Opinion
HHBCV156028746S
08-30-2016
Janet Baron v. Town of Berlin et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Robert E. Young, J.
ALLEGATIONS AND PROCEDURAL HISTORY
In her fourth amended complaint, dated July 22, 2015, the plaintiff, Janet Baron, has asserted causes of action against the defendants, Town of Berlin, Joseph Ferraro, assessor for the Town of Berlin, in both his individual and professional capacities, and Jim Wren, finance director for the Town of Berlin, in his official capacity. The causes of action against Ferraro and Wren were subsequently withdrawn. The sole remaining defendant is Town of Berlin (the Town). The plaintiff alleges the following facts.
In July 2012, the Town advertised that it was hiring for the position of assessment technician (the position). Ferraro was employed by the Town as town assessor. Wren was employed by the Town as finance director. Ferraro, Wren, and Ann Cameron, the outgoing assessment technician, comprised the interview panel for the position. The plaintiff is a certified real estate appraiser and met the posted qualifications for the position. The hiring panel conducted interviews with nine candidates and ranked the plaintiff the highest at the end of the interviews.
Subsequently, Ferraro learned of the plaintiff's sexual orientation and that the plaintiff was married to a woman. The hiring panel then contacted the plaintiff and, for the first time, notified her that she would be required to undergo a field test. Ferraro instructed the plaintiff that she was to measure a residential home. In contrast to his instructions to three applicants who were given the field test, he did not instruct the plaintiff prior to the field test that she was also expected to list the amenities and attributes of the home. Due to Ferraro's inadequate instructions, the plaintiff was disadvantaged in her ability to list the home's amenities and was evaluated poorly on that portion of the field test. The hiring panel ultimately offered the position to another candidate, a heterosexual male who was ranked by the hiring panel below the plaintiff after the interview, but who scored higher than the plaintiff on the field test. The plaintiff alleges that the Town's administration of the field test to her, and the Town's reliance on it in declining to hire her, was pretext for discrimination on the basis of her sexual orientation and marital status.
The plaintiff further alleges that, after she was rejected for the position in 2012, she became a Connecticut Certified Municipal Assessor I. She learned in January 2013, that the individual hired in 2012 for the position had been or was about to be terminated. The plaintiff contacted the Town expressing her interest. Wren informed her that the position was not currently open, but he would notify her if it became open. No one contacted the plaintiff when the Town did post the position. Nevertheless, the plaintiff applied for the position. The hiring panel for the position declined to interview the plaintiff because of her poor score on the 2012 field test. The Town ultimately hired a heterosexual male who was less qualified than the plaintiff. The plaintiff alleges that the Town's reliance on the 2012 field test was pretext and a continuation of the Town's earlier discrimination based on sexual orientation and marital status.
In August 2013, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). After the plaintiff filed her complaint with CHRO, Ferraro approached multiple individuals who worked as town assessors at various public meetings and educational events for assessors and told them that the plaintiff was not competent in her work. He further told them that the plaintiff was bringing an action against the Town, and that such action would harm her ability to be employed by another town as an assessor. The plaintiff alleges that Ferraro's statements harmed her reputation as an assessor and damaged her ability to work as an assessor in Connecticut. She further alleges that Ferraro, as town assessor, made such comments to other assessors in retaliation for the plaintiff filing a complaint with CHRO. On April 6, 2015, CHRO provided the plaintiff with a release, allowing her to bring a claim in Superior Court. Additional allegations will be discussed as they relate to the Town's grounds for summary judgment.
The first count of the fourth amended complaint is entitled " Count One, " and alleges discrimination based on marital status and sexual orientation arising from the 2012 hiring decision. The second count, entitled " Count Two, " alleges that the Town aided and abetted discrimination based on marital status and sexual orientation arising from the 2013 hiring decision. The sixth count, entitled " Count Six, " alleges that the Town engaged in retaliation for the plaintiff's complaint to CHRO arising from slanderous statements made by Ferraro to other assessors in the state.
The complaint does not comply with Practice Book § 10-26.
The third, fourth and fifth counts were directed towards Ferraro in his individual capacity. As the action has been withdrawn as to Ferraro, it is presumed that these counts are withdrawn.
On September 4, 2015, the Town filed an answer and special defenses. As special defenses, it pleaded that: (1) the first count was barred by the 180-day statute of limitations; (2) any allegations of discriminatory conduct in the second count that occurred more than 180 days prior to the filing of the plaintiff's complaint with CHRO are barred by the statute of limitations; and (3) any allegations of discriminatory conduct in the sixth count that occurred more than 180 days prior to the filing of the plaintiff's complaint with CHRO are barred by the statute of limitations.
The Town has moved for summary judgment to which the plaintiff filed an objection. The Town filed a reply to the objection. The parties argued their respective positions at short calendar on June 20, 2016.
LEGAL STANDARD
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
" 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). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
ANALYSIS
I. First count
The town argues that it is entitled to summary judgment on the first count, which alleges discrimination arising from the 2012 hiring decision, because the plaintiff failed to exhaust her administrative remedies for that claim, namely, by not filing a complaint with CHRO within 180 days of the 2012 hiring decision. It further asserts that the plaintiff's reference to the 2012 hiring decision in her complaint to CHRO filed after the 2013 hiring decision did not constitute a waiver on the part of CHRO to the 180-day requirement for the 2012 hiring decision because the plaintiff expressly stated that the 2013 complaint only concerned the 2013 hiring decision and not the 2012 hiring decision. The Town further argues that, even if the plaintiff exhausted her administrative remedies for the 2012 hiring decision in regard to her sexual orientation, she failed to do so for a claim of marital discrimination because she never raised that claim with CHRO. Finally, the Town argues that any claim of marital discrimination is insufficient because the plaintiff does not allege that she was discriminated against because of her status as a married person, but, rather, because of the particular person she was married to, namely, a woman.
In response, the plaintiff argues that she exhausted her administrative remedies for a claim of discrimination arising from the 2012 hiring decision because she included the allegations as evidence in her claim to CHRO for the 2013 hiring decision. She asserts that the court should apply a loose pleading standard to her 2013 complaint with CHRO because she was self-represented at the time of the complaint. She further argues that the 2013 hiring decision relates back to the Town's conduct in 2012 because the hiring panel based its 2013 decision on the results of the 2012 field test. She also argues that the 180-day filing requirement is not jurisdictional and can be waived by CHRO and the Town. She asserts that such waiver occurred because she made allegations in her 2013 complaint concerning the 2012 hiring process and neither CHRO nor the Town raised the 180-day filing requirement at that time. Finally, the plaintiff argues that her marital status claim is reasonably related to her sexual orientation claim and is legally sufficient because it is based on the gender of her spouse and not her spouse's individual identity.
There were several additional bases asserted by the Town, including an argument that General Statues § 46a-58(a) does not create a private cause of action and that there is no state constitutional cause of action for employment discrimination. The plaintiff conceded these grounds at oral argument.
The assertion that the plaintiff failed to exhaust her administrative remedies invokes the subject matter jurisdiction of the court. " The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . Under that doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Republican Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55 A.3d. 251 (2012). This issue should have been raised in the form of a motion to dismiss. See Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006) (" [i]n general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action"); see also Practice Book § 10-30(a) (" [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter . . ."). Nevertheless, " [t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised. " (Emphasis added; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " Once a party has raised an issue of subject matter jurisdiction, the court must immediately act on it before proceeding to any other action in the case." Cumberland Farms, Inc. v. Dubois, 154 Conn.App. 448, 455 n.7, 107 A.3d 995 (2014).
" [W]hen a plaintiff fail[s] to follow the administrative route prescribed by the legislature for his claim . . . the plaintiff fails to exhaust his or her administrative remedies." (Citation omitted; internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 169, 745 A.2d 178 (2000). " As a general rule, under Connecticut law, an individual alleging violation of the Connecticut Fair Employment Practices Act [CFEPA], General Statutes § § 46a-60 et seq., must first file a claim with the CHRO and exhaust administrative remedies." Longo v. Allied Mechanical Services, LLC, Superior Court, judicial district of New Haven, Docket No. CV-13-6036612-S, (June 20, 2013, Nazzaro, J.).
A claim for the violation of the act must be filed first with the CHRO because " CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the commission. It is the commission that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 746, 84 A.3d 895 (2014). Furthermore, " [i]n accordance with the requirements of General Statutes § § 46a-100 and 46a-101, a person who has filed a complaint with the commission alleging a discriminatory practice must receive a release of jurisdiction from the commission before bringing an action for discrimination in Superior Court." Jacobs v. General Electric Co., 275 Conn. 395, 398 n.1, 880 A.2d 151 (2005).
General Statutes § 46a-101(a) provides in relevant part: " No action may be brought in accordance with section 46a-100 unless the complainant has received release from the commission in accordance with the provisions of this section."
" Notwithstanding the important public policy considerations underlying the exhaustion requirement, this court has carved out several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes." (Citation omitted; internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 340, 972 A.2d 706 (2009). " One such exception permits the court to exercise jurisdiction over a charge that was not presented during an administrative proceedings as long as it is reasonably related to the conduct complained of during the administrative proceedings . . ." (Emphasis added.) Tatro v. Cascades Boxboard Group Connecticut, LLC, Superior Court, judicial district of New London, Docket No. CV-09-4009597-S, (April 22, 2010, Martin, J.). In recognizing this general exception, and in defining the scope of this exception, our courts have looked to federal law for guidance.
" [W]hen an overlap between state and federal law is deliberate, federal precedent is particularly persuasive . . . Additionally, we have been reluctant to interpret state statutory schemes in a manner at odds with federal schemes on which they are modeled." (Citation omitted.) Ware v. State, 118 Conn.App. 65, 81, 983 A.2d 853 (2009). " In drafting and modifying the Connecticut Fair Employment Practices Act (fair employment act), General Statutes § 46a-51 et seq., our legislature modeled that act on its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and it has sought to keep our state law consistent with federal law in this area . . . Accordingly, in matters involving the interpretation of the scope of our antidiscrimination statutes, our courts consistently have looked to federal precedent for guidance." (Citation omitted.) Id., 82.
" There are three types of claims that courts [in the Second Circuit] will find are 'reasonably related' to the ones asserted in an administrative filing: (1) claims where the conduct complained of would fall within the scope of the administrative investigation; (2) claims alleging retaliation by an employer against an employee for filing an administrative charge; and (3) claims where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the administrative charge." Zawacki v. Realogy Corp., 628 F.Supp.2d 274, 283 (D.Conn. 2009); see also Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003); Butts v. Dept. of Housing Preservation & Development, 990 F.2d 1397, 1402-03 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998).
The first exception is the only one which may be applicable here. It involves claims " where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination . . ." (Internal quotation marks omitted.) Terry v. Ashcroft, supra, 336 F.3d 151; see also Ware v. State, 118 Conn.App. 65, 82-87, 983 A.2d 853 (2009) (applying the first exception). The court in Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003), explained the rationale for this exception as follows: " This exception to the exhaustion requirement is essentially an allowance of loose pleading and is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering." (Internal quotation marks omitted.) Id., 201. This exception recognizes the fact that " precise pleading is not required for Title VII exhaustion purposes . . ." (Citation omitted.) Id., 202. " [A] plaintiff need not use precise terms to classify the type of discrimination alleged before the administrative agency as long as the facts alleged give the agency adequate notice to investigate discrimination on [all] bases." (Internal quotation marks omitted.) Collins v. University of Bridgeport, 781 F.Supp.2d 59, 63 (D.Conn. 2011).
" In determining whether claims are reasonably related, the focus should be on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving." (Internal quotation marks omitted.) Deravin v. Kerik, supra, 335 F.3d 201. The courts read administrative complaints broadly to ascertain whether the allegations in them are " reasonably related" to those in a subsequent lawsuit. See Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 1998) (" it is [the] substance of the charge and not its label that controls"). Nevertheless, in order for allegations to serve as predicates for other allegations in the complaint, the predicate allegations must be sufficiently specific to enable the EEOC to investigate it. See Butts v. Dept. of Housing Preservation & Development, supra, 990 F.2d 1403. The underlying allegations must be " [capable] of inviting a meaningful EEOC response . . ." Id. Thus, " [i]n determining whether a particular claim is reasonably related to the plaintiff's EEOC complaint, [w]e look not merely to the four corners of the often inarticulately framed charge, but take into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." (Internal quotation marks omitted.) Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992).
In the present case, the plaintiff filed a complaint with CHRO on August 9, 2013, more than 180 days after the 2012 hiring decision. In her complaint, the plaintiff claimed that the Town failed to interview the plaintiff for the 2013 position, and ultimately hired a less qualified candidate due to her sex and sexual orientation.
In its answer to the plaintiff's complaint to CHRO, the Town alleged that the plaintiff was not hired because she scored lower on the field exercise than the individual hired for the position in 2012. In her response to the Town's answer, the plaintiff stated, " The [defendant's] answer for not being hired in 2012 for having a lower score than the individual hired in 2012 is irrelevant. The Complaint is for not being interviewed in 2013." In an addendum to her complaint, dated September 25, 2013, the plaintiff also stated, " My initial complaint against [the Town] is for not interviewing me for a position of employment based on my gender and sexual orientation, and ultimately hiring a heterosexual male who was less qualified for the position than I was."
While the allegations of the complaint to CHRO reference the 2012 field test and the 2012 hiring decision, the plaintiff expressly stated in response to the Town's answer that she was not bringing the 2012 hiring decision as a claim in her complaint. Therefore, although referencing the 2012 hiring decision in the complaint, the plaintiff excluded the 2012 hiring decision from the scope of CHRO's investigation. As a result, the plaintiff failed to exhaust her administrative remedy for the 2012 hiring decision.
Because the plaintiff failed to exhaust her administrative remedies with CHRO, the court lacks subject matter jurisdiction over the allegations of the first count. Republican Party of Connecticut v. Merrill, supra, 307 Conn. at 477. " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). The court, sua sponte, dismisses the first count. As the court has determined it does not have subject matter jurisdiction over the allegations of the first count, it does not reach or address the other grounds for summary judgment as to the first count.
II. Second Count
The second count concerns the 2013 hiring decision and alleges that the Town aided and abetted discrimination based on marital status and sexual orientation. The Town asserts that it is entitled to summary judgment on the second count in which the plaintiff claims the Town aided and abetted discrimination because the plaintiff failed to raise such a claim in her complaint with CHRO. Therefore, the Town argues that the plaintiff failed to exhaust her administrative remedy for the second count. As with the analysis of the Town's assertions in the first count, the court must consider this an attack on subject matter jurisdiction, and must address this ground first. Again, as to such an attack, the analysis is one of dismissal, not summary judgment.
The Town asserts further grounds for summary judgment: (1) that the claim of aiding and abetting is legally insufficient because an employer cannot aid and abet its own discriminatory conduct; (2) that the marital status discrimination claims are limited to claims based on a person's status as a married person and not discrimination based on the particular person they are married to; and (3) that even if the court were to consider the merits of a claim of discrimination for the 2013 hiring decision, it is entitled to summary judgment because the plaintiff cannot establish a prima facie case of discrimination based on sexual orientation because the Town had a valid, nondiscriminatory reason for not hiring the plaintiff, and the plaintiff does not have any evidence that the nondiscriminatory reason was pretext for discrimination.
The plaintiff argues that her claim of aiding and abetting arising from the 2013 hiring decision is reasonably related to her complaint with CHRO because the aiding and abetting allegations flow from the allegations of the 2013 complaint. She further argues that she has established a prima facie case of discrimination based on sexual orientation and marital status for the 2013 hiring decision and there are genuine issues of material fact related to whether the Town's use of the 2012 field test results was pretext for discrimination.
A. Failure to Exhaust
Unlike its argument as to the first count, the Town's argument of failure to exhaust fails as to the second count. The plaintiff brought a claim of discrimination based on sexual orientation within 180 days of the 2013 hiring decision. While the plaintiff expressly excluded the 2012 hiring decision from her complaint to CHRO, this does not preclude consideration of the 2012 field test in her claim for discrimination based on the 2013 hiring decision. The plaintiff alleged that the Town used the 2012 field test as pretext for not interviewing her or hiring her in the 2013 hiring decision. This allegation would reasonably have led to CHRO investigating the administration of the 2012 field test in analyzing the claim of the 2013 hiring decision. Therefore, the 2012 field test was reasonably related to the 2013 hiring decision and not barred by the exhaustion doctrine. Gomes v. Avco Corp., supra, 964 F.2d 1334. The court has subject matter jurisdiction over this claim, so this claim cannot be dismissed on that basis. There is no ground for the granting of summary judgment as to this claim.
B. Aiding and Abetting by an Employer
General Statutes § 46a-60(a)(5) provides in relevant part that " [i]t shall be a discriminatory practice . . . [for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so . . ."
" The law in Connecticut is clear that while an individual employee may be held liable for aiding and abetting [her] employer's discrimination, an employer cannot be liable for aiding and abetting its own discriminatory conduct . . . This is similar to Connecticut's intracorporation conspiracy doctrine where, if the allegations involve only one corporate entity acting through its employees, no conspiracy claim can stand . . .
" [The plaintiff] may seek recovery from individual [defendant's] employees for illegally aiding and abetting discrimination against him, should he choose to file an independent lawsuit or to join those parties . . . to this action. His remedy for the company's conduct, however, lies in the direct claims of discrimination he has raised in . . . his complaint." (Citation omitted; emphasis omitted.) Canty v. Rudy's Limousine, United States District Court, Docket No. 3:04CV1678, (D.Conn. September 15, 2005).
In the present case, the plaintiff has labeled the second count of her complaint as a claim for aiding and abetting invidious discrimination based upon sexual orientation and/or marital status. The label affixed to the count, however, does not end the court's inquiry. " When a case requires [the] court to determine the nature of a pleading filed by a party, [the court is] not required to accept the label affixed to that pleading by the party." (Internal quotation marks omitted.) Javit v. Marshall's, Inc., 40 Conn.App. 261, 266, 670 A.2d 886, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). Read broadly and realistically, the plaintiff's second count alleges that the Town, through the actions of its employee, Ferraro, refused to hire the plaintiff, despite the fact that she was more qualified than the successful candidate, due to discrimination based on sexual orientation and/or marital status. This interpretation is supported by the fact that the claim raised to CHRO against the Town was that of discrimination based on sexual orientation or sex, and not a claim of aiding and abetting, and was based on the same underlying facts. Therefore, while a claim for aiding and abetting would not be allowed against the Town, as an employer, the plaintiff's claim in the second count of discrimination based on sexual orientation is a valid claim and the motion for summary judgment on this ground is denied.
C. Marital Status Discrimination
" [T]he definition of 'marital status' can only be the condition of being single, married, separated, divorced or widowed. The marital status of a married individual is 'married, ' and the identity of the individual's spouse does not affect that status." Blackwell v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. 321561, (June 26, 1996, Moraghan, J.) (noting that while other jurisdictions consider the identity of a spouse, Connecticut legislative history does not support such definition).
In the present case, the plaintiff argues that her claim of marital status discrimination is not based on the specific identity of her spouse, such as in a claim of discrimination based on an anti-nepotism policy, but on the fact that it is a same-sex marriage. The plaintiff's allegation is that she was discriminated against because of her relationship with another woman, not that she is married. Thus the claim is not of marital status discrimination. Rather, it is a claim of discrimination based on sexual orientation. Therefore, the motion for summary judgment on the ground that the action is one of marital status discrimination is denied
D. Sexual Orientation Discrimination
" 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." (Footnote omitted; internal quotation marks omitted.) Tomick v. United Parcel Service, Inc., 157 Conn.App. 312, 325, 115 A.3d 1143, cert. granted, 317 Conn. 916, 117 A.3d 854 (2015).
" In general, to establish a prima facie case of discrimination [under the McDonnell Douglas Corp.-Burdine framework], the complainant must demonstrate that (1) [she] is in the protected class; (2) [she] was qualified for the position; (3) [she] suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination . . . The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor . . . Under the McDonnell Douglas-Burdine [framework], the burden of persuasion remains with the plaintiff . . . Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the [Town] to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's rejection . . . Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas - Burdine [framework] does not shift the burden of persuasion to the [Town]. Therefore, [t]he [Town] need not persuade the court that it was actually motivated by the proffered reasons . . . It is sufficient if the [Town's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff . . . Once the [Town] offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual." (Citation omitted; internal quotation marks omitted.) Id., 326-37.
More specifically, the burden shifts to the plaintiff, and " [the plaintiff] now must have the opportunity to demonstrate that the [Town'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 [Town] or indirectly by showing that the [Town's] proffered explanation is unworthy of credence . . . Employment discrimination therefore can be proven either directly, with evidence that the [Town] was motivated by a discriminatory reason, or indirectly, by proving that the reason given by the [Town] was pretextual." (Internal quotation marks omitted.) Harris v. Dept. of Correction, 154 Conn.App. 425, 431, 107 A.3d 454 (2014), cert. denied, 315 Conn. 925, 109 A.3d 921 (2015).
In the present case, the Town does not dispute that the plaintiff, as a homosexual woman, is in a protected class, that she was qualified for the position, and that she suffered an adverse employment action, namely the 2013 decision not to hire her. The Town, however, argues that the plaintiff cannot make a prima facie case of discrimination because there is no evidence giving rise to an inference of discrimination. In response, the plaintiff points to the affidavit of Shawna Baron, the plaintiff's spouse, in which Baron states that when Ferraro learned from Baron that she and the plaintiff were married, he responded " whatever" in a sarcastic tone of voice. Ferraro, in his affidavit, states that he said " whatever" because he did not care whether or not the plaintiff and Baron were in a relationship. While, ultimately, a jury may credit Ferraro's testimony concerning his statement and not credit that of Baron, the affidavit provides evidence of an inference of discrimination sufficient to survive a motion for summary judgment. Whether Ferraro's statement was derogatory or merely disinterested is a genuine issue of material fact.
Since the plaintiff can present a prima facie case of discrimination based on sexual orientation, the Town must produce a valid nondiscriminatory reason for the 2013 hiring decision. The Town has done so. Specifically, the Town has stated that that the plaintiff's poor performance on the 2012 field test was a valid nondiscriminatory reason to decline to interview or hire her for the position. Poor performance on a field test performed within a few months of the 2013 hiring process would be an appropriate reason to not interview a candidate.
The Town argues that there is no evidence that would prove that the proffered reason for not interviewing the plaintiff was pretext for discrimination. Therefore, to survive summary judgment, the plaintiff must provide evidence that use of the 2012 field test was merely pretext for discrimination on the basis of sexual orientation. The plaintiff argues that there is evidence of pretext because she stated in her affidavit that she was given different instructions for the 2012 field test than at least two of the three other candidates who completed the test. She argues that this disparity when combined with the Ferraro sarcastic comment, made shortly before requiring the plaintiff to perform a field test, is evidence of discrimination based on sexual orientation. There is a genuine issue of fact as to the circumstances surrounding the comment and the circumstances surrounding the giving of the instructions, both of which bear on the claim of pretext for discrimination based on sexual orientation. Therefore, summary judgment on the claim of discrimination on the basis of sexual orientation is inappropriate
III. Sixth Count
The Town argues that it is entitled to summary judgment on the sixth count because the plaintiff cannot establish a prima facie case of retaliation. Specifically, the Town argues that the statements allegedly made by Ferraro do not constitute an adverse employment action because they did not constitute a materially adverse change to the terms and conditions of the plaintiff's employment. The Town further argues that Ferraro's statements cannot constitute retaliation because he was not acting in his official capacity when he made the alleged statements. The Town finally argues that there is no evidence that the alleged statements materially harmed the plaintiff by preventing her from gaining employment elsewhere since the parties who heard the statements did not believe the statements.
The Town also argues that insofar as the sixth count alleges a claim under General Statutes § 46a-58(a) or the Connecticut constitution, the sixth count is insufficient as a matter of law because (1) a claim of a discriminatory act under § 46a-58(a) cannot include a claim that would fall under § 46a-60 and (2) the plaintiff has failed to sufficiently plead an independent constitutional claim. The plaintiff agrees that any independent claims in the sixth count that would rely on § 46a-58(a) or the Connecticut constitution would be legally insufficient, but argues that since the sixth count alleges a legally sufficient claim under § 46a-60 et seq., for which there are genuine issues of material fact, the Town's motion for summary judgment on this ground should be denied. The court agrees.
The plaintiff argues that " blacklisting" an employee from future employment may constitute an adverse action sufficient for a claim of retaliation. She further argues that when Ferraro made the alleged statements to other assessors he was effectively preventing her from securing future employment. She further contends that there is a genuine issue of material fact as to whether he was acting in his official capacity when he made the alleged statements. Finally, she argues there is a genuine issue of material fact as to whether the alleged statements prevented the plaintiff from securing future employment.
" The elements for a claim of retaliation under the CFEPA are the same as for a retaliation claim under Title VII." Fasoli v. Stamford, 64 F.Supp.3d 285, 296 (D.Conn. 2014). " Title VII's antiretaliation provision forbids employer actions that discriminate against an employee (or job applicant) because he has opposed a practice that Title VII forbids or has made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing." (Internal quotation marks omitted.) Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). " A Title VII retaliation claim . . . requires a plaintiff to show that: (1) he engaged in [a protected activity]; (2) the employer was aware of this activity; (3) the employer took adverse action against him; and (4) a causal connection exists between the protected activity and the adverse action." Fasoli v. Stamford, supra, 296.
" The scope of the antiretaliation provision [of Title VII] extends beyond work place related or employment-related retaliatory acts and harm." Burlington Northern & Santa Fe Railway Co. v. White, supra, 548 U.S. at 67. " An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." (Emphasis in original.) Id., 63. " The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id., 67. " [A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." (Internal quotation marks omitted.) Id., 68.
Unlike a direct discrimination claim, for a retaliation claim, the making of statements to other potential employers that reduce the likelihood that the other employers will hire the plaintiff can constitute a materially adverse action. Therefore, the claim of retaliation here is not barred as a matter of law.
The plaintiff engaged in a protected activity when she filed her claim of discrimination for the 2013 hiring decision with CHRO. There is evidence that Ferraro, an employee of the Town, was aware of her complaint when he made the alleged statements because the individuals he spoke with aver that he told them that the plaintiff had brought a claim against the Town.
There is a genuine issue of material fact as to whether Ferraro was acting in his official capacity when he made the alleged statements. Ferraro was attending meetings and educational events that were specifically held for assessors and made the statements to other assessment professionals. Based on the evidence submitted by the parties, it is not clear, as a matter of law, whether Ferraro made the statements in his individual capacity or as the town assessor.
There is also a genuine issue of material fact as to whether the plaintiff was harmed by the alleged statements. While the plaintiff's affiants themselves may not have believed the statements, there is at least some evidence that other individuals may have believed the statements and declined to hire the plaintiff. As there are genuine issues of material fact, summary judgment on the sixth court is inappropriate.
See, e.g., affidavit of Walter E. Topliff, Jr., ¶ 13 and affidavit of David A. Wheeler, ¶ 11, attached to the plaintiff's memorandum in opposition to the motion for summary judgment.
ORDER
The first count of the fourth amended complaint is dismissed. The defendant Town of Berlin's motion for summary judgment as to the second and sixth count (146.00) is denied. The objection to same (151.00) is sustained.