Michel v. Hartford

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Michel v. Hartford

SEAN MICHEL v. CITY OF HARTFORD
(AC 45563)
Elgo, Prescott and Keller, Js.

Syllabus

Pursuant to statute ((Rev. to 2019) § 31-51q), ‘‘[a]ny employer . . . who
subjects any employee to discipline or discharge on account of the
exercise by such employee of rights guaranteed by the first amendment
to the United States Constitution or section 3, 4 or 14 of article first of the
Constitution of the state, provided such activity does not substantially
or materially interfere with the employee’s bona fide job performance
or the working relationship between the employee and the employer,
shall be liable to such employee for damages caused by such discipline
or discharge . . . .’’
The plaintiff appealed to this court from the judgment rendered for the
defendant city on his claims for free speech retaliation under § 31-51q
and the federal statute (42 U.S.C. § 1983). The plaintiff, an employee of
the defendant’s police department, reported to his commander that C,
a fellow employee, had complained to him that he was being subjected
to discriminatory treatment on the basis of his race. The commander
ordered the plaintiff not to get involved and assured the plaintiff that
he would take care of C’s complaint. C subsequently told the plaintiff
that the commander stated that he was unable to help with C’s complaint.
C, on the advice of the plaintiff, reported his complaint to the police
union and to the department’s internal affairs division and openly
acknowledged that the plaintiff had suggested that he do so. C also filed
a complaint with the Commission on Human Rights and Opportunities
(CHRO) alleging that he was the subject of unlawful racial discrimina-
tion. The plaintiff supported C’s filing of the complaint and attempted
to protect him from further discrimination and retaliation within the
department. Subsequently, the plaintiff was, inter alia, removed from
certain supervisory positions, removed from certain assignments that
would result in the receipt of overtime compensation, and assigned to
allegedly inconvenient shifts after he returned from paternity leave. The
plaintiff testified in support of C at a deposition in connection with C’s
CHRO complaint, and, after providing such testimony, the plaintiff was
not selected to become the new commander of his unit. The plaintiff
later testified favorably for C and against the defendant at a second
deposition. Thereafter, the plaintiff was, inter alia, assigned to unfavor-
able shifts and was not selected for certain new positions. The trial
court granted the defendant’s motion to strike the plaintiff’s operative
complaint on the ground that the plaintiff had not sufficiently pleaded
the claims of retaliation. Held:
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Michel v. Hartford
1. The plaintiff could not prevail on his claim that the trial court improperly
granted the defendant’s motion to strike with regard to his claim under
§ 1983; the plaintiff failed to sufficiently plead facts that, if proven, would
establish retaliation pursuant to an official policy, practice or custom,
such that the defendant, as a municipality, could be held liable pursuant
to § 1983 for the actions of its employees, as the plaintiff acknowledged
that the conduct at issue did not involve a formal or official policy, he
failed to allege any facts to demonstrate that the officers who engaged
in the alleged retaliatory conduct were responsible for establishing final
policy with respect to the subject matter in question, in order to be
characterized as municipal policymakers, the pattern of misconduct
alleged by the plaintiff was directed only at the plaintiff himself, and
the plaintiff did not allege other constitutional violations, or that the
officers’ conduct was directed at anyone else, in order to establish that
the defendant had a custom or practice of infringing on constitu-
tional rights.
2. The trial court improperly granted the defendant’s motion to strike the
counts of the operative complaint asserting claims of retaliation in viola-
tion of § 31-51q:
a. The defendant’s argument that the operative complaint was devoid
of any allegations as to what the plaintiff ‘‘actually said’’ in his deposition
testimony and, therefore, that the allegations were insufficient to estab-
lish that his speech was on a matter of public concern was unavailing:
the allegations set forth in the operative complaint, when construed
in the manner most favorable to sustaining its legal sufficiency, were
sufficient to demonstrate that the plaintiff was not making a statement
pursuant to his official duties and, although testifying in criminal proceed-
ings and certain civil proceedings may have been a part of the tasks that
the plaintiff was paid to perform, there were no factual allegations to
indicate that providing deposition testimony in the context of a fellow
employee’s discrimination proceeding was part of what the plaintiff, as
a police officer, was employed to do; moreover, the allegations set forth
in the operative complaint were sufficient to establish that the plaintiff’s
speech was on the topic of racial discrimination against a fellow
employee, which is a matter of public concern, and the allegations in
the operative complaint, taken together, necessarily implied that the
plaintiff’s deposition testimony supported C’s discrimination claim; fur-
thermore, although the plaintiff failed to include allegations concerning
the precise content of his testimony, it could reasonably be inferred
from the allegations set forth in the operative complaint that the plaintiff
in the present case was speaking out against discrimination in his testi-
mony or that his testimony regarded the existence of discrimination in
the workplace and, accordingly, the trial court improperly determined
that the plaintiff failed to sufficiently allege that his speech addressed
a matter of public concern.
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Michel v. Hartford
b. The trial court erroneously concluded that the plaintiff was required
to plead that his speech did not substantially or materially interfere with
his job performance or the working relationship between him and his
employer pursuant to § 31-51q; although the issue of whether a plaintiff
making a § 31-51q claim must affirmatively plead noninterference was
an open question that neither this court nor the Supreme Court had
previously addressed, this court concluded that a plaintiff making a
claim pursuant to § 31-51q does not have an affirmative burden to plead
noninterference but, rather, a defendant may raise the issue of interfer-
ence in a special defense.

Argued October 11, 2023—officially released June 11, 2024

Procedural History

Action to recover damages for, inter alia, retaliation,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Sheri-
dan, J., granted in part the defendant’s motion to strike;
thereafter, the plaintiff withdrew the remaining count
of his complaint; subsequently, the court, Sheridan,
J., granted the defendant’s motion for judgment and
rendered judgment thereon, from which the plaintiff
appealed to this court. Reversed in part; further pro-
ceedings.

Christopher T. DeMatteo, for the appellant (plaintiff).
Nathalie Feola-Guerrieri, senior assistant corpora-
tion counsel, for the appellee (defendant).

Opinion

KELLER, J. The plaintiff, Sean Michel, appeals from
the judgment rendered in favor of the defendant, the
city of Hartford, following the partial granting of its
motion to strike and the subsequent withdrawal of the
remaining count set forth in the plaintiff’s operative
complaint. On appeal, the plaintiff contends that the
court improperly granted the defendant’s motion to
strike as to counts one, two, and three of that complaint,
which alleged free speech retaliation claims pursuant to
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Michel v. Hartford

General Statutes (Rev. to 2019) § 31-51q1 and 42 U.S.C.
§ 1983. We agree with the plaintiff as to counts two and
three of the operative complaint, which set forth the
plaintiff’s claims under § 31-51q, and, accordingly, reverse
in part the judgment of the trial court.
We begin by setting forth the facts, as alleged in
the plaintiff’s operative complaint,2 and the procedural
history of this case. The plaintiff is employed by the
Hartford Police Department (department). In February,
2016, a fellow employee, Detective Samuel Cruz, com-
plained to the plaintiff that he was being subjected to
discriminatory treatment by his supervisor, Sergeant
Shawn St. John, on the basis of his race. Cruz told
the plaintiff that St. John was declining to enter Cruz’
overtime into the department’s payroll system.
The plaintiff immediately reported Cruz’ complaint
to Lieutenant Brandon O’Brien, the commander of the
vice, intelligence, and narcotics unit of the department,
in which the plaintiff was a sergeant at that time. O’Brien
ordered the plaintiff not to get involved and assured
the plaintiff that he would take care of Cruz’ complaint.
Cruz subsequently told the plaintiff that O’Brien stated
that he was unable to help with his complaint. The
plaintiff told Cruz that O’Brien’s response was ‘‘unac-
ceptable’’ and suggested that Cruz contact their union
or the department’s investigative services bureau for
further assistance. Cruz followed the plaintiff’s advice
and reported his complaint to the union and the depart-
ment’s internal affairs division, and he openly acknowl-
edged that the plaintiff had suggested that he do so.
In September, 2017, Cruz filed a complaint with the
Commission on Human Rights and Opportunities (CHRO)
1
Hereinafter, all references to § 31-51q in this opinion are to the 2019
revision of the statute.
2
‘‘[I]n ruling on a motion to strike, we take the facts alleged in the com-
plaint as true.’’ (Internal quotation marks omitted.) Ring v. Litchfield Banc-
orp, 174 Conn. App. 813, 815, 167 A.3d 462 (2017).
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alleging that he was the subject of unlawful racial dis-
crimination. The plaintiff supported Cruz’ filing of the
complaint and ‘‘attempted to protect him’’ from further
discrimination and retaliation within the department.
Subsequently, the plaintiff was, among other things,
removed from certain supervisory positions; removed
from certain assignments that would result in the
receipt of overtime compensation; assigned to ‘‘the
most inconvenient shift possible for his family needs’’
after he returned from paternity leave, despite a previ-
ous agreement that he could work a shift that would
enable him to assist his wife with childcare; and, even
though he was promoted from the rank of sergeant to
lieutenant, assigned to ‘‘a punishment position in patrol,
which did not carry the same benefits as other lieuten-
ant positions . . . .’’
On October 23, 2018, the plaintiff testified at a deposi-
tion in connection with Cruz’ CHRO complaint, and
his testimony supported Cruz’ allegations. When the
deposition ended, an attorney for the defendant apolo-
gized to the plaintiff for the retaliation he already had
endured and encouraged him to continue telling the
truth. After providing this testimony, the plaintiff was
not selected to become the new commander of the vice,
intelligence, and narcotics unit, despite ‘‘his experience
and his background [making] him indisputably the best
candidate for the position.’’
On December 20, 2019, the plaintiff testified at a
second deposition on behalf of Cruz,3 ‘‘testifying favor-
ably for [Cruz] and against the defendant.’’ Thereafter,
The trial court’s memorandum of decision states that, on October 23,
3

2018, ‘‘the plaintiff testified on behalf of [Cruz] at a fact-finding hearing
before the [CHRO]’’ and then, on December 20, 2019, the plaintiff provided
deposition testimony in connection with a federal discrimination lawsuit
that Cruz had filed. The court appears to have obtained these facts from
the plaintiff’s opposition to the defendant’s motion to strike. The plaintiff’s
operative complaint, however, alleges that the plaintiff’s October 23, 2018
testimony was provided in the context of a deposition for Cruz’ CHRO
complaint, not at a fact-finding hearing, and that his December 20, 2019
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Michel v. Hartford

the plaintiff was, among other things, assigned to unfa-
vorable shifts that resulted in significant hardship for
his family; was not selected for certain new positions,
including one that would have accommodated his fami-
ly’s needs; and, when he followed his doctor’s advice
to take a stress leave and to obtain treatment, was
threatened with discipline.
In October, 2020, the plaintiff commenced the present
action against the defendant. On October 13, 2021, the
plaintiff filed the operative complaint4 consisting of six
counts: retaliation in violation of § 1983 for the exercise
of his rights guaranteed by the first amendment to the
United States constitution (count one); retaliation in
violation of § 31-51q for the exercise of his first amend-
ment rights (count two); retaliation in violation of § 31-
51q for the exercise of his rights guaranteed by article
first, §§ 4 and 5, of the Connecticut constitution (count
three); breach of contract (count four); breach of the
implied covenant of good faith and fair dealing (count
five); and intentional infliction of emotional distress
testimony was provided at a second deposition, without specifying that the
deposition testimony was provided in connection with a separate federal
discrimination action that Cruz had filed. On appeal, the parties do not
address these discrepancies. For purposes of reviewing the decision on the
motion to strike, we focus our analysis on the allegations set forth in the
plaintiff’s complaint. See A.C. Consulting, LLC v. Alexion Pharmaceuticals,
Inc., 194 Conn. App. 316, 325, 220 A.3d 890 (2019) (purpose of motion to
strike is to challenge legal sufficiency of allegations in complaint); see also
Practice Book § 10-39 (a).
4
In the original complaint, the plaintiff alleged retaliation in violation of
§ 31-51q for the exercise of his rights guaranteed by article first, §§ 3, 4, and
14, of the Connecticut constitution. The defendant filed a request to revise
the original complaint, requesting that the plaintiff set forth the particular
statements that he alleged he made that were protected under the state
constitution. The plaintiff filed an objection to the request to revise, arguing
that the information requested by the defendant should be obtained through
discovery, and the court sustained that objection. The defendant subse-
quently filed a motion to strike the original complaint, which the court
marked off because the plaintiff indicated that he would file an amended
complaint.
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(count six). All counts related to his allegations that he
had been subjected to retaliation for ‘‘opposing racial
discrimination’’ and providing truthful testimony in
Cruz’ legal matters.
On November 12, 2021, the defendant filed a motion
to strike on the ground that the plaintiff had not suffi-
ciently pleaded the claims set forth in his operative
complaint5 and argued that the plaintiff’s claim for puni-
tive damages failed because the defendant, as a matter
of law, could not be liable for such damages. The plain-
tiff filed a memorandum in opposition to the defendant’s
motion to strike on January 18, 2022. On that same
date, the trial court, Sheridan, J., held a hearing on the
motion. At the beginning of the hearing, the plaintiff’s
counsel conceded, as he had in his memorandum, that
count six and the part of count three relying on article
first, § 5, of the Connecticut constitution should be
stricken. Nevertheless, he maintained that the plaintiff
adequately pleaded facts sufficient to state causes of
action in the remaining counts, including the part of
count three relying on article first, § 4, of the Connecti-
cut constitution, and argued that § 31-51q expressly
authorizes punitive damages.
On May 17, 2022, the court issued a memorandum of
decision granting the motion to strike as to counts one,
two, three, four, and five but denying the motion to
The defendant also argued that the § 1983 claim set forth in count one
5

of the operative complaint was barred by the statute of limitations. The
court did not resolve the motion to strike as to count one on this ground,
reasoning that the issue of the statute of limitations typically must be pleaded
as a special defense, rather than by a motion to strike. See Greco v. United
Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006) (‘‘[O]rdi-
narily, [a] claim that an action is barred by the lapse of the statute of
limitations must be pleaded as a special defense, not raised by a motion to
strike. . . . This is because a motion to strike challenges only the legal
sufficiency of the complaint and might . . . deprive a plaintiff of an opportu-
nity to plead matters in avoidance of the statute of limitations defense.’’
(Citations omitted; internal quotation marks omitted.)).
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strike as to the prayer for relief regarding punitive dam-
ages. The court took no action as to count six given
the plaintiff’s representation in his memorandum in
opposition to the motion to strike that he would with-
draw that count.
As to count one of the plaintiff’s complaint, alleging
a violation of § 1983,6 the court concluded that the plain-
tiff failed to allege sufficient facts to establish that (1)
the defendant’s policies, practices, or customs led to a
violation of his constitutional rights, as required for
municipal liability, and (2) his deposition testimony was
speech on a matter of public concern, as required for
protection under the first amendment.7 As to counts
two and three of the plaintiff’s complaint, alleging viola-
tions of § 31-51q,8 the court concluded that the plaintiff
6
‘‘A first amendment retaliation claim under § 1983 requires that a [plain-
tiff] establish three elements: (1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff,
and (3) that there was a causal connection between the protected speech
and the adverse action.’’ (Internal quotation marks omitted.) Jolley v. Vinton,
196 Conn. App. 379, 384, 229 A.3d 1198 (2020). In addition, ‘‘[p]laintiffs who
seek to impose liability on local governments under § 1983 must prove that
action pursuant to official municipal policy caused their injury.’’ (Internal
quotation marks omitted.) Edgewood Street Garden Apartments, LLC v.
Hartford, 163 Conn. App. 219, 231, 135 A.3d 54, cert. denied, 321 Conn. 903,
136 A.3d 642 (2016).
7
In its memorandum of decision, the court set forth two ways in which
the plaintiff failed to sufficiently allege that his speech was constitutionally
protected under the federal constitution. The court first explained that,
although the plaintiff relied on Lane v. Franks, 573 U.S. 228, 134 S. Ct. 2369,
189 L. Ed. 2d 312 (2014), which held that the first amendment protects
a public employee who provides truthful sworn testimony, compelled by
subpoena, outside the scope of his ordinary job responsibilities; id., 238;
the plaintiff failed to allege that his deposition testimony was compelled by
subpoena. The court also reasoned that the plaintiff failed to allege that he
provided testimony on a matter of public concern rather than the personal
grievance of another employee, such as evidence necessary for the adminis-
tration of justice or a complaint of discrimination connected to a broader
policy or practice of systemic discrimination.
8
General Statutes (Rev. to 2019) § 31-51q provides in relevant part: ‘‘Any
employer . . . who subjects any employee to discipline or discharge on
account of the exercise by such employee of rights guaranteed by the first
amendment to the United States Constitution or section 3, 4 or 14 of article
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Michel v. Hartford

failed to allege sufficient facts to establish that (1) his
deposition testimony was speech on a matter of public
concern, as required for protection under both the fed-
eral and state constitutions,9 and (2) his speech did
not substantially or materially interfere with his job
performance or the working relationship between him
and his employer.
The plaintiff did not replead, and the defendant filed
a motion for judgment on June 6, 2022. The following
day, on June 7, 2022, while the motion for judgment
was still pending, the plaintiff filed an appeal from the
court’s May 17, 2022 decision granting the defendant’s
motion to strike. This court subsequently ordered the
parties to file memoranda addressing whether the origi-
nal appeal should be dismissed for lack of jurisdiction
because judgment had not been rendered on the
stricken counts of the operative complaint and because
count six of the complaint, which the plaintiff had repre-
sented that he would withdraw, had not been with-
drawn and therefore remained pending. On August 9,
2022, the plaintiff filed with the trial court a withdrawal
of count six of the operative complaint and, on August
17, 2022, the trial court granted the defendant’s motion
for judgment. This amended appeal followed.10
first of the Constitution of the state, provided such activity does not substan-
tially or materially interfere with the employee’s bona fide job performance
or the working relationship between the employee and the employer, shall be
liable to such employee for damages caused by such discipline or discharge,
including punitive damages, and for reasonable attorney’s fees as part of
the costs of any such action for damages. . . .’’
9
In the context of the plaintiff’s § 31-51q claim under the federal constitu-
tion, as set forth in count two, the court explained: ‘‘As discussed in connec-
tion with the plaintiff’s § 1983 claim in count one, the plaintiff’s speech did
not address a matter of public concern, but rather was intended to support
and corroborate the personal grievances of another employee.’’ See footnote
7 of this opinion. The court ruled that the plaintiff’s § 31-51q claim under
the state constitution, as set forth in count three, failed for the same reason.
10
This court subsequently denied a motion to dismiss the original appeal
that it had sua sponte filed on the same date as its order for supplemental
memoranda. This court ordered that ‘‘the appeal as amended may proceed.’’
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Michel v. Hartford

At the outset, we note the standard of review and
legal principles that apply to the plaintiff’s claims. ‘‘A
motion to strike shall be used whenever any party
wishes to contest . . . the legal sufficiency of the alle-
gations of any complaint . . . or of any one or more
counts thereof, to state a claim upon which relief can
be granted . . . .’’ Practice Book § 10-39 (a). ‘‘Appellate
review of a trial court’s decision to grant a motion to
strike is plenary. . . . We take the facts to be those
alleged in the complaint that has been stricken and we
construe the complaint in the manner most favorable
to sustaining its legal sufficiency. . . . It is fundamen-
tal that in determining the sufficiency of a complaint
challenged by a defendant’s motion to strike, all well-
pleaded facts and those facts necessarily implied from
the allegations are taken as admitted.’’ (Citation omit-
ted; internal quotation marks omitted.) A.C. Con-
sulting, LLC v. Alexion Pharmaceuticals, Inc., 194
Conn. App. 316, 325, 220 A.3d 890 (2019); see also Doe
v. Cochran, 332 Conn. 325, 333, 210 A.3d 469 (2019) (‘‘we
note that [w]hat is necessarily implied [in an allegation]
need not be expressly alleged’’ (internal quotation
marks omitted)). ‘‘Indeed, pleadings must be construed
broadly and realistically, rather than narrowly and tech-
nically.’’ (Internal quotation marks omitted.) Sepega v.
DeLaura, 326 Conn. 788, 791, 167 A.3d 916 (2017). We
now address the plaintiff’s claims in turn.

I

First, the plaintiff claims that the court improperly
granted the defendant’s motion to strike count one of
his operative complaint alleging retaliation in violation
of § 1983 for the exercise of his rights guaranteed by
the first amendment to the federal constitution. Specifi-
cally, he contends that, contrary to the court’s conclu-
sion, he adequately pleaded facts to establish that the
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Michel v. Hartford

defendant’s policies, practices, or customs led to a viola-
tion of his constitutional rights, as required for munici-
pal liability. We are not persuaded.11
‘‘A municipality or other local government may be
liable under [§ 1983] if the governmental body itself
subjects a person to a deprivation of rights or causes
a person to be subjected to such deprivation. See Monell
v. New York City Dept. of Social [Services], 436 U.S.
658, 692 [98 S. Ct. 2018, 56 L. Ed. 2d 611] (1978) [quoting
42 U.S.C. § 1983]. But, under § 1983, local governments
are responsible only for their own illegal acts. . . .
They are not vicariously liable under § 1983 for their
employees’ actions. . . . Plaintiffs who seek to impose
liability on local governments under § 1983 must prove
that action pursuant to official municipal policy caused
their injury. . . .
‘‘[I]t is not enough for a § 1983 plaintiff merely to
identify conduct properly attributable to the municipal-
ity. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the moving
force behind the injury alleged. That is, a plaintiff must
show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the
deprivation of federal rights. Where a plaintiff claims
that a particular municipal action itself violates federal
law, or directs an employee to do so, resolving these
issues of fault and causation is straightforward. . . .
Where [however] a plaintiff claims that the municipality
11
The plaintiff also contends that the court improperly concluded that he
failed to sufficiently allege that his speech was on a matter of public concern,
as required for protection under the first amendment. As set forth in part
II of this opinion, we agree with that contention. Nevertheless, the plaintiff’s
failure to plead sufficient facts to establish municipal liability is fatal to his
§ 1983 claim.
Moreover, in light of our conclusion as to municipal liability, we need
not reach the defendant’s alternative ground for affirmance that the plaintiff’s
§ 1983 claim is time barred by the statute of limitations.
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Michel v. Hartford

has not directly inflicted an injury, but nonetheless has
caused an employee to do so, rigorous standards of
culpability and causation must be applied to ensure
that the municipality is not held liable solely for the
actions of its employee.’’ (Citation omitted; internal quo-
tation marks omitted.) Edgewood Street Garden Apart-
ments, LLC v. Hartford, 163 Conn. App. 219, 231–32, 135
A.3d 54, cert. denied, 321 Conn. 903, 136 A.3d 642 (2016).
In the present case, the plaintiff failed to sufficiently
plead facts that, if proven, would establish retaliation
pursuant to an official policy, practice or custom, such
that the defendant, as a municipality, could be held
liable pursuant to § 1983 for the actions of its employ-
ees. The plaintiff acknowledges that the conduct at
issue does not involve a formal or official policy. Never-
theless, he contends that he alleged a pattern of adverse
employment actions taken against him by his superiors,
who were ‘‘effectively the policymakers of the depart-
ment,’’ which was sufficient to constitute a policy or
custom required for municipal liability. ‘‘[M]unicipal lia-
bility may be imposed for a single decision by municipal
policymakers under appropriate circumstances.’’ Pem-
baur v. Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292,
89 L. Ed. 2d 452 (1986). In addition, ‘‘Monell’s policy or
custom requirement is satisfied where a local govern-
ment is faced with a pattern of misconduct and does
nothing, compelling the conclusion that the local gov-
ernment has acquiesced in or tacitly authorized its sub-
ordinates’ unlawful actions. . . . Such a pattern, if suf-
ficiently persistent or widespread as to acquire the force
of law, may constitute a policy or custom within the
meaning of Monell.’’ (Citations omitted.) Reynolds v.
Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
The plaintiff failed to allege any facts to demonstrate
that the officers who engaged in the alleged retaliatory
conduct were ‘‘responsible for establishing final policy
with respect to the subject matter in question,’’ in order
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14 ,0 0 Conn. App. 1
Michel v. Hartford

to be characterized as municipal policymakers. Pem-
baur v. Cincinnati, supra, 475 U.S. 483–84. Moreover,
the ‘‘pattern’’ of misconduct alleged by the plaintiff was
directed only at the plaintiff himself. The plaintiff did
not allege other constitutional violations, or that the
officers’ conduct was directed at anyone else, in order
to establish that the defendant had a custom or practice
of infringing on constitutional rights. See Reynolds v.
Giuliani, supra, 506 F.3d 192 (misconduct by subordi-
nate municipal employee other than policymaker must
be ‘‘sufficiently persistent or widespread’’ as to indicate
pattern ‘‘acquir[ing] the force of law’’); see also St. Louis
v. Praprotnik, 485 U.S. 112, 128, 108 S. Ct. 915, 99 L. Ed.
2d 107 (1988) (plaintiff’s failure to allege that relevant
conduct ‘‘was ever directed against anyone other than
himself’’ supported conclusion that city could not be
held liable under Monell); Dean v. Wexford Health
Sources, Inc., 18 F.4th 214, 240 (7th Cir. 2021) (‘‘[c]onsis-
tent with the Supreme Court’s guidance, we have
repeatedly rejected Monell claims that rest on the plain-
tiff’s individualized experience without evidence of
other constitutional violations’’); Jones v. East Haven,
691 F.3d 72, 82 (2d Cir. 2012) (there must be ‘‘sufficient
instances of tolerant awareness’’ by supervisors of abu-
sive conduct to support inference that they had policy,
custom or usage of acquiescence in such abuse), cert.
denied, 571 U.S. 940, 134 S. Ct. 125, 187 L. Ed. 2d 255
(2013). Accordingly, the plaintiff failed to sufficiently
allege an official policy, practice or custom as required
for municipal liability under § 1983. Therefore, we con-
clude that the plaintiff’s § 1983 claim was properly
stricken.
II
The plaintiff also claims that the court improperly
granted the defendant’s motion to strike counts two
and three of his operative complaint asserting claims
of retaliation in violation of § 31-51q for the exercise
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of his free speech rights pursuant to the first amend-
ment to the United States constitution and article first,
§ 4, of the Connecticut constitution. Specifically, he
contends that (1) he sufficiently pleaded facts that, if
proven, would establish that his deposition testimony
was constitutionally protected as speech on a matter
of public concern, and (2) he was not required to allege
facts to establish that his speech did not substantially
or materially interfere with his job performance or the
working relationship between him and his employer.
We agree.
A
The plaintiff first contends that the allegations in the
operative complaint were sufficient to establish that he
provided testimony in support of a fellow employee’s
race discrimination claim, which, he argues, is speech
on a matter of public concern. The defendant responds
that the operative complaint was devoid of any allega-
tions as to what the plaintiff ‘‘actually said’’ in his depo-
sition testimony and, therefore, the allegations were
insufficient to establish speech on a matter of public
concern. We agree with the plaintiff.
‘‘[Section] 31-51q provides a cause of action for dam-
ages for an employee who has been disciplined or dis-
charged on account of the exercise by such employee
of various constitutional rights including the freedom
of speech.’’ (Footnote omitted.) D’Angelo v. McGold-
rick, 239 Conn. 356, 357, 685 A.2d 319 (1996). Specifi-
cally, General Statutes (Rev. to 2019) § 31-51q provides
in relevant part: ‘‘Any employer . . . who subjects any
employee to discipline or discharge on account of the
exercise by such employee of rights guaranteed by the
first amendment to the United States Constitution or
section 3, 4 or 14 of article first of the Constitution of
the state, provided such activity does not substantially
or materially interfere with the employee’s bona fide
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job performance or the working relationship between
the employee and the employer, shall be liable to such
employee for damages caused by such discipline or
discharge, including punitive damages, and for reason-
able attorney’s fees as part of the costs of any such
action for damages. . . .’’
To determine whether the plaintiff sufficiently alleged
that his deposition testimony was constitutionally pro-
tected, which is ‘‘[a] clear prerequisite to the application
of § 31-51q’’; Schumann v. Dianon Systems, Inc., 304
Conn. 585, 600, 43 A.3d 111 (2012); we first turn to
the applicable constitutional principles governing the
protected status of employee speech under the federal
constitution. In the public employment setting, ‘‘employ-
ees must generally by necessity . . . accept certain
limitations on their [f]irst [a]mendment freedoms
because, as government insiders, their speech can con-
travene governmental policies or impair the proper per-
formance of governmental functions. . . . Still, a pub-
lic employee does not relinquish all [f]irst [a]mendment
rights otherwise enjoyed by citizens just by reason of
his or her employment.’’ (Citations omitted; internal
quotation marks omitted.) Heim v. Daniel, 81 F.4th
212, 223 (2d Cir. 2023); see also Schumann v. Dianon
Systems, Inc., supra, 601 (‘‘it is well established that a
. . . government may not compel individuals to relin-
quish their first amendment rights as a condition to
obtaining government employment’’ (internal quotation
marks omitted)).
‘‘In Pickering v. Board of Education, [391 U.S. 563,
568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)] . . . the
[United States Supreme Court] . . . set forth a general
principle governing the constitutionality of government
restrictions on the speech of its employees: in evaluat-
ing the constitutionality of government restrictions on
an employee’s speech, a court must arrive at a balance
between the interests of the [employee], as a citizen,
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in commenting upon matters of public concern and the
interest of the [s]tate, as an employer, in promoting the
efficiency of the public services it performs . . . .
‘‘In Connick v. Myers, [461 U.S. 138, 150, 103 S. Ct.
1684, 75 L. Ed. 2d 708 (1983)] the court added a modifi-
cation to the general balancing test promulgated in
Pickering. Under Connick, if a government employee’s
speech cannot be fairly characterized as constituting
speech on a matter of public concern, it is unnecessary
. . . to scrutinize the reasons for [his or] her discharge.
. . . The court reasoned that if an employee’s speech
addresses matters of exclusively private concern, the
government interest in latitude [to manage] their
offices, without intrusive oversight by the judiciary . . .
would outweigh the first amendment interests in the
speech, absent the most unusual circumstances . . . .’’
(Citation omitted; internal quotation marks omitted.)
Schumann v. Dianon Systems, Inc., supra, 304 Conn.
601–602.
Subsequently, in Garcetti v. Ceballos, 547 U.S. 410,
126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), the court
emphasized that ‘‘[u]nderlying [its] cases has been the
premise that while the [f]irst [a]mendment invests pub-
lic employees with certain rights, it does not empower
them to ‘constitutionalize the employee grievance.’ ’’
Id., 420. Thus, the court concluded that, ‘‘when public
employees make statements pursuant to their official
duties, the employees are not speaking as citizens for
[f]irst [a]mendment purposes, and the [c]onstitution
does not insulate their communications from employer
discipline.’’ Id., 421. Our Supreme Court has explained
that ‘‘Garcetti adds a threshold layer of analysis, requir-
ing courts to first determine whether an employee is
speaking pursuant to his official duties before turning
to the remainder of the first amendment analysis set
forth in Pickering and Connick.’’ Schumann v. Dianon
Systems, Inc., supra, 304 Conn. 604.
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Our state constitution, however, provides broader
protection than its federal counterpart in this context.
See Trusz v. UBS Realty Investors, LLC, 319 Conn. 175,
191–210, 123 A.3d 1212 (2015). In Trusz, our Supreme
Court concluded that the state constitution ‘‘incorpo-
rates a slightly modified form of the Pickering/Connick
test’’; id., 191; and that the Garcetti standard does not
apply to claims arising under the state constitution. Id.,
210. The court determined that ‘‘[the] modified Picker-
ing/Connick balancing test [set forth in Justice Souter’s
dissenting opinion in Garcetti], which recognizes both
the state constitutional principle that speech on all sub-
jects should be protected to the maximum extent possi-
ble and the important interests of an employer in con-
trolling its own message and preserving workplace
discipline, harmony and efficiency, provides the proper
test for determining the scope of a public employee’s
rights under the free speech provisions of the state
constitution when the employee is speaking pursuant
to his or her official duties.’’ (Emphasis in original.)
Id. Under this standard, ‘‘if an employee’s job related
speech reflects a mere policy difference with the
employer, it is not protected. It is only when the employ-
ee’s speech is on a matter of public concern and impli-
cates an employer’s official dishonesty . . . other seri-
ous wrongdoing, or threats to health and safety . . .
that the speech trumps the employer’s right to control
its own employees and policies.’’ (Citation omitted;
internal quotation marks omitted.) Id., 212.
In the present case, we initially note that the allega-
tions set forth in the operative complaint, when con-
strued in the manner most favorable to sustaining its
legal sufficiency, were sufficient to demonstrate that
the plaintiff was not making a statement pursuant to his
official duties. Accordingly, the differing legal standards
set forth in Garcetti and Trusz are not implicated in
the present case. See Garcetti v. Ceballos, supra, 547
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Michel v. Hartford

U.S. 421 (when public employees ‘‘make statements
pursuant to their official duties,’’ employees are not
‘‘speaking as citizens’’ as required for protection under
first amendment); Trusz v. UBS Realty Investors, LLC,
supra, 319 Conn. 210 (modified Pickering/Connick test
applies under speech provisions of Connecticut consti-
tution ‘‘when the employee is speaking pursuant to his
or her official duties’’).
The defendant suggests, to the contrary, that the
plaintiff failed to allege that he was testifying outside
the scope of his ordinary job responsibilities, and, there-
fore, (1) the allegations were legally insufficient to dem-
onstrate that the plaintiff was ‘‘speak[ing] as a citizen’’
pursuant to Garcetti v. Ceballos, supra, 547 U.S. 423,
and (2) the plaintiff was required to further allege that
his testimony ‘‘implicate[d] [his] employer’s official dis-
honesty . . . other serious wrongdoing, or threats to
health and safety’’ pursuant to Trusz v. UBS Realty
Investors, LLC, supra, 319 Conn. 212, which he also
failed to do. The defendant specifically contends that
‘‘[i]t is reasonable to infer from the pleadings that as a
police lieutenant, a routine and ordinary part of [the
plaintiff’s] job responsibilities include providing truth-
ful sworn testimony in judicial proceedings.’’ We dis-
agree.
Although testifying in criminal proceedings and cer-
tain civil proceedings may be a part of the tasks that
the plaintiff was paid to perform, there are no factual
allegations to indicate that providing deposition testi-
mony in the context of a fellow employee’s discrimina-
tion proceeding was part of what the plaintiff, as a
police officer, was employed to do. See Garcetti v.
Ceballos, supra, 547 U.S. 421–22. Indeed, even if the
plaintiff’s allegations suggest that his speech related to
information he had obtained during the course of his
employment, the concerns addressed in Garcetti and
Trusz do not arise. See Trusz v. UBS Realty Investors,
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20 ,0 0 Conn. App. 1
Michel v. Hartford

LLC, supra, 319 Conn. 212 (‘‘even under Garcetti, an
employee’s speech outside the workplace about the
employee’s job related duties . . . is protected, as long
as the speech involves a matter of public concern’’
(emphasis omitted)); see also Lane v. Franks, 573 U.S.
228, 238, 134 S. Ct. 2369, 189 L. Ed. 2d 312 (2014) (‘‘Truth-
ful testimony under oath by a public employee outside
the scope of his ordinary job duties is speech as a citizen
for [f]irst [a]mendment purposes. That is so even when
the testimony relates to his public employment or con-
cerns information learned during that employment.’’).12
Nevertheless, as set forth previously, the plaintiff’s
speech must have addressed a matter of public concern
to be entitled to protection under both the federal and
state constitutions. See Trusz v. UBS Realty Investors,
LLC, supra, 319 Conn. 212; Schumann v. Dianon Sys-
tems, Inc., supra, 304 Conn. 602. ‘‘Whether an employ-
ee’s speech addresses a matter of public concern must
be determined by the content, form, and context of
a given statement, as revealed by the whole record.’’
Connick v. Myers, supra, 461 U.S. 147–48. ‘‘An employ-
ee’s speech addresses a matter of public concern when
the speech can be fairly considered as relating to any
matter of political, social, or other concern to the com-
munity . . . .’’ (Internal quotation marks omitted.)
Schumann v. Dianon Systems, Inc., supra, 602.
We conclude that the allegations set forth in the oper-
ative complaint in the present case were sufficient to
establish that the plaintiff’s speech was on the topic of
racial discrimination against a fellow employee, which
is a matter of public concern.
12
In Lane, it was undisputed that the plaintiff’s ordinary job responsibili-
ties did not include testifying in court proceedings, and, therefore, the United
States Supreme Court did not need to address whether truthful sworn testi-
mony would constitute citizen speech under Garcetti when given as part
of a public employee’s ordinary job duties. See Lane v. Franks, supra, 573
U.S. 238 n.4.
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Specifically, the plaintiff alleged in relevant part that
Cruz complained to the plaintiff that his supervisor ‘‘was
racially discriminating against him by declining to enter
his overtime into the department’s payroll system.’’ The
plaintiff alleged that he ‘‘immediately reported the com-
plaint’’ to his supervisor and provided Cruz with advice
regarding who to contact for further assistance. The
plaintiff also alleged that, ‘‘[i]n September, 2017, [Cruz]
filed an administrative complaint with the [CHRO] relat-
ing to his belief that he was the victim of unlawful racial
discrimination,’’ and the plaintiff ‘‘supported [Cruz’] fil-
ing of the complaint and attempted to protect him from
further discrimination . . . .’’
As to his testimony, the plaintiff alleged that, on Octo-
ber 23, 2018, ‘‘[he] testified in a deposition for [Cruz’]
CHRO complaint against the defendant. His testimony
supported [Cruz’] allegations,’’ and, on December 20,
2019, he ‘‘completed a second deposition on behalf of
[Cruz], testifying favorably for him and against the
defendant.’’ (Emphasis added.) In the relevant counts
of the plaintiff’s complaint, the plaintiff also specifically
alleged that the defendant actively discouraged him
from complying with his obligation ‘‘to report and pre-
vent racial discrimination.’’
We conclude that these allegations, taken together,
necessarily imply that the plaintiff’s deposition testi-
mony supported Cruz’ discrimination claim. See Doe
v. Cochran, supra, 332 Conn. 333 (considering facts
‘‘necessarily implied’’ from allegations); see also Mercer
v. Champion, 139 Conn. App. 216, 232, 55 A.3d 772
(2012) (when taken together, facts necessarily implied
from plaintiff’s allegations were sufficient to satisfy stat-
utory requirement). We emphasize that we must con-
strue the allegations ‘‘broadly and realistically, rather
than narrowly and technically’’; (internal quotation
marks omitted) Sepega v. DeLaura, supra, 326 Conn.
791; and that we must construe them in the manner
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22 ,0 0 Conn. App. 1
Michel v. Hartford

most favorable to sustaining the legal sufficiency of
the complaint. See A.C. Consulting, LLC v. Alexion
Pharmaceuticals, Inc., supra, 194 Conn. App. 325.13 In
addition, in the context of our review of the plaintiff’s
§ 31-51q claim under the state constitution, as set forth
in count three of the operative complaint, we are also
cognizant of ‘‘the state constitutional principle that
speech on all subjects should be protected to the maxi-
mum extent possible . . . .’’ (Emphasis in original.)
Trusz v. UBS Realty Investors, LLC, supra, 319
Conn. 210.
In reaching our conclusion, we are guided by the
decision of the United States Court of Appeals for the
Second Circuit in Konits v. Valley Stream Central High
School District, 394 F.3d 121 (2d Cir. 2005), on which
the plaintiff relies.14 In Konits, the Second Circuit held
that ‘‘any use of state authority to retaliate against those
who speak out against discrimination suffered by oth-
ers, including witnesses or potential witnesses in pro-
ceedings addressing discrimination claims, can give rise
13
As noted previously, we also must take the facts alleged in the complaint
as true, given that the issue was raised in the context of a motion to strike.
See footnote 2 of this opinion. If the evidence ultimately produced by the
plaintiff demonstrates that his deposition testimony did not support the
discrimination claims made by Cruz, the defendant will have the opportunity
to file a motion for summary judgment, which is often the procedural vehicle
by which parties challenge whether speech is constitutionally protected in
this context. See, e.g., Lane v. Franks, supra, 573 U.S. 234; Garcetti v.
Ceballos, supra, 547 U.S. 415; Konits v. Valley Stream Central High School
District, 394 F.3d 121, 124 (2d Cir. 2005).
14
The plaintiff also relies on the decision of the Superior Court in Thomas
v. Guyette, Docket No. CV-XX-XXXXXXX-S, 2006 WL 2556506 (Conn. Super.
August 11, 2006), vacated in part on other grounds, Docket No. CV-03-
0081427-S, 2006 WL 3042074 (Conn. Super. October 13, 2006). Thomas is
distinguishable from the present case insofar as the parties in Thomas did
not dispute the content of the plaintiff’s speech, and the court, considering
a motion for summary judgment, had before it evidence of the plaintiff’s
specific statements. Id., *3–4. Nevertheless, the decision in Thomas supports
the general proposition underlying the plaintiff’s argument, that speech
‘‘directed at the ethnically discriminatory treatment of another employee’’
addresses a matter of public concern. Id., *4.
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Michel v. Hartford

to a cause of action under . . . the [f]irst [a]mend-
ment.’’ Id., 125. The plaintiff in that case, a public school
teacher, alleged that she suffered ongoing retaliation
as a result of her assistance to a fellow employee regard-
ing a gender discrimination claim. Id., 123–24. The plain-
tiff alleged that she provided assistance by, among other
things, being listed as a witness for the fellow employee
in her discrimination lawsuit against the school district.
Id., 123. The plaintiff alleged that she subsequently was
subjected to a series of adverse personnel actions by
the school district, its board of education, and certain
administrators and, therefore, filed her first retaliation
action (1996 lawsuit), which ultimately settled. Id. The
plaintiff filed a second retaliation action, the lawsuit at
issue in Konits, based on her claim that she was retali-
ated against for filing the 1996 lawsuit. Id., 124. The
United States District Court rendered summary judg-
ment in favor of the defendants after concluding that
the plaintiff’s 1996 lawsuit was not speech on a matter
of public concern.15 Id.
The Second Circuit vacated the judgment of the Dis-
trict Court and remanded the case for further proceed-
ings on the plaintiff’s retaliation claim. Id., 126. The
Second Circuit explained that, ‘‘[b]ecause [the plain-
tiff’s] 1996 lawsuit was predicated on speech about
gender discrimination against a fellow employee that
directly implicated the access of the courts to truthful
testimony,’’ it disagreed with the District Court’s assess-
ment that the lawsuit centered around the plaintiff’s
dissatisfaction with the terms and conditions of her
employment. Id., 125–26. The Second Circuit opined
that the plaintiff’s motive in speaking out had the
‘‘ ‘broader public purpose’ ’’ of assisting the fellow
The Second Circuit explained that, ‘‘if [the plaintiff’s] 1996 lawsuit
15

addressed a matter of public concern, the public concern requirement would
be met for her current lawsuit as well.’’ Konits v. Valley Stream Central
High School District, supra, 394 F.3d 124.
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24 ,0 0 Conn. App. 1
Michel v. Hartford

employee to redress her claim of gender discrimination;
id., 126; and explained that ‘‘[g]ender discrimination in
employment is without doubt a matter of public con-
cern. . . . Indeed, we have held repeatedly that when
a public employee’s speech regards the existence of
discrimination in the workplace, such speech is a matter
of public concern. . . . [S]peech is of particular public
concern when it involves actual or potential testimony
in court or in administrative procedures. Protection of
the courts’ interest in candid and truthful testimony,
coupled with the rights of discrimination victims to
seek protection in legal action, makes testimony or
prospective testimony in discrimination suits a mat-
ter of particular public interest.’’ (Citations omitted;
emphasis added.) Id., 125. The court therefore deter-
mined that, if the plaintiff could prove that being identi-
fied as a witness in the fellow employee’s lawsuit was
a partial motivation for the retaliation she allegedly
suffered, ‘‘then her [f]irst [a]mendment claim would
certainly lie.’’ Id.

In the present case, it may reasonably be inferred
from the allegations set forth in the operative complaint
that the plaintiff here, like the plaintiff in Konits, was
‘‘speak[ing] out against’’ discrimination in his testi-
mony, or that his testimony ‘‘regard[ed] the existence
of discrimination in the workplace . . . .’’ Id. Although
the plaintiff failed to include allegations concerning the
precise content of his testimony, or what he ‘‘actually
said,’’ as the defendant argues, the holding in Konits
did not turn on the specifics of the plaintiff’s proposed
testimony. See id., 125–26. Instead, the general content
of the plaintiff’s proposed testimony in Konits—and
its ‘‘ ‘broader public purpose’ ’’ of assisting a fellow
employee to redress her claim of gender discrimina-
tion—was inferred from the plaintiff simply being iden-
tified as a witness in the discrimination action. See id.
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Michel v. Hartford

The defendant argues that the plaintiff’s reliance on
Konits is misplaced given that it predated Garcetti and
Garcetti’s requirement that public employees must be
speaking ‘‘as citizens,’’ rather than as employees in the
course of performing their job duties, to be entitled to
protection under the federal constitution. Garcetti v.
Ceballos, supra, 547 U.S. 421. We are not persuaded.16
Unlike the plaintiff in Garcetti, whose speech was made
in the context of a memorandum that he had written
because it was ‘‘part of what he . . . was employed to
do,’’ there is nothing to indicate that the plaintiff in
Konits, a public school teacher, would have been ‘‘mak-
[ing] statements pursuant to [her] official duties’’; id.,
421; by providing testimony in a fellow employee’s dis-
crimination action. See Konits v. Valley Stream Central
High School District, supra, 394 F.3d 124–25. Thus,
there is nothing to suggest that the holding in Garcetti
would have affected the outcome of Konits. Indeed,
even after the Supreme Court’s decision in Garcetti,
the Second Circuit has continued to cite Konits without
indicating that Garcetti overruled that decision or oth-
erwise affected its holding. See Quinones v. Bingham-
ton, 997 F.3d 461, 467 n.3 (2d Cir. 2021) (citing Konits
for proposition that ‘‘[t]here is law that any use of state
authority to retaliate against those who speak out
against discrimination suffered by others, including wit-
nesses or potential witnesses in proceedings addressing
discrimination claims, can give rise to a cause of action
under [§ 1983] and the [f]irst [a]mendment’’ (internal
quotation marks omitted)); see also Colvin v. Keen, 900
F.3d 63, 76 (2d Cir. 2018) (distinguishing Konits on
basis that plaintiff was advising coworker of her consti-
tutional rights, not speaking out against any perceived
16
We also note that the defendant has failed to explain why the holding
in Konits would not continue to provide helpful guidance in our consider-
ation of the plaintiff’s claim under the state constitution, regardless of the
decision in Garcetti, given that our Supreme Court rejected the standard
set forth in Garcetti. See Trusz v. UBS Realty Investors, LLC, supra, 319
Conn. 191, 210.
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26 ,0 0 Conn. App. 1
Michel v. Hartford

discrimination or official misconduct); Kercado-
Clymer v. Amsterdam, 370 Fed. Appx. 238, 243 (2d
Cir. 2010) (citing Konits in support of conclusion that
plaintiff’s conversation with city attorney about her own
and others’ complaints of sex discrimination was
speech addressing matter of public concern). The fed-
eral district courts within the Second Circuit, including
the United States District Court for the District of Con-
necticut, also have continued to rely on Konits. See,
e.g., Barone v. Judicial Branch Connecticut, Docket
No. 3:17-cv-00644 (VAB), 2018 WL 1368906, *9 (D. Conn.
March 16, 2018); Fairchild v. Quinnipiac University,
16 F. Supp. 3d 89, 94 (D. Conn. 2014). Accordingly, we
are not convinced that Garcetti overruled Konits or
that it called into question the holding in Konits, and,
therefore, we conclude that Konits remains good law
and that it is persuasive in the present case.
Moreover, the court’s observation in Konits that
‘‘speech is of particular public concern when it involves
actual or potential testimony in court or in administra-
tive procedures’’; Konits v. Valley Stream Central High
School District, supra, 394 F.3d 125; was subsequently
confirmed by the United States Supreme Court in Lane
v. Franks, supra, 573 U.S. 228. In Lane, the court held
that ‘‘the [f]irst [a]mendment protects a public
employee who provides truthful sworn testimony, com-
pelled by subpoena, outside the scope of his ordinary
job responsibilities.’’ Id., 238. The court concluded that
the testimony at issue in that case was speech on a
matter of public concern because ‘‘[t]he content of [the
plaintiff’s] testimony—corruption in a public program
and misuse of state funds—obviously involves a matter
of significant public concern,’’ and ‘‘the form and con-
text of the speech—sworn testimony in a judicial pro-
ceeding—fortify that conclusion.’’ Id., 241. Although
Lane is not directly on point,17 it lends support to our
17
Lane did not involve testimony in support of a fellow employee’s discrim-
ination claim. Instead, the plaintiff’s testimony in that case took place in
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0 Conn. App. 1 ,0 27
Michel v. Hartford

conclusion that the plaintiff’s speech in the present
case, given its form and context, involved a matter of
public concern.
Accordingly, we conclude that the court improperly
determined that the plaintiff failed to sufficiently allege
that his speech addressed a matter of public concern.
Therefore, we conclude that the court improperly
granted the defendant’s motion to strike the plaintiff’s
§ 31-51q claims set forth in count two and count three
of the operative complaint on this ground.
B
The plaintiff also argues that, contrary to the court’s
conclusion, he was not required to plead that his speech
did not substantially or materially interfere with his job
performance or the working relationship between him
and his employer and that ‘‘[i]t makes far more sense
for the burden to fall on the defendant to raise interfer-
ence as a special defense.’’ The defendant responds that
the court properly concluded that the plaintiff must
affirmatively plead noninterference, as an essential ele-
ment of § 31-51q, and that the allegations in the opera-
the context of criminal trials and, as already noted, it concerned corruption
in a public program and misuse of state funds, which the court concluded
‘‘obviously’’ involved a matter of public concern. Lane v. Franks, supra, 573
U.S. 241.
In addition, the plaintiff in Lane had been compelled by subpoena to
testify. Id., 238. Despite this distinction, the plaintiff in the present case
argues that his testimony was constitutionally protected even though he
provided it voluntarily. Our research reveals that the plaintiff’s argument
has at least some support from certain federal courts of appeal, which have
focused on the broader policy considerations of Lane rather than whether
the speech at issue was compelled testimony. See Bevill v. Fletcher, 26 F.4th
270, 277 n.3 (5th Cir. 2022) (‘‘[w]hether [the plaintiff] submitted [a sworn]
statement voluntarily or under pain of punishment is not decisive, given
that the policy rationale underlying Lane is to incentivize public employees
to come forward with truthful information about corruption among public
officials’’); see also Dougherty v. School District of Philadelphia, 772 F.3d
979, 990 (3d Cir. 2014) (rejecting argument that holding of Lane was limited
to context of compelled testimony).
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28 ,0 0 Conn. App. 1
Michel v. Hartford

tive complaint were insufficient to do so. We agree with
the plaintiff.
As set forth previously in this opinion, § 31-51q pro-
vides that ‘‘[a]ny employer . . . who subjects any
employee to discipline or discharge on account of the
exercise by such employee of rights guaranteed by the
first amendment to the United States Constitution or
section 3, 4 or 14 of article first of the Constitution of
the state, provided such activity does not substantially
or materially interfere with the employee’s bona fide
job performance or the working relationship between
the employee and the employer, shall be liable to such
employee for damages caused by such discipline or
discharge . . . .’’ (Emphasis added.) General Statutes
(Rev. to 2019) § 31-51q.
The issue of whether a plaintiff making a § 31-51q
claim must affirmatively plead noninterference is an
open question that neither this court nor our Supreme
Court has addressed. There is a split among the Superior
Courts on this issue. Some courts have imposed upon
the plaintiff the burden to plead and prove a lack of
interference. See, e.g., Coffy v. State, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-
S (June 18, 2021) (71 Conn. L. Rptr. 109, 111); Buscetto
v. Saint Bernard School of Montville, Inc., Superior
Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX-S (February 22, 2013) (55 Conn. L. Rptr. 583,
587). Other courts have imposed upon the defendant
the burden of raising any substantial and material inter-
ference as a special or affirmative defense. See, e.g.,
D’Amato v. Board of Education, Docket No. CV-19-
6091032-S, 2020 WL 1656202, *12 (Conn. Super. March
3, 2020); Matthews v. Dept. of Public Safety, Superior
Court, judicial district of Hartford, Docket No. CV-11-
6019959-S (May 31, 2013) (56 Conn. L. Rptr. 262, 267–
68). Several recent decisions from the United States
District Court for the District of Connecticut also have
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concluded that the burden is on the defendant to raise
and prove the issue of interference. See Mumma v.
Pathway Vet Alliance, LLC, 648 F. Supp. 3d 373, 391–92
(D. Conn. 2023); Bacewicz v. Molecular Neuroimaging,
LLC, Docket No. 3:17-cv-85 (MPS), 2019 WL 4600227,
*10–11 (D. Conn. September 23, 2019); Blue v. New
Haven, Docket No. 3:16-cv-1411 (MPS), 2019 WL
399904, *9–10 (D. Conn. January 31, 2019).

The plaintiff contends that we should follow the
approach of the Superior Court in Matthews v. Dept.
of Public Safety, supra, 56 Conn. L. Rptr. 262. In Mat-
thews, the court analyzed the language of § 31-51q and
determined that the question of whether a plaintiff must
plead a lack of substantial interference ‘‘revolves
around the impact of the term ‘provided’ in the text of
the [statute].’’ Id., 267. Applying principles of statutory
construction, the court determined that the clause in
§ 31-51q regarding noninterference was a proviso,
rather than an exception, and, therefore, the defendant
bore the burden of raising the issue of interference as
a special defense. Id., 267–68. Specifically, the court
explained: ‘‘Clauses introduced by provided are fairly
called a proviso or exception. Although they have some-
times been used interchangeably, there are some differ-
ences between a proviso and an exception. As a matter
of form, the proviso is usually part of a section estab-
lishing a general rule, the proviso being an added
clause limiting the operation of the rule and being
introduced by the word provided or the words pro-
vided, however. . . . The operative effect of provisos
and exceptions have sometimes been differentiated.
For example, one who asserts a claim based upon a
statute must [negate], in pleadings and proofs, any
exceptions in the provision on which the claim is based,
whereas [a] matter in a proviso can be left for the
adversary as a defensive matter. . . . Provisos serve
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the purpose of restricting the operative effect of statu-
tory language to less than what its scope of operation
would be otherwise. . . . Exceptions, like provisos,
operate to restrict the general applicability of legislative
language. Ordinarily a proviso occurs within the body
of a section while an exception is drafted as a separate
section. . . . [W]e have long held that provisos and
exceptions to statutes are to be [strictly] construed with
doubts resolved in favor of the general rule rather than
the exception and that those who claim the benefit of
an exception under a statute have the burden of proving
that they come within the limited class for whose bene-
fit it was established.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Matthews
v. Dept. of Public Safety, supra, 267–68; see Yale Univer-
sity v. New Haven, 71 Conn. 316, 337, 42 A. 87 (1899)
(stating that proviso is strictly construed and it must
be established by its proponent).

The court in Matthews determined that imposing the
burden on the defendant to raise the issue of interfer-
ence was not only consistent with principles of statu-
tory construction but also ‘‘comports with a logical
operation of the statute and the Practice Book.’’ Id.,
268. The court further noted the practical difficulties a
plaintiff would face if he were required to prove the
lack of a substantial and material interference, as ‘‘he
would be forced to prove a negative, which is a difficult
if not impossible task.’’ Id., citing Arrowood Indemnity
Co. v. King, 304 Conn. 179, 203, 39 A.3d 712 (2012)
(‘‘the task of proving a negative is an inherently difficult
one’’). The court continued: ‘‘This would place the court
in the peculiar position of requiring the plaintiff to plead
either an extensive and exhaustive recitation of all
events that may have involved interference or a boil-
erplate that would not give significant factual detail and
would likely involve a legal conclusion. In contrast, by
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placing the burden on the defendant to plead a substan-
tial and material interference as a special defense, the
defendant is able to allege specific facts concerning any
incidents of disruption because, as the employer, it has
a wider and better knowledge of disruptive events. This
creates a situation well suited for an affirmative
defense, and, in light of the case law, interpretation of
the statutory text and confines of logic, it makes more
sense that it is the defendant’s burden to prove a sub-
stantial and material interference.’’ (Footnote omitted.)
Matthews v. Dept. of Public Safety, supra, 56 Conn. L.
Rptr. 268.
The defendant contends that we should, instead, fol-
low the analysis of the Superior Court in Coffy v. State,
supra, 71 Conn. L. Rptr. 109. In Coffy, the court analo-
gized § 31-51q to Connecticut’s dog bite statute and
pointed to our Supreme Court’s analysis of the dog bite
statute in Goodwin v. Giovenelli, 117 Conn. 103, 167
A. 87 (1933). At the time of the Goodwin decision, the
dog bite statute imposed liability on the owner or keeper
of any dog for damage by the dog to persons or property,
‘‘except where such damage shall have been occasioned
to the body or property of a person who, at the time
such damage was sustained, was committing a trespass
or other tort.’’18 General Statutes (1930 Rev.) § 3357; see
Goodwin v. Giovenelli, supra, 105 n.1. As emphasized
by the court in Coffy, the Goodwin decision held that
the plaintiff bore the burden to plead and prove that
he was not committing a trespass or other tort at the
time of the dog attack, reasoning that, ‘‘[w]here an
exception forms an integral part of that portion of a
statute which creates a right, it becomes a limitation
18
The current revision of the dog bite statute similarly imposes liability
‘‘except when such damage has been occasioned to the body or property
of a person who, at the time such damage was sustained, was committing
a trespass or other tort, or was teasing, tormenting or abusing such dog.’’
General Statutes § 22-357 (b).
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upon that right, and a plaintiff, to avail himself of the
benefit of the statute, must show that he comes within
the limited class for whose benefit the right was estab-
lished, the burden of proof in this respect being upon
him. . . . As the statute now reads, we hold that a
complaint thereunder should, by proper allegations,
negative the existence of circumstances which would
bring the plaintiff within the exception . . . .’’ (Cita-
tions omitted.) Goodwin v. Giovenelli, supra, 107.
The court in Coffy determined that it ‘‘consider[ed]
the statutory exception in the statute addressed in
Goodwin to be functionally equivalent to the proviso
in § 31-51q. Both statutes contain an enacting clause
which creates a right of action for a plaintiff. In the
factual scenario of the current case, the proviso within
the enacting clause limits the scope of the right created
by precluding the employee from suing when the
employee’s conduct, although otherwise being pro-
tected under the statute, substantially or materially
interferes with the employee’s job performance or the
employee-employer working relationship. The proviso
in § 31-51q forms an integral part of the statute and is
a limitation on the right created by it. The only patent
difference between the statutes, is that the statute in
Goodwin uses the term ‘except’ to begin the ‘exception’
and § 31-51q uses the term ‘provided’ to begin the ‘pro-
viso.’ In this case, that distinction has no impact because
the function of both provisions, as just discussed, is
the same. The function of the ‘exception’ in the dog-
bite statute and the ‘proviso’ in § 31-51q is to place a
limitation on the right created by each statute. Further-
more, no one would argue that if § 31-51q instead used
the phrase, ‘except if such activity substantially or mate-
rially interferes with’ that its plain textual meaning
would be any different.’’ Coffy v. State, supra, 71 Conn.
L. Rptr. 110–11. Applying the reasoning set forth in
Goodwin, the court in Coffy thus determined that the
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plaintiff bore the burden of pleading and proving ‘‘the
non-existence of the material interference element’’ of
§ 31-51q. Id., 111.
We adopt the well reasoned analysis set forth in Mat-
thews, and we conclude that a plaintiff making a claim
pursuant to § 31-51q does not have an affirmative bur-
den to plead noninterference. Instead, a defendant may
raise the issue of interference in a special defense. In
reaching this conclusion, we find particularly persua-
sive the recent decision of the United States District
Court for the District of Connecticut in Mumma v.
Pathway Vet Alliance, LLC, supra, 648 F. Supp. 3d 373.
In Mumma, the court examined the reasoning in both
Matthews and Coffy. Id., 391–92. The court explained
that, because the question of who bears the burden on
the interference element of § 31-51q had not yet been
decided by a Connecticut appellate court, its role was
to try to predict how our Supreme Court would resolve
the issue. Id., 391; see also Travelers Ins. Co. v. 633
Third Associates, 14 F.3d 114, 119 (2d Cir. 1994)
(‘‘[w]here the substantive law of the forum state is
uncertain or ambiguous, the job of the federal courts
is carefully to predict how the highest court of the forum
state would resolve the uncertainty or ambiguity’’). The
court then predicted that our Supreme Court would
adopt the reasoning of Matthews and would not follow
the decision in Coffy. Mumma v. Pathway Vet Alliance,
LLC, supra, 391–92.
The court in Mumma found the Coffy decision unper-
suasive because, although it contained a discussion of
the proviso/exception distinction, it failed to contest
the practical considerations identified in Matthews. Id.,
391. The court in Mumma also observed that ‘‘dog bite
plaintiffs and [§] 31-51q claimants are not similarly situ-
ated; whereas the former likely knows whether he was
committing a tort at the time he was attacked, the latter
almost invariably does not have the same knowledge of
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disruptive events as the employer.’’ (Internal quotation
marks omitted.) Id., 392. We agree with this assessment.
Accordingly, we conclude that the court in the present
case improperly granted the defendant’s motion to
strike the plaintiff’s § 31-51q claims set forth in counts
two and three of the operative complaint on the ground
that the plaintiff failed to sufficiently allege that his
speech did not substantially or materially interfere with
his job performance or the working relationship
between him and his employer.
The judgment is reversed only with respect to the
granting of the defendant’s motion to strike counts two
and three of the plaintiff’s complaint and the case is
remanded for further proceedings according to law; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.