Opinion
CV146051052S
02-20-2018
Michael E. Noon v. State of Connecticut Department of Corrections
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Peck, A. Susan, J.T.R.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
PECK, JTR
In a two-count amended complaint, filed October 26, 2017, the plaintiff, Michael E. Noon, alleges gender discrimination and retaliation against the defendant, State of Connecticut Department of Corrections (DOC), in violation of Connecticut General Statutes. § 46a-60(a)(1) and § 46a-60(a)(4), respectively.
Although this version of the complaint was filed after the motion for summary judgment subject of this memorandum of decision, it was filed without objection and was requested by the court to correct erroneous references and other technical errors. Accordingly, the court considers the amended complaint, filed on October 26, 2017, to be the operative complaint.
In support of his complaint, the plaintiff makes the following allegations: At all times relevant to this action, the plaintiff was employed by DOC as a corrections officer. In 2011, he was assigned to work at the Corrigan/Radgowski Correctional Institute in Montville, Connecticut, a multi-unit facility which operates at different security levels. At the time of his transfer to Corrigan/Radgowski and for a period of approximately one and a half years, including the period from March 2012, to the filing of his Connecticut Commission on Human Rights & Opportunities (CHRO) complaint on September 28, 2012, he was prohibited from working on the Corrigan side of the facility. Corrections officers working at Corrigan are able to work more overtime hours than corrections officers at Radgowski due to the higher level of security and type of inmates housed at Corrigan. In 2011, Noon filed a claim against DOC and another corrections officer, Deborah Shales (Sholes), with the DOC’s Affirmative Action Unit, and subsequently, on or about May 19, 2011, he filed a complaint with CHRO, alleging sexual harassment by Sholes. Also, between 2006 and 2011, the plaintiff filed numerous other complaints with the CHRO, along with affirmative action complaints and a lawsuit alleging discrimination based on disparate treatment and related employment claims against DOC. In February 2011, Sholes made a complaint to DOC against the plaintiff alleging sexual harassment, which claim was found to be unsubstantiated. A June 29, 2011 investigation report issued by DOC found that Scholes had committed one or more acts of sexual harassment directed at the plaintiff.
Despite the DOC finding against Sholes, after the plaintiff was reassigned from another facility to Corrigan/Radgowski, he was prohibited from working at Corrigan because Sholes was already assigned there. While Sholes was afforded the opportunity for significant overtime at Corrigan, the plaintiff’s overtime was restricted to Radgowski, where substantially less overtime was available. Despite making several complaints and requests to DOC regarding his prohibition from working at Corrigan, the plaintiff was prevented from working and earning the extra compensation available with that assignment for a period of approximately one and a half years. As a result of this prohibition, the plaintiff suffered emotional distress, loss of enjoyment of life, damage to his personal and professional reputation, loss of salary and benefits.
In count one, the plaintiff alleges gender discrimination in violation of General Statutes § 46a-60(a)(1), in that he was qualified for a corrections officer’s position and there was no reasonable basis for denying him the opportunity of working at the Corrigan side of the facility. As a result of being denied overtime, he was subjected to adverse employment actions on account of his gender. In count two, the plaintiff alleges retaliation, in violation of General Statutes § 45a-60(a)(4), in that the defendant acted adversely towards the plaintiff by retaliating against him after the plaintiff made or filed complaints against the defendant.
On August 28, 2017, the defendant filed a motion for summary judgment accompanied by a memorandum of law and exhibits. On October 12, 2017, the plaintiff filed an objection to the defendant’s motion for summary judgment. Subsequently, the defendant filed a reply on October 19, 2017. The plaintiff filed his sur-reply on October 23, 2017. In support of its motion the defendant submitted excerpts from the plaintiff’s deposition of June 27, 2017; a 2008 Stipulated Agreement; a 2011 Stipulated Agreement; the plaintiff’s CHRO affidavit of illegal discrimination and retaliation; the plaintiff’s responses to the defendant’s interrogatories dated April 4, 2017; and, the affidavit of Scott Erfe, former warden at Corrigan/Radgowski from 2010 to 2014. In opposition to the defendant’s motion for summary judgment, the plaintiff submitted an affidavit of Attorney Theodore W. Heiser; the plaintiff’s CHRO affidavit of illegal discrimination and retaliation and release of jurisdiction; a notice of compliance filed October 6, 2015, with the defendant’s interrogatories and request for production of September 11, 2015; the plaintiff’s responses to the defendant’s interrogatories and request for production; the plaintiff’s personal calendars for 2012, 2013 and 2014, with handwritten notes; excerpts from the plaintiff’s deposition of June 27, 2017; and the affidavit of the plaintiff. The matter was heard at short calendar on October 23, 2017. The defendant also filed a motion to strike the affidavit of the plaintiff’s counsel submitted with the plaintiff’s objection to the motion for summary judgment (#143). The motion to strike is referenced herein where necessary. A separate order concerning the motion to strike is filed contemporaneously herewith.
DISCUSSION
" Practice Book § 17-49 provides that 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. 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
The defendant moves for summary judgment on the following grounds. 1) The underlying CHRO complaint is barred by a stipulated agreement between the parties executed in 2011, in which the plaintiff released the DOC from all liability regarding his employment, expressly reserving no claims or causes of action. 2) The doctrine of accord and satisfaction bars the plaintiff’s claims in that the DOC fully performed its obligations under the 2011 stipulated agreement and permitted the plaintiff to transfer to work at Corrigan/Radgowski. All parties executed that agreement by May 5, 2011. 3) The plaintiff cannot establish a prima facie claim of gender discrimination since he has no admissible evidence that a similarly situated comparator of a different gender was treated more favorably. 4) The plaintiff cannot establish a prima facie claim of gender discrimination since he has no admissible evidence to dispute the defendant’s legitimate reasons for its action. 5) The plaintiff cannot establish a prima facie case of retaliation since the decision " to limit his working with Sholes was based on pending investigations and their inability to get along in the workplace. 6) Finally, the plaintiff has failed to exhaust his administrative remedies for some of the actions complained of by timely filing a complaint with the CHRO.
1
2011 Stipulated Agreement
The defendant argues that the plaintiff’s claim is barred by a 2011 stipulated agreement between the defendant and the plaintiff pertaining to the plaintiff’s ability to transfer to the Corrigan/Radgowski facility. By executing this agreement, the plaintiff agreed to release the defendant from all liability relating to his employment with the defendant. Further, the plaintiff voluntarily entered into the agreement after having time to consider the options available to him. The plaintiff disagrees with the defendant and contends that the 2011 stipulated agreement is a modification of a prior agreement (2008) that only dealt with a " discreet and specific claim," not all subsequent claims. Additionally, the plaintiff asserts that the present claim arose after the execution of the 2011 stipulated agreement and that the alleged discrimination occurred after his transfer to the Corrigan/Radgowski.
" Except in very rare instances, the settlement and release of a claim does not cover claims based on events that have not yet occurred ... The usual general release, then, is not ordinarily construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed ... For that reason, language covering future claims and unknown claims in releases is ordinarily construed to cover only inchoate claims that are in being at the time of release but which have not yet manifested themselves." (Citations omitted; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481-82, 650 A.2d 1240 (1994). Further, " where the language of the release is directed to claims then in existence, it will not be extended to cover claims that may arise in the future." Id., 482.
The 2011 stipulated agreement, in relevant part, states the following: " 1. Officer Noon may elect to transfer to the Corrigan/Radgowski Correctional Center as the individual at issue in the original Stipulated Agreement no longer works at that facility ... 3. Officer Noon hereby unconditionally releases, acquits and forever discharges the State of Connecticut, the Department of Correction, and its agents, the Union, and its agents from all liability, including pending and future claims, demands and causes of action arising out of this Agreement. This will include all claims cognizable under federal or state statute or common law affecting him, which he may have, or ever claim to have, by reason of employment with the State of Connecticut, Department of Correction. This includes the grievance/arbitration process, the State Department of Labor and the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunity Commission." The 2011 stipulated agreement was executed by the plaintiff on or about April 19, 2011. While a 2008 stipulated agreement prohibited the plaintiff from seeking transfer to Corrigan/Radgowski, the 2011 stipulated agreement specifically provided that he may elect to transfer to Corrigan/Radgowski. The CHRO complaint underlying the present action was filed on September 17, 2012, and specifically alleges facts and circumstances that arose subsequent to the plaintiff’s transfer to Corrigan/Radgowski in 2011. Therefore, the facts and circumstances which gave rise to the present action alleging discrimination based on disparate treatment and retaliation necessarily occurred after the plaintiff’s transfer and, as a matter of law, cannot be covered by the previously executed release contained in the 2011 stipulated agreement. Consequently, the defendant cannot prevail on either of the first two grounds stated in its motion for summary judgment. There can be no release of a claim neither in existence nor inchoate at the time the plaintiff executed the stipulated agreement. For the same reason, there has been no accord and satisfaction relating to the claims set forth in the present action. " Except in very rare instances, the settlement and release of a claim does not cover claims based on events that have not yet occurred." Muldoon v. Homestead Insulation Co., supra, 231 Conn. 481.
2
Exhaustion of Administrative Remedies
The defendant argues that the plaintiff failed to exhaust his administrative remedies because he did not file his CHRO complaint within 180 days of the alleged discriminatory act pursuant to the provisions of general Statutes § 46a-82(f). In paragraph 4 of his CHRO complaint, the plaintiff alleges, " [s]ince my arrival at Corrigan Radgowski in 2010 and continuing to the present time, I have been barred from working on the Corrigan side of the facility, and consequently have been denied opportunities to earn overtime." (Emphasis added.) As previously noted, the plaintiff’s underlying CHRO complaint was filed on September 17, 2012. Because the plaintiff alleges that the discriminatory acts subject of the plaintiff’s complaint occurred for at least 180 days prior to the filing of his CHRO complaint, there is no basis for the defendant’s motion for summary judgment on the ground that the plaintiff failed to exhaust his administrative remedies.
3
Spoliation
The defendant argues that the court should draw an adverse inference from the plaintiff’s failure to preserve his overtime records in their original calendar entry form. The plaintiff responds in an affidavit stating that the calendar entries in question were prepared by him on a daily basis to track his days and hours worked at DOC. The handwritten notes were written by him contemporaneously to keep track of his work schedule and overtime. He further states that he destroyed or discarded his own copies of the calendar when he moved out of state. The originals were given by him to his legal counsel in response to the defendant’s request for production. In a separate affidavit, the plaintiff’s counsel affirms that he produced copies of the plaintiff’s calendar for the years 2012, 2013, and 2014 in response to the defendant’s request for production, dated October 6, 2015. Accordingly, there is no evidence of spoliation. More importantly, spoliation, even if proven, is not an issue that would entitle the defendant to summary judgment. Because this issue is raised by the defendant without establishing a connection to the motion for summary judgment either in the motion itself or the supporting memoranda, it does not warrant further discussion in this context.
As referenced elsewhere in this memorandum of decision, the defendant moved to strike the plaintiff’s counsel’s affidavit (Affidavit of Theodore W. Heiser), appended to the plaintiff’s memorandum in opposition to the motion for summary judgment. See docket entry #143. In a separate order entered contemporaneously with this memorandum of decision, the court grants the motion to strike only paragraph 5 of the affidavit for the reason that it contains information that is evidentiary in nature. The remaining paragraphs merely identify and authenticate the exhibits appended thereto and, therefore, are entirely appropriate.
4
GENERAL STATUTES § 46a-60(a)(1)
Section 46a-60(a)(1) of the Connecticut Fair Employment Practices Act (CFEPA) provides in relevant part: " It shall be a discriminatory practice of this section ... [f]or an employer ... 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 ... sex ..." " The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny ... We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both ... Under this analysis, the employee must first make a prima facie case of discrimination ... In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination ... The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question ... This burden is one of production, not persuasion; it can involve no credibility assessment ... 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." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73-74, 111 A.3d 453 (2015). " The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor." Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002).
In support of its motion for summary judgment, the defendant argues that the plaintiff cannot establish a prima facie case of discrimination. Although the defendant concedes that the plaintiff has satisfied the first two prongs of a prima facie case, it contends that the plaintiff fails the third and fourth prongs because he cannot prove he was denied overtime that was instead awarded to a female officer. The defendant further contends that the plaintiff’s allegations are vague and that he has himself admitted that he did not suffer any material detriment by being denied overtime. Finally, the defendant argues, even if the plaintiff can demonstrate an adverse employment action, he does not have any evidence to support his claim that a female officer, similarly situated, was given the overtime that he was denied, and that an assertion that he was offered less overtime is not enough to raise an inference of either discrimination or retaliation. The defendant does concede, however, that the loss, denial or allocation of overtime has been found by federal courts in this circuit to constitute an adverse employment action. See Eka v. Brookdale Hospital Medical Center, 247 F.Supp.3d 250, 264 (E.D.N.Y. 2017) (" Denial of extra shifts and overtime ... constitutes an adverse employment action" ). The defendant also argues that even if the defendant did misapply its overtime policy as to him, there is no evidence that it was based on his gender rather than " his extensive history of conflict with female corrections officers and the pending Affirmative Action investigation and labor grievance concerning Noon’s interactions with Sholes."
The defendant argues in part that the plaintiff has no evidence because he " threw away his records after commencing this lawsuit." This is a repeated mantra of the defendant that was also raised in a motion to strike (docket entry #143), and in connection with a claim of spoliation. This contention is most puzzling as the records in question were provided to the defendant in the course of discovery and have been submitted by the plaintiff in opposition to the motion for summary judgment.
As noted, the defendant does not dispute that the plaintiff has satisfied the first two elements of his prima facie case. " To establish the third prong, a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was." (Citations omitted; internal quotation mark omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012). In his opposition memorandum, the plaintiff argues that he suffered an adverse employment action when the defendant did not permit him to work overtime at the Corrigan side of the facility, when his female comparator, Officer Sholes, was allowed to do so. The plaintiff further asserts that the evidence of the refusal of the defendant to assign him to Corrigan where greater overtime hours were available, combined with his personal calendars produced in discovery detailing the days and actual overtime hours he worked at Radgowski, creates an issue of material fact sufficient to defeat summary judgment. The plaintiff also contends that the defendant’s shifting explanation for the separation of the plaintiff and the female officer further supports an inference of discrimination in that it is " evidence of pretext." In the affidavit offered in support of the defendant’s motion for summary judgment, Erfe, the former Corrigan/Radgowski warden during the relevant time period, stated that he chose to separate the plaintiff from Sholes given the past history of their inability to get along. Erfe makes no mention that the plaintiff’s past disciplinary history entered into that decision, yet the defendant offers this new explanation in support of its argument that Sholes was not similarly situated to the plaintiff because she had no similar disciplinary history. This shift in explanations by the defendant as to why it took action that adversely impacted the plaintiff’s employment may allow a finder of fact to infer that the plaintiff’s disciplinary history is a newly created rationale designed to cover up discriminatory motive.
Most significantly, the plaintiff counters that the defendant misapprehends the plaintiff’s claim. Although the defendant seeks to reduce the plaintiff’s claim to singular instances of a female being assigned overtime while the plaintiff was not, the plaintiff has specifically alleged and argued that the adverse employment action he claims is that, upon reassignment to Corrigan/Radgowski, he was restricted to Radgowski and its limited opportunities for overtime as opposed to Corrigan where overtime was far more plentiful. The plaintiff’s personal calendars constitute evidence of the hours and overtime he actually worked at Radgowski and thus his availability to work overtime at Corrigan on those dates. In addition, the plaintiff testified at his deposition that there were new overtime logs for each facility every day which indicated how much overtime was available in each facility. He reviewed the logs almost every day. The plaintiff further argues that his treatment was disparate from that of Sholes who was specifically designated to work at Corrigan where she had greater opportunity for overtime hours. The affidavit of Erfe, the former warden at Corrigan/Radgowski, indicates that Erfe made a conscious decision to separate the plaintiff and Sholes, which decision had an adverse impact on the plaintiff’s employment opportunities and an advantageous impact on Sholes’ ability to work overtime. The defendant offers no explanation as to why both the plaintiff and Sholes could not be assigned to different facilities on different shifts or days or locations within the facilities. These facts and evidence presented by the plaintiff are sufficient to meet the de minimis evidentiary requirements necessary to establish a prima facie case of discrimination and create issues of fact regarding pretext that can only be resolved at trial. Therefore, the defendant has failed to meet its burden of establishing that there is no issue of material fact in dispute that the plaintiff has failed to make out a prima facie case of discrimination.
In 2011, the plaintiff filed complaints alleging sexual harassment by Sholes. Subsequently, Sholes also filed a sexual harassment claim against the plaintiff. It was later determined that Sholes, not Noon, was committing acts of sexual harassment.
5
GENERAL STATUTES § 46a-60(a)(4)
Under § 46a-60(a)(4), employers are prohibited from discriminating against any person because that person has opposed a discriminatory employment practice or because that person has filed a complaint with the CHRO. " 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 [her]; and (4) a causal connection between the protected activity and the adverse employment action." (Citation omitted.) Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).
" In interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance. In drafting and modifying the Connecticut Fair Employment Practices Act ... our legislature modeled that act on its federal counterpart, Title VII ... and it has sought to keep our state law consistent with federal law in this area." (Citations omitted; internal quotation marks omitted.) Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 579, 42 A.3d 478 (2012). However, " it is axiomatic that decisions of the United States Supreme Court are not binding on Connecticut courts tasked with interpreting our General Statutes. Rather, ‘Connecticut is the final arbiter of its own laws.’ " (Footnote omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 199-200, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d 579 (2008) (quoting Johnson v. Manson, 196 Conn. 309, 319, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986)).
" The term protected activity refers to action taken to protest or oppose statutorily prohibited discrimination." (Internal quotation marks omitted.) Jarrell v. Hospital for Special Care, 626 Fed.Appx. 308, 311 (2d Cir. 2015). " The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of coworkers who have filed formal charges." (Internal quotation marks omitted.) Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000).
" A plaintiff may suffer an adverse employment action if she endures a materially adverse change in the terms and conditions of employment ... A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices ... unique to a particular situation." (Citations omitted; internal quotation marks omitted.) O’Bar v. Naugatuck, 260 F.Supp.2d 514, 516-17 (D.Conn. 2003); See also Eka v. Brookdale Hospital Medical Center, supra, 247 F.Supp.3d 264 (E.D.N.Y. 2017) (" Denial of extra shifts and overtime ... constitutes an adverse employment action" ). Although the defendant concedes that the loss or denial of overtime may constitute an adverse employment action, in arguing that the plaintiff has not made out a prima facie case of retaliation, the defendant takes the opposite view. Based on the cases previously cited, and the prior discussion concerning § 46a-60(a)(1) in this memorandum of decision, the court disagrees.
Similar to disparate treatment claims, once the plaintiff has established a prima facie case of retaliation, the burden then shifts to the defendant to provide a legitimate reason for taking such employment action against the defendant. See Hill v. Pinkerton Security & Investigation Services, Inc., 977 F.Supp. 148, 157 (D.Conn. 1997). Once the defendant produces evidence of a legitimate reason, the plaintiff must then prove that the defendant acted with a retaliatory motive or animus, even if such a motive or animus was not the sole cause for the employment action. Id.
In support of this aspect of its motion for summary judgment, the defendant argues the plaintiff cannot make out a prima facie case of retaliation and offers no argument other than those previously presented in connection with the motion as to the plaintiff’s claim of gender discrimination.
In his complaint, the plaintiff alleges that in 2011 he filed both a CHRO and DOC affirmative action complaint alleging that he had been sexually harassed by Sholes. In addition, he alleges that between 2006 and 2011 he filed numerous other complaints both to the CHRO and to the DOC alleging discrimination and disparate treatment and, as a result of these complaints, DOC has retaliated against him by refusing to allow him to work at Corrigan where considerably more overtime would have been available to him. The evidence offered both in support and opposition to the motion for summary judgment establishes this first prong of the plaintiff’s claim of retaliation that he engaged in protected activity as defined by § 46a-60(a)(4). Because each complaint made by the plaintiff was against the defendant, the plaintiff has also satisfied the second prong of his claim. Further, as previously addressed there is an issue of material fact as to whether the plaintiff suffered an adverse employment action in the form of lost or denied overtime in satisfaction of the third prong of a claim of retaliation. Finally, for all the reasons previously addressed in connection with the plaintiff’s gender discrimination claim, there is an unresolved material question of fact as to whether there is a causal connection between the adverse employment action and the protected activity and if the explanation offered by the defendant is the true reason or merely a pretext for discrimination.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant’s motion for summary judgment is hereby denied.