Opinion
No. CV-04-4001818-S
January 24, 2008
MEMORANDUM OF DECISION
The plaintiff has brought this racial discrimination in employment action against his former employer, the Town of East Haven ("Town"). He alleges that he is an African-American male who was hired by the Town as a laborer and maintenance assistant for varying periods of time between May 28, 2001 through October 4, 2002, when he was last laid off by the Town. He claims that he was encouraged to apply and in fact did apply for numerous vacant permanent positions with the Town but was not hired because of his race. In particular, he alleges that he had applied for the permanent position of Maintenance Assistant within the Department of Public Works, but that the position was instead filled by a less qualified Caucasian male. He also contends that during the course of his employment, the Town consistently denied his requests for outdoor work assignments, which carried a higher rate of pay, and that those assignments were also routinely given to white employees "less qualified than the plaintiff and with less seniority than the plaintiff." The defendant has either denied the principal allegations of the complaint or left the plaintiff to his proof with respect to those allegations.
The case was originally claimed for a trial by jury, but both parties agreed to waive their right to a jury and instead to try the case before the undersigned. The court heard testimony and argument on January 9 and 10, 2008, and both sides filed their briefs by January 18, 2008.
The plaintiff has brought this action pursuant to the Connecticut Fair Employment Practices Act (Conn. Gen. Stat. §§ 46a-60, et seq.) which first requires the plaintiff to make out a prima facie case of discrimination by proving that: (1) he is a member of a protected class; (2) he was qualified for the positions for which he applied; (3) he suffered an adverse employment action; and, (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Department of Transportation v. Commission on Human Rights and Opportunities, 272 Conn. 457, 464 (2005). "Once the prima facie case has been established, 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." Id. (Citations omitted).
"Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the [plaintiff] then must prove by a preponderance of the evidence that the employer intentionally discriminated against him," Id. that the ostensibly legitimate reasons offered by the employer "were not its true reasons, but were a pretext for discrimination." Board of Education v. Commission on Human Rights and Opportunities, 266 Conn. 492, 507 (2003). "It is not enough to disbelieve the employer; the factfinder must believe the [plaintiff's] explanation of intentional discrimination." Id. at 508. "Stated another way, there must be sufficient evidence on the record that the protected trait or traits played a role in the decision-making process and actually motivated the employer's decision." Id. at 507. The evidence must "give rise to the inference of actual discrimination in the hiring process, not merely speculation of discrimination." Craine v. Trinity College, 259 Conn. 625, 644 (2002).
The defendant does not dispute that the plaintiff is an African-American and is therefore a member of a protected class. Nor does the Town disagree that the plaintiff experienced an adverse employment decision. As to the other two elements of this discrimination claim, however, the parties disagree profoundly.
The plaintiff himself was the only witness to testify on his behalf. He described the history of his employment relationship with the town, which in the court's view, was characterized by a series of temporary or "durational" (i.e. designed to cover a position for an absent employee until that employee's return) positions. The plaintiff claims that he was assured that he was "permanent," but there was no evidence to corroborate this contention, which was in part belied by the plaintiff's own testimony that he was also encouraged to apply, and did apply, for every posted "permanent" position. The plaintiff did not appear to have understood (or, if he understood it, to appreciate the significance of) the fact that members of the union (plaintiff was not a member) had the first opportunity to fill these posted positions and that they usually did do so. Only in the case of the last position for which he applied, in which process none of the 41 applicants were union members, could the plaintiff have been a viable candidate. The plaintiff was ranked third out of four finalists for the position, which eventually was awarded to the top ranked applicant, a white male named Gaetano Bernardo. The plaintiff contends that Bernardo had a shorter temporary work history with the town than he and was less qualified, and he therefore urges the court to conclude that the only reason Bernardo got the job was that Bernardo was white and the plaintiff was black.
The plaintiff had also testified to racial slurs made by his supervisors, but, strangely, he was unable to recall any of the specific words used by any of them during the presentation of his case in chief. The only comments that could be viewed as derogatory were four statements, all attributed to the Public Works Director, Kevin White, to which he testified as a rebuttal witness: 1) "That's why we don't hire people like you"; 2) "We had a lot of people like you working here one year and that's why we no longer hire anyone like you"; 3) that plaintiff was "the token person" in the department; and 4) "During the summer, the Town hired blacks but they were drunk and lazy so that's why we don't hire people like you." Following the earlier testimony that he could not recall any of the slurs specifically, or when, or how often (his estimates at various points in his testimony ranged from once to thousands, but in eventually settled on ten to fifteen) they occurred, these "recollections" appeared to the court to be a bit to conveniently "recalled" to be believed. The court also notes that no allegations of racial slurs were included in the plaintiff's CHRO affidavit, which he had submitted only a few months after his employment with East Haven had ended, and there is no corroboration whatever of such comments having been made, or, even if made, their role, if any, in the employment decision-making process.
The Town had moved for judgment at the close of the plaintiff's case, based on its contention that the plaintiff had failed to make out even a prima facie case of discrimination. The court viewed this as a close question at the time and reserved judgment on the issue, thus requiring the Town to present its defense in full at trial. Recognizing that the quantum of evidence required to establish a prima facie case is minimal, the court concludes, for purposes of this Memorandum of Decision, that the plaintiff met this threshold burden. For the reasons that follow, however, the court also concludes that the Town's explanation for its not hiring the plaintiff in a permanent capacity had a legitimate factual basis, and that the plaintiff has failed to establish that the Town intentionally discriminated against him or that its stated reasons for not hiring him were pretextual.
With regard to the opening for the position of permanent maintenance assistant, the Town established that the position required, at a minimum, a high school diploma or equivalent. The plaintiff applied for that position despite the fact that he had only completed the eighth grade. Although the plaintiff argued that, in his view, a high school diploma was a ridiculous requirement for a maintenance position, the court concludes that the plaintiff has thus failed to establish a necessary element of his claim, namely, that he was qualified for the position. While the plaintiff has a right to wonder why such a position would require a 12th grade education, it is not for this court to rewrite the job description based on the plaintiff's conception of the job and its requirements.
Moreover, even if it could be argued that the Town, by including the plaintiff as one of the four finalists for the position, had somehow waived the high school diploma argument, Watkins has still failed to show that the Town, in hiring Gaetano, discriminated against the plaintiff. While one could certainly appreciate that the plaintiff might speculate that he was a victim of discrimination, it is the evidence presented in court, and not anyone's speculation, that must form the basis of the court's decision.
The Town, on the other hand, produced evidence of legitimate, nondiscriminatory reasons for its decision not to hire the plaintiff. As mentioned, the Town compared his application with some forty others and placed him in the pool of four finalists, eventually finding two other candidates to be better qualified. The court also heard less than flattering testimony about the plaintiff from three of his supervisors, described more fully in the following paragraph. Although this testimony in no way suggested that the plaintiff was a bad person or employee, it did reveal legitimate reasons . . . a lackluster performance in keeping bathrooms clean, and spending too much time talking to mechanics and not enough time performing his building maintenance duties, for example . . . that would, over and above the lack of a high school diploma or GED, support a conclusion that he might not be the best candidate for the posted position. Bernardo's reviews were uniformly better, even though he had spent somewhat less time filling temporary and durational positions than had the plaintiff and the court concludes that the town therefore had a legitimate basis for concluding that Bernardo had outperformed the plaintiff in their respective temporary positions with the Town. While the court felt that there was something self-serving about the supervisors' denials that they would never tolerate any kind of racial slurs in their presence, the court nonetheless concludes that race was not a factor in the decision-making process in this case.
The court heard testimony, to a considerable extent corroborated by the plaintiff, of frequent oral warnings by his supervisors regarding work performance issues. Specifically, as a maintenance assistant, the plaintiff was responsible for keeping the Public Works building clean. Dan Latorraca (former Superintendent of Operations) and Kevin White (former Director of Public Works) both testified that the plaintiff failed to keep the building clean. In fact, the plaintiff himself acknowledged that Latorraca had complained to him about the building's bathroom being dirty. The plaintiff also admitted that he was aware that the Public Works Department foremen (Frank Apuzzo, Nick Pizzarusso and Richard Dorman) had criticized his work performance.
Although most of these warnings were not reduced to writing, the Town presented some documentary evidence, including White's June 4, 2002 calendar entry that he had given the plaintiff a poor assessment. On July 2, 2002, White also noted in a memorandum that he had again spoken to the plaintiff "concerning his work habits, problems with worrying about responsibilities not in his purview, and not enough time performing his work duties." On September 4, 2002, Latorraca prepared a memo indicating that he had spoken to the plaintiff about work performance issues — namely, that the plaintiff needed to spend more time cleaning the building and less time talking with the mechanics.
Bernardo, however, was described as an excellent temporary/durational employee with no work performance issues. Mr. Bernardo and the plaintiff began working as temporary employees for East Haven on the same date (May 28, 2001). Bernardo's supervisors (White, Latorraca, and Apuzzo) described him as a very good worker with an excellent work ethic. They claimed that they had heard no complaints regarding his performance, nor did the plaintiff have anything negative to say about him, other than that Bernardo had less seniority and had a close personal relationship with Apuzzo.
With regard to the other vacant permanent positions in East Haven for which the plaintiff applied, he was unable to identify and/or describe many of them with much specificity. He also did not know whether they were filled, and, if so, by whom. He therefore has been unable to establish that he was qualified for any of these positions or that he was discriminated against in favor of a white candidate. As previously indicated, there was evidence suggesting that many of these positions were ones which first had to be offered to those with union membership, a qualification which the plaintiff certainly lacked. The court thus concludes that the plaintiff has not overcome the defendant's proof that it had legitimate reasons for not hiring him for these positions and that its reasons were not pretextual.
The court reaches a similar conclusion with regard to the plaintiff's claim that he requested to be assigned outdoor work, which carried a better rate of pay, but was given such an assignment because of his race. First, the plaintiff acknowledged that on occasion he had indeed been assigned to cut grass for the Parks Department and Sewer Department, fill potholes, and deliver equipment when there was a shortage of man-power for the day. Moreover, as the plaintiff was the only maintenance assistant at the Public Works Department, taking away for outside work could result in less care being given to the building's cleanliness. Finally, the plaintiff presented no credible evidence that the lack of outdoor assignments was in any way racially motivated.
The plaintiff also introduced no evidence of actual damages. In light of the fact that he has failed to establish liability under the statute, however, the damages issue is moot.
At trial, the both parties made reference to the decision of the United States District Court in NAACP v. Town of East Haven. 998 F.Supp. 176 (1998). The plaintiff urged the court to consider his case in the context of the history that led up to that decision. The Town urged the court to recognize that following Judge Dorsey's decision in that case, it has made great strides in welcoming Afro-American workers onto its employment rolls. This case, however, is not about that alleged history or those claims of progress, and this decision should be interpreted neither as an endorsement of nor a repudiation of the Town's claims that it has improved race relations there, particularly in the employment sphere. This decision merely represents a conclusion, based on the evidence submitted at trial, that this particular plaintiff has failed to carry the burdens necessary for him to prevail in his claim that any adverse employment decision he may have experienced was based on racial discrimination.
For all of the above reasons, judgment will enter in favor of the defendant.