of protocol, both the drugs and a binder used to log their use were required to be kept under lock and key. In June 2005, plaintiff became concerned that OARS employees were neglecting to comply with this requirement.² He therefore placed all of OARS's controlled substances and the log book in a cabinet secured with a bicycle lock. ECF No. 39, Ex. J–4(1). Plaintiff hid the key to the lock and disclosed its location to no one but OARS Director Doug Stone (his boss) and one other employee. When Stone twice left the cabinet unlocked and on another occasion permitted an employee who was not listed on the drug registration to access the controlled substances, plaintiff told Stone he was no longer allowed to access the cabinet and hid the key in a new location. Id. Stone demanded to know where it was, and plaintiff e-mailed the Drug Control Division of the Department of Consumer Protection (“DCP”) to ask for guidance. Id.

Plaintiff ultimately capitulated and gave Stone a key to the bicycle lock. But Stone soon left the records unsecured again. Plaintiff e-mailed a supervisor, who forwarded the e-mail to defendant Nicholls. Nicholls's reply indicated that plaintiff had acted properly in contacting DCP and suggested that he should alert the University Police if he suspected criminality. Id.

B. Drug Registration Violations

OARS's state registration placed restrictions on the facility's use of controlled substances. OARS was not permitted to distribute drugs to other laboratories, and only employees listed on its registration were allowed to access controlled substances. ECF No. 39, Ex. J–4(2). In February 2007, plaintiff noticed that the log book indicated that OARS had distributed drugs to another laboratory the previous May. He responded to the violation with an e-mail to Eagen and defendant Munroe, neither of whom initiated an investigation. Id.

On July 20, 2007, plaintiff noticed another violation. An Animal Care Manager named Teresa Samuels had placed her initials in the controlled substances log even though she was not listed on the current registration. (At that time, the registration was under the name of defendant Simoniello.) Id. Plaintiff called a DCP agent, Gerald DeStefano, to find out whether Samuels was authorized to access drugs. No investigation followed. Plaintiff alleges, however, that his superiors learned about his contact with DCP: the agenda for a September 2007 meeting between Anderson and Nicholls lists as an item “Consumer Protection Agency—Senior Drug Control Agent meeting Thursday Whistle Blowers Policy—Schwartz.” Id.

A similar incident occurred in May 2008. After seeing Samuels's initials on the drug log, plaintiff alerted DeStefano. Some time later, DeStefano told plaintiff that the DCP deals with such incidents by contacting the licensee, informing the licensee of the complaint, and “remedy[ing] the complaint in the least intrusive manner possible.”

C. Rabbit Euthanasia

On July 11, 2007, Baccanale sent plaintiff an e-mail asking him to euthanize three rabbits using a drug called Euthasol. Instead of performing the procedure, plaintiff prepared a response arguing that carbon dioxide gas is an acceptable agent for euthanizing rabbits. ECF No. 39, Ex. K. In his e-mail, plaintiff discussed statements from various research protocols that call for the use of carbon dioxide to euthanize pregnant rabbits unable to deliver their young. (Neonates evidently resist the effects of carbon dioxide better than adults, so an adult female may be euthanized with carbon dioxide without harming her...