Opinion
HHDCV156056506S
02-21-2018
Oskar Harmon et al. v. University of Connecticut
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO, JUDGE
On November 27, 2017, the court heard oral argument on the defendant’s motion for summary judgment (#139). After consideration, for the reasons stated below, the motion is denied.
The plaintiffs, Oskar Harmon, Rosanne Fitzgerald, and Vicki Knoblauch, commenced his employment discrimination action against the defendant, University of Connecticut, on December 30, 2014, with a return day of January 27, 2015. The plaintiffs filed their initial complaint on January 5, 2014, and filed a first and second amended complaint on January 28, 2015. The second amended complaint is the operative complaint (complaint). In their four-count complaint, the plaintiffs allege that the defendant, through Metin Cosgel, discriminated against Harmon on the basis of his age (count one) and retaliated against Harmon, Fitzgerald, and Knoblauch (counts two, three, and four) in violation of General Statutes § § 46a-60(a)(1) and (4) of the Connecticut Fair Employment Practices Act (CFEPA).
General Statutes § 46a-60 provides in relevant part that " (a) It shall be discriminatory practice in violation of this section:
On April 10, 2015, the defendant moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction, contending that the plaintiffs failed to exhaust their administrative remedies because some of their claims were not timely filed with the Connecticut Commission on Human Rights & Opportunities (commission) as required by General Statutes § 46a-82(f). The plaintiff filed a memorandum of law in opposition on May 11, 2015, and the defendant filed a reply memorandum of law on July 9, 2015. On October 7, 2015, viewing the plaintiffs’ allegations in a manner most favorable to them, the trial court, Peck, J., denied the defendant’s motion, concluding that the continuing violation doctrine applies to save the plaintiffs’ claims that fall outside the 180-day statutory time limit because the plaintiffs sufficiently alleged a hostile work environment. On July 11, 2016, the defendant filed its answer and special defenses to the plaintiffs’ complaint. On September 1, 2017, the defendant moved for summary judgment as to the plaintiffs’ entire complaint and filed a supporting memorandum of law with over 900 pages of exhibits. On November 1, 2017, the plaintiffs filed a memorandum of law in opposition to the defendant’s motion and an affidavit with over 600 pages of exhibits. On November 14, 2017, the defendant filed a reply memorandum of law.
General Statutes § 46a-82 provides: " (a) Any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 4a-60g or 46a-68 or the provisions of section 46a-68c to 46a-68f, inclusive, may, by himself or herself or by such person’s attorney, file with the commission a complaint in writing under oath, except that a complaint that alleges a violation of section 46a-64c need not be notarized. The complaint shall state the name and address of the person alleged to have committed the discriminatory practice, provide a short and plain statement of the allegations upon which the claim is based and contain such other information as may be required by the commission. After the filing of a complaint, the commission shall provide the complainant with a notice that: (1) Acknowledges receipt of the complaint; and (2) advises of the time frames and choice of forums available under this chapter.
The defendant raised the following special defenses: (1) statute of limitations, (2) failure to state a claim upon which relief may be granted, (3) legitimate, nondiscriminatory reasons for any and all actions taken with regard to the plaintiffs exist, (4) failure to mitigate damages, and (5) a reservation of the right to assert additional defenses.
After review of the parties’ oral arguments, memoranda of law and exhibits, the court has determined that the defendant has not established the absence of genuine issues of material fact with respect to whether the plaintiffs are able to establish a prima facie case of age discrimination and retaliation and whether the defendant has legitimate, nondiscriminatory or nonretaliatory justifications for engaging in the alleged adverse employment actions. Accordingly, the defendant’s motion for summary judgment is denied.
THE PLAINTIFFS’ ALLEGATIONS
The court summarizes below the plaintiffs’ discrimination and retaliation claims. The court makes no factual findings.
According to the plaintiff’s allegations, Harmon has been employed by the defendant as a full-time assistant professor of economics since 1982 and then as a full-time associate professor of economics since 1994. Fitzgerald has been employed by the defendant since 1997 and has worked as a program assistant in the economics department since 2000. Knoblauch has been employed by the defendant since 2001 as a full-time professor of economics.
In 2010, the defendant appointed Cosgel as head of the economics department. As head, Cosgel had the authority to make teaching assignments, teaching schedules, and classroom assignments for the professors of the economics department, and could approve or disapprove the allocation of support for the professors’ research and teaching activities. Additionally, as head, Cosgel was the senior manager of administrative functions of the economics department and supervisor of the program assistants, which included Fitzgerald.
I. Harmon
Beginning in 2010, Cosgel engaged in an ongoing pattern of discrimination and retaliation against Harmon on the basis of his age. In February 2011, Cosgel questioned Harmon and William Alpert, a sixty-two-year-old professor in the economics department, about their age and asked them whether they had any retirement plans. Harmon responded that he was very satisfied with his job and did not have any plans to retire in the foreseeable future. Alpert was sixty-two-years-old at the time and told Cosgel that he had no intention of retiring any time soon. Cosgel also asked Alpert if he knew anything about Harmon’s retirement plans. In June 2011, Cosgel refused and/or declined to approve the additional compensation that Harmon always received for teaching additional sections of an online summer course. In December 2011, Cosgel increased the cap for the winter 2012 online class sections taught by Harmon, effectively cutting Harmon’s compensation in half and treating him differently than other professors of the economics department.
In January 2012, Cosgel again questioned Harmon about his age and retirement plans, asking Harmon to turn off any recording devices he may have had on his person. In January 2012, Cosgel cancelled two class sections that Harmon was going to teach and declined to provide Harmon with three teaching assistants (TAs). In February 2012, Cosgel attempted to assign Harmon’s teaching materials to graduate student TAs in an effort to have Harmon’s course taught without him. In March 2012, Cosgel denied Harmon TAs for three class sections. In June 2012, Cosgel increased the cap for the summer online class sections to fifty students per section. From September 2012, through the spring of 2014, Cosgel refused to assign Harmon private office space at the Storrs campus, treating him differently than younger faculty. In September 2012, Cosgel refused to consider two articles that Harmon had published earlier in 2012 as scholarship. By October 2012, Cosgel had scheduled Harmon’s spring 2013 classes to meet in a room that was not equipped with the technology needed for the classes. In December of 2012, because Harmon had been singled out for unfair treatment due to his age and his refusal to set a retirement date, he filed an age discrimination complaint with the defendant’s office of diversity and equity.
In January 2013, Cosgel attempted to persuade the registrar to deny Harmon compensation for two of the three sections that Harmon was scheduled to teach in the winter 2013 semester. Ultimately, Harmon was able to recover this compensation. In the spring of 2013, Cosgel denied Harmon a classroom that had the necessary computer technology and denied him the support of TAs for these classes. During the summer 2013 semester, Cosgel scheduled Harmon to teach two class sections without TAs, and in December 2013, Cosgel cancelled a second section of a winter 2014 intersession course that Harmon normally taught and in which he was collecting randomized trial data to conclude a university-sanctioned research project.
II. Fitzgerald
The defendant engaged in an ongoing pattern of retaliation against Fitzgerald after she testified on February 4, 2013, and March 27, 2013, in support of Harmon’s age discrimination complaint and Ping Ang’s race and national origin discrimination complaint with the office of diversity and equity, respectively. On May, 7, 2013, concerning her testimony, Cosgel told Fitzgerald that she had thrown him " under the bus." That same day, Cosgel gave Fitzgerald her 2012-2013 performance evaluation in which she was evaluated as " very good" but had been downgraded in several categories. Cosgel had also left six important aspects of her job unmentioned in the performance evaluation. Thereafter, Cosgel continued to subject Fitzgerald to " harassing conduct that the other economics department workers Kasey Kniffin and Kristin Osmundson did not experience." See complaint, ¶43. Cosgel has not allowed Fitzgerald to work from home as he has let Kniffin and Osmundson. Cogsel has neither allowed Fitzgerald to use her lunch time at the end of the day and leave early nor keep her office door closed as he had prior to her testimony. At one point, Cosgel required Fitzgerald to use personal sick time for a snow day when the governor had closed the state to non-essential personnel.
On October 17, 2013, Cosgel asked Fitzgerald to place a letter of support that had been written and signed by several faculty members in the promotion, tenure, and reappointment committee file in such a way that the committee would not see it, and he threatened that Fitzgerald would lose her job if other faculty members discovered the letter. On November 21, 2013, during a staff meeting, Cosgel put Osmundson in charge of the office in his absence even though Fitzgerald had been placed in charge in the past. He also stated that he did not want any holiday decorations put up because someone may complain to the office of diversity and equity. On November 25, 2013, Cosgel gave Fitzgerald a " letter of direction," which falsely claimed that she had unprofessional interactions at work, and he did not review the letter with her. On December 20, 2013, in a meeting in which Cosgel was supposed to be reviewing the November 25 letter with her, Cosgel never went over the letter and, instead, tried to bring up comments found in Fitzgerald’s 2002-2003 performance evaluations as justification for the issues mentioned in the letter. On December 16, 2013, Cosgel denied Fitzgerald’s request to be relieved of mail duties even though she was totally restricted from lifting due to her worsening Lymphedema. On December 17, 2013, the defendant, through the office of diversity and equity, denied Fitzgerald’s request for reasonable accommodation whereby her mail duties would be taken away.
On March 28, 2014, Cosgel chose Kniffin for the newly-created position of administrative coordinator in the economics department over Fitzgerald in spite of Fitzgerald’s superior qualifications and twelve letters of recommendation from faculty members. On August 11, 2014 Cosgel gave Fitzgerald another letter of direction filled with baseless accusations of poor performance.
III. Knoblauch
The defendant also engaged in an ongoing pattern of retaliation against Knoblauch after she testified on March 12, 2013, in support of Harmon’s age discrimination complaint with the office of diversity and equity. On June 4, 2013, Cosgel indirectly informed Knoblauch that she would no longer be teaching advanced mathematical economics II, a course that Cosgel knew was important to her. Cosgel also denied Knoblauch’s request to again be assigned to teach advanced mathematical economics II, making false statements about teaching loads. On June 17, 2013, Cosgel assigned a burdensome administrative duty to Knoblauch, which was created and assigned without normal faculty input and decision-making procedure. On July 18, 2013, Cosgel made false and derogatory statements about Knoblauch to a meeting of financial officers of the college of liberal arts and sciences, claiming that she owed money to the economics department and was refusing to pay it back. During the fall semester of 2013, Cosgel withdrew TA support from Knoblauch even though she continued to teach an honors program course that resulted in the economics department receiving finances for TA support. On November 22, 2013, Cosgel informed Knoblauch that, starting in the fall of 2014, she would have to teach on Mondays, Wednesdays, and Fridays even though Cosgel knew that Knoblauch’s disabilities, i.e., her trigeminal neuralgia and vertigo, required her to work only two days per week and on Tuesdays and Thursdays. Cosgel also prevented Knoblauch from using classrooms with the technology and temperature required for her disabilities. On September 2, and December 2, 2014, Cosgel informed Knoblauch that, starting in the fall of 2015, she would have to teach on Mondays, Wednesdays, and Fridays.
STANDARD OF REVIEW
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." " A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment ... [In the context of summary judgment,] [t]he facts at issue ... are those alleged in the pleadings ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Emphasis in original; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728-29, 145 A.3d 292, cert. denied; 323 Conn. 930, 150 A.3d 231 (2016).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him [or her] to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his [or her] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... 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 [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
" [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 655, 137 A.3d 1 (2016); Conn. Code Evidence § 9-1(a). " Hearsay statements are insufficient to contradict facts offered by the moving party ... and if an affidavit contains inadmissible evidence it will be disregarded." (Citations omitted; footnote omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994). Along with the facts presented by the parties’ affidavits and exhibits, the court may consider the " inferences which could be reasonably and logically drawn from them ..." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
Section 9-1(a) of the Connecticut Code of Evidence provides: " The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be." The commentary to subsection (a) provides in relevant part that " [t]he requirement of authentication applies to all types of evidence, including writings, sound recordings, electronically stored information, real evidence such as a weapon used in the commission of a crime, demonstrative evidence such as a photograph depicting an accident scene, and the like."
DISCUSSION
The defendant moves for summary judgment on the following grounds: (1) many of Harmon’s allegations that serve as the basis for his age discrimination claim are time-barred; (2) many of Harmon’s allegations that serve as the basis for his age discrimination claim were unexhausted; (3) Harmon cannot prove age discrimination under § 46a-60 (4); (4) Harmon cannot prove a hostile work environment claim based on his age; (5) the plaintiffs cannot prove retaliation claims under § 46a-60; and (6) the plaintiffs cannot prove retaliatory hostile work environments.
I. Administrative Exhaustion & Statute of Limitations
The defendant argues that § 46a-82(f) bars Harmon’s claims of age discrimination and retaliation that span a period from June 2010 through September, 22, 2012, because Harmon filed his complaint with the Commission on Human Rights and Opportunities (commission) on March 22, 2013, and 180 days prior is September 23, 2012. The defendant also argues that Fitzgerald’s and Knoblauch’s claimed incidents of retaliation that occurred prior to September 1, 2013, and September 14, 2013, respectively, are similarly time barred because Fitzgerald filed her complaint with the commission on February 28, 2014, and Knoblauch filed her complaint with the commission on March 13, 2014.
Additionally, citing to Ware v. Slate, 118 Conn.App. 65, 983 A.2d 853 (2009), the defendant argues that the court lacks subject matter jurisdiction over Harmon’s discrimination and retaliation claims that relate to events after March 22, 2013, because Harmon never amended his complaint with the commission to raise those allegations, and, thus, they are unexhausted. Likewise, the defendant argues that the court lacks subject matter jurisdiction over Knoblauch’s claimed incidents of retaliation that occurred after March 13, 2014, because Knoblauch never amended her complaint with the commission to include such alleged incidents, and, therefore, they, too, are unexhausted.
Even though " a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction" ; St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003); see also Practice Book § 10-30(a); " once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991); see also Practice Book § 10-33. " [T]he 180-day time requirement for filing a discrimination [complaint] pursuant to [§ 46a-82(f)] is not [subject matter] jurisdictional" ; Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 264, 777 A.2d 645 (2001); but the exhaustion of administrative remedies doctrine is. See Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011) (" the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction ..." [internal quotation marks omitted} } . Therefore, the court must address the defendant’s administrative exhaustion arguments first.
Practice Book § 10-30(a) provides in relevant part that " [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ..."
Practice Book § 10-33 provides in relevant part that " [a]ny claim of lack of jurisdiction over the subject matter cannot be waived."
A. Administrative Exhaustion
" Under [the] exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ... In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Id., 528. Nevertheless, in the context of employment discrimination actions, the court may have jurisdiction over the plaintiffs’ claims under the " reasonably related exception" to the administrative exhaustion requirement. Under the reasonably related exception, " [t]he central question is whether the complaint filed with the commission gave that agency adequate notice to investigate the discrimination claimed in the present action." Ware v. State, supra, 118 Conn.App. 85.
In Ware, the defendant State of Connecticut argued that the trial court should have granted its motion to dismiss the plaintiff state employee’s claims brought pursuant to § § 46a-60(a)(4) and (5) and her " hostile and offensive work environment" claim on the ground that the plaintiff failed to exhaust her administrative remedies by not obtaining a release of jurisdiction from the commission as to those claims. Id., 78. Looking to federal case law, the Appellate Court recognized the reasonably related exception but concluded that the plaintiff’s § § 46a-60(a)(4) and (5) claims and her " hostile and offensive work environment" claim " [were] not so closely related to the allegations in her complaint to the commission that they reasonably would have been investigated by the commission," and, therefore, those claims had not been administratively exhausted. Id., 85. According to the court, these claims were not so closely related because her complaint to the commission alleged that she was discharged because of her sex and because she was pregnant; it did not contain any allegations concerning retaliatory conduct, allegations that could reasonably be interpreted as alleging that an individual aided, abetted, incited, compelled, or coerced the doing of any discriminatory act, or allegations relating to a sexual harassment hostile work environment claim. Id., 86.
Because Ware does not support the defendant’s contention that claims not raised before the commission are automatically deemed unexhausted, the defendant’s administrative exhaustion argument fails. Furthermore, the plaintiffs’ allegations pertaining to Harmon and Knoblauch and actions taken after March 22, 2013, and March 13, 2014, respectively, are so closely related to the allegations in both plaintiffs’ complaints to the commission that the commission reasonably would have investigated these later allegations.
In his complaint to the commission, Harmon alleged, inter alia, that during the period from February 2011, to the date of filing, Cosgel questioned him about his age and inquired about his retirement plans on more than one occasion, cancelled sections of classes that he was set to teach, declined to provide him with assistance from TAs, and scheduled certain classes to meet in a room that was not equipped with the technology needed for those classes all because of his age and/or in retaliation for his refusal to set a retirement date. Likewise, in the plaintiffs’ complaint to the court, allegations in paragraphs 17, 30, 31, and 32, which concern Harmon and events that occurred or most likely occurred after March 22, 2013, refer to the same and similar conduct. Therefore, the allegations in Harmon’s complaint to the commission would have given the commission adequate notice to investigate the discrimination alleged in the present action.
Similarly, in her complaint with the commission, Knoblauch alleges the same or similar conduct as the plaintiffs’ have alleged in the present case. For instance, in her complaint with the commission, Knoblauch alleged, inter alia, that she acted as a witness in Harmon’s age discrimination complaint with the diversity and equity office on March, 12, 2013; that, on November 22, 2013, Cosgel informed her that her fall 2014 schedule would be switched to a Monday, Wednesday, Friday schedule and that the last course of the day would end at 5:55 p.m.; that Cosgel refused to reinstate her medical accommodation; and that Cosgel knows about her health problems. The plaintiffs’ allegations pertaining to Knoblauch and retaliatory acts that occurred after March 13, 2014, are so closely related to the allegations in Knoblauch’s complaint to the commission that the commission reasonably would have investigated the later allegations.
Accordingly, the plaintiffs’ allegations of conduct occurring after March. 22, 2013, and March 13, 2014 cannot be deemed unexhausted.
B. Statute of Limitations
The defendant also argues that § 46a-82(f) bars Harmon’s discrimination and retaliation claims that span a period from June 2010 through September, 22, 201.2, because Harmon filed his claim with the commission on March 22, 2013, and 180 days prior is September 23, 2012. The defendant makes the same arguments with respect to Fitzgerald’s and Knoblauch’s claimed acts of retaliation that fall outside the applicable limitation period.
1. Law of the Case Doctrine
The defendant previously moved to dismiss portions of the plaintiffs’ complaint on this ground, and the trial court, Peck, J., denied the defendant’s motion, agreeing with the plaintiffs that the continuing violation doctrine applies to save their claims that fall outside the applicable limitation period because their complaint sufficiently alleges a hostile work environment. Now, in opposition, the plaintiffs contend that their claims are timely because the trial court correctly noted that their allegations demonstrate a continuing pattern of discrimination and retaliation, and, thus, the continuing violation doctrine applies to toll the 180 day time limit. In essence, the plaintiffs are arguing that the court should again rule in their favor but on a different ground than that which they put forth in opposition to the defendant’s motion to dismiss.
Under such circumstances, the law of the case doctrine is implicated. " The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked ... In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause ... Where a matter has previously been ruled upon interolocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ...
" A judge should hesitate to change his [or her] own rulings in a case and should be even more reluctant to overrule those of another judge ... Nevertheless, if the case comes before him [or her] regularly and he [or she] becomes convinced that the view of the law previously applied by his [or her] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he [or she] may apply his [or her] own judgment ... The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982).
Although the trial court has already ruled on this very issue in the context of a motion to dismiss, the court will address the issue again at the summary judgment stage because the parties have since submitted extensive briefing and exhibits in support of their positions and because the plaintiffs apparently have abandoned their hostile work environment argument and put forth a different argument in opposition. See Johnson v. Atkinson, 283 Conn. 243, 250, 926 A.2d 656 (2007) (holding trial court did not violate law of case doctrine by ruling on second summary judgment motion where circumstances surrounding earlier ruling on first summary judgment motion were different because first ruling occurred during pleadings stage and many issues of material fact remained), overruled on other grounds by Jaiguay v. Vasquez, 287 Conn. 323, 948 A.2d 955 (2008); see also Henderson v. Lagoudis, 148 Conn.App. 330, 337-41, 85 A.3d 53 (2014) (holding collateral estoppel and law of case doctrines did not preclude defendants from arguing or trial court from addressing standing issue in defendants’ summary judgment motion where trial court had previously ruled on standing issue raised in defendants’ motion to dismiss).
2. Continuing Violation Doctrine
Section 46a-82 provides in relevant part that " (a) Any person claiming to be aggrieved by an alleged discriminatory practice ... may ... file with the commission a complaint in writing under oath ... (f) Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination ..." The 180-day filing requirement is mandatory and must be complied with; thus, " a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent or some other compelling equitable tolling doctrine applies." Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 284.
The evidence submitted indicates that Harmon, Fitzgerald, and Knoblauch filed their complaints with the commission on March 22, 2013, February 28, 2014, and March 13, 2014, respectively. Therefore, the plaintiffs’ alleged claims of discriminatory and retaliatory acts that occurred prior to September 23, 2012, September 1, 2013, and September 14, 2013, respectively, are time barred unless the plaintiffs can establish the existence of a genuine issue of material fact as to whether the continuing violation doctrine applies to save those claims. See Celaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016) (" [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." [Internal quotation marks omitted.] )
To address the issue of whether the plaintiffs’ untimely claims of discrimination and retaliation are saved by the continuing violation doctrine, the court may look to federal law for guidance. See Amato v. Hearst Corp., 149 Conn.App. 774, 779, 89 A.3d 977 (2014) (" In interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance. In drafting and modifying [CFEPA] ... our legislature modeled that act on its federal counterpart, Title VII [of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.] ... and has sought to keep our state law consistent with federal law in this area." [Footnote omitted; internal quotation marks omitted.] ) " Nevertheless ... under certain circumstances, federal law defines the beginning and not the end of [the court’s] approach to the subject." (Internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989).
The continuing violation doctrine is " one means by which plaintiffs can assert otherwise time-barred acts, as the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it ... If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer’s discriminatory policy or practice, including those that would otherwise be time barred." (Citations omitted; internal quotation marks omitted.) Ludwiczak v. Hitachi Capital America Corp., 528 F.Supp.2d 48, 54 (D.Conn. 2007); see also State v. Commission on Human Rights & Opportunities, supra, 211 Conn. 473 (recognizing continuing violation doctrine in employment discrimination context).
" A continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice ... Discrete incidents or even similar multiple incidents of discrimination that do not result from discriminatory policies or mechanisms, however, do not amount to a continuing violation ...
" [A] continuing violation can be established by showing either (1) that the ... incidents of discrimination against [the] plaintiff constitute a series of related acts or (2) that defendant’s actions were taken pursuant to the maintenance of a discriminatory system both before and during the limitation period ... In order to claim that discriminatory acts constitute a series of related acts, it must be clear that the acts complained of are not completed, distinct occurrences ... In addition, [a] continuing violation ... may not be based on the continuing effects of an earlier discrimination or on a completed act of discrimination." (Citations omitted; internal quotation marks omitted.) Miner v. Cheshire, 126 F.Supp.2d 184, 189-90 (D.Conn. 2000); see also Moynihan v. Massachusetts Mutual Life Ins. Co., 773 F.Supp. 502, 515 (D.Mass. 1991) (" There are two kinds of continuing violations, serial violations and systemic violations. A serial violation is composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate wrong" and " a systemic violation has roots in a discriminatory policy or practice by an employer." [Internal quotation marks omitted.] )
" Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). According to the Supreme Court, " discrete incidents occurring during a continuum of discriminatory employment practices may constitute fresh violations of [General Statutes § 46a-60]." State v. Commission on Human Rights & Opportunities, supra, 211 Conn. 473.
In their memorandum of law in opposition, the plaintiffs cite to no case law in support of their argument that the continuing violation doctrine applies because their allegations demonstrate a continuing pattern of discrimination and retaliation. Rather, the plaintiffs simply state that they have sufficiently established facts that show that Cosgel created a continuing practice of discriminatory and/or retaliatory adverse actions that started prior to the CFEPA limitations period but continued through the filing of the complaint and that these allegations are sufficient to invoke the continuing violation doctrine.
The plaintiffs cite to Hartford v. Commission on Human Rights & Opportunities, Superior Court, judicial district of Hartford, Docket No. CV-03-0520745-S (February 19, 2004, Shapiro, J.) in support of their general contention that Connecticut courts have applied the continuing violation doctrine to other adverse acts beyond hostile work environment. Although this may be true, the plaintiffs have not provided any case law to support their contention that the continuing violation doctrine should apply in the present action .
In its reply memorandum of law, the defendant cites to Dumas v. Bridgeport Board of Education, Superior Court, judicial district of Waterbury, Docket No. CV-05-4005258-S (January 11, 2008, Upson, J.), in support its argument that the plaintiffs’ untimely claims are time-barred. In Dumas, the plaintiff public school teacher argued that the continuing violation doctrine applied to save his claims of discrimination that fell outside the 180-day time limit. The plaintiff alleged that his marketing education classes were reassigned to a Caucasian teacher who lacked the proper certification; he had difficulty teaching his classes three years prior to his retirement because he was constantly required to transfer from one classroom to another; proper equipment was unavailable to him when he was being moved around; he was assigned to cafeteria duty by the principal, despite his health issues; and the defendant board decided to hire an African-American teacher to assume the duties of the marketing education program only after he filed his complaint with the commission. After reviewing the evidence submitted by the parties, the trial court concluded, inter alia, that the alleged incidents did not constitute a single continuing violation of discrimination because the plaintiff did not identify a policy or practice of discrimination and mere conclusory allegations of a continuing violation were insufficient.
To support their opposition to the defendant’s summary judgment motion, the plaintiffs have submitted affidavits from Harmon, Knoblauch, and Fitzgerald; deposition testimony from each of the three plaintiffs and from Cosgel; and various other exhibits that were referenced during the parties’ depositions. After reviewing the admissible evidence submitted by the plaintiffs, the court concludes that the plaintiffs have established genuine issues of material fact as to whether the defendant engaged in a pattern or series of related acts of discrimination and retaliation against Harmon and retaliation against Knoblauch and Fitzgerald. Although some of the alleged acts could be categorized as discrete, e.g., raising enrollment caps, a genuine question exists as to whether such acts occurred during a continuum of discriminatory employment practices. Therefore, the defendant’s argument that all alleged claims of discrimination and retaliation that occurred prior to 180 days before the plaintiffs filed their complaints with the commission are time barred fails.
II. " But For" Standard of Causation
Before addressing the plaintiffs’ age discrimination and retaliation claims, the court will consider an additional argument raised by the defendant. The defendant argues that the court should apply the " but for" standard of causation announced in Gross v. FBI, Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), when analyzing whether the plaintiffs are able to establish their prima facie cases. Upon review of the relevant case law, the court agrees with the well-reasoned decision of the trial court in Wagner v. Board of Trustees for Connecticut State University, Superior Court, judicial district of Hartford, Docket No. CV-08-5023775-S (January 30, 2012, Peck, J.), not to apply the " but for" standard in an employment discrimination case. For the reasons stated therein, the court shall not apply the " but for" standard in the present case and, instead, will apply the well-accepted burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1937). See, e.g., Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015) (applying McDonnell-Douglas Corp. framework to discrimination claim).
III. Age Discrimination under CFEPA
The defendant argues that the plaintiffs cannot prove that the defendant discriminated against Harmon on the basis of his age. The defendant does not dispute that the plaintiffs are able to satisfy the first and second prongs of Harmon’s prima facie case of age discrimination, but the defendant does argue that Harmon cannot establish the third and fourth prongs because he cannot show that he suffered any adverse employment actions or that the alleged adverse employment actions occurred under circumstances giving rise to an inference of discrimination. The defendant argues further that Harmon cannot refute the legitimate, nondiscriminatory reasons offered by the defendant and, therefore, cannot establish that such reasons are pretext.
" The legal standards governing discrimination claims involving adverse employment actions are well established. The framework ... employ[ed] in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green ... and its progeny." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn. 73. " [T]o prevail on a claim of age discrimination based on disparate treatment, the plaintiff first must establish a prima facie case of discrimination. To establish a prima facie case of discrimination, the complainant must demonstrate that (1) he [or she] is in the protected class; (2) he [or she] was qualified for the position; (3) he [or she] suffered an adverse employment action; and (4) ... the adverse action occurred under circumstances giving rise to an inference of discrimination." (Emphasis omitted; footnotes omitted; internal quotation marks omitted.) Amato v. Hearst Corp., supra, 149 Conn.App. 779-80. " The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor." Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002). " Once the complainant establishes a prima facie case, the employer then must produce legitimate, nondiscriminatory reasons for its adverse employment action ... This burden is one of production, not persuasion; it can involve no credibility assessment ...
" After the [complainant] has established a prima facie case, and the [employer] has produced evidence of a legitimate, nondiscriminatory reason for the employment action, [t]he [complainant] retains the burden of persuasion. [The complainant] now must have the opportunity to demonstrate that the [employer’s] proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the complainant] has been the victim of intentional discrimination. [The complainant] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence ... Employment discrimination therefore can be proven either directly, with evidence that the employer was motivated by a discriminatory reason, or indirectly, by proving that the reason given by the employer was pretexual ... [E]vidence establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and of itself, enough to support the trier of fact’s ultimate finding of intentional discrimination." (Citations omitted; internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400-01, 880 A.2d 151 (2005).
A. Adverse Employment Actions
" A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment ... To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities ... [A]n adverse employment action [has been defined] as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." (Citation omitted; internal quotation marks omitted.) Amato v. Hearst Corp., supra, 149 Conn.App. 781.
Initially, the defendant argues that the following alleged actions are not adverse because Harmon suffered no harm from them: Cosgel (1) attempted to persuade the registrar to deny Harmon compensation for two of three sections that he was scheduled to teach during the winter 2013 semester, (2) refused to consider two articles that Harmon had published in early 2012, and (3) scheduled Harmon’s spring 2013 Classes to meet in a room unequipped with technology. Citing to the plaintiffs’ complaint, Harmon’s deposition testimony, and an e-mail, the defendant contends that Harmon admitted that he ultimately received compensation, that his publications were counted, and that his classes were scheduled in a room with the requisite technology.
The evidence submitted and referenced by the defendant establishes an absence of a genuine issue of material fact as to whether these three alleged actions were materially adverse. In their complaint, the plaintiffs do allege that " Harmon was able to ultimately recover this compensation" for the sections that he was scheduled to teach during the winter 2013 semester. In his affidavit, Harmon avows that his articles eventually were accepted as meeting the departmental publication requirement after he filed a grievance challenging Cosgel’s decision to reject them. Additionally, Harmon attests that the room changes were disruptive. In opposition, the plaintiffs have not submitted any evidence to establish a genuine issue of material fact as to whether these alleged acts were materially adverse to Harmon.
Next, citing to Mitchell v. Vanderbilt University, 389 F.3d 177 (6th Cir. 2004), the defendant argues that the plaintiffs’ claims that Harmon was denied TAs at various times are not adverse employment actions because the denial of a TA amounts to a mere inconvenience or alteration of job responsibilities. In Mitchell, the United States Sixth Circuit Court of Appeals concluded that the plaintiff professor’s allegations that the defendant university deprived him of a graduate research assistant during one summer and committed other allegedly adverse acts did not amount to adverse employment actions because there was " no evidence to suggest that [those] actions significantly diminished [the plaintiff’s] material responsibilities at [the university]." Id., 182. The evidence presented shows that although not having TA support may have made Harmon’s workload difficult to handle at times, such lack of support was equivalent to an alteration in Harmon’s job responsibilities and caused no significant changes in the status of his employment.
The defendant also argues that Cosgel’s comments in and of themselves are not adverse employment actions. Because the evidence submitted shows that Cosgel’s statements to Harmon about his age and his retirement plans did not affect a materially adverse change in the terms and conditions of employment, the court agrees. See Teachout v. New York City Dept. of Education, United States District Court, Docket No. 04 Civ. 945 (GEL), 2006 WL 452022, *13 (S.D.N.Y. February 22, 2006), (" [n]egative comments, even comments relating to an individual’s claimed disabilities, are not, standing alone, adverse employment actions, because mere comments do not materially affect employment" ).
Citing to Klien v. New York University, 786 F.Supp.2d 830 (S.D.N.Y. 2011), Harmon’s deposition testimony, and an e-mail exchange, the defendant argues that the plaintiffs’ claim that Harmon was not afforded a private office at the Storrs campus is not an adverse employment action because he is claiming that he had to share an office with other professors, not that he was without an office at all. In Klien, the district court determined that the plaintiff professor’s resulting dissatisfaction with her office assignment after her university department was moved to a different building was " nothing more than an everyday workplace grievance" and that " [u]ndesired office assignments are not adverse employment actions." (Footnote omitted.) Id., 847. Harmon’s deposition testimony shows that he was upset about not having a private office space at the Storrs campus like other younger, similarly situated faculty members but that he had an office space to use while there a couple times a week, nevertheless. Furthermore nothing that the plaintiffs have submitted shows that Harmon’s lack of a private office at the Storrs campus amounted to a materially adverse change in the conditions of his employment akin to changes such as hiring, firing, or failing to promote.
Finally, citing to Ruggieri v. Harrington, 146 F.Supp.2d 202 (E.D.N.Y. 2001), Harmon’s deposition testimony, and several other exhibits, the defendant argues that Harmon did not suffer an adverse employment action for canceling a section of his winter 2014 intersession class and that any increase to his class sizes was not a material loss because Harmon’s pay is based upon nine months of work per year (i.e., teaching done in the fall and spring semesters) and because teaching during the intersessions is a privilege, not an entitlement, under the terms of his employment as a tenured professor. In Ruggieri, the district court concluded, inter alia, that the plaintiff " simply suffered no adverse employment action as a result of being denied the occasion to serve as department chair and to teach certain summer courses that she wanted to teach, opportunities to which she was not absolutely entitled simply based on her status as a tenured professor." Id., 217.
Ruggieri is distinguishable from the present case because Harmon’s affidavit and deposition testimony demonstrate that he is entitled to surplus pay from any intersession courses that he teaches, that he used and needed his intersession courses to conduct his university-approved research projects, and that his research funding and productivity were impacted greatly due to Cosgel’s alleged actions. For instance, Harmon attests that Cosgel had approved a cap of twenty-five students per section for the online format of Econ 1201 that he was planning to teach in the winter 2012 intersession and that he was confident that enrollment would justify at least two sections of Econ 1201, giving him approximately $17,076 in intersession income. In August 2011, however, Cosgel raised the cap to seventy-five students. Therefore, genuine issues of material fact exist as to whether the alleged cancelation of his class and the increase in enrollment caps were materially adverse employment actions.
The defendant argues that Harmon agreed to this increase, citing to the affidavit of Kelly Racine, Harmon’s deposition testimony, and a couple of e-mail exchanges. The evidence cited to by the defendant does not establish the absence of a genuine issue of material fact as to whether Harmon simply agreed to the increase. Rather, it is unclear whether Harmon agreed to an overall increase in enrollment or an increase in the caps on each section.1
The defendant does not address the plaintiffs’ claim that, in June 2011, Cosgel refused and/or declined to approve the additional compensation that Harmon always received for teaching additional sections of an online summer course.
Accordingly, genuine issues of material fact remain, such as with respect to the materially adverse nature of the plaintiffs’ allegations that Cosgel cancelled a section of Harmon’s 2014 winter intersession course, raised enrollment caps for some of Harmon’s intersession courses, and refused to approve Harmon’s receipt of income he earned from teaching during the summer 2010 intersession. Therefore, the defendant’s argument that the plaintiffs cannot establish that Harmon suffered any adverse employment actions fails.
B. Inference of Discrimination
According to the defendant, the plaintiff’s attempt to demonstrate the existence of an inference of discrimination by pointing to statements that Cosgel made to Harmon during two separate meetings and by pointing to similarly-situated, younger employees who were allegedly treated more favorably than Harmon. First, the defendant argues that Cosgel’s statements to Hannon do not give rise to an inference of age discrimination because they are " stray remarks," meaning that there is no " nexus" between the remarks and the alleged adverse actions because the first action that Cosgel took against Harmon was in June 2011, or four months after making the statements. Citing to Cosgel’s deposition testimony, the defendant also argues that Cosgel’s comments were stray remarks because Cosgel shares the same protected class as Harmon, was concerned about staffing issues because the department had lost three faculty members, and needed to know how many faculty members to hire because he had received authorization to hire for the Stamford campus.
1. Stray Remarks
" Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff ... Often, however, an employer will argue that a purportedly discriminatory comment is a mere ‘stray remark’ that does not constitute evidence of discrimination ... Although courts have often used the term ‘stray remark’ to refer to comments that do not evince a discriminatory motive, the [United States] Second Circuit [Court of Appeals] has found that the term ‘stray remark’ represented an attempt- perhaps by oversimplified generalization to explain that the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination ... Accordingly, the task is not to categorize remarks either as stray or not stray, and disregard [remarks] if they fall into the stray category, but rather to assess the remarks’ tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class ...
" Courts have found the following factors relevant to such a determination: (1) who made the remark, i.e., a decision-maker, a supervisor, or a low-level coworker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decision-making process." (Internal quotation marks omitted.) Colebaugh v. Yale New Haven Hospital, Inc., Superior Court, judicial district of New Haven, CV-15-6057999-S (June 12, 2017, Wilson, J.), quoting Rajaravivarma v. Board of Trustees for the Connecticut State University System, 862 F.Supp.2d 127 (D.Conn. 2012). " [A]lthough evidence of one stray comment by itself is usually not sufficient proof to show age discrimination, that stray comment may bear a more ominous significance when considered within the totality of the evidence." (Internal quotation marks omitted.) Young v. Pitney Bowes, Inc., United States District Court, Docket No. 3 :03CV1161 (PCD), 2006 WL 726685, *19 (D.Conn. March 21, 2006), quoting Carlton v. Mystic Transportation, Inc., 202 F.3d 129 (2d Cir. 2000), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000).
First, the defendant cites to nothing in support of its contention that Cosgel shares the same protected class as Harmon. Additionally, although the deposition testimony cited to by the defendant supports its contention that the economics department lost faculty members and Cosgel, as head of the department, was concerned about staffing issues, the cited deposition testimony fails to address the plaintiffs’ allegation that Cosgel asked Harmon about his age and retirement plans a second time in January 2012. Moreover, Cosgel’s assertions that he was only concerned about hiring enough faculty is belied by Harmon’s affidavit in which he attests that, during his one-on-one meeting with Cosgel in early 2011, Cosgel made the following statements: " How old are you?" ; " When do you plan on retiring?" ; and " It must be hard for you at your age to keep up with the publishing requirements of the department? The younger faculty we are hiring now have better analytical skills than you because you went to graduate school thirty years ago." Furthermore, although Cosgel may not have acted on alleged age-based animus towards Harmon until June 2011, the defendant has not put forth any evidence to establish the absence of a genuine issue of material fact as to whether Cosgel was simply waiting for the right time to begin a continuous pattern of discriminatory acts against Harmon, which includes allegedly refusing to approve Harmon’s receipt of income he earned from teaching during the summer 2010 intersession, raising enrollment caps for some of Harmon’s intersession courses, and cancelling a section of Harmon’s 2014 winter intersession course. Accordingly, the defendant has not established the absence of a genuine issue of material fact as to whether Cosgel’s remarks were simply stray remarks with no connection to the alleged adverse acts.
2. Similarly-Situated Individuals
Second, the defendant argues that Harmon cannot show that he was treated less favorably than similarly-situated, younger employees because numerous other faculty members of the economics department, including a graduate student, were teaching the same or similar online courses as Harmon with enrollment caps between seventy-five and 330 students, and because Harmon was actually treated more favorably by being given smaller class sizes and by allowing him to teach the same introductory course for four consecutive semesters and during intersessions in order to conduct his research project. The defendant cites to Harmon’s deposition testimony and other exhibits in support.
To establish an inference of discrimination, the plaintiff " may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than [he or] she was ... To be probative, this evidence must establish that the plaintiff and the individuals to whom [he or] she seeks to compare [himself or] herself were similarly situated in all material respects ... [A]n employee offered for comparison will be deemed to be similarly situated in all material respects if (1) ... the plaintiff and those he [or she] maintains were similarly situated were subject to the same workplace standards and (2). the conduct for which the employer imposed discipline was of comparable seriousness." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012).
Upon review of the evidence referenced by the defendant, the court concludes that genuine issues of material fact remain with respect to whether Harmon was treated more favorably than similarly-situated faculty members. Notably, in his April 19, 2012 e-mail to Harmon regarding Harmon’s research experiment, Cosgei expressed the following with respect to Harmon teaching three sections of Econ 1201 in an online, blended, and live format: " Although these are sections of the same course, something we do not ordinarily schedule tenure-track faculty to do, we have made an exception because of the department’s support for the randomized experiment. Scheduling you to teach three sections is only temporary (while the experiment continues) with the sole attempt to control for the instructor in all formats. Since this is a principle’s course and one of the formats is online and the other blended, I believe the instructor’s total effort in this setup is roughly equivalent to that of other faculty typically teaching two upper division or graduate courses per semester ..." (Emphasis added.). Furthermore, the defendant’s contention that other faculty members were teaching the same or similar online courses with higher enrollment caps is unsupported because the defendant’s exhibit 71 is an unauthenticated chart of " ECON Courses," and Harmon’s deposition testimony does not serve to properly authenticate it because there is no discussion as to who created the chart, where it was obtained from, or whether Harmon had personal knowledge as to every faculty member’s class enrollments.
Accordingly, genuine issues of material fact remain with respect to whether the plaintiffs can establish that an inference of discrimination exists and, therefore, satisfy the fourth prong of Harmon’s prima facie case of age discrimination, C. Legitimate, Nondiscriminatory Justifications
Once a plaintiff has established a prima facie case of age discrimination, the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for its alleged adverse employment actions. See Jacobs v. General Electric Co., supra, 275 Conn. 401. The defendant " need not persuade the court that it was actually motivated by the proffered reasons ... [as it] is sufficient if the defendant’s evidence raise a genuine issue of fact as to whether it discriminated against the plaintiff ... To carry its burden and raise a genuine issue of fact, [the defendant] must, using admissible evidence, set forth reasons which are sufficient to support a finding that unlawful discrimination was not the cause of the employment action." (Citation omitted; internal quotation marks omitted.) Young v. Pitney Bowes, Inc., supra, United States District Court, Docket No. 3:03CV1161 (PCD), 2006 WL 726685, *14.
The court has reviewed the defendant’s initial memorandum of law and reply memorandum of law submitted in support of its summary judgment motion. In neither does the defendant clearly produce legitimate, nondiscriminatory reasons for its allegedly adverse employment actions, and, thus, the court need not consider the defendant’s motion any further. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [W]e are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief an issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed abandoned ... These same principles apply to claims raised in the trial court." [Citation omitted; internal quotation marks omitted.] )
Nevertheless, the court has attempted to glean from the facts section of the defendant’s supporting memorandum of law what could be the defendant’s legitimate, nondiscriminatory reasons. As to the alleged cancelling and/or refusing to open a second section of Harmon’s winter 2014 intersession course, the defendant states that the same course was offered by another professor and only had six students enrolled. To support this assertion, the defendant cites to Harmon Exhibit 106. The court is unable to consider Harmon Exhibit 106, however, because it appears to be an unauthenticated Word document with names of various instructors, including Harmon’s, and course enrollment information for " Intersession 2014."
As to the alleged raising of the enrollment caps on various intersession courses, the defendant states that Harmon requested the increase in the enrollment caps for his courses so that he would have larger sample sizes for his research. To support this statement, the defendant cites to the affidavit of Kelly Racine, Harmon’s deposition testimony, and its exhibits 17, 31, and 43. Racine’s affidavit and attached e-mail exchange fail to make clear whether Harmon was agreeing to an overall increase in enrollment or an increase in the caps on each section. Additionally, exhibits 17, 31, and 43 are unsupportive to the defendant as well because Harmon’s deposition testimony evidences that he primarily wanted to have three separate classes or sections of twenty-five or thirty-five students each to carry out his research experiments. Moreover, as to Harmon’s deposition testimony, as submitted by the defendant, even in instances where Harmon conceded that he had agreed to an increase in enrollment caps, he expressed that he did so because he thought he would not be able to teach the course at all or because he wanted the assistance of a TA for the course and believed he would not get one if he did not agree to the raise.
As to Cosgel’s alleged refusal to authorize Harmon’s receipt of research funds earned in the summer 2010 intersession, the court could not find any statement in the facts section that reasonably would qualify as a legitimate, nondiscriminatory reason for such refusal.
Accordingly, genuine issues of material fact remain with respect to whether the defendant is able to provide legitimate, nondiscriminatory justifications for its adverse actions. Therefore, the defendant’s motion for summary judgment is denied as to Harmon’s age discrimination claim under CFEPA.
IV. RETALIATION
The defendant makes several arguments with respect to the plaintiffs’ retaliation claims. First, the defendant argues that any alleged conduct that occurred prior to Cosgel learning of the plaintiffs’ protected activity cannot support a claim of retaliation? The defendant also argues that the plaintiffs cannot establish a prima facie case of retaliation because they cannot show that they suffered any adverse employment actions and cannot demonstrate any causal connection between their protected activity and the alleged acts. Finally, the defendant argues that, even if the plaintiffs establish a prima facie case of retaliation, the plaintiffs cannot rebut the legitimate, nonretaliatory reasons for the defendant’s actions.
Under CFEPA, " any person, employer, labor organization or employment agency" may not " discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84." General Statutes § 46a-60(a)(4). " To determine whether a plaintiff can prevail on a claim of retaliation, under state law, the court again employs the burden shifting analysis set forth ... in McDonnell Douglas Corp. v. Green ..." Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 95, 153 A.3d 687 (2017). " To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he [or shell participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against him [or her]; and (4) a causal connection between the protected activity and the adverse employment action." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).
A. Retaliatory Acts Considered
The defendant does not dispute that the plaintiffs engaged in and that Cosgel was aware of the plaintiffs’ engagement in protected activity when Harmon filed his complaint with the office of diversity and equity and when Fitzgerald and Knoblauch testified in support of said complaint. Rather, as to Harmon’s retaliation claim, the defendant argues that any actions taken by Cosgel prior to December 7, 2012, cannot be deemed retaliatory because Harmon filed his complaint with the office of diversity and equity on December 7. Likewise, as to Fitzgerald’s and Knoblauch’s retaliation claims, the defendant argues that Cosgel’s actions taken prior to May 16, 2013, are not retaliatory in nature because he did not learn of their protected activity until after he received a report from the office of diversity and equity on May 16.
The court agrees, in part, with the defendant that the adverse employment action in question must occur after the plaintiff engages in and/or the defendant is aware that the plaintiff will engage in a protected activity in order for the alleged retaliation to be actionable. See Krahm v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV-04-4000006-S (October 1, 2009, Doherty, J.) (" to be actionable retaliation, the adverse employment action [in question] must occur after the plaintiff engages in a protected activity" [emphasis omitted] ), citing Shah v. Consolidated Edison Corp. of New York, 175 Fed.Appx. 436, 438 (2d Cir. 2006).
The plaintiffs’ answers to the defendant’s first set of interrogatories and request for production, dated March 7, 2017, demonstrate that Harmon filed an age discrimination complaint with the office of diversity and equity (university complaint) on December 12, 2012, and that Fitzgerald and Knoblauch testified in support of the university complaint on February 4, 2013, and March 12, 2013, respectively. Cosgel’s deposition testimony evidences that he learned of Harmon’s university complaint in November of 2012, before Harmon had filed it. Fitzgerald’s affidavit reasonably implies that on May 7, 2013, Cosgel became aware that she had testified in support of Harmon’s university complaint, as Cosgel expressed that she threw him under the bus after he returned from his meeting at the office of diversity and equity that day. Finally, in her affidavit, Knoblauch attests that the diversity and equity office released its investigative report to Cosgel on May 16, 2013, to which her witness statement was attached. Thus, the evidence submitted shows that Cosgel became aware of the university complaint in November of 2012, aware of Fitzgerald’s testimony on May 7, 2013, and aware of Knoblauch’s testimony on or around May 16, 2013. Accordingly, any alleged retaliatory acts that occurred prior to Cosgel’s awareness of and/or the plaintiffs’ engagement in the protected activities cannot be used to support the plaintiffs’ claims of retaliation.
B. Adverse Employment Actions
The defendant argues that the plaintiffs cannot establish that they suffered any adverse employment actions. Specifically, as to Harmon, the defendant argues that even under the more lenient standard for establishing an adverse action for purposes of a retaliation claim, any actions taken against Harmon do not constitute adverse employment actions. As to Fitzgerald, the defendant argues that she cannot prove that she was subjected to actions that would dissuade a reasonable employee from supporting a colleague’s age discrimination complaint with the office of diversity and equity. As to Knoblauch, the defendant argues that her remaining timely allegations of retaliation are not adverse actions.
" For purposes of a retaliation claim, an adverse action need not be an action that affects the terms and conditions of employment, such as a hiring, firing, change in benefits, reassignment or reduction in pay ... Rather, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ... This standard speak[s] of material adversity because ... it is important to separate significant from trivial harms ... Nevertheless, a harm that may be a trivial one, may be significant for another. Put differently, [c]ontext matters ... For example, while a schedule change in an employee’s work schedule may make little difference to many workers, it may matter enormously to a mother with school-age children ... And, although a supervisor’s refusal to invite an employee to lunch is normally trivial, excluding an employee from a weekly training lunch that contributes significantly to [that] employee’s professional advancement may amount to adverse employment action if it deter[s] a reasonable employee from complaining about discrimination ... Further, in determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be actionable." (Citations omitted; emphasis in original; internal quotation marks omitted.) White v. Middletown, 45 F.Supp.3d 195, 217-18 (D.Conn. 2014). " Adverse actions for purposes of the antiretaliation provisions include denial of promotion ... threats, reprimands, negative evaluations, harassment, or other adverse treatment." (Internal quotation marks omitted.) Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 771, 886 A.2d 1248 (2005).
With respect to Harmon, the court already has determined that genuine issues of material fact exist with respect to whether Cosgel’s alleged acts of increasing the enrollment cap on Harman’s winter 2013 intersession course and cancelling and/or refusing to open a second section of Harmon’s winter 2014 intersession course are materially adverse employment actions in the context of Harmon’s age discrimination claim. Likewise, the court concludes that genuine issues of material fact remain with respect to whether such conduct is similarly adverse in that it may have dissuaded a reasonable worker from making or supporting a charge of discrimination.
Regarding Fitzgerald, the defendant argues that she cannot prove that she suffered any adverse employment action because, after she testified in support of Harmon’s university complaint, she was allowed to work from home three times per week, and she was invited to lunch and social functions. The defendant also notes that Fitzgerald received a " very good" evaluation in 2014 even though she had a disagreement with a coworker and admittedly was not working collaboratively with her coworker or supervisor during the period in which she had been evaluated. Additionally, the defendant contends that Fitzgerald’s complaints that she was removed from the task of submitting changes in course schedules to the registrar and removed as the point of contact if faculty needed a high-tech classroom cannot be deemed sufficient to deter a reasonable employee from making a statement to the office of diversity and equity. Finally, the defendant argues that being told to keep a letter confidential, being made to take a sick day but having that time subsequently properly changed, and being put in charge of overseeing the mail when student workers and others would be asked to do the heavy lifting for her cannot be adverse employment actions sufficient to support a retaliation claim. The defendant cites to multiple pages of Fitzgerald’s deposition testimony in support of these arguments.
After reviewing the cited deposition testimony, the court concludes that genuine issues of material fact remain with respect to whether the following alleged acts were materially adverse such that a reasonable worker would be deterred from making or supporting a complaint to the diversity and equity office: Cosgel (1) downgraded Fitzgerald in her 2012-2013 performance evaluation after returning from a meeting at the office of diversity and equity, (2) has not allowed Fitzgerald to keep her office door closed since testifying, (3) issued two " letters of direction" to Fitzgerald and failed to properly review the initial letter with her, and (4) chose Kniffin for the position of administrative coordinator over Fitzgerald. At her deposition, Fitzgerald testified that Cosgel told her that she threw him under the bus after returning from the office of diversity and equity and that he said he was upset because the faculty had a meeting the day before and were one vote shy of removing him as head. She testified that she told Cosgel she had not been at the faculty meeting because he had told her not to go to the meeting. Fitzgerald also testified that, during the time period that her office was next to Cosgel’s, he told her to keep her door open because he did not want her to talk about him or Osmundson. Additionally, Fitzgerald testified that she had been on the search committee to hire Kniffin as the graduate program coordinator, had trained Kniffin, and was already performing the duties that Kniffin was supposed to perform as administrative coordinator when Kniffin was chosen for the administrative coordinator position. Finally, the defendant did not cite to any evidence to show that the " letters of direction," which allegedly contained false accusations that she had unprofessional interactions at work, were not adverse actions.
As to Knoblauch, genuine issues of material fact remain as to whether Cosgel’s false statement to administrators and academic leaders about Knoblauch not paying back the department and Cosgel’s changes to Knoblauch’s teaching schedule and classroom assignments were materially adverse. The defendant argues that Cosgel’s false statement and failing to be assigned to teach her preferred course of mathematical economics II cannot be deemed adverse because she admitted that she was not subject to any loss of wages or benefits and the terms and conditions of her employment contract remained intact. The defendant also contends that Cosgel assisted Knoblauch to obtain technology-equipped classrooms and a flexible work schedule. The defendant cites to Knoblauch’s and Cosgel’s deposition testimony and other exhibits in support.
The evidence submitted demonstrates that Cosgel’s false statement was potentially adverse because Cosgel allegedly said this in front of administrators and academic leaders, which reasonably could have negatively impacted Knoblauch’s reputation among those influential and important in the department. Additionally, the changes made to Knoblauch’s schedule and classroom assignments for the fall of 2014 and 2015 were potentially materially adverse. Under the alleged circumstances- hearing about Cosgel’s false statement about her, not being scheduled to teach her much-liked mathematical economics II course, being assigned as an external reviewer on every dissertation proposal, and being denied the classrooms and schedule necessary for her health for an extended period of time could constitute adverse action, even though eventually she was assigned the schedule and classrooms she wanted.
C. Causal Connection
The defendant argues that, even if the court finds that the plaintiffs each suffered an adverse employment action, the plaintiffs’ prima facie cases still fail because they are unable to demonstrate with sufficient evidence any causal connection.
" The causation element can be proven (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant ... Alternatively, causation may be satisfied by showing a sufficiently close temporal connection between the protected activity and the adverse action ..." (Internal quotation marks omitted.) Jones v. Dept. of Children & Families, 172 Conn.App. 14, 35, 158 A.3d 356 (2017). " Courts have not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action ... Thus, a court may exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the cases ... Where there are longer gaps in time between protected activity and adverse employment action, the inference of causation may be inferred from the fact that the employer was waiting for the opportune time to retaliate." (Citations omitted; internal quotation marks omitted.) White v. Middletown, supra, 45 F.Supp.3d 218-19.
The defendant argues that because Harmon is alleging that he was treated poorly by Cosgel long before the filing of his age discrimination complaint with the diversity and equity office, Harmon cannot necessarily establish retaliation based upon the timing of the filing of such complaint. This argument fails because not only has the defendant cited to no case law in support of this contention but it is entirely possible that Cosgel discriminated against Harmon on the basis of his age and chose to retaliate against him for filing his university complaint.
Next, the defendant argues that a causal connection is lacking for Fitzgerald because her disdain for Cosgel first began on May 8, 2013, when she received a performance evaluation from Cosgel, but Cosgel did not learn of Fitzgerald’s testimony to the diversity and equity office until May 16, 2013. The defendant cites to Fitzgerald’s and Cosgel’s deposition testimony and one other exhibit in support. Although Cosgel’s deposition testimony supports the defendant’s contention that, at the time Cosgel was interviewed by the office of diversity and equity about Harmon’s age discrimination complaint, Cosgel did not know that Fitzgerald had testified in support of Harmon’s university complaint, Fitzgerald’s affidavit creates a genuine issue of material fact as to that issue because she attests that when Cosgel returned from his interview with the diversity and equity office, Cosgel told her, " You threw me under the bus."
Citing to Knoblauch’s deposition testimony and a few other exhibits, the defendant argues that no causal connection exists between Knoblauch’s claims and her protected activity because similar alleged pejorative conduct occurred prior to the protected activity. Specifically, the defendant contends that Knoblauch conceded that she suffered bullying from Cosgel soon after he was appointed as the department head in 2010.
The defendant has not established the absence of a genuine issue of material fact as to whether a causal connection exists between Knoblauch’s claims and her protected activity because the cited deposition testimony reveals that she had problems with Cosgel during 2010 through 2011 with respect to her teaching assignments and his allegedly rude communication, but she also expressed that she had no issues with Cosgel during academic years 2011 to 2012 and 2012 to 2013 up until she testified with respect to Harmon’s university complaint. Furthermore, the defendant’s arguments that a causal connection is lacking because Knoblauch admitted that she did not inform the subsequent department head about her preferred courses and agreed to teach on Mondays, Wednesdays, and Fridays, or that Cosgel treated Knoblauch more favorably than her comparators pertain more to the materially adverse nature of Cosgel’s alleged retaliatory actions towards Knoblauch.
Accordingly, the defendant has not established the absence of genuine issues of material fact with respect to whether a causal connection exists between the plaintiffs’ alleged adverse employment actions and their protected activity.
D. Legitimate, Nonretaliatory Justifications
As with the plaintiffs’ age discrimination claim, the defendant has not put forth any legitimate, nonretaliatory reasons to explain why the defendant engaged in the alleged retaliatory acts against the plaintiffs. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120. Consequently, the defendant has failed to meet its initial burden, and genuine issues of material fact remain with respect to whether the defendant retaliated against the plaintiffs.
CONCLUSION
In accordance with the court’s above discussion, the defendant’s motion for summary judgment is denied.
(1) For an employer, by the employer or the employer’s agent, except in the ease of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the, individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness ... (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 ..."
(b) The commission, whenever it has reason to believe that any person has been engaged or is engaged in a discriminatory practice, may issue a complaint, except for a violation of subsection (a) of section 46a-80. (c) The commission, whenever it has any reason to believe that any contractor or subcontractor is not complying with antidiscrimination statutes or contract provisions required under section 4a-60, 4a-60a or 4a-60g or the provisions of sections 46a-68c to 46a-68f, inclusive may issue a complaint. (d) The commission may issue a complaint if: (1) An affirmative action plan filed pursuant to section 46a-68 is in violation of any of the provisions of section 4-61u or 4-61w, sections 46a-54 to 46a-64, inclusive, section 46a-64c or sections 46a-70 to 46a-78, inclusive; or (2) an agency, department, board or commission fails to submit an affirmative action plan required under section 46a-68. (e) Any employer whose employees, or any of them, refuse or threaten to refuse to comply with the provisions of section 46a-60 or 46a-81c may file with the commission a written complaint under oath asking for assistance by conciliation or other remedial action. (f) Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination, except that any complaint by a person claiming to be aggrieved by a violation of subsection (a) of section 46a-80 must be filed within thirty days of the alleged act of discrimination."
1 Additionally, the defendant argues that the filing of Harmon’s grievance in September 2012, to ensure that his publications were accepted as meeting the publication requirements, does not qualify as protected activity because his grievance was not a discrimination complaint. The plaintiffs do not make this argument in their memorandum of law in opposition, however, and, thus, the court need not address the issue.