Ortiz v. Torres-Rodriguez

O
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                         APPENDIX
            PABLO ORTIZ, JR. v. LESLIE
              TORRES-RODRIGUEZ*
           Superior Court, Judicial District of Hartford
                    File No. CV-XX-XXXXXXX-S

                Memorandum filed May 14, 2020

                           Proceedings

  Memorandum of decision on defendant’s motion for
summary judgment. Motion granted.
  Pablo Ortiz, Jr., self-represented, the plaintiff.
  Channez M. Rogers and David S. Monastersky, for
the defendant.
                           Opinion

  NOBLE, J. Before the court is the motion of the defen-
dant, Leslie Torres-Rodriguez, for summary judgment.
For the following reasons the motion is granted.
   In his revised complaint filed September 19, 2018,
the plaintiff, Pablo Ortiz, Jr., alleges the following facts.
The defendant was at all times relevant to the complaint
acting in her capacity as the interim superintendent of
schools for the Hartford Board of Education. In 2010,
the plaintiff was hired by the then superintendent to
coach the Bulkeley High School football and basketball
varsity programs.1 On January 25, 2017, the defendant
received a letter from an assistant football coach in
which he complained about the plaintiff’s coaching tem-
perament, and referenced similar complaints from for-
mer players and a parent. On January 27, 2017, the
defendant terminated the plaintiff by letter. The plaintiff
claims that the defendant failed to follow school proto-
cols and policies in one or more of the following ways:
the termination occurred prior to the completion of
an investigation by the Department of Children and
Families (DCF); the school protocols and policies
required deference to the DCF investigation and find-
ings; the protocols and policies required the provision
of due process in any investigation; and school policy
limited the defendant’s authority to discipline the plain-
tiff, during a DCF investigation of suspected abuse,
to suspension with pay pending the outcome of the
investigation.
   The plaintiff further alleges that, one day after the
plaintiff’s termination became public, the defendant
issued a press statement in response to questions about
the plaintiff’s termination, stating: ‘‘The first priority
of the Hartford [p]ublic [s]chools is to ensure student
safety. As [a]cting [s]uperintendent of [s]chools, I will
not allow any unacceptable staff behavior during my
tenure. In the unfortunate event that, despite our best
efforts to the contrary, individuals engage in inappropri-
ate interactions with students, with their families, with
staff or with any of the visitors who come to our schools
and events, such individuals will be dealt with swiftly
in accordance with the policies established by the Hart-
ford Board of Education.’’ At some point, DCF initiated
an investigation of the plaintiff for abuse. In March
or April, 2017, DCF concluded its investigation. The
investigation cleared the plaintiff of any wrongdoing,
specifically finding that there were no valid claims of
abuse or neglect by him. The defendant, after DCF
concluded its investigation, did not rehire the plaintiff
or retract her earlier statement.
   The plaintiff alleges in count one of his complaint
that the defendant was reckless, largely in her conduct
in terminating the plaintiff, but also by making inaccura-
cies in the press statement. The plaintiff claims injury
therefrom related to loss of his reputation, loss of job,
emotional distress and lost wages. Count two alleges
intentional infliction of emotional distress based on the
conduct alleged in count one and sets forth identical
injuries. Count three alleges a claim for libel based on
the press statement issued the day after the plaintiff’s
termination that indicated he was guilty of unacceptable
behavior, was a danger to students, needed to be dealt
with swiftly and terminated pursuant to the investiga-
tory protocols of the [Hartford public schools] (HPS)
system. The plaintiff claims no specific damages but
alleges merely libel done to severely stigmatize the
plaintiff in order to enhance the defendant’s job pros-
pects, public standing and financial well-being.
   In support of the defendant’s motion for summary
judgment, she offers the affidavits of Natasha Banks,
executive director of human resources for HPS; Milly
Ramos, labor relations specialist for HPS; and her own
affidavit. Banks’ affidavit undercuts the factual theme
of the plaintiff’s claims. In her affidavit, Banks sets out
that the plaintiff’s employment with HPS was that of an
at-will employee. She avers that, as executive director
of human resources for HPS, she oversees the hiring
and termination of athletic coaches such as the plaintiff,
and so it was she, and not the defendant, who termi-
nated the plaintiff. She did so after becoming aware of a
complaint from an assistant coach as well as complaints
from twenty-eight former and current players regarding
the plaintiff’s conduct. The defendant had no role in
the plaintiff’s termination, was not consulted about it
and was informed of Banks’ decision only after he was
terminated.
   Ramos testified in her affidavit that, in her capacity
as a labor relations specialist for HPS, she investigated
the complaints from the assistant coach, and former
and current players. The complaints addressed physical
and verbal altercations with student athletes, parents
and other coaches, name-calling, bullying, and unethical
practices related to paying assistant coaches who had
not been hired by HPS. Banks reported the complaints
to DCF in accordance with HPS’ obligation as a man-
dated reporter. Ramos never completed her investiga-
tion because Banks elected to terminate the plaintiff’s
at-will employment. She did learn, however, that some
HPS personnel had received information that a student
may have been ‘‘mentally bullied’’ and ‘‘jacked up and
thrown on the ground’’ by an athletic coach but had
failed in their obligation to report this information to
DCF. Ramos lastly asserted that the defendant had no
involvement in her investigation of the plaintiff or
whether personnel had failed to make a mandated
reporting.
  The defendant’s affidavit outlines her employment
as acting superintendent at the times relevant to the
plaintiff’s complaint, that she had no authority to termi-
nate athletic coaches, she did not consult in his termina-
tion, did not participate in the investigation and did
not terminate the plaintiff; rather, it was Banks who
terminated the plaintiff. The defendant further provides
in her affidavit that the statement she released to the
press was only a general policy statement and was not
specifically related to the plaintiff.
   The defendant argues in her summary judgment
motion that, because much of the plaintiff’s claims cen-
ter on his termination by the defendant, she is entitled
to summary judgment as to these claims. Moreover, the
defendant argues that the plaintiff is unable to establish
the extreme or outrageous conduct necessary to sup-
port a claim for intentional infliction of emotional dis-
tress. Lastly, the defendant asserts that she is entitled
to judgment on the libel claim because the statement
was not defamatory and it did not identify the plaintiff.
   The plaintiff offers no factual basis to dispute that
he was an at-will employee or that, contrary to the
allegations in his complaint, the defendant had no role
in his termination. Instead, the plaintiff asserts that his
recklessness claim ‘‘really has nothing to do with the
decision terminating him from his employment, or fail-
ing to follow the abuse and neglect policy, but, rather,
has to do with the conscious decision to utilize his
termination as a platform for advancing [the defen-
dant’s] own agenda.’’ Plaintiff’s Opposition to Defen-
dant’s Motion for Summary Judgment, p. 23. In the
plaintiff’s view, the defendant was reckless ‘‘by insinuat-
ing that he was guilty of child abuse . . . .’’ 

Id.

 Simi-
larly, the plaintiff claims that the defendant miscon-
strues his intentional infliction of emotional distress
claim as being predicated on his termination per se but,
rather, it is actually predicated on the press statement
issued by the defendant. Lastly, the plaintiff asserts that
the defendant’s statement, in light of publicity related
to his termination, was clearly about him and was
clearly false.
                      STANDARD
   ‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party.’’ (Internal quotation marks
omitted.) Graham v. Commissioner of Transportation,

330 Conn. 400

, 414–15, 

195 A.3d 664

 (2018).
   ‘‘[T]he genuine issue aspect of summary judgment
requires the parties to bring forward before trial eviden-
tiary facts, or substantial evidence outside the plead-
ings, from which the material facts alleged in the plead-
ings can warrantably be inferred. . . . A material fact
has been defined adequately and simply as a fact which
will make a difference in the result of the case.’’ (Cita-
tion omitted; internal quotation marks omitted.) Buell
Industries, Inc. v. Greater New York Mutual Ins. Co.,

259 Conn. 527

, 556, 

791 A.2d 489

 (2002).
   ‘‘The party seeking summary judgment has the bur-
den of showing the absence of any genuine issue [of]
material facts which, under applicable principles of sub-
stantive law, entitle him to a judgment as a matter of
law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact.’’ (Internal
quotation marks omitted.) Doe v. West Hartford, 

328
Conn. 172

, 191, 

177 A.3d 1128

 (2018). ‘‘It is not enough,
however, for the opposing party merely to assert the
existence of such a disputed issue. Mere assertions of
fact . . . are insufficient to establish the existence of
a material fact and, therefore, cannot refute evidence
properly presented to the court under Practice Book
§ 380 [now § 17-45].’’ (Internal quotation marks omit-
ted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 

332
Conn. 93

, 101, 

209 A.3d 629

 (2019). ‘‘To oppose a motion
for summary judgment successfully, the nonmovant
must recite specific facts . . . which contradict those
stated in the movant’s affidavits and documents.’’ (Inter-
nal quotation marks omitted.) Parnoff v. Aquarion
Water Co. of Connecticut, 

188 Conn. App. 153

, 165, 

204
A.3d 717

 (2019). Last, ‘‘[o]nly evidence that would be
admissible at trial may be used to support or oppose
a motion for summary judgment.’’ (Internal quotation
marks omitted.) Nash v. Stevens, 

144 Conn. App. 1

,
15, 

71 A.3d 635

, cert. denied, 

310 Conn. 915

, 

76 A.3d
628

 (2013).
                     DISCUSSION
                            I
                     Recklessness
   The plaintiff’s argument to the contrary, his com-
plaint does assert that the defendant fired him. The
complaint alleges in count one that the defendant was
reckless in that: ‘‘(a) she failed to follow any of the
Hartford school system’s protocols on investigation
and/or discipline . . . (b) in press statements, the
defendant made it appear that the protocols had been
followed when they had not; (c) in press statements,
she concluded that the plaintiff had engaged in unac-
ceptable behavior when no investigation had been done
by her or anyone else and no findings had been formally
made; (d) in press statements, the defendant indicated
that such allegations should be dealt with swiftly
despite a policy that required DCF deference and due
process for the accused; (e) she terminated the plain-
tiff without giving him any opportunity to be heard;
(f) she chose not to defer to the DCF investigation
results prior to terminating the plaintiff; (g) she chose
not to suspend the plaintiff during the investigation as
required by the protocols; (h) she utilized the wrongful
termination of the plaintiff to further her interests in
becoming the permanent superintendent in that she
actively publicized to the Board of Education, the public
and the press that the plaintiff’s termination demon-
strated how she would change the culture of not com-
plying with DCF reporting requirements; and/or (i) she
utilized the wrongful termination of the plaintiff to fur-
ther her career interests in that she utilized mere allega-
tions against the plaintiff to discipline another candi-
date for the permanent superintendent’s job for the
Hartford school system, thereby eliminating the third
finalist from competing for the job she herself wanted.’’
(Emphasis added.)
   A review of these allegations reveals that subpara-
graphs (a), (e), (f) and (g) clearly allege conduct related
to the manner in which the defendant terminated the
plaintiff. Subparagraphs (b), (c) and (d) refer to inaccu-
racies in the press statements, and subparagraphs (h)
and (i) refer to the defendant’s motivation in utilizing
the ‘‘wrongful termination’’ of the plaintiff. ‘‘The princi-
ple that a plaintiff may rely only upon what he has
alleged is basic. . . . It is fundamental in our law that
the right of a plaintiff to recover is limited to the allega-
tions of his complaint.’’ (Internal quotation marks omit-
ted.) Raffone v. Industrial Acceptance Corp., 

119 Conn.
App. 261

, 268, 

987 A.2d 1059

 (2010).
   Disposition of these claims involves two legal princi-
ples. ‘‘Employment at will grants both parties the right
to terminate the relationship for any reason, or no rea-
son, at any time without fear of legal liability.’’ (Internal
quotation marks omitted.) Morrissey-Manter v. Saint
Francis Hospital & Medical Center, 

166 Conn. App.
510

, 520, 

142 A.3d 363

, cert. denied, 

323 Conn. 924

, 

149
A.3d 982

 (2016). When an employee is employed at will,
then either the employee or the employer can terminate
‘‘the employment at any time with or without just cause
. . . .’’ Kwasnik v. Community Action Committee of
Danbury, Inc., 

43 Conn. App. 840

, 844, 

686 A.2d 526

(1996).
   ‘‘[R]ecklessness is a serious or extreme departure
from ordinary or reasonable care, and requires a con-
scious choice of a course of action involving serious
dangers to others, either with knowledge of that serious
danger, or with knowledge of facts which a reasonable
person would recognize as being a serious danger to
others.’’ (Internal quotation marks omitted.) Matthies-
sen v. Vanech, 

266 Conn. 822

, 833–34, 

836 A.2d 394

(2003).
  With these principles in mind, the court grants sum-
mary judgment as to count one. As to those allegations
that rely on the defendant’s wrongful conduct in the
manner in which the plaintiff was terminated, not only
has the plaintiff offered no evidence to rebut the evi-
dence submitted by the defendant that she had nothing
to do with his termination, the plaintiff has expressly
abandoned such a claim in his brief. The court finds
that, with respect to the claimed inaccuracies in the
press statement, there is no evidence of an extreme
departure from ordinary or reasonable care, with or
without a conscious choice of a course of action involv-
ing serious dangers to others. Because the plaintiff was
an at-will employee, proper protocols were followed
with respect to his termination and any investigation.
Even if the defendant’s statement had made it appear
that the plaintiff had engaged in unacceptable behavior,
there is nothing, especially in light of the unrebutted
evidence of the complaints against him, to demonstrate
that it was a serious or extreme departure from an
ordinary or reasonable standard of care. Last, because
of the plaintiff’s status as an at-will employee the last
two subparagraphs alleging inappropriate utilization of
his ‘‘wrongful termination,’’ for whatever motivation,
must also fail. Summary judgment is therefore granted
as to count one.
                            II
     Intentional Infliction of Emotional Distress
   ‘‘In order for the plaintiff to prevail in a case for
liability under . . . [the intentional infliction of emo-
tional distress], four elements must be established. It
must be shown: (1) that the actor intended to inflict
emotional distress, or that he knew or should have
known that emotional distress was a likely result of his
conduct; (2) that the conduct was extreme and outra-
geous; (3) that the defendant’s conduct was the cause
of the plaintiff’s distress; and (4) that the emotional
distress sustained by the plaintiff was severe.’’ (Internal
quotation marks omitted.) Petyan v. Ellis, 

200 Conn.
243

, 253, 

510 A.2d 1337

 (1986).
   ‘‘Liability has been found only [when] the conduct
has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case
is one in which the recitation of the facts to an average
member of the community would arouse his resentment
against the actor, and lead him to exclaim, Outrageous!
. . . Conduct on the part of the defendant that is merely
insulting or displays bad manners or results in hurt
feelings is insufficient to form the basis for an action
based upon intentional infliction of emotional distress.’’
(Internal quotation marks omitted.) Carnemolla v.
Walsh, 

75 Conn. App. 319

, 332, 

815 A.2d 1251

, cert.
denied, 

263 Conn. 913

, 

821 A.2d 768

 (2003). ‘‘Whether
a defendant’s conduct is sufficient to satisfy the require-
ment that it be extreme and outrageous is initially a
question for the court to determine.’’ Appleton v. Board
of Education, 

254 Conn. 205

, 210, 

757 A.2d 1059

 (2000).
The conduct at issue must be ‘‘beyond all possible
bounds of decency . . . atrocious, and utterly intolera-
ble in a civilized community.’’ (Internal quotation marks
omitted.) 

Id., 211

.
   The court grants summary judgment as to count two.
The statement made by the defendant is not sufficiently
extreme and outrageous to constitute intentional inflic-
tion of emotional distress as a matter of law. The state-
ment that the plaintiff cites as the basis of his complaint
is: ‘‘The first priority of the Hartford [p]ublic [s]chools
is to ensure student safety. As [a]cting [s]uperintendent
of [s]chools, I will not allow any unacceptable staff
behavior during my tenure. In the unfortunate event
that, despite our best efforts to the contrary, individuals
engage in inappropriate interactions with students, with
their families, with staff or with any of the visitors who
come to our schools and events, such individuals will
be dealt with swiftly in accordance with the policies
established by the Hartford Board of Education.’’ The
plaintiff contends that this statement labeled the plain-
tiff as ‘‘an abuser of children, and publicly insinuat[ed]
that his termination was due to his indiscretions . . . .’’
Plaintiff’s Opposition to Defendant’s Motion for Sum-
mary Judgment, p. 26.
   What the plaintiff contends the statement says is not
supported by the statement itself. The statement does
not mention the plaintiff, it does not mention his termi-
nation and it does not mention child abuse. Although
the timing of the statement is suspicious, coming soon
after the plaintiff’s termination and as a response to
questions concerning the plaintiff’s termination, the
statement itself does not rise to the level of arousing
the resentment of an average member of the community
against the plaintiff, leading to an exclamation of, Outra-
geous! See Exhibit S; Carnemolla v. Walsh, 

supra,

 

75
Conn. App. 332

. The statement makes reference only
to ‘‘unacceptable staff behavior’’ and ‘‘inappropriate
interactions with students.’’ Even if the defendant were
found to have been referring to the plaintiff, such com-
ments do not rise to the level of being beyond all possi-
ble bounds of decency, or atrocious or utterly intolera-
ble. See Appleton v. Board of Education, 

supra,

 

254
Conn. 211

. Summary judgment is therefore granted as
to count two.
                            III
                          Libel
  ‘‘In an action for defamation, a public official is pro-
hibited from recovering damages for a defamatory false-
hood relating to his official conduct unless he proves
by clear and convincing evidence that the falsehood
was published with actual malice. . . . The state of
mind that constitutes actual malice has been defined
as with knowledge that it was false or with reckless
disregard of whether it was false or not.’’ (Citations
omitted; internal quotation marks omitted.) Kelley v.
Bonney, 

221 Conn. 549

, 580, 

606 A.2d 693

 (1992).
   The press statement that the plaintiff claims libeled
him again provides: ‘‘The first priority of the Hartford
[p]ublic [s]chools is to ensure student safety. As [a]cting
[s]uperintendent of [s]chools, I will not allow any unac-
ceptable staff behavior during my tenure. In the unfortu-
nate event that, despite our best efforts to the contrary,
individuals engage in inappropriate interactions with
students, with their families, with staff or with any of
the visitors who come to our schools and events, such
individuals will be dealt with swiftly in accordance with
the policies established by the Hartford Board of Educa-
tion.’’ The plaintiff does not claim that the press state-
ment is intrinsically false. As previously mentioned, the
plaintiff advances the view that this statement insinu-
ates that he was a child abuser. The plaintiff argues
that the press statement must be taken in the context
of newspaper articles related to his firing, which, when
read in conjunction with the press statement, provides
the nexus for the child abuse insinuation. In support
of this argument, the plaintiff includes an article from
the Hartford Courant published May 19, 2017, which
provides: ‘‘Bulkeley was again in the news when the
district fired the school’s head football coach after a
group of players accused him of harsh treatment’’; a
Fox 61 news post that the plaintiff was fired and under
investigation by DCF; and a news post by NBC that he
was fired with a quote from a former player who had
seen him ‘‘put his hands on my teammate once, but
. . . he was vocally, like he’d abuse people’’ and that
reported that the plaintiff was under investigation by
DCF. None of these articles, extrinsic to the four cor-
ners of the press statement, support any claim, read in
conjunction with it or not, that the plaintiff was a child
abuser. Summary judgment is therefore granted as to
count three.
  For the foregoing reasons, the court grants the
motion of the defendant, Leslie Torres-Rodriguez, for
summary judgment as to the entirety of the plaintiff’s
complaint.
  * Affirmed. Ortiz v. Torres-Rodriguez, 205 Conn. App.        ,    A.3d
    (2021).
  1
    Bulkeley High School is one of the schools within the Hartford public
school system.

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