Goodmaster Summary Judgment

8/20/2019 Goodmaster Summary Judgment

1/36

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).

Case 3:14-cv-00060-AVC Document 66 Filed 02/08/16 Page 1 of 36


2/36

2

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



3/36

3

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.



4/36

4

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.



5/36

5

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



6/36

6

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.



7/36

7

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.



8/36

8

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



9/36

9

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



10/36

10

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



11/36

11

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.”).



12/36

12

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)).



13/36

13

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



14/36

14

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.



15/36

15

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.



16/36

16

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



17/36

17

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



18/36

18

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.



19/36

19

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).



20/36

20

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.



21/36

21

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



22/36

22

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



23/36

23

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



24/36

24

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).



25/36

25

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.



26/36

26

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).



27/36

27

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



28/36

28

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.



29/36

29

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 . .



30/36

30

. 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.



31/36

31

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



32/36

32

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.



33/36

33

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



34/36

34

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.



35/36

35

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.



36/36

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


Goodmaster Summary Judgment

Documents

Transcript of Goodmaster Summary Judgment