Opinion
No. NNH-CV-09-5030106 S
July 12, 2010
CORRECTED MEMORANDUM OF DECISION
The plaintiff, Christopher Taylor, commenced this action against the defendant, State of Connecticut Department of Correction, pursuant to the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60, et seq.
The plaintiff has complied with all procedural prerequisites as set forth in General Statutes § 46a-60, et seq.
The plaintiff filed a one-count complaint alleging race discrimination and retaliation in violation of § 46a-60(a)(1)(4) of CFEPA. In his complaint, the plaintiff alleges that he has been passed over for an assignment to a unit manager position by the defendant due to his race and color. The plaintiff is an African-American male who has been employed by the defendant for eighteen years and has performed his duties more than satisfactorily. At all times mentioned in the complaint, the plaintiff held the position of Correctional Captain. Between the Spring of 2006 through the end of 2008, several unit manager positions became available. Each time, the plaintiff was passed over, and the position given to someone else who the plaintiff claims to be less qualified than him. The plaintiff further alleges that the defendant retaliated against him in response to a complaint of race discrimination which he filed with the State of Connecticut Department of Correction Affirmative Action Office on November 27, 2006 and with the Commission on Human Rights and Opportunities (CHRO) on June 27, 2007. The plaintiff complains that after he filed both complaints, he was no longer considered for advancement opportunities by the defendant and given the position of first shift unit manager. Additionally, the plaintiff alleges that he was denied funeral time, contrary to the department of corrections normal policy, and targeted in an investigation in retaliation for the complaints he filed.
The State of Connecticut Department of Correction denies the allegations in the plaintiff's complaint and claims by way of special defenses that ". . . [t]he plaintiff has failed to state a claim upon which relief can be granted . . . [a]ll or part of the plaintiff's claim is time-barred because he did not file a complaint of discrimination with the Connecticut Commission on Human Rights and Opportunities within 180 days of learning that he had been declined the position h[e] sought as required under C.G.S. § 46a-82(e)[; and] . . . [a]lthough the defendant denies any discrimination, if a jury was to find that a prohibited classification played any role in the decision, the defendants can avoid certain liability by showing that they would have taken the same action for a legitimate nondiscriminatory reason, namely that the plaintiff did not have the credentials for unit manager. See Levy v. CHRO, 236 Conn. 96, 671 A.2d 349 (1996); Adriani v. CHRO, 220 Conn. 307, 596 A.2d 426 (1991)." The court heard evidence on the case on February 10 and 11, 2010, and received post-trial proposed findings of fact and conclusions of law on March 11, 2010.
The plaintiff filed his CHRO complaint on June 27, 2007, and while he alleged that he was passed over for first shift unit manager in May 2006, he further alleges that he was subsequently passed over in 2007 and 2008. The plaintiff's claim therefore appears to be timely. Additionally, the defendant appears to have abandoned this defense since it was not raised during the course of the trial, nor briefed in its post-trial brief. "We 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 the 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 to be abandoned." State v. Vazquez, 119 Conn.App. 249, 252, 987 A.2d 1063 (2010).
FINDINGS OF FACT
The court makes the following findings of fact by a preponderance of the evidence. On or about June 1, 1990, the plaintiff, Captain Christopher Taylor, was hired by defendant as a Corrections Officer, and has worked for the defendant since that date. The plaintiff was initially assigned to the New Haven Correctional Center until November 1996 whereupon he was transferred to the Manson Youth Institute (MYI) and was employed there until 2000. The plaintiff transferred back to MYI in 2002 and was transferred to the Training Academy as a Training Lieutenant in 2004. In 2006 he was promoted to the rank of Captain and reassigned to MYI, where he has been assigned since that date. The plaintiff's evaluations have always been satisfactory or better. When the plaintiff was a training lieutenant he started in the field conducting training for veteran staff. He then moved into the training academy where he instructed new cadets and newly promoted lieutenants. He also captained exploration training and counselor training, created training lesson plans and evaluated training programs. The plaintiff received a Bachelor's Degree in sociology in 1999 from Trinity College, a Master's Degree in Sociology from Southern Connecticut State University in 2003 and a Master's Degree in Criminal Justice from the University of New Haven in 2008.
There are essentially two divisions within the DOC. The correctional or custody side essentially deals with security, keeping inmates safe and controlled. Correction officers, lieutenants and captains deal with keeping inmates safe, keeping inmates from injuring themselves, controlling their movement, making sure their schedules are followed, and making sure units are clean. The treatment side of the department is concerned with rehabilitation and mental health. Counselors, Counselor Supervisors and Correctional Treatment Officers deal with this side of the department. There are also unit managers on the treatment side and a deputy warden of treatment. The plaintiff has always worked on the custodial side of the department.
The plaintiff's professional goal within the Department of Corrections is to reach the rank of warden. The evidence demonstrates that the best way to advance within DOC is to gain exposure to all aspects of the DOC's work. The preponderance of the evidence further demonstrates that the first shift unit manager position is the best way to gain that exposure because it involves the counseling side of the department which is vital to the department's mission. The unit managers work only the first shift at MYI. Each shift is unique and there are differences between first shift and third shift which make the chances for further advancement greater. First shift experience is considered having more resources and the most valuable experience for those wishing to advance within the department. Captain Taylor aspired to work his way up the ranks and his professional goal was to one day become warden. The plaintiff has actively sought appointment to the position of unit manager since May 2006. His continued placement on third shift, however, has diminished his chances of reaching those goals before he reaches the age of retirement. Although it may not be an actual promotion on paper or in salary, the first shift unit manager position is the position where there is the most opportunity for exposure to the counseling side of the department and is therefore important for advancement purposes. The evidence clearly demonstrates that experience as a unit manager is beneficial to consideration for future advancement within the Correction Department.
There is no formal process for deciding who is assigned to what shift. This is detrimental to the Corrections community and should be remedied. The current process does not take all factors into account and fails to consider potentially important factors in its decisions. This system has not served well for Captain Taylor and does not serve well for the DOC community as a whole.
The defendant maintains that each shift is important, yet when asked why Captain Taylor could be pulled off of his normal third shift and placed on first shift for a time, Warden Whidden responded: "you really can't go without a second shift commander as easily as you can go without a third shift commander." (Tr. 2/11/10, p. 108) (Emphasis added). She also testified that in addition to second shift being more important than third shift, first shift was the priority shift. (Emphasis added.). Additionally, in reference to why she placed Captain Taylor on first shift for a time, she stated: "I felt that it was a developmental opportunity for him to get some experience and it was a good move for him to get some exposure." (Tr. 2/11/10, p. 116).
In 2006, when the plaintiff was promoted to captain and assigned to MYI, he was assigned to the position of Shift Commander for the second shift, which is from 3:00 p.m. to 11:00 p.m. Warden Whidden informed him that he would be assigned second shift until two captains nearing retirement retired. Upon their retirement, two additional captains would be appointed and the plaintiff would be transferred to first shift as a unit manager. (Tr., 2/10/2010, p. 14). Captain Taylor's shift preference was based on a number of factors, including familial and community obligations. In addition to being at a better time of day to aid in fulfilling familial obligations, first shift also offers unique opportunities for advancement that are not available on the other shifts. First shift is the busiest shift and offers the greatest opportunities for counseling. Captain Taylor felt that a first shift placement was important to diversify his experience and improve his chances for future promotions. Warden Whidden herself described the unit managers as "mini-warden[s] of [their] particular area." They do everything that a warden does, just on a smaller scale, including "managing any inmate issue that may come up, crisis intervention, referrals to programs." (Tr. 2/11/10, p. 100). She further expressed the importance of the unit manager position in her testimony, wherein she stated: "In my opinion, it was easier for me at that time to manage third shift with somebody in an acting capacity so that I could cover a day shift, high priority position as unit management." (Tr. 2/11/10, p. 108).
In the year 2006, following the plaintiff's promotion to Captain, two first shift unit manager positions opened and two lieutenants, from other facilities, who were promoted to captain after Captain Taylor, were placed in the first shift positions. The first open position was filled by Captain Rocco Sweat, a black male. Rocco Sweat was promoted from lieutenant to captain and simultaneously placed in the first shift position sometime in May 2006. The second open position was filled by Captain Philip Costanzo, a white male, who was promoted to captain and placed in the unit manager position in February 2007. Both Sweat and Constanza were promoted to Captain from lieutenant and immediately assigned as unit managers. Both Sweat and Constanza had unit manager experience. The plaintiff had been Captain for several months prior to Sweat's and Constanza's promotions and assignments.
Immediately following Sweat's assignment to unit manager, Captain Taylor inquired of Warden Whidden why he had not been offered first shift unit manager. She informed Captain Taylor that she had made her selection and that her decision was final. Captain Taylor informed Warden Whidden that he was going to "take his complaint to District Administrator, Mark Strange." (Tr., 2/10/2010, p. 16). The plaintiff complained to Strange who informed the plaintiff that he would not tell a warden how to run her facility. Due to familial and community obligations, and his inability to get a first shift position, Captain Taylor asked to be transferred from second shift to third shift so that he would be able to spend time with his family.
Upon learning that Philip Costanzo was being placed on first shift, Captain Taylor filed an Affirmative Action Complaint with the Connecticut Department of Correction on November 27, 2006. In his complaint, the plaintiff alleged that there had been a violation and/or act of discrimination that had occurred on or about May 23, 2006 and that another act would occur on January 8, 2007. The plaintiff further stated that he feared that the placement of Philip Costanzo in the position over him could be "in direct retaliation for [ ] contacting District Administrator Strange regarding the first incident . . ." (Exhibit 3). In August of 2007 Captain Taylor received a letter from the Affirmative Action Office stating that they found his allegations unsubstantiated.
After Captain Costanzo was assigned to the first shift position, the plaintiff filed a complaint with CHRO in which he alleged that the defendant "failed to promote him to the position of unit manager because of his race (African-American) and color (black)." The plaintiff further claimed that he had been retaliated against for filing his affirmative action complaints. After the filing of the plaintiff's affirmative action complaint with the department in November 2006, Philip Costanzo was placed in the unit manager position in February 2007. Since Costanza's assignment, there have been several other first shift position openings which have not gone to Captain Taylor. In 2007, Captain Terri Hagans, an African-American female, was placed on first shift as a unit manager. After she had been placed in that position, one of the regular unit managers had surgery and was out of work for a time. Warden Whidden temporarily assigned Captain Taylor to that position, and for four to six months he served as a unit manager on first shift. During this period, Captain Taylor was evaluated and was assessed as performing well in the position.
Despite Captain Taylor's newly acquired experience in the unit manager position and positive reviews, when Captain Hagans transferred out of MYI, her first shift position was not given to Captain Taylor but was instead given to Captain Borges who was transferred in from Garner Correctional on or around March or May of 2008. (Ex., 7, p. 8, Tr., 73, 121). It was also at this time that Captain Mick Kelly was made a unit manager and again, Captain Taylor was not assigned the unit manager position, after just having temporarily filled the unit manager position and given good reviews for his work performed while temporarily fulfilling that position. (Tr., 2/11/10, p. 121). Another position became available during this time and Captain Taylor was once again passed over, this time in favor of Counselor Supervisor Ann Valeriano. Id. When Warden Whidden denied the plaintiff the unit manager position in 2006, her reason was that Captain Taylor needed "quiet time" on the third shift to adjust to his return to MYI. Yet, despite the fact that Captain Taylor had almost two years of quiet time on third shift when Borges, Kelly and Valeriano had been made unit managers in 2008, he was not considered for that position. In fact, Captain Taylor's "quiet time" on third shift made him less viable for advancement opportunities than captains working on first or second shift as unit managers. (Plaintiff's Ex. 7). In addition, the full scope of the plaintiff's experience was not considered when he was denied the unit manager position in 2006 and in 2008. The plaintiff had far more formal education than Sweat or Constanza, but education was not considered by the warden when choosing a candidate for unit manager. Warden Whidden was not aware of the plaintiff's experience at the New Haven Correctional Center. The plaintiff's overtime shifts that he worked at MYI during his tenure at the training center were never considered as relevant experience. The plaintiff's CHRO complaint investigation was ongoing when he was rejected for the unit manager position in 2008.
As of February 2010, at MYI there were five unit managers, of those five there was one African-American male and one African-American female. From 2006 through February 2010, there have been six African-American unit managers at MYI.
In addition to being passed over for unit manager, Captain Taylor claims that his denial of funeral time was also in retaliation to the filing of his affirmative action complaint and CHRO complaint. In January 2010 Captain Taylor was denied funeral time pursuant to The Regulations of Connecticut State Agencies § 5-247-4, which allows state employees to use their sick time to attend and return from funerals. This refusal seems to have been done in accordance with the proscribed state regulations.
He also claimed that he was the target of an investigation. Captain Taylor does not appear to have been the target of any investigation by the department. Although he was questioned as a part of an investigation, it appears that the investigation in question had to do with a claim of excessive use of force and did not include the plaintiff in any significant way.
This court finds by a preponderance of the evidence that Captain Taylor was not discriminated against based on race. However, this court does find by a preponderance of the evidence that the defendant retaliated against Captain Taylor because he filed a complaint of racial discrimination with the DOC affirmative action office and CHRO. The overwhelming evidence demonstrates that after Captain Taylor filed his affirmative action complaint in November 2006 and his CHRO complaint in June 2007, he was never considered a viable candidate for unit manager despite his numerous credentials. The defendant repeatedly refused to assign Captain Taylor to the first shift unit manager position despite Captain Taylor's qualifications and, the opportunity to do so. After having been repeatedly turned down for the first shift unit manager position, Captain Taylor voluntarily chose to work the third shift because of family obligations. This decision is now the reason given by the defendant why candidates are more qualified than Captain Taylor for the first shift unit manager positions.
DISCUSSION A
Unlawful Race Discrimination pursuant to theConnecticut Fair Employment
Practices Act (CFEPA) § 46a-60(a)(1)
Connecticut Fair Employment Practices Act (CFEPA) provides, in relevant part, "It shall be a discriminatory practice in violation of this section: For an employer . . . to discriminate against such individual in compensation or terms, conditions or privileges of employment because of the individual's race, color, . . . national origin, . . . Mental retardation, learning disability or physical disability, including but not limited to blindness." General Statutes § 46a-60(a)(1).
In Connecticut, the courts "review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996). The courts look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989).
When evaluating claims for racial discrimination based on adverse employment action, Connecticut uses the burden shifting analysis enunciated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and adopted by the Connecticut Supreme Court in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990). This analysis provides useful guidance to those who are faced with the difficult task of determining intent in complicated discrimination cases. It is the plaintiff's burden to prove that the defendant intentionally discriminated against him because of his race. Id.
The McDonnell Douglas burden shifting analysis contains three steps: first, the employee must make a prima facie case of discrimination; second, the employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question; third, the burden shifts back to the employee to demonstrate that the reason proferred by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002).
1) Prima facie case of discrimination
Employing the McDonnell Douglas framework, the court first considers whether the plaintiff has met his burden of proving a prima facie case of illegal racial discrimination as alleged in his complaint. The establishment of a prima facie case creates a rebuttable presumption of discriminatory intent. Lieberman v. Gant, 630 F.2d 60, 63 (2d Cir. 1980). There are four elements to a prima facie case where the aggrieved party is alleging illegal discrimination: (1) that he belongs to a protected class; (2) that he was qualified for the position; (3) that he suffered adverse employment action; and (4) that the adverse employment action occurred under circumstances permitting an inference of discrimination. (Citation omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400-01, 880 A.2d 151 (2005).
Captain Christopher Taylor is a black, African-American male and therefore falls within a protected class. He held the position of Captain, and as such met the basic qualifications for the unit manager position. This court further finds based on a preponderance of the credible evidence that not only does Captain Taylor meet the basic qualifications for the unit manager position, but that his credentials exceed the basic qualifications for the position. The plaintiff has therefore satisfied the first two elements for a prima facie case.
Contrary to the defendant's claim, this court finds by a preponderance of the evidence that the plaintiff did suffer an adverse employment action as a result of the defendant's decision not to assign him to a unit manager position. An adverse employment action can be found where an employee is moved from a position which provides prestige and opportunity for advancement, to a less prestigious placement even when there is no reduction in pay. De La Cruz v. New York City Human Res. Admin. Dep't of Soc. Serv., 82 F.3d 16, 21 (2d Cir. 1996). In De La Cruz, although there was proof that the unit that the plaintiff was transferred to was equal in status to the unit he had previously been assigned, the court found that the transfer could have altered the terms and conditions of his employment in a negative way and could constitute an adverse employment action. Id. The court in De La Cruz found the appellant's case to be "quite thin" in this respect, however they felt that it was enough to establish a prima facie case. Id. In De La Cruz the plaintiff was moved into a position that was equal to his civil service rank out of one that was above it and was not given a pay cut.
In Charles v. State, the court recognized that being given a less distinguishable title can constitute an adverse employment action. Charles v. State, United States District Court, D.Connecticut, Docket No. 3: 06CV0 1923 (DJS), June 2, 2008. Citing Second Circuit precedent, including De La Cruz, the court in Charles stated: "In the Second Circuit, employment actions that have been deemed adverse employment actions for the purposes of Title VII discrimination claims include a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguishable title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation . . . [A] lateral transfer that does not result in a reduction in pay or benefits may be an adverse employment action so long as the transfer alters the terms and conditions of the plaintiff's employment in a materially negative way. Patrolmen's Benevolent Ass'n of the City of New York v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002), (citing de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Serv., 82 F.3d 16, 21 (2d Cir. 1996) (transfer to `less prestigious' unit of social services department with reduced opportunities for professional growth was an adverse employment action); Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d Cir. 1980) (transfer of experienced middle school art teacher to elementary school constituted adverse action). If an employee earns the same salary, has the same benefits, works the same hours . . . and has the same opportunities for promotion following a transfer then there is no adverse employment action . . . Pimentel v. City of New York, No. 00 CIV. 326 (SAS), 2002 WL 977535, at *3 (S.D.N.Y.) (May 14, 2002) (quoting Garber v. New York City Police Dept., No. 95 Civ. 2516, 1997 WL 525396, at *4 (S.D.N.Y. August 22, 1997)." Charles, supra, 8-9. In Charles, the court found that there was not an adverse employment action where the plaintiff was denied a transfer which was given to someone with less seniority. Charles argued that not getting the transfer hindered her career progression and was therefore an adverse employment action. The plaintiff however, failed to put forward any evidence which suggested that her failure in obtaining the transfer had in any way hurt her chances for promotion. Additionally, no evidence was presented showing that one position would be any more prestigious than the other.
Unlike the plaintiff in Charles, Captain Taylor has demonstrated by a preponderance of the evidence that the first shift unit manager position is an opportunity for career advancement. As discussed supra, Warden Whidden described the unit manager position as "mini wardens of their particular area." She further described the first shift unit manager position as a "priority shift". The credible evidence further demonstrates that the first shift unit manager position is a position that allows greater opportunities for professional growth and is beneficial for future advancement within the DOC. Captain Taylor was assured when he transferred into Manson Youth Institute that a unit manager position was forthcoming. (Tr., 2/10/10, p. 14). Yet, in the year after his transfer he had to watch while two other Captains were placed into the preferred first shift position. Each shift is different, with the first shift being the most prestigious. Furthermore, even if Captain Taylor had not asked to be moved to a third shift position he would still have suffered an adverse employment action. The terms and conditions of his employment were negatively affected by his inability to work the first shift. This court therefore finds by a preponderance of the evidence that Captain Taylor would have had greater opportunities working on first shift as a unit manager then he would on either of the other two shifts.
Like the plaintiff in De La Cruz, the terms and conditions of Captain Taylor's employment were affected in a negative way. Captain Taylor's case, however, unlike the case presented in De La Cruz, is not thin. In De La Cruz, the plaintiff was being moved from a placement which was above his rank to one that was in his rank, one that he was better qualified for. The DOC in the case before this court, failed to place Captain Taylor in a position which he was well qualified for. His chances for promotion were adversely affected by the defendant's failure to assign him to the first shift unit manager position because the position would have provided him with the diversity in experience that would be important in a candidate's career growth, and opportunity for advancement. Additionally, Warden Feliciano admitted, during his testimony that there is a great deal more resources on first shift than on third shift, thus, making it the preferable shift.
Notwithstanding the defendant's argument that neither position was more prestigious than the other, this court finds by a preponderance of the evidence that the first shift unit manager position is more prestigious and offers better opportunities for advancement than either of the other two shifts. Most of the counseling aspect of the job happens on first shift and Captain Taylor's inability to obtain a long-term first shift placement has had a negative impact on his ability to diversify his experience for career advancement.
This court finds that Captain Taylor did suffer an adverse employment action when the DOC failed to assign him to the position of first shift unit manager and therefore the third element of the prima facie case has been met.
Although the plaintiff has satisfied the first three elements of the test, he has failed to prove that the conduct of the defendant in not choosing him for the unit manager position, gave rise to an inference of discrimination against him because of his race and/or color.
The plaintiff alleged that Warden Whidden referred to inappropriate slang when interacting with the inmates. Warden Whidden admitted to using the phrase "all good in the hood" when addressing the inmates. She explained that this was her way of attempting to connect with adolescent inner city inmates at a youth facility. While Warden Whidden should have referred to the inmates using different language, because her phrase assumes that all inmates are from the hood, there is no evidence to suggest an inference of racial animus. In addition, the evidence demonstrates that Warden Whidden assigned two African Americans as unit managers and, there had been a total of six African Americans assigned as unit managers from 2006 through the present. The plaintiff has therefore failed to produce evidence that he was denied the unit manager position under circumstances giving rise to an inference of discrimination against him as an African American. Since the plaintiff has failed to establish a prima facie case of race and color discrimination, this court need not consider the remaining two steps of the McDonnell Douglas burden shifting analysis and finds in favor of the defendant on the plaintiff's claim of racial discrimination in violation of § 46a-60(a)(1) of CFEPA.
B Retaliation pursuant to § 46a-60(a)(4)
Connecticut General Statutes § 46a-60(a)(4) provides in relevant part that it is a discriminatory action in violation of this section "[f]or 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 . . ."
Like discrimination claims, when considering retaliation claims Connecticut courts look to federal precedent. Levy v. Commission on Human Rights Opportunities, supra. To establish a prima facie case of retaliation, an employee must show: 1) participation in a protected activity; 2) the defendant was aware of the activity; 3) the plaintiff suffered an adverse employment action and 4) a causal connection between the protected activity and the adverse action. Terry v. Ashcroft, supra, 336 F.3d 141; see also Bramwell v. State, (Conn.Super. 2002) Superior Court, judicial district of New Britain at New Britain, Docket No. 970481200 (March 28, 2002, Kocay, J.) aff'd, Bramwell v. Dept. of Correction, 82 Conn.App. 483, 844 A.2d 957. Upon such a showing, the defendant must again demonstrate legitimate reasons for its actions; whereupon the plaintiff bears the burden of showing that the defendant's explanations are a pretext for a true discriminatory or retaliatory motive. The defendant does not dispute that the plaintiff has met the first two elements for a prima facie case of retaliation. However, the defendant claims that the plaintiff has not met his burden with respect to elements three and four.
The United States Supreme Court addressed the nature of the "adverse employment action" requirement of the Title VII retaliation provision in Burlington Northern Santa Fe Railway Co. v. White, 548 U.S 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The court first rejected the argument that the "employer's actions prohibited by the anti-discrimination provision should . . . be limited to conduct that affects the employee's compensation, terms, conditions, or privileges of employment." (Internal quotation marks omitted.) Burlington, supra, 548 U.S. 61. Instead, the court concluded, "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related acts and harm." Id., 67. The court then considered, "the level of seriousness to which this harm must rise before it becomes actionable retaliation." Id. The court concluded that a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context, means such action might have dissuaded a reasonable worker from making or supporting a charge of discrimination. (Internal quotation marks omitted; citations omitted.). Id., 68. The court noted that "we speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII we have said, does not set forth a general civility code for the American workplace. An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience . . . (noting that courts have held that personality conflicts at work that generate antipathy and `snubbing' by supervisors and co-workers are not actionable under § 704(a)). The anti-retaliation provision seeks to prevent employer interference with `unfettered access' to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely `to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.
"We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g. (constructive discharge doctrine); (hostile work environment doctrine).
"We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. `The real social impact of workplace behavior often depends on a constellation of surroundings, circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.' A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an `act that would be immaterial in some situations is material in others.'
"Finally, we note that contrary to the claim of the concurrence, this standard does not require a reviewing court or jury to consider `the nature of the discrimination that led to the filing of the charge.' Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination." Burlington, supra, 68-70.
The plaintiff here engaged in a protected activity when he filed an affirmative action complaint with the DOC and a complaint with CHRO. The defendants do not contend that they were unaware of the filed complaints and therefore as previously stated the first two elements have been met. With respect to the third element, this court finds that the plaintiff has met his burden in establishing that the defendant's failure on numerous occasions, subsequent to the filing of his discrimination complaints, to assign him to a first shift unit manager position constitutes an adverse employment action. As enunciated in Burlington, context matters, and, "the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships." Id., 69. (Emphasis added). Here, the relevant context is as follows: The first shift unit manager position is a clear path to advancement. Warden Whidden, was aware of this and described the unit managers as "mini wardens" and that first shift unit manager was the "priority shift". Warden Feliciano also acknowledged that the first shift had "more resources" than the other two shifts. The plaintiff was assured that a first shift unit manager position was forthcoming. When he was passed over, he filed a complaint with the DOC affirmative action office in November 2006 and a complaint with CHRO in June 2007. Since the filing of the complaints, the defendants failed, on several occasions, to transfer Captain Taylor from third shift to a first shift unit manager position which is a more elite position with greater opportunities for advancement. The defendant's reasons for denying Captain Taylor the first shift unit manager position are contradictory and not credible. Warden Whidden stated that one of the reasons the plaintiff was not assigned to the first shift position was because he needed to adjust to working within the inmate population again, and she highlighted the third shift as a good way for the plaintiff to use his "quiet time" to reacquaint himself with the inmate population. Yet, in 2007 and 2008, when unit manager positions were assigned, and, after the plaintiff had been on third shift for almost two years, the plaintiff was again not considered a viable candidate for a unit manager assignment at that time. Astonishingly, the reason given for denying him a unit manager position was his extended time on third shift which is a quieter shift. In addition, during the time that unit manager positions were assigned in 2008, the plaintiff had been temporarily assigned as first shift unit manager, where his reviews during this time were good. Yet, he was not considered a viable candidate for the position. The plaintiff's qualifications for a unit manager position far exceed the basic qualification for that position, namely to be a captain. As previously discussed, in addition to other relevant qualifications that were not taken into account, the plaintiff has educational credentials that were not taken into consideration when being considered for the unit manager position. Warden did not consider Captain Taylor's previous experience at the New Haven Correctional Center or his overtime shifts he worked at the training academy. Nor was his temporary placement in the unit manager position for four to six months taken into account. One of the reasons the defendant gave for denying the plaintiff's claim is that he is not qualified, yet, interestingly, when Captain Taylor inquired of Warden Whidden in 2006, why he was not selected for the unit manager position, she replied, "[a]lthough Unit Management [is] not rocket science, Captain Sweat was her choice." (Plaintiff's Ex. 3).
In viewing all of the evidence in context, it is clear, that the defendant's refusal to consider the plaintiff a viable candidate for unit manager is not a "nonactionable petty slight" as described in Burlington, but rather challenged action that a reasonable employee would find adverse, and, which in the context of the facts of this case, would dissuade a reasonable worker from making or supporting a charge of discrimination. The unit manager position is the path to advancement, and the evidence demonstrates that this is widely known amongst those in DOC. Common sense suggests that one way of deterring captains seeking advancement via unit managers' positions from filing a discrimination complaint would be to stunt their professional advancement within the department by not giving them the highly sought after and competitive elite assignment, namely, the first shift unit manager position. This court therefore finds that the defendant's failure to assign Captain Taylor to a first shift unit manager position is an adverse employment action for the reasons stated above, and therefore the third element has been met. The next question that this court must address is whether the plaintiff has met the fourth element, namely, whether there is a causal connection between the protected activity and the adverse action.
This court finds that the plaintiff has presented sufficient evidence to show that the protected activity and the adverse employment action were connected.
"Causation is proven by showing that the protected activity was temporally close or followed closely by discriminatory treatment or by circumstances that evidence disparate treatment between the plaintiff and other similarly situated employees, or through evidence of retaliatory animus directed at the plaintiff by the defendant." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). "A causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action . . . but the inquiry into whether temporal proximity establishes causation is factual in nature. There is no bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an allegedly retaliatory action. The trier of fact, using the evidence at its disposal and considering the unique circumstances of each case, is in the best position to make an individualized determination of whether the temporal relationship between an employee's protected activity and an adverse action is causally related." Gooden v. Department of Correction, Superior Court, judicial district of Hartford at Hartford, Docket No. 020813590 (June 23, 2008, Elgo, J.) See also, Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999).
Captain Taylor filed his affirmative action complaint with the department in November 2006 and his CHRO complaint in June 2007. Constanza was assigned unit manager in February 2007, Hagans in 2007 and Borges, Kelly and Valeriano in March or May of 2008. In March or May of 2008 when Captain Taylor was again denied the position of unit manager, the investigation of his CHRO complaint filed in June 2007 was ongoing. While there is a gap between the time Captain Taylor filed his complaints and the denials of unit manager positions sought in 2007 and 2008, it is not too temporally disconnected to support an inference of retaliation. Three months had elapsed between the time the plaintiff filed his complaint with the DOC in November 2006 and Costanza's assignment to unit manager in February 2007. Hagans was also assigned to unit manager in 2007. In March or May of 2008, when Borges, Kelly and Valeriano were assigned unit managers, the investigation of the plaintiff's CHRO complaint was still ongoing. In addition, there is no credible evidence to suggest that the plaintiff was not qualified for the unit manager position. With the exception of minor attendance issues, the plaintiff's work performance was evaluated at satisfactory or better. Additionally, at the time the plaintiff was temporarily assigned to the unit manager position in March 2008 his work performance was evaluated as being good. There is no credible evidence that there were reasons other than the plaintiff's filing of the complaints that caused the defendant to deny him the unit manager position. See, e.g. Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (eight-month gap between filing of EEOC complaint and retaliatory action suggested a causal relationship); Dupee v. Klaff's, Inc., 462 F.Sup.2d 233, 240-41 (termination 13 months after plaintiff filed his workers' compensation claim). Thus, the plaintiff has adduced sufficient evidence to support a causal connection between his filing of the discrimination complaints and denial of the unit manager positions sought. The plaintiff has therefore satisfied the fourth element necessary to make out a prima facie case of retaliation and thus, has established a prima facie case of retaliation.
Once a plaintiff has succeeded in establishing a prima facie case, the burden of production shifts to the defendant. Levy, supra, 236 Conn. 106. "If a plaintiff sustains the initial burden, a presumption of retaliation arises. In turn, under the second step of the burden-shifting analysis, the onus falls on [the defendant] to articulate a legitimate, non-retaliatory reason for the adverse . . . action . . . Finally, as for the third step, once [a defendant] offers such proof, the presumption of retaliation dissipates and [the plaintiff] must show that retaliation was a substantial reason for the adverse . . . action." (Citations omitted.) Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2nd Cir. 2005). See also Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009). In order to avoid a finding of liability, the defendant must prove by a preponderance of the evidence that it would have made the same decisions even were it not for the protected action. Levy, supra, 236 Conn. 106. To show this, reasons for the plaintiff's rejection need to be clearly set forth. Texas Dept. of Comm'n Affairs v. Burdine, 450 U.S. 248, 255. If the defendant provides an explanation that is legally sufficient to justify a judgment for the defendant, the presumption raised by the prima facie case is rebutted and the factual inquiry proceeds to the next level. Id.
In Ayantola v. Bd. Trustees of Tech. Colleges, supra, 116 Conn.App. 537, the Appellate Court, in affirming the decision of the trial court noted that "the court determined that the plaintiff did not prove a causal connection between the protected activity (filing a complaint with the commission in 2003) and the adverse employment action (denial of promotion). The court stated: `The reason for the plaintiff's nonpromotion in [June] 2004 was the spate of student complaints which cropped up on second semester of 2004. In a school such as this, the students are customers who are valuable and in demand. Student complaints are a valid concern of the administration and are a sufficient nondiscriminatory reason for denying promotion.'" Although the defendant was qualified for the position and was denied it, that denial was not due to the complaint he had filed. Rather, the denial was due to a large number of student complaints about him. In a school where students are paying to attend and take classes, the student's opinions with regards to the teachers are important in determining whether a promotion should be given. The trial court in Ayantola, whose decision the Appellate Court affirmed decided that this was a sufficient non-discriminatory reason for denying promotion.
Here, the defendants claim that "they would have taken the same action (denial of unit manager position) for a legitimate nondiscriminatory reason, namely that the plaintiff did not have the credentials for unit manager." (Defendant's Answer).
Unlike the plaintiff in Ayantola, the defendants in this case have not demonstrated by a preponderance of the credible evidence that the plaintiff's performance of his job or his qualifications in any way hurt his chances at being assigned to the position of unit manager. To the contrary, Captain Taylor was given all positive reviews of his work product and was given more responsibilities than managers of other shifts. The defendants claim that the individuals who were placed in the position over the defendant were qualified for the position, and the evidence is consistent with this, however, they have not proven that plaintiff is unqualified or that the applicant's who were given the job were more qualified.
The defendant makes several arguments for why others were placed in the position over the plaintiff, however, many of their reasons are contradictory and therefore simply not credible. The defendants claim, that because Captain Taylor had been working in the Training Institute for the previous several years that he needed an adjustment period. Warden Whidden stated that third shift would be good for him because it would give him the "quiet time" he needed to readjust to working with the prison population. The defendants further argue that although Captain Taylor may have greater formal educational qualifications than others placed in the position, they did not value those qualifications as greatly as they valued other factors. However, Warden Whidden admitted that she did not consider the full scope of Captain Taylor's experience. There is no formal process for assigning unit manager positions. When the plaintiff was not considered for the unit manager position in 2006, Warden Whidden's reason was because she felt the plaintiff needed to adjust to working within the prison population again and that the third shift would be a good way for him to use his quiet time and to reacquaint himself with the prison population. However, in March 2008 when the plaintiff again sought the unit manager position, the reason given by the Warden was the plaintiff's third shift assignment.
As a reason for not placing Captain Taylor into a temporarily available position as unit manager, Warden Feliciano testified that he needed him on third shift. Warden Feliciano testified that it was less important to fill in the position of unit manager than it was to keep Captain Taylor on his third shift position. (Tr. 2/11/10, p. 46). Warden Whidden, on the other hand, had an opposite belief on this matter, believing that first shift was the most important shift. (Tr. 2/11/10, p. 109.)
Although the defendant's reasons, while not compelling, are enough to rebut the presumption of retaliation, they are pretextual. Once the defendants have rebutted the presumption of retaliation, the burden returns to the plaintiff to show that the reasons given by the defendant were pretextual and that retaliation was a substantial reason for the adverse action. Blinkoff v. CHRO, Superior Court, judicial district of New Britain at New Britain, Docket No. 08 4019232 (Cohn, J.) (2009).
Where there is a legitimate non-discriminatory reason for the action in question the court will find that the reasoning is not pretextual. Id. In Blinkoff, the court found that the city's refusal to purchase products from the plaintiff while she lacked her special operations permit was legitimate and non-discriminatory. The plaintiff in Blinkoff failed to file a timely application for a permit and suffered the consequences of those actions.
The case before this court does not involve a situation that was created by the plaintiff. In addition, although the defendant gives several reasons why the plaintiff was not given the position of unit manager, their reasons, as discussed, supra, are contradictory, not credible, and therefore pretextual. Thus, the real reason for the defendant not assigning the plaintiff the first shift unit manager position was retaliatory.
Several unit manager positions have been switched around since this litigation began. Two unit managers were transferred in from other facilities and placed in the unit manager position at MYI. Warden Whidden explained that she felt obligated to place Captain Borges in a first shift position because she would not have come over without that placement, and it was common practice to try and move people over on the same shift they had worked at previous facilities. Yet, in the case of Captain Taylor, that did not happen. Captain Taylor had been working first shift at his last assignment and moved over to MYI on second shift with assurances that he would soon be moved to first shift. When that did not happen he was forced to switch to third shift to meet family obligations which is now the reason the defendant claims he is not a viable candidate for unit manager. The court cannot find that the numerous contradictory reasons given by the defendant for its failure to assign Captain Taylor to a first shift unit manager position are legitimate nondiscriminatory reasons. The court therefore finds, based upon a preponderance of the credible evidence, that the defendant retaliated against the plaintiff in violation of General Statutes § 46a-60(a)(4) when it did not assign the plaintiff to a first shift unit manager position. Accordingly, the court finds in favor of the plaintiff on his claim of retaliation.
C Damages
The plaintiff seeks as damages, reassignment to a first shift unit manager position, fair, just and reasonable compensation for his loss of promotional opportunities, and the front pay associated therewith, including retirement benefits and a reasonable attorneys fee.
General Statutes § 46a-104 provides in relevant part: "The court may grant a complainant in an action brought in accordance with Section 46a-100 such legal and equitable relief which it deems appropriate including but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs."
General Statutes § 46a-100 provides in relevant part: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with Section 46a-82 and who has obtained a release from the commission in accordance with Section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford."
As the court has ruled, the plaintiff has put forth evidence to demonstrate that the first shift unit manager position within DOC is an assignment where there is opportunity for career growth and advancement within the DOC. The plaintiff further demonstrated that because he filed complaints of discrimination, adverse employment action was taken against him in the form of denial of a unit manager position, thereby denying his opportunity for career advancement within the DOC.
While the plaintiff has not put forth evidence to demonstrate that there was an actual monetary loss associated with the defendant's adverse employment action, he has demonstrated that denial by the defendant, of assignment to the first shift unit manager position is a denial of career growth and opportunity for advancement within the DOC. The court therefore finds that the plaintiff, pursuant to § 46a-104, is entitled to equitable relief in the form of reassignment to a first shift unit manager position at MYI.
The plaintiff seeks damages in the form of front pay. "`Front pay' has been defined as `an award for a reasonable future period required for the victim to reestablish her rightful place in the job market' . . . Courts have permitted front pay recovery in discrimination cases for conduct in violation of Title VII of the civil rights act of 1964 . . . The remedy of front pay `first appeared in 1973 in a Title VII case' . . . `It is a special remedy, not necessarily warranted in every case but reserved for only the most egregious circumstances . . . It is not intended to be punitive . . . or to provide an employee a windfall . . .' The Second Circuit Court of Appeals has stated: `[W]e think that front pay is, in limited circumstances, an appropriate remedy under the [act]. It serves a necessary role in making victims of discrimination whole in cases where the fact finder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment.'" Barry v. Posi-Seal International, Inc. (citations omitted) 36 Conn.App. 1, 22, n. 2, 3, 5, 6 and 7, 647 A.2d 1031 (1994).
The plaintiff here has not put forth evidence to support a claim for front pay and therefore the claim is denied.
The statute does allow for a reasonable attorneys fee and upon the submission by plaintiff's counsel of affidavits and other evidence in support of a claim for attorneys fees the court will consider it.
CONCLUSION
The court finds in favor of the defendant on the plaintiff's claim of race discrimination, and in favor of the plaintiff on his claim for retaliation. In accordance with General Statutes § 46a-104, the court orders the Department, no later than thirty (30) days from the date of entry of judgment, to reassign Captain Christopher Taylor to a permanent unit manager position on the first shift with all benefits associated with that position including but not limited to retirement benefits.
Upon submission by the plaintiff's counsel of appropriate affidavits and other evidence, the court will consider a reasonable attorney fee. See Perez v. DL Tractor Trailer Sch., 117 Conn.App. 680, 700-07 (regarding reasonable attorneys fees in civil rights cases).
The plaintiff's claim for front pay is denied.