Davidson v. City of Bridgeport

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BOBBY DAVIDSON v. CITY OF
BRIDGEPORT ET AL.
(AC 38226)
Lavine, Elgo and Flynn, Js.
Syllabus
The plaintiff, a former Bridgeport police officer, sought to recover damages
from the defendants, the city of Bridgeport, the Bridgeport Police Depart-
ment, and N, a former Bridgeport chief of police, for an alleged violation
of his right to privacy and negligent and intentional infliction of emo-
tional distress. The plaintiff, who was the subject of an internal disciplin-
ary proceeding, had attended a meeting with N, who observed the
plaintiff launch into an outburst regarding alleged unjust treatment by
the department’s internal affairs division. Following the meeting, N
requested the department’s workers’ compensation carrier to schedule
the plaintiff, who was on disability leave for work related injuries, for
a psychiatric independent medical examination. The plaintiff had
received a notice instructing him to bring certain medical records related
to his injury to the examination and was under the impression that
he was to undergo a physical examination. When he reported for the
examination and learned it was psychiatric in nature, he left before
being examined but eventually underwent the psychiatric examination.
A few months later, N requested that the Board of Police Commissioners
afford the plaintiff a service related involuntary retirement, which the
board granted. Thereafter, the plaintiff commenced the present action
claiming, inter alia, that, by subjecting him to the psychiatric examina-
tion, the defendants invaded his privacy and that he was forced to retire
based on an alleged psychiatric disability. Following a trial, the trial
court rendered judgment in favor of the defendants, from which the
plaintiff appealed to this court. Held:
1. The trial court properly determined that the defendants did not violate
the plaintiff’s right to privacy; the record did not support the plaintiff’s
claim that the defendants released and disseminated the psychiatric
evaluation of him, resulting in his involuntary termination from employ-
ment, as the trial court credited the testimony of two police officers
that they never copied or disseminated the evaluation to anyone, and
it was not for this court to disturb the trial court’s credibility findings,
there was substantial evidence in the record to support the court’s
finding that the plaintiff had been granted a service related, involuntary
retirement on the basis of his physical disabilities, and the plaintiff failed
to prove by a preponderance of the evidence that, by requiring him to
undergo a psychiatric medical examination, the defendants unreason-
ably intruded on his seclusion and that the intrusion would have been
offensive to a reasonable person, as the record supported the court’s
findings that N had sent the plaintiff for the examination out of concern
for his welfare and to determine his fitness for duty, that the plaintiff’s
alleged emotional injury was the result of the internal affairs investiga-
tion, that N had the authority to refer the plaintiff for a psychiatric
independent medical examination due to a concern for the plaintiff’s
well-being, and that the plaintiff had presented no credible evidence
that the defendants had an improper intent to invade his privacy.
2. The plaintiff could not prevail on his claim that the trial court improperly
concluded that the defendants did not negligently or intentionally cause
him emotional distress; the record contained no evidence that the defen-
dants intended to inflict emotional distress on the plaintiff or that emo-
tional distress was the likely result of sending him for a psychiatric
examination, the trial court found that the plaintiff’s emotional distress
was not caused by his going to the psychiatrist’s office for the examina-
tion and that the plaintiff had been suffering emotional distress long
before he had been ordered to undergo the psychiatric examination, as
he was distressed by, and obsessed with, the outcome of the internal
affairs investigation, and there was no evidence that, by requiring the
plaintiff to undergo the psychiatric examination, the defendants created
an unreasonable risk of emotional distress that resulted in illness or
bodily harm.
Argued September 19, 2017—officially released March 6, 2018
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged violation of the plaintiff’s right to privacy,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the matter was
removed to the United States District Court for the
District of Connecticut, Thompson, J., which granted
in part the defendant Mark Rubinstein’s motion for sum-
mary judgment and remanded the matter to the Superior
Court on the remaining state law claims; thereafter, the
plaintiff withdrew the matter as to the defendant Mark
Rubinstein; subsequently, the matter was tried to the
court, Hon. Richard P. Gilardi, judge trial referee; judg-
ment for the defendants, from which the plaintiff
appealed to this court. Affirmed.
John T. Bochanis, for the appellant (plaintiff).
Eroll V. Skyers, assistant city attorney, for the appel-
lee (defendants).
Opinion
LAVINE, J. The plaintiff, Bobby Davidson, appeals
from the judgment of the trial court, rendered after a
trial to the court, in favor of the defendants, the city
of Bridgeport (city), the Bridgeport Police Department
(department), and Bryan T. Norwood, former Bridge-
port chief of police.1 On appeal, the plaintiff claims that
the court improperly found that the defendants did not
(1) violate his state right to privacy or (2) negligently
or intentionally cause him emotional distress. We affirm
the judgment of the trial court.
The court’s memorandum of decision contains the
following preface to its findings of fact. ‘‘This claim
arises out of the plaintiff being sent to a certain doctor
for an [independent medical examination (examina-
tion)]. As he was on a disability leave for cervical fusion,
he assumed it was a physical exam. When he arrived at
the appointment, he found the doctor was a psychiatrist
and it was to be a psychiatric exam. Solely as a result
of the inadvertent mix-up in scheduling the exam, the
plaintiff is claiming invasion of privacy, negligent inflic-
tion of emotional distress and intentional infliction of
emotional distress.
‘‘This incident took place in the middle of several
contentious disputes involving the plaintiff and the
[department]. All the clashes between the plaintiff and
the department are presently subject to grievance pro-
cedures, including the actual referral for the psychiatric
examination, and are not part of this litigation.2 The
circumstances, however, surrounding his referral for
an examination are a necessary part of this litigation.’’
(Footnote added.) The court, thereafter, made the fol-
lowing findings of fact.
The plaintiff was first employed by the city as a spe-
cial police officer in 1977. He became a patrol officer
in 1985 and a sergeant with supervisory responsibilities
in 1992. Reynaldo Arriaga was one of the patrol officers
whom the plaintiff supervised. In approximately 2004,
Arriaga lodged six complaints against the plaintiff, alleg-
ing that he had violated department policy. The depart-
ment internal affairs division investigated and found
that five of the six complaints were unsubstantiated.
As to the sixth complaint, the internal affairs division
found that the plaintiff had violated department policy.3
Officer Murphy Pierce witnessed the encounter
between the plaintiff and Arriaga and corroborated Arri-
aga’s version of the event that gave rise to his harass-
ment complaint.
During the time the plaintiff was a police officer,
he sustained several service-related injuries and was
placed on inactive duty from time to time. In February,
2005, he was unable to perform his duties as a patrol
officer and was placed on the department sick and
injured management list. Captain A.J. Perez was respon-
sible for the department’s sick and injured management
program and, therefore, kept track of the status and
medical records of officers who were either sick or
injured. The plaintiff was required to meet regularly
with Perez. According to Perez, the plaintiff was con-
sumed with the outcome of the internal affairs investiga-
tion. Whenever he met or saw Perez, the plaintiff
launched into a litany of complaints about the internal
affairs process, claiming that he had endured an injus-
tice and that he suffered anguish as a result of the
investigation. The plaintiff also talked about the matter
to Captain Chapman, who over time ‘‘disappeared’’
whenever he saw the plaintiff coming. Sergeant Joseph
Hernandez, the department clerk, was not friendly with
the plaintiff, but when the two of them spoke, the plain-
tiff repeated his complaints about the internal affairs
division and accused everyone involved of lying.
The court found that Norwood was appointed chief
of police in April, 2006, and that he scheduled a meeting
regarding the plaintiff’s disciplinary matter for May 19,
2006. Officer Sean Ronan, president of the police union,
attended the meeting to represent the plaintiff. The
plaintiff began the meeting with an outburst regarding
the unjust treatment he had received from the internal
affairs division. He told Norwood that the incident had
been on his mind for years and that he had written
letters requesting a ‘‘true’’ disciplinary hearing. The
meeting lasted approximately ten minutes and con-
cluded when Norwood ended the plaintiff’s ‘‘diatribe’’
and asked him to leave.
On the basis of his observations of the plaintiff’s
behavior during the meeting, Norwood asked the
department’s workers’ compensation carrier, Con-
centra Integrated Services (Concentra), to schedule the
plaintiff for an examination with Mark Rubinstein, a
psychiatrist.4 Concentra sent the plaintiff a notice that
stated in part that he was to undergo an examination
with Rubinstein on June 22, 2006, and that he should
take ‘‘any x-rays, CT scans, MRI studies and/or other
medical records pertaining to’’ his injury to the examina-
tion. Given the instructions in the notice, the plaintiff
was under the impression that he was to undergo a
physical examination. The court found that there had
been a mix-up and that no one had advised the plaintiff
that he was to undergo a psychiatric examination. When
the plaintiff arrived at Rubinstein’s office and learned
that he was to undergo a psychiatric examination, he
‘‘simply left.’’
The department rescheduled the plaintiff’s examina-
tion with Rubinstein for July 7, 2006.5 When the plaintiff
strenuously objected to the examination, the depart-
ment ordered him to attend.6 The plaintiff inquired of
his union whether he had to undergo the examination;
Ronan replied and informed the plaintiff that he had to
attend the examination because it concerned his well-
being.7 The plaintiff returned to Rubinstein’s office and
was examined by him.
With respect to the plaintiff’s work related injuries
previously mentioned, the court found that the plaintiff
fractured his left hip in 1987, injured his back, and in
1999 injured his neck and back. The plaintiff was
awarded a permanent partial disability for which he
received workers’ compensation benefits. In November,
2005, the plaintiff underwent a cervical fusion at several
levels of his spine. He did not return to work following
the surgery; and according to Roger H. Kaye, a neurosur-
geon, he would never be able to return to active duty
as a patrol officer.8 In October, 2006, Norwood
requested that the Board of Police Commissioners
(commissioners) afford the plaintiff a service related,
involuntary retirement.9 The commissioners granted the
plaintiff a service related, involuntary retirement on
November 28, 2006.
The plaintiff commenced the present action in May,
2008, and the defendants removed the case to federal
court. The United States District Court for the District
of Connecticut granted partial summary judgment in
favor of the defendants10 and, on March 31, 2011,
remanded the case to the Superior Court for resolution
of the plaintiff’s state law claims. The plaintiff appealed
to the United States Court of Appeals for the Second
Circuit, which affirmed the judgment of the District
Court.11 The decisions of the federal courts were
attached as exhibits to Rubinstein’s motion for sum-
mary judgment in the Superior Court.12
Thereafter, the plaintiff revised his complaint and
alleged three claims, in multiple counts, against the
defendants: wrongful invasion upon his seclusion,
intentional infliction of emotional distress, and negli-
gent infliction of emotional distress. The plaintiff
alleged that as a consequence of the defendants’ inva-
sion of his privacy he was ‘‘told that he would be forced
to retire based on an alleged psychiatric disability.’’
The defendants denied that they invaded the plaintiff’s
privacy, that he was forced to retire on the basis of
psychiatric disability, or that the alleged intrusion on
his privacy caused him emotional distress.13
Following trial, the court found that the plaintiff had
failed to submit credible evidence of the defendants’
improper intent to invade his privacy. To the contrary,
the court found that Norwood’s motive for referring
the plaintiff for a psychiatric evaluation was to ensure
his welfare and well-being. The court also found that
the plaintiff suffered no emotional distress with respect
to Concerta’s mistake in scheduling the examination
with Rubinstein. The court found that the plaintiff’s
emotional distress began when the internal affairs divi-
sion sustained the charges of improper conduct against
him and continued to the time of trial. The court, there-
fore, rendered judgment in favor of the defendants.
Additional facts will be addressed as necessary.
I
The plaintiff claims that the court erred in finding
that the defendants did not violate his right to privacy
by requiring him to undergo a psychiatric examination.
As more specifically stated in his brief, the plaintiff
claims that the defendants unreasonably intruded upon
his privacy by forcing him to submit to a psychiatric
examination and by releasing and disseminating Rubin-
stein’s psychiatric evaluation of him. He further claims
that the unreasonable intrusion upon his privacy forced
him to retire involuntarily from the department, which
resulted in the loss of benefits associated with his
employment. The plaintiff’s claim is without merit.
The plaintiff’s claim presents a mixed question of law
and fact to which we apply the plenary standard of
review. Winchester v. McCue, 91 Conn. App. 721, 726,
882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91
(2005). Our task is to determine whether the court’s
conclusions are legally and logically correct and find
support in the facts that appear in the record. See Tooley
v. Metro-North Commuter Railroad Co., 58 Conn. App.
485, 492 n.8, 755 A.2d 270 (2000).
To the extent that the plaintiff claims that the defen-
dants released and disseminated Rubinstein’s psychiat-
ric evaluation that resulted in his involuntary
termination from employment, those assertions are not
supported by the court’s findings or the record. To
begin with, the court found Perez and Hernandez to be
credible witnesses, but found that the plaintiff’s ‘‘entire
testimony’’ was ‘‘replete with unfounded factual allega-
tions and contradictions.’’ Credibility determinations
are not within the province of appellate courts; Wheela-
brator Bridgeport, L.P. v. Bridgeport, 320 Conn. 361,
133 A.3d 402 (2016); and we will not disturb the court’s
credibility findings.
The court found that Perez and Hernandez were
required to maintain the personnel files of members of
the department. The two officers testified that they
never copied Rubinstein’s report or disseminated it to
anyone. They also testified that Rubenstein’s report was
not mentioned at the commissioners’ meeting when the
plaintiff’s retirement was voted on and that they had
no knowledge that the commissioners had a copy of
Rubinstein’s report. The commissioners did have the
plaintiff’s orthopedic records, including the report that
he was disabled. As to the plaintiff’s claim that he lost
his employment with the department due to the psychi-
atric examination, the court found that the commission-
ers granted him a service related, involuntary
retirement on the basis of his physical disabilities.14
There is substantial evidence in the record to support
the court’s findings regarding the basis of the plaintiff’s
involuntary retirement.
Our Supreme Court has observed that ‘‘the law of
privacy has not developed as a single tort, but as a
complex of four distinct kinds of invasion of four differ-
ent interests of the plaintiff, which are tied together by
the common name, but otherwise have almost nothing
in common except that each represents an interference
with the right of the plaintiff to be [left] alone.’’ (Internal
quotation marks omitted.) Foncello v. Amorossi, 284
Conn. 225, 234, 931 A.2d 924 (2007). The four categories
of invasion of privacy are: ‘‘([1]) unreasonable intrusion
upon the seclusion of another; ([2]) appropriation of the
other’s name or likeness; ([3]) unreasonable publicity
given to the other’s private life; or ([4]) publicity that
unreasonably places the other in a false light before the
public.’’ (Internal quotation marks omitted.) Id., quoting
Goodrich v. Waterbury Republican-American, Inc., 188
Conn. 107, 127–28, 448 A.2d 1317 (1982); see also 3
Restatement (Second), Torts, Invasion of Privacy
§ 652A, p. 376 (1977). ‘‘[P]rivacy actions involve injuries
to emotions and mental suffering, while defamation
actions involve injury to reputation.’’ Goodrich v. Water-
bury Republican-American, Inc., supra, 128 n.19. The
plaintiff’s claim falls within the first category.
We now turn to the question of whether the court
properly determined that the defendants did not violate
the plaintiff’s right to privacy by unreasonably intruding
on his solitude when they ordered him to undergo a
psychiatric evaluation. See W. Keeton et al., Prosser
and Keeton on the Law of Torts (5th Ed. 1984) § 117,
pp. 854–56 (intentional interference with another’s
interest in solitude or seclusion); 3 Restatement (Sec-
ond), Torts, Invasion of Privacy §§ 652A and 652B, pp.
376, 378 (1977).15
To prevail, the plaintiff had to prove by a preponder-
ance of the evidence that by requiring him to undergo
a psychiatric examination, the defendants unreasonably
intruded on his seclusion and that the intrusion would
be highly offensive to a reasonable person.16 ‘‘It is the
[fact finder’s] exclusive province to weigh the conflict-
ing evidence and to determine the credibility of wit-
nesses.’’ (Internal quotation marks omitted.) State v.
Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002),
cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).
The court found that Norwood sent the plaintiff for
a psychiatric examination out of concern for his welfare
and to determine his fitness for duty. Moreover, the
court found that the plaintiff’s alleged emotional injury
was not the result of his having been sent to a psychiat-
ric examination, but was the result of the internal affairs
investigation. The court’s findings and the record sup-
port its legal conclusions.
The court found that the plaintiff disagreed with and
was upset by the outcome of the internal affairs investi-
gation. When he met with Norwood in May, 2006, he
began the meeting with an outburst regarding the unjust
treatment he claimed he had received from the internal
affairs division. He told Norwood that the incident had
been on his mind for years and that he had written
letters requesting a ‘‘true’’ disciplinary hearing. In addi-
tion, the plaintiff told Norwood that the charge was
ridiculous, and that the officers, including Pierce, were
lying. He wanted an opportunity to cross-examine
Pierce. He informed Norwood that he could not func-
tion and was, in effect, consumed by the decision of
the internal affairs division. At trial, the plaintiff testified
that Norwood had conducted a kangaroo court, that
Norwood did not know what was going on, and that
‘‘[h]e’s probably manipulated himself.’’ The court stated
that the plaintiff ‘‘referenced’’ Norwood as an idiot.
According to the plaintiff, he had presented exculpatory
evidence to the internal affairs division that was com-
pletely stonewalled. As to Ronan, who was present at
the meeting as a union representative, the plaintiff testi-
fied that Ronan was too intimidated by the officers
in attendance.
In addition, the court found that Pierce was subpoe-
naed and testified at trial that he was present when the
incident between the plaintiff and Arriaga took place.
Despite Pierce’s testimony, the plaintiff maintained
throughout trial that Pierce was not present at the time
of the incident.
As previously stated, the court found that Hernandez
and Perez were credible witnesses. Both officers testi-
fied that the chief of police has the authority to request
an examination. According to the department patrol
guide, the chief of police may direct an officer who is
on extended sick leave or an injured list to submit to
an examination by a physician designated by the city.
The plaintiff himself testified that regardless of whether
he was on active or inactive duty, if he behaved in a
manner that may have constituted a danger to himself
or others, the chief of police would be justified in
requesting a psychiatric examination.17 The plaintiff,
however, denied that he was behaving in a manner that
warranted a psychiatric evaluation. The court found
that Norwood had the authority to refer the plaintiff
for a psychiatric examination due to concern for the
plaintiff’s well-being. Moreover, the court was of the
opinion that, as a result of the plaintiff’s behavior, a
supervising chief of police would be expected to con-
firm the welfare and well-being of an officer of the
department with respect to his fitness for duty. The
court found that the plaintiff had presented no credible
evidence that the defendants had an improper intent
to invade his privacy; to the contrary, Norwood’s motive
for referring the plaintiff for a psychiatric evaluation
was to ensure his welfare and well-being. See Interna-
tional Brotherhood of Police Officers, Local 361 v. New
Milford, 81 Conn. App. 726, 736 n.2, 841 A.2d 706 (2004)
(municipality has legitimate interest in fitness and emo-
tional stability of armed peace officers).18
The plaintiff claims that the defendants unreasonably
intruded on his privacy by compelling him to undergo
a psychiatric examination. Assuming for the sake of
argument only that a psychiatric examination was an
intrusion on the plaintiff’s seclusion, we must determine
whether the intrusion was unreasonable and whether
a reasonable person would find the intrusion highly
offensive. We conclude that because Norwood wanted
to determine the plaintiff’s fitness for duty as a Bridge-
port police officer, his intrusion into the plaintiff’s seclu-
sion, if any, was reasonable and that a reasonable
person would not find it highly offensive. See 3
Restatement (Second), supra, §§ 652A and 652B.
The court found through the plaintiff’s own testimony
that he was consumed by the outcome of the internal
affairs investigation and could not function. Ronan’s
letter to the plaintiff confirming the city’s right to order
him to undergo a psychiatric examination if it had a
bona fide concern about his fitness for duty is circum-
stantial evidence of the department’s interest in
determining an officer’s fitness for duty. The record
discloses evidence that Norwood and other members
of the department were concerned about the plaintiff’s
well-being and thus his fitness for duty. See footnotes
4, 5, and 6 of this opinion. The plaintiff complained
repeatedly about his emotional distress to members of
the department. The plaintiff, therefore, invited concern
for his welfare, which is at odds with his claim in this
action that he wished to be left alone. The court found
that Norwood wrote to Rubinstein asking him to evalu-
ate the plaintiff’s fitness for duty. We conclude that the
court’s findings that Norwood had a bona fide concern
about the plaintiff’s well-being and needed to be assured
of the plaintiff’s fitness for duty is not clearly erroneous.
On appeal, the plaintiff has not argued or demonstrated
that Norwood’s concern for his fitness for duty was not
a reasonable basis to order him to undergo a psychiat-
ric examination.
The plaintiff has argued, contrary to the representa-
tions of the defendants, that § 3.13 of the patrol guide
does not authorize the chief of police to order him to
submit to a psychiatric examination. The record
includes copies of letters that the plaintiff received from
the department ordering him to see Rubinstein pursuant
to § 3.13. The court concluded that Norwood had the
authority to refer the plaintiff for a psychiatric examina-
tion, but it made no finding that § 3.13 of the patrol
guide permits the chief of police to send an officer for
a psychiatric examination.
As to whether a reasonable person would find the
defendants’ intrusion on the plaintiff’s seclusion, if any,
highly offensive, the court made no finding in that
regard.19 On appeal, the plaintiff failed to address that
aspect of the alleged tort. We, therefore, conclude that
he failed to carry his burden to prove that the defen-
dants invaded his privacy, and that the court properly
found in favor of the defendants.
II
The plaintiff’s second claim is that the court improp-
erly concluded that the defendants did not negligently
or intentionally cause him emotional distress.20 We
disagree.
The court made the following relevant findings of
fact. The plaintiff suffered no emotional distress with
respect to the mistake in Concentra’s June 2, 2006 letter
to the plaintiff, i.e., to take his X rays, CT scans, MRI
studies, and/or other medical records to Rubinstein, or
the department’s failing to tell the plaintiff that he was
being sent to a psychiatrist for an examination. The
emotional distress from which the plaintiff suffered
began and continued as a result of the internal affairs
division’s earlier finding that he had violated depart-
ment policy. The plaintiff repeatedly told Perez and
Hernandez the devastating emotional effect he felt as
a result of the internal affairs investigation. He reported
his subjective symptoms on a weekly basis beginning
in 2004. The plaintiff started the May, 2006 meeting with
Norwood with a litany of complaints, which caused
Norwood to end the meeting. At trial, the plaintiff testi-
fied that he was consumed by the outcome of the inter-
nal affairs investigation and could not function. The
plaintiff does not claim that the court’s findings are
clearly erroneous.
To prevail on a claim of intentional infliction of emo-
tional distress, a plaintiff must prove by a preponder-
ance of the evidence ‘‘(1) that the actor intended to
inflict emotional distress or that he knew or should
have known that emotional distress was the likely result
of his conduct; (2) that the conduct was extreme and
outrageous; (3) that the defendant’s conduct was the
cause of the plaintiff’s distress; and (4) that the emo-
tional distress sustained by the plaintiff was severe.’’
(Internal quotation marks omitted.) Stancuna v. Schaf-
fer, 122 Conn. App. 484, 491–92, 998 A.2d 1221 (2010).
We have reviewed the record and find no evidence
that the defendants intended to inflict emotional dis-
tress on him or that emotional distress was the likely
result of sending the plaintiff for a psychiatric examina-
tion. Nor has the plaintiff brought such evidence to
our attention. The court also found that the plaintiff’s
emotional distress was not caused by his going to Rubin-
stein’s office and learning that he was to undergo a
psychiatric examination. The plaintiff had been suffer-
ing emotional distress long before the defendants
ordered him to undergo a psychiatric examination. The
plaintiff’s preexisting emotional distress was, in fact, a
factor motivating Norwood to order the psychiatric
examination.
To prevail on a claim of ‘‘negligent infliction of emo-
tional distress, the plaintiff must prove: (1) the defen-
dant’s conduct created an unreasonable risk of causing
the plaintiff emotional distress; (2) the plaintiff’s dis-
tress was foreseeable; (3) the emotional distress was
severe enough that it might result in illness or bodily
harm; and (4) the defendant’s conduct was the cause
of the plaintiff’s distress.’’ (Internal quotation marks
omitted.) Grasso v. Connecticut Hospice, Inc., 138
Conn. App. 759, 771, 54 A.3d 221 (2012). The plaintiff’s
claim that the court improperly found that the defen-
dants did not negligently cause him emotional distress
fails for the same reason that he cannot prevail on
his claim of intentional infliction of emotional distress.
Ordering the plaintiff to undergo a psychiatric examina-
tion was not the cause of his distress. He was distressed
by, and obsessed with, the outcome of the internal
affairs investigation. On the basis of our review of the
record, we find no evidence that by requiring the plain-
tiff to undergo a psychiatric examination, the defen-
dants created an unreasonable risk of emotional
distress that resulted in illness or bodily harm. For the
foregoing reasons, the plaintiff’s second claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his complaint, the plaintiff also alleged that Mark Rubinstein, a psychia-
trist, wrongfully intruded on his seclusion. The plaintiff later withdrew his
claims against Rubinstein, who is not a party to this appeal. Our references
to the defendants are to the city, the department and Norwood, collectively.
2
The court found that the plaintiff’s involuntary retirement also is subject
to a grievance proceeding.
3
Arriaga complained that the plaintiff had asked him whether he had
sustained certain injuries by falling off his ‘‘donkey’’ or by having ‘‘wild sex
with [his] Brazilian women.’’
4
Norwood wrote to Rubinstein on June 21, 2006, stating: ‘‘The Bridgeport
Police Department requested an independent medical examination of [the
plaintiff] after observing his behavior in the course of a conversation regard-
ing a pending discipline matter. Several employees who witnessed and/or
participated in the conversation raised concerns in relation to [the plaintiff’s]
conduct. Your assistance in this matter will be appreciated.’’
5
Norwood again wrote to Rubinstein on June 23, 2006, stating: ‘‘On May
19, 2006, I conducted a disciplinary hearing regarding [the plaintiff]. The
hearing was subsequently and prematurely suspended after I became very
concerned about [the plaintiff’s] well-being. Based on my personal observa-
tion, [the plaintiff] appeared to be suffering from extreme paranoia, anxiety
and depression. He also displayed extreme difficulty articulating his state-
ments in a coherent manner. Based on the above stated observation, it is
my recommendation that [the plaintiff] be evaluated to determine his fitness
for duty. Your assistance in this matter will be appreciated.’’
6
Hernandez wrote to the plaintiff stating in part: ‘‘As you are aware, Dr.
Rubinstein, with whom you were scheduled for an [Independent Medical
Exam (IME)] contacted the Chief’s office stating that although you arrived
on time, you did not follow through with your scheduled exam. After my
conversation with you on Thursday, June 22, it became apparent that there
was a misunderstanding as to why the IME was scheduled, causing you
some discomfort.
‘‘Chief Norwood is genuinely concerned for your well-being and has
instructed me to re-schedule an Independent Medical Exam for you with
the understanding that you are being examined [by] a Psychiatrist.
‘‘I have been asked to advise you that this exam is not voluntary on your
part and your presence is required per department policy 3.13.’’
7
Ronan stated in part: ‘‘[T]he Executive Board was presented with your
grievance on July [sixth] at our regularly scheduled Executive Board meet-
ing. It is the Unions’ belief that the City has particular rights concerning an
Independent Medical Exam (IME), if the Department has a bona fide concern
for ‘fitness for duty.’ ’’
8
On July 25, 2006, Kaye conducted an examination of the plaintiff and
wrote a letter to Concentra that day stating, in part, that the plaintiff ‘‘is
partially disabled. His previous job was a field police sergeant. He cannot
return to physical police work, but I see no reason he cannot function at
a desk job.’’
9
On October 6, 2006, Hernandez wrote to the plaintiff stating in part: ‘‘As
a result of the findings in your recent independent medical exam(s), Chief
Norwood has decided to invoke his rights under the departments sick and
injury policy, rule 3.13.19 and article 42, and seek your retirement by the
Honorable Board of Police Commissioners.’’ The letter, which was admitted
into evidence at trial, stated that a copy of the examination was attached,
but no such copy is attached to the exhibit.
10
In its decision, the District Court primarily addressed the plaintiff’s
claim against Rubinstein for wrongfully intruding on his right to seclusion.
The District Court agreed with Rubinstein that summary judgment should
be granted in his favor with respect to General Statutes § 52-146e, which
protects a psychiatric patient’s right to confidentiality. The court concluded
that application of the statute to the present examination circumstances
was not appropriate. The court reasoned that a principal purpose of the
statute is to give a patient an incentive to make full disclosure to a physician
in order to obtain effective treatment. However, ‘‘[c]ommunications that
bear no relationship to the purpose for which the privilege was enacted do
not obtain shelter under the statute . . . .’’ Bieluch v. Bieluch, 190 Conn.
813, 819, 462 A.2d 1060 (1983). Furthermore, a patient may claim the privilege
of confidentiality only if he or she had a justified expectation that his or
her communication would not be disclosed publicly. State v. White, 169
Conn. 223, 234, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46
L. Ed. 2d 399 (1975). The court found that the plaintiff had no expectation
of privacy as the notice from Concentra stated that no doctor-patient relation-
ship was created during the examination. Also Rubinstein orally advised
the plaintiff that his evaluation would not be kept confidential. The District
Court found, therefore, that the plaintiff had waived his right to privacy.
The District Court found that the plaintiff ‘‘was not engaged in a therapeu-
tic relationship with Rubinstein, but rather, was undergoing an evaluation
at the request of his employer. The evaluation was arranged through his
employer, with the doctor of his employer’s choosing, paid for by his
employer, and done for the purpose of evaluating [the plaintiff’s] ‘fitness
for duty.’ The purpose of [the plaintiff’s] meeting with Rubinstein bears no
relationship to the purpose for which the psychiatrist-patient privilege was
enacted, and therefore is not sheltered by § 52-146e.’’
The District Court also granted the defendants’ motion for summary judg-
ment with respect to the plaintiff’s federal law claims and declined to exer-
cise jurisdiction pursuant to 28 U.S.C. § 1367 (c) over the plaintiff’s remaining
state law claims against any of the defendants. Davidson v. Bridgeport,
United States District Court, Docket No. 3:08CV00971 (AWT) (D. Conn.
March 31, 2011).
11
See Davidson v. Bridgeport, 487 Fed. Appx. 590 (2d Cir. 2012). The
Court of Appeals concluded that the plaintiff could not prevail on his 42
U.S.C. § 1983 substantive due process and fourth amendment claims that
the city invaded his privacy by subjecting him to a psychiatric examination
because no jury could conclude that the city’s request that the plaintiff
undergo the examination was either arbitrary or unreasonable. The Court
of Appeals also concluded that the plaintiff could not prevail on his substan-
tive due process claim because he could not demonstrate that the city
engaged in deliberate malfeasance by intending to injure or spite him.
The plaintiff’s fourth amendment claim that the examination constituted
an unreasonable search also failed. Although the District Court found that
the plaintiff had waived his fourth amendment right to privacy by agreeing
to the examination after he had been warned that Rubinstein’s report would
be shared with Norwood and the department, the Court of Appeals did not
reach that issue as there was no genuine issue of material fact as to the
reasonableness of the city’s request for the examination. The city ordered
the examination in the context of the plaintiff’s employment, not the investi-
gation of a crime or some other law enforcement objective. The examination,
therefore, fell in the category of a special needs search. See Lynch v. New
York, 589 F.3d 94, 102 (2d Cir. 2009), cert. denied, 562 U.S. 995, 131 S. Ct.
415, 178 L. Ed. 2d 344 (2010).
On the basis of the record, the Court of Appeals reasoned that there were
no genuine issues of material fact and that a fact finder could only conclude
that any search was reasonable. The plaintiff’s privacy interest in his personal
medical information is diminished to the extent that physical and mental
fitness are essential to his work as an armed law enforcement officer. See
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672, 109
S. Ct. 1384, 103 L. Ed. 2d 685 (1989); Lynch v. New York, supra, 589 F.3d 103.
12
We may take judicial notice of the trial court’s file. Dockter v. Slowik,
91 Conn. App. 448, 459 n.7, 881 A.2d 479, cert. denied, 276 Conn. 919, 888
A.2d 87 (2005).
13
In response to the revised complaint, the defendants asserted several
special defenses, including governmental, municipal and sovereign immu-
nity, res judicata, waiver, laches, collateral estoppel, and that the complaint
failed to state a cause of action against the defendants. Our review of the
record reveals that the defendants filed no motions to strike or for summary
judgment predicated on their special defenses. See footnote 20 of this
opinion.
14
See footnotes 8 and 9 of this opinion.
15
Section 652A of the Restatement (Second) of Torts provides in relevant
part: ‘‘(1) One who invades the right of privacy of another is subject to
liability for the resulting harm to the interests of the other. (2) The right of
privacy is invaded by (a) unreasonable intrusion upon the seclusion of
another, as stated in § 652B . . . .’’ (Emphasis added.)
Section 652B of the Restatement (Second) of Torts provides: ‘‘One who
intentionally intrudes, physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns, is subject to liability to the
other for invasion of his privacy, if the intrusion would be highly offensive
to a reasonable person.’’
Read together, § 652A instructs the reader to consult § 652B for the defini-
tion of what constitutes an unreasonable intrusion upon the seclusion of
another. Section 652B states that one who intentionally intrudes on the
seclusion of another is subject to liability if the intrusion would be highly
offensive to a reasonable person.
16
The parties have not identified a Connecticut case that clearly sets out
the elements of a cause of action alleging invasion of privacy by unreasonable
intrusion upon the seclusion of another in the context of a mandatory
employment related psychiatric examination, and we have found none.
17
The plaintiff himself testified that the chief of police had authority to
send an officer who was on active duty for a psychiatric examination. The
following exchange took place between the defendants’ counsel, the court,
and the plaintiff:
‘‘[The Defendants’ Counsel]: [I]s it your testimony, your understanding
that you’re not within the authority of the police chief when you are not
active as a police officer?
‘‘[The Plaintiff]: I didn’t say that. The police department has authority
over me—he would have authority over me if I was out in the street doing
something bizarre and everything like that then he could probably order
me to see someone, but I wasn’t doing anything like that. I was going about
my affairs. I wasn’t a danger to myself or to other people, and I wasn’t
contemplating coming back. I hadn’t gotten a medical release. I hadn’t
reached maximum medical improvement.
‘‘[The Defendants’ Counsel]: But you’re still under the auspices of the
chief of police.
‘‘[The Plaintiff]: Yes.
‘‘The Court: Let me ask you this. If you were not active . . . but if you
were a danger to yourself and other people . . .
‘‘[The Plaintiff]: But I wasn’t.
‘‘The Court: That’s not my question.
‘‘[The Plaintiff]: All right.
‘‘The Court: Assuming you were . . .
‘‘[The Plaintiff]: Oh, yeah.
‘‘The Court: . . . then they could have sent you for a . . .
‘‘[The Plaintiff]: Yeah, I would have probably—they would have picked
me up and three days up in the psychiatric hospital and need to be, you
know, somewhere else. Yes, I agree to that.’’
18
In its decision affirming the judgment of the District Court in the present
matter; see footnote 11 of this opinion; the United States Court of Appeals
for the Second Circuit cited a United States Supreme Court case explaining
why some federal law enforcement employees have a diminished expecta-
tion of privacy with respect to their performance or fitness for duty. David-
son v. Bridgeport, 487 Fed. Appx. 590, 592–93 (2d Cir. 2012).
In National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109
S. Ct. 1384, 103 L. Ed. 2d 685 (1989), the United States Supreme Court
evaluated whether requiring customs agents to submit to a urinalysis test
violated the fourth amendment to the United States Constitution. The court
stated, in part: ‘‘We think Customs employees who are directly involved in
the interdiction of illegal drugs or who are required to carry firearms in the
line of duty likewise have a diminished expectation of privacy in respect
to the intrusions occasioned by a urine test. Unlike most private citizens
or government employees in general, employees involved in drug interdiction
reasonably should expect effective inquiry into their fitness and probity.
Much the same is true of employees who are required to carry firearms.
Because successful performance of their duties depends uniquely on their
judgment and dexterity, these employees cannot reasonably expect to keep
from the Service personal information that bears directly on their fitness.
. . . While reasonable tests designed to elicit this information doubtless
infringe some privacy expectations, we do not believe these expectations
outweigh the Government’s compelling interests in safety and in the integrity
of our borders.’’ (Citation omitted.) Id., 672. The interest of municipal govern-
ments in safety and the fitness for duty of its officers who carry firearms
also diminishes an officer’s expectation of privacy. Davidson v. Bridgeport,
supra, 487 Fed. Appx. 593.
19
We note that the trial court did not use the words ‘‘unreasonable intru-
sion,’’ which is the language of the Restatement. The court used the words
‘‘improper motive,’’ which we construe to mean, on the basis of the court’s
finding that Norwood was concerned about the plaintiff’s welfare and fitness
for duty, that the intrusion into the plaintiff’s seclusion, if any, was not unrea-
sonable.
20
In their brief, the defendants argue that the plaintiff’s claims for the
infliction of emotional distress do not comport with the requirements of
General Statutes § 7-465 (a) in that the plaintiff did not allege notice to the
city, that the city is obligated to indemnify a defendant, or that the plaintiff
commenced a separate action against a city employee. The trial court did
not decide the case on the basis of any of the defendants’ special defenses.
See footnote 13 of this opinion. We do not review claims raised for the first
time on appeal. See Lawton v. Weiner, 91 Conn. App. 698, 709 n.7, 882 A.2d
151 (2005).