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*********************************************** 
JOHN K. HORVATH v. CITY OF HARTFORD

(AC 39132)

Alvord, Prescott and Bishop, Js.

Syllabus

The plaintiff, who had been employed by the defendant city of Hartford as

an assistant chief of police, sought to recover damages from the defendant for its alleged violation of the state whistle-blower statute (§ 31-

51m) in connection with his reporting of actual or suspected violations

of law by the commander of the police department’s internal affairs

division. The plaintiff alleged that as a result of his whistle-blowing

actions, the defendant constructively discharged him from his employment by reducing his responsibilities and taking other actions with

the intent to create an intolerable work atmosphere that caused his

involuntary resignation. After the city council cut certain funding for

the police department, the plaintiff took on additional duties as a result

of the retirement of another assistant chief of police, and the interim

chief of police informed the plaintiff that his position was going to be

eliminated from the budget but that his job was safe. The plaintiff, while

still employed by the defendant, then obtained employment elsewhere

and thereafter left his employment with the defendant. The trial court

granted the defendant’s motion for summary judgment, concluding that

there existed no genuine issue of material fact in support of the plaintiff’s

claim that he was constructively discharged. From the judgment rendered thereon, the plaintiff appealed to this court, claiming that disputed

issues of material fact existed regarding whether the defendant’s actions

amounted to a constructive discharge in violation of § 31-51m, and

whether the defendant had penalized him as a consequence of his whistle-blowing activities. Held:

1. This court declined to consider the plaintiff’s claim that the defendant’s

actions amounted to a retaliatory penalty and discipline for his having

reported alleged abuses of authority, as the plaintiff’s complaint did not

claim relief on the basis of other forms of retaliation such as discipline

or penalty, as described in § 31-51m, his claims were limited to those

made in the complaint, and the claim was raised for the first time

on appeal.

2. The trial court properly rendered summary judgment in favor of the

defendant, the plaintiff having failed to establish the existence of a

genuine issue of material fact as to whether he was constructively

discharged as a result of his whistle-blowing actions: although it was

undisputed that the plaintiff had raised a genuine issue of material fact

that he had engaged in a protected activity as defined by § 31-51m (b),

the changes in some of his work responsibilities were not so objectively

intolerable that a reasonable person would have felt compelled to resign,

the plaintiff provided no admissible evidence to demonstrate that he

was demoted, reprimanded or threatened with the termination of his

employment, his compensation never changed during that period, and

the fact that he accepted a new position with higher pay before he

resigned significantly undermined his claim of constructive discharge;

moreover, the admissible evidence submitted by the parties in conjunction with the motion for summary judgment suggested that any adverse

action by the police department was driven by budgetary constraints,

and, thus, the actions by the defendant were not sufficient to raise a

genuine issue of material fact as to whether it intended to create an

intolerable work environment, as the defendant’s conduct in conveying

to the plaintiff that his job might be at risk of elimination for budgetary

reasons could not be equated to allegations of threats of discharge from

employment so as to warrant a conclusion of constructive discharge.

Argued September 20—officially released December 12, 2017

Procedural History

Action to recover damages for, inter alia, violation

of the state whistle-blower statute, and for other relief,
brought to the Superior Court in the judicial district of

Hartford, where the court, Elgo, J., granted the defendant’s motion for summary judgment and rendered

judgment thereon, from which the plaintiff appealed to

this court. Affirmed.

Richard J. Padykula, with whom, on the brief, was

Leon M. Rosenblatt, for the appellant (plaintiff).

John P. Shea, Jr., for the appellee (defendant).
Opinion

BISHOP, J. The plaintiff, John K. Horvath, appeals

from the summary judgment rendered in favor of the

defendant, the city of Hartford. On appeal, the plaintiff

asserts that the trial court’s judgment was in error

because disputed issues of material fact exist concerning whether he was retaliated against, and later constructively discharged, by the defendant in violation of

General Statutes § 31-51m as a result of his whistleblowing activities while in the defendant’s employ. In

response, the defendant claims that summary judgment

was appropriate because, in opposition to its motion

for summary judgment, the plaintiff offered no evidence

that the defendant constructively discharged him by

intentionally creating an intolerable work environment

compelling him to resign. We affirm the judgment of

the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. In 2011, the defendant employed the plaintiff as an assistant chief of

police for the Hartford Police Department (department). At the time, the department’s command structure was comprised of the chief of police, two deputy

chiefs and three assistant chiefs. On April 11, 2011, in

response to an internal complaint, the plaintiff

requested an investigation into the actions of Neville

Brooks, commander of the department’s internal affairs

division. In September, 2011, the city hired Marcum LLP

to conduct an independent review of the operations of

the internal affairs division. Following the release of

the Marcum LLP report, the plaintiff sent a letter on

December 1, 2011, to Daryl Roberts, the chief of police,

setting forth his concerns regarding ‘‘numerous errors,

omissions and intentional misrepresentations’’ contained in the Marcum LLP report.

On May 17, 2011, the Hartford city council passed a

financial resolution reducing its budget by $1,750,000,

including a reduction of $300,000 in department’s executive command level expenses. This budget included

funding for the plaintiff’s position. The cuts were

accomplished, in part, by the retirement of Lester

McKoy, an assistant chief of police. On May 24, 2012,

James Rovella, who became the interim chief of police

after Roberts retired in December, 2011, informed the

plaintiff that his position as assistant chief was going

to be eliminated from the budget. In the same conversation, however, Rovella assured him that ‘‘his job was

safe.’’1

In June, 2012, the plaintiff had a series of interviews

with the University of Massachusetts in Amherst, Massachusetts, for the position of chief of police and subsequently accepted the position on September 4, 2012.

The plaintiff left his employ with the department as

assistant chief of police on September 21, 2012.
On May 14, 2013, the plaintiff filed a single count

amended complaint alleging that the defendant had

penalized him by constructively discharging him from

his employment in violation of § 31-51m because ‘‘he

investigated and reported, verbally and in writing,

Brooks’ actual or suspected violations of state law,

municipal ordinance, and pertinent regulations.’’2

Thereafter, the defendant filed a motion for summary

judgment in which it claimed, inter alia, that there

existed no genuine issue of material fact in support of

the plaintiff’s claim that he was constructively discharged. On April 13, 2016, the trial court issued a memorandum of decision granting the defendant’s motion.

This appeal followed. Additional facts will be provided

as necessary.

I

We first set forth the applicable standard of review.

‘‘The standards governing our review of a trial court’s

decision to grant a motion for summary judgment are

well established. Practice Book [§ 17-49] provides that

summary judgment shall be rendered forthwith if the

pleadings, affidavits 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. . . . The

party seeking summary judgment has the burden of

showing the absence of any genuine issue [of] material

facts which, under applicable principles of substantive

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. . . . A material fact

. . . [is] a fact which will make a difference in the result

of the case. . . . Finally, the scope of our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Internal quotation marks omitted.) McClancy v. Bank of America, N.A., 176 Conn.

App. 408, 412–13, 168 A.3d 658 (2017).

Additionally, ‘‘[o]nly evidence that would be admissible at trial may be used to support or oppose a motion

for summary judgment. . . . Practice Book § 17-46

provides in relevant part that affidavits shall be made

on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the

matters stated therein.’’ (Citation omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn. App. 648, 655, 137 A.3d 1 (2016).

‘‘A conclusory assertion . . . does not constitute evidence sufficient to establish the existence of a disputed

material fact for purposes of a motion for summary

judgment.’’ Hoskins v. Titan Value Equities Group,

Inc., 252 Conn. 789, 793–94, 749 A.2d 1144 (2000). Last,
summary judgment ‘‘is appropriate only if a fair and

reasonable person could conclude only one way.’’

Miller v. United Technologies Corp., 233 Conn. 732, 751,

660 A.2d 810 (1995).

Section 31-51m protects an employee from retaliatory

discharge when the employee has complained about a

suspected violation of a state or federal law or regulation. Arnone v. Enfield, 79 Conn. App. 501, 506–507,

831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804

(2003). Section 31-51m (b) provides in relevant part:

‘‘No employer shall discharge, discipline or otherwise

penalize any employee because (1) the employee, or a

person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation

of any state or federal law or regulation or any municipal

ordinance or regulation to a public body . . . . No

municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or

a person acting on behalf of the employee, reports,

verbally or in writing, to a public body concerning the

unethical practices, mismanagement or abuse of

authority by such employer. The provisions of this subsection shall not be applicable when the employee

knows that such report is false.’’

‘‘Constructive discharge of an employee occurs when

an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.

. . . Working conditions are intolerable if they are so

difficult or unpleasant that a reasonable person in the

employee’s shoes would have felt compelled to resign.’’

(Citations omitted; emphasis in original; internal quotation marks omitted.) Brittell v. Dept. of Correction,

247 Conn. 148, 178, 717 A.2d 1254 (1998). ‘‘A claim of

constructive discharge must be supported by more than

the employee’s subjective opinion that the job conditions have become so intolerable that he or she was

forced to resign.’’ Seery v. Yale-New Haven Hospital,

17 Conn. App. 532, 540, 554 A.2d 757 (1989). ‘‘Normally,

an employee who resigns is not regarded as having been

discharged, and thus would have no right of action for

abusive discharge. . . . Through the use of constructive discharge, the law recognizes that an employee’s

voluntary resignation may be, in reality, a dismissal

by the employer.’’ (Citation omitted; internal quotation

marks omitted.) Id. Moreover, ‘‘[i]n order to meet the

high standard applicable to a claim of constructive discharge, a plaintiff is required to show both (1) that

there is evidence of the employer’s intent to create an

intolerable environment that forces the employee to

resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so

intolerable that he would have felt compelled to resign.’’

(Internal quotation marks omitted.) Irizarry v. Lily

Transportation Corp., Docket No. 3:15-CV-1386 (DJS),

2017 WL 3037782, *4 (D. Conn. July 18, 2017), citing
Adams v. Festival Fun Parks, LLC, 560 Fed. Appx. 47,

49 (2d Cir. 2014).3

II

On appeal, the plaintiff makes two claims: (1) that

he was constructively discharged from his employment

in violation § 31-51m, and (2) that he was otherwise

penalized as a consequence of his whistle-blowing activities at the department in violation of the same statute.

In regard to this second claim, the plaintiff asserts that

‘‘a reasonable jury could conclude that [the] defendant’s

actions amounted to a retaliatory penalty and discipline

for the plaintiff[’s] reporting of abuses of authority

. . . .’’ In response, the defendant argues that the court

correctly rendered summary judgment as to the plaintiff’s retaliatory discharge claim, and that the plaintiff’s

second claim is outside the scope of the complaint and

has been raised for the first time on appeal. In sum,

the defendant claims that the plaintiff relied solely on

retaliatory constructive discharge in his pleadings and,

therefore, cannot now raise additional theories of

recovery that are based on discipline or penalty untethered to his wrongful discharge claim. Because we agree

that the plaintiff’s second claim has been raised for the

first time on appeal and is not framed as a distinct claim

in the plaintiff’s complaint, it does not warrant detailed

analysis. Accordingly, we discuss it briefly before turning to the wrongful discharge claim.

The complaint alleges that the plaintiff ‘‘was constructively discharged on September 21, 2012.’’ In three

subsequent paragraphs, the complaint further repeats

that the ‘‘defendant penalized the plaintiff by discharging him . . . .’’ Nowhere in the complaint does the

plaintiff frame a claim for relief on the basis of other

forms of retaliation, such as ‘‘disciplined or otherwise

penalize[d],’’ as described in § 31-51m (b). In short, in

his complaint, he claims that he was constructively

discharged as a consequence of his whistle-blowing

actions. A plaintiff’s claims are, of course, framed by

and limited to those made in the complaint. Mamudovski v. BIC Corp., 78 Conn. App. 715, 732, 829 A.2d 47

(2003) (‘‘[a] fundamental tenet in our law is that the

plaintiff’s complaint defines the dimensions of the

issues to be litigated’’ [internal quotation marks omitted]), appeal dismissed, 271 Conn. 297, 857 A.2d 328

(2004). Additionally, we decline to consider his attempt

to raise claims of alternative forms of retaliation for

the first time on appeal. See, e.g., Murphy v. EAPWJP,

LLC, 306 Conn. 391, 399, 50 A.3d 316 (2012) (‘‘[i]t is

well established that a claim must be distinctly raised

at trial to be preserved for appeal’’); see also Practice

Book § 60-5 (‘‘[t]he court shall not be bound to consider

a claim unless it was distinctly raised at the trial’’).

III

Turning to the constructive discharge claim, the
plaintiff asserts that there are genuine issues of material

fact regarding whether the defendant’s actions

amounted to a constructive discharge in violation of

§ 31-51m. Specifically, the plaintiff claims that as a

result of his whistle-blowing actions, the defendant

reduced his responsibilities and took other actions with

the intention to create an intolerable work atmosphere

that caused his involuntary resignation.

In Arnone v. Enfield, supra, 79 Conn. App. 501, this

court examined the framework for analyzing retaliatory

discharge claims. ‘‘In an action under § 31-51m (b), [the]

plaintiff has the initial burden under McDonnell Douglas

Corp. [v. Green, 411 U.S. 792, 802–804, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973)] of proving by a preponderance

of the evidence a prima facie case of retaliatory discharge. . . . This consists of three elements: (1) that

[the plaintiff] engaged in a protected activity as defined

by § 31-51m (b); (2) that [the plaintiff] was subsequently

discharged from his employment; and (3) that there

was a causal connection between his participation in

the protected activity and his discharge. . . . Once the

plaintiff has made a prima facie showing of a retaliatory

discharge, the defendant is obligated to produce evidence that, if taken as true, would permit the conclusion

that there was a nonretaliatory reason for the termination of employment.’’ (Citations omitted; internal quotation marks omitted.) Arnone v. Enfield, supra, 507; see

also Ritz v. East Hartford, 110 F. Supp. 2d 94, 98 (D.

Conn. 2000) (same). In order to satisfy the second element of § 31-51m by way of constructive discharge, the

plaintiff needs to establish that the employer intentionally created an intolerable work atmosphere that forced

the employee to quit involuntarily, and that the intolerable conditions are supported by more than the employee’s subjective opinion. Brittell v. Dept. of Correction,

supra, 247 Conn. 178.

It is undisputed that the plaintiff has raised a genuine

issue of material fact regarding the first element of his

prima facie case. As to the second element, we agree

with the court that the plaintiff failed to raise, through

admissible evidence in opposition to the defendant’s

motion for summary judgment, a genuine issue of material fact that he was constructively discharged. In support of this aspect of his claim, the plaintiff has

presented evidence of what he alleges to be intolerable

work conditions. He asserts that work responsibilities

were taken from him, and that Rovella ‘‘began to manipulate [his] professional responsibilities, usurp [his]

authority as assistant chief, and diminish [his] substantive duties.’’ Specifically, this included: (1) taking away

his duties in managing the police department’s fleet

vehicles; (2) removing him from the collective bargaining negotiating team; (3) denying his request to

attend a Federal Bureau of Investigation training program; (4) approving a staffing, budget and overtime

request without discussion with him, even though he
chaired the overtime committee; and (5) excluding him

from certain meetings and initiatives, such as special

events planning, a vendor outreach program, a police

visibility project to improve community perception, representation in the public safety complex project, and a

multiagency meeting to address violent crime in the

city.

The defendant does not refute this evidence, but

instead highlights that the plaintiff took on additional

duties as a result of McKoy’s resignation, such as the

responsibilities of the assistant chief of operations in

addition to his role as the assistant chief of detectives.4

The defendant therefore argues that although some

duties were taken from him, the addition of other duties

simply rebalanced his responsibilities.

We agree, in principle, with the plaintiff’s assertion

that the accumulation of adverse conditions in the

workplace can amount to intolerable conditions for

purposes of assessing whether a constructive discharge

has taken place. In Grey v. Norwalk Board of Education, 304 F. Supp. 2d 314, 319 (D. Conn. 2004), the

plaintiff contended that she suffered a hostile work

environment and was constructively discharged as the

Norwalk public schools’ director of curriculum and

assessment. In Grey, the court stated: ‘‘[The plaintiff]

presents a variety of circumstances that, combined, she

argues made her situation ‘intolerable,’ including: the

repeated threat that her position would be eliminated; a

rumored letter announcing her termination; [the deputy

superintendent’s] public usurpation of her authority in

front of her subordinates; the administration’s manipulation of her curricular responsibilities; petty reprimands; and [the district superintendent’s] suggestion

that the District [buy back] her contract and his subsequent comment that she should consider herself ‘finished.’ Together, these circumstances support a

reasonable inference of constructive discharge. On [the

plaintiff’s] version of the facts, the fact-finder could

determine that it was reasonable for her to assume that

she was ‘compelled to leave.’ ’’ Id., 324.

Additionally, in Chertkova v. Connecticut General

Life Ins. Co., 92 F.3d 81 (2d Cir. 1996), the United States

Court of Appeals for the Second Circuit concluded that

the plaintiff presented sufficient evidence to overcome

a motion for summary judgment on her constructive

discharge claim. The plaintiff’s evidence suggested that

‘‘her supervisor engaged in a pattern of baseless criticisms, said she would not ‘be around,’ and that she

would be fired instantly if she did not meet certain

ambiguous behavior objectives.’’ Id., 89. The plaintiff

learned that her supervisor was soliciting other employees for negative information about her. Id., 85. A former

employee stated in an affidavit that ‘‘creating intolerable

conditions to force unwanted employees to quit was a

recognized practice of [the] defendant’s managers.’’ Id.,
90. It was also discovered that the employer had prepared a letter of termination, which the plaintiff never

received. Id., 86.

We do not agree, however, that the plaintiff’s grievances, even if proven, parallel those found in decisional

law to be sufficient to constitute an intolerable work

environment. In sum, although we recognize that ‘‘ ‘[t]he

effect of adverse conditions is cumulative’ ’’; Grey v.

Norwalk Board of Education, supra, 304 F. Supp. 2d

324; the circumstances in which the plaintiff in the

present matter was confronted with cannot be equated

either in kind or in adversity with the work conditions

found in Grey and Chertkova to constitute the basis for

a finding of constructive discharge.

Indeed, viewed in the light most favorable to the

nonmoving party, the admissible evidence submitted by

the parties in conjunction with the motion for summary

judgment suggests that any adverse action by the

department against the plaintiff was driven not by a

desire for retaliation but by looming budgetary constraints affecting the top tier of the department. Accordingly, regardless of whether the plaintiff thought that

his position was to be eliminated and even if he was

told of this probability in the context of budget discussions, the actions by the defendant are not sufficient

to raise a genuine issue of material fact as to the high

standard of demonstrating ‘‘the employer’s intent to

create an intolerable environment.’’ (Emphasis added.)

Irizarry v. Lily Transportation Corp., supra, 2017 WL

3037782, *4. Moreover, given the evidence submitted

by the defendant that, indeed, arrangements had been

made to preserve the plaintiff’s position even amidst

budgetary cuts, we agree with the court’s conclusion

that, as a matter of law, no reasonable person ‘‘would

have found the work conditions so intolerable that he

would have felt compelled to resign.’’ (Internal quotation marks omitted.) Id.5

In sum, conveying to the plaintiff that his job may be at risk of elimination for

budgetary reasons cannot be equated to allegations of

threats of discharge from employment or termination

letters such as those found in different circumstances

so as to warrant a conclusion of constructive discharge.6

Cf. Chertkova v. Connecticut General Life Ins. Co.,

supra, 92 F.3d 85–86; Grey v. Norwalk Board of Education, supra, 304 F. Supp. 2d 319–20.

We conclude, therefore, that the changes in some of

the plaintiff’s work responsibilities were not so objectively intolerable that a reasonable person would have

felt compelled to resign. The plaintiff has not provided

admissible evidence demonstrating that he was

demoted, reprimanded or personally threatened with

the termination of his employment.7 The plaintiff gained

the additional responsibilities of another assistant

chief.8 The plaintiff’s compensation never changed during this period. Furthermore, as the trial court noted,
‘‘the fact that the plaintiff accepted a new position with

a higher pay before he resigned significantly undermines

a claim of constructive discharge.’’ (Emphasis in

original.)

Viewing the evidence in the light most favorable to

the nonmoving party, the plaintiff has failed to establish

the existence of a genuine issue of material fact as to

whether he was constructively discharged as a result

of his whistle-blowing actions. In order to successfully

oppose summary judgment, the plaintiff must provide

an evidentiary foundation to demonstrate the existence

of a fact that will make a difference in the result of the

case. There are no genuine issues of material fact that

support his claim that the defendant intentionally created such an intolerable work environment that a reasonable person would feel forced to resign.

Accordingly, the court properly rendered summary

judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Rovella succeeded Roberts as chief of police after Roberts’ retirement

in 2011. We note that, in conjunction with its motion for summary judgment,

the defendant submitted a transcript excerpt from Rovella’s September 1,

2015 deposition, in which the following exchange occurred between Rovella

and the plaintiff’s counsel:

‘‘Q. Why was [the plaintiff] led to believe his position was not open

anymore and was unfunded?

‘‘A. There’s no reason for [the plaintiff] to believe that was an unfunded

position. . . .

‘‘Q. So, do you recall telling [the plaintiff] that his position was in the

budget for 2012–2013?

‘‘A. Yes.’’

In addition, the court had evidence, in the form of the plaintiff’s deposition

transcript and handwritten notes, submitted in conjunction with the motion

for summary judgment, indicating that the plaintiff learned from Tom Bowley, the department’s fiscal manager, that even though funding for his position was being eliminated from the budget, funds necessary to pay his salary

were being ‘‘backfilled’’ from another department account. See footnote 5

of this opinion.

2 The complaint further alleges that the defendant penalized the plaintiff

by discharging him for investigating, identifying and reporting ‘‘Brooks’

alleged unethical practices, mismanagement, and abuse of authority.’’

3 We note that our courts have looked to federal employment discrimination standards, in the absence of authority to the contrary, in retaliatory

discharge cases. See, e.g., LaFond v. General Physics Services Corp., 50

F.3d 165, 172 (2d Cir. 1995); Ritz v. East Hartford, 110 F. Supp. 2d 94, 98

(D. Conn. 2000); Beizer v. Dept. of Labor, 56 Conn. App. 347, 355–56, 742

A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).

4 The defendant submitted, among its exhibits in support of its motion

for summary judgment, excerpts of the plaintiff’s August 31, 2015 deposition.

During that deposition, the following exchange occurred between the defendant’s counsel and the plaintiff:

‘‘Q. . . . [I]f you could provide me with an encapsulation of what your

duties were before McKoy left, primary duties . . . and your primary duties

after McKoy left?

‘‘A. Sure. Prior to Assistant Chief McKoy leaving city service, I was the

assistant chief in charge of the detective bureau, and after Chief McKoy’s

departure, I assumed the responsibilities for not only the detective bureau,

but also all of the patrol division, uniformed services, and it was titled

assistant chief of operations.

‘‘Q. Okay. And so am I correct in understanding that you kept all or the

majority of your duties as assistant chief of the detective bureau and they

just added the additional duties of operations?

‘‘A. Yes.’’
The plaintiff’s resume reflected that these additional responsibilities began

in July, 2011.

5 We again note that in his deposition, the plaintiff recalled that the defendant had ‘‘backfilled’’ his salary with funding from another account:

‘‘Q. Well, [Bowley] said [the plaintiff’s job] was cut in theory, but that it

was still reflected in the budget book as filled.

‘‘A. Because it was being backfilled by moneys from another account or

category, as I have written here . . . .

‘‘Q. I don’t see backfilled. Is that what you’re suggesting, that it is coming

out of the attrition category as backfilling?

‘‘A. Yes. The $127,000 would have been my salary. So, if my salary equated

to $127,000 and that exact amount is coming out of the attrition and this

is the information that he’s providing to me, one would only make that

assumption that that’s where the money was coming from.’’ See also footnote

1 of this opinion.

Additionally, the defendant submitted a portion of the department’s

adopted payroll analysis budget for fiscal year 2012–2013, showing that the

plaintiff’s position was funded.

6 Because the plaintiff repeatedly relies on specific statements contained

in his affidavit and the affidavit of Valda G. Washington, the defendant’s

director of human resources, to support his claim that the defendant intended

to discharge him in retaliation for his whistle-blowing actions, we briefly

address them.

In his affidavit, the plaintiff states: ‘‘On February 15, 2012, Frank Rudewicz

e-mailed me to set up a meeting. Rudewicz was the lead investigator for

the Marcum LLP group. Rudewicz and I subsequently met, and Rudewicz

told me that he had been called to a meeting with Mayor [Pedro] Segarra

and members of his cabinet team, where he was given a copy of the memorandum I submitted to Chief Roberts on December 1, 2011. Rudewicz told me

the [m]ayor was very angry and asked him, ‘Why are these guys documenting

everything? Why should I keep them around if they are going to do this?’

. . . Rudewicz then asked me if I was looking for another job. It was clear

from the context that he was telling me to look for another job because

the mayor and staff were angry at me . . . .’’

‘‘Only evidence that would be admissible at trial may be used to support

or oppose a motion for summary judgment. . . . Practice Book § 17-46

provides in relevant part that affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters stated

therein.’’ (Citation omitted; internal quotation marks omitted.) Midland

Funding, LLC v. Mitchell-James, supra, 163 Conn. App. 655. ‘‘Hearsay is

an out-of-court statement offered to prove the truth of the matter asserted.

. . . Unless subject to an exception, hearsay is inadmissible.’’ (Citation

omitted; internal quotation marks omitted.) Id.

In the plaintiff’s affidavit, he recalls a statement made to him by a third

party, Rudewicz, who was also recalling a statement made to him by the

mayor. The statement, ‘‘ ‘Why should I keep them around if they are going

to do this?’ ’’ is an out-of-court statement offered to prove the truth of the

matter asserted; that is, to prove that the defendant intended to terminate

the plaintiff’s employment for his whistle-blowing activities. The statement

was not made by the declarant. See Conn. Code Evid. § 8-1. This statement

is hearsay by definition in our Code of Evidence and is not admissible, nor

does it fall within one of the exceptions to the rule against hearsay. Conn.

Code Evid. §§ 8-2 and 8-3. Accordingly, we cannot consider this statement

as admissible evidence in opposition to the motion for summary judgment.

The same logic applies to the out-of-court statements contained in Washington’s affidavit, dated December 4, 2015. Furthermore, there is no evidence

or allegation that the plaintiff was aware of the statements contained in

Washington’s affidavit until after December 4, 2015.

7 Again, we note that although the plaintiff’s complaint and affidavit state

that he was informed by Rovella ‘‘that [his] position as [a]ssistant [c]hief

of [p]olice was being eliminated from the budget’’; (emphasis added); there

is no admissible evidence supporting the allegation that the plaintiff himself

(and not his position in the budget) was being eliminated. See footnote 1

of this opinion.

8 The court noted that up until the time the plaintiff resigned, he retained

such duties as: ‘‘leading Compstat meetings; leading the police budget committee; serving on the policy and procedure committee; serving on the

firearms discharge board of inquiry; serving on the safety committee; serving

on the health and wellness committee; serving as a CTIC policy board
member; and serving as a police representative to the homeless working

group.’’