Opinion
No. X08 CV04-0199334S
June 27, 2007
Memorandum of Decision on Defendants' Motion for Summary Judgment (No. 149)
Procedural and Factual Background
The following facts are undisputed.
The defendant St. Luke's Foundation, Inc. d/b/a/ St. Luke's School ("St. Luke's") nondenominational coeducational college preparatory school in New Canaan which, at the time in question (the 2002-03 school year) had approximately 438 students, from grades 5 though 12. The plaintiff Carl P. Moeller, a certified Connecticut teacher, started his employment at St. Luke's as a history, science, and physical education teacher in September 1988. He also served part-time as coach of several middle-school sports teams and as head coach of the St. Luke's varsity football team. In 1993 he was named Dean of Students with responsibility for student discipline, monitoring and recording attendance, and student parking. At various times he also was responsible for the community service program, and the advisor program, and served as faculty advisor to student government and the senior class. While Dean of Students, Moeller continued his part-time position as head football coach, leading the St. Luke's Crusaders to a perfect 9-0 season in the fall of 2001, winning both the Fairchester Athletic Association and the Western New England Prep School Class D championships.
During the plaintiff's tenure at St. Luke's he worked under a series of successive one-year written contracts, which were renewed each spring for the period of the following school year. His final contract at St. Luke's was signed in the spring of 2002 for the 2002-2003 school year Although the term of that contract was designated as July 1, 2002 to June 30, 2003, he had no assigned duties or responsibilities from the time school let out in June until the commencement of football practice in late August.
Plaintiff's employment at St. Luke's terminated at the end of his contract term in June 2003. He was not offered a position or a contract for the 2003/2004 school year. He alleges in this lawsuit that he was discharged by St. Luke's in breach of his express written contract or in breach of an implied contract, that in discharging him or failing to re-hire him St. Luke's discriminated against him on the basis of his age (47 years old when his employment at St. Luke's terminated) in violation of the Connecticut Fair Employment Practices Act and the federal Age Discrimination in Employment Act; and that the defendant took certain adverse actions against him in retaliation for having filed a discrimination case against St. Luke's with the Connecticut Commissions on Human Rights and Opportunities (CHRO), in violation of Title VII of the federal Civil rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended by the Civil Rights Act of 1991, and in violation of the Connecticut Fair Employment Practices Act, Conn. Gen Stat. § 46a-60(a)(4). The defendant St. Luke's denies that it discharged plaintiff or took any involuntary adverse job action against him, or that it breached any contract with the plaintiff or that it discriminated against him on the basis of his age, or that it took any adverse actions in retaliation for the filing the plaintiff's CHRO complaint.
§ 46a-60(a), Conn. Gen. Stat. provides: "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; . . ."
29 USC § 623 provides: "(a) Employer practices: It shall be unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees 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 age; or (3) to reduce the wage rate of any employee in order to comply with this chapter."
§ 46a-60(a)(4) makes it an illegal discriminatory practice, "For any person, employer, labor organization or employment agency to discharge, expel, or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83, or 46a-84."
Plaintiff's final contract with St. Luke's (for the 2002/2003 school year) was signed on April 8, 2002, at a time when the headmaster or "Head of School" was Richard Whitcomb who had held that position for a number of years. Mr. Whitcomb left St. Luke's at the end of the school year on June 30, 2002 and was replaced by Mark Davis who was hired from a pool of several candidates who were interviewed by a group of faculty and administrators including the plaintiff. Shortly after taking office in July 2002 Mr. Davis asked Mr. Moeller to come in for a conference. They met at St. Luke's on July 14. Mr. Davis reviewed some areas of concern about the plaintiff's job performance which had come to his attention, and discussed some ways to improve performance for the 2002/2003 school year and then told plaintiff that starting with the following year (2003/2004) he had decided to expand the position of Dean of Students from a ten-month position to a full-year position, and to expand the job description to include additional duties essentially encompassing the oversight of all non-academic areas of student life. Some of the additional responsibilities were in areas where the plaintiff had experience, but some were not. Mr. Davis said that he was going to be interviewing candidates for the new expanded Dean of Students position for 2003/2004 and that the plaintiff could apply and be considered if he so desired. It is undisputed that Mr. Moeller at that meeting said he had no interest in holding the expanded position as Dean of Students. "And I said well, I'm not going to reapply for my job after ten years. I would rather do something else." (Plaintiff's deposition, 7-11-06 Tr. 27-28.) Plaintiff further stated that he was "burned out" (Tr. 28) as Dean of Students which he characterized as a "thankless job." (Tr. 77.) Davis and Moeller then discussed other possible positions for the plaintiff at St. Luke's. The plaintiff expressed an interest in a position as physical education teacher, but there was no opening for that position at that time (Tr. 31). Mr. Davis told plaintiff that he was going to "repost" the expanded Dean of Students position for 03/04 (Tr. 28). Mr. Davis confirmed the July 24 meeting with an e-mail of July 25. (Frederick aff. Ex 5) in which he said:
I think we reached a good understanding for the 02/03 school year, and I appreciate your candor in saying that you'd like to find responsibilities other than the Dean of Student's role beginning in 03/04. As the year unfolds and I develop a clearer sense of the School's needs, lets talk more about what makes the most sense for you.
At a faculty meeting on August 26, 2002 attended by the plaintiff Mr. Davis announced the plaintiff's resignation from the Dean of Students position for the following year (03/04). Plaintiff did not challenge that statement (Tr. 37). A search for a new Dean of Students starting with the 03/04 year was announced on November 6, 2002 in an e-mail from Mark Davis to all faculty and staff. Applications were solicited. The submission deadline was November 15, 2002 (Frederick aff. Ex 6). The plaintiff received the e-mail, but did not respond to it. (Tr. 35-36.) On February 18, 2003 Mr. Davis announced by e-mail to all faculty and staff (Frederick aff. Ex 15) that Kate Parker Burgard had accepted St. Luke's offer to become the new Dean of Students starting July 31, 2003. At that time the plaintiff was 46 years of age. (Plaintiff aff. ¶ 1) as was Mark Davis (Davis affidavit 12-15-06 ¶ 4). Kate Parker Burgard was approximately 41. (Second Revised Complaint, First Count, ¶ 6.) Ms. Parker Burgard took over the expanded position of Dean of Students at St. Luke's starting in 03/04.
Although there was discussion starting with the July 14, 2002 meeting of other possible positions for Mr. Moeller at St. Luke's starting in 2003/2004, and Moeller did apply unsuccessfully in December 2002 for the new position of Director of Communications, a position for which he admittedly lacked qualification, no agreement was reached on another position. Mr. Davis advised the plaintiff by letter of November 18, 2002 that St. Luke's was left "without a suitable position for you for the 2003-04 school year." (Robin Frederick, Esq. Affidavit, Ex. 8) which was reconfirmed in a subsequent letter of February 12, 2003. ( Id., Ex. 14.) The plaintiff left St. Luke's at the end of June 2003 and took a position as physical education teacher and assistant football coach at the Wilton public schools for the 2003/2004 school year. (Frederick aff. Ex 16.) The position of head football coach at St. Luke's (which was not a separate position but only a part-time responsibility for a faculty or staff member holding another position) went to Mark Hoffman (approximately 30 years old) for the 2003/2004 school year; then a year later starting with the 2004/2005 school year Mr. Hoffman was replaced by a 59-year-old person.
More detailed discussion of the facts surrounding the termination of Moeller's employment at St. Luke's will be incorporated as necessary into the discussion below.
Now before the court is the defendant's motion for summary judgment dated December 15, 2006. Both parties have submitted affidavits, deposition transcripts and documentary exhibits, which the court has reviewed and considered along with memoranda of law. For the reasons to be set forth herein, the court will grant the motion for summary judgment as to all counts of the complaint.
Discussion A. Legal Standard — Summary Judgment
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980).
"[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . ." (Citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 209 (2000). It "must be demonstrated by counter-affidavits and concrete evidence." (Citations omitted.) Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." (Citations omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560 (2001). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citations omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). "The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; Internal quotation marks omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97 (1991). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted.) Nolan v. Borkowski, 206 Conn. 495, 500 (1988). A conclusory assertion [in an affidavit] does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of summary judgment. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94 (2000).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Citations omitted.) Miller v. United Technologies Corp., 233 Conn. 751. "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the non movant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; Emphasis in original.) Id., 752.
B. First Count: Breach of Contract
The plaintiff alleges that he "was discharged" from his employment in that the defendant "actively wilfully, and illegally refused to renew plaintiff's contract for the 2003-2004 school year . . . in breach of plaintiff's written employment contract and written procedures for performance assessment and/or discipline that are the subject of binding written procedures and/or binding past practice and/or course of performance of contractual dealing." (First Count, ¶ 2.) Although the plaintiff concedes that his "paper contracts" for each of the academic years 1988/1989 through 2002/2003 were contracts for a term of one year renewable solely at the discretion of the defendant, he alleges that St. Luke's refusal to renew his contract "was brought about by" a course of conduct. ( Id.) From that he argues that "the course of conduct between the parties demonstrates that there was an implied contract of annual renewal in the absence of just cause." (Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, pp. 13-14.) The course of conduct claimed by plaintiff allegedly ". . . began in or about the month of September 2002, and consisted in wilfully false statements concerning plaintiff's position as Dean of Students, instituting a procedure whereby plaintiff had to apply for a position he had held for the previous ten (10) years and introducing incidents that occurred under the supervision of the past Head of School, Richard Whitcomb, which incidents were suddenly the subject of after-the-fact attempts to discipline plaintiff . . ." First Count ¶ 2. It is not necessary for the court to get into the claims of a course of conduct or parol evidence to interpret the meaning and intent of the contract. The express written contract between the parties (Exhibit 2, Robin G. Frederick, Esq. Affidavit) provides in the very first clause that "the appointment contemplates your employment as a faculty member for the 2002-2003 school year" and concludes with the plaintiff's acknowledgment that "I accept my appointment for the school year 2002-2003 in accordance with the terms set forth above." There is no reference whatsoever to renewability or to terms of employment for the following year. There is no provision that the contract would be automatically renewed in the absence of just cause for termination. The absolute requirement of having a new contract to continue employment beyond the end of the contract term on each June 30 is clear:
In his memorandum at p. 2 the plaintiff argues that "The essence of the breach of contract claim and the discrimination claim center on whether and to what extent the defendant refused to provide plaintiff with a position other than that of Dean of Students and whether defendant improperly took the Head Football coaching job away from the plaintiff and denied plaintiff the position of Athletic Director." The court will consider only the claimed breach of contract as alleged in the complaint. The court is not required to reach the merits of argument raised for the first time in a memorandum in opposition to summary judgment. Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 607 (2006).
In his memorandum at page 16 the plaintiff claims a different course of conduct, but the court will consider only the course of conduct alleged in the complaint. See footnote 4 of this memorandum.
If you accept this appointment, please sign below (both copies), and return one original to me . . . If this agreement is not returned to me by April 5, 2002, St. Luke's acknowledges that you are terminating your employment effective June 30, 2002.
There is no issue of fact but that the plaintiff remained in the employ of St. Luke's as the Dean of Students until the final day of his contract term on June 30, 2003. Although, by the terms of the contract, he could not have been terminated during the school year unless he was "unable to perform all or a substantial part of [his] duties . . ." or in the event of ". . . serious misconduct or violation of school policies . . ." he lost the protection of those provisions when the contract expired and he was not offered a new contract for the following year.
Plaintiff cites Gaudio v. Griffin Health Services Corp., 249 Conn. 523 (1999) for the proposition that verbal representations in concert with written policies could contribute to the terms of an employment contract. The Supreme Court in Gaudio did affirm a jury verdict for an employee claiming breach of an implied contract to continue to employ the plaintiff unless there were just cause for his termination. (The jury had found such an implied contract based on statements made by the employer in its personnel manual.) Gaudio is totally inapposite, however, because of the crucial fact that Mr. Gaudio did not have an express contract of employment: "All employer-employee relationships CT Page 12201 not governed by express contracts involve some type of implied `contract' of employment." (Emphasis added.) Id., 249 Conn. at 532. Because the personnel manual provisions in question did "not contain express contract language . . ." the court upheld the submission of the claim of implied contract to the jury. Id., at 533. In this case, however, we are dealing with express contract language which is clear and unambiguous and there is no issue of contract implication to be submitted to the jury or in this case to the trial court.
This case has been stricken from the jury docket and is scheduled to be tried by the court sitting without a jury.
Although ordinarily the question of contract interpretation, being a question of parties intent, is a question of fact; . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction.
(Citations omitted.) Bank of Boston v. Scott Real Estate, Inc., 40 Conn.App. 616, 621 (1996).
In his memorandum of law the plaintiff attempts for the first time to couch his breach of contract claim in terms of alleged breaches of the implied covenant of good faith and fair dealing. But that theory is not pleaded in the complaint. Breach of the implied covenant of good faith and fair dealing, however, is a cause of action independent from breach of contract. Buckman v. People's Express, Inc., 205 Conn. 166, 170 (1987); Martin v. DuPont Flooring System, Inc., No:3:01CV2189(SRU), 2004 U.S.Dist. LEXIS 5486 at *17 (D.Conn. March 31, 2004) (applying Connecticut law.) The court is not required to reach the merits of a claim or argument raised for the first time in a memorandum in opposition to summary judgment. Bellemare v. Wachovia Mortgage Corp., supra, at footnote 4.
The express written contract between Carl Moeller and St. Luke's school for the school year 2002/2003 is an unambiguous definitive contract with respect to term of employment. The term of employment ended on June 30, 2003. There is no provision for automatic renewal. There is no provision for guaranteed employment for the 2003/2004 year in the absence of just cause. On June 30, 2003 Mr. Moeller's employment terminated as a matter of law and St. Luke's chose not to re-hire him. There is no material issue of fact between the parties and the defendant is entitled to judgment as a matter of law on the breach of contract count.
C. Second and Third Counts: Age Discrimination
Although the Second Count is based on the Connecticut Fair Employment Practices Act ("FEPA") and the Third Count on the federal Age Discrimination in Employment Act ("ADEA"), both FEPA and ADEA, quoted in part at footnotes 1 and 2, prohibit an employer from discharging or failing to hire an employee because of the individual's age, and the plaintiff's allegations in each of these counts are very similar, so that these two counts may be treated together for purposes of this motion for summary judgment. In fact, Connecticut courts" . . . review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996).
Plaintiff complains in these counts that he was discriminated against on the basis of his age (born April 15, 1956, therefore 47 years of age in July of 2002 and 48 in June of 2003 when his employment terminated) because his position as faculty advisor was given to a "younger, inexperienced teacher" on February 14, 2003; his position as dean of Students was given to Kate Parker-Burgard, approximately 41 years of age, starting with the 2003/2004 school year; and his position as head football coach was given to Mitch Hoffman, approximately 30 years old, following his departure from St. Luke's. In analyzing this type of employment discrimination claim Connecticut has adopted the federal McDonnell Douglas-Burdine burden-shifting model. See Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. at 107-08. The framework for application of the McDonnell Douglas-Burdine model in a Connecticut age discrimination case was recently spelled out in detail by the Supreme Court in Jacobs v. General Electric Co., 275 Conn. 395 (2005):
Once again, the plaintiff has made somewhat different claims of discrimination in his memorandum at page 2. See footnote 4 of this memorandum.
Named after McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973) and Texas Dept of Community Affairs v. Burdine, 450 U.S. 248 (1981).
The framework for the burden of production of evidence and the burden of persuasion in an employment discrimination case is well established. `[ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] and subsequent decisions have established an allocation of the burden of production and an order of presentation of proof . . . In discriminatory-treatment cases . . . First, the [complainant] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination . . . Once the complainant establishes a prima facie case, the employer then must produce legitimate nondiscriminatory reasons for its adverse employment action . . . This burden is one of production, not persuasion; it can involve no credibility assessment . . .' (Citations omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights Opportunities, 266 Conn. 492, 505-06, 832 A.2d 660 (2003).
After the plaintiff has established a prima facie case, and the defendant has produced evidence of a legitimate, nondiscriminatory reason for the employment action, `[t]he plaintiff retains the burden of persuasion. [The plaintiff] now must have the opportunity to demonstrate that the [defendant's] proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination. [The plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence . . . Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct.1089, 67 L.Ed.2d 207 (1981). Employment discrimination therefore can be proven either directly, with evidence that the employer was motivated by a discriminatory reason, or indirectly, by proving that the reason given by the employer was pretextural. The Supreme Court later refined the ruling set forth in Burdine in St Mary's Honor Center v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In Board of Education v. Commission on Human Rights Opportunities, supra, 266 Conn. 511, we recently adopted `the explicit holding in Reeves that evidence establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and of itself, enough to support the trier of fact's ultimate finding of intentional discrimination.' (Alteration in original; emphasis omitted.) Jacobs v. General Electric Co., supra, 275 Conn. at 400-01.
It has been held that the burden of a plaintiff of presenting a prima facie case under McDonnell Douglas is "minimal." Roge v. NYP Holdings, 257 F.3d 164, 168 (2 Cir. 2001). But it has also been held that "[Plaintiff's] failure to apply for the position precludes his ability to state a prima facie case of employment discrimination under McDonnell Douglas." Johnson v. State of Connecticut Department of Corrections, 392 F.Sup.2d 326 338 (D.Conn. 2005); and that "We read McDonnell Douglas and Burdine generally to require a plaintiff to allege that she or he applied for a specific position or positions and was rejected therefrom." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2 Cir. 1968). To determine whether or not plaintiff has met this initial burden of application, it is necessary first to revisit his pleadings to identify precisely the "position" involved in his discrimination claims. In both his FEPA (Second) count and his ADEA (Third) count, plaintiff alleges the loss to younger people of three positions at St. Luke's: faculty advisor to the student government (2nd count ¶ 3; 3rd count ¶ 4); Dean of Students (2nd count ¶ 4; 3rd count ¶ 3); and head football coach (2nd count ¶ 6; 3rd count ¶ 7). Although plaintiff in his memorandum and at oral argument speaks extensively of other positions at St. Luke's for which he claims qualification, this case, as pleaded, implicates only those three alleged positions. Furthermore, the undisputed evidence of record shows that only one of those positions, Dean of Students, was an actual job or position, the titles of faculty advisor to the student government and head football coach being additional duties assigned to persons holding some other academic or administrative position at the school. (Davis affidavit ¶¶ 5; 8 Frederick affidavit, Ex 6.) In other words, plaintiff could not have retained those ancillary duties unless he retained his position as Dean of Students or some other actual position, and since no actual position other than Dean of Students has been pleaded, the discrimination claim is actually reduced to a claim that Carl Moeller lost his position as Dean of Students to a younger person because of age discrimination. But the record establishes beyond any dispute that the plaintiff was specifically invited by Mark Davis at the meeting of July 14, 2002 to submit an application for the new expanded 12-month position of Dean of Students for the following 2003/2004 school year, and that the plaintiff responded ". . . well, I'm not going to reapply . . ." and that he (plaintiff) was "burnt out." (Moeller Transcript pp 27, 28.) The plaintiff then received Mr. Davis' e-mail of July 25, 2002 confirming the July 14 meeting including the statement that : ". . . I appreciate your candor in saying that you'd like to find responsibilities other than the Dean of Students role beginning in 03-04" (Frederick Affidavit, Ex 5) to which the plaintiff did not respond. (Moeller Transcript p. 29.) Plaintiff received the e-mail of November 6, 2002 (Frederick affidavit, Ex. 6) officially soliciting applications for new expanded Dean of Students position, with an application deadline of November 15. He did not respond to that e-mail. (Moeller Transcript, p. 36); in fact he told Mark Davis in the fall of 2002 that he had applied for the position of head football coach at New Milford High school for 2003/2004, and asked for a recommendation. (Moeller Transcript, p. 32.) Mr. Moeller's only effort to obtain the Dean of Students position for 2003/2004 was his totally ineffective letter of February 6, 2003 to Mark Davis (Frederick affidavit, Ex. 13) in which he having admittedly at that late stage "changed my mind and as far as being dean of students (Moeller Tr. P.89), applied for "the position I currently hold; namely: Dean of Students." This letter was submitted two and a half months after the deadline for applications had passed, at a time when the position had already been offered to another candidate. (Frederick affidavit, Ex. 14.) The acceptance of that offer by Kate Parker-Burgard was announced on February 18, 2003. (Frederick affidavit, Ex 15.) In sum, the plaintiff had several clear opportunities to apply for the position at issue and each time failed to do so. His only effort at applying for the position was filed months after the application deadline had passed, after the position had been awarded to another. Construing the evidence most favorably to the plaintiff the court finds that he failed to submit an effective application for the position at issue and for that reason there is no evidentiary foundation demonstrating the existence of a material issue of fact on the application issue and the plaintiff has therefore failed to establish a prima facie case of discrimination in his loss of the Dean of Students position.
Even if it were to be assumed that the evidence shows at least an issue of fact as to the establishment of a bona fide case of discrimination, this motion for summary judgment must nonetheless be granted because the defendant has proffered a legitimate non discriminatory reason for plaintiff's failure to be hired to the revamped Dean of Students position for the 2003/2004 school year, and the evidence proffered does not present an evidentiary foundation for an issue of fact to support plaintiff's arguments that the employer's stated reason is pretextual or that, by direct or indirect evidence, that the employer's action was motivated by an intent to discriminate on the basis of age.
The defendant's non-discriminatory reason for not awarding the 2003/2004 Dean of Students job to the plaintiff is articulated in its memorandum: at p. 25: "Plaintiff told Mr. Davis that he was `burned out' and was not interested in continuing in the restructured Dean of Students position, and did not in fact apply until well after the application deadline had expired." Since the articulation of the employer's reason is a burden of production only and involves no credibility assessment, under McDonnell Douglas-Burdine St. Luke's articulation revives the plaintiff's ultimate burden to persuade the court that he has been the victim of intentional discrimination, which burden can be satisfied directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is pretextual and unworthy of credence. Jacobs v. General Electric Co., supra. Addressing the latter point first, there is no evidentiary foundation in the record to demonstrate an issue of fact on the claim of pretext or falsity of the defendant's non discriminatory explanation. Mark Davis came in as a new administrator, Head of School. He made the managerial decision to enlarge the scope of the position of Dean of Students, to take effect a whole year later. He converted the position from a ten-month to a twelve-month position and added to the existing responsibilities (discipline, attendance, and student parking) oversight responsibility for all non-academic areas of student life, including student leader training and support, student clubs and committees, community service, students' advisor program, back to school registration, new student orientation, ad hoc committees on student life, speakers and presentations at school assemblies, dances and social gatherings, Spirit Week, Renaissance Week, and Senior Week Activities. (St. Luke's School Dean of Students Job Description, Frederick Affidavit, Ex. 3.) The plaintiff was personally invited at the July 14, 2002 meeting to apply for this position, and was included in the written solicitation for applications for the new position. The plaintiff suggests pretext because "the position of dean of students did not change significantly" and because the title "Dean of Students" was retained. He also suggests pretext in that Mark Davis announced at the August 26, 2002 that Mr. Moeller had "resigned" from the new Dean of Students position (Plaintiff's Memorandum, pp. 24-25). The first two suggestions are invalid. The new job description for the Dean of Students position, supra, confirms the assignment of extensive new duties and oversight responsibilities to the person holding the revamped position. The announcement of plaintiff's "resignation" from the new position was consistent with plaintiff's own deposition testimony that he told Davis at the July 14 meeting that he would not be applying for the new position for the following year and that he was "burnt out" as Dean of Students (Tr. 27-29). In any event, despite the "resignation" comment, it is undisputed that the plaintiff was subsequently invited by Mark Davis in the November 6, 2002 e-mail (Frederick affidavit, Ex. 7) to apply for the restructured position but, as discussed above, he failed to do so. Nor is there any evidentiary foundation to demonstrate a genuine issue of fact as to the defendant's intent to discriminate against the plaintiff on the basis of age. Plaintiff does not even make a statistical argument, nor would the undisputed facts support such a claim. At the time of non-renewal of plaintiff's contract 55% of the approximately 90 employees at St. Luke's were over 40 years old, and 35% were over the age of 50. (Frederick Affidavit, Ex. 1; Davis affidavit, ¶ 3.) Mr. Moeller, then age 47, was replaced in a position for which he did not apply by a woman alleged to be approximately 41 years old. The hiring decision was made by the Head of School, Mark Davis, who was the same age as the plaintiff. (Davis affidavit, ¶ 4.) Proof that a decision-maker is the same age or older than a terminated employee is evidence of non-discrimination. Milde v. Housing Authority of Greenwich, No. 3:00 CV2423 (AVC), 2005 U.S.Dist. LEXIS 43470, at *39 n. 3 (D.Conn. August 12, 2005) (factors "strongly ruling out a finding of age discrimination" included fact that decision-maker was same age as terminated employee). Plaintiff has offered no testimony or evidence to demonstrate that the non-renewal of his contract occurred under circumstances supporting an inference that age was a factor. An inference of discrimination "is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact." Bombero v. Warner Lambert Co., 142 F.Sup.2d 196, 207 (D.Conn. 2000). "[T]he replacement of an older worker with a younger worker or workers does not itself prove unlawful discrimination." Fagan v. New York State Elec. Gas Corp., 186 F.3d 127, 134 (2 Cir. 1999) (affirming summary judgment). By the plaintiff's own testimony he felt that he was being "railroaded out" of St. Luke's but did not know why: "They just wanted me out of there. For what reasons, I don't know. He just wanted me out." (Emphasis added) (Tr. 108.) In his affidavit the plaintiff himself suggests several non age-related theories for his non-renewal, including his belief that he "was a direct threat to Ms. Davis' authority" (¶ 19); and that he was a direct threat because he held a teaching degree and Mr. Davis [and others] did not (¶ 20). In fact in his thirty-seven-paragraph affidavit of February 22, 2007 the plaintiff nowhere states that his non-renewal was because of his age and makes only two references to age: "I am significantly older than the person who replaced me as Head Football Coach." (¶ 8) and "Currently there are only two administrators on his [Mark Davis'] staff who are older than him. Both have or had children at the school." (¶ 33.) Those statements are not sufficient to support a rational inference that plaintiff's non-renewal was motivated by age discrimination. When asked in deposition if he was claiming that Mr. Davis or anyone else at St. Luke's ever made any age-based remarks to him, the only response he gave was a statement of a co-worker in casual conversation that she had heard Mark Davis say (possibly before he even started to work at St. Luke's) "there's a good old boy's club there, maybe we have to deal with that" (Moeller Tr. 65). This hearsay statement would be inadmissible at trial and may not be considered to create a triable issue of fact in opposing a motion for summary judgment. Practice Book § 17-46. Great Country Bank v. Pastore, 241 Conn. 423, 436-37 (1997). In any event the statement does not necessarily have anything to do with age, as plaintiff admitted in his deposition testimony: "Q And is it your understanding that that relates to age or gender? A. I don't know. Could — I think that's a remark that — that's gray. It can relate to anything." (Tr. 65-66) ". . . [I]solated and ambiguous remarks are too abstract, in addition to being irrelevant and prejudicial to support a finding of age discrimination." (Internal quotation marks omitted.) Weeks v. Aetna Life Insurance Company, No. 3:93 (ACV), 1994 U.S.Dist. LEXIS 21694, at *6 (D.Conn. April 22, 1994) (supervisor's statement to employee that "I cannot afford to carry you any longer" after employee told supervisor she would soon be 60 years old does not support claim of age discrimination). See, also other cases cited in the Weeks opinion at *6 and Woroski v. Nashua Corp., 31 F.3d 105, 108 (2 Cir. 1994) (affirming summary judgment where decision maker allegedly said that "salary work force was older, and had been around too long, made too much money, and enjoyed too many benefits . . .") The only other evidence suggested by plaintiff as supporting a discriminatory intent is a statement he made in his letter of February 6, 2003 (Frederick affidavit, Ex. 13): "I am, however, aware that adverse actions are being taken or contemplated with respect to several other long-term administrators/faculty who, like me, are older." When questioned about that statement the plaintiff identified five St. Luke's employees who had expressed to the plaintiff a "fear" that they would be "let go" because of their age — a fear the plaintiff himself also claimed. But three of the five are still working at St. Luke's and one resigned voluntarily after his duties has been cut back (before Mr. Davis' tenure). (The fifth person, Stephen Kligler, was terminated and is the plaintiff in the companion case to this case.) The plaintiff was unable to relate any statement made by Mr. Davis or any other factual basis for this "unspoken fear." (Moeller Transcript, pp. 93-98.) "An employees's subjective belief that she was the victim of age discrimination is insufficient to establish a prima facie case of discrimination." Blanchard v. Stone Safety Corporation, Civ. No. N-89-55(WWE) 1991 U.S. Dist. LEXIS 1992 at *5 (D.Conn. January 11, 1991).
Plaintiff argues extensively that there is a disputed issue of material fact because of a difference between the deposition testimony of Mark Davis and the defendant's memorandum of law as to whether or not the plaintiff was qualified to move into the position of athletic director. With emphasis on his experience and great success as head football coach, plaintiff maintains that St. Luke's failure to offer him the athletic director position as evidence of discriminatory intent. When asked if plaintiff was qualified for that position, Mark Davis answered: "I had no reason to consider that. Carl [Moeller] never applied for that position . . . I honestly never considered it because he didn't apply. So, I can't tell you whether he was qualified or not." (Davis Tr. pp. 114-14.) In defendant's memorandum of law at page 3, it is stated, "Plaintiff now claims that he was qualified to fill the role of Athletic Director, but he never expressed any interest in that position, nor was St. Luke's seeking applicants." (Emphasis added.) With particular reference to the final italicized language, the plaintiff claims an "astonishing" discrepancy which would bar the entry of summary judgment. First of all, it must be noted, the statement in the memorandum of law is not evidence — it is argument of counsel. Secondly, the statements are not inconsistent, especially when viewed in the larger context of the undisputed evidence as to the athletic director position. Prior to the 2003/2004 Mr. Mitch Hoffman (approximate age of 30 at the time) had served for several years as co-athletic director with another person. That other person left for another position and Mr. Hoffman remained in the position. He was appointed as athletic director in March of 2003. There is no evidence that there was at any time a posted opening for the position of athletic director and the plaintiff admits in his own affidavit at ¶ 5 that he did not apply for the position because no applications for the position were being accepted. And finally with respect to this argument of a disputed issue of fact, is the question of materiality. An immaterial issue of fact does not bar the entry of summary judgment. Grady v. Affiliated Central, Inc., 130 F.3d 553, 561 (2 Cir. 1997). Materiality is framed by the pleadings. Tait, Handbook of Connecticut Evidence § 4.1.3; Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 570 (1995). The only positions placed in issue by the allegations of the second and third counts of the plaintiff's second revised complaint are Dean of Students, faculty advisor to the student government, and head football coach. The alleged triable issue of fact as to qualification for the position of athletic director would not be an issue of material fact.
Summary Judgment is appropriate where a plaintiff presents no evidence upon which a reasonable trier of fact could base a conclusion that discriminatory animus was a determinative factor in the adverse employment action. Schnabel v. Abramson, 232 F.3d 83, 91 (2 Cir. 2000). For the reasons herein set forth the court finds that no such evidence has been proffered in this case, and that summary judgment should be granted for the defendant on the second and third counts.
D. Fourth Count and Fifth Counts — Retaliatory Conduct
Although there are allegations in these counts of plaintiff having "objected to discriminatory actions" verbally in or about July 2002 (Fourth and Fifth Counts ¶ 2), and an allegation that the plaintiff reapplied for the position of Dean of Students on February 6, 2003 ". . . putting Davis and the school on notice that plaintiff believed the school was engaging in illegal age discrimination . . ." (Fourth and Fifth Counts ¶ 7), the complaint is very specific as to the time frame of the alleged retaliatory conduct. "Plaintiff filed his complaint with CHRO on or about February 13, 2004. The retaliation claims are based on actions taken after a formal complaint was filed." (Fourth and Fifth Counts ¶ 9.) The alleged post-February 13 retaliation to the filing of the CHRO complaint consists of two claims: (1) that on February 14, 2003 plaintiff was informed that he had been replaced as faculty advisor to the student government by a younger inexperienced teacher (Fourth and Fifth Counts ¶ 10); and (2) that plaintiff was not invited to a March 7, 2003 meeting of the Crisis Management team to which he claims he belonged.
To make out a prima facie case of retaliation a plaintiff must establish that: (1) he was engaged in a protected activity; (2) his employer was aware of the protected activity; (3) he suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See, Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2 Cir. 1996). If a prima facie case is shown, the McDonnell Douglas — Burdine model is followed. Id. Here the plaintiff has shown that he was engaged in a protected activity by the filing of his CHRO complaint on February 13, 2003. But Mark Davis states in paragraph 7 of his affidavit of December 15, 2006 that St. Luke's did not receive notice of Mr. Moeller's CHRO complaint until February 28, 2003. The plaintiff has presented no evidence to the contrary. The only allegation of adverse action after February 28, 2003 is that plaintiff was not invited to a meeting of the Crisis Management Team. There is no evidence that plaintiff tried to attend the meeting and was excluded or was damaged in any way by not being invited to that meeting. The evidence is undisputed that he continued to hold his position as Dean of Students until the expiration of his contract on June 30, 2003. Crisis management was not one of designated areas of responsibility as Dean of Students. If he was a member of that team on March 7, 2003, it would have been as an additional duty ancillary to his position as Dean of Students, and would not be an adverse employment action. Nor is there any evidence inferring that plaintiff's failure to be invited to that meeting was caused by his filing a CHRO complaint. At that point it had been several months since St. Luke's had advised him that there would be no position for him at St. Luke's in 2003/2004 and he was in his final three months at the school. He had earlier been relieved of the duty as faculty advisor to student government, and his relationship with his employer had deteriorated greatly even before he filed the CHRO complaint. It is well-established where "timing is the only basis for a claim of retaliation, a gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2 Cir. 2001). The third and fourth prongs of a prima facie case of retaliation have not been met.
Even if the plaintiff despite the specific allegation of paragraph 9 of these counts, intends to allege retaliation for the protected activity of complaining of discrimination as far back as the July 14, 2002 meeting with Mark Davis, the end result would be the same. When asked about those complaints in deposition the plaintiff testified that he first objected to discriminatory treatment by saying to Mark Davis "I am not going to reapply for a position I held for ten years." (Plaintiff's Tr. pp 14-105.) But in order to be a protected activity of which the employer is aware a complaint must at least infer alleged discrimination. Not wanting to reapply for a job does not infer discrimination on the basis of age or any other protected class. It is a complaint that might be made by an employee in his thirties as well as forties or older. "Implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed to conduct prohibited by Title VII." James v. Newsweek, Inc., 2000 U.S.App. LEXIS 8805 at *3 (2 Cir. 2000) quoting from Galdieri-Ambrosini v. National Realty Dev. Corp., 136 F.3d 276, 292 (2 Cir. 1998).
The plaintiff did engage in a protected activity on February 6, 2003 when he wrote to Mark Davis to apply for the restructured Dean of Students position. In that letter (Frederick Affidavit, Ex. 13) he did make a brief reference to an alleged pattern of discrimination against "older" faculty and administrators. But the evidence shows no adverse employment action after that date with a causal link to the February 6 letter. Plaintiff alleges that he was informed on February 14, 2003 that he had been replaced as faculty advisor to student government by a younger, inexperienced teacher, but he was first advised of his removal from that ancillary duty back on July 25, 2002 by an e-mail from Mark Davis (Frederick Affidavit, Ex. 6). The decision to relieve plaintiff of that duty was obviously made long before receipt of the February 6, 2003 letter.
For these reasons summary judgment is appropriate on the Fourth and Fifth Counts.
Order
The defendant's motion for summary judgment is granted. Judgment shall enter for the defendant on all counts.