Opinion
CV176076730S
08-29-2019
Mark MINTO v. CONNECTICUT DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES et al.
UNPUBLISHED OPINION
OPINION
PECK, JTR
This action arises from a dispute between the plaintiff, Mark Minto, and the defendant, the Connecticut Department of Mental Health and Addiction Services (DMHAS), in which the plaintiff alleges the defendant unlawfully discriminated against him on the basis of his race, age, and prior disability, and unlawfully disciplined and demoted him from his position as a police officer. The defendant has now moved for summary judgment as to the remaining counts of the complaint alleging violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60(a)(1).
The complaint was originally brought in nine counts and named Connecticut Valley Hospital Police Department, its former and then current chiefs of police and an investigator in the Labor Relations Division of DMHAS. Motions to dismiss those parties and counts one, two, three, four, seven and nine, have been previously granted by the court, Shapiro, J. See docket entries #110 and #129.
Public Act 17-11, in pertinent part, added a new subsection (a) re definitions, and redesignated subsections (a) and (b) as subsections (b) and (c). Thus, the unlawful discrimination subject of this lawsuit is now known as General Statutes § 46a-60(b).
The facts that follow are undisputed. The plaintiff is a black male and was 50 years of age as of the date the complaint was filed, March 27, 2017. He has been an employee of the Defendant since January 1999, assigned to Connecticut Valley Hospital as a police officer. The events giving rise to the parties’ dispute occurred on May 29, 2012. On this date, the plaintiff was involved in an incident in which the plaintiff and a third-party female engaged in contentious driving on Route 9. The plaintiff followed the third party to her apartment complex. Both parties called 911. The incident occurred shortly after the plaintiff had finished working a shift at the defendant’s property and while he was still in uniform. The plaintiff did not have a weapon on his belt, but did have his personal weapon inside his vehicle, which was also in his vehicle while he was at work. As a result of the incident, the plaintiff was arrested and charged with four misdemeanors.
The plaintiff was charged with: (1) failing to drive a vehicle a reasonable distance apart (General Statutes § 14-240); (2) failing to drive a vehicle a reasonable distance apart with intent to harass or intimidate (General Statutes § 14-240a); (3) criminal impersonation of a police office (General Statutes § 53a-130); and (4) breach of peace in the second degree (General Statutes § 53a-181).
On May 30, 2012, the Connecticut Department of Emergency Services and Public Protection (DESPP) sent the plaintiff a letter informing him that his special police powers had been revoked. DESPP also wrote that if the criminal charges were resolved in his favor, the defendant would be responsible for requesting their restoration. DESPP sent the plaintiff a second letter reiterating its position on August 16, 2012.
On June 6, 2012, the defendant notified the plaintiff that without special police powers, he was no longer qualified for the position of police officer. He was placed on immediate unpaid administrative leave. A pre-disciplinary hearing was held on June 6, 2012 and the unpaid suspension was confirmed in a June 8, 2012 letter.
The Labor Relations Division conducted an investigation into the plaintiff’s criminal charges and alleged violations of work rules and state policies. In a report issued on July 6, 2012, the investigation concluded that the plaintiff violated state workplace violence statutes, state regulations and DMHAS work rules by bringing a personal weapon onto state property and violated Connecticut State Regulations § 5-240-1a(4) relating to offensive conduct toward the public and conduct detrimental to the defendant and the state. A sixty-day unpaid suspension was recommended.
A second pre-disciplinary hearing was held on July 17, 2012. On September 26, 2012, the defendant sent a letter to the plaintiff stating that he has been placed on a thirty-day unpaid suspension and was expected to return to work on November 9, 2012.
In a second letter on September 26, 2012, the defendant also clarified the conditions for the plaintiff’s return to work on November 9, 2012: "When you return to work ... and if your special police powers have been restored and you are deemed qualified ... you will return to your position as police officer ... When you return to work ... and if your special police powers remain revoked, you will be deemed not qualified ... and will work as a Building and Grounds Patrol Officer, night shift, Whiting Forensic Institute."
The plaintiff did not return to work when scheduled because he was on medical leave due to a back injury. He remained on leave from November 1, 2012 until April 27, 2015. During this time, on March 24, 2014, the plaintiff’s doctor sent a letter to the defendant stating that the plaintiff "will be permanently restricted from being a police officer." On April 11, 2014, the doctor wrote a second letter indicating he did not believe the plaintiff "would be capable of performing this occupation." On June 1, 2014, the plaintiff filed for disability retirement.
There is nothing in the record regarding the outcome of the plaintiff’s application for disability retirement.
On February 4, 2015, all charges against the plaintiff related to the May 29, 2012 incident were dismissed. On February 27, 2015, the plaintiff’s union notified the defendant that the criminal charges had been resolved favorably and demanded that his police powers be reinstated. The defendant responded on March 4, 2015 stating that the plaintiff would be unable to return to work as a police officer. On April 7, 2015, the plaintiff’s doctor provided the defendant with a letter indicating the plaintiff "is able to return to work" and "can return as a police officer" as of April 27, 2015. The plaintiff attempted to return to work at the Connecticut Valley Hospital Police Department on April 27, 2015, but upon his arrival, he was told to return home.
On May 7, 2015, the defendant sent a letter to the plaintiff stating that he would be assigned to work as a Building and Grounds Patrol Officer. By this time, the defendant had not requested that the plaintiff’s special police powers be reinstated and he therefore remained unqualified to serve as a police officer. The plaintiff went to work on May 7, 2015 as a patrol officer.
During this time, the plaintiff’s union filed four grievances on his behalf challenging: (1) the thirty days of unpaid leave; (2) an unsatisfactory performance review for the period of October 1, 2011 through September 30, 2012; (3) the plaintiff’s demotion to patrol officer; and (4) the administrative leave from the May 29, 2012 incident until November 9, 2012.
On June 6, 2016, after a lengthy arbitration, the arbitrator issued a decision in which he made the following rulings: (1) as to the thirty-day suspension, the defendant was reasonable in both procedure and judgment; (2) there was just cause for the unsatisfactory performance review; (3) as to the demotion, there was no question the defendant could not unilaterally restore the plaintiff’s police powers, and the demotion was not a violation because he was no longer qualified; and (4) the plaintiff had no right to be placed on administrative leave because the revocation of his policies powers made him unqualified for the position.
Nevertheless, the arbitrator went to conclude the once that defendant learned the plaintiff’s criminal charges had been dismissed, the defendant could have asked for the plaintiff’s police powers to be reinstated. Accordingly, the arbitrator directed the defendant to request reinstatement. The arbitrator also ordered the defendant to pay the plaintiff the difference between what he would have earned as a police officer and what he did earn as a patrol officer for the period between March 2015, until the plaintiff is returned to work as a police officer.
On July 5, 2016, the defendant filed an application to vacate and/or modify the arbitration award. The plaintiff’s union filed an answer and a cross application to confirm the award. On May 22, 2017, the court (Peck, J.T.R.), denied the defendant’s application to vacate or modify the award and granted the union’s application to confirm the award. Connecticut v. Connecticut Police and Fire Union (NP-5), Superior Court, judicial district of Hartford, Docket No. CV-16-6069527-S (May 22, 2017, Peck, J.T.R.).
Shortly thereafter, the defendant began the process seeking to reinstate the plaintiff as a police officer. On August 18, 2017, the plaintiff’s special police powers were restored and he returned to work as a police officer. On October 26, 2017, the plaintiff was also issued the back pay owed.
During this time, on March 27, 2017, the plaintiff filed a verified complaint which originally included nine counts against a number of defendants. Of the nine counts, only discrimination on the basis of race (count five), discrimination on the basis of age (count six), and discrimination on the basis of disability (count eight) remain and DMHAS is the sole defendant.
The defendant filed this motion for summary (#141) along with a supporting memorandum of law (#142) and a number of exhibits (#143) on January 30, 2019. The defendant argues this action should be resolved because (1) all claims arising prior to December 24, 2014 are time barred or otherwise inappropriately brought before the court, and (2) the plaintiff has failed to prove that discrimination on the basis of his race, age, or disability status.
The plaintiff filed an objection (#145) and his own exhibits (#146) on February 28, 2019. The defendant filed a reply memorandum (#148) on March 14, 2019. The matter was heard before the court on May 6, 2019.
DISCUSSION
I
TIMELINESS
General Statutes § 46a-82(f) requires, in relevant part, that any complaint alleging a discrete discriminatory action must be filed with the Commission on Human Rights and Opportunities (CHRO) "within one hundred and eighty days after the alleged act of discrimination."
"A discrete discriminatory act is a ‘single completed action’ that occurs at a specific time, and typically is actionable on its own." Darling v. Potter, United States District Court, Docket No. 3:04CV1467 (PCD) (D.Conn. August 25, 2005). "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180-day ... time period after the discrete discriminatory act occurred." National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 113.
"[T]he 180-day time requirement for filing a discrimination petition ... is not jurisdictional, but rather, is subject to waiver and equitable tolling." Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 263, 777 A.2d 645 (2001). In addition, "[t]he continuing violation doctrine is [another] exception to the general rule that discrete discriminatory acts are not actionable if time barred. According to the continuing violation doctrine, if a plaintiff files an administrative charge that is timely as to any incident of discrimination that is in furtherance of an ongoing policy of discrimination, all claims of discrimination under that policy will be timely." (Internal quotation marks omitted.) Chouhan v. University of Connecticut Health Center, Superior Court, judicial district of New Britain, Docket No. CV-09-6002439-S (November 5, 2013, Wiese, J.). However, "the continuing violation doctrine generally has been limited to situations where a specific discriminatory policy or mechanism has been alleged ... Accordingly, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." (Citations omitted; internal quotation marks omitted.) O’Hazo v. Bristol-Burlington Health District, 599 F.Supp.2d 242, 263 (D.Conn. 2009).
In the present action, it is undisputed that the plaintiff filed his CHRO complaint on June 22, 2015, and that one hundred and eighty days prior to that date is December 24, 2014. The defendant argues that to extent that the plaintiff’s claims rely on allegations of discrete acts which occurred prior to that date, the allegations are time barred by § 46a-82(f). The defendant specifically challenges the plaintiff’s claims regarding: (1) the unpaid administrative leave, (2) the thirty-day suspension, (3) the unsatisfactory service rating, and (4) the demotion.
All four of the above actions are discrete acts. See Varno v. Canfield, 664 Fed.Appx. 63, 65 (2nd Cir. 2016) (holding demotion is a discrete act); Nadeau v. Ecolab, Inc., United States District Court, Docket No. 3:15CV1705 (DJS) (D.Conn. September 25, 2017) (holding unsatisfactory performance reviews are discrete acts); Gupta v. Bridgeport, United States District Court, Docket No. 3:14CV00112 (MPS) (D.Conn. March 30, 2004) (holding an unpaid suspension is a discrete act).
The first three- the unpaid administrative leave, the thirty-day suspension, and the unsatisfactory service rating- are discrete acts which occurred outside the 180-day time period allowed under in § 46a-82(f). As to these three, the defendant has not waived the timeliness requirement, nor has the plaintiff demonstrated that he should be entitled to an equitable tolling or the existence of a discriminatory policy or mechanism such that the continuing violation doctrine would apply. To the extent the plaintiff relies on them as a basis for his discrimination claims, the court finds that they are time barred.
Importantly, however, courts have held that "[t]he existence of past acts and the employee’s prior knowledge of their occurrence ... does not bar employees from filing charges about related discrete acts so long as the related discrete acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim." National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 113; see United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 229-30, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002). Therefore, the plaintiff is free to present and discuss evidence related to the defendant’s actions prior to December 24, 2014, so long as they are within the context of discriminatory conduct alleged to have occurred after that date.
Moving to the fourth allegation of discrimination, courts have described a demotion as "evidenced by a decrease in wage or salary." Vega v. Hempstead Union Free School District, 801 F.3d 72, 85 (2nd Cir. 2015); Davis v. Department of Correction, Superior Court, judicial district of New Haven, Docket No. CV-15-6058372-S (November 21, 2017, Frechette, J.) . Once the demotion becomes effective, the limitation period begins to run, within which a complaint must be filed. Varno v. Canfield, supra, 664 Fed.Appx. 65; Stembridge v. New York City Department of Education, 622 Fed.Appx. 6, 7 (2nd Cir. 2015).
In the present case, the parties offer different effective dates for the plaintiff’s demotion. The defendant contends the plaintiff was demoted on September 26, 2012, upon his receipt of a letter detailing the conditions for his return to work, then scheduled for November 9, 2012. The court does not agree. It is clear from the language of the letter that the plaintiff had not yet been demoted. Rather, his employment status was contingent on whether or not his special police powers were restored by the time he returned to work. If so, the plaintiff would return as a police officer; if not, he would be demoted to patrol officer.
Specifically the September 26, 2012 letter stated: "Please note below the following conditions of your return to work:
The plaintiff offers two alternative dates for his demotion. The first date is February 27, 2015, when the plaintiff’s union notified the defendant that his criminal charges had been resolved and demanded his police powers be reinstated. The second is March 4, 2015, when the defendant responded to the union’s letter by stating he would be unable to return to work as a police officer. The court disagrees with both dates because during these times the plaintiff was still on disability leave and medically unable to work.
The arbitrator found that the failure of DMHAS to request restoration of the plaintiff’s special police powers resulted in a demotion but "only after" DMHAS received notice of the resolution of the criminal charges in the plaintiff’s favor by way of the union president’s letter to the DMHAS chief of police on February 27, 2015. (Emphasis original.)
Based on the previously noted definition of demotion, the record reflects that May 7, 2015, is the effective date of the plaintiff’s demotion. At all times prior to that date, one or more factors prevented the plaintiff’s ability to return to work. The plaintiff’s criminal charges were not resolved until February 4, 2015, and he remained on disability until his doctor informed him that he would be able to return to full, regular duty, effective April 27, 2015. On May 7, 2015, despite knowing that the plaintiff was eligible to have his police powers reinstated since sometime after February 4, 2015, the defendant sent the plaintiff a letter notifying him that his return to full duty was set for him to work as a Building and Grounds Patrol Officer at Whiting Forensic Police. Indeed, on May 7, 2015, the plaintiff began working as a Building and Grounds Patrol Officer for at a lower wage or salary than his position as a CVH Police Officer. Because May 7, 2015 is well within 180 days preceding the filing of the CHRO complaint on June 22, 2015, as are the alternative dates of February 27, 2015 and March 4, 2015, and even April 27, 2015, the court finds that the plaintiff’s discrimination claims relating to his demotion are not time barred. Further, given that no less than four dates for plaintiff’s demotion have been offered within the various papers submitted on the issue of summary judgment, the effective date of plaintiff’s demotion remains a genuine issue of material fact that cannot be resolved in the context of a summary judgment motion.
The May 30, 2012 letter from Major Sarah Bruso, Commanding officer of the Office of Administrative Services of DESPP informed the plaintiff as follows: "Should the [criminal] charges be resolved in your favor, the nominating agency may contact this office to request restoration." From February 27, 2015 until the plaintiff’s return to work on May 7, 2015, the "nominating agency," DMHAS, made no request to DESPP to restore the plaintiff’s police powers.
II
IMMUNITY
General Statutes § 46a-100 provides in relevant part that "[a]ny person who has timely filed a complaint with the [commission] ... and who has obtained a release from the commission ... may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford." General Statutes § 46a-101(a) provides that "[n]o action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section." "Thus, only a plaintiff who has first obtained a release is entitled to take advantage of the state’s statutory waiver of sovereign immunity." (Citations omitted; emphasis removed.) Ware v. State, 118 Conn.App. 65, 80, 983 A.2d 853 (2009).
The defendant contends that, to the extent the plaintiff’s claims are based on allegations arising prior to December 24, 2014, the plaintiff did not file a timely CHRO complaint and therefore the CHRO’s release was ineffective to allow the plaintiff to take advantage of the state’s waiver of sovereign immunity and so those claims must be dismissed for lack of subject matter jurisdiction.
As previously found, the plaintiff’s unpaid administrative leave, thirty-day suspension, and unsatisfactory service rating, are discrete acts which occurred outside the statutory window and are time barred, and thus, beyond the subject matter jurisdiction of the court. As also addressed, however, there is a genuine issue of material fact concerning whether the plaintiff’s demotion occurred within 180 days prior to June 22, 2015, the date of the filing of the CHRO complaint. Therefore, as to his claims of discrimination relating to demotion, the CHRO complaint, over which the commission has released jurisdiction, are within the subject matter jurisdiction of the court.
III
EXHAUSTION
"Under our exhaustion of administrative remedies 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.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). "Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff’s] claim." (Internal quotation marks omitted.) Id.
The defendant argues that to the extent the plaintiff relies on untimely allegations, he has failed to exhaust his administrative remedies by failing to file a timely CHRO complaint. As previously stated herein, the discrete acts which occurred prior December 24, 2014 are time barred. Therefore, the plaintiff has failed to timely exhaust his administrative remedy as to his claims of discrimination based on his unpaid administrative leave, his thirty-day suspension, and his unsatisfactory service rating and, as to those claims, the court lacks subject matter jurisdiction. However, for the reasons previously stated, there is a genuine issue of material fact as to whether the plaintiff’s discrimination claims concerning his demotion were timely.
IV
DISCRIMINATION
In matters of employer discrimination, courts engage in the burden-shifting analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 668 (1973). "[T]he employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision was actually motivated by illegal discrimination bias." Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002).
"To establish a prima facie case of discrimination, a plaintiff must prove four elements: (1) that [he] belongs to a protected class; (2) that [he] was qualified for the position in question; (3) that despite [his] qualifications, the individual suffered an adverse employment action; and the adverse action occurred under circumstances giving rise to an inference of discrimination." Eaddy v. Bridgeport, 156 Conn.App. 597, 603-04, 112 A.3d 230, cert. denied, 317 Conn. 906, 114 A.3d 1220 (2015).
While this analysis must be used at trial, in the context of a motion for summary judgment, where the movant bears the burden of demonstrating there are no genuine issues of material fact, it is not appropriate and creates cause for confusion. See Cloutier v. Turkey Hill d/b/a Fish Enterprises, Superior Court, judicial district of Hartford, Docket No. CV-16-6070203S (April 12, 2019, Gordon, J.); Kauffman v. Bowl New England, Inc., Superior Court, judicial district of Hartford, Docket No. CV-17-6084423-S (March 26, 2019, Peck, J.T.R.) .
"At least in part, the problem seems to be attributable to a continued misapplication of the seminal case of Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990), wherein the Connecticut Supreme Court applied for the first time the burden-shifting methodology for analyzing employment discrimination claims established by McDonnell Douglas Corp. Notably, McDonnell Douglas Corp., Craine, and Ford involved appeals after trials on the merits ... Specifically, the problem seems to be particular language quoted from Ford and its progeny that, ‘in cases involving claims of employment discrimination ... [t]he plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination .’ (Emphasis added.) ... Motions for summary judgment, as distinct from trials, however, impose no such burden on the plaintiff. Yet time and again, the foregoing quote from Ford is invoked in both trial and appellate decisions involving motions for summary judgment resulting in incomplete analysis or confusion on the part of the bench and bar. Plainly, the plaintiff’s burden to set forth a prima facie case by preponderance of the evidence arises only at trial when the case is ultimately submitted to the jury and not at the pre-trial summary judgment stage." (Citations omitted; footnotes omitted.) Kauffman v. Bowl New England, Inc., supra, Superior Court, Docket No. CV- 17-6084423-S. As clarified by the Second Circuit, "[t]he burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima face stage is de minimis." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2nd Cir. 1997).
Under our well-established motion standard, "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 ... 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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
"A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings." (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, "[a] genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence ... Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 861 (2013).
In its motion for summary judgment, the defendant argues the plaintiff has failed to prove he was discriminated against on the basis of his race, age, or disability, and challenges every aspect of the plaintiff’s prima facie case other than the fact that the plaintiff belongs to protected classes regarding those characteristics. The defendant also argues it had a legitimate, nondiscriminatory reasons for its employment actions involving the plaintiff, and that the plaintiff cannot prove that the defendant’s actions were pretext for discrimination.
As explained above, the court’s jurisdiction is limited to actions which took place after December 24, 2014 and notes the following undisputed factual circumstances established by the evidentiary record: (1) On February 27, 2015, the president of the police and fire union requested DMHAS, as the nominating agency, to immediately request the restoration of the plaintiff’s police powers and return him to the position of police officer. (2) At no time following February 27, 2015, and before the plaintiff’s return to work as a Building and Grounds Patrol Officer on May 7, 2015, did the defendant request reinstatement of the plaintiff’s police powers despite being notified that his criminal charges had been resolved; (3) on April 7, 2015, Dr. Krompinger, the plaintiff’s orthopedic physician, cleared the plaintiff to return to work as of April 27, 2015. (4) On May 7, the defendant was returned to work by DMHAS as a patrol officer, a position with a lower wage or salary than his former position as a police officer. (5) Following the arbitration award on June 2, 2016, the defendant did not return the plaintiff to the role of police officer as ordered by the arbitrator. 6) The defendant did not submit a request to DESPP to restore the plaintiff’s police powers until after May 22, 2017 when the defendant’s motion to modify or vacate the arbitration award was denied and the motion to confirm the award was granted by this court. 7) The defendant did not officially request that DESPP restore the plaintiff’s special police powers until June 19, 2017. 8) The plaintiff’s special police powers were restored by DESPP, effective August 18, 2017. 9) On October 26, 2017, the plaintiff was awarded $53,421.13, described by DMHAS Principal HR Specialist David Pawlak, as a monetary payment for the difference between what he was paid for his work as a patrol officer and the pay he would have received as a police officer for the time period between March 29, 2015, and the date that he returned to the position of DMHAS Police Officer. Based on the foregoing evidence, there are genuine issues of material fact concerning whether the plaintiff’s demotion occurred under circumstances which give rise to an inference of intentional discrimination as well as on the issue of pretext.
Pursuant to the May 30, 2012 revocation letter to the plaintiff from DESPP, only the nominating agency, in this case, DMHAS, had the ability to request restoration of the plaintiff’s police powers.
See Connecticut v. Connecticut Police and Fire Union (NP-5), Superior Court, judicial district of Hartford, Docket No. CV 16-6069527S (May 22, 2017, Peck, J.T.R.).
This date was selected by the arbitrator for the back pay award in recognition of the fact that it would have taken a reasonable period of time for DESPP to restore the plaintiff’s special police powers had it received such a request from DMHAS.
A
Qualifications for Employment
The issue of the plaintiff’s qualifications for employment is colored by two undisputed facts: (1) from November 1, 2012 through April 27, 2015, the plaintiff was on medical leave and unable to work; and (2) the plaintiff’s special police powers were revoked by DESPP on May 30, 2012, immediately following the May 29, 2012 incident. The defendant argues these facts prevent the plaintiff from proving that he was minimally qualified for his job as a police officer.
There is no question that while the plaintiff was on disability he was unable to return to work. Once his criminal charges were dismissed and he became medically eligible to work, however, the only reason he did not meet the qualifications of the job of police officer was due to the defendant’s failure to timely request restoration of his special police powers from DESPP. After April 27, 2015, the only missing qualification for his job as police officer was entirely within the control of DMHAS and DESPP. Pursuant to the September 26, 2012 letter from defendant to the plaintiff concerning the conditions of the plaintiff’s return to work after his 30-day suspension, the defendant stated that the only impediment to the plaintiff’s return to work as a police officer was reinstatement of his special police powers. Based on that letter, the defendant has offered no legitimate reason for delaying its application for restoration of the plaintiff’s police powers until June 19, 2017, a date well over two years after the plaintiff was eligible to have his special police powers restored and to be reinstated as a police officer. Therefore, because the plaintiff was objectively qualified for the position of police officer, but for the purposeful inaction of the defendant, the court cannot find that he was unqualified for the position for purposes of establishing this element of his prima facie case. Further, under the circumstances, the defendant’s failure to act on this matter is arguably part and parcel of the claimed discriminatory act of demotion. The court cannot allow purposeful discriminatory inaction to defeat what may ultimately be found to be a legitimate claim of discrimination. At the very least this presents an issue of fact that must be resolved by the finder of fact at trial.
B
Adverse Employment Action
"In discrimination cases, the plaintiff’s burden of showing that he suffered an adverse employment action requires him to present evidence that he was subjected to a materially adverse change in the terms and conditions of his employment." Cutler v. Stop & Shop Supermarkets, 856 F.Supp.2d 416, 420 (D.Conn. 2012). In the present case, the defendant argues that because the plaintiff was restored to his position and given back pay, ultimately, he did not suffer an adverse employment action.
"A demotion coupled with a large pay cut undoubtedly constitutes an adverse employment action." Cutler v. Stop & Shop Supermarkets, supra, 856 F.Supp.2d 420. In instances where a plaintiff has been reimbursed for lost wages, courts have held that the plaintiff still suffered an adverse employment action in the form of the lost use of those wages. Burlington Northern and Sante Fe Railway Co. v. White, 548 U.S. 53, 73, 126 S.Ct. 2405, 165 L.Ed.2d 245 (2006); Giordana-Forkan v. New York City Department of Education, United States District Court, Docket No. 13CV06950 (GBD) (S.D.N.Y. October 17, 2014). Courts are particularly sensitive the greater the amount of time that has elapsed between the adverse employment action and the reimbursement. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2nd Cir. 2001).
In the present case, the plaintiff was returned to work a patrol officer at a reduced wage or salary on May 7, 2015, when he was eligible to have his special police powers restored by DESPP at the request of DMHAS in February 2015. On June 6, 2016, after a lengthy hearing, the arbitrator found that the failure of DMHAS to seek restoration of the plaintiff’s police powers effectively imposed a penalty upon him in the form of a demotion for which there was no just cause. The arbitrator thereupon sustained the grievance filed by the union on the plaintiff’s behalf and ordered DMHAS to request restoration of the plaintiff’s police powers and to make him whole. Nevertheless, the defendant did neither until August 18, 2017 and October 26, 2017, after this court issued an order on May 22, 2017, confirming the arbitration award. For these reasons, the evidence presented reflects that there is a genuine issue of material fact concerning whether the plaintiff was subjected to adverse employment action.
C
Inference of Discrimination
"To establish the [fourth] prong [of a prima facie case], a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was ... To be probative, this evidence must establish that the plaintiff and the individuals to whom she seeks to compare herself were similarly situation in all material respects." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012). "Whether two employees are similarly situated ordinarily presents a question of fact." Graham v. Long Island Railroad, 230 F.3d 34, 39 (2d Cir. 2000). "The burden of establishing a prima facie case is a burden production, not a burden of proof." Craine v. Trinity College, supra, 259 Conn. 638.
In the present case, the plaintiff has argued that the defendant treated him more harshly than other employees who were not black, aged 40 and over, and/or have a history of physical disability. The plaintiff has submitted evidence that other employees not in his protected classifications faced criminal charges or brought personal firearms to work but did not suffer similar adverse employment actions. The burden on the plaintiff is minimal at this stage and while the court finds he has met this burden, it also finds that there remain genuine issues of material fact regarding similarly-situated coworkers and the defendant’s decision-making and discipline processes. Accordingly, the defendant’s motion for summary judgment is denied.
D
Legitimate, Non-Discriminatory Reasons & Pretext
"A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue ... Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." (Citations omitted.) Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2nd Cir. 1994).
The legitimate nondiscriminatory reason that the defendant offers as to why it would not have affirmatively requested that DESPP restore the plaintiff’s special police powers regardless of his race, age or disability is that to do so would have been "detrimental to the best interest of the agency" and that there is ample evidence to support this statement. In particular, the defendant recounts that the DMHAS chief of police stated under oath that she did not initiate the reinstatement process by recommending to the DMHAS Commissioner that she apply to DESPP for restoration because she had serious reservations about the plaintiff’s judgment which had no basis in unlawful discrimination. The plaintiff further argues that DMHAS could have terminated the plaintiff’s employment in September 2012, but instead elected to suspend and demote him. The defendant also asserts that the chief’s letter of September 26, 2012 informing the plaintiff of the conditions upon which he could return to work meant only that DMHAS would consider returning him to the position of DMHAS Police Officer if his special police powers were restored. This assertion by the defendant is plainly incorrect and thus raises an inference that it is pretextual. As previously quoted in this memorandum of decision, the word "consider" was never used in the referenced letter. See note 5, supra . Because the defendant has offered no valid reason for delaying until June 2017 to seek restoration of the plaintiff’s police powers, a reasonable fact finder may conclude that the only reason for such a delay was an illegal one, creating a question of fact as to the question of the defendant’s true motivation.
CONCLUSION
For all the foregoing reasons, the defendant’s motion for summary judgment concerning the plaintiff’s remaining claims of race, age and disability discrimination is hereby denied.
1. When you return to work on November 9, 2012, and if your special police powers have been reinstated and you are deemed qualified to perform your duties as a police officer, you will return to your position as police officer with your same work schedule and shift.
2. When you return to work on November 9, 2012, and if your special police powers remain revoked, you will be deemed not qualified to perform your duties as a police officer, and will work as a Building and Grounds Patrol Officer, night shift, Whiting Forensic Institute.