16‐3615
Brown v. Halpin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2017
(Argued: November 21, 2017 Decided: March 15, 2018)
Docket No. 16‐3615
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VIRGINIA BROWN,
Plaintiff‐Appellee,
– v. –
BRENDA HALPIN, STATE OF CONNECTICUT,
Defendants‐Appellants,
OFFICE OF THE STATE COMPTROLLER, STATE EMPLOYEES RETIREMENT COMMISSION,
KEVIN LEMBO, IN HIS INDIVIDUAL CAPACITY, P. MARTHA CARLSON, IN HER
INDIVIDUAL CAPACITY, NATALIE BRASWELL, IN HER INDIVIDUAL CAPACITY, LINDA
YELMINI, IN HER INDIVIDUAL CAPACITY, STATE OF CONNECTICUT,
Defendants.
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B e f o r e:
KATZMANN, Chief Judge, WALKER, CALABRESI, Circuit Judges.
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Defendants Brenda Halpin and the State of Connecticut appeal from the
decision of the United States District Court for the District of Connecticut
(Underhill, J.) denying their motion to dismiss plaintiff Virginia Brown’s claims
of First Amendment retaliation and violation of Connecticut General Statutes
§ 31–51q. Halpin asserts on appeal that she is entitled to qualified immunity, and
the State contends that it is guarded from liability pursuant to the doctrine of
sovereign immunity. We hold that Halpin’s appeal is premature because her
qualified immunity defense rests on disputed factual allegations. Although we
have jurisdiction to hear the State’s sovereign immunity defense, we find that
Brown has alleged misconduct falling within the scope of § 31–51q, which
provides a limited waiver to the State’s sovereign immunity. We accordingly
dismiss Halpin’s appeal for lack of jurisdiction and affirm the judgment of the
district court denying the State’s motion to dismiss Brown’s claims under § 31–
51q.
_______________
TODD D. STEIGMAN, Madsen, Prestley & Parenteau, LLC, Hartford,
CT, for Plaintiff‐Appellee.
ANN E. LYNCH (Josephine S. Graff, on the brief) Assistant Attorney
General, for George Jepsen, Attorney General, Hartford, CT,
for Defendants‐Appellants.
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PER CURIAM:
In this interlocutory appeal, we are called upon to address claims of First
Amendment retaliation and violations of Connecticut state law, and defenses of
qualified immunity and state sovereign immunity. We conclude that we lack
jurisdiction to consider the qualified immunity defense at this time—when we
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must accept plaintiff’s allegations as true—because it depends on the resolution
of factual disputes. Although we conclude that we have jurisdiction to address
the merits of the state sovereign immunity defense, we find that the district court
committed no error in finding that the defense is unavailable at this phase of the
litigation.
Plaintiff‐appellee Virginia Brown was hired by defendant‐appellant the
State of Connecticut in September 2012 as a “staff attorney II” in its Retirement
Services Division (the “Division”). App. 378. The Division is part of the Office of
the State Comptroller (the “Comptroller”) and administers the state’s retirement
systems, which include the State Employees Retirement System (“SERS”) and the
Connecticut Municipal Employees Retirement System (“CMERS”).
Brown was responsible for providing legal services to the
Comptroller and Connecticut State Employees Retirement Commission
(the “Commission”), and her official duties included:
a. Working with outside counsel . . . [on] tax issues relating to SERS;
. . .
c. Designing, drafting and implementing corrective policies and
procedures for the administration of the Retirement Systems for the
Commission;
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. . .
e. Providing legal advice to the Commission and the Comptroller with
respect to all aspects of the administration of the Retirement
Systems, including preparing legal memos, summaries and analyses;
f. Providing guidance to [the] Division’s internal investigator with
regards to the disability retirement benefits, including disability
fraud investigations, twenty‐four (24) months reviews/investigations
and collection of overpayments[.]
Id. at 379. Brown reported directly to defendant‐appellant Brenda Halpin, the
Director of the Division.
In October 2012, approximately one month after her hiring, Brown began
making complaints that SERS was being improperly administered. Under
Connecticut law, a participant in the program is eligible to receive benefits
beyond the first 24 months only if he or she is “totally disabled for any suitable
and comparable job.” Conn. Gen. Stat. §§ 5‐169(a); 5‐192p(b). However, the
Comptroller was allowing participants to remain in the program so long as the
retiree was disabled from performing his or her “own occupation.” App. 381.
Brown subsequently prepared written materials for the Commission
explaining that an incorrect standard was being applied. Before she sent the
materials, however, she first provided them to defendant Linda Yelmini and
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counsel for the public employees’ union. Yelmini was a Commission trustee,
served on the Commission’s “Personnel and Legal Subcommittee,” and was the
Director of the Office of Labor Relations (“OLR”) for the state. Id. at 374. In these
capacities, “it was a common practice for . . . Yelmini to share information and
make decisions collectively with the leadership of the Comptroller and the
Division regarding the administration of the Retirement Systems.” Id. at 375.
Yelmini also “routinely gave instructions regarding the administration of the
Retirement Systems directly to Defendant Halpin and Division staff,” and when
“Yelmini issued instructions to the Division, those instructions were generally
followed.” Id. at 376.
Brown alleges that Deputy Comptroller P. Martha Carlson subsequently
notified her, presumably at Yelmini’s request, that the materials prepared by
Brown would not be provided to the Commission unless Brown changed them to
“support[] the incorrect ‘own occupation’ . . . [s]tandard.” Id. at 384. Carlson
stated that she “did not care that the Commission was breaching its fiduciary
duty by violating the terms of the retirement plan[] [and] state and federal tax
laws, and that it was ‘their problem’ as long as the . . . [s]tandard supported the
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[public employee] Union’s interests.” Id. at 383. Carlson further ordered Brown
to include in the materials the “false statement that the SERS plan provisions
state that after twenty‐four (24) months, disability retirement continued if the
retiree was disabled from performing his/her ‘own occupation,’” id. at 385, and
that Brown remove “accurate factual information regarding the financial cost to
the State and to the retirement plan and its members” of using the incorrect
standard. Id. at 385‐86.
Brown refused, and brought her complaints to her supervisor, defendant
Halpin, Comptroller Kevin Lembo, and the Assistant Comptroller, General
Counsel, and Ethics Liaison at the Comptroller, Natalie Braswell. Each of these
individuals admitted that the Comptroller was improperly administering SERS.
Brown’s concerns were not limited to SERS, and she raised similar complaints
about the administration of CMERS during the same period.
Brown subsequently disclosed the issues she had identified to the State of
Connecticut Office of the Auditors of Public Accounts (the “Auditors”) in July
2013. Brown alleges that “[i]t was not part of [her] ordinary job duties to disclose
improper administration of the Retirement Systems, or violations of state law, or
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federal tax laws, to the Auditors,” and “prior to July of 2013, [Brown] had never
communicated with [them].” Id. at 392. Brown nonetheless provided “the
Auditors with all of the corrective policies and procedures that she had designed,
drafted and attempted to implement in early 2013 concerning the administration
of the Retirement Systems, but which were blocked from being presented to the
full Commission.” Id. at 393.
Brown alleges that members of the Division and Comptroller subsequently
retaliated against her by systematically stripping her of job responsibilities.
Brown filed a whistleblower complaint with the Auditors under Connecticut
General Statutes § 4‐61dd on December 26, 2013, and her position in the Division
was eliminated in December 2014. Although Brown then transferred to another
state agency, she lost two credited years of service for the purpose of eligibility
for compensation and benefits.
Brown filed an action in Connecticut state court on May 14, 2015 alleging,
inter alia, that defendants Halpin, Yelmini, and the State of Connecticut retaliated
against her in violation of the First Amendment and Connecticut General
Statutes § 31–51q, which creates a cause of action for violation of the right to free
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speech under both the United States and Connecticut Constitutions. The
defendants removed the case to federal court and moved to dismiss the suit. The
district court granted the motion to dismiss as to Yelmini, but denied the motion
by Halpin and the State of Connecticut.1 See Brown v. Office of State Comptroller,
211 F. Supp. 3d 455, 460 (D. Conn. 2016).
The district court found that Brown had stated a First Amendment claim
against defendant Halpin with regard to two categories of protected speech: her
refusal to make “false” statements and her complaints to the Auditors. With
regard to the first category, the court noted that pursuant to our decision in
Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), “a public employee has a First
Amendment right ‘to refuse to retract a report [to the police that] he believes is
true, to refuse to make a statement that he believes is false, and to refuse to
engage in unlawful conduct’ under the guise of his job responsibilities.” Brown,
1 In dismissing the claims as to Yelmini, the court found that although Brown
sufficiently alleged that Yelmini was aware of Brown’s protected speech, the
pleadings “fail[ed] to establish that Yelmini directly participated in the adverse
action against Brown.” Brown v. Office of State Comptroller, 211 F. Supp. 3d 455,
477 (D. Conn. 2016).
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211 F. Supp. 3d at 470 (quoting Jackler, 658 F.3d at 241). The court further found
that Jackler was applicable to Brown’s speech because she “refused to comply
with requests to alter her legal memoranda in a way that all parties knew would
be materially false and/or misleading,” id. at 471, and did so because of the
“potential” that she would violate state and federal law. Id. at 470. The court also
held that Halpin was not entitled to qualified immunity on this claim “[b]ecause
Jackler was decided prior to Halpin’s conduct.” Id. at 475.
The court likewise held that Brown’s complaints to the Auditors were
protected. The court noted that the pleadings do “not . . . admit that [Brown] is
under an employment obligation to report misconduct to the Auditors,” id. at
468, and concluded that at the motion to dismiss stage it “must take as true the
allegations that Brown was not speaking pursuant to her official duties,” id. at
474. The court further found that Halpin was not entitled to qualified immunity
because after the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410
(2006), “all reasonable officials were put on notice that a public employee’s
speech on a matter of public concern would be protected so long as the speech
9
was made as a citizen and not pursuant to the employee’s official duties.” Brown,
211 F. Supp. 3d at 473.
The court lastly concluded that Brown had stated a claim against the State
of Connecticut for violation of Connecticut General Statutes § 31–51q. The court
found that even if Brown’s speech was not protected by the First Amendment,
her complaints were protected under the Connecticut constitution as speech
concerning “official dishonesty,” id. at 478‐79, and concluded that the State had
improperly “disciplined” Brown for making such speech because “her transfer
caused her a loss of benefits and prevented her from being eligible for a
promotion,” id. at 480. Halpin and the State of Connecticut subsequently filed
this interlocutory appeal.
We conclude that we lack jurisdiction to hear Halpin’s interlocutory
appeal. “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’ at
the time of the challenged conduct.” Ashcroft v. al‐Kidd, 563 U.S. 731, 735 (2011)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court has jurisdiction
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over interlocutory appeals based on qualified immunity when the defense can be
decided based on questions of law and is not dependent on the resolution of
factual issues. Bolmer v. Oliveira, 594 F.3d 134, 140‐41 (2d Cir. 2010); Hill v. City of
New York, 45 F.3d 653, 660 (2d Cir. 1995). A defendant presenting an immunity
defense on a motion to dismiss must therefore show not only that “the facts
supporting the defense appear on the face of the complaint,” but also that “it
appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief.” McKenna v. Wright, 386 F.3d 432, 436 (2d
Cir. 2004). “[I]f a factual determination is a necessary predicate to the resolution
of whether immunity is a bar, review is postponed and we dismiss the appeal.”
State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007)
(internal quotation marks omitted).
The defendants contest the district court’s interpretation of Jackler. We
need not reach this question, however, because at this stage factual disputes
preclude resolution of whether Halpin is entitled to qualified immunity. With
regard to the first category of speech, Halpin argues that Brown was not ordered
to make “false” statements because reasonable people can disagree as to the
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meaning of the relevant Connecticut statutes and Yelmini, the alleged
mastermind behind the fraudulent scheme, believed that the “own occupation”
standard was accurate.2 Halpin thus characterizes this appeal as a simple
difference of opinion: Brown’s “interpretation of the state statute differed from
the interpretation of Ms. Yelmini, one of [the Commission’s] trustees. [Brown]
was told to stop writing memorand[a] to [the Commission] advocating [Brown’s]
interpretation over Ms. Yelmini’s.” Defs.’ Reply Br. at 18. While it may be true
that Yelmini honestly believed that retirees are entitled to benefits under
Connecticut law if they cannot perform their “own occupation,” this conclusion
is not evident on the face of the pleadings. The question of whether Halpin is
entitled to qualified immunity is accordingly not a pure question of law that can
be decided on interlocutory appeal because it depends on the resolution of a
factual dispute: whether the proposed revisions to Brown’s memoranda were
false.
2 We note that Halpin does not dispute that Brown would have been subject to
liability had she made false statements to the Commission.
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We likewise find that factual disputes preclude determination at this time
as to whether Brown’s second category of speech, her statements to the Auditors,
was protected. In order to be entitled to First Amendment protection, a public
employee must show, among other factors, that he or she “spoke as a citizen.”
Garcetti, 547 U.S. at 418. If the “speech at issue is itself ordinarily within the scope
of an employee’s duties,” it is not afforded constitutional protection. Lane v.
Franks, 134 S. Ct. 2369, 2379 (2014). The question of whether one was speaking
pursuant to official job duties is “largely a question of law for the court.” Jackler,
658 F.3d at 237. However, this legal analysis is informed by factual
considerations. See Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). Here, although
Brown alleges that speaking to the Auditors was outside of her job
responsibilities, Halpin insists that Brown spoke “with the state auditors because
she was in an official position that required . . . her to do so,” Defs.’ Br. at 20. A
factual determination on this point is accordingly “a necessary predicate to . . .
whether immunity is a bar,” Rowland, 494 F.3d at 82, and Brown’s written job
responsibilities are sufficiently ambiguous that we cannot resolve this dispute at
this phase of the litigation. We must thus dismiss Halpin’s appeal.
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We next turn to whether we have jurisdiction to hear the State’s sovereign
immunity defense. The State did not raise this defense below and instead argued
that Brown had failed to state a claim under § 31–51q because she had not
shown, inter alia, that she had been “disciplined or discharged.” App. 414; see
D’Angelo v. McGoldrick, 685 A.2d 319, 320 (Conn. 1996) (“General Statutes § 31–
51q provides a cause of action for damages for an employee who has been
disciplined or discharged on account of the exercise by such employee of various
constitutional rights including the freedom of speech.”). The State now portrays
its argument as a defense of sovereign immunity.
“[S]overeign immunity is a jurisdictional defect” and therefore the defense
“can be raised at any time.” Leonhard v. United States, 633 F.2d 599, 618 n.27 (2d
Cir. 1980). Although Brown disputes whether the State has accurately
characterized its argument, the Connecticut Supreme Court has held that the
failure to establish one of § 31–51q’s essential elements is a jurisdictional defect.
Conboy v. State, 974 A.2d 669, 675‐76 (Conn. 2009). We therefore conclude that the
State has appropriately characterized its argument as a sovereign immunity
defense and that we have jurisdiction to hear the State’s interlocutory appeal.
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We nonetheless find that the district court correctly held that Brown has
alleged misconduct falling within the scope of § 31–51q.3 The proper
interpretation of § 31–51q is a state law question that we review de novo. See
Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006). Although the word
“discipline” is not statutorily defined, Connecticut courts have interpreted the
term to “involve[] affirmative acts of punishment that (at least while the
punishment is being inflicted) leave the recipients in a less happy state than that
which they enjoyed before the punishment began.” Bombalicki v. Pastore, No.
378772, 2000 WL 726839, at *3 (Conn. Super. Ct. May 10, 2000); McIntyre v.
Fairfield Univ., No. CV 020391471, 2003 WL 1090690, at *2 (Conn. Super. Ct. Mar.
3, 2003).
3 In coming to this conclusion, we do not decide whether the district court
correctly held that Brown’s allegations “that the defendants eliminated her job
responsibilities, isolated her from her colleagues, issued a negative performance
review rating, and issued her a letter of counseling” do not “rise[] to the level of
discipline or discharge as contemplated by the Connecticut courts.” Brown, 211 F.
Supp. 3d at 479. That determination is not the subject of the instant interlocutory
appeal.
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We agree with the district court that Brown’s allegation that the “transfer
caused her a loss of benefits and prevented her from being eligible for a
promotion” is sufficient to establish “an affirmative act of discipline under
section 31–51q.” Brown, 211 F. Supp. 3d at 480 (internal quotation marks
omitted). Brown’s transfer did not merely maintain the status quo. See Pastore,
2000 WL 726839, at *1, 3‐4 (holding § 31–51q inapplicable to “employers who fail
to promote employees”); McIntyre, 2003 WL 1090690, at *2–3 (concluding that
university had not “disciplined” plaintiff by denying tenure and declining to
renew the plaintiff’s time‐limited employment contract). Brown instead alleges
that because of the transfer she lost two credited years of service for the purpose
of promotion. This is sufficient to constitute an act of “discipline” under § 31–
51q.
CONCLUSION
Because the availability of qualified immunity cannot now be determined
as a matter of law, we dismiss Halpin’s appeal for lack of jurisdiction. We affirm
the judgment of the district court denying the State’s motion to dismiss Brown’s
claims under Connecticut General Statutes § 31–51q.
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