Opinion
CV166034898S
04-16-2018
Geraldine SMITH v. CONNECTICUT DEPARTMENT OF CORRECTIONS
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
Procedural History
On October 19, 2017, the plaintiff, Geraldine Smith, filed a one-count substituted complaint against the defendant, State of Connecticut Department of Corrections, for a violation under the Connecticut Fair Employment Act (CFEPA). The plaintiff alleges the following facts. The plaintiff was employed by the defendant as a correctional officer, assigned to Captain Paine. Paine stated that an inmate had complained about her and gave her a statement in writing. Paine stated that such conduct was in violation of an administrative directive of the defendants. The plaintiff, after having complained about the falsified statement made by Paine, was treated or was subject to harassment by Paine, and she has been subject to " employee sabotage pursuant to the Employee directives" as well as being defamed. The plaintiff believes that Paine’s actions were taken due to her skin color and gender.
On November 14, 2017, the defendant filed a motion to strike on the following grounds: (a) that the plaintiff’s substituted complaint has not been revised to conform to the defendant’s unopposed request to revise, dated May 2, 2017, (b) the plaintiff has not administratively exhausted her remedies, (c) the plaintiff’s claims are insufficient due to lack of comparators, and (d) the plaintiff’s claims are insufficient due to lack of facts to establish a materially adverse employment action.
In response, the plaintiff filed an objection on December 15, 2017, to which the defendant responded on December 15, 2017. The matter was heard at the short calendar on January 8, 2018.
II
Discussion Applicable Law on Motion to Strike
In a motion to strike, the court " construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.)
Applicable Law on Employment Discrimination
General Statutes § 46a-60(a)(1) provides in relevant part: " It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color ..." " A plaintiff may raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group." (Internal quotation marks omitted.) Walker v. Dept. of Children & Families, 146 Conn.App. 863, 875 n.8, 80 A.3d 94 (2013).
" The framework [a Connecticut] 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 ... [Connecticut courts] 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." (Citations omitted; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 142 Conn.App. 756, 769-70, 66 A.3d 911, cert. granted on other grounds, 310 Conn. 908, 76 A.3d 625 (2013); see also Amato v. Hearst Corp., 149 Conn.App. 774, 781-82, 89 A.3d 977 (2014) (holding that trial court’s decision to follow federal courts’ interpretation of term " adverse employment action" was not improper because Connecticut case law clearly provides that our courts may look to federal court precedent for guidance in enforcing Connecticut’s antidiscrimination statute). " To establish a prima facie case of discrimination in the employment context, the plaintiff must present evidence that: (1) she belongs to a protected class; (2) she was subject to an adverse employment action; and (3) the adverse action took place under circumstances permitting an inference of discrimination." Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012). " 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).
The Supreme Court noted that in some employment contexts, the plaintiff must additionally show that she was qualified to hold her position. But, " [t]he test for establishing disparate treatment in employment cases is flexible ..." Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 514 n.34, 43 A.3d 69 (2012). Because the question of whether the plaintiff was qualified for her position is not relevant in the present case of whether she suffered from harassment and a hostile work environment on the basis of her gender and race, the court concludes that it is not an element of her prima facie case.
" To establish the third prong [of employment discrimination], a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was ... To be probative, this evidence must establish that the plaintiff and the individuals to whom she seeks to compare herself were similarly situated in all material respects ... An employee offered for comparison will be deemed to be similarly situated in all material respects if (1) ... the plaintiff and those [she] maintains were similarly situated were subject to the same workplace standards and (2) ... the conduct for which the employer imposed discipline was of comparable seriousness." (Citations omitted; emphasis in original; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, supra, 304 Conn. 514.
" [T]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that both cases are identical ... In other words, the comparator must be similarly situated to the plaintiff in all material respects." (Citation omitted; internal quotation marks omitted.) Ruiz v. Rockland, 609 F.3d 486, 494 (2d Cir. 2010).
" An ‘adverse employment action’ is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities ... Examples of materially adverse employment actions include 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.) Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). " To be ‘materially adverse,’ the action must result in a change in responsibilities so significant as to constitute a setback to the plaintiff’s career ... [S]ubjective dissatisfaction with assignments does not constitute adverse employment action." (Citation omitted; internal quotation marks omitted.) Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 915 F.Supp.2d 498, 504 (S.D.N.Y. 2013). " Not every unwelcome employment action qualifies as an adverse action. Negative reviews, a change in job title, an increased distance to travel to work, or a lateral transfer do not, by themselves, qualify." Hill v. American General Finance, Inc., 218 F.3d 639, 645 (7th Cir. 2000).
While the plaintiff alleges hostile work environment, the issue has been inadequately briefed. " To establish a claim of hostile work environment, " the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment." Britell v. Dept of Corrections, 247 Conn. 148, 166-67, 717 A.2d 1254 (1998). Therefore, the hostile work environment claim will not be considered.
Analysis
1. Defendant’s Unopposed Request to Revise and Plaintiff’s Exhaustion of Administrative Remedies
The defendant argues that the plaintiff’s substituted complaint, dated October 18, 2017, should be stricken because it does not comply with the defendant’s unopposed request to revise. Specifically, the defendant points to paragraphs five and eight, which requested that the plaintiff clarify which actions are alleged to be based on her race and on her gender and the precise time period when the alleged discriminatory actions were taken, respectively. Additionally, the defendant notes that instead of correcting the defects within the original complaint, the plaintiff adds new allegations that the plaintiff allegedly suffered discrimination from March 10, 2015 to the present and ongoing, as opposed to only the March 10, 2015 incident in the original complaint, which was not exhausted administratively in the CHRO complaint.
The plaintiff argues in her objection to the defendant’s motion to strike that the actions are based on both her race and gender. The defendant does not respond to this argument in its reply to the objection, but only repeats the argument that the substituted complaint should be stricken because of the additional allegations added into the substituted complaint.
In the present case, the plaintiff’s substituted complaint alleges in paragraph five that she has " exhausted all available administrative remedies." Additionally, the plaintiff notes that she filed a complaint with the Connecticut Commission on Human Rights and Opportunities and received a Release of Jurisdiction letter from the commission on May 31, 2016. Though the CHRO complaint has not been attached to the original complaint, the defendant has not challenged this issue.
" In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). The Connecticut Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion nor relied upon by the trial court." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). The trial court, in passing upon a motion to strike, may consider only the grounds specified in the motion. Id.
The plaintiff argues that the CHRO complaint alleges that " [o]n or about March 15, 2015," she was blamed by her supervisor for violating internal rules regarding inmate interaction. The plaintiff’s substituted complaint adds that " [t]he relevant time frame is at least the beginning of March 10, 2015 and ongoing to the present time." However, the plaintiff states in her objection to the defendant’s motion to strike that " the issue in the complaint was the March 10, 2015 incident, and the CFEPA complaint is based upon that" and that " the complaint is not based upon the other acts against the Plaintiff." While there is a question as to whether the plaintiff’s allegations for acts beyond the CHRO complaint’s scope relate back to the incident within the statutory period- the March 10, 2015 incident- the plaintiff ultimately seems to concede that there are no further actions that took place after March 10, 2015.
The plaintiff’s argument is confusing, but she appears to be arguing that the incident itself occurred on March 10, 2015, but the harassment effects continued on after that date.
Because the court is limited on a motion to strike in viewing only the pleadings, see Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997), the plaintiff has sufficiently attested to having filed her CHRO complaint within the statutory 180-day filing requirement. Nonetheless, the plaintiff cannot add additional allegations that were not contained in the original complaint. See Tax Data Solutions, LLC v. O’Brien, Superior Court, judicial district of New Haven, Docket No. CV-10-6016263-S (February 7, 2014, Fischer, B., J.).
Accordingly, the plaintiff has sufficiently pleaded that she had complied with the requisite 180-day filing requirement, but the additional allegations are improper and stricken.
2. Comparators that are Similarly Situated to the Plaintiff
In the present case, the plaintiff’s substituted complaint does not sufficiently allege the third prong of a prima facie employment discrimination case. In fact, the plaintiff has failed to allege any comparably situated individuals in her substituted complaint nor does she allege that the same expectations were applied to other employees who were not in a protected class.
Instead, the plaintiff merely alleges that " because of her race and gender that she has been a target by her superiors." Paragraph nine of her substituted complaint alleges that " the Plaintiff noticed as well as believed that no other person was being harassed or treated in a manner like she was by Captain Paine." However, the plaintiff fails to sufficiently show that other employees who were similarly situated to her in all material respects were treated differently for similar workplace standards. See Graham v. Long Island Rail Road, 230 F.3d 34, 39-40 (2d Cir. 2000) (under Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (1997), the plaintiff is required to show that similarly situated employees who went undisciplined engaged in comparable conduct); Johnson v. C. White & Son, Inc., 772 F.Supp.2d 408, 416 (D.Conn. 2011) (" [W]hile a plaintiff does not have to demonstrate conclusive proof of discrimination ... a plaintiff must at least produce some definite facts that a jury could infer discrimination from" ); Walker v. Dept. of Children & Families, 146 Conn.App. 863, 875-76, 80 A.3d 94 (2013) (plaintiff, even after providing individuals who the plaintiff believed were given preferential treatment, failed to demonstrate that other workers were similarly situated).
Accordingly, for the stated reasons, the plaintiff has failed to sufficiently allege the third prong of a prima facie case of employment discrimination and the complaint is ordered stricken.
3. Materially Adverse Employment Action
In order to prove a prima facie case of employment discrimination, the plaintiff is required to show that she suffered an adverse employment action. Examples of materially adverse employment actions include termination, demotion through a decrease in wage or salary, a less distinguished title, a material loss of benefits, substantially diminished material responsibilities, or other indices that are unique to particular situations. See Feingold v. New York, supra, 366 F.3d 152.
Connecticut courts have found that an employee’s use of personal or vacation time is their own choice. In O’Neill v. Bridgeport Police Dept., 719 F.Supp.2d 219 (D.Conn. 2010), an employee of the police department chose to use his time off for religious purposes. The defendant in that case allowed the time off. When the plaintiff brought suit to recover the time off that he elected to use for his own purposes, the court held that he could not recover time off that he elected to use because he was not deprived of it. " [The plaintiff] was not deprived of a material benefit, he simply chose to use the benefit in a particular way." Id., 226.
In the present case, the plaintiff alleges that she has suffered compensable damages, specifically the " loss of time Plaintiff has suffered if any," " use of vacation time and other time off used by the plaintiff when she had to use such time to compensate for times when she could not go to work due to a hostile work environment," as well as other damages deemed appropriate by the court. The plaintiff has not alleged that she was denied the use of vacation time or that she lost already accrued vacation time due to the March 10, 2015 incident. Her substituted complaint clearly states that the time lost was " used by the plaintiff." It is clear from the pleadings that there was no denial of the use or accrual of those benefits and the plaintiff made a decision to use her accrued time off in a way she chose.
For the stated reasons, the plaintiff has failed to sufficiently allege that she has suffered an adverse employment action and the complaint is ordered stricken.
III
Conclusion
For the reasons stated, the defendant’s motion to strike the plaintiff’s substituted complaint is granted.
SO ORDERED.