Appeals Court Revives Case Of Police Clerk Who ‘Stole’ Can Of Biscuit Dough From Communal Fridge

The appellate panel said Green presented sufficient evidence to raise a question “as to whether a reasonable person in plaintiff’s shoes would have felt compelled to retire.”

After working at the EHPD for more than a decade, Green said she began to be subjected to hostile treatment in 2012, when Lt. David Emerman was appointed her new supervisor and EHPD replaced a recently retired coworker with a 30-year-old woman. Green said Emerman micromanaged and criticized her work and, with Police Chief Brent Larrabee, gave her younger co-worker better assignments and training opportunities that she was denied.

Yellow Crime Scene Tape

On Dec. 5, 2014, Green said she went to the break room at 8:30 a.m. to borrow a wire basket for a holiday party. She noticed two cans of Pillsbury biscuit dough that had sat in the communal refrigerator since Thanksgiving. She took one can and placed it in her tote bag, along with a wire basket.

Police Lt. Joseph Murgo sent an email a few hours later to all department employees:  “If YOU are in possession of Pillsbury Grands Flaky layers Buttermilk biscuits, please return them to  their rightful owner.  We work in a police department people. Too many things grow legs here.”

“If YOU are in possession of Pillsbury Grands Flaky layers Buttermilk biscuits, please return them to  their rightful owner.”

Green said she went to the kitchen to return the biscuits. Chief Brent Larrabee was standing in front of the refrigerator, which was was sealed with yellow crime scene tape. Larrabee inquired about the contents of her lunch bag; she responded only that it contained a salad. Larrabee opened the bag and saw the biscuit can.

Larrabee took Green back to her desk, while she explained the kitchen lacked an oven and she intended to take the biscuits home, bake them and bring them back for officers to enjoy.

Larrabee spotted her tote bag and asked what it contained. Green said she was temporarily borrowing a wire basket for a holiday party. He asked if she had obtained permission and she said that did not occur to her because she and at least two other department employees borrowed such items in the past without obtaining permission.

Larrabee placed Green on administrative leave.

Premeditated Theft

EHPD Internal Affairs Officer James W. Naccarato conducted an investigation and concluded Green impaired the “operation or efficiency of the Department” by engaging in “premeditated theft” and “purposely conceal[ing] the canister of biscuits and the basket.”

Naccarato later testified he did not interview the officer who owned the biscuits or the two staffers identified by Green who also borrowed wire baskets without asking permission.

Green said she resigned prior to the Dec. 15 disciplinary hearing after a police union representative, who had just met with town representatives and Chief Larrabee, told her she would almost certainly be fired.

A year later, she sued the town for age discrimination in violation of the Age Discrimination in Employment Act of 1967.

Was She Forced To Resign?

The appeals court rejected Judge Bryant’s s finding there was a “viable” chance the town would overrule Larrabee’s determination and keep Green on staff.

The panel said Green was required to – and did – produce evidence that a reasonable person in her shoes could find sufficient to warrant resignation. Among other things, the panel noted Green’s union rep, who was acting on her behalf, predicted she was almost certain to be fired.

The panel said Judge Bryant’s role was not to weigh the evidence but “to accept as true the facts that were sworn to or undisputed, and with all permissible inference therefrom drawn in Green’s favor, to determine whether a rational juror could find that a reasonable employee would have felt so compelled.”

The panel criticized Judge Bryant for dismissing Green’s concern that she could be criminally prosecuted by the EHPD. “Although ordinarily one might reasonably have no fear of being criminally prosecuted for taking a $2‐$3 package of biscuit dough, EHPDʹs treatment of the biscuits affair was hardly ordinary,” the panel said.

The case is Green v. Town of East Haven, Docket No. 18‐0143 (March 10, 2020).

Green was represented by the firm of Lynch, Traub, Keefe & Errante of New Haven, Ct (Hugh Keefe, of counsel).