Opinion
No. CV 07 5002649
February 22, 2011
MEMORANDUM OF DECISION
In her two-count complaint, the plaintiff, Hope D. Orkney, alleges that the defendants, Connecticut Technical High School System ("CTHSS") and State Department of Education, violated the Connecticut Fair Employment Practices Act ("CFEPA"). In count one, the plaintiff alleges that she was denied several promotional opportunities in violation of § 46a-60(a)(1), because she was discriminated against based upon her age, race, and gender. Further, she claims that she was subject to a hostile work environment, also in violation of § 46a-60(a)(1). In count two, the plaintiff alleges that the defendants retaliated against her in violation of § 46a-60(a)(4), because she filed a complaint with the Connecticut Commission on Human Rights and Opportunities ("CHRO").
A trial was held before this court during which the parties were well represented by counsel, produced evidence, and argued their respective claims. Post-trial briefs were filed on January 11, 2011. The evidence presented by the parties demonstrated that the plaintiff is a Caucasian female, born on March 21, 1955. On January 24, 2003, the plaintiff was hired as a Educational Assistant ("EA") at Ella Grasso Vocational-Technical School ("Grasso"). This is a paraprofessional job, which is part of the clerical union. The plaintiff was never employed as an instructor at Grasso. The plaintiff was an EA until she was laid off on April 28, 2008, effective August 25, 2008.
The plaintiff's complaint is based on the defendants' alleged discriminatory denial of several promotional opportunities to her, which date back to 2003. Specifically, the court was presented with evidence with regard to the plaintiff's denial of a promotion to the position of Computer Instructor at Grasso in November 2003 ("the plaintiff's 2003 failure to hire claim"), and her denial of a promotion to the position of Special Education Instructor at Grasso in October 2005 ("the plaintiff's 2005 failure to hire claim"). Additional facts will be set forth as needed.
Count One: Violation of § 46a-60(a)(1)
Defendant's Special Defenses
The defendants' special defenses allege that some of the plaintiff's allegations contained in count one are not properly before the court. The court determines that it is prudent to address these special defenses first, given that a finding in favor of the defendants will significantly narrow the scope of the court's review with regard to this count. As to the plaintiff's hostile work environment claim, the defendants allege that she did not refer to a hostile work environment in her CHRO complaint and therefore, she did not exhaust her administrative remedies with regard to this claim. As to the plaintiff's 2003 failure to hire claim, the defendants argue that the court should not consider it because the plaintiff failed to file a complaint with CHRO within 180 days of this alleged act of discrimination.
Plaintiff's Hostile Work Environment Claim
The defendants argue that the plaintiff's hostile work environment claim is not properly before this court because the plaintiff failed to exhaust her administrative remedies with CHRO with regard to this claim. It is well established that "[s]ubject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802 (2009).
Moreover, "[i]t is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563 (2003).
Before a plaintiff may file a lawsuit alleging a hostile work environment under CFEPA, § 46a-51 et seq., she must exhaust her administrative remedies by filing a charge with the CHRO. See Ware v. State, 118 Conn.App. 65, 78-79 (2009). General Statutes § 46a-100 provides: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with Section 46a-82 and who has obtained a release from the commission in accordance with Section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford." Section 46a-101(a) expressly limits a court's jurisdiction only to claims for which the CHRO has issued a release of jurisdiction. That section states: "No action may be brought in accordance with Section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section."
In the present case, the plaintiff has failed to exhaust her administrative remedy with respect to her hostile work environment claim. The plaintiff filed a single complaint with CHRO on January 17, 2006. The plaintiffs CHRO complaint does not make reference to a hostile work environment. In the substantive allegations of her CHRO complaint, she fails to allege that defendants subjected her to severe and persuasive ridicule, intimidation or criticism that altered the condition of her employment. Moreover, the boxes "discriminated against me in terms and conditions of employment" and "harassed me" are not marked on page one of her CHRO complaint. As a result, the court has no jurisdiction over plaintiff's hostile work environment claim and finds in favor of the defendants as to this special defense.
Plaintiff's 2003 Failure to Hire Claim
Next, the court will address the defendants' argument in regard to the plaintiff's 2003 failure to hire claim. General Statutes § 46a-82(a) states: "Any person claiming to be aggrieved by an alleged discriminatory practice . . . may, by himself or herself or by such person's attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission." Section 46a-82(f), in pertinent part, states: "Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ." For the following reasons, the court agrees with the defendants that the court should not consider the plaintiff's 2003 failure to hire claim.
In Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 284 (2001), the Supreme Court determined that the 180-day requirement of § 46a-82(e) was not jurisdictional, but rather was akin to a statute of limitations. Therefore, the 180-day filing requirement is mandatory and is a basis for the complaint's dismissal absent a showing of waiver, consent, or some other equitable tolling doctrine. The court is satisfied that the defendants have not waived or consented to the plaintiff's failure to timely file her 2003 hiring complaint with the CHRO given that they have raised this issue as a special defense. As such, the court finds for the defendants and will not consider the merits of the plaintiff's 2003 failure to hire claim.
A 2007 amendment to § 46a-82 redesignated subsections (c) through (e) as subsections (d) through (f), respectively. Therefore, the Williams court's treatment of § 46a-82(e) relates to the current § 46a-82(f).
The court also declines to address the plaintiff's 2003 failure to hire claim pursuant to the "continuing violation" doctrine, which imparts a far greater review power upon the court. See State v. Connecticut Commission on Human Rights and Opportunities, 211 Conn. 464, 473-76 (1989) (recognizing the continuing violation doctrine for purposes of the CFEPA, which allows the court to consider all events alleged by plaintiff's complaint, regardless of timing, so long as the events were a part of a policy or practice of discrimination and at least one of the events occurred during the 180-day period preceding the filing of the charge). As previously discussed, the plaintiff failed to exhaust her administrative remedies with regard to her claim of a hostile work environment. As such, the court is satisfied that the doctrine of a continuing violation does not apply to this action. See e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (noting that hostile environment claims are different in kind from discrete acts in that their very nature involves repeated conduct).
Moreover, in its discretion, the court finds that the plaintiff's denial of a promotion in 2003 is too remote to be considered in the context of this claim. See Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 264 (1997) ("The trial court has broad discretion to determine both the relevancy and remoteness of evidence"); see also Welch v. Greenwich, Superior Court, judicial district of Fairfield, Docket No. CV 06 4017597 (June 15, 2009, Arnold, J.) (plaintiff was not permitted to introduce evidence related to alleged discriminatory actions that occurred more than three years prior to the date she was laid-off because the evidence was too remote).
The Plaintiff's October 2005 Failure to Hire Claim
Because the court finds in favor of the defendants as to their special defenses, the only timely act of disparate treatment alleged by the plaintiff in count one is the denial of her promotion to the position of Special Education Instructor at Grasso in October 2005. Specifically, the plaintiff claims that she was denied this promotional opportunity because the interview process was flawed and skewed towards the successful candidate, an African-American male, Mr. Naghagurueghaian Iyare. Moreover, when Mr. Iyare failed a reference check, the defendants re-posted the position. Orkney claims, however, that she was denied the opportunity to re-interview for the position because it was filled by a Caucasian male who was allowed to administratively transfer into the position. Finally, the plaintiff claims this transfer was in violation of the explicit language of the teachers' collective bargaining agreement.
In the operative complaint, the plaintiff did not allege a failure to hire claim for a Hairdressing Instructor position at Cheney in Manchester in November 2005. To the extent that the plaintiff now asserts a disparate treatment claim based on this job position, the court credits the defendants' representation that there is no credible evidence to suggest the plaintiff ever applied for the position.
Connecticut General Statutes § 46a-60(a)(1) of CFEPA provides, in relevant part: "It shall be a discriminatory practice in violation of this section . . . for an employer, by himself or his 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 him 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 disorder, mental retardation, learning disability or physical disability . . ."
In Connecticut, the 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 (1996). The courts look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. State v. Commission on Human Rights Opportunities, supra, 211 Conn. 469-70.
When evaluating claims for racial discrimination based on adverse employment action, Connecticut uses the burden shifting analysis enunciated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and adopted by the Connecticut Supreme Court in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54 (1990). This analysis provides useful guidance to those who are faced with the difficult task of determining intent in complicated discrimination cases. It is the plaintiff's burden to prove the defendants' intentional discrimination. See Id.
The McDonnell Douglas burden shifting analysis contains three steps: first, the employee must make a prima facie case of discrimination; second, the employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question; third, the burden shifts back to the employee to demonstrate that the reason proferred by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. Craine v. Trinity College, 259 Conn. 625, 637 (2002).
Employing the McDonnell Douglas framework, the court first considers whether the plaintiff has met his burden of proving a prima facie case of illegal discrimination as alleged in his complaint. The establishment of a prima facie case creates a rebuttable presumption of discriminatory intent. There are four elements to a prima facie case where the aggrieved party is alleging illegal discrimination: (1) that he belongs to a protected class; (2) that he was qualified for the position; (3) that he suffered adverse employment action; and (4) that the adverse employment action occurred under circumstances permitting an inference of discrimination. See Jacobs v. General Electric Co., 275 Conn. 395, 400-01 (2005).
The court was presented with the following facts. The plaintiff was one of eleven applicants screened by a screening committee for the position of Special Education Instructor. Eight applicants were offered interviews, but only two actually interviewed: the plaintiff and Mr. Iyare. The interview panel members, who are different from the screening committee members, were Karen Zimmerman, Special Education Consultant; Lily Marcial, a part-time secretary who was the Community or Diversity Representative; Margaret Myers, Subject Expertise Representative; and David Kapitulik; Administrator.
Before the interview, the interview committee went over the questions that the candidates would be asked and discussed what was looked for in the different answers. Zimmerman, the consultant, explained the questions and the significant points, which allowed the committee members to know what the group was looking for in the candidates' responses. The committee members asked the candidates the same questions, graded the candidates on their answers, and turned in their scores after the interview was done.
The educational concept of "differentiating instruction" refers to adapting the lesson to a particular student's needs so that the child can better understand the material. The ability to "differentiate" was one of the technical areas that the committee focused on when asking questions of the candidates. As a part of the interview, the committee members took on the roles of students while the interviewees presented a sample lesson plan. The committee was looking for interaction in regards to how the interviewees would differentiate and address the issues to bring a student back on task.
The committee determined that plaintiff had difficulty demonstrating differentiated instruction during both the question and answer portion of the interview and the sample lesson plan. During the presentation of her lesson plan, the committee found that the plaintiff went on with the lesson without addressing the "students" and therefore, not showing examples of differentiation. Zimmerman testified that the plaintiff's inability to show examples of differentiation during the lesson plan impacted her evaluation of the lesson plan. Additionally, the committee found the lesson presented by the plaintiff was elementary in regards to subject matter. Zimmerman testified that she felt time management was an issue for the plaintiff. Kapitulik, the administrator, testified that the plaintiff was trying to fit too much into the fifteen minute lesson, so it was a bit harried and scattered.
Further, Zimmerman stated she found that even though plaintiff could answer questions about technical terms in special education, she was not able to provide explicit information or examples of differentiation in regards to the general curriculum during the interview portion. The interview committee expressed that plaintiff had difficultly answering questions that directly addressed the general curriculum and specific skills. The interview committee also expressed that plaintiff gave many theoretical answers, but could not answer questions requiring substantive responses.
By contrast, Meyers, the subject expertise representative, testified that Iyare did a very good job with differentiating instruction during his lesson plan. Zimmerman testified that during his lesson plan about algebra, Iyare used a variety of manipulates on the board in order to convey the material. When students were off task, he tried to engage them in regards to asking or using manipulation to help them be part of the lesson. He also paired students up during the lesson. During the interview portion, he was able to give explicit instructions in regard to the general high school curriculum.
The plaintiff received an average score of fifty-seven for the interview and Iyare received an average interview score of seventy-three. After the interview, the committee submitted the score sheets and all interview materials to the defendants' headquarters. Subsequently, an applicant flow chart was prepared based on the scoring sheets and committee notes. The plaintiff's flow chart indicated that she "lack[ed] technical subject matter to support students in the general curriculum." In addition to the interview results, Iyare had two years of experience as a Special Education Teacher in the Hartford public school system and had his 165 certification (certification for an initial educator in special education), which was required for the position. The plaintiff's certification, however, was at the time, only being reviewed by the state licensing board.
Iyare was recommended for the position, but was not offered the job because he failed the reference check. After Iyare was not offered the job, plaintiff was not offered the position because she did not score at least a seventy on her interview. It is the defendants' policy and practice that a job applicant receive an interview score of seventy or greater to be a recommendable candidate.
The opening for the Special Education Instructor at Grasso was re-posted. This position was not filled through recruitment and there were no interviews because permanent instructor Albert Tjardes took the position through an administrative transfer. Tjardes had been a Special Education Instructor at Wright Tech in Stamford since the summer of 2004. Tjardes sent a written request for transfer to Grasso from Wright Tech expressing that he wanted to work closer to where he and his fiancée were moving in Old Saybrook. The Superintendent, Abigail Hughes, granted Tjardes' voluntary administrative transfer from Wright Tech to Grasso on January 30, 2006. Hughes routinely granted requests for voluntary administrative transfers. It was Hughes' practice to interpret Article 14 of the CBA to permit both voluntary and involuntary transfers. Other instructors in the system have been voluntarily transferred.
In light of this evidence, the court finds for the defendants. The plaintiff has failed to make out a prima facie case creating a rebuttable presumption of discriminatory intent. There was ample evidence presented that the plaintiff had difficulty demonstrating "differentiated instruction," failed to address the students during her lesson plan, and could not answer questions about technical terms in special education during her interview. Iyare, however, performed much better than the plaintiff in these areas and as a result received a score of seventy three, while the plaintiff only received a fifty seven. There is no evidence that the interview committee members ever discussed any of the candidates' ages or race or suggested that the committee award more points to Iyare because he is African-American. The interview process itself falls squarely within what has been found to be the employer's business judgment. Moreover, Iyare had his 165 certification, while at the time, the plaintiff's certification was only being reviewed by the state board.
The court is satisfied that Iyare was offered the position simply because he was the more qualified candidate. The plaintiff's disagreement with her score during the interview for the position is not sufficient to prove a discriminatory pretext for the defendants' hiring decision. Further, it is not enough that plaintiff thinks she should have been hired or considers herself to have been the better candidate.
As to the issue of Tjardes' administrative transfer, the court similarly finds that the plaintiff failed to make out a prima facie case of discrimination. The plaintiff scored a fifty-seven in her interview, while the position required at least a score of seventy. Moreover, there was no evidence that Superintendent Hughes knew of plaintiff's desire to be considered for the position after her previous unsuccessful interview for the same job or that the stated reason for the transfer, Tjardes' family move to Old Saybrook, was false and that the real purpose was discrimination. There is no evidence that Superintendent Hughes transferred Tjardes because of his age, race, or gender or because of the plaintiff's age, race, or gender. Finally, there was ample evidence proving that administrative transfers were not in violation of the collective bargaining agreement.
In sum, the court is satisfied that the defendants' denial of this promotional opportunity for the plaintiff did not occur under circumstances permitting an inference of discrimination. Therefore, the court finds for the defendants as to count one.
Count Two Retaliation in Violation of § 46a-60(a)(4)
In count two, the plaintiff alleges that by filing a complaint with CHRO in 2006, she opposed a discriminatory practice, which caused the defendants to engage in acts of retaliation against her. Specifically, the plaintiff argues that she was not invited to a Special Education Department Meeting held on February 24, 2006; she was not selected to attend a study skills workshop held in early 2006; she was not selected to participate in "Mimeo" training offered in May 2006; she did not attend training regarding "Youth and Adults with Learning Disabilities"; she was laid off from her EA position in April 2008, effective August 25, 2008; and finally, she was not considered for several positions that she applied to prior to leaving the defend ants' employment.
"Under the Connecticut Fair Employment Practices Act (act); General Statutes § 46a-51 et seq.; employers are prohibited from discriminating against an employee on account of their opposition to "any discriminatory employment practices or because such person has filed a complaint [before the commission]. . ." General Statutes § 46a-60(a)(4). Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536 (2009). "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." (Internal quotation marks omitted.) Id.
The court is satisfied that the following evidence demonstrates that no adverse actions were taken against the plaintiff and, more significantly, that there was no causal connection between her CHRO complaint and the actions of the defendant. As to the Special Education Department Meeting held on February 24, 2006, the court is satisfied that this was not a standard Special Education Department Meeting. Moreover, the court heard testimony that generally, employees in the Special Education Department attend departmental meetings only when the substance of the meetings require them to be there or the substance of the meeting concerns students to whom an Instructor or EA is assigned. There was evidence that the plaintiff attended a few departmental meetings after filing her CHRO complaint in January 2006. Therefore, if the plaintiff was not asked to attend a meeting after January 2006, and specifically, the meeting held on February 24, 2006, it was because the substance did not require her to be there. Nothing in the evidence suggested that she was singled out to be excluded.
As to the 2006 study skills training, a memorandum announcing the workshop said that the first workshop, the workshop that the plaintiff selected to attend, was relevant to teachers and did not mention educational assistants. Therefore, because only teachers and no other educational assistants were in attendance, the plaintiffs retaliation claim cannot be the cause of her non-participation.
As to the "Mimeo" training offered in May 2006, the evidence demonstrated that the training was designed as an open-door policy for teachers to be able to come in to see the technology during their preparation time (an open period for class preparation), so as not to disturb or interrupt the education process. While instructors have free periods for preparation, EAs only have shorter breaks throughout the day with no preparation periods. The plaintiff was an EA and not a teacher. This was not a two-day training where people spent two full days attending sessions, but rather a training that was repeated throughout the day to make it available when instructors had free time. The evidence showed that the plaintiff in fact attended the training for fifteen minutes, which is all that her own EA schedule would allow.
As for the "Youth and Adults with Learning Disabilities" training, the evidence showed that the plaintiff did in fact attend that training, on May 17, 2007, and May 24, 2007, because she took "personal time" to attend the training. The plaintiff used personal time to attend this training because Grasso did not authorize it. The evidence showed that the defendants only send EAs to this type of training seminar when the topic matter is particularly applicable to educational assistants. Further, the evidence showed that no other employees from Grasso attended the training or were reimbursed by the defendants if they attended the training on their own time. Nothing about the evidence suggests that the plaintiffs CHRO complaint or any of her other activities was in any way related to her treatment with respect to this training.
The court similarly rejects the plaintiff's argument that her lay-off was an act of retaliation on the part of the defendants. In 2008, the Connecticut Department of Administrative Services ("DAS") eliminated the educational assistant position in special education within CTHSS. The evidence showed that CTHSS does a staff analysis every year for DAS. Using a ratio formula, CTHSS analyzes how many special education students are in the system, the special education staff employed, and other available resources to determine if it is possible to make cutbacks. The defendants use this ratio to determine how many instructors and educational assistants are required to provide instruction to students.
The evidence shows that the educational assistant position was eliminated and all special education EAs in all the schools in CTHSS were laid off. In addition to the plaintiff, ten other Special Education EAs were laid off around the same time as plaintiff. All of the laid-off Special Education EAs, including the plaintiff, met with Central Office officials prior to the end of the school year in spring 2008 to discuss the layoff and SEBAC rights. The laid-off EAs did not have recall rights for Instructor openings, as SEBAC reemployment rights do not apply to substitute teaching positions.
"SEBAC" refers to the State Employees Bargaining Agent Coalition.
Finally, the court will address the plaintiff's claims that she was not considered for several positions just prior to her effective lay-off date, August 25, 2008, while she was still employed by the defendants. Specifically, the defendants' records show that, in June 2008, she applied to the position of Computer Education Instructor at Ellis in Danielson and to the position of SAIL Instructor in Norwich. The court is satisfied that the defendants' standardized employment process rebuts the plaintiff's retaliation claim with regard to these positions. Specifically, as to the Norwich SAIL position, the defendant produced evidence that the plaintiff's application did not go beyond the screening process because it lacked certain minimum qualifications and requirements for her to even be selected for an interview.
Insofar as some of the plaintiff's allegations supporting her retaliation claim refer to incidents occurring after August 25, 2008, they will not be considered because she was no longer employed by the defendants during this time.
A "SAIL" position means a Student Achievement Intervention Lab position.
In sum, the court finds for the defendants on count two of the plaintiff's complaint. The plaintiff has failed to prove that any of these incidents constituted an adverse employment action against her and that there was a causal connection between her filing of a CHRO complaint and the defendants' actions.
Conclusion
For all of the foregoing reasons, the court enters judgment in favor of the defendants on both counts of the plaintiff's complaint, with costs.