Opinion
HHDCV156063640S
04-30-2018
Renee Lamark Muir v. City of Hartford
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sheridan, David M., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#154)
Sheridan, J.
This action arises from a dispute between the plaintiff, Renee LaMark Muir, and the defendant, the city of Hartford, regarding alleged gender discrimination and retaliation that the plaintiff was subjected to during the course of her prior employment with the Hartford Police Department (" the department" ). The defendant has moved for summary judgment as to Count One of the revised complaint, which asserts a claim of unlawful gender discrimination, and Count Two of the plaintiff’s revised complaint, which asserts a claim of unlawful retaliation. For the reasons set forth below, the defendant’s motion is denied in its entirety.
The Hartford Police Department is not a party to the present action.
I. FACTS
The plaintiff, a female, first began her employment with the department as a police officer on April 15, 2007. At the time, she alleges that the department was " overwhelmingly male." Later in her employment, from April 16, 2007, to November 2, 2015, the plaintiff worked as a police detective. Specifically, from late 2011, to January 17, 2014, the plaintiff was a homicide detective in the department’s Major Crimes Division. The plaintiff alleges that, at that time, the Homicide Unit detectives were " exclusively male."
The plaintiff alleges that, starting in January 2009, the department, acting through its " employees and agents" including then Lieutenant Brian Foley, " regularly engaged in a continuing course and pattern of conduct" and thereby discriminated against the plaintiff on the basis of her gender. On or about September 9, 2013, the plaintiff orally complained to Lieutenant Foley about gender discrimination against her. She alleges that, beginning that same day, the department, through its " employees," began to retaliate against her because of her complaints about gender discrimination. The plaintiff’s oral complaint to Lieutenant Foley was eventually memorialized in writing in October 2013.
On or about October 25, 2013, the plaintiff orally complained to Deputy Chief Scott Sansom about gender discrimination against her. The plaintiff’s oral complaint to Deputy Chief Sansom was documented in writing on or about November 4, 2013. The plaintiff alleges that the department did not take prompt and/or effective measures to investigate and remedy the gender discrimination of which she complained.
On January 13, 2014, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities alleging that the department had violated the CFEPA. The plaintiff alleges that after she filed her complaint with the CHRO, the department engaged in a " continuing course of conduct" and retaliated against her.
In particular, the department retaliated against the plaintiff by taking all of her homicide cases away from her, transferring her from the Major Crimes Division to the Internal Affairs Division, and, after transferring her to the Internal Affairs Division, assigning her four days’ worth of " clerical work" and no additional work thereafter, even though she had requested further work.
On June 11, 2014, the plaintiff took a medical leave of absence. She was suffering from panic attacks, diarrhea, insomnia, depression, and anxiety; losing thirty pounds over a two-month period. After the plaintiff exhausted her medical leave in November 2014, she was placed on an unpaid leave of absence. When the department inquired about her return to work, the plaintiff reported that, upon the advice of her therapist, she should not return to work if she would be returning to workplace conditions substantially similar to those present before she left on medical leave in June 2014. On April 16, 2015, department Chief James Rovella notified the plaintiff that if she was to return to work, she would be offered three different detective assignments, the Civil Litigation Unit, Pistol Permits, or Burglary. The plaintiff refused those assignments. The only assignment that the plaintiff would accept was a return to her prior position as detective in the Major Crimes Division, but the department did not offer that assignment. In addition, the plaintiff’s therapist would not clear her for full duty.
Since her health care provider would not clear the plaintiff for full duty, on or about October 6, 2015, the department gave the plaintiff a " Notice of Pre-Separation Hearing," which specified that the department intended to hold a hearing at which it would contemplate terminating the plaintiff’s employment if she did not return to work. The hearing was scheduled to occur on November 5, 2015. Rather than proceed with the hearing, the plaintiff submitted a letter of resignation to Department Chief James Rovella on November 2, 2015.
The plaintiff alleges that she " has been constructively discharged from employment" with the department. The defendant is alleged to have " caused the plaintiff’s constructive discharge by deliberately making the plaintiff’s working conditions so unbearable that the plaintiff was forced to involuntarily resign."
The CHRO issued a release of jurisdiction dated November 6, 2015 pursuant to General Statutes § 46a-101. Thus, the plaintiff has exhausted her available administrative remedies and brings Counts One and Two of the revised complaint against the defendant under General Statutes § 46a-100 et seq. In her prayer for relief, the plaintiff seeks, inter alia, compensatory damages, punitive damages, and attorneys fees.
The plaintiff alleges the following occurrences as typical of the " gender bias" she encountered at the department: (1) the plaintiff was called a " MILF" ; (2) the plaintiff was also called a " soccer mom" and told that " everyone wants to f**k a soccer mom" ; (3) the plaintiff’s colleagues would discuss how " females are not as good as males" ; (4) the plaintiff was told that, as compared to males, females were inferior homicide detectives; (5) the plaintiff was told that she did not fit the profile of a homicide detective because they " have the reputation of being tough, hard drinking and womanizing" ; (6) the plaintiff’s former partner warned the plaintiff that he would shoot her if she wore a skirt or dress to work; (7) the plaintiff’s colleagues forbade the plaintiff from driving when they traveled together because they did not want to be seen being driven around by a " chick" ; (8) the plaintiff was consistently excluded from her colleagues’ investigations and was instead assigned administrative tasks; and (9) the plaintiff’s colleagues refused to assist and/or cooperate with the plaintiff in regards to her investigations.
On September 29, 2017, the defendant filed the present motion for summary judgment. A memorandum of law accompanies the motion. In support of its summary judgment motion, the defendant submits, inter alia , the following evidence: (1) excerpts from the certified transcript of the plaintiff’s deposition; (2) the signed and sworn affidavit of Colleen Kenton, an employee of the department’s support services personnel office; (3) the signed and sworn affidavit of Lieutenant Foley; (4) the signed and sworn affidavit of Lieutenant Brandon O’Brien, a former sergeant in the department’s Major Crimes Division; (5) the signed and sworn affidavit of Chief Rovella; and (6) the signed and sworn affidavit of Debra Carabillo, the department’s acting director of human resources.
The defendant also submits the following uncertified documents: (1) various departmental e-mails; (2) internal policy memoranda; (3) memoranda concerning the department’s internal grievance procedure and the defendant’s equal opportunity complaint process; (4) various letters between members of the department; (5) interdepartmental and intradepartmental memoranda; (6) a copy of the attorney profile of Eric Daigle, Esq.; (7) a PowerPoint presentation that bears Attorney Daigle’s name; (8) a copy of an investigatory report; and (9) a copy of a collective bargaining agreement between the defendant and the Hartford Police Union.
Portions of the certified transcript excerpts were lodged with the court under seal. See Practice Book § 11-20A.
Several exhibits to the defendant’s summary judgment motion were lodged with the court under seal. See Practice Book § 11-20A.
On November 16, 2017, the plaintiff filed a memorandum of law in opposition to the defendant’s motion for summary judgment. In support of her opposing memorandum of law, the plaintiff submits the following evidence: (1) excerpts from the certified transcript of the plaintiff’s deposition; and (2) excerpts of a certified transcript from a deposition given by Nicole Chomiak. On December 29, 2017, the defendant filed a reply to the plaintiff’s opposing memorandum of law.
Portions of the certified transcript excerpts were lodged with the court under seal. See Practice Book § 11-20A.
The matter was argued at short calendar on January 16, 2018.
II. STANDARD OF REVIEW
The legal standard governing summary judgment motions is well settled. Summary judgment " shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. " 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 851 (2013).
" The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). " Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e 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." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, " [o]n a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint." (Internal quotation marks omitted.) Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 594, 113 A.3d 932 (2015). " It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
" In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Additionally, " the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ..." (Internal quotation marks omitted.) Walker v. Dept. of Children & Families, 146 Conn.App. 863, 871, 80 A.3d 94 (2013). Nevertheless, " [t]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Mariano v. Hartland Building & Restoration Co., 168 Conn.App. 768, 777, 148 A.3d 229 (2016). " So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried ... A judge’s function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 631, 57 A.3d 391 (2012).
III. ANALYSIS
In support of its motion, the defendant makes two claims. First, the defendant claims that it is entitled to summary judgment on Count One because the plaintiff cannot make a prima facie showing of discrimination as she has not suffered an adverse employment action, and, moreover, she cannot demonstrate a hostile work environment because the alleged conduct of the plaintiff’s colleagues cannot be imputed to the defendant. In this regard, the defendant also argues that it is entitled to the benefit of the so-called " Faragher/Ellerth " defense as a matter of law. Second, the defendant claims that it is entitled to summary judgment on Count Two because the plaintiff cannot prove that she suffered an adverse employment action, and, therefore, she cannot establish a prima facie case of retaliation.
The plaintiff argues that the defendant has not met its summary judgment burden because genuine issues of material fact exist as to whether she suffered an adverse employment action and whether she was constructively discharged. The plaintiff also argues that the defendant cannot prevail on the Faragher/Ellerth defense because it did not exercise reasonable care in preventing the alleged harassment that the plaintiff experienced. The plaintiff further argues that she can support a prima facie case of retaliation because her alleged transfer from the Major Crimes Division to the Internal Affairs Division constitutes an adverse employment action for purposes of her retaliation claim.
In accordance with General Statutes § 1-2z, the analysis begins with the relevant statutory text. The CFEPA provides in relevant part: " It shall be a discriminatory practice in violation of this section ... [f]or 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, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability ..." § 46a-60(a)(1). The CFEPA further provides in relevant part that " [i]t shall be a discriminatory practice in violation of this section ... [f]or 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 ..." § 46a-60(a)(4).
General Statutes § 1-2z 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."
" As part of Title 46a, the [CFEPA] ... was enacted to eliminate discriminatory practices from the workplace." (Citation omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 355, 680 A.2d 1261 (1996). " In drafting and modifying the [CFEPA] ... our legislature modeled that act on its federal counterpart, Title VII [of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.] ... and has sought to keep our state law consistent with federal law in this area." (Internal quotation marks omitted.) Amato v. Hearst Corp., 149 Conn.App. 774, 779, 89 A.3d 977 (2014). Thus, Connecticut courts " review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).
A. Count One- Gender Discrimination Under C.G.S. § 46a-60(a)(1)
The defendant claims that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on Count One of the revised complaint, which asserts a gender discrimination claim under C.G.S. § 46a-60(a)(1).
The following legal principles are relevant to the defendant’s claim. Under the CFEPA, discrimination claims are predicated on one of two theories: disparate impact or disparate treatment. See id., 104. The disparate impact theory centers on " patterns and practices which are facially neutral but discriminatory as applied, and does not require evidence of subjective intent to discriminate." Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 202 n.8, 596 A.2d 396 (1991). In contrast, the disparate treatment theory involves a factual scenario " where certain individuals are treated differently than others ... The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status." (Citation omitted; footnote omitted.) Levy v. Commission on Human Rights & Opportunities, supra, 104.
Here, the gender discrimination claim asserted in Count One is predicated on a theory of disparate treatment. In Count One, the plaintiff does not allege that a facially neutral pattern or practice of the defendant was applied to her on the basis of her gender in a discriminatory manner. Rather, she essentially alleges that she was intentionally treated differently than her male colleagues in the Major Crimes Division because of her gender. Thus, the analysis will proceed on the basis that Count One asserts a claim of gender discrimination on a theory of disparate treatment.
In Feingold v. New York, 366 F.3d 138 (2d Cir. 2004), the United States Court of Appeals for the Second Circuit held that " [a] plaintiff may establish a claim of disparate treatment under Title VII either (1) by showing that he has suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or (2) by demonstrating that harassment on one or more of these bases amounted to a hostile work environment." Id., 150. Although Feingold is a Title VII case, the holding of the Second Circuit Court of Appeals is equally applicable to disparate treatment discrimination claims under § 46a-60(a)(1), in view of Connecticut case law construing and enforcing the CFEPA. See Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015) (adverse employment action); Brittell v. Dept. of Correction, 247 Conn. 148, 165-68, 717 A.2d 1254 (1998) (hostile work environment).
In the present case, the defendant contests the plaintiff’s ability to put forth a prima facie case under either method. Each method will be discussed in turn.
1. Adverse Employment Action
The following legal principles are relevant to this argument. " The legal standards governing discrimination claims involving adverse employment actions are well established." Feliciano v. Autozone, Inc., supra, 316 Conn. 73. Connecticut case law makes clear that " the analytical framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas ), and its progeny is used to determine whether a complainant may prevail on a claim of disparate treatment under our state law." Dept. of Transportation v. Commission on Human Rights & Opportunities, 272 Conn. 457, 463 n.9, 863 A.2d 204 (2005). The McDonnell Douglas framework is essentially a three-pronged, burden-shifting analysis. See Miron v. University of New Haven Police Dept., 284 Conn. 35, 54, 931 A.2d 847 (2007) (explaining that McDonnell Douglas established a " burden shifting mechanism" ). " Under this analysis, the 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 actually was motivated by illegal discriminatory bias." (Internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 407, 968 A.2d 416 (2009).
To satisfy the first prong of the McDonnell Douglas framework, the plaintiff must establish a prima facie case of discrimination. See id. " The establishment of a prima facie case creates a rebuttable presumption of discriminatory intent." Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002). " To establish a prima facie case of discrimination, a plaintiff must prove four elements: (1) that she belongs to a protected class; (2) that she was qualified for the position in question; (3) that despite her qualifications, the individual suffered an adverse employment action; and (4) 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). " 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." (Citation omitted.) Craine v. Trinity College, supra, 638.
It is important to note the interplay between the burden of production applicable to a prima facie case of discrimination under the McDonnell Douglas framework and the shifting burdens of production applicable to motions for summary judgment under the rules of practice. The McDonnell Douglas framework’s burden-shifting analysis " is intended to provide guidance to fact finders who are faced with the difficult task of determining intent in complicated discrimination cases." (Internal quotation marks omitted.) Eaddy v. Bridgeport, supra, 156 Conn.App. 603. " Although intermediate evidentiary burdens shift back and forth under this framework, [t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [complainant] remains at all times with the [complainant]." (Internal quotation marks omitted.) Dept. of Transportation v. Commission on Human Rights & Opportunities, supra, 272 Conn. 463 n.9. At the same time, " [t]he party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact ..." (Internal quotation marks omitted.) St. Pierre v. Plainfield, supra, 326 Conn. 426. Specifically, " [o]n a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint." (Internal quotation marks omitted.) Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 594. In the present case, the defendant is the party moving for summary judgment on Count One of the revised complaint, which asserts a claim of unlawful gender discrimination. Here, therefore, the defendant has the burden of producing evidence that negates a prima facie case of gender discrimination, even though, at trial, the plaintiff would- in accordance with the McDonnell Douglas framework- not only bear the initial burden of production showing a prima facie case of gender discrimination, it would also bear the ultimate burden of persuasion as to the gender discrimination claim asserted in Count One.
In this case, the defendant challenges the plaintiff’s ability to meet her burden of production as to the third prima facie element by arguing that she cannot show that she suffered an adverse employment action.
" A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment ... To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities ... [A]n adverse employment action [has been defined] as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." (Citation omitted; internal quotation marks omitted.) Amato v. Hearst Corp., supra, 149 Conn.App. 781. In particular, " a transfer is an adverse employment action if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff’s career." Galabya v. New York City Board of Education, 202 F.3d 636, 641 (2d Cir. 2000). " Where the allegedly adverse action is an involuntary transfer, the key inquiry ... is whether the transfer constitutes a negative employment action tantamount to a demotion." (Internal quotation marks omitted.) Forsythe v. New York City Dept. of Citywide Administrative Services, 733 F.Supp.2d 392, 400 (S.D.N.Y. 2010), aff’d, 428 Fed.Appx. 40 (2d Cir. 2011); see also Preda v. Nissho Iwai American Corp., 128 F.3d 789, 791 (2d Cir. 1997) (" The prohibition against discrimination ... includes discriminatorily-motivated diminution of duties." [emphasis added; internal quotation marks omitted] ).
Turning to the evidence submitted by the defendant in support of its motion for summary judgment, the plaintiff testified at her deposition that she was involuntarily transferred to the department’s Internal Affairs Division from the Major Crimes Division. The plaintiff also testified that, during her tenure in the Major Crimes Division, she would actively respond to and investigate alleged homicides, " track people down," schedule interviews with witnesses, interview witnesses, and prepare search and/or arrest warrants for the State’s Attorney’s review and authorization. The plaintiff further testified that, upon being transferred to the Internal Affairs Division, (1) the keys to her department-issued car were taken away, (2) she was not allowed to talk to anyone, (3) no one was allowed to talk to the plaintiff, (4) she was ordered to " close out" all of her cases from the Major Crimes Division, and (5) she otherwise did " nothing" in the Internal Affairs Division, except for three days’ worth of administrative work and transcribing a pistol permit log into an Excel spreadsheet.
On the basis of the defendant’s summary judgment evidence, viewed in the light most favorable to the plaintiff, a genuine issue of material fact remains as to whether the plaintiff suffered an adverse employment action when she was involuntarily transferred from the Major Crimes Division to the Internal Affairs Division. Specifically, the defendant’s summary judgment evidence does not compel the conclusion that, under the facts and circumstances of the present case, the plaintiff’s involuntary transfer to the Internal Affairs Division was not, as a matter of law, a de facto demotion. In this regard, a fair and reasonable person could inferentially conclude that the plaintiff’s transfer to the Internal Affairs Division was tantamount to a demotion given the stark contrast in the number and character of employment responsibilities that the plaintiff allegedly had in the Major Crimes Division and those she allegedly had in the Internal Affairs Division. See Horvath v. Hartford, 178 Conn.App. 504, 509, 176 A.3d 592 (2017) (" [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." [internal quotation marks omitted] ). Accordingly, the defendant has not met its initial burden of showing the absence of any genuine issue of material fact.
The defendant nevertheless argues that the plaintiff cannot prove that she suffered an adverse employment action for purposes of her gender discrimination claim because she cannot show that the defendant constructively discharged her as " there is no evidence to suggest that the [defendant] acted deliberately, or that a reasonable person in [the] [p]laintiff’s position would have found the work environment so intolerable that she had to resign." This argument is unavailing for two reasons.
" Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge ... Through the use of constructive discharge, the law recognizes that an employee’s voluntary resignation may be, in reality, a dismissal by an employer ... Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Brittell v. Dept. of Correction, supra, 247 Conn. 178. " In order to meet the high standard applicable to a claim of constructive discharge, a plaintiff is required to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign." (Internal quotation marks omitted.) Irizarry v. Lily Transportation Corp., 266 F.Supp.3d 600, 605-06 (D.Conn. 2017).
First, as a procedural matter, the defendant misapprehends its burden at summary judgment by seemingly pointing to a lack of evidence on the plaintiff’s part on the issue of whether she was constructively discharged. Our Supreme Court and the Appellate Court have held that " [o]n a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint." (Internal quotation marks omitted.) Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 594; accord Rockwell v. Quintner, supra, 96 Conn.App. 229. This holding is a corollary of the well settled principle that " [t]he party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) St. Pierre v. Plainfield, supra, 326 Conn. 426.
Indeed, " to the misfortune of some litigants and taxpayers, the party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact even where the burden as to that material fact would be on the nonmovant at trial, and even though the nonmovant is unable to adduce any evidence of that fact." (Emphasis added.) Waste Conversion Technologies, Inc. v. Midstate Recovery, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-04-4000948-S (December 3, 2008, Levin, J.).
Thus, for purposes of demonstrating its entitlement to summary judgment on the issue of whether the plaintiff was constructively discharged, it is wholly insufficient for the defendant to point out, in view of the summary judgment record, that the plaintiff lacks sufficient evidence to support a finding that the defendant constructively discharged her. Rather, it is the defendant’s burden to affirmatively negate both elements of constructive discharge, i.e., submit evidence that tends to disprove that it acted deliberately and that a reasonable person in the plaintiff’s position would have found the department’s work environment so intolerable that she had to resign. The defendant has seemingly not done so here.
Second, even assuming, arguendo, that there is no genuine issue of material fact that the defendant did not constructively discharge the plaintiff, that determination is not dispositive of whether the plaintiff suffered an adverse employment action for purposes of her gender discrimination claim. Under the CFEPA, consistent with its federal counterpart, " [t]he prohibition against discrimination is not limited to pecuniary emoluments, but includes discriminatorily-motivated diminution of duties." (Internal quotation marks omitted.) Preda v. Nissho Iwai American Corp., supra, 128 F.3d 791; see also Amato v. Hearst Corp., supra, 149 Conn.App. 781. Indeed, " a transfer that arguably alter[s] the terms and conditions of his employment in a negative way, is sufficient to satisfy the McDonnell Douglas prima facie test." (Internal quotation marks omitted.) Gallo v. Second Taxing District, 507 F.Supp.2d 164, 174 (D.Conn. 2007).
A genuine issue of material fact remains as to whether the plaintiff suffered an adverse employment action when she was involuntarily transferred to the Internal Affairs Division, independent of whether or not the plaintiff was not constructively discharged. Accordingly, the defendant has not met its initial burden of showing the absence of any genuine issue of material fact.
2. Hostile Work Environment
The following legal principles guide the analysis of this argument. Under the CFEPA, it is unlawful " [f]or an employer ... to discriminate against [any] individual ... in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability ..." (Emphasis added.) § 46a-60(a)(1). As our Supreme Court has recognized, " the legislature intended to create a cause of action for hostile work environment claims by prohibiting employers from discriminating ‘in terms, conditions or privileges of employment’ under § 46a-60(a)(1) ..." (Citations omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 691, 41 A.3d 1013 (2012).
Here, the defendant asserts that the plaintiff cannot establish a hostile work environment for two reasons. First, the defendant argues that the alleged conduct of the plaintiff’s colleagues cannot be imputed to it. Second, the defendant argues that it cannot be liable because it is entitled to the benefit of the Faragher/Ellerth defense as a matter of law. Both arguments are addressed in turn.
a) Imputation of Coworker Conduct
" In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer." (Internal quotation marks omitted.) Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009); see also Brittell v. Dept. of Correction, supra, 247 Conn. 165-69. As to the second element, " [t]he law is clear that an employer may only be held liable for coworker harassment if it failed to provide a reasonable avenue of complaint or if it knew (or should have known) of the harassment and failed to take reasonable steps to eliminate the harassment." (Emphasis in original.) Dobrich v. General Dynamics Corp., 106 F.Supp.2d 386, 393 (D.Conn. 2000). " Accordingly, the test is whether (1) the employer failed to provide a reasonable avenue for complaint or (2) it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." (Emphasis in original; internal quotation marks omitted.) MacCluskey v. University of Connecticut Health Center, 707 Fed.Appx. 44, 46 (2d Cir. 2017).
In the present case, there is no genuine issue of material fact that the department provided the plaintiff with a reasonable avenue for complaint. Thus, the issue is whether the department knew or should have known that the plaintiff was being harassed on the basis of her gender but did not take appropriate remedial action. In this regard, it is undisputed that, in September 2013, the plaintiff told Lieutenant Foley of the " gender bias" that she was allegedly experiencing from the other homicide detectives. Consequently, the inquiry in the present case turns to whether the department failed to take reasonable steps to eliminate the alleged harassment.
Colleen Kenton and Debra Carabillo aver in their affidavits that, at all relevant times, the defendant has had in place anti-discrimination and harassment policies and procedures. Specifically, Carabillo avers that such policies were reissued in 2013. Moreover, Kenton avers in her affidavit that the defendant’s anti-discrimination and harassment policies and procedures are disseminated " to all incoming police recruits at orientation and recruits are instructed to review them." Kenton further avers that the defendant’s anti-discrimination and harassment policies and procedures are posted in the department’s headquarters, among other places.
The following legal principles are relevant to this inquiry. " An employer that has knowledge of a hostile work environment has a duty to take reasonable steps to remedy it ... Whether [a] company’s response was reasonable has to be assessed from the totality of circumstances. Factors to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the nature of the employer’s response in light of the employer’s resources, and the nature of the work environment." Distasio v. Parkin Elmer Corp., 157 F.3d 55, 65 (2nd Cir. 1998). " The Second Circuit [Court of Appeals] has counseled that [i]f the evidence creates an issue of fact as to whether an employer’s action is effectively remedial and prompt, summary judgment is inappropriate." (Internal quotation marks omitted.) Antonopoulos v. Zitnay, 360 F.Supp.2d 420, 428 (D.Conn. 2005).
Turning to the evidence submitted by the defendant in support of its motion for summary judgment, Lieutenant Foley avers in his affidavit that he met with the plaintiff twice in September 2013, and at the second September 2013 meeting, which was also attended by Sergeant O’Brien, the plaintiff " mentioned for the first time that she thought the problems with her male colleagues was gender bias and that they were hostile toward her, but she did not elaborate on what she meant by hostile." (Internal quotation marks omitted.) Lieutenant Foley further avers that, by e-mail approximately one week after the second September 2013 meeting, he directed the plaintiff to document and explain her concerns in writing. Lieutenant Foley also avers that, after meeting with the plaintiff again in November 2013, he subsequently met with her in December 2013, at which time he informed the plaintiff that he (i) " implemented, or was in the process of implementing, some of the suggestions she had made in her October 4, 2013 letter and in [the] previous meeting, aimed at improving the dynamics between her and her colleagues," (ii) spoke to the plaintiff’s colleagues about working with her, (iii) made scheduling changes, and (iv) directed sergeants to redistribute the defendant’s anti-harassment policies to their " Major Crimes reports." Lastly, Lieutenant Foley avers that the plaintiff filed a complaint with the commission at some point and the department conducted an investigation, in which he participated.
At her deposition, the plaintiff testified that, following the second September 2013 meeting, she did not hear back from Lieutenant Foley for a few days. The plaintiff further testified that after the second September 2013 meeting she spoke to Deputy Chief Sansom and explained that " Lieutenant Foley asked [her] to write up a letter to him outlining [her] problems and [Lieutenant Foley] ... was going to forward it up the chain of command." (Internal quotation marks omitted.) According to the plaintiff’s deposition testimony, Deputy Chief Sansom told the plaintiff that he had neither " heard a thing about it" nor " talked to [Lieutenant] Foley." The plaintiff also testified that Deputy Chief Sansom said to her that " he knew that the Homicide Unit could be difficult for women." The plaintiff testified that she spoke to Deputy Chief Sansom again a few days later, at which point he told the plaintiff that he could not find the letter that she sent to Lieutenant Foley and that Chief Rovella " doesn’t know about it." The plaintiff then testified that " [i]t was going on a couple months and [she] hadn’t heard a thing."
The plaintiff further testified that, by the time the December 2013 meeting occurred, " the situation in Major Crimes just got intolerable." In this regard, the plaintiff testified that she faced a " total cold shoulder" and an " escalation," and that " everything came to a head and everything that had been going wrong just got that much worse." Moreover, the plaintiff testified that, prior to filing a complaint with the commission in January 2014, she spoke to Deputy Chief Sansom again, and he told the plaintiff that " [n]obody knows about this," " [t]he Chief doesn’t know about it," and that he " can’t find any documentation about what’s going on with [Lieutenant] Foley." The plaintiff also testified that Deputy Chief Sansom asked her if she had a lawyer at that time, and when she replied in the affirmative, he told the plaintiff to " [f]ile a complaint." (Internal quotation marks omitted.)
On the basis of the defendant’s summary judgment evidence, viewed in the light most favorable to the plaintiff, a genuine issue of material fact remains as to whether the department’s response to the alleged gender harassment was reasonable, i.e., effectively remedial and prompt. First, the defendant’s summary judgment evidence does not compel the conclusion that the department’s response was prompt as a matter of law. Approximately five months elapsed between September 2013- when Lieutenant Foley first learned that the plaintiff was experiencing alleged " gender bias" as well as " hostile" male colleagues- and when the department initiated a formal investigation sometime in early 2014. See, e.g., Duch v. Jakubek, supra, 588 F.3d 766-67 (concluding that employer’s response to alleged harassment was not " effectively remedial and prompt" as a matter of law where harassment was formally investigated three months after employer acquired knowledge of harassment). Second, although Lieutenant Foley avers that he took initial remedial measures following the second September 2013 meeting, the defendant’s summary judgment evidence does not compel the conclusion that such measures were effective as a matter of law. In this regard, the plaintiff’s deposition testimony reflects that her work environment deteriorated between September 2013, and December 2013. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (" [I]f harassment continues after complaints are made, reasonable jurors may disagree about whether an employer’s response was adequate" ). Furthermore, the plaintiff’s deposition testimony permits the inference that at least one high-ranking member of the department, Deputy Chief Sansom, was aware that the work environment of the Major Crimes Division posed potential hardship to women. See Dobrich v. General Dynamics Corp., supra, 106 F.Supp.2d 391 (" [M]any courts have found the failure of the employer to change the ambience to one that is more acceptable to a female employee makes the employer responsible" ). Accordingly, the defendant has not met its burden of demonstrating the absence of any genuine issue of material fact.
b) Faragher /Ellerth Defense
The defendant has alleged in its seventh special defense that it is not liable under the United States Supreme Court’s decisions in Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), because " at all relevant times, it exercised reasonable care to prevent and promptly correct any discriminatory, harassing and/or retaliatory behaviors and plaintiff failed to take advantage of the preventative and corrective opportunities available or to avoid harm otherwise."
The Faragher/Ellerth defense " comprises two elements: that (1) the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." (Internal quotation marks omitted.) Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir. 2006). " [T]he existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of this defense." (Internal quotation marks omitted.) Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001). " Even so, the mere demonstration of the existence of a written sexual harassment policy, though an important consideration ... is in no way dispositive ... Such policy must also be reasonably disseminated to the employees ... In addition, the employer’s response to the inappropriate conduct must be effective, which is usually a determination within the province of the jury ... If the evidence creates an issue of fact as to whether an employer’s action is effectively remedial and prompt, summary judgment is inappropriate." (Citations omitted; emphasis added.) Bennett v. Progressive Corp., 225 F.Supp.2d 190, 206 (N.D.N.Y. 2002).
For the reasons set forth elsewhere in this memorandum, a genuine issue of material fact remains as to whether the department’s response to the alleged harassing behavior of the plaintiff’s colleagues was prompt and remedially effective. Accordingly, the defendant has not met its burden of establishing that it is entitled to the benefit of the Faragher/Ellerth defense as a matter of law.
B. Count Two- Retaliation under C.G.S. § 46a-60(a)(4)
The following legal principles are relevant to the defendant’s claim. The McDonnell Douglas framework’s burden-shifting analysis is used to determine whether a plaintiff can prevail on a claim of retaliation under § 46a-60(a)(4). See Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 95, 153 A.3d 687 (2017) (appendix). Under this analysis, the plaintiff must first establish a prima facie case of retaliation. See Zboray v. Wal-Mart Stores East, L.P., 650 F.Supp.2d 174, 179 (D.Conn. 2009) (applying the CFEPA). " To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).
" If a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for the adverse employment action ... If the defendant is able to provide such a reason, the burden then shifts back to the plaintiff to show that the defendant’s stated reason ... served as a pretext for discrimination." (Citation omitted.) Zboray v. Wal-Mart Stores East, L.P., supra, 650 F.Supp.2d 179-80.
Here, the defendant challenges the plaintiff’s ability to meet her burden under the first prong of the McDonnell Douglas framework by arguing that the plaintiff cannot establish a prima facie case of retaliation. The defendant’s challenge is limited to the third prima facie element. In this regard, the defendant argues that the plaintiff cannot make a prima facie showing of retaliation because her alleged transfer from the Major Crimes Division to the Internal Affairs division does not constitute an " adverse employment action."
" In the context of retaliation, ‘adverse employment action’ is broader than it is in the context of discrimination." Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298, 309 (2d Cir. 2017). As to this point, " the means by which an employer can retaliate against an employee are not limited to discriminatory actions that affect the terms and conditions of employment." (Internal quotation marks omitted.) Eiden v. McCarthy, 531 F.Supp.2d 333, 353 (D.Conn. 2008). For a retaliation claim, " an adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination." (Internal quotation marks omitted.) Vega v. Hempstead Union Free School District, 801 F.3d 72, 90 (2d Cir. 2015). " The context in which the claimed adverse employment action occurs matters, and the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be actionable." (Internal quotation marks omitted.) Vogel v. CA, Inc., 662 Fed.Appx. 72, 76 (2d Cir. 2016).
" The Second Circuit [Court of Appeals] has recognized cognizable claims of retaliation for transfer-based retaliation claims ... [that involved] isolation ..." (Citation omitted; internal quotation marks omitted.) Flowers v. Northern Middlesex YMCA, Docket No. 3:15-CV-705 (MPS), 2016 WL 1048751, *9 (D.Conn. March 11, 2016). " [S]uch cases entail isolation pertaining to a decrease in responsibilities or functions ..." (Citation omitted.) Id. ; see also Kellman v. Metropolitan Transportation Authority, 8 F.Supp.3d 351, 384 (S.D.N.Y. 2014) (explaining that transfer-based retaliation claims have survived summary judgment " when plaintiffs’ new positions involved diminished discretionary, managerial, supervisory, or prestigious functions, increased menial labor, or additional harassment or isolation" ). Indeed, a transfer that involves " employer-orchestrated coworker isolation" can- in some cases- constitute an adverse employment action. See Flowers v. Northern Middlesex YMCA, supra, 2016 WL 1048751, *9.
In the present case, a genuine issue of material fact remains as to whether the plaintiff suffered an adverse employment action when she was transferred from the Major Crimes Division to the Internal Affairs Division. As previously discussed in this memorandum, the plaintiff testified at her deposition that, upon being transferred to the Internal Affairs Division, the keys to her department-issued car were taken away from her, she was not allowed to talk to anyone, no one was allowed to talk to her, she was ordered to " close out" all of her cases from the Major Crimes Division, and she otherwise did " nothing," except for three days’ worth of administrative work and transcribing a pistol permit log into an Excel spreadsheet. Thus, the defendant’s summary judgment evidence, viewed in the light most favorable to plaintiff, does not compel that conclusion that by being transferred to the Internal Affairs Division, the plaintiff did not suffer an adverse employment action as a matter of law. See Horvath v. Hartford, supra, 178 Conn.App. 509. Accordingly, the defendant has not met its burden of showing that no genuine issue of material fact exists as to whether the plaintiff was retaliated against in violation of § 46a-60(a)(4).
IV. CONCLUSION
For these reasons, the defendant’s summary judgment motion is denied in its entirety.