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

UNITED STATES DISTRICT COURT


DISTRICT OF CONNECTICUT
RONALD GOODMASTER,
Plaintiff,
v.
THE TOWN OF SEYMOUR,
TOWN OF SEYMOUR BOARD
OF SELECTMEN,
W. KURT MILLER,
LUCY MCCONOLOGUE, and
MICHAEL METZLER
Defendants.

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CIVIL NO: 3:14CV00060(AVC)

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 departments 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, and
seven as well as count threes due process claim. See document no. 41.
2

29 U.S.C. 621.

Conn. Gen. Stat. 46a-60(a).

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56 of the Federal Rules of Civil Procedure, arguing there is no


genuine dispute as to any material fact and they are entitled to
judgment as a matter of law.
The issues presented are: 1) whether Goodmaster has
established sufficient proof of subterfuge; 2) whether
Goodmaster has provided sufficient evidence of a violation of
his equal protection rights; 3) whether Goodmaster has
established sufficient proof of retaliation in the context of
the First Amendment; 4) whether the Town of Seymour can be held
liable under Monell; 5) whether the individual defendants are
entitled to qualified immunity; and 6) whether Goodmaster
sufficiently mitigated his damages.
For the reasons that follow, the motion for summary
judgment (document no. 45) is GRANTED.
FACTS
Examination of the complaint, pleadings, local rule 56
statements, the exhibits accompanying the motion for summary
judgment, and the responses thereto, discloses the following,
undisputed material facts:
The plaintiff, Ronald Goodmaster, is a former police
officer in the Town of Seymour, Connecticut.

The remaining

defendants include the Town of Seymour (the town); the towns


first selectman, W. Kurt Miller; the towns chairman of the

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board of police commissioners (the BOPC), Lucy McConologue;


and the chief of the Seymour police department, Michael Metzler.
In 1989, Goodmaster began working for the towns 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

There is some dispute as to who was actually aware of Goodmasters


criticisms.
3

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completing investigations thoroughly, problems with the way


officers write reports, problems with the way paperwork is
submitted to the court, problems with the rude treatment that
citizens would receive when they walked up to the desk to speak
to the police, problems with an officer who tried to foil a drug
investigation by letting the parent of the narcotics target know
that the detective division was investigating his son,[and] . .
. an officer who had an alcohol problem.

Goodmaster further

states that he complained about Meltzers 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

Specifically, Goodmaster submitted grievances with respect to unjust


discipline and failure to pay the proper pay rate for sick time.
4

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Goodmaster.

The complaint was later withdrawn pursuant to the

settlement agreement.
On March 8, 2013, Goodmaster turned sixty-five years old.
Connecticut General Statute 7-430 provides for the mandatory
retirement of police officers at age sixty-five.

However, an

individual may extend his employment beyond the age of sixtyfive at his request and with the annual approval of the
legislative body.
1989.

This provision became effective in July

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.

Seymours 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
Goodmasters employment until March 8, 2014.
granted by a vote of two to one.
present for the hearing.

The request was

Defendant McConologue was not

Goodmaster states that, following the


5

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hearing, first selectman Miller and chief Metzler urged


McConologue to pressure[] the Board of Police Commissioners to
change its decision.

The defendants deny that such a

conversation took place.

Meltzer avers that the only input

[he] had was to voice [his] support to the First Selectman in


regards to keeping [Goodmaster] on the force in a special
assignment.
After reviewing the recording of the September BOPC
meeting, Miller emailed Warren L. Holcomb, Seymours town
counsel, to inquire into the propriety of the BOPCs 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 Goodmasters 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.
6

He further states that

Goodmaster disputes Millers reasoning for contacting Holcomb.


6

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he would not have taken the special assignment even if it had


been offered to him.
On December 4, 2012, the board of selectman denied
Goodmasters 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

Goodmasters 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 Goodmasters 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.

Specifically, Miller asked Goodmasters attorney: If we were to look at a


special assignment type role where [Goodmasters] skill and ability would
benefit the Department in multiple places . . . . why isnt [it] reasonable
for the Town to ask for that in exchange for the sixteen month extension?
8

According to the defendants, Ann Marie Drugonis, Gary Bruce, and Alfred
Bruno were all unaware of Goodmasters previously filed suit against the
town, and Nicole Klarides-Ditria does not recall whether or not she was aware
of it at the time of the vote. Goodmaster has provided no evidence to the
contrary.
7

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This was the first extension request decided by the board


of selectman and not the BOPC. It was also the first extension
request decided during first selectman Millers 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
Goodmasters 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


DAntona, 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 Goodmasters employment
with Seymours police department.
employment as a fire investigator.

Since then, Goodmaster sought


According to Goodmaster, in

January 2014, Miller blocked [his] appointment as an unpaid


volunteer fire investigator to the . . . Town of Seymour fire
marshals 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
8

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working on a ten year strategic plan.

In September 2014,

Goodmaster began working as an unpaid fire investigator for the


Town of Bethany.
STANDARD
A motion for summary judgment may be granted if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).

Summary judgment is appropriate if,

after discovery, the nonmoving party has failed to make a


sufficient showing on an essential element of [its] case with
respect to which [it] has the burden of proof.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

The burden is on the

moving party to demonstrate the absence of any material factual


issue genuinely in dispute.

Am. Intl Group, Inc. v. London

Am. Intl 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


9

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Cir. 1991).

Only when reasonable minds could not differ as to

the import of the evidence is summary judgment proper.

Id.

A dispute concerning material fact is not created by a mere


allegation in the pleadings, or by surmise or conjecture.
DAmico 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 Towns action in terminating


Plaintiffs 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
10

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any further proof by defendants, legitimizes its use.

He avers

that, [a]lthough not the plaintiffs 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

This particular exception has had an active legislative history. As


originally enacted in 1967, the ADEA did not apply to employees of state and
local 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 and
local 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, state
and local governments just like private employers - were required to show
that age was a bona fide occupational qualification (BFOQ) in order to
impose age limitations. Congress ultimately reinstated a law enforcement
exception 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 applies
retroactively. 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 section
concerning age shall not apply to . . . the termination of employment of
persons in occupations, including police work and fire-fighting, in which age
is 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.).
11

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at 181-82. Specifically, the law enforcement exception allows


age discrimination as long as the age limitation is part of a
bona fide hiring . . . plan that is not a subterfuge to evade
the purposes of the ADEA.

29 U.S.C. 623(j)(1)(B)(1).

In this case, Goodmaster seems to ignore the uncontroverted


fact that law enforcement and fire investigators are not subject
to the bona fide occupational qualification (BFOQ) requirement
pursuant to 29 U.S.C. 623(j).

Indeed, the law enforcement

exception, which allows for the setting of age limits, expressly


contemplates discrimination on the basis of age.

Feldman, 434

F.3d at 181-82. It is Goodmasters burden to prove that the


defendants utilization of the exception to the ADEAs 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 discrimination
claims 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 BFOQ
requirement is an affirmative defense and thus the defendants bear the
burden. However, the Court in Meacham was interpreting 623(f), which
differs from 623(j) in both its text and legislative history. While there
has not been a second circuit case on point since the Meacham decision, those
courts that have confronted the issue have not applied Meachams 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 using
the 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 age
discrimination 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.3d
1161, 1173 (10th Cir. 2010)(A plaintiff challenging the law enforcement
exception bears the burden of establishing that a hiring plan is a
subterfuge.); see also Sadie v. City of Cleveland, 718 F.3d 596, 600-02 (6th
Cir. 2013) (discussing Meachams potential application to 623(j)).
12

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establishing that a particular hiring plan is a subterfuge under


section 4(j)(2).).
While not expressly defined by the ADEA, subterfuge has
been given its ordinary meaning as a scheme, plan, stratagem,
or artifice of evasion.

Public Employees Retirement System of

Ohio v. Betts, 492 U.S. 158, 168 (1989).

In Betts, the Supreme

Court identified two situations where an employers 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 the
potential effect on younger officers on the promotion list. However, as
explained infra, such a concern is legally justifiable under 623(j). See
Feldman v. Nassau County, 434 F.3d 177, 184 (2d Cir. 2006) (holding that
evidence that a hiring plan discriminates on the basis of age rather than
13

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In order to establish a prima facie case of retaliation, a


plaintiff must present[] evidence sufficient to permit a
rational trier of fact to find that (1) he participated in a
protected activity, (2) the defendant knew about this activity,
(3) he experienced an adverse employment action, and (4) a
causal connection existed between the protected activity and the
adverse employment action.

Ibok v. Securities Industry

Automation Corp., 369 F. Appx 210, 213 (2d Cir. 2010).

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. Appx 594, 596 (2d Cir. 2002) (internal quotation


marks omitted).

A plaintiffs 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 only
cognizable claim of subterfuge is via a retaliation argument, specifically
limited to Goodmasters previous age discrimination complaint. Evidence of
Goodmasters 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.
14

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legitimate, non-discriminatory reason for its actions.


Kirkland v. Cablevision Systems, 760 F.3d 223, 225 (2d Cir.
2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)).

If the employer does so, the burden then shifts

back to the plaintiff to show that the employers 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 Goodmasters First

13

Goodmaster contends that the McDonnell Douglas burden-shifting is


inapplicable because the defendants allegedly discriminated against him based
on his age. However, in order for Goodmaster to prove subterfuge under the
ADEA, he must establish a retaliation claim not an age discrimination
claim.
15

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Amendment retaliation claim, supra Part II a.


Assuming that Goodmaster has established a prima facie case
of retaliation, he cannot sufficiently demonstrate that the
defendants legitimate non-discriminatory reasons were pretext
for retaliation.

Goodmasters request was the first to be

decided during first selectman Millers tenure.

The defendants

have explained that the board of police commissioners (BOPC)


overturned its decision because it was informed by the towns
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 comptrollers 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 towns 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.
16

The

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defendants maintain that at least three of the members of the


board of selectman who voted to deny Goodmasters 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


17

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retaliatory animus by the specific members of the board of


selectman that would counter their legitimate reasons for voting
the way that they did. He submitted no admissible evidence that
the board of selectman members would have voted any differently
had he not filed the CHRO complaint or that the employment
decision was more likely than not based in whole or in part on
discrimination.

Kirkland, 760 F.3d at 225 (internal quotation

marks omitted).
Goodmaster denies having been offered a special assignment,
but admits that he would have rejected such an offer had one
been made.

His denial of receiving the offer is not

particularly persuasive in light of his deposition testimony and


statements made by his attorney during the December board of
selectman meeting.14

In addition, when Goodmaster formally

grieved the denial of his request for extension, the Union


President, Sergeant John DAntona, 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 discussions


about a possible acting lieutenant position, but avers that they were general
comments and not a formal offer. At the December meeting, Goodmasters
counsel told the board of selectman that Goodmaster would not entertain such
an offer because of its effect on his overtime opportunities. In addition,
the defendants submitted the affidavit of Warren L. Holcomb, Seymours town
counsel, who stated that he spoke with Goodmasters attorney on two occasions
to discuss the possibility of placing Goodmaster in the role of acting
lieutenant.
18

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Despite Goodmasters 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 Goodmasters
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. Appx 83, 84 (2d Cir. 2009).


Accordingly, the defendants motion for summary judgment on
counts one and five is granted.

15

Goodmasters lack of evidence is especially telling in light of the fact


that he submitted his opposition three days late after the court explicitly
stated that it would not entertain any more extensions of time (as the court
had already granted four). See document no. 56. In addition, as the
defendants point out, Goodmasters memorandum impermissibly exceeded the page
limit 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) 8
1/2 by 11 pages . . . .)(emphasis added).
19

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II.

Section 1983 Claims16 Counts III and IV

Count three alleges that the individual defendants


discriminated and retaliated against Goodmaster in violation of
his constitutional rights to equal protection17 and freedom of
speech.

Count four holds the Town of Seymour liable for the

alleged constitutional violations as a municipality.


a. First Amendment Retaliation Count III
i. Protected Speech
The defendants argue that Goodmasters 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 Goodmasters constitutional claims are brought


pursuant to 42 U.S.C. 1983.
17

As discussed supra, because Goodmaster has failed to establish a claim


under the ADEA and CFEPA, he similarly has failed to establish count threes
equal protection claim. See Kearny v. County of Rockland ex rel. Vanderhoef,
185 F. Appx 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 to
succeed in a selective prosecution claim, plaintiffs must show: (1) that
they were treated differently from other similarly situated individuals, and
(2) that such differential treatment was based on impermissible
considerations such as . . . intent to inhibit or punish the exercise of
constitutional rights. Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2003)
(internal quotation marks omitted). Goodmaster states that every previous
request 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 still
made prior to the town counsels realization that the procedure was legally
incorrect and prior to first selectman Millers tenure. Furthermore, not
every request previously brought before the BOPC was granted. Goodmasters
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 cannot
show that the differential treatment was based on impermissible
considerations. Therefore, the court grants summary judgment with respect
to Goodmasters equal protection claim.
20

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concern.

They further argue that his grievances and

statements about departmental mismanagement are barred by


Garcetti because they were made pursuant to his official job
duties.
Goodmaster responds that his speech was not of purely
personal concern and not within his job duties and
responsibilities.

Specifically, he argues that the defendants

narrow view of the plaintiffs complaints plainly ignores the


plaintiffs 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

employees speech is protected, the court determines: (1)


whether the subject of the employees 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
21

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Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

If the answer

to both questions is yes, the court then determines whether the


relevant government entity had an adequate justification for
treating the employee differently from any other member of the
public based on the governments 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
Goodmasters 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 Goodmasters


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
22

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by letting the parent of the narcotics target know that the


detective division was investigating his son,[and] . . . an
officer who had an alcohol problem.
Second, he contends that he spoke to the press about the
general mismanagement of the department, though he did not
provide specific examples of those complaints.

Rather, in his

deposition, he stated that he reported to the press that he had


been suspended because [he is] an outspoken critic of the
mismanagement of [the] department.
Third, Goodmaster alleges that he complained to Bob
Koskelowski (a former first selectman), Paul Roy (a former first
selectman), Frank Loda, and Jean Loda about Meltzers 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

23

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which the chief of police and a lieutenant were impermissibly in


attendance.

18

A. Public Concern
A matter of public concern is one that relat[es] to any
matter of political, social, or other concern of the community.
Connick v. Myers, 461 U.S. 138, 146 (1983).19

Whether an

employees 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 speakers motive, while one factor that may be


considered, is not dispositive as to whether his speech
addressed a matter of public concern.
F.3d 409, 415 (2d Cir. 2006).

Reuland v. Hynes, 460

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 speakers] own
situation, such as his or her assignments, promotion, or

18

Because the second complaint was filed on December 7, 2012 three days
after the board of selectman declined Goodmasters request for extension,
there is no causal connection between this particular complaint and the
adverse 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).
24

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salary, does not address matters of public concern.

Jackler v.

Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (citations omitted).
[A] topic is a matter of public concern for First Amendment
purposes if it is of general interest, or of legitimate news
interest, or of value and concern to the public at the time
of the speech.

Id. (citing City of San Diego v. Roe, 543 U.S.

77, 83-84 (2004).


While it is true that some of Goodmasters 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 Feingolds alleged complaints were based on his personal


experience, they also suggest the fairness and impartiality of
the MNO may have been compromised . . . .
[a] matter[] of public concern.).

[which is] clearly

The court concludes that

Goodmasters 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


Meltzers unprofessional behavior are matters of public concern.
25

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However, the grievances, which sought remedies specific to


Goodmaster, were personal in nature and therefore not matters of
public concern.20

As such, the court concludes that those

particular grievances are not protected speech.


B. Speech as a Citizen
To determine whether a public employee speaks as a citizen,
the court must ask: (1) did the speech fall outside of the
employees 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 employees 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 employees official job duties even
though it is not required by, or included in, the employees 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 employees 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 internal


grievance procedures indicates that Goodmaster was acting as an employee
rather 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 the
lodging of an employee grievance via internal channels).
26

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Further, [s]peech has a relevant civilian analogue if it


is made through channels available to citizens generally.
Matthews, 779 F.3d at 175 (citing Jackler v. Byrne, 658 F.3d
225, 238 (2d Cir. 2011)).

The degree of access to senior

supervisors is not material; rather what matters is whether the


same or a similar channel exists for the ordinary citizen.
Matthews, 779 F.3d at 176.
A recent case from the second circuit is instructive.

In

Matthews v. City of New York, 773 F.3d 167, 169 (2d Cir. 2015),
a police officer complained to his precincts commanding officer
and another executive officer about a quota system that he
believed was damaging to the police departments 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
27

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interactions and who had an open door to community comments and


complaints.

Id. at 176.

In this case, Goodmaster made specific complaints to the


chief of police regarding officers not properly performing their
duties.

According to the Seymour Police Departments 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, Goodmasters

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 clerks 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.
28

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However, there seems to be a general allegation that


Goodmaster was outspoken about the mismanagement of the
department and that he spoke to the press about said
mismanagement.

While Goodmaster has not provided specific

examples of newspaper coverage, the defendants have not rebutted


that allegation or offered evidence that Goodmaster was not
known to be outspoken.

That being said, the court assumes

that those general complaints of mismanagement as well as the


June 22, 2011 FOIA complaint and the statements implicating
Meltzers alleged unprofessional behavior - are protected speech
for the purposes of Goodmasters 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 . .


29

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. demonstrating that the plaintiffs 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)).

plaintiff must offer some tangible proof to demonstrate that


[his] version of what occurred was not imaginary.
F.3d at 108.

30

Cobb, 363

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Further, if a majority of defendants prove that their


individual votes against the plaintiff would have been the same
irrespective of the plaintiffs 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.
485 (2d Cir. 1998).

Coogan v. Smyers, 134 F.3d 479,

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 BOPCs reversal, and the settlement agreement that
resolved many of Goodmasters 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 Meltzers 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 Goodmasters protected speech,
Goodmaster has provided no evidence apart from his own
speculations and hearsay to suggest that the BOPCs reversal
31

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and the board of selectmans 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 BOPCs initial decision was overturned upon the advice of
the towns 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


Goodmasters 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 evidence
that Miller knew about [his] commentary on the police departments
mismanagement or that he was offended or upset by it. Similarly, the only
evidence that McConologue took an adverse action against Goodmaster is based
on hearsay. Goodmaster alleges that the former police commissioner Jim
Simpson told him that McConologue told Simpson that Goodmaster was 65 and .
. . ha[d] to go. Apart from the unreliability of such testimony,
McConologues statement that Goodmaster was 65 and . . . ha[d] to go is
contrary to Goodmasters allegation that she wanted his request denied due to
some retaliatory animus over his protected speech.
32

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iii. Mixed-Motives Defense


The defendants also argue that no reasonable factfinder
could conclude that the Defendants would not have ultimately
chosen to abide by the law and submit the decision to the Board
of Selectman in accordance with the Town counsels 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 Goodmasters
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


33

Case 3:14-cv-00060-AVC Document 66 Filed 02/08/16 Page 34 of 36

voted to deny the request due to Goodmasters 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
entitys policy or custom. Mandell v. County of Suffolk, 316
F.3d 368, 385 (2d Cir. 2003) (citing Monell v. Dept of Soc.
34

Case 3:14-cv-00060-AVC Document 66 Filed 02/08/16 Page 35 of 36

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.

35

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CONCLUSION
For the foregoing reasons, the defendants motion for
summary judgment (document no. 45) is GRANTED in all respects.
The clerk is directed to enter judgment in favor of the
defendants and against the plaintiff, dismissing the complaint
with prejudice, and to close the case.
It is so ordered this 8th day of February 2016, at
Hartford, Connecticut.
___ _/s/_____
___
Alfred V. Covello
United States District Judge

36