Horvath v. City of Hartford , 178 Conn. App. 504 ( 2017 )

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JOHN K. HORVATH v. CITY OF HARTFORD
(AC 39132)
Alvord, Prescott and Bishop, Js.
Syllabus
The plaintiff, who had been employed by the defendant city of Hartford as
an assistant chief of police, sought to recover damages from the defen-
dant for its alleged violation of the state whistle-blower statute (§ 31-
51m) in connection with his reporting of actual or suspected violations
of law by the commander of the police department’s internal affairs
division. The plaintiff alleged that as a result of his whistle-blowing
actions, the defendant constructively discharged him from his employ-
ment by reducing his responsibilities and taking other actions with
the intent to create an intolerable work atmosphere that caused his
involuntary resignation. After the city council cut certain funding for
the police department, the plaintiff took on additional duties as a result
of the retirement of another assistant chief of police, and the interim
chief of police informed the plaintiff that his position was going to be
eliminated from the budget but that his job was safe. The plaintiff, while
still employed by the defendant, then obtained employment elsewhere
and thereafter left his employment with the defendant. The trial court
granted the defendant’s motion for summary judgment, concluding that
there existed no genuine issue of material fact in support of the plaintiff’s
claim that he was constructively discharged. From the judgment ren-
dered thereon, the plaintiff appealed to this court, claiming that disputed
issues of material fact existed regarding whether the defendant’s actions
amounted to a constructive discharge in violation of § 31-51m, and
whether the defendant had penalized him as a consequence of his whis-
tle-blowing activities. Held:
1. This court declined to consider the plaintiff’s claim that the defendant’s
actions amounted to a retaliatory penalty and discipline for his having
reported alleged abuses of authority, as the plaintiff’s complaint did not
claim relief on the basis of other forms of retaliation such as discipline
or penalty, as described in § 31-51m, his claims were limited to those
made in the complaint, and the claim was raised for the first time
on appeal.
2. The trial court properly rendered summary judgment in favor of the
defendant, the plaintiff having failed to establish the existence of a
genuine issue of material fact as to whether he was constructively
discharged as a result of his whistle-blowing actions: although it was
undisputed that the plaintiff had raised a genuine issue of material fact
that he had engaged in a protected activity as defined by § 31-51m (b),
the changes in some of his work responsibilities were not so objectively
intolerable that a reasonable person would have felt compelled to resign,
the plaintiff provided no admissible evidence to demonstrate that he
was demoted, reprimanded or threatened with the termination of his
employment, his compensation never changed during that period, and
the fact that he accepted a new position with higher pay before he
resigned significantly undermined his claim of constructive discharge;
moreover, the admissible evidence submitted by the parties in conjunc-
tion with the motion for summary judgment suggested that any adverse
action by the police department was driven by budgetary constraints,
and, thus, the actions by the defendant were not sufficient to raise a
genuine issue of material fact as to whether it intended to create an
intolerable work environment, as the defendant’s conduct in conveying
to the plaintiff that his job might be at risk of elimination for budgetary
reasons could not be equated to allegations of threats of discharge from
employment so as to warrant a conclusion of constructive discharge.
Argued September 20—officially released December 12, 2017
Procedural History
Action to recover damages for, inter alia, violation
of the state whistle-blower statute, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the court, Elgo, J., granted the defen-
dant’s motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to
this court. Affirmed.
Richard J. Padykula, with whom, on the brief, was
Leon M. Rosenblatt, for the appellant (plaintiff).
John P. Shea, Jr., for the appellee (defendant).
Opinion
BISHOP, J. The plaintiff, John K. Horvath, appeals
from the summary judgment rendered in favor of the
defendant, the city of Hartford. On appeal, the plaintiff
asserts that the trial court’s judgment was in error
because disputed issues of material fact exist concern-
ing whether he was retaliated against, and later con-
structively discharged, by the defendant in violation of
General Statutes § 31-51m as a result of his whistle-
blowing activities while in the defendant’s employ. In
response, the defendant claims that summary judgment
was appropriate because, in opposition to its motion
for summary judgment, the plaintiff offered no evidence
that the defendant constructively discharged him by
intentionally creating an intolerable work environment
compelling him to resign. We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. In 2011, the defen-
dant employed the plaintiff as an assistant chief of
police for the Hartford Police Department (depart-
ment). At the time, the department’s command struc-
ture was comprised of the chief of police, two deputy
chiefs and three assistant chiefs. On April 11, 2011, in
response to an internal complaint, the plaintiff
requested an investigation into the actions of Neville
Brooks, commander of the department’s internal affairs
division. In September, 2011, the city hired Marcum LLP
to conduct an independent review of the operations of
the internal affairs division. Following the release of
the Marcum LLP report, the plaintiff sent a letter on
December 1, 2011, to Daryl Roberts, the chief of police,
setting forth his concerns regarding ‘‘numerous errors,
omissions and intentional misrepresentations’’ con-
tained in the Marcum LLP report.
On May 17, 2011, the Hartford city council passed a
financial resolution reducing its budget by $1,750,000,
including a reduction of $300,000 in department’s exec-
utive command level expenses. This budget included
funding for the plaintiff’s position. The cuts were
accomplished, in part, by the retirement of Lester
McKoy, an assistant chief of police. On May 24, 2012,
James Rovella, who became the interim chief of police
after Roberts retired in December, 2011, informed the
plaintiff that his position as assistant chief was going
to be eliminated from the budget. In the same conversa-
tion, however, Rovella assured him that ‘‘his job was
safe.’’1
In June, 2012, the plaintiff had a series of interviews
with the University of Massachusetts in Amherst, Mas-
sachusetts, for the position of chief of police and subse-
quently accepted the position on September 4, 2012.
The plaintiff left his employ with the department as
assistant chief of police on September 21, 2012.
On May 14, 2013, the plaintiff filed a single count
amended complaint alleging that the defendant had
penalized him by constructively discharging him from
his employment in violation of § 31-51m because ‘‘he
investigated and reported, verbally and in writing,
Brooks’ actual or suspected violations of state law,
municipal ordinance, and pertinent regulations.’’2
Thereafter, the defendant filed a motion for summary
judgment in which it claimed, inter alia, that there
existed no genuine issue of material fact in support of
the plaintiff’s claim that he was constructively dis-
charged. On April 13, 2016, the trial court issued a mem-
orandum of decision granting the defendant’s motion.
This appeal followed. Additional facts will be provided
as necessary.
I
We first set forth the applicable standard of review.
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. Practice Book [§ 17-49] provides that
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as
a matter of law. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . A material fact
. . . [is] a fact which will make a difference in the result
of the case. . . . Finally, the scope of our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) McClancy v. Bank of America, N.A., 176 Conn.
App. 408, 412–13, 168 A.3d 658 (2017).
Additionally, ‘‘[o]nly evidence that would be admissi-
ble at trial may be used to support or oppose a motion
for summary judgment. . . . Practice Book § 17-46
provides in relevant part that affidavits shall be made
on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirm-
atively that the affiant is competent to testify to the
matters stated therein.’’ (Citation omitted; internal quo-
tation marks omitted.) Midland Funding, LLC v. Mitch-
ell-James, 163 Conn. App. 648, 655, 137 A.3d 1 (2016).
‘‘A conclusory assertion . . . does not constitute evi-
dence sufficient to establish the existence of a disputed
material fact for purposes of a motion for summary
judgment.’’ Hoskins v. Titan Value Equities Group,
Inc., 252 Conn. 789, 793–94, 749 A.2d 1144 (2000). Last,
summary judgment ‘‘is appropriate only if a fair and
reasonable person could conclude only one way.’’
Miller v. United Technologies Corp., 233 Conn. 732, 751,
660 A.2d 810 (1995).
Section 31-51m protects an employee from retaliatory
discharge when the employee has complained about a
suspected violation of a state or federal law or regula-
tion. Arnone v. Enfield, 79 Conn. App. 501, 506–507,
831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804
(2003). Section 31-51m (b) provides in relevant part:
‘‘No employer shall discharge, discipline or otherwise
penalize any employee because (1) the employee, or a
person acting on behalf of the employee, reports, ver-
bally or in writing, a violation or a suspected violation
of any state or federal law or regulation or any municipal
ordinance or regulation to a public body . . . . No
municipal employer shall discharge, discipline or other-
wise penalize any employee because the employee, or
a person acting on behalf of the employee, reports,
verbally or in writing, to a public body concerning the
unethical practices, mismanagement or abuse of
authority by such employer. The provisions of this sub-
section shall not be applicable when the employee
knows that such report is false.’’
‘‘Constructive discharge of an employee occurs when
an employer, rather than directly discharging an individ-
ual, intentionally creates an intolerable work atmo-
sphere that forces an employee to quit involuntarily.
. . . Working conditions are intolerable if they are so
difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Brittell v. Dept. of Correction,
247 Conn. 148, 178, 717 A.2d 1254 (1998). ‘‘A claim of
constructive discharge must be supported by more than
the employee’s subjective opinion that the job condi-
tions have become so intolerable that he or she was
forced to resign.’’ Seery v. Yale-New Haven Hospital,
17 Conn. App. 532, 540, 554 A.2d 757 (1989). ‘‘Normally,
an employee who resigns is not regarded as having been
discharged, and thus would have no right of action for
abusive discharge. . . . Through the use of construc-
tive discharge, the law recognizes that an employee’s
voluntary resignation may be, in reality, a dismissal
by the employer.’’ (Citation omitted; internal quotation
marks omitted.) Id. Moreover, ‘‘[i]n order to meet the
high standard applicable to a claim of constructive dis-
charge, a plaintiff is required to show both (1) that
there is evidence of the employer’s intent to create an
intolerable environment that forces the employee to
resign, and (2) that the evidence shows that a reason-
able person would have found the work conditions so
intolerable that he would have felt compelled to resign.’’
(Internal quotation marks omitted.) Irizarry v. Lily
Transportation Corp., Docket No. 3:15-CV-1386 (DJS),
2017 WL 3037782, *4 (D. Conn. July 18, 2017), citing
Adams v. Festival Fun Parks, LLC, 560 Fed. Appx. 47,
49 (2d Cir. 2014).3
II
On appeal, the plaintiff makes two claims: (1) that
he was constructively discharged from his employment
in violation § 31-51m, and (2) that he was otherwise
penalized as a consequence of his whistle-blowing activ-
ities at the department in violation of the same statute.
In regard to this second claim, the plaintiff asserts that
‘‘a reasonable jury could conclude that [the] defendant’s
actions amounted to a retaliatory penalty and discipline
for the plaintiff[’s] reporting of abuses of authority
. . . .’’ In response, the defendant argues that the court
correctly rendered summary judgment as to the plain-
tiff’s retaliatory discharge claim, and that the plaintiff’s
second claim is outside the scope of the complaint and
has been raised for the first time on appeal. In sum,
the defendant claims that the plaintiff relied solely on
retaliatory constructive discharge in his pleadings and,
therefore, cannot now raise additional theories of
recovery that are based on discipline or penalty unteth-
ered to his wrongful discharge claim. Because we agree
that the plaintiff’s second claim has been raised for the
first time on appeal and is not framed as a distinct claim
in the plaintiff’s complaint, it does not warrant detailed
analysis. Accordingly, we discuss it briefly before turn-
ing to the wrongful discharge claim.
The complaint alleges that the plaintiff ‘‘was con-
structively discharged on September 21, 2012.’’ In three
subsequent paragraphs, the complaint further repeats
that the ‘‘defendant penalized the plaintiff by discharg-
ing him . . . .’’ Nowhere in the complaint does the
plaintiff frame a claim for relief on the basis of other
forms of retaliation, such as ‘‘disciplined or otherwise
penalize[d],’’ as described in § 31-51m (b). In short, in
his complaint, he claims that he was constructively
discharged as a consequence of his whistle-blowing
actions. A plaintiff’s claims are, of course, framed by
and limited to those made in the complaint. Mamudov-
ski v. BIC Corp., 78 Conn. App. 715, 732, 829 A.2d 47
(2003) (‘‘[a] fundamental tenet in our law is that the
plaintiff’s complaint defines the dimensions of the
issues to be litigated’’ [internal quotation marks omit-
ted]), appeal dismissed, 271 Conn. 297, 857 A.2d 328
(2004). Additionally, we decline to consider his attempt
to raise claims of alternative forms of retaliation for
the first time on appeal. See, e.g., Murphy v. EAPWJP,
LLC, 306 Conn. 391, 399, 50 A.3d 316 (2012) (‘‘[i]t is
well established that a claim must be distinctly raised
at trial to be preserved for appeal’’); see also Practice
Book § 60-5 (‘‘[t]he court shall not be bound to consider
a claim unless it was distinctly raised at the trial’’).
III
Turning to the constructive discharge claim, the
plaintiff asserts that there are genuine issues of material
fact regarding whether the defendant’s actions
amounted to a constructive discharge in violation of
§ 31-51m. Specifically, the plaintiff claims that as a
result of his whistle-blowing actions, the defendant
reduced his responsibilities and took other actions with
the intention to create an intolerable work atmosphere
that caused his involuntary resignation.
In Arnone v. Enfield, supra, 79 Conn. App. 501, this
court examined the framework for analyzing retaliatory
discharge claims. ‘‘In an action under § 31-51m (b), [the]
plaintiff has the initial burden under McDonnell Douglas
Corp. [v. Green, 411 U.S. 792, 802–804, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973)] of proving by a preponderance
of the evidence a prima facie case of retaliatory dis-
charge. . . . This consists of three elements: (1) that
[the plaintiff] engaged in a protected activity as defined
by § 31-51m (b); (2) that [the plaintiff] was subsequently
discharged from his employment; and (3) that there
was a causal connection between his participation in
the protected activity and his discharge. . . . Once the
plaintiff has made a prima facie showing of a retaliatory
discharge, the defendant is obligated to produce evi-
dence that, if taken as true, would permit the conclusion
that there was a nonretaliatory reason for the termina-
tion of employment.’’ (Citations omitted; internal quota-
tion marks omitted.) Arnone v. Enfield, supra, 507; see
also Ritz v. East Hartford, 110 F. Supp. 2d 94, 98 (D.
Conn. 2000) (same). In order to satisfy the second ele-
ment of § 31-51m by way of constructive discharge, the
plaintiff needs to establish that the employer intention-
ally created an intolerable work atmosphere that forced
the employee to quit involuntarily, and that the intolera-
ble conditions are supported by more than the employ-
ee’s subjective opinion. Brittell v. Dept. of Correction,
supra, 247 Conn. 178.
It is undisputed that the plaintiff has raised a genuine
issue of material fact regarding the first element of his
prima facie case. As to the second element, we agree
with the court that the plaintiff failed to raise, through
admissible evidence in opposition to the defendant’s
motion for summary judgment, a genuine issue of mate-
rial fact that he was constructively discharged. In sup-
port of this aspect of his claim, the plaintiff has
presented evidence of what he alleges to be intolerable
work conditions. He asserts that work responsibilities
were taken from him, and that Rovella ‘‘began to manip-
ulate [his] professional responsibilities, usurp [his]
authority as assistant chief, and diminish [his] substan-
tive duties.’’ Specifically, this included: (1) taking away
his duties in managing the police department’s fleet
vehicles; (2) removing him from the collective bar-
gaining negotiating team; (3) denying his request to
attend a Federal Bureau of Investigation training pro-
gram; (4) approving a staffing, budget and overtime
request without discussion with him, even though he
chaired the overtime committee; and (5) excluding him
from certain meetings and initiatives, such as special
events planning, a vendor outreach program, a police
visibility project to improve community perception, rep-
resentation in the public safety complex project, and a
multiagency meeting to address violent crime in the
city.
The defendant does not refute this evidence, but
instead highlights that the plaintiff took on additional
duties as a result of McKoy’s resignation, such as the
responsibilities of the assistant chief of operations in
addition to his role as the assistant chief of detectives.4
The defendant therefore argues that although some
duties were taken from him, the addition of other duties
simply rebalanced his responsibilities.
We agree, in principle, with the plaintiff’s assertion
that the accumulation of adverse conditions in the
workplace can amount to intolerable conditions for
purposes of assessing whether a constructive discharge
has taken place. In Grey v. Norwalk Board of Educa-
tion, 304 F. Supp. 2d 314, 319 (D. Conn. 2004), the
plaintiff contended that she suffered a hostile work
environment and was constructively discharged as the
Norwalk public schools’ director of curriculum and
assessment. In Grey, the court stated: ‘‘[The plaintiff]
presents a variety of circumstances that, combined, she
argues made her situation ‘intolerable,’ including: the
repeated threat that her position would be eliminated; a
rumored letter announcing her termination; [the deputy
superintendent’s] public usurpation of her authority in
front of her subordinates; the administration’s manipu-
lation of her curricular responsibilities; petty repri-
mands; and [the district superintendent’s] suggestion
that the District [buy back] her contract and his subse-
quent comment that she should consider herself ‘fin-
ished.’ Together, these circumstances support a
reasonable inference of constructive discharge. On [the
plaintiff’s] version of the facts, the fact-finder could
determine that it was reasonable for her to assume that
she was ‘compelled to leave.’ ’’ Id., 324.
Additionally, in Chertkova v. Connecticut General
Life Ins. Co., 92 F.3d 81 (2d Cir. 1996), the United States
Court of Appeals for the Second Circuit concluded that
the plaintiff presented sufficient evidence to overcome
a motion for summary judgment on her constructive
discharge claim. The plaintiff’s evidence suggested that
‘‘her supervisor engaged in a pattern of baseless criti-
cisms, said she would not ‘be around,’ and that she
would be fired instantly if she did not meet certain
ambiguous behavior objectives.’’ Id., 89. The plaintiff
learned that her supervisor was soliciting other employ-
ees for negative information about her. Id., 85. A former
employee stated in an affidavit that ‘‘creating intolerable
conditions to force unwanted employees to quit was a
recognized practice of [the] defendant’s managers.’’ Id.,
90. It was also discovered that the employer had pre-
pared a letter of termination, which the plaintiff never
received. Id., 86.
We do not agree, however, that the plaintiff’s griev-
ances, even if proven, parallel those found in decisional
law to be sufficient to constitute an intolerable work
environment. In sum, although we recognize that ‘‘ ‘[t]he
effect of adverse conditions is cumulative’ ’’; Grey v.
Norwalk Board of Education, supra, 304 F. Supp. 2d
324; the circumstances in which the plaintiff in the
present matter was confronted with cannot be equated
either in kind or in adversity with the work conditions
found in Grey and Chertkova to constitute the basis for
a finding of constructive discharge.
Indeed, viewed in the light most favorable to the
nonmoving party, the admissible evidence submitted by
the parties in conjunction with the motion for summary
judgment suggests that any adverse action by the
department against the plaintiff was driven not by a
desire for retaliation but by looming budgetary con-
straints affecting the top tier of the department. Accord-
ingly, regardless of whether the plaintiff thought that
his position was to be eliminated and even if he was
told of this probability in the context of budget discus-
sions, the actions by the defendant are not sufficient
to raise a genuine issue of material fact as to the high
standard of demonstrating ‘‘the employer’s intent to
create an intolerable environment.’’ (Emphasis added.)
Irizarry v. Lily Transportation Corp., supra, 2017 WL
3037782, *4. Moreover, given the evidence submitted
by the defendant that, indeed, arrangements had been
made to preserve the plaintiff’s position even amidst
budgetary cuts, we agree with the court’s conclusion
that, as a matter of law, no reasonable person ‘‘would
have found the work conditions so intolerable that he
would have felt compelled to resign.’’ (Internal quota-
tion marks omitted.) Id.5 In sum, conveying to the plain-
tiff that his job may be at risk of elimination for
budgetary reasons cannot be equated to allegations of
threats of discharge from employment or termination
letters such as those found in different circumstances
so as to warrant a conclusion of constructive discharge.6
Cf. Chertkova v. Connecticut General Life Ins. Co.,
supra, 92 F.3d 85–86; Grey v. Norwalk Board of Educa-
tion, supra, 304 F. Supp. 2d 319–20.
We conclude, therefore, that the changes in some of
the plaintiff’s work responsibilities were not so objec-
tively intolerable that a reasonable person would have
felt compelled to resign. The plaintiff has not provided
admissible evidence demonstrating that he was
demoted, reprimanded or personally threatened with
the termination of his employment.7 The plaintiff gained
the additional responsibilities of another assistant
chief.8 The plaintiff’s compensation never changed dur-
ing this period. Furthermore, as the trial court noted,
‘‘the fact that the plaintiff accepted a new position with
a higher pay before he resigned significantly undermines
a claim of constructive discharge.’’ (Emphasis in
original.)
Viewing the evidence in the light most favorable to
the nonmoving party, the plaintiff has failed to establish
the existence of a genuine issue of material fact as to
whether he was constructively discharged as a result
of his whistle-blowing actions. In order to successfully
oppose summary judgment, the plaintiff must provide
an evidentiary foundation to demonstrate the existence
of a fact that will make a difference in the result of the
case. There are no genuine issues of material fact that
support his claim that the defendant intentionally cre-
ated such an intolerable work environment that a rea-
sonable person would feel forced to resign.
Accordingly, the court properly rendered summary
judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rovella succeeded Roberts as chief of police after Roberts’ retirement
in 2011. We note that, in conjunction with its motion for summary judgment,
the defendant submitted a transcript excerpt from Rovella’s September 1,
2015 deposition, in which the following exchange occurred between Rovella
and the plaintiff’s counsel:
‘‘Q. Why was [the plaintiff] led to believe his position was not open
anymore and was unfunded?
‘‘A. There’s no reason for [the plaintiff] to believe that was an unfunded
position. . . .
‘‘Q. So, do you recall telling [the plaintiff] that his position was in the
budget for 2012–2013?
‘‘A. Yes.’’
In addition, the court had evidence, in the form of the plaintiff’s deposition
transcript and handwritten notes, submitted in conjunction with the motion
for summary judgment, indicating that the plaintiff learned from Tom Bow-
ley, the department’s fiscal manager, that even though funding for his posi-
tion was being eliminated from the budget, funds necessary to pay his salary
were being ‘‘backfilled’’ from another department account. See footnote 5
of this opinion.
2
The complaint further alleges that the defendant penalized the plaintiff
by discharging him for investigating, identifying and reporting ‘‘Brooks’
alleged unethical practices, mismanagement, and abuse of authority.’’
3
We note that our courts have looked to federal employment discrimina-
tion standards, in the absence of authority to the contrary, in retaliatory
discharge cases. See, e.g., LaFond v. General Physics Services Corp., 50
F.3d 165, 172 (2d Cir. 1995); Ritz v. East Hartford, 110 F. Supp. 2d 94, 98
(D. Conn. 2000); Beizer v. Dept. of Labor, 56 Conn. App. 347, 355–56, 742
A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).
4
The defendant submitted, among its exhibits in support of its motion
for summary judgment, excerpts of the plaintiff’s August 31, 2015 deposition.
During that deposition, the following exchange occurred between the defen-
dant’s counsel and the plaintiff:
‘‘Q. . . . [I]f you could provide me with an encapsulation of what your
duties were before McKoy left, primary duties . . . and your primary duties
after McKoy left?
‘‘A. Sure. Prior to Assistant Chief McKoy leaving city service, I was the
assistant chief in charge of the detective bureau, and after Chief McKoy’s
departure, I assumed the responsibilities for not only the detective bureau,
but also all of the patrol division, uniformed services, and it was titled
assistant chief of operations.
‘‘Q. Okay. And so am I correct in understanding that you kept all or the
majority of your duties as assistant chief of the detective bureau and they
just added the additional duties of operations?
‘‘A. Yes.’’
The plaintiff’s resume reflected that these additional responsibilities began
in July, 2011.
5
We again note that in his deposition, the plaintiff recalled that the defen-
dant had ‘‘backfilled’’ his salary with funding from another account:
‘‘Q. Well, [Bowley] said [the plaintiff’s job] was cut in theory, but that it
was still reflected in the budget book as filled.
‘‘A. Because it was being backfilled by moneys from another account or
category, as I have written here . . . .
‘‘Q. I don’t see backfilled. Is that what you’re suggesting, that it is coming
out of the attrition category as backfilling?
‘‘A. Yes. The $127,000 would have been my salary. So, if my salary equated
to $127,000 and that exact amount is coming out of the attrition and this
is the information that he’s providing to me, one would only make that
assumption that that’s where the money was coming from.’’ See also footnote
1 of this opinion.
Additionally, the defendant submitted a portion of the department’s
adopted payroll analysis budget for fiscal year 2012–2013, showing that the
plaintiff’s position was funded.
6
Because the plaintiff repeatedly relies on specific statements contained
in his affidavit and the affidavit of Valda G. Washington, the defendant’s
director of human resources, to support his claim that the defendant intended
to discharge him in retaliation for his whistle-blowing actions, we briefly
address them.
In his affidavit, the plaintiff states: ‘‘On February 15, 2012, Frank Rudewicz
e-mailed me to set up a meeting. Rudewicz was the lead investigator for
the Marcum LLP group. Rudewicz and I subsequently met, and Rudewicz
told me that he had been called to a meeting with Mayor [Pedro] Segarra
and members of his cabinet team, where he was given a copy of the memoran-
dum I submitted to Chief Roberts on December 1, 2011. Rudewicz told me
the [m]ayor was very angry and asked him, ‘Why are these guys documenting
everything? Why should I keep them around if they are going to do this?’
. . . Rudewicz then asked me if I was looking for another job. It was clear
from the context that he was telling me to look for another job because
the mayor and staff were angry at me . . . .’’
‘‘Only evidence that would be admissible at trial may be used to support
or oppose a motion for summary judgment. . . . Practice Book § 17-46
provides in relevant part that affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein.’’ (Citation omitted; internal quotation marks omitted.) Midland
Funding, LLC v. Mitchell-James, supra, 163 Conn. App. 655. ‘‘Hearsay is
an out-of-court statement offered to prove the truth of the matter asserted.
. . . Unless subject to an exception, hearsay is inadmissible.’’ (Citation
omitted; internal quotation marks omitted.) Id.
In the plaintiff’s affidavit, he recalls a statement made to him by a third
party, Rudewicz, who was also recalling a statement made to him by the
mayor. The statement, ‘‘ ‘Why should I keep them around if they are going
to do this?’ ’’ is an out-of-court statement offered to prove the truth of the
matter asserted; that is, to prove that the defendant intended to terminate
the plaintiff’s employment for his whistle-blowing activities. The statement
was not made by the declarant. See Conn. Code Evid. § 8-1. This statement
is hearsay by definition in our Code of Evidence and is not admissible, nor
does it fall within one of the exceptions to the rule against hearsay. Conn.
Code Evid. §§ 8-2 and 8-3. Accordingly, we cannot consider this statement
as admissible evidence in opposition to the motion for summary judgment.
The same logic applies to the out-of-court statements contained in Wash-
ington’s affidavit, dated December 4, 2015. Furthermore, there is no evidence
or allegation that the plaintiff was aware of the statements contained in
Washington’s affidavit until after December 4, 2015.
7
Again, we note that although the plaintiff’s complaint and affidavit state
that he was informed by Rovella ‘‘that [his] position as [a]ssistant [c]hief
of [p]olice was being eliminated from the budget’’; (emphasis added); there
is no admissible evidence supporting the allegation that the plaintiff himself
(and not his position in the budget) was being eliminated. See footnote 1
of this opinion.
8
The court noted that up until the time the plaintiff resigned, he retained
such duties as: ‘‘leading Compstat meetings; leading the police budget com-
mittee; serving on the policy and procedure committee; serving on the
firearms discharge board of inquiry; serving on the safety committee; serving
on the health and wellness committee; serving as a CTIC policy board
member; and serving as a police representative to the homeless working
group.’’