Opinion
HHDCV095033170S
08-11-2016
Gilbert Traverso v. State of Connecticut Department of Education
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#139)
David M. Sheridan, J.
The defendant State of Connecticut Department of Education (" the Department") has moved for summary judgment on Counts Two and Three of the plaintiff's complaint, which allege a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and a violation of the Connecticut Fair Employment Practices Act (" CFEPA"), Conn. Gen. Stat. § 46a-60(a)(1).
I. FACTS
The plaintiff Gilbert Traverso is of Puerto Rican ancestry, with both of his parents having been born in Puerto Rico. The plaintiff began employment in 1991 as an electrical instructor with the Connecticut Technical High School System (" CTHSS"), which is an arm of the defendant Department. At the time he applied for employment he identified himself as " Hispanic." The plaintiff continued his employment with CTHSS, ultimately advancing in 2005 to the position of Assistant Principal at Bristol Technical Education Center (" Bristol Technical"). At that time, the plaintiff was the sole administrator at Bristol Technical, and the highest level official assigned to that school.
In May of 2008, the Department received a complaint that the plaintiff had sexually harassed a subordinate, a guidance counselor working at Bristol Technical. On May 7, 2008, the plaintiff was placed on paid administrative leave while the Department investigated the sexual harassment complaint lodged against him. The paid administrative leave did not reduce the plaintiff's compensation or benefits.
In a letter, the plaintiff was notified that he would remain on leave until further notice " pending an administrative investigation of alleged inappropriate workplace conduct in [his] position at Bristol Technical Education Center (BTEC)." He was directed to stay off the grounds of Bristol Tech or any other school in the CTHSS or in the central offices of the Department of Education, and not to contact or communicate in any way with any employees or students of Bristol Tech or any individuals that he might have worked with at Bristol Technical. The Department asserts that it took these steps to ensure that there could be no claims of retaliation or interference with its investigation.
On May 28, 2008 the plaintiff, in the company of his union representative, met with two investigators from the Department. The investigators told the plaintiff in general terms that they were responding to a complaint regarding alleged sexual harassment made by Nancy Benson, a Guidance Counselor at Bristol Technical. The investigators referenced statements from other employees at Bristol Technical, and complaints that the plaintiff had sexually harassed other female subordinates at Bristol Technical.
On June 13, 2008, the investigators issued their report containing the findings and recommendations based upon investigation of the sexual harassment complaint. A copy was forwarded to the plaintiff through his attorney. The report stated that the claim of sexual harassment could not be substantiated, but concluded that the plaintiff " had engaged in inappropriate and unprofessional conduct and exercised poor management skills."
On June 25, 2008 the plaintiff, along with union representatives, met with employees of the Department's Human Resources Bureau. The plaintiff was advised that the investigation report had been sent to Mark K. McQuillan, the Commissioner of Education. The findings and recommendations in the report would be reviewed by the Commissioner, and the Commissioner would make a decision as to the plaintiff's employment status.
On July 17, 2008, Commissioner McQuillan held a meeting at his offices to inform the plaintiff of the decision regarding his employment status. The Commissioner issued discipline to the plaintiff consisting of a five-day suspension, without pay, for the period from July 21 through July 25, 2008. The plaintiff was also warned against any further inappropriate conduct, placed under the direction of a performance supervision team, and directed to attend a professional development program.
In July 2008, the plaintiff was laterally transferred as an Assistant Principal to the Eli Whitney Technical High School in New Haven. In September 2008, the plaintiff was laterally transferred as an Assistant Principal to Howell Cheney Technical High School based, in part, on the reduced commuting distance. These transfers did not reduce the plaintiff's compensation, benefits, or advancement opportunities with the Department.
The present matter was commenced by writ, summons and complaint sounding in three counts. The first count was brought against three individual defendants. The second and third counts were brought against the Department and alleged violation of Title VII of the Civil Rights Act of 1964, as amended, and violation of Conn. Gen. Stat. § 46a-60(a)(1), respectively. The plaintiff claimed loss of income, harm to reputation, damage to his career, standing in his profession, and emotional distress.
The first count was dismissed on the basis of lack of personal jurisdiction. (See Memorandum of Decision on Motion to Dismiss [#102.86].) The court granted a motion to strike the two remaining counts [#130]. The plaintiff then filed a substitute complaint [#131] and that is the operative complaint for purposes of this motion.
On February 18, 2016, the defendant filed this motion for summary judgment, supported by an affidavit of Karen Zuboff, Director of Human Resources for the Department, and excerpts from the transcript of the plaintiff's deposition testimony. The plaintiff filed his opposition on March 30, 2016, supported by an affidavit of the plaintiff and various documentary exhibits. The parties appeared and were heard at argument on April 18, 2016.
II. ANALYSIS
A. Standard of Review
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
B. Claims of Discrimination in Employment, Generally
Count One of the complaint alleges a violation of Title VII of the Civil Rights Act of 1964. Under Title VII, an employer may not " discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
Count Two alleges discriminatory treatment under the Connecticut Fair Employment Practices Act (" CFEPA"), General Statutes § 46a-60 et seq., which prohibits discrimination " in compensation or in terms, conditions or privileges of employment because of [an] individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability . . ."
Connecticut courts routinely look to federal precedent for guidance in interpreting CFEPA. " In drafting and modifying the Connecticut Fair Employment Practices Act . . . our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 . . . and it has sought to keep our state law consistent with federal law in this area." (Citations omitted.) Ware v. State, 118 Conn.App. 65, 82, 983 A.2d 853 (2009). " [I]n matters involving the interpretation of the scope of our anti-discrimination statutes, our courts consistently have looked to federal precedent for guidance." Id. " In defining the contours of an employer's duties under our state anti-discrimination 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 [General Statutes] § 46a-60." Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998). As a result, CFEPA claims proceed under the same analysis as federal Title VII claims. Craine v. Trinity College, 259 Conn. 625, 637 n.6, 791 A.2d 518 (2002); State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470-71, 559 A.2d 1120 (1989).
In this case, the plaintiff's Title VII and CFEPA claims are based on disparate treatment. " [D]isparate treatment simply refers to those cases where certain individuals are treated differently than others." Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996). Our Supreme Court recently summarized the analytical methodology for claims of discrimination in employment based on disparate treatment.
The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. Under this analysis, the employee must first make a prima facie case of discrimination. In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. This burden is one of production, not persuasion; it can involve no credibility assessment . . . The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. (Internal quotation marks omitted; citations omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73-74, 111 A.3d 453, 459 (2015).
The Second Circuit has noted that the burden of establishing a prima facie case is " minimal" or " de minimis." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). Employing the McDonnell Douglas framework, this court will first consider whether there is any genuine issue of material fact regarding the plaintiff's ability to meet his threshold burden of establishing a prima facie case of illegal discrimination based upon national origin.
C. The Plaintiff is a Member of a Protected Class and is Qualified for the Position in Question
The term " national origin" as used in Title VII has been interpreted as referring to " the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88, 94 S.Ct. 334, 336, 38 L.Ed.2d 287 (1973). The plaintiff is a United States citizen with a birthplace in Hawaii. However, the plaintiff is also of Hispanic (Puerto Rican) ancestry, with both of his parents having been born and raised in the Commonwealth of Puerto Rico. It is undisputed that on his initial application for employment at CTHSS, the plaintiff identified himself as " Hispanic." The court concludes that the plaintiff has made a prima facie showing that he is a member of a protected class, based upon his Puerto Rican ancestry.
No evidence has been put before the court creating any dispute as to whether the plaintiff was qualified for the position of Assistant Principal of a technical high school. In fact, the evidence is to the contrary. The plaintiff held the position of Assistant Principal for several years prior to the investigation and had apparently met or exceeded all of the qualifications for the position. He received an " exemplary" rating on his annual performance review for 2007-2008.
On the basis of the above, the court finds that the plaintiff satisfies the first and second elements of the test for a prima facie case of discrimination. Therefore, the court's analysis focuses on the third and fourth elements of the prima facie case.
D. The Plaintiff has Suffered an Adverse Employment Action.
The plaintiff claims he was subjected to several adverse employment actions: he was placed on paid administrative leave; he was given a five-day suspension without pay; he was subject to performance monitoring upon his return to work; he was required to attend a professional development course; and he was laterally transferred out of the position at Bristol Technical.
The defendant argues that most of these actions--and most especially the lateral transfer--are not materially adverse employment actions sufficient to impose Title VII liability. However, the defendant also concedes that the five-day suspension without pay was an adverse employment action. (See February 18, 2016 Memorandum of Law in Support of Motion for Summary Judgment [#140], p. 16.)
The burden of establishing a prima facie case does not require the plaintiff to prove anything more than that he suffered some identifiable adverse employment action. The fact that he is unable to establish that all the challenged employment actions were material and adverse does not diminish the fact that, for purposes of making out a prima facie case, he has established that one of the employment actions was material and adverse. For this reason the court finds that the plaintiff has satisfied the third element of the test for a prima facie case of illegal discrimination
E. Proof That the Adverse Employment Action Occurred Under Circumstances That Give Rise to an Inference of Discrimination.
The defendant argues that the plaintiff has not met his burden of coming forth with evidence that creates a genuine issue of material fact as to the fourth--and most crucial--element of the McDonnell Douglas test: proof that the adverse employment action occurred under circumstances that give rise to an inference of discrimination based upon national origin. " The employee must show that in all material respects, the employee was similarly situated to another employee, but was treated differently on the basis of [the employee's] protected trait." Cirino v. Jetro Holdings, LLC, 2014 WL 6996947, at *4 [59 Conn.L.Rptr. 203, ] (Nov. 6, 2014, Fischer, J.), citing United Technologies v. Commission on Human Rights, 72 Conn.App. 212, 226, 804 A.2d 1033 (2002).
The plaintiff points to several situations that he claims show that he was treated differently than similarly situated individuals that were not members of his protected class. Primarily, he relies upon a comparison of his circumstances to those of two other Department employees that he has identified.
The plaintiff's affidavit and memorandum in opposition refer to three comparators, but a close examination of response 11(f) in Exhibit 6 to the Affidavit of Gilbert Traverso suggests that only two individuals were the subject of complaints based on sexual harassment or sexual bias, and were subsequently disciplined based upon " unprofessional conduct" in a manner similar to plaintiff. One of the aforementioned individuals was also reported as having been previously disciplined for failure to perform an administrative obligation (complete staff performance evaluations), and a third individual was also disciplined for failing to complete staff performance evaluations. The plaintiff has not demonstrated in any way how those other two instances of discipline relate in any way to his claim.
The first comparator, a Caucasian female assistant principal, was investigated for claim of sexual harassment of a subordinate employee. The claim of sexual harassment was not substantiated, but " unprofessional conduct" was found. The Caucasian female assistant principal received a 5-day suspension, a letter of reprimand; a last chance warning; and a transfer to a new school.
The second comparator, a Caucasian male principal, was investigated for a biased performance evaluation based on the subordinate's female gender. The investigation verified that the Caucasian male principal had engaged in unprofessional conduct and had failed to follow administrative procedures. A last chance warning and a five-day suspension was recommended; a five-day suspension was ultimately imposed.
The plaintiff asserts that the treatment of these similarly situated Caucasian individuals was different from his treatment because neither of them " received the full range of discipline that the plaintiff received." Apparently, the plaintiff contends that the fact that neither individual was subject to performance monitoring upon return to work or was required to attend a professional development course; (and one of the individuals did not receive a lateral transfer) creates an issue of fact as to whether his treatment, when compared to theirs, gives rise to an inference of discrimination. The court cannot agree. To the extent that additional disciplinary conditions were imposed upon the plaintiff that were not imposed upon the two identified comparators, those were not material adverse changes in employment for purposes of a discrimination claim. " Not every action that is perceived negatively by an employee is a materially adverse change in the terms and conditions of employment." Mills v. Southern Connecticut State University, 2011 WL 3490027, at *6 (D.Conn. Aug. 10, 2011), aff'd, 519 Fed.Appx. 73 (2d Cir. 2013). " As a general matter, excessive scrutiny and criticism on the job are not adverse employment actions. Scrutiny and criticism can qualify as adverse actions only when they lead to other negative results such as a decrease in pay or being placed on probation." (Internal quotation marks and citation omitted.) Daniels v. Connecticut, 2015 WL 4886455, at *7 (D.Conn. Aug. 17, 2015). None of the " differences in treatment" between the plaintiff and the suggested comparators rises to the level of a material adverse change in the terms and conditions of employment.
The plaintiff also suggests that he was treated differently than the woman who made the sexual harassment complaint against him, a Caucasian female. The plaintiff was immediately placed on administrative leave and immediately required to leave the Bristol Tech grounds and refrain from coming to the school until further notice. The sexual harassment complainant was not placed on leave nor was she required to leave the school premises. However, that individual is in no way similarly situated to the plaintiff. The plaintiff was the Assistant Principal and highest administrative official at Bristol Technical; his situation cannot be considered similar to that of a school guidance counselor who is his subordinate and is two administrative levels below him. Furthermore, no evidence was submitted showing that person had ever had been investigated for engaging in sexual harassment. Although the allegedly similar " circumstances need not be identical . . . there should be a reasonably close resemblance of facts and circumstances." Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001). The facts and circumstances giving rise to the plaintiff's discipline bear little resemblance to those of the complaining guidance counselor.
The plaintiff also alleges that upon his transfer from Bristol Technical he was replaced by a Caucasian male holding the higher position of Principal, who also was given the support of an administrator. This fact, standing alone and lacking any causal nexus to the plaintiff's protected status, does not give rise to an inference of discriminatory animus.
Finally, it is suggested that an inference of discrimination may be drawn from circumstantial evidence suggesting that the Department did not follow its own written procedures in conducting the investigation of the plaintiff. For the most part, the proof on this question was thin and conjectural. The plaintiff offered no admissible evidence that the written procedures were routinely followed in other cases, much less investigations of persons outside his protected class. Although the burden to make out a prima facie case may be slight, it cannot be satisfied by conjecture and supposition. None of this evidence creates a genuine issue of material fact as to whether the failure to follow procedures in the plaintiff's case gives rise to an inference of discrimination based on national origin.
The plaintiff has not carried his minimal burden of producing evidence to show that employees outside of his protected class were treated more favorably than him, such that an inference of discrimination is warranted. Although the plaintiff has successfully negotiated the first three steps McDonnell Douglas burden shifting analysis, he has failed to produce evidence that would create a genuine issue of material fact as to the fourth--and arguably most critical--step in that analysis: whether the defendant's employment actions give rise to an inference of discrimination based upon national origin.
Since the plaintiff has failed to demonstrate the existence of a genuine issue of material fact as to his inability to make out a prima facie case of discrimination based on national origin, this court need not consider the remaining two steps of the McDonnell Douglas burden shifting analysis and finds that the defendant is entitled to judgment on the plaintiff's claim of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the Connecticut Fair Employment Practices Act (" CFEPA"), Conn. Gen. Stat. § 46a-60(a)(1).
This conclusion also eliminates any need for analysis of the defendant's claims that summary judgment should be granted as to claims that are time barred, or barred by the doctrine of sovereign immunity.
III. CONCLUSION
For the foregoing reasons, the court concludes that there is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law. Summary judgment is therefore granted.