Opinion
FBTCV156051925
11-16-2016
Ernesto Velazquez v. State of Connecticut Department of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Edward T. Krumeich, J.
The State Department of Correction (" DOC") has moved for summary judgment to dismiss discrimination claims made by Ernesto Velazquez (" Velazquez"), a former corrections officer. Velazquez has alleged that he was discriminated against as a homosexual in violation of C.G.S. § 46a-81c, directly and by a hostile work environment based on his sexual orientation. He alleges he was retaliated against by reason of his discrimination complaints in that his status on resignation was changed to " not in good standing." The DOC has denied the claims and has asserted special defenses, including that certain discriminatory acts alleged are time-barred under C.G.S. § 46a-82 and that plaintiff failed to allege the proper statute for his retaliation claim.
For the reasons stated below, the motion for summary judgment is granted in part and denied in part.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting HO.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
Factual Background
Review of the pleadings and evidence submitted by the parties disclose the following undisputed facts material to this motion.
Velazquez worked for the DOC as a corrections officer for fourteen years. Starting in March 2012, and continuing on October 12, 2013, October 29, 2013 and June 7, 2014, plaintiff alleges that he was the victim of name-calling and derogatory and demeaning references because of his sexual orientation by other corrections officers, sometimes in front of inmates. During this period he was transferred by voluntary transfers from the Bridgeport Correctional Facility (" Bridgeport") to the New Haven Correctional Center (" New Haven") on March 20, 2012, from there to the York Correctional Institution (" York") on November 2, 2012, and from there to the Garner Correctional Institution (" Garner") in Newtown on October 18, 2013. In August 2014 Velasquez was transferred from Garner to the Hartford Correctional Center (" Hartford") on a temporary basis during the investigation into the latest incident. On August 14, 2014, Velasquez submitted his resignation, effective that day.
Velasquez retained his same job title, job duties, salary and benefits after the transfers. After the June 7, 2014, incident Velasquez requested a transfer from Garner to Transportation North or the University of Connecticut. Velasquez also requested a transfer from Garner to the Northern Correction Institution in Somers, the Central Transportation Unit or the Manson Youth Institution, which the DOC declined for reasons related to the applicable collective bargaining agreement (i.e. lists of corrections officers who wished to transfer to those facilities).
Velasquez had previously resigned on June 25, 2014, by submitting his resignation effective on July 9, 2014, but that resignation was rescinded on July 2, 2014, and he requested a temporary transfer during the investigation. Velasquez alleges that he rescinded that resignation because an arrangement was made to transfer him to " Mansfield youth facility in Cheshire, " but instead he was assigned to Hartford.
Velasquez alleged a continuing pattern of abuse and harassment by identified correction officers from 2012 to 2014 that followed him from institution to institution as the hostility toward him was taken up by new actors when he changed facilities. The DOC Affirmative Action Unit investigated the incidents involving Savoie and Castro at Bridgeport and the investigator found the claims to be unsubstantiated. Plaintiff's supervisor's investigation of the incident at New Haven involving Short and Dejesus resulted in a report, reviewed by the Warden and Deputy Warden, that concluded no hostilities occurred towards Plaintiff. A lieutenant at New Haven completed an incident report about Hollis, later reviewed by a member of the DOC's Human Resources Department, who concluded the incident did not rise to the level of workplace violence. A lieutenant at Garner reviewed all statements about the Columbo incident and found no misconduct by Columbo. The Affirmative Action Unit investigated the Legassey incident at Garner and the investigator concluded the claim was unsubstantiated. Velasquez filed a complaint with the Commission on Human Rights and Opportunities (" CHRO") on September 4, 2014.
Paragraph 5 of the Complaint alleges the following acts of harassment:
The CHRO Complaint Was Not Timely for Events Prior to March 8, 2014
Connecticut General Statutes § 46a-82(f) states: " [a]ny complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ."
Velasquez did not file any CHRO complaints until September 4, 2014. Therefore unless he can show continuing acts of discrimination that culminated in his resignation on August 20, 2014, the earlier incidents are time barred. See Williams v. CHRO, 257 Conn. 258, 288-89, 777 A.2d 645 (2002) (180-day time limitation is mandatory).
Claims of hostile work environment typically do span a period greater than 180 days and are not barred " [p]rovided that an act contributing to the claim occurs within the filing period." Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 112-13, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (" Morgan "). " Nevertheless, the Supreme Court in Morgan also recognized that in certain circumstances, a series of discrete events spread over a long period of time could not be considered a single unlawful hostile work environment practice." Coudert v. Janney Montgomery Scott, LLC, 2005 WL 1563325 *7 (D.Conn. 2005).
" Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." 'In order for the time period to commence with the discharge, '[a plaintiff] should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment.' [A plaintiff] could not use a termination that fell within the limitations period to pull in the time-barred discriminatory act. Nor could a time-barred act justify filing a charge concerning a termination that was not independently discriminatory." Morgan, 536 U.S. at 112-13 (citations omitted).
In Coudert the District Court recognized there are " 'discontinuous' hostile work environment claims, where the alleged acts of discrimination are not sufficiently related. Specifically, the case law establishes that when there is a significant gap in time between time-barred acts of alleged discrimination and timely allegations, or when the alleged discrimination involves different supervisors and co-workers in different offices, the continuity of an alleged hostile work environment claim may be destroyed." Id. at 8 citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 568 n.4 (2d Cir. 2000), and other cases cited. The Coudert Court found that plaintiff had not produced evidence of a link between the timely discriminatory acts and those alleged to have occurred at a different time and location involving different supervisors and co-workers. " Because Ms. Coudert has been subject to two distinct periods of alleged harassment by two separate supervisors in two separate offices, she cannot claim a continuing violation constituting one unlawful hostile work environment practice by Defendant. Accordingly, Ms. Coudert may not rely upon any of the alleged untimely discriminatory acts from the Darien office in support of her timely hostile work environment claims involving the Fairfield office, though in considering her hostile work environment claim, the Court will consider all of the alleged conduct occurring during Ms. Coudert's tenure at the Fairfield office." Id. at 9.
In Cruz the Second Circuit noted the time lag between the alleged hostile acts and observed " that there is no indication that the two employees acted in concert, and that the fact that two individuals are engaged in similar discriminatory behavior is not enough to demonstrate a discriminatory policy or practice where the record does not indicate their behavior was related." 202 F.3d at 568 n.4.
The same is true here. There is no proof to link the disparate incidents in 2012 and 2013 at different locations to the timely incident alleged to have occurred in 2014. The incidents involved different co-workers and chains of command at different facilities. Once Velasquez transferred from those facilities he never worked with those co-workers and supervisors again. Moreover, the name-calling by non-supervising co-workers, while similar behavior, did not use the same words or expressions, only some of which on their face could be construed as a reference to homosexuality. For example, plaintiff allegedly was called " Crazy V" in Bridgeport from 2010 to 2012, for a reason he did not know, and allegedly was called " Crazy V" or " Crazy Velasquez" by Columbo over a public address system one time in Garner in 2013, but there is no evidence of any discriminatory intent carried over from his Bridgeport co-workers to Columbo in Garner. Nor is there any evidence to link prior name-calling to the incident seven months later in June 2014 where Legassey referred to him as " chupa becho" and " chupa, " words that do refer or allude to sexual orientation. The transfer of other personnel, without more, cannot establish the link.
The disparate incidents alleged by Velasquez do not establish a pattern of continuous discriminatory behavior that would sustain a continuing hostile environment needed to extend the statutory limitations period for otherwise untimely claims. " The Plaintiff's viable timely allegations consist of sporadic, discriminatory actions, taken by different co-workers. These types of differences " preclude invocation of the continuing violation doctrine. Little v. Nat'l Broadcasting Co., Inc., 210 F.Supp.2d 330, 368 (S.D.N.Y. 2002)." Maxton v. Underwriter Laboratories, Inc., 4 F.Supp.3d 534, 545 (E.D.N.Y. 2014). Accord, Bright v. Coca Cola Refreshments USA, Inc., 2014 WL 5587349 *9 (E.D.N.Y. 2014) (" the timely incidents are not sufficiently related to the untimely incidents to constitute part of the same hostile work environment . . . they all involved different perpetrators and qualitatively different incidents, spread out over a number of years").
Claims based on the incidents that allegedly occurred prior to March 8, 2014, are therefore barred under C.G.S. § 46a-82(f).
" However, '[e]ven if a jury were to find that there was no continuing violation, 'clearly established precedent dictates that [a] discriminatory act which is not made the basis for a timely charge can still be relevant background evidence in a Title VII proceeding.'" Maxton, 4 F.Supp.3d at 545.
The Timely Hostile Work Environment Claim Raises Genuine Issues of Material Fact
Velasquez complained to the DOC Affirmative Action Unit that on June 7, 2014 and on several other occasions that week Legassey called him " chupa becho." At his deposition Velasquez testified that Legassey had called him that on numerous occasions over several months and that two other corrections officers, Dominic Colombo and Vincent Colombo, called him " suck penis, " which is the English translation of " chupa becho." Velasquez complains that the investigation in which the investigator concluded his claims were unsubstantiated was cursory and failed to interview anyone other than Legassey and him.
In Brittell v. Department of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998), the Supreme Court stressed the importance of protection against hostile work environments. when it considered an analogous case of hostile work environment at a correctional institution and looked to federal law for guidance. " Subdivisions (1) and (8) of § 46a-60(a) prohibit an employer or its agents from discharging, discriminating against or harassing an employee on the basis of sex. In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60."
" We emphasize that sexual harassment in the workplace is intolerable, and an employer has a serious legal obligation to conduct a reasonably thorough investigation of a harassment complaint. An employer's response to such harassment, however, must be considered in its totality . . . and its reasonableness viewed in the context of the nature of the harassing conduct. In light of all of the remedial measures taken by the defendant in response to the plaintiff's complaint . . ." Brittell, 247 Conn. at 176.
The Supreme Court adopted federal standards for proving a hostile work environment:
To establish a claim of hostile work environment, " the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . " [I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . . [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances . . ." Brittell, 247 Conn. at 166-67 (citations omitted; internal quotation marks omitted.)
The alleged conduct of Legassey, Dominick Colombo and Vincent Colombo over a period of months reasonably could be considered both subjectively and objectively abusive, and their epithets clearly mock plaintiff's gender orientation, which is particularly risky in a prison setting. A jury could conclude these were more than isolated remarks or occasional incidents of harassment and they went beyond " a mere utterance of an . . . epithet which engenders offensive feelings." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). A reasonable jury could conclude this conduct created a hostile work environment. See Cruz, 202 F.3d at 570. If the jury discredits the DOC contention that Legassey's conduct lasted only one week and credits Velasquez' version of events, it could find that " the work environment was permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions [of his ] employment." Briones v. Runyon, 101 F.3d 287, 291 (2d Cir. 1996).
Courts must look at all circumstances including: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether it is physically threatening or merely an offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance. Cruz, 202 F.3d at 570.
The more difficult question is whether the co-workers' discriminatory conduct may be imputed to the DOC. Briones, 101 F.3d at 291-92.
" Additionally, because the alleged harassment is attributable to a co-worker and not a supervisor, [plaintiff] must demonstrate that the [defendant] " either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Briones, at 291-92.
" A plaintiff pursuing a hostile work environment claim must establish a basis, rooted in common law agency principles, on which to hold an employer liable for the conduct of its employees . . . " The law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . [sexual] harassment by co-workers . . ." Accordingly, an employer will be held liable for harassment perpetrated by its employees if " the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it . . ." Put another way, " once an employer has knowledge of a racially [or sexually] combative atmosphere in the work-place, he [or she] has a duty to take reasonable steps to eliminate it . . ." " The standard is essentially a negligence one . . . and reasonableness . . . depends among other things on the gravity of the harassment alleged"; . . . " the severity and persistence of the harassment . . . and . . . the effectiveness of any initial remedial steps"; . . . and " the nature of the work environment . . . and the resources available to the employer . . . An employer's response should be evaluated to determine how " prompt, appropriate, and adequate" it was . . ." [T]o determine whether the remedial action was adequate, we must consider whether the action was reasonably calculated to prevent further harassment." . . . " [O]nce an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think [it] can be charged with discriminating on the basis of race [or sex]." . . . " Whether an employer has fulfilled [its] responsibility [to take reasonable steps to remedy a discriminatory work environment] is to be determined upon the facts in each case." Brittell, 247 Conn. at 168-69 (citations omitted).
Here, the DOC did provide an avenue for complaint. The issue is whether the investigation and remedy were reasonable under the circumstances.
" [T]he law does not require that investigations into sexual harassment complaints be perfect." . . ." The question before us is not whether the investigation was adequate . . . but rather whether the remedial action was adequate." . . . Nevertheless, we agree with the plaintiff that, inasmuch as the choice of an appropriate remedial measure often will depend upon information gathered through an investigation, it is appropriate to consider the nature and scope of an employer's investigation when evaluating the adequacy of its response to the harassment. Moreover, we acknowledge that " there may be cases in which an employer's investigation is so flawed that it could not be said that the remedial action was adequate. For example, the investigation might be carried out in a way that prevents the discovery of serious and significant harassment by an employee such that the remedy chosen by the employer could not be held to be reasonably calculated to prevent the harassment." . . . Thus, an employer cannot insulate itself from responsibility for failing to take effective remedial action by claiming that it was unable to confirm the existence of harassment in circumstances in which it made little effort to do so. Brittell, 247 Conn. at 170-71.
Velasquez questions the adequacy and scope of the investigation and whether the DOC took adequate steps to prevent harassment of him based on his homosexuality. The investigator only interviewed Velasquez and Legassey, who denied the accusation, and concluded the claim was unsubstantiated. No other witnesses were interviewed. In such circumstances where the alleged offender denies the charge, unless there is a witness or recording, the result will always be the same and no remedy will be forthcoming. A temporary transfer of the complaining party is no remedy, but rather may be seen as punishment for the complaint. Under the totality of the circumstances, a reasonable jury may conclude the DOC was negligent and the co-workers' discriminatory conduct would be imputed to the DOC. There are genuine issues of material fact about the June 2014 incident and the investigation that would preclude granting summary judgment on the hostile work environment claim.
The investigator did not ask Legassey if he knew Velasquez was homosexual. She did not interview Dominick and Vincent Colombo, two correction officers at Garner who allegedly used the English translation of the Spanish phrase Legassey is alleged to have used. Had these witnesses been asked whether there was knowledge or rumor of plaintiff's sexual orientation and whether they were familiar with the epithets and had heard whether anyone had used them or other derogatory terms speaking about plaintiff, the DOC may have uncovered and remedied a hostile work environment.
Plaintiff Has Failed to Prove Constructive Discharge
Velasquez alleges that he " was forced to resign from employment with Defendant because of Defendant's failure to properly investigate/resolve Plaintiff's complaints and due to the Defendant's hostile work environment and discrimination."
The Supreme Court discussed constructive discharge in Brittell: " Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge . . . Through the use of constructive discharge, the law recognizes that an employee's 'voluntary' resignation may be, in reality, a dismissal by an employer." . . . " Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." . . . " Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." . . . Accordingly, " [a] claim of constructive discharge must be supported by more than the employee's subjective opinion that the job conditions have become so intolerable that he or she was forced to resign." 247 Conn. at 178.
The viable discrimination claims occurred in a period ending June 2014 at Garner; when Velasquez quit he was assigned to Hartford and was requesting transfer to other DOC facilities. There is no allegation the discriminatory conduct carried over to his new assignment, which fails to prove the required link of the resignation to wrongful conduct by the employer. See Sophia v. City of Danbury, 116 Conn.App. 68, 75, 974 A.2d 804 (2009) (" [f]or a plaintiff to prevail on a claim of constructive discharge . . . she must prove not only constructive discharge, but also causation: that is, that the discharge occurred for a reason violating public policy"). That other alternatives were available to him as well as his requests for other assignments undercut his claim that working for the DOC was so intolerable he was forced to resign. Compare, Rother v. N.Y.S. Dep't of Corrections, 970 F.Supp.2d 78, 93-94 (N.D.N.Y. 2013) (" [t]he constructive-discharge inquiry focuses on the working conditions preceding the employee's resignation"); Murphy v. Beavex, Inc., 544 F.Supp.2d 139, 153 (D.Conn. 2008).
Thus, Velasquez will not be able to prove an adverse employment action by reason of constructive discharge caused by discrimination, which are necessary elements to establish a prima facie case of disparate treatment in violation of C.G.S. § 46a-81c. See Dep't of Transportation v. CHRO, 272 Conn. 457, 463 n.9, 863 A.2d 204 (2005).
Plaintiff Fails to State a Claim for Retaliation
Velasquez claims that the DOC retaliated against him by changing his resignation status to " not in good standing."
Plaintiff's retaliation claim is asserted in Count One, which alleges a violation of C.G.S. § 46a-81c as a claim for discrimination in employment. The DOC argued that a retaliation claim should have been brought under C.G.S. § 46a-60(a)(4). Because plaintiff could simply amend his complaint to cite that statute I will assume without deciding that the claim could proceed under either statute.
To prevail on this claim Velasquez would have to establish a prima facie case under the McDonnell Douglas framework, including an adverse employment action and a causal connection between the protected activity (i.e. his complaints about discrimination) and the adverse employment action, here the change of his employment status to " resignation, not in good standing." See Bucalo v. Shelter Island Free School District, 691 F.3d 119, 128-29 (2d Cir. 2012); Zann Kwan v. Andalex Group, LLC, 737 F.3d 834, 843 (2d Cir. 2013). If he could establish a prima facie case, the burden would shift to the DOC to establish a non-retaliatory reason for the action, which here is the undisputed failure to give two-week notice before termination in contravention of state regulation. See Zann Kwan, 737 F.3d at 845. Plaintiff would then have to show both that the stated reason was false and " but for" the discrimination the adverse employment action would not have been taken. See University of Texas Southwestern Medical Ctr. v. Nassar, 133 S.Ct. 2517, 2532-33, 186 L.Ed.2d 503 (2013). Under the facts shown in the evidence submitted on this motion no reasonable jury could find Velasquez was a victim of retaliation in the " not in good standing" characterization of his resignation.
The DOC sent plaintiff a letter dated August 21, 2014, which advised him that in accordance with State Personnel Regulation § 5-241-1(a) he was deemed to have resigned not in good standing because he failed to provide two working weeks notice of his termination and because of unauthorized absences of 5 or more working days.
Conclusion
For the reasons stated above, the DOC's motion for summary judgment is granted in part and denied in part.
a. Beginning in March 2012, Plaintiff was harassed by Correction Officer Gary Savoie who called Plaintiff " Homo" and " Faggot"; b. Correction Officer Terry Castro recorded Plaintiff on his cell phone and sent the video to other correction officers who laughed at Plaintiff and called Plaintiff a " piece of shit"; c. [O]n or about October 12, 2013, Officer Michael Hollis initiated a verbal altercation with Plaintiff and told Plaintiff he was a " bitch" and Officer Hollis deliberately caused an unsafe environment with inmates causing Plaintiff to have to request a different assignment; d. Plaintiff was repeatedly called " Crazy V" and/or " Crazy Velasquez" by other correction officers, including by Officer Columbo over the prison intercom system; e. On or about June 7, 2014, and several other occasions Officer Rick Legassey intimidated and insulted Plaintiff when he numerous times told Plaintiff in Spanish to " chupa becho" which translated into English means " suck penis, " Officer Rick Legassey called Plaintiff " chupa" and Officer Rick Legassey further threatened Plaintiff by telling Plaintiff that " if I go down then you go down."