Opinion
No. X-08CV04-0199333S
January 31, 2008
Memorandum of Decision
This is an action by Stephen Kligler ("Plaintiff" or "Kligler") against his former employer, St. Luke's Foundation, Inc. ("Defendant" or "St Luke's"), claiming damages for alleged age discrimination in employment in violation of the applicable Connecticut and federal statutes prohibiting certain discriminatory employment practices. He alleges in virtually identically worded counts that he was discharged, or that his contract was not renewed by St. Luke's at the end of the 2002-2003 school year, and that in discharging him or failing to re-hire him St. Luke's discriminated against him on the basis of his age in violation of the Connecticut Fair Employment Practices Act (count two) and the federal Age Discrimination in Employment Act (count three). And plaintiff further alleges in almost identically worded counts that the defendant took certain adverse employment actions against him in retaliation for having filed a discrimination case against St. Luke's with the Connecticut Commissions on Human Rights and Opportunities (CHRO), in violation of The Connecticut Fair Employment Practices Act, Conn. Gen Stat. § 46a-60(a)(4) (count four), and in violation of Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended by the Civil Rights Act of 1991 (count five). The defendant St. Luke's admits that the plaintiff's date of birth was January 5, 1945, admits that plaintiff was employed at St. Luke's starting in September 1982, admits that plaintiff's position at the times alleged in the complaint was Director of Community Services and Coordinator of Activities, admits that plaintiff's contract was not renewed for the 2003-2004 school year, and admits the existence of certain written communications between the parties; otherwise the defendant denies the allegations of the complaint, and alleges by way of special defense that the plaintiff has failed to state claims upon which relief can be granted.
There was originally a count one, claiming breach of contract. The court has granted summary judgment in favor of St. Luke's on count one, and that count was not involved in the trial.
§ 46a-60(a), Conn. Gen. Stat., provides: "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case 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, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to blindness . . ."
29 USC § 623 provides: "(a) Employer practices: It shall be unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter."
§ 46a-60(a)(4) makes it an illegal discriminatory practice, "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."
Title VII (42 U.S.C. § 2000e3(a)) provides that it "shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . Because [such employee] opposed a practice made an unlawful practice by this subchapter."
The case was tried as a bench trial before the undersigned on approximately thirteen trial dates between July 3 and August 23, 2007. Some 62 documents were received into evidence as full exhibits. The parties have each submitted a comprehensive post-trial memorandum and a reply to the adversary's memorandum. This memorandum is the court's decision of the case.
Findings of Fact
The court finds the following facts to have been proven by a preponderance of the evidence. The plaintiff Stephen Kligler was born on January 5, 1945, making him 58 years old as of the end of the 2002-2003 school year in June 2003. The defendant St. Luke's Foundation, Inc., is a Connecticut corporation which owns and operates a private nonresidential school in New Canaan, Connecticut for students in grades 5 through 12. As of the 2002-2003 school year there were approximately 432 students at St. Luke's School, broken down approximately 52 in the fifth grade, approximately 60 in each grade six through eight (the foregoing four grades being known as the "middle school"), and an average of somewhere below 60 in each of the "upper school" grades, nine, ten, eleven and twelve. At that time the faculty and staff consisted of about 90 people.
The plaintiff began his employment at St Luke's as a middle school science and math teacher in September 1982. In 1987 he was promoted to the position of Head of Middle School, reporting to the Head of School. He remained in that position until 1993 when he was assigned back to the classroom as a science teacher. There was no head of Middle School for about a year, and then in about 1995 Garrett Fancher became Head of Middle School. In 1997 the plaintiff attained the status of a "Level III" teacher at St. Luke's which exempted him from regular evaluations. In 1997 he was appointed as Coordinator of Activities and in 1998 he also became Director of Community Service. He continued to teach two classes until 1998. His supervisor in these two positions was Guy Bailey, the Dean of Administration. Mr. Bailey was 60 years old at the time of trial. The primary responsibility of the Coordinator of Activities was the planning, organization, implementation, staffing, and evaluation of all extra-curricular (non-academic) events for students, parents and families. The Director of Community Service was in charge of administering and implementing the St. Luke's program which required all students to engage in a minimum of 20 hours of community service per year. Mr. Kligler had performed part-time duties in each of these areas prior to his official appointments in 1997 and 1998.
The chief administrator at St. Luke's is known as the "Head of School" who has overall responsibility to manage all the day-to-day operations of the school under the general guidance and direction of a Board of Trustees which has eight regular meetings per year, and operates through various committees. For about twenty-two years ending on June 30, 2003, the Head of School was Mr. Richard Whitcomb. There was also an Assistant Head of School. Starting in September 2001 the Assistant Head of School has been Julia Gabriel, age 41 at the time of trial. Ms. Gabriel as assistant Head of school had oversight responsibilities over the plaintiff's performance in the areas of Coordinator of Activities and Director of Community Service.
All teachers and administrators at St. Luke's work on an annual contract of employment. Each spring the Head of School decides whether or not to offer each such employee a new contract for the following school year. Mr. Kligler had been working under a succession of such annual written contracts through and including the 2002-2003 school year. He was not offered a contract for the 2003-2004 year which was, in effect, an involuntary termination of his employment as of June 30, 2003. His one-page contract for the 2002-2003 school year was marked in evidence as Exhibit 1. For about ten years prior to the 2002-2003 year it had been the practice of Mr. Whitcomb to send out a handwritten cover letter to each employee being offered a contract for the following year. No copies of these letters went into the employee's personnel file and they were not considered by the administrators to be evaluations and the letters sent to Mr. Kligler were not seen by Ms. Gabriel or Mr. Bailey prior to their production in this litigation. The cover letters sent to Mr. Kligler by Mr. Whitcomb on March 14, 1999, March 6, 2000, and April 29, 2002 are in evidence (Exhibits, 3, 4, and 2, respectively). They are complimentary: ". . . absolutely wonderful job . . ." (Ex. 3.) "Everything that you have been asked to do, you have done well . . ." (Ex. 2.) There is no negative comment in any of these letters. The letters are very general and unspecific. The 1999 and 2000 letters expressly mention Mr. Whitcomb's appreciation for Mr. Kligler's personal loyalty. Mr. Whitcomb and the plaintiff had been colleagues at St. Luke's for many years and had a good relationship.
By the start of the 2001-2002 school year Mr. Whitcomb had announced his intention to resign as of June 30, 2002. The Board of Trustees established a search committee in the fall of 2001 to select a replacement for the position of Head of School commencing July 1, 2002. Julia Gabriel was responsible for coordinating interviews by each applicant with various parents and members of the faculty and staff. The plaintiff was not selected to interview any of the applicants. He was upset about not being included in any interviews. He twice approached Julia Gabriel in her office to protest in an angry and agitated manner his exclusion. He raised his voice, and got very red in the face, flailing his arms, and at one point threw a chair aside and walked out. She became fearful and at one point reached for her radio thinking she might need to call for assistance. She explained that the committee determined the interviewers of each candidate and her job was only to coordinate and schedule. She suggested that plaintiff would have an opportunity to meet with the successful candidate after he or she was selected. On November 7, 2001 the plaintiff circulated a memo (Exhibit C) to Mr. Whitcomb, Ms. Gabriele, Mr. Bailey and two others expressing his personal and professional hurt at not being afforded an opportunity to interview a candidate for the Head of School position. Shortly thereafter at a faculty workshop on teenagers and stress, during the question and answer session, the plaintiff asked the presenting psychologist the totally unrelated question of his opinion whether or not the administrator in charge of activities and community service should be allowed to interview candidates for Head of School. Ms. Gabriel ruled the question out of order, and the plaintiff left the room in anger.
Plaintiff's supervisor Guy Bailey wrote to the plaintiff on November 28, 2001 (Exhibit A) expressing some concerns about his performance of his duties as Coordinator of Activities, particularly the "loose" operation of the after school activity programs, listing five specific deficiencies. Mr. Bailey expressly noted that his letter was meant to be ". . . harsh, pointed, and demanding" and told the plaintiff that, "In general, you must take responsibility for the proper operation of this program. If not we will have to look for someone else to oversee it." Assistant Head of School Julia Gabriele also had occasion to criticize plaintiff's performance in the 2001-2002 year. Her concerns related to the Community Service part of plaintiff's responsibilities. She discussed with plaintiff her feeling that there had been an excessive number of item drives which had cluttered up school entrances to the point that there might be fire safety concerns, and that item drives in general were not consistent with the school's community service mission, since they did not subject the students to any direct personal involvement with the community being served. She was also concerned that some planned future item drives would conflict with other planned school activities. She wrote to the plaintiff on March 11, 2002 (Exhibit G) asking him to list all his planned community service activities for the remainder of the school year so that there could be a coordinated calendar. The plaintiff responded with a email listing certain planned activities but he omitted other planned activities that Ms. Gabriel had learned of from posters about the school, most notably a carnival that conflicted with a planned faculty meeting and another school event known as Renaissance Weekend. She wrote to the plaintiff again on March 14, 2002 (Exhibit H) stressing the need for better coordination of community service activities.
On December 1, 2001 Mr. Mark Davis, then age 45, was selected to be the new Head of School at St. Luke's effective July 1, 2002. Although he continued in his position as Director of College Counseling at Philips Exeter Academy for the remainder of the 2001-2002 school year, he visited St. Luke's on several occasions during that interval for Board of Trustee meetings, fund raising events, and to become familiar with the school and its staff. On one of those visits in March 2002 he met briefly with the plaintiff at plaintiff's request, to discuss the plaintiff's programs. Mr. Kligler left Mr. Davis with a 10-page summary of his programs which Davis reviewed at a later time. Mr. Davis noted a high degree of anxiety and the fact that Mr. Kligler had difficulty modulating his voice.
In the spring of 2002 Mr. Davis was interested in listening and learning about St. Luke's school. He visited the school about twice a month and received phone calls and emails from parents and staff. He identified administrators Julia Gabriel, Guy Bailey, Diana Bowman, Judith Sherwood, and to a lesser degree Gareth Fancher, as people with whom he was in regular contact during that period. He was also contacted by Gary Holloway, a parent and member of the Board of Trustees. The impression Mr. Davis got from these contacts was that the community service program and the organization of activities at St. Luke's were areas that needed attention — that students participated in the service activities more out of a sense of obligation than out of a sense of the importance of community service. Specifically there were concerns about the leadership of those programs by the plaintiff. Mr. Gary Holloway testified and confirmed that he had told Mr. Davis that the community service program was very poor and needed significant improvement. Ms. Gabriel confirmed in her testimony that she had told Mark Davis during this time frame of her concern that the community service program was not what it should be — that it had become a mundane program of canned food drives and clothing drives with very little face to face activity.
Mark Davis started officially as Head of School on July 1, 2003. He commenced a series of meetings with faculty and administrators to learn about all aspects of the school. He met with Mr. Kligler, with Mr. Bailey present, on August 13, 2002. Although he had received negative feedback from staff and at least one parent about the community service and student activity areas and plaintiff's leadership in those areas, Mr. Davis testified credibly, and the court finds, that he had not decided at that time about offering or not offering Mr. Kligler a contract for the following school year (2003-2004). At the August 13 meeting Mr. Davis told the plaintiff that he wanted to see a new direction for community service; that he envisioned new programs with students involved in leadership roles. He expressed his belief that community service should be more than just a requirement for students. He suggested a community service day for the whole school, and asked Kligler to contact the Taft School about its similar program. Kligler seemed very enthusiastic and responsive to Davis's ideas and told Davis that he would work towards those changes. Davis summarized the meeting in a letter dated August 14, 2002 (Exhibit 7) in which he noted with pleasure plaintiff's enthusiasm about "raising the level" of the Student Activity and Community Services Programs, reiterated the desire for school-wide community service day, and indicated that there would be a further meeting in January to review progress toward the goal of "growth and changes" in St. Luke's Student Activities and Community Services programs.
Early in the 2002-2003 school year Mr. Davis was advised by parents who had developed and coordinated the middle school (grades 5-8) community service program that working with plaintiff was an impediment to goal achievement because Kligler was unresponsive and disorganized. Davis was impressed with the level of commitment the parents had made in setting up a new community service program for middle school students and their confidence in its success. He decided to get the program off to a good start by letting the parents run it under the supervision of Head of Middle School Gareth Fancher with input from Guy Bailey. Mr. Kligler was relieved of all responsibility for the middle school community service program. At trial Mr. Kligler admitted to difficulty working with the middle school parents and having differences of opinion with at least one of them.
By October 2002 Mr. Davis had noticed a lack of spirit among the students with regard to participation in the community service program. When Mr. Kligler would speak or make announcements at school assemblies the students were not paying attention and were not engaged with his announcements. Davis described the program at that point as "something of a lackluster program." Mr. Davis solicited feedback from Guy Bailey and Julia Gabriele about Kligler's performance. Gabriele (Exhibit 29) and Bailey (Exhibit E) responded with written lists of concerns. On October 4, 2002 Gabrielle noted: plaintiff's lack of rapport with students and parents, his negative approach to students, negative confrontations with colleagues at which he becomes emotional and raises his voice, inability to teach, lack of originality in the community service area, inability to write, and lack of respect for process and guidelines. In her concluding paragraph Ms. Gabriele said, "All this being said, I think the main issue is not so much what he does poorly, but rather what an effective charismatic individual could do for the program. I don't feel spirit or vision from him and that gets translated to our students." Guy Bailey on October 5, 2002 noted Mr. Kligler's scheduling of events without consulting with Bailey (his supervisor), mishandling of 8th grade community service project at the beginning of the year (donating of school supplies), failure to let Bailey proofread communications coming from his office, missing supervision duties, and failure to donate collected books to charity. Neither writer, his supervisor and the oversight supervisor, made a single favorable comment about Mr. Kligler's performance at that point. After receiving comments from Mr. Bailey and Ms. Gabriele, Mr. Davis wrote to Mr. Kligler on October 16, 2002 (Exhibit 9) expressing disappointment with Kligler's progress toward the goals of the August 14 letter. The Davis letter mirrored several of the Guy Bailey comments, but mentioned also several examples of problem incidents that neither Mr. Bailey nor Ms. Gabriele had reported. Mr. Davis concluded by asking Mr. Kligler to meet to discuss these concerns. There was an exchange of email messages (Exhibit 10) in which plaintiff asked for some time to frame his response, ". . . possibly first in writing and then at a meeting with you. I will set up a meeting with you at the earliest convenience," to which Mr. Davis replied "Thanks, Steve. As always Laura [his secretary] can most easily set up a time that works for both of us. I'll look forward to talking to you." Mr. Kligler then wrote back to Mr. Davis on October 17, 2002 (Exhibit 11) contesting some of Mr. Davis's comments, taking responsibility for other situations commented on, and affirmatively pointing out what he thought were some areas of progress. Although he concluded by saying "I look forward to our future discussions to make these programs even more rewarding," no such meeting ever took place. Mr. Kligler admitted at trial that Ms. Davis was willing to meet, but Kligler testified that he was not sure that such a meeting would be productive or in his best interests. Nonetheless, Mr. Davis testified, and the court finds his testimony credible, that although he had concerns, he had not at that point made a decision not to offer plaintiff a contract for the 2003-2004 school year: "I did not want to make any precipitous decisions. It was still relatively early in the school year . . ."
This tendency of the plaintiff to raise his voice has been noted several times in the evidence and in this memorandum. This happened twice on July 9, 2007 during plaintiff's cross examination when his voice got louder and louder until he was practically shouting.
On or about November 13, 2002 the plaintiff ran a Community Service Fair attended by some 25 or 30 agencies accepting student volunteers. Students participated in operating the fair through a program called "SUCCESS." Mr. Davis wrote to plaintiff the following day (Exhibit 13) complimenting him on a "well organized" event. Other events in the fall semester included participation by about 125 St. Luke's students in a Night the Light program sponsored by the Leukemia/Lymphoma Society, "Operation Warm Up" for ninth grade students, and a "Sophomores to Seniors" service project for tenth grade students.
In the fall of 2002 ninth and tenth grade parents had approached Mr. Davis about having a "bonding trip" for those classes to promote class unity. Davis agreed to have the trips and he assigned the planning and organization of the trips to plaintiff. He did this because it fell within the plaintiff's area of responsibility as Coordinator of Activities and because he saw it as an opportunity for Mr. Kligler to demonstrate leadership ability. Davis met with Kligler on November 12 about organizing the trips. He told Kligler he wanted the trip to be held in the winter months (which he specified at trial as meaning January or February 2003, or even December if it could be worked out). It was not required that the trip be overnight or that the activity be outdoors. Davis wanted Kligler to arrange for the classes to get away from the school together for some type of bonding experience. Davis did not consider this to be a complex assignment. Guy Bailey and Julia Gabriele were offered to consult with plaintiff as necessary on planning the trips. (Ms. Gabriele had organized an earlier bonding experience for a ninth grade class consisting of an overnight stay at the school.) Bailey and Gabriele met with the plaintiff for 30 or 40 minutes in mid-November regarding the bonding trips. Ms. Gabriele suggested several ideas such as a trip to New York for a show or a trip to Hartford to see the Mark Twain House. Kligler said he would have a proposal to them within a week's time.
Nothing further was heard from plaintiff regarding the bonding trips until after the school holiday break. On January 6, 2003 Julia Gabriele contacted plaintiff in person and by email (Exhibit M) asking about the status of planning the trips and telling him that Mark Davis would like something to present to the parents shortly. Kligler responded by email (Exhibit N) that same day saying that he had planned to visit some possible destinations in December but was prevented from doing so by bad weather. He said he had trips planned to visit two facilities that week and would have plans, with dates for trips in "March or April," by January 13 at the latest. Ms. Gabriele forwarded to the plaintiff Mark Davis's response (Exhibit O): "I think the earlier the better." Ms. Gabriele was disappointed with the dates mentioned in plaintiff's email because the concept of the bonding trips had been to have them take place as early in the school year as possible. She asked plaintiff if he had contacted Mountain Workshop, of Redding, CT. He responded negatively because of a bad experience with that facility ten years earlier.
On January 9, 2003 Kligler emailed Davis, Gabriele and Bailey (Exhibit OO) that he was planning the trips to one of several facilities in the area of Patterson, New York during the last week in April or the first week in May, and asked for a meeting to discuss planning details and budget. A meeting was set up for January 21. Nothing was presented in writing until a few hours before the meeting. The proposal submitted (Exhibit Q) was not for any of the trips to Patterson, New York area mentioned in the January 9 email, but rather for a two-night, three-day trip to Mountain Workshop in Redding for team building workshops and exercises "at the end of the school year." The proposal had not been planned by plaintiff but rather by a parent, Debbie Hartmann who made the presentation at the January 21 meeting.
At trial Mr. Kligler testified that he had attended a meeting with certain parents including Debbie Hartmann on January 15 because he was having difficulty arranging for the bonding trip. At the meeting Ms. Hartmann mentioned that she had been in touch with John Gibson at the Mountain Workshop to discuss a possible bonding trip. Mr. Kligler said he decided to go with the plans Debbie Hartmann had come up with: "Although I had hesitancies, I really felt we've got to do something. I wasn't getting very far with my seeking a plan at the Cascade Farm School . . . I guess the conclusion of the meeting was that I was gonna take Debbie Hartmann's information that she got from contact with John Gibson at the Mountain Workshop and put it into a proposal."
The proposal for an overnight trip at the end of the school year was totally unworkable because of conflict with final exams, AP exams, banquets, athletic tournaments and many other events. Furthermore, holding a ninth-tenth grade trip at the end of the school year would defeat the purpose of bonding the students especially since some members of those classes leave St. Luke's at the end of the year to attend other high schools. The proposal was not accepted by Mr. Davis and Ms. Gabriele for those reasons.
After the parents left the meeting on January 21, 2003 Mr. Davis met with Mr. Kligler to express his disappointment with the presentation and planning of the bonding trips and told Kligler that he had dropped the ball. He further told Kligler that he did not fulfill his responsibilities and that he was assigning the bonding trip responsibilities to Julia Gabriele. Kligler raised his voice and became belligerent. Davis expressed his surprise that Kligler refused to take responsibility for the mishandling of the trip planning. In fact Julia Gabriele did later that day complete the planning of the bonding trips at Mountain Workshop for early the following school year. It took her about two and a half hours to reserve the buses, reserve the sites, secure chaperones, coordinate with faculty and athletic departments, and prepare a letter to parents.
Later that day, January 21, 2003, Mark Davis made the decision that he would not offer Kligler a contract for the following year. He told Gabriele of his decision that day and subsequently informed Bailey, saying that the bonding trip fiasco was the last straw.
On January 22, 2003 Mr. Davis wrote to the plaintiff (Exhibit 16) summarizing the history of the bonding trip assignment and expressing his disappointment at the way it was handled by Kligler. He explained why the proposal did not make sense for the 2002-2003 year and expressed his view that it was the parents — not the plaintiff — who had done the bulk of the work. Davis said he considered the meeting "embarrassing." He reminded Mr. Kligler that many parents have reported difficulty working with him. Davis expressed his concern and asked for a meeting to talk more about Kligler's future at St Luke's. Kligler responded to the January 22 letter on January 23 (Exhibit 17) defending his handling of the bonding trips and taking exception to the way he was treated at the January 21 meeting. He concluded by saying, "I am thinking about the appropriate overall strategies to address this mistreatment . . ." Kligler testified that he knew from the January 22 letter that he was "gone." Kligler emailed Davis on January 28 (Ex 18) asking for some time to think before meeting with Davis. A meeting was scheduled for February 7, 2003 at which Davis intended to inform Kligler that he not going to be offered a contract for the following year, but the meeting was cancelled because of a snowstorm. On February 8 Kligler failed to attend a school dance. As Coordinator of Activities he was supposed to attend the dance and to secure the building when it was over. Davis was called by a parent and had to go and secure the building. Davis called Kligler later that night to inquire why he had not been there. Kligler responded with an expletive and hung up. Having heard nothing further from Kligler by February 12, Davis sent Kligler a letter (Exhibit U) expressing disappointment and asking for a meeting. Kligler responded by email on February 20 (Exhibit 20), claiming that he had been ill.
At this point Kligler refused to meet with Davis. Kligler wrote to Davis on February 12 (Exhibit V) recounting the community service events and activity trips that had taken place that year but acknowledging that Davis had requested a change in direction and that such changes had not occurred. "As the successful programs that I have administered and directed are of long standing, a certain inertia may exist that cannot change and go in the direction you would like with the immediacy you would desire." Kligler expressed the view that there was a clear pattern and practice of harsh evaluation of older administrators and employees beginning with Davis's term as Headmaster. He concluded, "This pattern is illegal and I have filed a complaint with CHRO." Unable to meet with Kligler, Mark Davis went to Kligler's office on February 24, 2003 and advised him that he would not be offered a contract for the 2003-2004 school year, which was confirmed that same day by letter (Exhibit 31) with the reasons stated: "This decision is based on our reorganization of the responsibilities associated with student activities and community service for the upcoming school year as well as your unsatisfactory job performance, insufficient leadership of the programs you oversee, and failure to fulfill certain responsibilities that are central to your role at St. Luke's.
Plaintiff did file an age discrimination complaint with CHRO (Exhibit 28) on February 13, 2003 which Mr. Davis testified, and the court finds, was received by St. Luke's on February 28, 2003. Mr. Kligler continued to work at St. Luke's until his contract expired on June 30, 2003. Without a contract for the 2003-2004 school year his employment at St. Luke's terminated at the end of the 2002-2003 year. After the filing of the CHRO complaint there were reprimands or letters of admonishment issued to Mr. Kligler by Mr. Davis and Ms. Gabriele in April and May for such transgressions as spending excessive time in another employee's office, meeting with parents during school on school premises to complain about his employment situation, failing to supervise the "front end" of the school and traffic circle at the end of the day, and leaving the school during school hours on personal business. (Exhibits 32, 34.) There was also a letter (Exhibit 25) written by Mr. Davis on February 20, 2003 regarding plaintiff's missing an assigned study hall. Although Mr. Davis did not become aware of the filing of the CHRO complaint until February 28, he had been advised by Kligler on February 12 that a CHRO complaint was being filed. Other than these letters of admonishment no job actions were taken with respect to those matters.
At the start of the 2003-2004 school year, a new Dean of Students, Kate Parker-Burgard then age 40, took over leadership of the community service programs at St. Luke's, assisted by Rick Holyfield, a part-time employee, then age 33. Ms. Parker-Burgard devoted about 20% of her time to the community service program. The Associate Director of Athletics has taken over responsibilities for student activities. Kate Parker-Burgard has made a number of changes to the community service program. She began using parents to facilitate grade-wide projects. Students are no longer limited to working with "approved agencies" but may perform services for any nonprofit organization. The number of student-led projects has increased, and there is a new community service board of students. St Luke's has partnered with a number of organizations for community service projects including hosting underprivileged children from a Stamford public school, and sending students to China to work at an orphanage. She has an excellent rapport with parents.
When Mark Davis took over as Head of School in 2002 there were about 90 employees, with about 55% being over the age of 40; 35% over the age of 50, and the average age was 43. (Exhibit JJ.) By the time of trial in 2007 there were about 105 employees, with about 60% over the age of 40, 36% over the age of 50, with the average age remaining at 43. (Exhibit VV.) Other findings of fact will be incorporated into the following discussions.
Discussion A. Age Discrimination Claims
Although the Second Count is based on the Connecticut Fair Employment Practices Act ("FEPA"), and the Third Count on the federal Age Discrimination in Employment Act ("ADEA"), both FEPA and ADEA, quoted in part at footnotes 2 and 3, prohibit an employer from discharging or failing to hire an employee because of the individual's age, and the plaintiff's allegations in each of these counts are virtually identical, so that these two counts may be treated together. In fact, Connecticut courts ". . . review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996).
Plaintiff complains in these counts that he was discriminated against on the basis of his age (born January 5, 1945, therefore 58 years old in June of 2003 when his employment terminated) in that his position as Director of Community Service was given to a new Dean of Students, Kate Parker-Burgard, approximately 41 years of age, starting with the 2003/2004 school year; and his position as Coordinator of Activities was given to the Athletic Department consisting of persons younger and less experienced than he, following his involuntary departure from St. Luke's. In analyzing this type of employment discrimination claim Connecticut has adopted the federal McDonnell Douglas-Burdine burden-shifting model. See Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. at 107-08. The framework for application of the McDonnell Douglas-Burdine model in a Connecticut age discrimination case was recently spelled out in detail by the Supreme Court in Jacobs v. General Electric Co., 275 Conn. 395 (2005):
Named after McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
The framework for the burden of production of evidence and the burden of persuasion in an employment discrimination case is well established. "[ McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)], and subsequent decisions have established an allocation of the burden of production and an order of presentation of proof . . . In discriminatory-treatment cases . . . First, the [complainant] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights Opportunities, 266 Conn. 492, 505-06, 832 A.2d 660 (2003).
After the plaintiff has established a prima facie case, and the defendant has produced evidence of a legitimate, nondiscriminatory reason for the employment action, "[t]he plaintiff retains the burden of persuasion. [The plaintiff] now must have the opportunity to demonstrate that the [defendant'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 plaintiff] has been the victim of intentional discrimination. [The plaintiff] 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 . . ." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed2d 207 (1981). 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 pretextural. The Supreme Court later refined the ruling set forth in Burdine in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed2d 407 (1993), and in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In Board of Education v. Commission on Human Rights Opportunities, supra, 266 Conn. 511, we recently adopted `the explicit holding in Reeves that evidence 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."
(Alteration in original; emphasis omitted.) Jacobs v. General Electric Co., supra, 275 Conn. at 400-401.
It has been held that the burden of a plaintiff of presenting a prima facie case under McDonnell Douglas is "minimal." Roge v. NYP Holdings, 257 F.3d 164, 168 (2d Cir. 2001). Here the plaintiff has clearly established the first three elements of a prima facie case. At age 58 at the time of termination he is well within the so-called "protected class." He is qualified for the positions, having been appointed to the two positions having held them for six and five years before his termination, and having received a new annual contact from the defendant for the 2002-2003 school year. He has suffered an adverse employment action, namely an employer's decision not to offer him a new or renewal contract for the 2003-2004 school year. The court also finds that the plaintiff has satisfied the fourth prong of a prima facie case by making a prima facie showing that the adverse action occurred under circumstances giving rise to an inference of discrimination, based on this court's denial of defendant's motion to dismiss for failure to make out a prima facie case pursuant to Practice Book § 15-8 on July 17, 2007. The burden then falls upon the employer St. Luke's Foundation, Inc. to produce legitimate nondiscriminatory reasons for its adverse employment action. This burden is one of production, not persuasion; it can involve no credibility assessment. St Luke's has met this burden by coming forth with evidence of job performance issues by Kligler in the 2001-2002 and 2002-2003 school years, and summarized in the above findings of fact made by the court. The ultimate issue therefore becomes whether the plaintiff has satisfied its burden of proving by a preponderance of the evidence that he has been the victim of intentional discrimination based on age 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. The plaintiff here has concentrated its efforts to meet that burden by inferential proof of discrimination based on its claim that St. Luke's stated reason is pretextural. In evaluating this claim the court must judge whether plaintiff's ". . . performance [was] satisfactory according to the employer's honestly-held expectations, and not standards that may seem reasonable to the jury or judge." (Citations and internal quotation marks omitted.) Ricks v. Conde Nast Publications, Inc., 6 Fed.Appx 74, 78 (2d Cir. 2001). Plaintiff is in accord:
An individual over the age of forty is a member of the protected class. 29 U.S.C. § 631(a).
One reason for going into considerable detail to establish the issue of pretext is that anti-discrimination law does not require a defendant to prove the truth of the reasons it advances for the plaintiff's discharge. The defendant need only produce enough evidence in support of its claim to create a genuine issue of fact. This circumstance permits and recognizes that an employer is entitled to make its own policy and business judgments, even if those judgments seem unwise. It is not disputed that those decisions are the prerogative of an employer. However, there is the real point of departure, where the rubber meets the road, so to speak. An employer may not, however, intentionally discriminate on the basis of age in making those decisions.
Plaintiff Kligler's Post-trial Brief, p. 12.
All three school officials, Mr. Davis, Ms. Gabriel, and Mr. Bailey testified that the adverse actions against Mr. Kligler were related to his job performance issues and not his age. The plaintiff nonetheless asks the court to infer that their testimony is pretextural and false on several theories of circumstantial evidence. The primary theory seems to be based on plaintiff's claim that the decision-maker, Head of School Mark Davis, had decided to let Mr. Kligler go even before he started at St. Luke's on July 1, 2002:
The fact of the matter is that defendant engaged in an ad hoc illegal process of seeking, by any means it could, to find some reason, somewhere, at some point in time, somehow or other, to justify a pre-determined decision to terminate plaintiff and to falsely justify a pre-determined decision to terminate plaintiff and to falsely justify the decision based on performance.
Plaintiff Stephen Kligler's Reply to Defendant's Post-Trial Brief, p. 14.
The linchpin to this theory is the date the decision was made by Mark Davis not to offer a 2003-2004 contract to Kligler. The court has summarized the evidence of that decision in great detail and has found that the decision was made in the afternoon of January 21, 2003 after the disastrous meeting with ninth and tenth grade parents concerning the bonding trips. Abundant evidence indicates and confirms that the decision was not made prior to July 1, 2002; it was not made after the August 14, 2002 meeting; and it was not made after the October 2002 exchange of letters, but was made after the "last straw" occurred on January 21, 2003. Plaintiff relies heavily on a claimed "admission" in a November 4, 2005 letter from Atty. Dana R. Baughns of Shipman Goodwin, LLP, representing the defendant to Atty Jerry Leaphart, representing the plaintiff (Exhibit 39). The letter was apparently written in part to satisfy the requirement of Practice Book § 13-10(c) requiring bona fide attempts by counsel to resolve differences relating to objections to requests for production. With respect to Request for Production No. 3, Atty. Baughns wrote, in part:
This document seeks copies of documents that compliment or are favorable to plaintiff's work and/or professional activities for defendant for the years 1981 through the end of his employment, ten years. The decision to not renew plaintiff's contract was made in 2002. Documents spanning back two decades are clearly not relevant. (Emphasis added.)
This letter was allowed into evidence over objection because it is an evidentiary admission by an attorney agent. Tait's handbook of Connecticut Evidence § 8.16.7. But an evidentiary admission as contrasted to a judicial admission in a pleading is not necessarily binding on the party, but rather is subject to explanation, impeachment and evaluation as any other piece of evidence. Id., § 8.16.5. Here, Atty. Baughns has submitted her affidavit of March 22, 2007 which became a full exhibit (Exhibit UU) wherein she states:
The foregoing reference to "2002" was a typographical error. The sentence should have read "[t]he decision to not renew plaintiff's contract was made in 2003." I confirmed this error to plaintiff's counsel by letter dated July 13, 2006.
The court finds that Atty Baughn's reference to 2002 was in fact a typographical error which does not detract from the preponderance of evidence that the decision was made on January 21, 2003.
Plaintiff also relies heavily on his argument that ". . . this is a case where the credibility of defendant's witnesses revealed, on the whole, a consistent pattern of inconsistency and of fabrication, to put it no more harshly, on their part." Plaintiff, Stephen Kligler's Post-Trial Brief, p. 3. The plaintiff then refers the court to an "Impeachment Parade" of some fifty or more transcript references where, he claims, ". . . one after another of defendant's witnesses paraded to he witness stand and then impeached the prior witness and/or themselves." Id. The court has reviewed most of them, and there are some inconsistencies (as there was also in the plaintiff's testimony). It is the law of Connecticut and Connecticut juries are routinely instructed that
In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none, or any part of any witness' testimony. In making that decision, you may take into account a number of factors, including the following: . . . Was the witness' testimony contradicted by what that witness has said or done at another time, or by testimony of other witnesses, or by other evidence?
. . . In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether a contradiction is an innocent lack of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only with a small detail.
Connecticut Jury Instructions § 2.4.
The court does not put the inconsistencies pointed out by plaintiff into the category of indicating fabrication or intentional falsehood. The court finds the testimony of Mr. Davis, Ms. Gabriele and Mr. Bailey, despite some inconsistencies and mistakes on details, to be credible. They were testifying for lengthy periods in the summer of 2007 about events that took place in 2001, 2002, and 2003. They had given deposition testimony a year or more before trial. Some inconsistencies are not unexpected under these circumstances. Indeed, the court would be suspicious of their testimony if it were lockstep consistent in every single detail. The court was particularly impressed with sincerity of the witness Guy Bailey who was restrained, careful, and willing to acknowledge error when pointed out. And, the court is mindful of the plaintiff's testimony that he considered Guy Bailey a "fair person" who did not discriminate against him.
Plaintiff asks the court to draw inferences of pretext from Julia Gabriele's admissions that an evaluation of an employee should normally involve assessing performance of employees in the year in question coupled with her admission, and Guy Bailey's that their October 2002 memos to Mark Davis (Exhibit 29 and Exhibit E) included observations and assessments of Ms. Kligler going back to school years prior to 2002-2003. The court sees no adverse inference to be drawn from this slight discrepancy. Mr. Davis had received certain adverse comments about Mr. Kligler prior to becoming Head of School. He had laid out his expectations for Mr. Kligler at the August meeting. About halfway through the ensuing semester after making some negative observations of his own at school assemblies, Mr. Davis was within his prerogative in asking Kligler's direct and oversight supervisors to remark on his performance. That they happened to include some comments and observations from prior years does not lead the court to conclude that their testimony is fabricated or pretextural. It is reasonable to infer that they would not have mentioned those problem areas from 2001-2002 or earlier if they thought they were no longer a problem or had been rectified in October of 2003.
Plaintiff places heavy reliance on Ms. Gabriele's October 4, 2002 memo to Mark Davis (Exhibit 29), which he claims "deciphers" a "code for discrimination" (1) because it only applied to plaintiff and one other unnamed employee who were singled out for "disparate treatment"; (2) because it includes the phrase "it's not what he does poorly" which implies that plaintiff's evaluation was not a question of performance but of something else; (3) which is revealed in the continuation of that phrase ". . . but rather what an effective, charismatic individual would do for that program," the word "charismatic," claims the plaintiff, being synonymous with "young." The court does not agree. I have already addressed Mr. Davis' prerogative under the circumstances to check on the performance of the plaintiff in October 2003. That prerogative is supported to large extent by a quote, supra, from plaintiff's memorandum of law. The phrase, "it's not what he does poorly" must be read in context. It is preceded by the words, "All this being said, the main issue is . . ." which is preceded by seven bullet point discussions of things which in Ms. Gabriel's opinion Mr. Kligler was or had been doing poorly. She obviously would not have included them in the memo in some detail if she did not think they should be considered by Mr. Davis. And, finally, the court does not agree that "charismatic" in this context is synonymous with "young." The word is defined in Webster's New World Dictionary, Third College Edition (1988) as
The references to the other unnamed employee were redacted from the exhibit, but there was testimony that he was still employed at St. Luke's at the time of trial, which would be inconsistent with the claim that the request for comments on these two individuals was a pretext for age discrimination.
1. A divinely inspired gift, grace or talent, as for prophesying, healing, etc.;
2. A special quality of leadership that captures the popular imagination and inspires allegiance and devotion;
3. A special charm or allure that inspires fascination or devotion.
In the court's experience the term is not identified with any age, young or old. It is often applied to senior statesmen, journalists or other professionals, and other public figures. In fact the plaintiff admitted on cross examination that Ghandi, Mohammed Ali, Bill Clinton and Henry Aaron are people that he would consider charismatic.
In the July 30, 2007 edition of Time magazine there is a feature article about actor John Travolta's role in the Broadway play Hairspray. The by-line of the article reads "The comfort of charisma. Few actors bounce back as often as Travolta." The article mentions that John Travolta is 58 years old.
The final argument the court will address is the claim that the assignment on November 12, 2003 to plan the bonding trips for the ninth and tenth grades was a pretext and a "setup for failure" because the plaintiff was given no guidance and too little time to carry out the assignment. This argument borders on the absurd. The plaintiff was, and had been for six years, the Coordinator of Activities of an eight-grade, 430-student private school. Planning trips was one of his responsibilities. In Exhibit 5 he lists "a highly successful seventh grade overnight trip to Boston, MA" and "a well attended and fun filled three day trip to Okemo Mountain in Vermont" among his accomplishments in the fall/winter of 2002-2003. He was asked simply to come up with a proposal for the trip to take place sometime between November 12 and the end of February. The trip didn't have to be overnight, and didn't have to include outdoor winter activities. He was offered and received further guidance from Julia Gabriele who suggested perhaps a show trip to New York or a trip to Hartford, and later, a trip to the Mountain Workshop in Redding. He had no deadline other than a self-imposed deadline of January 13 which he did not meet. After more than two full months, Mr. Kligler came up with absolutely nothing, and he turned to the parents at the last minute and had one of them present her proposal to Mark Davis on January 21 under circumstances very embarrassing to him. The court finds no pretext in Mr. Davis's reliance on this incident of poor employee performance as grounds for not offering the plaintiff another contract.
The court has considered but sees no need to discuss the other arguments of plaintiff that defendant's claims of poor performance are a pretext for intentional age discrimination. The court is not convinced of that and holds that the plaintiff has not proved pretext or discriminatory animus in the decision of St. Luke's not to offer a contract of employment to the plaintiff for the 2003-2004 school year.
B. Claims of Retalialiatory Conduct
To make out a prima facie case of retaliation a plaintiff must establish that: (1) he was engaged in a protected activity; (2) his employer was aware of the protected activity; (3) he suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See, Reed v. A.W Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996). If a prima facie case is shown, the McDonnell Douglas-Burdine model is followed. Id. Here the plaintiff has shown that he was engaged in a protected activity by the filing of his CHRO complaint on February 28, 2003. The defendant was advised by the plaintiff on February 12 that the complaint was being filed, but did not actually receive notice of the February 13 filing until February 28. The first and second elements are satisfied. The "adverse employment action" claimed by plaintiff after he began to engage in protected activity consists of his receipt of four written admonishments or letters of reprimand from Mr. Davis or Ms. Gabriele dated February 20, 2003 (Exhibit 25), April 1, 2003 (Exhibit 32), April 30, 2003 (Exhibit 34), and May 1, 2003 (Exhibit 35). Each of these letters accuses Mr. Kligler of violation of certain St. Luke's school policy such as missing assigned duties or leaving school premises during school hours on personal business without permission. In a general sense plaintiff did not deny the acts, but in some instances disputed that they were actual violations or offered extenuating circumstances. It is not necessary for the court to decide the factual or legal validity of these letters because, for purposes of this claim of retaliatory employer conduct, they were not "adverse employment actions." Other than the sending of the letters, St. Luke's took no other action against Mr. Kligler in those matters. He was not suspended. His compensation was not affected. He remained in employment with no change in his responsibilities until the termination of his contract at the end of the school year. "Reprimands, threats of reprimands, and excessive scrutiny of an employee . . . do not constitute materially adverse employment actions." Oliphant v. State of Conn. Dept. of Transportation, No. 3:02cv700 (PCD), 2006 U.S. Dist. LEXIS 77021, at *19 (D.Conn. Oct. 20, 2006).
Even if the reprimands were to be considered adverse employment actions causally related to protected activity, under the McDonnell Douglas-Burdine model St. Luke's has stated within the text of the letters legitimate, honestly held nondiscriminatory reasons for their issuance, and the plaintiff has not shown those reasons to be pretextural.
The plaintiff has not established his claims of illegal retaliatory conduct by the defendant.
Order
For the reasons herein stated the court enters judgment for the defendant.