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Transcript of Goodmaster Summary Judgment
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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RONALD GOODMASTER, :Plaintiff, :
:v. ::
THE TOWN OF SEYMOUR, :TOWN OF SEYMOUR BOARD : CIVIL NO: 3:14–CV–00060(AVC)OF SELECTMEN, :W. KURT MILLER, :LUCY MCCONOLOGUE, and :MICHAEL METZLER :Defendants. :
RULING ON THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This is an action for damages in which the plaintiff,
Ronald Goodmaster, alleges that the defendants wrongfully
refused to extend his employment as a police officer in the Town
of Seymour based on his age and his outspoken opposition to the
police department‟s prior actions. The remaining claims1 are
brought pursuant to the American Discrimination in Employment
Act (“ADEA”)2; the Connecticut Fair Employment Practices Act
(“CFEPA”)3; and, in addition, the First Amendment and the equal
protection clause of the United States Constitution.
The defendants have filed the within motion for summary
judgment on counts one, three, four, and five pursuant to Rule
1 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, andseven as well as count three‟s due process claim. See document no. 41.
2 29 U.S.C. § 621.
3 Conn. Gen. Stat. § 46a-60(a).
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56 of the Federal Rules of Civil Procedure, arguing there is no
genuine dispute as to any material fact and they are entitled to
judgment as a matter of law.
The issues presented are: 1) whether Goodmaster has
established sufficient proof of subterfuge; 2) whether
Goodmaster has provided sufficient evidence of a violation of
his equal protection rights; 3) whether Goodmaster has
established sufficient proof of retaliation in the context of
the First Amendment; 4) whether the Town of Seymour can be held
liable under Monell; 5) whether the individual defendants are
entitled to qualified immunity; and 6) whether Goodmaster
sufficiently mitigated his damages.
For the reasons that follow, the motion for summary
judgment (document no. 45) is GRANTED.
FACTS
Examination of the complaint, pleadings, local rule 56
statements, the exhibits accompanying the motion for summary
judgment, and the responses thereto, discloses the following,
undisputed material facts:
The plaintiff, Ronald Goodmaster, is a former police
officer in the Town of Seymour, Connecticut. The remaining
defendants include the Town of Seymour (the “town”); the town‟s
first selectman, W. Kurt Miller; the town‟s chairman of the
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board of police commissioners (the “BOPC”), Lucy McConologue;
and the chief of the Seymour police department, Michael Metzler.
In 1989, Goodmaster began working for the town‟s police
department. In 1996, the police department promoted Goodmaster
to detective and youth officer, and in 2006, it promoted him to
detective sergeant. As a detective sergeant, Goodmaster was
responsible for “directing general duty detective work in
protecting life and property and enforcing criminal laws and
local ordinances.” His work involved, inter alia, “supervising
and participating in detective work,” “supervis[ing] and
advis[ing] detectives,” “maintain[ing] files and records with
which the Detective Division is directly concerned,”
“prepar[ing] written reports of investigations,” “appear[ing] in
court to present evidence and testify against persons accused of
crimes,” and “direct[ing] and supervis[ing] the work of a crime
investigation and mak[ing] case assignments.”
Throughout his employment, Goodmaster outwardly4 criticized
the town and its police department for “actions he perceived as
unlawful, unethical and unfair.” Specifically, Goodmaster
complained to the Chief of Police, Michael Meltzer, about, inter
alia, “the operations of the department, the mismanagement, the
problems with chain of command, problems with officers not
4 There is some dispute as to who was actually aware of Goodmaster‟scriticisms.
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completing investigations thoroughly, problems with the way
officers write reports, problems with the way paperwork is
submitted to the court, problems with the rude treatment that
citizens would receive when they walked up to the desk to speak
to the police, problems with an officer who tried to foil a drug
investigation by letting the parent of the narcotics target know
that the detective division was investigating his son,[and] . .
. an officer who had an alcohol problem.” Goodmaster further
states that he complained about Meltzer‟s alleged unprofessional
behavior to “anybody who would talk about the department.”
He also lodged several grievances via the procedures
outlined in his collective bargaining agreement.5 On August 24,
2011, he filed a complaint with the Connecticut Commission on
Human Rights and Opportunities (“CHRO”), alleging age
discrimination and retaliation for his criticisms of the police
department. The CHRO complaint and the pending grievances were
resolved via a settlement agreement, which was signed in March
2012 and ultimately closed in August 2012. On June 22, 2011,
Goodmaster filed a Freedom of Information Act complaint,
alleging that several members of the board of police
commissioners (“BOPC”), including McConologue, held an illegal
meeting to discuss an internal investigation involving
5 Specifically, Goodmaster submitted grievances with respect to “unjustdiscipline” and “failure to pay the proper pay rate” for sick time.
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Goodmaster. The complaint was later withdrawn pursuant to the
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 sixty-
five “at his request and with the annual approval of the
legislative body.” This provision became effective in July
1989. Section 7-425(3) defines “legislative body” as, “for
towns having a town council, the council; for other towns, the
selectman, the common council or other similar body of
officials.” Seymour‟s Town Charter provides that “[t]he
legislative power of the Town shall be vested in the Board of
Selectman.”
Goodmaster disputes the fact that the board of selectman is
the proper entity to decide requests for extensions because the
BOPC “is the body entrusted with personnel decisions related” to
the police department. Accordingly, Goodmaster submitted a
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
Goodmaster‟s employment until March 8, 2014. The request was
granted by a vote of two to one. Defendant McConologue was not
present for the hearing. Goodmaster states that, following the
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hearing, first selectman Miller and chief Metzler urged
McConologue to “pressure[] the Board of Police Commissioners to
change its decision.” The defendants deny that such a
conversation took place. Meltzer avers that “the only input
[he] had was to voice [his] support to the First Selectman in
regards to keeping [Goodmaster] on the force in a special
assignment.”
After reviewing the recording of the September BOPC
meeting, Miller emailed Warren L. Holcomb, Seymour‟s town
counsel, to inquire into the propriety of the BOPC‟s vote in
light of the fact that the “acting Chairman seconded the two
relevant motions.”6 In response, Holcomb informed Miller that,
pursuant to Connecticut General Statute § 7-425(3), the board of
selectman was the proper entity to decide requests for
extensions.
On October 11, 2012, the BOPC overturned its decision.
Sometime thereafter, there were several discussions about the
possibility of a special assignment in which Goodmaster could
fulfill his retirement obligations. According to Holcomb, he
spoke with Goodmaster‟s attorney, William Palmieri, on two
occasions about a possible special assignment. Goodmaster
admits that an acting lieutenant position was “mentioned” but
denies ever being offered the position. He further states that
6 Goodmaster disputes Miller‟s reasoning for contacting Holcomb.
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he would not have taken the special assignment even if it had
been offered to him.
On December 4, 2012, the board of selectman denied
Goodmaster‟s request by five votes to one. At the hearing,
there was some discussion about the possibility of a special
assignment.7 Miller further expressed concern over whether
Goodmaster‟s extension would affect younger officers on the
promotion list.
The defendants state that at least three of the members of
the board of selectman who voted to deny Goodmaster‟s request
were unaware of his previous suit against the town.8 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. Miller, Nicole Klarides-Ditria, and Alfred
Bruno contend that they denied the request based on the fact
that Goodmaster had refused the offer of a special assignment.
7 Specifically, Miller asked Goodmaster‟s attorney: “If we were to look at aspecial assignment type role where [Goodmaster‟s] skill and ability wouldbenefit the Department in multiple places . . . . why isn‟t [it] reasonablefor the Town to ask for that in exchange for the sixteen month extension?”
8 According to the defendants, Ann Marie Drugonis, Gary Bruce, and AlfredBruno were all unaware of Goodmaster‟s previously filed suit against thetown, and Nicole Klarides-Ditria does not recall whether or not she was awareof it at the time of the vote. Goodmaster has provided no evidence to thecontrary.
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This was the first extension request decided by the board
of selectman and not the BOPC. It was also the first extension
request decided during first selectman Miller‟s tenure.
On December 7, 2012, Goodmaster filed a second FOIA
complaint, alleging that the chief of police and a lieutenant
impermissibly attended an executive session of the BOPC, at
which interviews were conducted for the impending vacancy of
Goodmaster‟s position. Goodmaster also filed a grievance with
respect to the denial of his extension request. In response,
the President of the Seymour Police Union, Sergeant John
D‟Antona, advised Goodmaster that the union would not proceed
with the grievance, stating that the town “offer[ed] to put
[him] in a position in which [he] could fulfill [his] retirement
obligations for the one year requested . . . . [He] chose not to
accept the offer.”
March 8, 2013 was the last day of Goodmaster‟s employment
with Seymour‟s police department. Since then, Goodmaster sought
employment as a fire investigator. According to Goodmaster, in
January 2014, Miller “blocked [his] appointment as an unpaid
volunteer fire investigator to the . . . Town of Seymour fire
marshal‟s office.” The defendants state that Miller informed
the Chairman of the Board of Fire Commissioners that “neither
the Town nor the Board of Selectman intended to add any
additional paid or unpaid staff since they were currently
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working on a ten year strategic plan.” In September 2014,
Goodmaster began working as an unpaid fire investigator for the
Town of Bethany.
STANDARD
A motion for summary judgment may be granted “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Summary judgment is appropriate if,
after discovery, the nonmoving party “has failed to make a
sufficient showing on an essential element of [its] case with
respect to which [it] has the burden of proof.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). “The burden is on the
moving party „to demonstrate the absence of any material factual
issue genuinely in dispute.‟” Am. Int‟l Group, Inc. v. London
Am. Int‟l 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.” Aldrich v. Randolph Cent. Sch. Dist.,
963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must view all
inferences and ambiguities in a light most favorable to the
nonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d
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Cir. 1991). “Only when reasonable minds could not differ as to
the import of the evidence is summary judgment proper.” Id.
A dispute concerning material fact is not created by a mere
allegation in the pleadings, or by surmise or conjecture.
D‟Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998); see
also Stuart & Sons, L.P. v. Curtis Pub. Co., Inc., 456 F.
Supp.2d 336, 342 (D. Conn. 2006) (citing Applegate v. Top
Assoc., Inc., 425 F.2d 92, 96 (2d Cir. 1970); Quinn v. Syracuse
Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980)).
Also, “[c]onclusory allegations will not suffice to create a
genuine issue.” Del. & Hudson Ry. Co. v. Conrail, 902 F.2d 174,
178 (2d Cir. 1990).
DISCUSSION
I.
ADEA and CFEPA - Counts One and Five
The defendants first argue that “the ADEA and CFEPA
specifically allowed for the Town‟s action in terminating
Plaintiff‟s employment at age sixty-five.” 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.” In addition, they aver
that Goodmaster cannot prove subterfuge as required by § 623(j).
Goodmaster responds that the defendants incorrectly assert
that “the mere presence of the exception in the statute, absent
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any further proof by defendants, legitimizes its use.” He avers
that, “[a]lthough not the plaintiff‟s burden to present, the
record before the court here is replete with indicia of
subterfuge.” Specifically, he argues that the defendants “used
ostensibly lawful process to reverse and manipulate a decision
which displeased them, to the detriment of the plaintiff and his
rights to be considered fairly and without artifice or scheme.”
“The ADEA generally protects individuals over forty from
age discrimination in employment.” Feldman v. Nassau County,
434 F.3d 177, 180 (2d Cir. 2006); see 29 U.S.C. §§ 623(a),
631(a). Section 623(j)9 of the ADEA “permits states and their
political subdivisions, under certain circumstances, to engage
in age discrimination with respect to the hiring and firing of
firefighters or law enforcement officers.”10 Feldman, 434 F.3d
9 This particular exception has had an active legislative history. Asoriginally enacted in 1967, the ADEA did not apply to employees of state andlocal governments. See Pub. L. 90-202, § 11(b), 81 Stat. 602, 605 (1967).However, in 1974, the statute was amended to cover employees of state andlocal governments. See Pub. L. 93-259, § 28(a)(2), 88 Stat. 55, 74 (1974).In 1983, the Supreme Court held, in EEOC v. Wyoming, 460 U.S. 226 (1983),that the ADEA could apply to state law enforcement officers. As such, stateand local governments – just like private employers - were required to showthat age was a bona fide occupational qualification (“BFOQ”) in order to
impose age limitations. Congress ultimately reinstated a law enforcementexception when it once again amended the ADEA. See Pub. L. 104-208, § 119,
110 Stat. 3009 (1996). The 1996 amendment is currently in effect and appliesretroactively. Id.
10 The CFEPA contains a similar law enforcement exception. Conn. Gen. Stat. §46a-60(b)(1)(C) provides in relevant part: “The provisions of this sectionconcerning age shall not apply to . . . the termination of employment ofpersons in occupations, including police work and fire-fighting, in which ageis 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.”).
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at 181-82. Specifically, the law enforcement exception allows
age discrimination as long as the age limitation is part of a
“bona fide hiring . . . plan” that is not a “subterfuge to evade
the purposes” of the ADEA. 29 U.S.C. § 623(j)(1)(B)(1).
In this case, Goodmaster seems to ignore the uncontroverted
fact that law enforcement and fire investigators are not subject
to the bona fide occupational qualification (“BFOQ”) requirement
pursuant to 29 U.S.C. § 623(j). Indeed, “the law enforcement
exception, which allows for the setting of age limits, expressly
contemplates discrimination on the basis of age.” Feldman, 434
F.3d at 181-82. It is Goodmaster‟s burden to prove that the
defendants‟ utilization of the exception to the ADEA‟s general
prohibition against age discrimination was, in actuality,
subterfuge.11 See id. at 184 (“Plaintiff bears the burden of
Accordingly, the court will analyze the ADEA and CFEPA age discriminationclaims together.
11 Goodmaster references Meacham v. Knolls Atomic Power Laboratory, 554 U.S.84 (2008), for the proposition that the law enforcement exception to the BFOQrequirement is an affirmative defense and thus the defendants bear theburden. However, the Court in Meacham was interpreting § 623(f), whichdiffers from § 623(j) in both its text and legislative history. While therehas not been a second circuit case on point since the Meacham decision, thosecourts that have confronted the issue have not applied Meacham‟s reasoning to
§ 623(j). See, e.g., Correa-Ruiz v. Fortuno, 573 F.3d 1, 14 (1st Cir. 2009)(“[A] plaintiff asserting subterfuge must show that „the employer is usingthe exemption as a way to evade another substantive provision of the act‟ – in other words, that the employer is „commit[ting] some other type of agediscrimination forbidden by the ADEA.‟”)(quoting Minch v. City of Chicago,636 F.3d 615, 629-30)(7th Cir. 2004)); Kannady v. City of Kiowa, 590 F.3d1161, 1173 (10th Cir. 2010)(“A plaintiff challenging the law enforcementexception bears the burden of establishing that a hiring plan is asubterfuge.”); see also Sadie v. City of Cleveland, 718 F.3d 596, 600-02 (6thCir. 2013) (discussing Meacham‟s potential application to § 623(j)).
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establishing that a particular hiring plan is a subterfuge under
section 4(j)(2).”).
While not expressly defined by the ADEA, subterfuge has
been given its ordinary meaning as “a scheme, plan, stratagem,
or artifice of evasion.” Public Employees Retirement System of
Ohio v. Betts, 492 U.S. 158, 168 (1989). In Betts, the Supreme
Court identified two situations where an employer‟s conduct may
constitute subterfuge, one of which is relevant to this case.
The Court explained that subterfuge may exist “where an employer
. . . adopt[s] a plan provision formulated to retaliate against”
an employee who has “„opposed any action made unlawful by‟ the
Act or has participated in the filing of any age-discrimination
complaints or litigation.” Id. at 179 (quoting 29 U.S.C. §
623(d)); see also Feldman v. Nassau County, 434 F.3d 177, 184
(2d Cir. 2006) (“[A] plaintiff must show „that the employer is
using the exemption as a way to evade another substantive
provision of the act.‟”).
Here, Goodmaster claims that the defendants‟ revocation and
subsequent denial of his request for extension constituted
subterfuge because the defendants acted in retaliation for the
filing of a CHRO complaint in August 2011.12
12 Goodmaster also argues that his extension was denied because of thepotential effect on younger officers on the promotion list. However, asexplained infra, such a concern is legally justifiable under § 623(j). SeeFeldman v. Nassau County, 434 F.3d 177, 184 (2d Cir. 2006) (holding thatevidence that a hiring plan “discriminates on the basis of age rather than
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In order to establish a prima facie case of retaliation, a
plaintiff must “present[] evidence sufficient to permit a
rational trier of fact to find that (1) he participated in a
protected activity, (2) the defendant knew about this activity,
(3) he experienced an adverse employment action, and (4) a
causal connection existed between the protected activity and the
adverse employment action.” Ibok v. Securities Industry
Automation Corp., 369 F. App‟x 210, 213 (2d Cir. 2010). A
plaintiff can show a causal connection between the protected
activity and the adverse employment action “indirectly by
showing that the protected activity was followed closely by
discriminatory treatment or through other evidence such as
disparate treatment of fellow employees who engaged in similar
conduct, or directly through evidence of retaliatory animus
directed against a plaintiff by the defendant.” Cook v. CBS,
Inc., 47 F. App‟x 594, 596 (2d Cir. 2002) (internal quotation
marks omitted). “A plaintiff‟s burden of establishing a prima
facie case is de minimis.” Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 436, 467 (2d Cir. 2001).
“Once an employee makes a prima facie case of . . .
retaliation, the burden shifts to the employer to give a
ability cannot be enough to make section 4(j) inapplicable”). Thus, the onlycognizable claim of subterfuge is via a retaliation argument, specificallylimited to Goodmaster‟s previous age discrimination complaint. Evidence ofGoodmaster‟s statements about police mismanagement, union grievances, and
FOIA complaints are relevant to his First Amendment retaliation claim,discussed infra, but not to his ADEA and CFEPA claims.
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legitimate, non-discriminatory reason for its actions.”
Kirkland v. Cablevision Systems, 760 F.3d 223, 225 (2d Cir.
2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)). “If the employer does so, the burden then shifts
back to the plaintiff to show that the employer‟s explanation is
a pretext for . . . retaliation.” Id.13
Here, Goodmaster establishes the first three elements of a
prima facie case of retaliation. He filed a CHRO complaint
alleging age discrimination in August 2011. The Town of Seymour
was aware of the complaint (though it is disputed whether the
individual members of the board of selectman were aware of it),
and Goodmaster was effectively terminated when his request for
extension was denied. Goodmaster argues that the fact that
every officer in the past would submit their requests to the
board of police commissioners (“BOPC”) and that he was the only
one to have that decision reversed and denied by the board of
selectman is circumstantial evidence of retaliatory animus. The
court will assume, without deciding, that such evidence is
sufficient to establish a causal connection for the purposes of
the ADEA and CFEPA claims. However, the court will specifically
address causality in its discussion of Goodmaster‟s First
13 Goodmaster contends that the McDonnell Douglas burden-shifting isinapplicable because the defendants allegedly discriminated against him basedon his age. However, in order for Goodmaster to prove subterfuge under theADEA, he must establish a retaliation claim – not an age discriminationclaim.
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Amendment retaliation claim, supra Part II a.
Assuming that Goodmaster has established a prima facie case
of retaliation, he cannot sufficiently demonstrate that the
defendants‟ legitimate non-discriminatory reasons were pretext
for retaliation. Goodmaster‟s request was the first to be
decided during first selectman Miller‟s tenure. The defendants
have explained that the board of police commissioners (“BOPC”)
overturned its decision because it was informed by the town‟s
counsel that the decision was procedurally improper. This
legitimate non-discriminatory reason is supported by several
emails between Miller, Attorney Holcomb, William Cronin, an
employee in the comptroller‟s office, and Dan Esposito, a
representative from the public employees‟ union. As explained
in the emails, Connecticut General Statute § 7-430 provides that
a policeman or fireman may extend employment beyond the age of
sixty-five years “at his request and with the annual approval of
the legislative body.” The “legislative body” is defined as
“for towns having a town council, the council; for other towns,
the selectman, the common council or other similar body of
officials.” Conn. Gen. Stat. § 7-425(3). The town‟s charter
similarly provides that “[t]he legislative power of the Town
shall be vested in the Board of Selectman.”
When the request was eventually brought before the board of
selectman, it was denied by a vote of five to one. The
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defendants maintain that at least three of the members of the
board of selectman who voted to deny Goodmaster‟s request -
Drugonis, Bruce and Bruno - were unaware of his previous age
discrimination complaint. They further aver that Drugonis and
Bruce 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. Miller,
Klaride-Ditria, and Bruno denied the request based on the fact
that Goodmaster had refused an offer of a special assignment
that would have allowed him to work for an additional twelve
months after his sixty-fifth birthday.
Apart from his own speculations as set forth in his
deposition, which are largely based on hearsay, Goodmaster
offers no evidence that those proffered reasons were pretextual.
At the motion for summary judgment stage, the opposing party
“may not rest upon the mere allegations or denials of his
pleading.” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)
(quoting Anderson v. Liberty, 477 U.S. 242, 248 (1986)).
Goodmaster rejects the proposition that the board of selectman
is the entity legally authorized to make decisions regarding
extensions, arguing that the authority was delegated to the
BOPC. However, there is no evidence documenting such a
delegation of power. Similarly, he has provided no evidence of
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retaliatory animus by the specific members of the board of
selectman that would counter their legitimate reasons for voting
the way that they did. He submitted no admissible evidence that
the board of selectman members would have voted any differently
had he not filed the CHRO complaint or that “the employment
decision was more likely than not based in whole or in part on
discrimination.” Kirkland, 760 F.3d at 225 (internal quotation
marks omitted).
Goodmaster denies having been offered a special assignment,
but admits that he would have rejected such an offer had one
been made. His denial of receiving the offer is not
particularly persuasive in light of his deposition testimony and
statements made by his attorney during the December board of
selectman meeting.14 In addition, when Goodmaster formally
grieved the denial of his request for extension, the Union
President, Sergeant John D‟Antona, advised Goodmaster that the
union would not proceed with the grievance, specifically stating
that “The Town of Seymour did offer to put you in a position in
which you could fulfill your retirement obligations for the one
year requested . . . . You chose not to accept the offer.”
14 During his deposition, Goodmaster admitted that there were discussionsabout a possible acting lieutenant position, but avers that they were generalcomments and not a formal offer. At the December meeting, Goodmaster‟s
counsel told the board of selectman that Goodmaster would not entertain suchan offer because of its effect on his overtime opportunities. In addition,the defendants‟ submitted the affidavit of Warren L. Holcomb, Seymour‟s town
counsel, who stated that he spoke with Goodmaster‟s attorney on two occasionsto discuss the possibility of placing Goodmaster in the role of actinglieutenant.
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Despite Goodmaster‟s contention that he did not receive such an
offer, he did not challenge this decision.
While the court must accept his testimony as true,
Goodmaster has presented no evidence to show that the board of
selectman members who denied his request did not believe that he
had rejected an offer of special assignment. See Cobb v. Pozzi,
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 Goodmaster‟s
allegations do not provide “evidence sufficient to avoid summary
judgment on the issue of whether the proffered explanations for
the [denial] were pretextual.” Skiff v. Colchester School
Dist., 316 F. App‟x 83, 84 (2d Cir. 2009).
Accordingly, the defendants‟ motion for summary judgment on
counts one and five is granted.
15 Goodmaster‟s lack of evidence is especially telling in light of the factthat he submitted his opposition three days late after the court explicitlystated that it would not entertain any more extensions of time (as the courthad already granted four). See document no. 56. In addition, as thedefendants point out, Goodmaster‟s memorandum impermissibly exceeded the pagelimit by twenty pages. See D. Conn. L. Civ. R. 7(a)(2) (“Except by permission of the Court, briefs or memoranda shall not exceed forty (40) 81/2” by 11” pages . . . .”)(emphasis added).
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II.
Section 1983 Claims16 – Counts III and IV
Count three alleges that the individual defendants
discriminated and retaliated against Goodmaster in violation of
his constitutional rights to equal protection17 and freedom of
speech. Count four holds the Town of Seymour liable for the
alleged constitutional violations as a municipality.
a. First Amendment Retaliation – Count III
i.
Protected Speech
The defendants argue that Goodmaster‟s speech was not
protected because “[p]ersonal complaints of discrimination,
harassment, retaliation and/or unfair treatment such as those
made by Plaintiff, are generally not „matters of public
16 The court presumes that Goodmaster‟s constitutional claims are broughtpursuant to 42 U.S.C. § 1983.
17
As discussedsupra
, because Goodmaster has failed to establish a claimunder the ADEA and CFEPA, he similarly has failed to establish count three‟sequal protection claim. See Kearny v. County of Rockland ex rel. Vanderhoef,185 F. App‟x 68, 69 (2d Cir. 2006). In addition, he has failed to show that
he was “treated differently than similarly situated” individuals. Shumway v.United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997). In order tosucceed in a selective prosecution claim, plaintiffs must show: “(1) thatthey were treated differently from other similarly situated individuals, and(2) that such differential treatment was based on impermissibleconsiderations such as . . . intent to inhibit or punish the exercise ofconstitutional rights.” Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2003)(internal quotation marks omitted). Goodmaster states that every previousrequest for extension was considered by the board of police commissioners(“BOPC”). However, many of those decisions were made before 1989, the year
that § 7-430 came into effect. Those decisions made after 1989 were stillmade prior to the town counsel‟s realization that the procedure was legally
incorrect and prior to first selectman Miller‟s tenure. Furthermore, notevery request previously brought before the BOPC was granted. Goodmaster‟s
request was the first extension to be considered by the board of selectman.In addition, he has failed to satisfy a retaliation claim and thus cannotshow that the “differential treatment was based on impermissibleconsiderations.” Therefore, the court grants summary judgment with respect
to Goodmaster‟s equal protection claim.
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concern.‟” They further argue that his “grievances and
statements about departmental „mismanagement‟ are barred by
Garcetti” because they were made pursuant to his official job
duties.
Goodmaster responds that his speech was not of “purely
personal concern” and not “within his job duties and
responsibilities.” Specifically, he argues that the defendants‟
“narrow view of the plaintiff‟s complaints plainly ignores the
plaintiff‟s commentary on mismanagement of the police
department, and unethical and unfair behavior of political
figures.”
A plaintiff claiming First Amendment retaliation must
demonstrate that: “(1) his speech or conduct was protected by
the First Amendment; (2) the defendant took an adverse
employment action against him; and (3) there was a causal
connection between this adverse action and the protected
speech.” Matthews v. City of New York, 779 F.3d 167, 172 (2d
Cir. 2015) (citing Cox v. Warwick Valley Cent. School Dist., 654
F.3d 267, 272 (2d Cir. 2011)). To determine whether a public
employee‟s speech is protected, the court determines: “(1)
whether the subject of the employee‟s speech was a matter of
public concern and (2) whether the employee spoke „as a citizen‟
rather than as an employee.” Matthews, 779 F.3d at 172 (citing
Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)); see also
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Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If the answer
to both questions is yes, the court then determines “whether the
relevant government entity had an adequate justification for
treating the employee differently from any other member of the
public based on the government‟s needs as an employer.”
Matthews, 779 F.3d at 172 (citing Lane v. Franks, 134 S. Ct.
2369, 2380 (2014)); see also Pickering v. Bd. Of Educ. Of Twp.
High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968).
Here, it appears that the defendants are arguing that
Goodmaster‟s speech was both purely personal in nature and
pursuant to his professional job duties. However, the evidence
does not support such a sweeping generalization. While the
complaint is not entirely clear, it appears as if Goodmaster‟s
allegedly protected speech falls into approximately six
categories.
First, Goodmaster contends that he directly complained to
the Chief of Police, Michael Meltzer, about, inter alia, “the
operations of the department, the mismanagement, the problems
with chain of command, problems with officers not completing
investigations thoroughly, problems with the way officers write
reports, problems with the way paperwork is submitted to the
court, problems with the rude treatment that citizens would
receive when they walked up to the desk to speak to the police,
problems with an officer who tried to foil a drug investigation
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by letting the parent of the narcotics target know that the
detective division was investigating his son,[and] . . . an
officer who had an alcohol problem.”
Second, he contends that he spoke to the press about the
general mismanagement of the department, though he did not
provide specific examples of those complaints. Rather, in his
deposition, he stated that he reported to the press that he “had
been suspended because [he is] an outspoken critic of the
mismanagement of [the] department.”
Third, Goodmaster alleges that he complained to Bob
Koskelowski (a former first selectman), Paul Roy (a former first
selectman), Frank Loda, and Jean Loda about Meltzer‟s allegedly
unprofessional behavior – i.e., demeaning comments about fellow
officers.
Fourth, Goodmaster lodged several grievances over “unjust
discipline” and unpaid sick time via the procedures outlined in
his collective bargaining agreement.
Fifth, Goodmaster alleges that he was retaliated against
for his 2011 CHRO complaint.
Finally, Goodmaster alleges that he was retaliated against
for two FOIA complaints. The first FOIA complaint, filed in
June 2011, involved an illegal meeting of the BOPC. The second
FOIA complaint involved an executive session of the BOPC at
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which the chief of police and a lieutenant were impermissibly in
attendance. 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
employee‟s speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement, as revealed by the whole record.” Id. at 147-48. In
addition, “the speaker‟s motive, while one factor that may be
considered, is not dispositive as to whether his speech
addressed a matter of public concern.” Reuland v. Hynes, 460
F.3d 409, 415 (2d Cir. 2006). As such, “it does not follow that
a person motivated by a personal grievance cannot be speaking on
a matter of public concern.” Sousa v. Roque, 578 F.3d 164, 174
(2d Cir. 2009).
However, “[s]peech that, although touching on a topic of
general importance, primarily concerns an issue that is
„personal in nature and generally related to [the speaker‟s] own
situation,‟ such as his or her assignments, promotion, or
18 Because the second complaint was filed on December 7, 2012 – three daysafter the board of selectman declined Goodmaster‟s request for extension,there is no causal connection between this particular complaint and theadverse 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).
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salary, does not address matters of public concern.” 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.” Id. (citing City of San Diego v. Roe, 543 U.S.
77, 83-84 (2004).
While it is true that some of Goodmaster‟s speech concerned
his own personal experiences – specifically the three grievances
lodged against the department and the CHRO complaint - his speech
also implicated the general mismanagement of the police
department. See, e.g., Feingold v. New York, 366 F.3d 138, 160
(“While Feingold‟s alleged complaints were based on his personal
experience, they also suggest the fairness and impartiality of
the MNO may have been compromised . . . . [which is] clearly
[a] matter[] of public concern.”). The court concludes that
Goodmaster‟s criticisms of the operations and mismanagement of
the police department are matters of public concern as is the
2011 CHRO complaint which alleged retaliation for those
criticisms. The court further concludes that the June 22, 2011
FOIA complaint is a matter of public concern as it implicates
the violation of procedures used by the BOPC. The court also
assumes, without deciding, that the complaints specific to
Meltzer‟s unprofessional behavior are matters of public concern.
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However, the grievances, which sought remedies specific to
Goodmaster, were personal in nature and therefore not matters of
public concern.20 As such, the court concludes that those
particular grievances are not protected speech.
B.
Speech as a Citizen
To determine whether a public employee speaks as a citizen,
the court must ask: “(1) did the speech fall outside of the
employee‟s official responsibilities, and (2) does a civilian
analogue exist.” Matthews v. City of New York, 779 F.3d 167,
173 (2d Cir. 2015) (internal quotation marks omitted).
A public employee‟s speech is not protected when he
“make[s] statements pursuant to [his] official job duties.”
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). “[S]peech can be
„pursuant to‟ a public employee‟s official job duties even
though it is not required by, or included in, the employee‟s job
description, or in response to a request by an employer.”
Weintraub v. Bd. Of Educ., 593 F.3d 196, 203-04 (2d Cir. 2010).
A public employee‟s grievance is “„pursuant to‟ his official
duties” if it was “part-and parcel-of his concerns about his
ability to properly execute his duties.” Id. (internal quotation
marks omitted).
20 Even if they were matters of public concern, the utilization of internalgrievance procedures indicates that Goodmaster was acting as an employeerather than as a citizen. See Weintraub v. Bd. Of Educ., 593 F.3d 196, 203(2d Cir. 2010) (holding that there is no relevant citizen analogue for thelodging of an employee grievance via internal channels).
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Further, “[s]peech has a „relevant civilian analogue‟ if it
is made through „channels available to citizens generally.‟”
Matthews, 779 F.3d at 175 (citing Jackler v. Byrne, 658 F.3d
225, 238 (2d Cir. 2011)). The “degree of access” to senior
supervisors is not material; “rather what matters is whether the
same or a similar channel exists for the ordinary citizen.”
Matthews, 779 F.3d at 176.
A recent case from the second circuit is instructive. In
Matthews v. City of New York, 773 F.3d 167, 169 (2d Cir. 2015),
a police officer complained to his precinct‟s commanding officer
and another executive officer about a quota system that he
believed was damaging to the police department‟s 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. Specifically, the court held that “when a public
employee whose duties do not involve formulating, implementing,
or providing feedback on a policy that implicates a matter of
public concern engages in speech concerning that policy, and
does so in a manner in which ordinary citizens would be expected
to engage, he or she speaks as a citizen, not as a public
employee.” Id. at 174. In addition, the officer “did not follow
internal grievance procedures, but rather went directly to the
Precinct commanders, with whom he did not have regular
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interactions and who had an open door to community comments and
complaints.” Id. at 176.
In this case, Goodmaster made specific complaints to the
chief of police regarding officers not properly performing their
duties. According to the Seymour Police Department‟s duty
manual, Goodmaster, as a detective sergeant, was “responsible
for directing general duty detective work in protecting life and
property and enforcing criminal laws and local ordinances.” His
work involved “supervising and participating in detective work,”
including the duty to “supervise and advise detectives” and the
duty to “direct and supervise the work of a crime
investigation.” Unlike the officer in Matthews, Goodmaster‟s
duties specifically included supervision of other officers and
investigations. Indeed, Goodmaster admits that the complaints
involving officers inadequately performing their jobs fall
within his official responsibilities as a supervisor. See Ross
v. Breslin, 693 F.3d 300, 307-08 (2d Cir. 2012) (holding that a
payroll clerk‟s 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.
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However, there seems to be a general allegation that
Goodmaster was “outspoken” about the mismanagement of the
department and that he spoke to the press about said
mismanagement. While Goodmaster has not provided specific
examples of newspaper coverage, the defendants have not rebutted
that allegation or offered evidence that Goodmaster was not
known to be “outspoken.” That being said, the court assumes
that those general complaints of mismanagement – as well as the
June 22, 2011 FOIA complaint and the statements implicating
Meltzer‟s alleged unprofessional behavior - are protected speech
for the purposes of Goodmaster‟s First Amendment retaliation
claim.
ii.
Causal Relationship
The defendants next argue that, even if the speech is
protected, Goodmaster has failed to show a causal connection
between the adverse action and his allegedly protected speech.
Specifically, they argue that Goodmaster “has not provided a
shred of evidence” that “a majority of the [board of selectman]
members who voted to deny his extension request possessed a
retaliatory animus.”
Goodmaster responds that causality is established through
temporal proximity since the 2011 CHRO complaint was not
resolved until “approximately one month before the filing of the
instant case.” Further, he argues that there is a “pattern . .
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. demonstrating that the plaintiff‟s outspokenness . . . ha[s]
been met with punishment by the defendants.”
“To establish causation, a plaintiff must show that the
protected speech „was a substantial motivating factor in the
adverse employment action.‟” Cioffi v. Averill Park Central
School Dist. Board of Ed., 444 F.3d 158, 167 (2d Cir. 2006)
(internal citation omitted). In addition to direct evidence of
retaliatory animus, “[a] plaintiff may establish causation
indirectly by showing his speech was closely followed in time by
the adverse employment decision.” Id. The second circuit has
“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.
Cornell Co-op Extension of Schenactady County, 252 F.3d 545, 554
(2d Cir. 2001).
However, “a plaintiff may not solely „rely on conclusory
assertions of retaliatory motive to satisfy the causal link.‟”
Vinci v. Quagliani, 889 F. Supp. 2d 348, 358 (D. Conn. 2012)
(citing Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004)). A
plaintiff must offer “some tangible proof to demonstrate that
[his] version of what occurred was not imaginary.” Cobb, 363
F.3d at 108.
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Further, “if a majority of defendants prove that their
individual votes against the plaintiff would have been the same
irrespective of the plaintiff‟s protected conduct, then the
defendants as a group cannot be held liable, and no individual
defendant, even one whose proof falls short, can be so held
because causation is absent.” Coogan v. Smyers, 134 F.3d 479,
485 (2d Cir. 1998). Thus, “even if some defendants based their
decision solely on impermissible grounds, a finding that a
majority of defendants acted adversely to the plaintiff on
legitimate grounds is sufficient for all to escape liability.”
Id. (citing Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995)).
Here, with respect to temporal proximity, the FOIA
complaint and the CHRO complaint were both filed over a year
before the BOPC‟s reversal, and the settlement agreement that
resolved many of Goodmaster‟s complaints was signed in March
2012, seven months before the reversal. In addition, Goodmaster
has not sufficiently articulated when and where he complained
about general mismanagement and Meltzer‟s unprofessional
behavior to warrant a presumption of causality with respect to
those complaints and the denial of his request.
Assuming that Meltzer, McConologue, and the members of the
board of selectman were aware of Goodmaster‟s protected speech,
Goodmaster has provided no evidence – apart from his own
speculations and hearsay – to suggest that the BOPC‟s reversal
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and the board of selectman‟s denial of his extension request
were due to retaliatory animus. Supra Part I. Though Goodmaster
offers some circumstantial evidence of causality, namely that
his was the first request to be reversed and then denied by the
board of selectman, such evidence is insufficient to establish
causality in the context of a First Amendment retaliation claim.
The BOPC‟s initial decision was overturned upon the advice of
the town‟s counsel after it was discovered that the board of
selectman was the proper entity to hear such requests.
Thereafter, the board of selectman denied the request five to
one. Even if the court were to presume that Miller – the only
named defendant on the board of selectman21 – voted to deny
Goodmaster‟s request based on a retaliatory animus, there still
would have been four votes denying the request on permissible
grounds. As such, Miller and the board of selectman as a whole
escape liability. See Coogan v. Smyers, 134 F.3d 479, 485 (2d
Cir. 1998).
21 Goodmaster admitted during his deposition that he did not have any evidencethat Miller “knew about [his] commentary” on the police department‟s
mismanagement or “that he was offended or upset by” it. Similarly, the only
evidence that McConologue took an adverse action against Goodmaster is basedon hearsay. Goodmaster alleges that the former police commissioner JimSimpson told him that McConologue told Simpson that Goodmaster was “65 and .. . ha[d] to go.” Apart from the unreliability of such testimony,McConologue‟s statement that Goodmaster was “65 and . . . ha[d] to go” iscontrary to Goodmaster‟s allegation that she wanted his request denied due tosome retaliatory animus over his protected speech.
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iii.
Mixed-Motives Defense
The defendants also argue that “no reasonable factfinder
could conclude that the Defendants would not have ultimately
chosen to abide by the law and submit the decision to the Board
of Selectman in accordance with the Town counsel‟s opinion.”
Specifically, they argue that “no reasonable factfinder could
conclude that the individual members of the Board of Selectmen
would have voted any differently had Plaintiff not engaged in
the alleged protected activity.” Goodmaster does not respond to
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
Transp. Authority, 629 F.3d 97, 115 (2d Cir. 2011).
Assuming there was a causal connection between Goodmaster‟s
complaints and the denial of his extension request, there is no
evidence that the board of selectman – including Miller - would
not have voted the same way had Goodmaster not engaged in the
protected activity. Indeed, the defendants aver that Miller
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voted to deny the request due to Goodmaster‟s refusal to accept
the special assignment and Goodmaster has provided no evidence
to the contrary.
Although Goodmaster has manifestly suffered an adverse
employment action, and although he engaged in some protected
speech, Goodmaster has not presented sufficient evidence for a
First Amendment retaliation claim to survive the defendants‟
motion for summary judgment. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The “mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.” Id.
The evidence submitted by Goodmaster is “merely colorable,” see
id.; thus, the defendants‟ motion for summary judgment with
respect to count three must succeed.
b.
Monell Claim – Count IV
The defendants also argue that Goodmaster cannot prevail on
a 1983 claim against a municipality because the defendants “have
not deprived Plaintiff of a constitutional or statutory right”
as explained in the defendants‟ discussion of counts one through
three. Goodmaster does not respond to this argument.
“A municipal entity may be liable under 42 U.S.C. § 1983
only if the alleged constitutional violation was caused by the
entity‟s „policy or custom.‟” Mandell v. County of Suffolk, 316
F.3d 368, 385 (2d Cir. 2003) (citing Monell v. Dep‟t of Soc.
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Services of City of New York, 436 U.S. 658, 694 (1978)). “[A]
plaintiff must demonstrate that, through its deliberate conduct,
the municipality was the „moving force‟ behind the alleged
injury.” Burgos v. City of New Britain, Civil No. 3:09CV01320
(AWT), 2011 WL 4336757, at *7 (D. Conn. Sept. 15, 2011) (citing
Roe v. City of Waterbury, 542 F.3d 31, 36-37 (2d Cir. 2008)).
“[I]f the challenged action is directed by an official with
„final policymaking authority,‟ the municipality may be liable
even in the absence of a broader policy.” Mandell, 316 F.3d at
385 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83
(1986)); see, e.g., Mandell, 316 F.3d at 385 (holding that the
Suffolk County police commissioner “had authority to set
department-wide personnel policies”).
As discussed above, Goodmaster has failed to create a
genuine issue of material fact as to whether any of his
federally protected rights were violated.
Accordingly, the defendants‟ motion for summary judgment on
count four is granted. Given that conclusion, the court does
not reach arguments concerning whether the defendants may claim
qualified immunity or whether Goodmaster sufficiently mitigated
his damages.
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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. CovelloUnited States District Judge
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