Martin J. Hankard, Steven J. Kulikowski, Gregory J. Soderburg v. Town of Avon, Philip K. Schenck, Joseph Lander, Town Attorney, Individually and Officially, James A. Martino, Jr., Chief of Police, Individually and Officially

Citations: 126 F.3d 418; 13 I.E.R. Cas. (BNA) 598; 1997 U.S. App. LEXIS 27117; 72 Empl. Prac. Dec. (CCH) 45,060Docket: 1504

Court: Court of Appeals for the Second Circuit; October 2, 1997; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Plaintiffs Martin J. Hankard, Steven J. Kulikowski, and Gregory J. Soderburg appealed a judgment from the United States District Court for the District of Connecticut that dismissed their complaint against the Town of Avon and several officials, including the Town Manager, Town Attorney, and Chief of Police. The plaintiffs sought damages under 42 U.S.C. § 1983 for alleged violations of their First and Fourteenth Amendment rights, as well as state law claims. The district court granted summary judgment in favor of the defendants, determining that the plaintiffs did not adequately demonstrate a violation of their constitutional rights when they were instructed to resubmit an internal investigative report for clarification.

On appeal, the plaintiffs argued that the district court improperly granted summary judgment by not resolving ambiguities and failing to draw all reasonable inferences in their favor. However, the appellate court affirmed the district court's judgment. The background of the case involved a General Order from the Avon police department allowing for peer reviews of officers. Following allegations of racial discrimination by former officer Alvin Schwapp, the plaintiffs were ordered to form an Administrative Review Board to investigate. The Board's findings indicated violations by two officers, but Police Chief Martino later deemed the report incomplete and unclear, citing unanswered questions and discrepancies that warranted further review.

The memorandum from Chief Martino did not specify his final determination but emphasized the importance of presenting his concerns to the Board for understanding their rationale. It instructed the Board to examine discrepancies and clarify the basis for any findings related to allegations against Sergeant Transue regarding racially discriminatory motor vehicle stops. Martino returned the report to the Board under General Order 3-16, section IV, which allows the Chief to resubmit an incomplete report for further clarification. On October 18, 1994, the Board sent Martino a list of seventeen questions for specific officers, of which Martino deemed four irrelevant but agreed to pose the rest. 

In a November 9, 1994 memorandum, the Board informed Martino that it would take no further action, asserting that Martino was improperly imposing his findings on them and that they felt manipulated, thus standing by their original findings from September 13, 1994. Following this, Martino and Attorney Lander met with the Board on November 11, 1994, where Lander stated that Martino's October 20 memorandum was erroneous and should be disregarded. Lander confirmed the Board's freedom to continue their investigation while acknowledging Martino's requirement for resubmission and advised that the revised report should address the additional information Martino provided. He indicated that the Board could maintain its findings as long as they incorporated the new information into their report.

The report mandates compliance with specific directions to consider evidence from Howe's and Transue's responses, as well as additional information from Chevalier. While findings may remain unchanged, there is an obligation to acknowledge and incorporate this new evidence. Failure to do so may lead to claims of insubordination against Board members, potentially resulting in disciplinary action. Lander emphasized that compliance with orders is non-negotiable, regardless of personal convictions about the investigation's conduct. A memorandum from Martino on November 17, 1994, requested a revised report by the next day. Subsequently, on November 21, 1994, the Board initiated legal action, alleging violations of their rights to free speech and due process due to threats of discipline for not issuing a supplemental report. The Board has since taken no further action on the report, and no disciplinary measures have been imposed. Defendants sought summary judgment, which the district court granted, leading to the dismissal of the complaint. On appeal, plaintiffs argue they provided sufficient evidence to challenge the summary judgment on their First Amendment claims and assert that the district court improperly ruled they had no claim under 42 U.S.C. § 1983, while not pursuing their due process claim.

The review of the district court's summary judgment is conducted de novo, affirming only if there are no genuine material facts in dispute and the moving party is entitled to judgment as a matter of law. The court must draw all inferences and resolve ambiguities in favor of the non-moving party. For the summary judgment analysis, it is assumed that the plaintiffs' speech in the Board's report is protected. To succeed on a First Amendment claim under 42 U.S.C. § 1983, plaintiffs need to demonstrate that their conduct is deserving of First Amendment protection and that the defendants' actions were motivated by or substantially caused by their exercise of free speech. The plaintiffs argue that their refusal to revise the Board report constituted protected speech and that the defendants' directive to include additional information violated their First Amendment rights. 

The essence of the First Amendment is that public discourse benefits from the inclusion of diverse perspectives. Courts must scrutinize government claims that actions affecting expression can withstand constitutional challenges. However, not all public employee speech is protected; specifically, speech closely related to insubordination that disrupts workplace functions does not receive First Amendment protection. In Connick v. Myers, the Supreme Court ruled against an assistant district attorney who was terminated for distributing a questionnaire that criticized her employer, asserting that the employer was not required to tolerate actions that could disrupt office operations or undermine authority. Justice Brennan noted that certain insubordinate refusals, even if they involve speech, do not qualify for protection under the First Amendment and can justify lawful dismissal.

The examination of the record reveals that plaintiffs' actions do not warrant First Amendment protection. They did not contest the legality of General Order 3-16, which outlines their duties as members of the Board to conduct informal investigations solely for advising Chief Martino. This order clarifies that the Board operates under the Chief's authority and performs in an advisory, nonbinding capacity. Plaintiffs were required to gather facts, draw conclusions, and make recommendations, while understanding that the Chief retains final decision-making authority.

Contrary to plaintiffs' assertions, Chief Martino did not compel them to produce a report that would absolve the Town of liability. Instead, he deemed their report incomplete and directed them to revise it, requesting additional information including responses from two officers involved in the investigation and clarification of findings related to specific remarks. Plaintiffs were informed they could determine the evidentiary value of this information without altering their original conclusions.

By choosing not to revise the report, plaintiffs refused to comply with a lawful directive, constituting insubordination, and therefore, their conduct does not qualify for constitutional protection. Additionally, plaintiffs alleged that implied threats of reprisal from the defendants created a chilling effect on their First Amendment rights. However, this claim lacks supporting evidence and fails to meet constitutional standards. While governmental actions that indirectly inhibit free speech may be challenged, not all claims of chilling effects constitute a First Amendment violation.

To invoke judicial power regarding executive or legislative action, a private individual must demonstrate a direct injury or imminent danger of injury resulting from that action. General, indirect, and conclusory allegations are insufficient; plaintiffs must provide specific claims of constitutional rights deprivation. In this case, plaintiffs' assertion that defendants' threats created a chilling effect on their First Amendment rights is unfounded. They were not instructed to alter their findings but were asked to incorporate additional information in line with lawful procedures. The investigation adhered to valid police protocols, and the plaintiffs' findings were advisory, not binding. Conversations between plaintiffs and the police chief did not suggest any retaliation for maintaining their original views. The alleged chilling effect is deemed speculative, and there is no evidence of a constitutional deprivation. Therefore, as the Supreme Court has indicated, subjective claims of chill do not replace the need for demonstrable harm. The court dismissed the plaintiffs' claim under Section 1983 for lack of a viable cause of action, leading to the affirmation of the district court's judgment. All other arguments presented by the plaintiffs were found to lack merit.