Opinion
No. CV-03-0520745 S
February 19, 2004
MEMORANDUM OF DECISION
This administrative appeal was heard on January 27, 2004. After considering the record, and the arguments and briefs of the parties, the court issues this memorandum of decision.
I Background
Pursuant to General Statutes §§ 46a-94a and 4-183(a), the petitioner, the City of Hartford (City), claims that it is aggrieved by a final decision of the Commission on Human Rights and Opportunities (CHRO). The City asserts that its employee, defendant Mary Haley, alleged, in her CHRO complaint, that the City "denied her a promotion and was discriminated against by the City on the basis of race and mental disability." See Petition, ¶ 7.
Haley's CHRO complaint, dated February 1, 2000, appears in the Record as No. 42 (Record 000338-000340). In paragraph 6, Haley alleged that she was doing the work of an administrative clerk, but was receiving less pay.
The CHRO rendered a decision, dated July 1, 2002 (Decision), in Haley's favor, finding that the City discriminated against her on the basis of race, in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60(a)(1) and in violation of Title VII of the Federal Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e (1994). The CHRO Referee found that the City's discrimination against Haley "constituted a pattern and practice of discrimination against an entire protected class, white females." See Decision, p. 27 (Record 000048). The Referee also found that "the respondent's articulated reasons were not credible, but rather were a pretext for intentional discrimination against [Haley] individually." See Decision, pp. 27-28 (Record 000048-49). A subsequent decision by the CHRO, supplementing the July 1, 2002 Decision, was issued on March 12, 2003 (Supplement). See Petition, ¶ 11.
The Decision appears in the Record as No. 4 (Record 000022 through 000050).
Section 46a-60(1)(a) provides, "(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness."
Title 42 of the United States Code, § 2000e-2(a), provides in relevant part: "It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire . . . any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . [or] color . . . or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race . . . [or] color . . ."
The Supplement appears in the Record as No. 1 (Record 000005 through 000007).
The City claims that the CHRO's decision was issued more than ninety days following the close of evidence or due date for the filing of briefs, in violation of General Statute § 4-180. See Petition, ¶¶ 12-13.
In addition, the City claims that the CHRO has unlawfully exempted Haley from complying with General Statute § 46a-82(e). It asserts that the CHRO found that, on September 13, 1998, the City discriminated against Haley by failing to reclassify her position in its Licensing and Inspections Division to administrative clerk, see Petition, ¶ 14, and that the CHRO's decision is based on this finding "notwithstanding the fact that Ms. Haley's complaint was filed on February 1, 2000, more than 180 days after the alleged occurrence." See Petition, ¶ 15. The City further contends that Haley did not present any evidence of discriminatory acts after September 13, 1998. See Petition, ¶ 16. The City claims also that the CHRO decision does not contain any findings of facts pertaining to acts of discrimination after that date. See Petition, ¶ 17.
In its brief, the City raises the above two arguments, that the CHRO's decision is contrary to General Statutes §§ 4-180 and 46a-82, and also contends that Haley failed to present sufficient evidence to establish a prima facie case of discrimination. See City's Brief, pp. 15-19.
In response to the Petition, the CHRO has denied its material allegations or left the City to its proof. In her answer, Haley sets forth findings by the CHRO's referee which she claims are supported by the evidence and the law, including that, in November 1999, Haley asked to be promoted, telling her supervisor, Abraham Ford, that she had been discriminated against because of her color and mental health disability, and that Ford then discouraged her from applying for a reclassification, saying that "his hands were tied." See Haley's Answer, second special defense, ¶¶ 2(l), 2(m), and 2(t).
II Standard of Review
General Statute 4-183(j) sets forth the standards to be applied by the court in an appeal from an agency decision. "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: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." See General Statute 4-183(j).
Our Supreme Court recently reiterated the standard of review in an appeal from a CHRO decision. "Our review of an agency's factual determination is constrained by General Statutes § 4-183(j), which 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 . . . This limited standard of review dictates 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 . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the plaintiffs to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record . . . With respect to questions of law, [w]e have said that [c]onclusions 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." (Internal quotation marks omitted and citation omitted.) Board of Education of the City of Norwalk v. Commission on Human Rights and Opportunities, 266 Conn. 492, 503-04, 832 A.2d 660 (2003).
"Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the [agency] supports the action taken . . ." (Internal quotation marks omitted.) Slootskin v. Commission on Human Rights and Opportunities, 72 Conn. App. 452, 459, 806 A.2d 87, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).
III. Discussion A. Issuance of the Referee's Supplemental Decision
The City argues that, since the Supplement was not issued until March 12, 2003, the final decision was issued more than ninety days following the close of evidence or the due date for the filing of briefs, in violation of General Statute § 4-180(a). As a result, the City claims that the Referee lacked jurisdiction to issue the Supplement and the CHRO's decision must be declared to be void. See City's Brief, pp. 19-20. In its brief, the CHRO contends that the City has overlooked a salient portion of the statute, and that the CHRO did not forfeit jurisdiction over the matter by issuing the Supplement more than ninety days after the close of the proceedings. See CHRO's Brief, pp. 25-29. In addition, Haley also asserts that applicable statutory provisions negate the City's argument. See Haley's Brief, pp. 20-22.
Section 4-180 provides
(a) Each agency shall proceed with reasonable dispatch to conclude any matter pending before it and, in all contested cases, shall render a final decision within ninety days following the close of evidence or the due date for the filing of briefs, whichever is later, in such proceedings.
(b) If any agency fails to comply with the provisions of subsection (a) of this section in any contested case, any party thereto may apply to the superior court for the judicial district of Hartford for an order requiring the agency to render a final decision forthwith. The court, after hearing, shall issue an appropriate order.
(c) A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency's findings of fact and conclusions of law necessary to its decision. Findings of fact shall be based exclusively on the evidence in the record and on matters noticed. The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.
Thus, the court is presented with a question of statutory interpretation. "The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule . . . This does not mean, however, that we will not in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003).
More recently, our Supreme Court noted that our Legislature, in Public Act 03-154, § 1, which was effective on October 1, 2003, "overruled that part of Courchesne in which we stated that we would not require a threshold showing of linguistic ambiguity as a precondition to consideration of sources of the meaning of legislative language in addition to its text." Paul Dinto Electrical Contractors, Inc. v. Waterbury, 266 Conn. 706, 716 n. 10, 835 A.2d 33 (2003). There, our Supreme Court did not consider Public Act 03-154 since the statute at issue was not plain and unambiguous and since the parties' briefs were filed long before Public Act 03-154's enactment and did not address it. See id. Here, although the parties' briefs were filed after the enactment of Public Act 03-154, none of them mention it.
Public Act 03-154, § 1 provides "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." This provision was enacted on June 26, 2003.
This court "need not also consider the validity of the Public Act 03-154, as both the method of statutory interpretation mandated therein and by the Supreme Court in State v. Courchesne . . ., yield the same result." Goodkind v. Sharma, Superior Court, judicial district of New Haven, G.A. 7 at Meriden, Docket No. CV 02-0282415 (November 25, 2003, Frazzini, J.).
In view of the fact that a finding that a time limit is subject matter jurisdictional "has very serious and final consequences," our Supreme Court has "stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional." Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001).
The presence of mandatory language, such as usage of the words "shall," or "must," does not alone prove that noncompliance implicates the subject matter jurisdiction of an administrative agency. See id., 271. "Although we acknowledge that mandatory language may be an indication that the legislature intended a time requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar. In the absence of such a showing, mandatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties. Such time limitations do not, however, implicate the subject matter jurisdiction of the agency or the court." Id., 269-70.
"We construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation . . . Moreover, a court must construe a statute as it finds it, without reference to whether it thinks the statute would have been or could be improved by the inclusion of other provisions." (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 757, 826 A.2d 156 (2003). "In determining the legislative intent of a particular statute, we also look to other relevant statutes governing the same or similar subject matter, for it is well established that we consider the statutory scheme as a whole and presume that the legislature intended to create a harmonious body of law." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, 266 Conn. 130, 143, 831 A.2d 235 (2003).
"We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions . . . It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions . . . Accordingly, care must be taken to effectuate all provisions of the statute . . . [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . ." (Internal quotation marks omitted and citations omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 196, 708 A.2d 1371 (1998).
With those principles of statutory interpretation in mind, the court turns to the language of § 4-180. Subsection (a), which provides that an agency "shall render a final decision within ninety days," must be read together with subsection (b), in which the Legislature provided an avenue in court for a situation in which a decision was not so rendered. As noted above, subsection (b) states, "[i]f any agency fails to comply with the provisions of subsection (a) of this section in any contested case, any party thereto may apply to the superior court for the judicial district of Hartford for an order requiring the agency to render a final decision forthwith. The court, after hearing, shall issue an appropriate order." "[T]he existence of the remedy provided in 4-180(b) supports the proposition that a violation of the timeliness provisions of 4-180(a) does not invalidate a decision of the board . . ." Jutkowitz v. Department of Health Services, 220 Conn. 86, 96 n. 13, 596 A.2d 374 (1991). If an agency lost subject matter jurisdiction by not issuing its final decision within subsection (a)'s time deadline, then subsection (b) would have no meaning, which, as stated above, is contrary to the rules of statutory interpretation established by our Supreme Court. See id.
In addition, the language utilized by the Legislature in these two subsections of § 4-180 does not evince a "legislative intent that such a time limit is jurisdictional." Williams v. Commission on Human Rights Opportunities, supra, 257 Conn. 266. Accordingly, the presumption in favor of subject matter jurisdiction is not overcome by the language of the statute.
Also, while our Supreme Court has not addressed whether the timeliness requirements of § 4-180(a) are mandatory or directory, see Jutkowitz v. Department of Health Services, supra, 220 Conn. 95 n. 12, our Supreme Court's more recent interpretation of General Statute § 4-180(c)'s mailing provisions as being directory, not mandatory, supports the court's finding here that the CHRO did not lose subject matter jurisdiction. See Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 445-48, 685 A.2d 670 (1996). "[O]ur past decisions have indicated that the use of the word `shall,' though significant, does not invariably create a mandatory duty." Id., 445. "In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word `shall' and examined the statute's essential purpose . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." (Eternal quotation marks omitted and citations omitted.) Id., 446.
Our Supreme Court found that there was no language in § 4-180(c) which would invalidate an action that failed to comply strictly with its mailing provisions. Id., 446-47. "This omission indicates a legislative intent that the provisions operate to secure order, system and dispatch in the proceedings." Id., 447. The court concluded that the mailing provisions are "purely directory." Id., 448. Similarly, there is no language in either § 4-180(a) or (b) which invalidates a decision which fails to comply strictly with the time provision set forth in subsection (a).
This interpretation was buttressed also by reference to the legislative history of subsection (c). See id., 447-48.
Likewise, the legislative history of § 4-180(a) and (b), which were adopted at the same time in Public Act 75-529, does not reveal a contrary intent. In his summary of the act, Rep. James T. Healey simply stated that its provisions included that "a 90-day limit be imposed for decisions on appeals under the Administrative Procedures Act." 18 H.R.Proc., Pt. 13, 1975 Sess., p. 6324. The legislative history for the 1988 amendments, P.A. 88-317, is similarly silent on this subject.
Finally, the court notes that the City argues that "where the action taken by an administrative agency exceeds its statutory authority, the action is void." See City's brief, p. 20. The Appellate Court decision which the City cites, Breen v. Department of Liquor Control. 2 Conn. App. 628, 634, 481 A.2d 755 (" Breen"), cert. granted, 194 Conn. 808, 483 A.2d 755 (1984), was set aside. See Breen v. Department of Liquor Control, 5 Conn. App. 432, 499 A.2d 432 (1985). In addition, neither of the cases cited in Breen for the proposition, Arterbum Convalescent Home v. Committee On State Payments To Hospitals, 176 Conn. 82, 88, 405 A.2d 48 (1978) (Loiselle, J., concurring) and Newington v. Mazzocoli, 133 Conn. 146, 156, 48 A.2d 729 (1946), dealt with a legislatively created time deadline; rather they concerned agencies' authority to take particular actions.
Accordingly, the court finds that the fact that the Supplement was issued more than ninety days after the close of the proceedings did not deprive the CHRO of subject matter jurisdiction. The court declines to vacate the CHRO's decisions on that ground.
B. Timeliness of Haley's CHRO Complaint
The City contends that General Statute § 46a-82(e)'s requirement that any complaint must be filed within 180 days after the alleged act of discrimination bars Haley's complaint. As our Supreme court recently stated, "although the statutory scheme requires that the complaint be filed within 180 days from the last date of discrimination, the same statutory scheme permits the agency to award back pay for a period of up to two years." Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 275, citing General Statute § 46a-86(b).
Section 46a-82(e) provides, in pertinent part, "[a]ny complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ."
Section 46a-86(b) provides, in pertinent part, that "liability for back pay shall not accrue from a date more than two years prior to the filing or issuance of the complaint . . .
Haley filed her complaint with the CHRO on February 1, 2000. According to the City, all of the acts of discrimination alleged here occurred outside of the 180-day period. See City's Brief, p. 10.
The City does not contend that any of the Referee's factual findings are not reasonably supported by evidence in the record. This was reiterated at oral argument. The City argues that the Referee did not cite any specific incidents or occurrences of discrimination after June 1998. Also, it asserts that the Referee found that Haley neither applied for a promotion or requested that her position be reclassified between June 1998 and February 1, 2000. See City's Brief, p. 2. In addition, it notes that Susan Comstock, the Department of Personnel analyst for Haley's department, Licenses and Inspections, whose responsibilities included determining whether reclassification is warranted or not, is a white female. See City's Brief, pp. 5-6.
The City asserts that the Referee's finding, that the City "had a policy of continuing discrimination against an entire protected class, white females," Decision, p. 15 (Record 000036), is contrary to law. See City's Brief, p. 15. As support, it notes that Comstock is a white female and asserts that the Referee failed to take evidence regarding the treatment of other white employees in Licenses and Inspections. The City contends that the Referee "erred as a matter of law because there are no facts in this case that can support the conclusion that discrimination against Haley constituted an established long term policy of discrimination against all white females." See City's Brief, p. 15.
Resolution of the City's contentions requires an examination of the law concerning continuing violations. As the City notes in its Brief, p. 9, Connecticut's courts have looked to federal law for guidance in interpreting state antidiscrimination laws. Such guidance, however, does not include departing from our Supreme Court's interpretation of Connecticut's statutes. "Although we are not bound by federal interpretation of Title VII provisions, [w]e have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute. Nevertheless, we have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." (Internal quotation marks omitted and citation omitted.) State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). "It is proper for a hearing officer to follow federal law in the area of employment discrimination, however, only insofar as such law does not conflict with legal precedent already established in the state of Connecticut." Commission on Human Rights and Opportunities v. General Dynamics Corp., Superior Court, judicial district of New London at New London, Docket No. 524470 (May 1, 1995, Hurley, J.).
"The continuing-violation theory extends the statute of limitations where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue for so long as to amount to a discriminatory policy or practice." (Internal quotation marks omitted.) Cruz v. Coach Stores, 202 F.3d 560, 569 n. 4 (2d Cir. 2000).
For example, in Minor v. Town of Cheshire, 126 F. Sup.2d 184, 190 (D.Conn. 2000), which is cited by the City, and which concerned a claim of sexual harassment, the court noted, in discussing the plaintiff's claims under Title VII and CFEPA, that "courts in this circuit disfavor application of the continuing violations doctrine." In dismissing the plaintiff's CFEPA claim, the court did not cite any decisional law from Connecticut's state courts. See id., 126 F. Sup.2d 193.
As our Supreme Court stated in Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 271, "in interpreting the 180 day time limit to file a discrimination complaint under § 46a-82, we do not write on a clean slate. Section 46a-82(e) comes to us at this point in our jurisprudence with a well established judicial gloss." The court then summarized its previous decision in State v. Commission on Human Rights and Opportunities, supra, 211 Conn. 464, where it affirmed the trial court's (and the CHRO's) decision in which a retired teacher was awarded an increase in his retirement benefits based on the use of gender-based tables to calculate them. See Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 275-76. In State v. Commission on Human Rights and Opportunities, supra, the court rejected the plaintiffs' claim that the teacher's complaint was untimely because it was not filed within 180 days of the alleged act of discrimination, which the plaintiffs asserted occurred when the teacher received written notice that his pension benefits had been formally approved. Id., 211 Conn. 471. Thus, they asserted that subsequent pension check payments "represented the present effects of a past violation," and were time-barred. (Internal quotation marks omitted.) Id. The Supreme Court, in State v. Commission on Human Rights and Opportunities, supra, affirmed the trial court's decision that "because each pension check [the teacher] received constituted a new act of discrimination . . . [the teacher's complaint was not untimely." (Internal quotation marks and citation omitted.) Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 276.
In addition, in State v. Commission on Human Rights and Opportunities, supra, our Supreme Court expressed its support of the "well established" principle of "equitable tolling of limitations periods based on an employer's continuing acts of discrimination." (Internal quotation marks omitted.) Id., 211 Conn. 475. The court "decline[d] to follow other cases cited by the plaintiffs holding that discriminatory pension benefit payments are the `present effects' of a past violation and therefore cannot be considered a `discriminatory act' in determining whether a complaint is timely." Id., 211 Conn. 476.
In Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 271, our Supreme Court stated that Connecticut's "well established judicial gloss" also included its decision in Veeder-Root Co. v. Commission on Human Rights and Opportunities, 165 Conn. 318, 334 A.2d 443 (1973). Veeder-Root, as in the case now before this court, involved the concept of equal pay for equal work. There, an employee, Hilda Moe, alleged that discriminatory practices were being employed against her. See id., 332. She was employed as an "Assembler A," as were other women, while men were classified as "Assembler B." Prior to the hearing in the case, no male had ever been classified as an Assembler A and no female had ever been an Assembler B. The hearing tribunal concluded that although Assembler B pay was higher than Assembler A pay, there was no substantial difference between the two job classifications. Accordingly, the pay differential was impermissibly based on sex. See id., 326-27. The hearing tribunal awarded Moe back pay. See id., 332.
Our Supreme Court determined that, based on the defendant's "course of conduct," Moe was entitled to back pay over a period of time (then ninety days) preceding the date of her complaint, see id., 332-33, "implicitly acknowledg[ing] the continuing violation principle by stating that the statutory period limited the time of redress to `the act of discrimination which occurred within ninety days of the complaint . . .'" State v. Commission on Human Rights and Opportunities, supra, 211 Conn. 473. Subsequently, in Board of Education v. Commission on Human Rights and Opportunities, 177 Conn. 75, 411 A.2d 40 (1979), which involved "alleged continuing acts of discrimination based on the plaintiff board's refusal to pay female custodians the same rate of pay as male custodians," State v. Commission on Human Rights and Opportunities, supra, 211 Conn. 473, the court "expressly recognized that discrete incidents occurring during a continuum of discriminatory employment practices may constitute fresh violations . . ." (Citation omitted.) Id.
Review of the Referee's Decision reflects the following findings of fact. Within her unit in the City's Department of Licensing and Inspection (LI), Haley's three co-workers consisted of a Jamaican black female, an African-American female, and a Hispanic female. See Decision, p. 4, ¶ 5 (Record 000025). "During the time in question, [Haley] has been the only non-Hispanic white female working in LI. As of October 1, 1998, LI had 53 employees, only one of whom, [Haley], was a white, non-Hispanic female." See Decision, p. 4, ¶ 5 (Record 000025). During the relevant time, Haley's supervisor was Abraham Ford, an African-American male, the director of LI. See Decision, p. 5, ¶ 5 (Record 000026).
Effective September 13, 1998, Haley was promoted to senior account clerk. See Decision, p. 8, ¶ 21 (Record 000029). At LI, Haley has been doing the work of an administrative clerk, the position which is one step above senior account clerk (see Decision, p. 8, ¶ 18 (Record 000029)), since 1993. See Decision, p. 9, ¶ 23 (Record 000030). In contrast, her three co-workers, who were doing work equivalent to Haley's, were hand-picked for promotion by Ford and became administrative clerks in 1995 and June 1998. See Decision, p. 9, ¶¶ 24, 25, 26, 27 (Record 000030); and p. 10, ¶¶ 28, 30, 31 (Record 000031).
A City employee can secure a promotion either by being selected for a new position vacancy or through the reclassification process. See Decision, p. 5, ¶ 7; pp. 5-8, ¶¶ 9-17 (describing the reclassification process) (Record 000026-29). Between 1995 and 1999, while he was facilitating the promotions of her co-workers, Ford continuously discouraged Haley from seeking reclassification of her position to administrative clerk, saying that his hands were tied. See Decision, p. 10, ¶ 32 (Record 000031). Haley went to the City's personnel department to inquire about the reclassification process; "[h]er understanding from that conversation was that the personnel department could not do anything for her without the approval of her department head, Ford." Decision, p. 10, ¶ 33 (Record 000031). The Referee concluded that Haley's belief in this regard was reasonable. See Decision, p. 25 (Record 000046).
The Referee found that Haley's promotion to senior account clerk occurred in 1998 after Ford hired another black female to be a senior account clerk. Haley, then a senior clerk typist, sought reclassification. Ford told her that she could not be reclassified two steps up to administrative clerk, so Haley applied for a one-level upgrading only, to senior account clerk. As noted, she received this promotion. See Decision, p. 11, ¶ 34 (Record 000032).
The Referee also found that, in November 1999, which was within 180 days of the filing of Haley's CHRO complaint on February 1, 2000, Haley met with Ford and told him that she felt she had been passed over for promotions as a result of her color. Ford again responded that "his hands were tied," which Haley interpreted as meaning that nothing could be done. At this meeting it was not suggested to Haley that she apply to have her position reclassified. Had reclassification been suggested, Haley would have applied immediately. See Decision, pp. 11-12, ¶ 36 (Record 000032-33).
Haley also alleged that she had been discriminated against due to a disability. The Referee rejected this claim.
After the CHRO proceedings had begun, and during the investigation of her complaint by the CHRO, Ford suggested to Haley, for the first time, that her position might be eligible for reclassification. On March 20, 2001, she applied to have her position reclassified from senior account clerk to administrative clerk. Ford then recommended reclassification and promotion. Haley was promoted to administrative clerk on August 27, 2001. See Decision, p. 12, ¶ 37 (Record 000033).
The Referee concluded that "the fact pattern in this case demonstrates a policy of continuing discrimination against an entire protected class, white females . . . That the complainant was the only member of that class does not preclude the applicability of the continuing violation exception." See Decision, p. 15 (Record 000036). In addition, he concluded that "the fact pattern of this case demonstrates an on-going pattern of discriminatorily discouraging the complainant from applying for promotion." See Decision, p. 16 (Record 000037).
The Referee ordered that Haley be instated into the position of administrative clerk with attendant salary, increments and benefits retroactive to September 13, 1998. See Decision, p. 28 (Record 000049); Supplement, pp. 1-3 (Record 000005 to 000007). For example, due to the higher amount she would have earned as an administrative clerk if she had been promoted on that date, she was awarded back pay in the amount of $10,552.25. See Supplement, p. 2, ¶ 5 (Record 000006).
The City places heavy reliance on Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997), an age discrimination decision, which pre-dates that of our Supreme Court in Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 258, and which does not discuss any of the Connecticut decisional law which makes up Connecticut's "well established judicial gloss." Id., 257 Conn. 271. In Lightfoot, the Court of Appeals rejected the plaintiff's attempt to characterize as a continuing violation his employer's alleged failure to compensate him adequately, finding that if he "was entitled to a pay raise because of the added responsibilities of his new position, the entitlement arose at the time of his promotion." Lightfoot v. Union Carbide Corp., supra, 110 F.3d 907. Thus, it found that his promotion was a "completed act," and that his frozen pay did not represent evidence of acts of a continuing nature. Id., 110 F.3d 907-08.
See City's Brief, pp. 11, 13.
Here, as discussed above, the evidence contrasts with that in Lightfoot. Haley was found to have been doing the work of an administrative clerk since 1993; while she did that work, others in her working unit doing the same level of work were hand-picked for promotion and attendant pay increases. Unlike those others, Haley is a white, non-Hispanic female. Thus, her entitlements to promotion and additional pay were not incurred because she assumed added responsibilities when she was promoted at a time previous to the date of her complaint and outside of the limitation period, as was the case in Lightfoot. Rather, while others had been pre-selected for the same promotion to which she was entitled, she was continuously discriminated against by being discouraged from seeking promotion and being told that "hands were tied." The meeting of November 1999 was one of a continuing and related series of events in which Ford, her supervisor, discriminated against her. While the promotions of other workers in 1995 and 1998 were acts which occurred more than 180 days previous to the date of her CHRO complaint, acts occurred within that period, including the November 1999 meeting in which Ford continued to discourage Haley from seeking reclassification, and Haley continued to be paid less than others for equal work.
Relying on its procedures for reclassification, the City argues that "[a]n employee does not need the support of his department head in order to file a Position Review Questionnaire." See City's Brief, p. 17. As discussed above, the Referee found that Haley reasonably understood from the personnel department that reclassification could occur only with her supervisor's approval; her supervisor told her that his hands were tied. It is a fundamental tenet of Connecticut jurisprudence that "[t]he law does not require a useless and futile act." In re Antony B., 54 Conn. App. 463, 476, 735 A.2d 893 (1999).
Citing Carter v. West Publishing Co., 225 F.2d 1258 (11th Cir. 2000), the City also argues that the continuing violation doctrine does not apply to "`neutral acts' or single discriminatory actions." See City's Brief, p. 13. In Carter, former and current employees of the defendant alleged that it engaged in sex discrimination by denying female employees an equal opportunity to purchase stock. The plaintiffs argued that the stock program constituted a present violation because the payment of dividends was a wage premium which enhanced employee compensation, bringing it within the ambit of Bazemore v. Friday, 478 U.S. 385, 395-96, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986), wherein the U.S. Supreme Court found that "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is an actionable wrong under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII." See Carter v. West Publishing Co., supra, 225 F.2d 1264. The Carter court concluded that in contrast to the continuing violations in Bazemore, "this case involves the present effects of a one-time violation." Carter v. West Publishing Co., supra, 225 F.2d 1264. "[T]he statute of limitations commenced when the last discriminatory act occurred — West's last sale of stock to employees." Id., 1265. Further, the court noted that "the payment of dividends did not constitute a continuing violation because it operated in a neutral manner. West distributed dividends to each shareholder, regardless of their gender, based on the amount of stock owned." Id.
As recently explained in Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1011 (7th Cir. 2003), "[c]ases in which the focal point of the plaintiff's complaint is a singular event or a broad program or system that affects pay, as opposed to the pay level itself, are different," citing Carter v. West Publishing Co., supra, as an example of the former category. In contrast, "[i]n a salary case, however, each week's paycheck is compensation for work presently performed and completed by an employee." Florida v. Long, 487 U.S. 223, 239, 108 S.Ct. 2354, 101 L.Ed.2d 206 (1988). See Reese v. Ice Cream Specialties. Inc., supra, 347 F.3d 1011-12.
Moreover, the United States Supreme Court, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113-14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), listed "failure to promote" as an example of a "discrete discriminatory act [which] starts a new clock for filing charges alleging that act."
The City attempts also to distinguish our Supreme Court's decisions in State v. Commission on Human Rights and Opportunities, supra, and Veeder-Root Co. v. Commission on Human Rights and Opportunities, supra, because "Haley is not challenging a long-term policy in this case such as [a] seniority list, an actuarial table, a pay scale or a promotional test. Moreover, all the employment practices in the City of Hartford are neutral . . ." See City's Brief, p. 14.
A long-term practice of pre-selection for promotion may mask discrimination just as much as an apparently neutral list, table, scale or test. Over twenty years ago, the United States Court of Appeals for the Second Circuit, in Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1016 (2d Cir. 1980)) cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981), stated, "[d]enial of relief under Title VII on the ground that the claimant did not formally apply for the job sometimes could exclude from the Act's coverage the victims of the most entrenched forms of discrimination." (Internal quotation marks omitted.) In addition, it noted that "[t]he effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection." (Internal quotation marks omitted.) Id., 635 F.2d 1016 (quoting CT Page 2457 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365, 97 S.Ct. 1843, 1869, 52 L.Ed.2d 396 (1977)).
Grant v. Bethlehem Steel Corp., supra, involved failures to promote minority ironworkers to foreman positions. Instead of so doing, the employer, like the City here, pre-selected, on a racially discriminatory basis, those it decided to promote. See id., 635 F.2d 1012. Here, there is evidence in the record of a consistently enforced discriminatory practice to pre-select favored individuals for promotion and to deter Haley from applying for reclassification/promotion.
The court is unpersuaded that Haley is not entitled to relief because she was the only white, non-Hispanic female employee in LI. As previously noted, the City does not challenge any of the Referee's findings of fact, including, (1) that Haley had been doing the work of an administrative clerk since 1993, (2) that within Haley's unit, her three co-workers were, respectively, a Jamaican black female, an African-American female, and an Hispanic female; and (3) that Haley was the only white, non-Hispanic female working in LI. Also, it does not argue that there were one or more white male LI employees performing the work of an administrative clerk. Under the circumstances, the City has not shown how "evidence regarding the treatment of other white employees" would have been relevant. See City's Brief, p. 15. The fact that the City employed no other white, non-Hispanic females in LI was not Haley's responsibility. That Haley was in a class by herself does not make the Referee's finding of discrimination against white, non-Hispanic females unwarranted.
Likewise, the City has not shown how the fact that the person overseeing personnel policies in the Department of Personnel was a "white female," see City's Brief, p. 15, bears on the issues. "[I]n the . . . context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." (Internal quotation marks omitted.) Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
In addition, courts have stated that relief may be afforded to individual claimants, in the absence of a class-wide claim, where the continuing violation theory was utilized. See Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir. 1982) (claimant "suffered a denial of equal pay with each check she received."); Brodrick v. City of New York, 942 F. Sup. 196, 199 (S.D.N.Y. 1996) ("The practice of discriminating against an employee by paying that employee unequal wages violates Title VII when the wage is first established and each time the employee is paid an unequal amount.").
The court is also unpersuaded by the City's argument that finding in Haley's favor would render General Statute § 46-82(e) meaningless, since, according to the City, practically all employee actions would be considered continuous. See City's Brief, pp. 11-12. Section 46-82(e) requires that, as the evidence here reflects, an alleged act of discrimination must occur within the 180-day period. In recognition that employee-related decisions cannot have consequences for an unlimited look-back period, our Legislature provided the two-year limitation on liability for back pay. See General Statute § 46a-86(b). In addition, the court is unpersuaded by the City's contention, made at oral argument, that a decision in Haley's favor threatens to re-open many promotion decisions from the past. Again, a claimant in a failure to promote case must present evidence, as Haley did here, of a discriminatory act which occurred within the 180-day period.
Haley's case may be viewed both as a failure to promote case and as involving unequal pay. Either way, in view of the November 1999 discriminatory act of discouraging her from seeking reclassification/promotion and in view of the fact that, within the 180-day period prior to the filing of her CHRO complaint, she continued to be paid less than her co-workers while doing the same work, her CHRO complaint was timely. See Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2d Cir. 2003).
The Referee's determination that Haley's complaint is not time-barred resulted from a correct application of the law to the facts found and reasonably and logically follows from those facts. Accordingly, the Referee's conclusion that Haley's CHRO complaint was timely should not be disturbed.
C. Prima Facie Case
The City also contends that Haley failed to prove a prima facie case of discrimination. See City's Brief, pp. 15-19. It asserts that Haley failed to prove that she met the second prong of the four-part test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), "that [s]he applied and was qualified for a job for which the employer was seeking applicants." The City asserts that Haley's failure to apply for positions available in 1995 and 1998 and the fact that she did not apply for reclassification of her position between 1994 and 2001 demonstrate that she has not made out a prima facie case. According to the City, Haley "inexplicably waited until 2001" to file for a position review. See City's Brief, p. 17. In addition, it argues that the fact that Ford might have known that Haley wanted to be upgraded is irrelevant for the purposes of the McDonnell Douglas test. Also, it claims that "[n]o one ever inhibited her in any way from applying." See City's Brief, p. 18.
"The burden of establishing a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). 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." Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002).
The McDonnell Douglas "standard is not inflexible." Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). As noted in McDonnell Douglas, "The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." 411 U.S. 802 n. 13, 93 S.Ct. 1817.
Recently, our Supreme Court has expressed the analytical framework of the McDonnell Douglas test for a prima facie case, as defined by subsequent jurisprudence, as follows: "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." Board of Education of the City of Norwalk v. Commission on Human Rights and Opportunities, supra, 266 Conn. 505.
Our Supreme Court has "recognize[d] that `the question facing triers of fact in [employment] discrimination cases is both sensitive and difficult . . .' (Internal quotation marks omitted.) Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. 141. There rarely will be direct evidence of discrimination. See id. In recognition of this fact we have adopted a framework that enables us to analyze discrimination claims based primarily on circumstantial evidence." Board of Education of the City of Norwalk v. Commission on Human Rights and Opportunities, supra, 266 Conn. 516-17 (citing the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, supra).
In finding that Haley established a prima facie case, the Referee stated that "[s]he had repeatedly expressed an interest in promotion (FF 32); and her failure to apply for the posted promotional opportunities subsequently filled by her co-workers is justified because her co-workers were handpicked for the promotions they received. (FF 25, 28, 31)." See Decision, p. 19 (Record 000040). In addition, the Referee, in his discussion of pretext, found that "[i]t would have been futile for the complainant to apply for the pre-existing vacancies because Ford handpicked the successful, non-white female, candidates." See Decision, p. 21 (Record 000042). Further, he stated that "applying for posted promotions created by reclassification would also have been futile for the complainant. The job descriptions were designed for the current office-holder who, historically, was the successful candidate for promotion to the newly reclassified position." See Decision, p. 22 (Record 000043). Also, the Referee found that, since Ford discouraged Haley from applying for reclassification of her own position, the fact that she did not apply for reclassification was excusable, See Decision, pp. 23-26 (Record 000044-47).
These cited findings of facts ("FF") are discussed above in part III.B. of this memorandum of decision.
The City cites Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000) in support of its position, where "a plaintiff . . . was promised a promotion by her supervisor but later on failed to submit an application for the position, was found by the Second Circuit not [to] have established a prima facie case." See City's Brief, p. 18. Cruz differs from Haley's case, on procedural grounds and based on the facts. First, in Cruz the trial court's decision was on a motion to dismiss, premised on the complaint's failure to state a claim for relief, see id., 202 F.3d 564, 566, not on an evidentiary record after hearings before an administrative agency, such as is before the court here.
Second, Cruz did not involve allegations or evidence of a practice of discrimination by hand-picking or pre-selecting candidates for promotion, and discouraging those in the protected class from applying, as is the case here. See Grant v. Bethlehem Steel Corp., supra, 635 F.2d 1016. The facts and rationale of Grant fly in the face of the City's assertion that "[t]he fact that Mr. Ford might have known that Ms. Haley wanted to be upgraded or promoted is totally irrelevant for purposes of the McDonnell Douglas test." See City's Brief, p. 17. As the Second Circuit stated, "Rejection of appellants' claims because they failed to apply often enough or at the correct times makes little sense here, in view of the supervisor's admitted practice of hiring foremen before openings formally became available and were announced, which rendered futile the making of applications for foremen's jobs on specific projects. Each of the three named appellants clearly and repeatedly made his interest in a job as foreman known to at least one of the superintendents. This was sufficient to put the superintendents on notice that these men wanted a foreman's job. Under Title VII a nonapplicant can be a victim of unlawful discrimination . . . when an application would have been a useless act serving only to confirm a discriminatee's knowledge that the job he wanted was unavailable to him." (Internal quotation marks omitted.) Grant v. Bethlehem Steel Corp., supra, 635 F.2d 1017. As discussed above, the Referee found that the City, through Ford, was on notice that Haley wanted the job of administrative clerk, since he found that Haley had complained and that Ford had told her that his hands were tied.
More recently, the Second Circuit, in Mauro v. Southern New England Telecommunications, Inc., 208 F.3d 384 (2d Cir. 2000), an age discrimination case, set forth the elements of a prima facie case premised on a failure to promote. "To establish a prima facie case for discriminatory failure to promote, a plaintiff must demonstrate that: 1) he is a member of a protected class; 2) he applied for promotion to a position for which he was qualified; 3) he was rejected for the position; and 4) the employer kept the position open and continued to seek applicants. See Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998) [ Brown] (citing McDonnell Douglas Corp. v. Green, [ supra]." Mauro v. Southern New England Telecommunications, Inc., supra, 208 F.3d 386.
Mauro also involved evidence that the employer hand-picked individuals for promotion. See id., 208 F.3d 387. The court concluded that the evidence presented the factual scenario envisioned in Brown, that the employer "hand-picked individuals for promotion to a position without considering applicants. Accordingly, we hold that Mauro's failure to apply for a promotion . . . would not have precluded him, as a matter of law, from establishing a prima facie case . . ." (Internal quotation marks omitted.) Mauro v. Southern New England Telecommunications, Inc., supra, 208 F.3d 387.
Likewise, as discussed above, here the Referee found that Ford discriminated against Haley by hand-picking Haley's unit colleagues for promotion and by discouraging Haley from seeking promotion or reclassificaton. These factual findings are not challenged by the City. The record here thus contrasts also with that in Williams v. Hevi-Duty Electrical Co., 819 F.2d 620 (6th Cir.), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987), a failure to hire case, cited in the City's Brief, pp. 17-18, where the court found that the employer's policy of requiring a timely written application was not a "subterfuge for discriminating against [the plaintiff/disappointed job seeker] on account of his race or his litigiousness." See id., 819 F.2d 629. Using other words, the Referee here found that the City was engaged in such a subterfuge, based on race.
Although the City acknowledged, at oral argument, that it was not challenging the factual findings made by the Referee, in its brief it makes statements which ignore and contradict those findings. For example, the City states, "No one ever inhibited her in any way from applying." See City's Brief, p. 18. Further, it rhetorically asks, "If other employees like Maria Perez were promoted as a result of a reclassification request, why didn't Haley apply for reclassification?" See City's Brief, p. 18. Such statements ignore the salient finding by the Referee that between 1995 and 1999, Haley spoke to Ford on several occasions regarding reclassification and that "[h]e repeatedly told her that there was no money budgeted for an upgrade and that his hands were tied." See Decision, p. 10, ¶ 32 (Record 000031). It also ignores the Referee's findings that Haley was reasonably led to conclude that an application to reclassify her position would have been futile. See Decision, pp. 23-26 (Record 000044-47) (including discussion of budgetary and contractual issues). As discussed, these factual findings provided part of the underpinning for the Referee's legal conclusion that "the fact pattern of this case demonstrates an on-going pattern of discriminatorily discouraging the complainant from applying for promotion." See Decision, p. 16 (Record 000037).
Indeed, Ford testified that Haley complained to him that others had been promoted and that she had not been promoted (see Record 000900 (Transcript p. 558)); he acknowledged that he told her that his hands were tied. He stated, "I guess in so many words I did say that, yes." See Record 000901 (Transcript p. 559). He also gave a similar response in their November 1999 meeting. See Record 000901 (Transcript p. 559).
The City also cites the collective bargaining agreement under which Haley could have sought reclassification, and, if it was denied, then could have sought arbitration. See City's Brief, pp. 4-5; 17. These contractual-remedies do not preclude Haley from seeking relief under CFEPA. General Statute § 31-51bb provides, in pertinent part, "No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal Constitution or under a state statute solely because the employee is covered by a collective bargaining agreement." See Hunt v. Prior, 236 Conn. 421, 429 n. 22, 673 A.2d 514 (1996).
Further, the City points out that when Haley applied for reclassification in 2001, after Ford suggested that she do so, and after the CHRO proceedings were underway, she received the promotion to administrative clerk. See City's Brief, pp. 18-19; See Decision, p. 12, ¶ 37 (Record 000033). While the City cites this finding in the course of its statements about the City's promotion procedure, it again appears to ignore the Referee's factual findings about prefiling discrimination by the City. "It is, of course, desirable for the [employer] to improve even after the filing of charges. Our point is that it does not constitute cogent evidence of lack of prefiling discrimination. If post filing conduct is to be taken into account at all, it might tend to show the existence of prior discrimination and an effort to repair the harm after discovery." (Footnote omitted.) Rich v. Martin Marietta Corp., 522 F.2d 333, 346 (10th Cir. 1975).
In addition, the City contends that, "[t]he City should not be punished or should have to pay back wages to an employee who simply procrastinated submitting an application form." See City's Brief, pp. 18-19. Again, this statement ignores the Referee's factual findings, which the City has acknowledged that it is not challenging. The Referee did not find that Haley engaged in procrastination; rather, he found that the City had engaged in discrimination.
In view of the decisional law cited above, the Referee's legal conclusion that Haley was not required to prove that she had sought promotion or reclassification to administrative clerk in order to make out a prima facie case resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. The Referee's decision should not be set aside on this ground.
The court notes also that "[w]age disparity claims may . . . be brought under Title VII. Plaintiff has done so using circumstantial evidence. In order to proceed on a circumstantial evidence claim under Title VII, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, [ supra]; Texas Dept. of Comm. Affairs v. Burdine, [ supra]. A plaintiff establishes a prima facie case of a Title VII violation based on a disparity of wages by `showing that she occupies a job similar to that of higher paid males.' Meeks [ v. Computer Associates International, 15 F.3d 1013, 1019 (11th Cir. 1994)]." Glover v. Kindercare Learning Centers, Inc., 980 F. Sup. 437, 446 (M.D.Ala. 1997). See also Connecticut Commission on Human Rights and Opportunities v. Connecticut Commission on Human Rights and Opportunities, Superior Court, judicial district of New Britain, Docket No. CV00-0500563 (April 25, 2001, Cohn, J.) (same).
While Haley also made out a prima facie case of racially discriminatory wage disparity, the Referee's findings concerning her prima facie case were made viewing the case as based on the related failure to promote Haley. See Decision, p. 19 (Record 00040). As discussed, the Referee's decision that Haley sustained her burden to present a prima facie case should not be disturbed.
CONCLUSION
For the foregoing reasons, the appeal is dismissed. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT