Opinion
No. CV 09 4021363S
April 26, 2010
MEMORANDUM OF DECISION
The plaintiff, the Commission on Human Rights and Opportunities (CHRO), through its office of legal counsel, appeals from a May 20, 2009 final decision of a human rights referee (referee) who had conducted a hearing and issued a final decision pursuant to General Statutes § 46a-84. The referee concluded in the decision that the CHRO failed to demonstrate a violation of law arising from a complaint filled with the CHRO by the defendant Josephine O'Halloran (O'Halloran). Before the referee, the CHRO had supported O'Halloran's allegations that she had been unlawfully discriminated against by the defendant town of Fairfield (the town) because of her sex (female) when the town failed to promote her to the position of zoning inspector. This was alleged to violate the Connecticut Fair Employment Practices Act, §§ 46a-60(a)(1), 46a-58(a) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
O'Halloran was served, but chose not to participate in this administrative appeal.
The court has subject matter jurisdiction pursuant to § 46a-94a and § 4-183(a). Since the plaintiff's matter on behalf of Ms. O'Halloran was dismissed by the referee, the plaintiff is aggrieved as required by § 4-183(a).
The referee made the following relevant findings of fact:
2. The complainant is a female and has been employed by the respondent since August 2000.
The "complainant" is Ms. O'Halloran.
3. The respondent is a town in Connecticut that employs more than 15 people.
4. The complainant's first position with the respondent was that of a Secretary C in the town's conservation department, which she held for 3 years.
5. The town's classification system for secretaries was designated by the letters C (lowest), B and A (highest). The Secretary C was graded as a TH-3, Secretary B was graded as a TH-5, and Secretary A as a TH-6. Included in this classification was a step that identified the pay scale for each designation along with criteria for taking into consideration the number of years in the position.
6. The complainant in September 2003 commenced working in the town's planning and zoning department as a Secretary B and has been working in that position since that time.
7. The complainant's job as a secretary in the planning and zoning department also included the duty of preparing the return of record of any decision of the zoning board of appeals (ZBA) that was appealed to the Superior Court. This duty entailed copying all documents in the file pertaining to the matter appealed and typing a list of those documents and sending those items to the town's attorney.
8. The complainant took no part in arriving at any decision of the ZBA.
. . .
10. The complainant's employment with the respondent is governed by a collective bargaining agreement (CBA) between her union, which at all relevant times was AFSCME.
11. The complainant's job also included being the clerk for the ZBA which required her to prepare an agenda for the monthly meeting and to keep and prepare the minutes of the meetings.
12. The information contained in the ZBA agenda is prepared and provided to the complainant in draft form by the zoning enforcement officer.
. . .
14. The complainant in August 2004 prepared a "Duties Questionnaire" the purpose of which was to detail the duties that she was performing in the planning and zoning department which she had hoped would justify a reclassification from Secretary B to Secretary A. Joseph J. Devonshuk (Devonshuk), director of the planning and zoning department, signed the duties questionnaire as being satisfactory and correct.
15. The complainant's request for re-classification was reviewed by a committee made up of the town's finance director, human resources director and an individual designated by the union who concluded that her position and duties as presently being performed warranted her position remaining as Secretary B and denied her request.
16. The complainant after having not been promoted to the position of zoning inspector applied for a Secretary A position in the respondent's fire marshall's office. The complainant did not receive this promotion believing that the individual with more seniority than her was selected for the position per her understanding of § 5.01 of the CBA. The complainant concluded this without knowing the selected individual's previous training and experience, demonstrated ability and proficiency, length of service and overall work record.
17. Devonshuk viewed the complainant's job as a Secretary B in the planning and zoning department as clerical.
18. Matthew Decker (Decker) some months prior to the zoning inspector's opening being posted spoke to Jack Wendt (Wendt), assistant director of the town's planning and zoning department and indicated how interested he was in becoming the town's zoning inspector if it were to become open. Decker further sought information from Wendt as to what would assist him in becoming more knowledgeable about the position; Wendt provided Decker a copy of the regulations, and a website relating to obtaining certification for zoning enforcement officials. Decker after reviewing the material determined that to become certified he needed to work in the zoning and planning department for minimum of a year before he could start taking classes.
19. Wendt made Devonshuk aware of Decker's interest in the zoning inspector's position if it ever became open.
20. On March 22, 2005 a vacancy opening for the position of zoning inspector was posted. The posting stated as follows: . . . "Knowledge and Experience — Thorough knowledge of a specialized field such as planning and zoning equivalent to two years college. One to three years experience. Diversified duties involving an intensive knowledge of a restricted field, and the use of a wide range of procedures. Require the use of judgment in the analysis of facts and circumstances surrounding individual problems or transactions and in the determination of actions to be taken within the limits of standard or accepted practice."
21. The position of zoning inspector was a grade TH-7.
22. The CBA required that a job posting for a vacancy be posted for five work days.
23. The complainant was the only employee in the planning and zoning department to submit an application for the position of zoning inspector.
24. The human resources department forwarded all submitted applications to Devonshuk.
25. Devonshuk prior to reviewing the applications determined he would interview everyone who applied.
26. The posting for the zoning inspector's position was sent to all departments in the town.
. . .
32. The town's director of human resources in 2005 was Holly Francis (Francis).
33. Francis had 18 years experience in administering CBAs. Her role as human resources director was to make sure employees of the town were properly evaluated and compensated for their work.
34. Prior to posting the vacancy announcement, Devonshuk met with Francis in her office and discussed the open position of zoning inspector.
. . .
38. The respondent has no requirement that an applicant submit a resume with his or her application.
39. The town had no policy or practice that required anyone interviewing candidates for job openings to review those candidates' personnel files.
40. The complainant was unaware of any requirement that the respondent must go through an employee's personnel file in the process of reviewing a candidate application for promotion.
41. To be qualified to apply for the position of zoning inspector, a candidate need only be a town employee and have submitted an application within the time specified.
42. The individuals who submitted applications to be considered for the zoning inspector's position were: Rose Ann Carlson (Carlson) female; Betty Gabriel (Gabriel) female; Decker, male; and the complainant.
43. The complainant believed that she was well qualified for the position of zoning inspector.
44. Devonshuk, after reviewing the four applications, believed at the time that Decker was the most qualified.
45. Devonshuk, prior to the interviews for zoning inspector, prepared an outline of areas he wished to cover and questions he would ask all four candidates.
46. Francis, as human resources director, was of the opinion that § 5.01 of the CBA meant that employees being considered for promotion would be considered on the basis of their previous experience and training, demonstrated ability and proficiency after which the candidates' length of service would be looked at.
. . .
48. Devonshuk questioned the human resources department as to what factors would be considered under the CBA in hiring for the position of zoning inspector. He specifically asked if seniority was the sole criteria for hiring. The human resources department responded, that it was one of the things considered but the entire section of the CBA (§ 5.01) should be considered in determining who is best qualified or qualified for the position.
. . .
51. Devonshuk used the same interview format for each candidate. He first would ask if the candidate had any questions about the job description.
52. Devonshuk also highlighted areas that he believed were important to the position of zoning inspector. These included front desk work (dealing with processing applications), providing information precisely and conducting site inspections for enforcement requirements.
53. Devonshuk then asked each candidate the following two questions: Why do you feel you are suitable for this position? and Why do you want this position?
. . .
77. The complainant had no experience in preparing all the information needed to file a permit application which would be relevant to the position of zoning inspector.
78. The complainant could not remember whether her resume was in her personnel file at the time she applied for zoning inspector.
79. Decker, during the interview with Devonshuk, advised him that he was familiar with some of the zoning regulations based on the information he had obtained earlier. He also explained his prior experience with plot plans, site plans, construction plans and the permitting process. He further explained his work history with Marx Living Design along with his education at Norwalk Tech. Decker was attempting to sell himself to Devonshuk and establish that he could perform the job of zoning inspector.
80. Decker also advised Devonshuk that in setting up walk-throughs in his current job, he had to coordinate times and deadlines for a particular project and instruct contractors or specific individuals who were bidding on projects of what was required.
81. When Devonshuk asked Decker why he was interviewing for the job, Decker responded that, based on his background and the direction he wanted to go with his employment with the town, he would be better served working for the zoning department as opposed to purchasing and that it would be a perfect fit.
82. During the course of the interview, Decker did most of the talking in an attempt to sell himself to Devonshuk for the position of zoning inspector.
83. Decker during the course of his interview with Devonshuk described all of the projects he had worked on while in the purchasing office. These included the redesign by Decker of the kitchen of the town's golf course. Because the cooler and freezer required modification, these needed to be approved by zoning. Decker did the drawing for this aspect of the project.
84. Decker informed Devonshuk during the interview of his familiarity with reading blueprints and surveys so as to understand location and size.
85. Devonshuk, after having interviewed all four candidates, informed Francis that Decker had the experience and training that was required for the position of zoning inspector, and that he had far more experience than was required and that he showed enthusiasm.
86. Devonshuk, during the interview with Decker, found his work at Marx Living Designs would have given him a certain amount of experience and qualifications that would be required for the zoning inspector's position. Devonshuk also believed that Decker's education background was relevant to the requirements of working in the planning and zoning department.
87. Devonshuk thought Decker's work with interior construction relevant due to compliances in some instances needing to be issued by a zoning inspector. If someone wished to put in a kitchen or bathroom, building permits would be required.
88. Decker, during the interview, discussed the courses he took in architecture. Devonshuk thought this relevant as architects submit plans and applications to planning and zoning for approval.
89. Devonshuk believed Decker's past experience and training (as he was then aware) met the requirement of one to three years of experience in the job posting and were consistent with the general department duties and responsibilities as described in the job posting.
90. Devonshuk did not think it was significant that Decker did not receive an architect's degree as it wasn't required.
91. Devonshuk believed Decker's construction experience would be useful as a part of the zoning inspector's job is to review construction applications and act upon them.
92. Devonshuk and Francis (in the course of Devonshuk informing Francis of the post-interview result) compared Decker's experience and background to that required for the job of zoning inspector as they did for the three other candidates. This was in response to Francis asking why Decker was chosen.
93. Devonshuk over his career as director of planning and zoning for the respondent, has had five positions to fill other than secretarial. Of the hirings to fill these positions, three went to women and two went to men.
See Return of Record (ROR), pp. 3-21.
Based upon these findings of fact, the referee concluded that the CHRO had failed to prove that O'Halloran was qualified for the position, a prima facie requirement for a finding of discrimination. While this requirement is not difficult to satisfy, the CHRO did not meet the threshold. O'Halloran had only one year of college at a fashion design school. While she worked at the zoning office, she had not conveyed her knowledge of the office to the interviewer, Devonshuk. She had not produced her resume at the interview. In addition, her experience at the office was not sufficiently extensive, consisting only of basic, rudimentary knowledge.
The legal basis of this requirement is discussed below.
With regards to the claims of pretext, again the CHRO had failed to show that O'Halloran was qualified. O'Halloran had received an appropriate interview. Perhaps based upon her claim to seniority under the union contract, she had not given lengthy answers to the two questions Devonshuk had posed. There was no showing that Devonshuk had exhibited animus toward the female applicants. The union contract had been properly construed and was not violated. Devonshuk had correctly allowed the successful applicant, Decker, to relate his experience with construction projects during his interview. Devonshuk had not erred by failing to review Decker's personnel file for tardiness and other sanctions. Finally, the referee concluded generally that the CHRO had failed to prove that the town discriminated against O'Halloran in its failure to promote her to zoning inspector. (ROR, pp. 21-42.)
The standard of review of the CHRO's claims was recently stated in Prioleau v. Commission on Human Rights Opportunities, 116 Conn.App. 776, 787-88, 977 A.2d 267 (2009): "In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citations omitted, internal quotation marks omitted.)
Prioleau is in keeping with many other appellate court precedents. See CT Page 9796 Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 314-15, 596 A.2d 426 (1991): "We begin our analysis by noting that our review of an agency's factual determination is constrained by the UAPA. Specifically, General Statutes § 4-183(j)(5) mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . We have interpreted the standard of review set forth in the act as limiting our review such that [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency . . . This substantial evidence standard is highly deferential." (Citations omitted; internal quotation marks omitted.) See also Board of Education v. Commission on Human Rights Opportunities, 266 Conn. 492, 503, 832 A.2d 660 (2003); Ames Dept. Stores, Inc. v. Commission on Human Rights Opportunities, 45 Conn.Sup. 276, 283, 712 A.2d 453 (1997), affd., 48 Conn. App. 561, 709 A.2d 1156 (1998), cert. denied, 245 Conn. 924, 718 A.2d 20 (1998) (in applying the substantial evidence test, court defers to agency's decision on matters of proof).
As to the referee's conclusions of law, "[t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001).
The parties agree on the following framework taken from Board of Education v. Commission on Human Rights Opportunities, supra, 266 Conn. 504-07: "Recently, in Craine v. Trinity College, 259 Conn. 625, 636-37, 645, 791 A.2d 518 (2002), we stated that, in order to determine whether a complainant may prevail of a disparate treatment claim, we employ the analytical framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ( McDonnell Douglas) . . .
" McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the 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.
"Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the complainant then must prove, by a preponderance of the evidence, that the employer intentionally discriminated against him . . . Although intermediate evidentiary burden shifts back and forth under this framework, [t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [complainant] remains at all times with the [complainant] . . . [I]n attempting to satisfy this burden, the [complainant] — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision — must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not is true reasons, but were a pretext for discrimination." (Citations omitted; internal quotation marks omitted.)
The CHRO first claims that the referee erred in finding a lack of a prima facie case on the ground of qualification. Later under the burden-shifting formula, the CHRO argues that the town's non-discriminatory reason based on qualification was pretextual. The court agrees with the CHRO that the burden to show qualification at the prima facie stage is not difficult. The CHRO does bear the burden of showing pretext. Dept. of Transportation v. Commission on Human Rights Opportunities, 272 Conn. 457, 863 A.2d 204 (2005).
The court agrees with the referee that the record fails to show that the CHRO met either the prima facie standard or its pretextual burden. O'Halloran was employed as a secretary and had a variety of duties including typing documents, assisting the public with information requests and writing receipts. (ROR, pp. 1346, 1349, 1351-52.) In addition, she performed some relatively similar duties to the zoning inspector, but answered basic questions and provided the public with basic information, from a document available to the public. (ROR, pp. 1366-67, 1370, 1374-77, 1811-12.) She read maps only to determine in which zone a piece of property was located or whether it was in a flood zone. (ROR, pp. 1350-51, 1371.) The more detailed functions of the office, such as determining violations and issuing orders to comply, were performed by the zoning inspector. (ROR, pp. 1356, 1366, 1375, 1395.)
The court also concurs with the referee that O'Halloran's one year of college at a fashion design school is not sufficiently relevant to the zoning inspector's position to advance a claim of qualification. In addition, the record supports a finding that O'Halloran did not furnish her resume to Devonshuk as part of the application process. (ROR, p. 836.)
Finally, the court approves a finding of lack of qualification, even though the zoning enforcement officer, and immediate supervisor, Marsala, testified that O'Halloran was qualified for the position. He testified that he could work with any of the candidates, including Decker. Moreover, Marsala was not on the hiring committee. Finally, the referee was allowed to discount Marsala's testimony, especially as there was evidence of bias in favor of O'Halloran, based on a personal relationship. See Goldstar Medical Services, Inc. v. Department of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008) ("[i]t is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness's testimony").
The CHRO secondly claims that the referee ignored evidence in the record, with regard to pretext, that Devonshuk's interview protocol was defective and, moreover, insulting toward the female applicants. The record does not support this contention. With regard to procedure, the interviews took place in Devonshuk's office. He highlighted some of the major responsibilities of the position. He asked two broad questions of each applicant: (1) why do you want this position? (2) why are you suitable for the position? O'Halloran gave brief answers and her interview time was short. On the other hand, Decker's interview lasted approximately 35 minutes as he was trying to "sell" himself and expanded on the interview questions with detailed answers. (ROR, pp. 948, 1612.)
With regard to alleged offensive behavior by Devonshuk at the interviews of the three female applicants, the referee's conclusion, while challenged by the CHRO, is supported by substantial evidence. The CHRO derives its contention from a statement stricken from the record (ROR, p. 914) and an assertion by O'Halloran that she was asked about her techniques for dealing with irate members of the public. (ROR, p. 792.) The evidence in the record is that Devonshuk had hired both males and females for openings in the past. (ROR, pp. 1467-68.) The court therefore rejects any contention of pretext which was drawn from the interview process. Cf. Dept. of Transportation v. Commission on Human Rights and Opportunities, Superior Court, judicial district of New Britain, Docket No. CV 010508712 (August 20, 2002, Cohn, J.), reversed on other grounds, 272 Conn. 457, 863 A.2d 204 (2005) (finding pretext in interview process).
The CHRO claims pretext in the town's interpretation of the union contract. The CHRO argues that the collective bargaining agreement, § 5.01, requires the most senior employee in the department (here O'Halloran) to be promoted. This argument ignores the full language of the provision that requires seniority to govern if the employee is qualified. The town has interpreted "qualified" to refer to the beginning language of § 5.01, a reference to knowledge, training and performance. The town has applied this interpretation for many years, including an arbitration from 1997 upholding this interpretation. While an arbitration result is not conclusive, Stratford v. International Association of Firefighters, 248 Conn. 108, 728 A.2d 1063 (1999), it supports the referee's conclusion that the town's interpretation of the contract was not pretextual.
Finally, the CHRO contends that the referee was bound to find pretext as the town's witnesses were lacking in credibility and consistency. The CHRO contends that Decker's prior work experience at a construction company did not involve zoning assignments, that Devonshuk exaggerated Decker's participation in town construction projects, and that Decker had never served in the town's zoning office or knew the functions of the position. He also had a personnel record that included absenteeism.
See the town's brief, dated January 20, 2010, p. 27, noting that Decker had the flu.
On the other hand, the record supports, and the CHRO acknowledges (see CHRO's brief, dated December 3, 2009, p. 25), that Decker participated in four major town projects, including the golf course re-design. (ROR, pp. 950, 1457.) In addition, Decker read blueprints and had construction experience over a five-year period in a previous job. (ROR, pp. 1813-15.) Devonshuk considered such experience as a helpful background for the zoning inspector position. (ROR, p. 1456.)
The Supreme Court has held that such evidence is sufficient to support the referee's conclusion, even though there is evidence to the contrary in the record. Moraski v. Connecticut Board of Examiners of Embalmers Funeral Directors, 291 Conn. 242, 267, 967 A.2d 1199 (2009) ("the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence").
The court has considered the CHRO's grounds for appeal from the referee's decision and finds them without merit. Therefore, the appeal is dismissed.