Isaac Eze v. State of Connecticut Department of Administrative Services (2010)

MEMORANDUM OF DECISION

This case arises out of a single-count complaint of the plaintiff, Isaac Eze, alleging race discrimination in connection with his employment with the defendant, State of Connecticut Department of Administrative Services (DAS).   The plaintiff claims that, on or about October 24, 2005, the defendant denied him a promotion from the position of Reimbursement Analyst to the position of Reimbursement Team Leader because of his race, in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes §§ 46a-58(a), 46a-60(a)(i) and 46a-70.   He brings this lawsuit pursuant to General Statutes § 46a-100.¹  A court trial was held on September 1, 2009.   The plaintiff seeks to recover for loss of income and loss of seniority.

The witnesses at trial were Pamela Libby, the Director of Statewide Human Resources for DAS, David Lynn, the Human Resources Manager of DAS, Henry Jovanelly, Director of Collection Services, retired, and the plaintiff.   The underlying facts are essentially undisputed.   The plaintiff is an African-American of Nigerian descent who has been employed by DAS since 1989.   He has held the position of Reimbursement Analyst in Collections Services since 1997.   In July 2005, a promotional examination was posted announcing two openings for Reimbursement Team Leader.   Although DAS employs many African-Americans, since the inception of the position, there has only been one African-American appointed as Reimbursement Team Leader.   On August 2, 2005, the plaintiff applied for the position by submitting an application and other specified examination materials.   The selection process included a written application and an interview both of which are scored by the Statewide Human Resources Office.   Thirteen candidates met the minimum qualifications for the position, including the plaintiff, who received a score of 100 percent, which included ten percentage points for having a Masters in Business Administration (MBA) degree.   Having an MBA, however, was not a requirement for the position.

The defendant developed an interview panel consisting of the Director of Collection Services, Henry Jovanelly, two supervisors from Collection Services, Abbie Wotkyns and Anil Antani, and a representative from Human Resources, David Lynn. This panel interviewed twelve of the thirteen candidates ² and asked each a series of identical questions that had been developed by the panel.   Three of the four panel members were caucasian and the fourth, Antani, is of Asian descent.

General Statutes § 5-215a authorizes “the appointing authority” to fill a vacant position “by selecting any candidate on the candidate list.”   Based on this language, the defendant informed the interview panel that all candidates were on equal footing because they all met the minimum qualifications for the position.   During the interview process, the interview panel did not review the educational background, personnel file, or performance appraisals of the candidates.   The only candidate records that were reviewed by the interviewers were the attendance records for each candidate.

Following the interviews, each of the interview panel members created a list of his or her top four candidates.   The plaintiff was not on any of the lists and was not selected for either of the Reimbursement Team Leader positions.   Rather, a caucasian male, Paul Pryzgocki, and a hispanic male, Mark Martinez, both of whom were also on the candidate list and interviewed, were selected for the two available positions.

The testimony reflected that the panel determined that Martinez and Pryzgocki performed better than all the other candidates in their interviews.   Pryzgocki had more supervisory experience than the plaintiff.   Based on the interview panel's review of the candidates' attendance records as to sick time, they concluded that the plaintiff's attendance was “subpar” when compared to that of Pryzgocki and Martinez.   Protected sick time, such as leave pursuant to the Family Medical Leave Act (FMLA) was not taken into consideration.   The panel concluded that the plaintiff had used more hours than either Pryzgocki or Martinez during the calendar year 2005.   In addition, the plaintiff's sick leave balance was much lower than the successful candidates.

There was no direct or circumstantial evidence presented that reflected a racial animus by any of the four members of the interview panel.   Of the four members of the interview panel, the testimony revealed that Jovanelly had a friendly relationship with the plaintiff and had attended a baptism for one of the plaintiff's family members;  Lynn and the plaintiff also had a cordial relationship;  Wotkyns previously interviewed the plaintiff for the job of Reimbursement Analyst and recommended him for the job which he presently holds.   Wotkyns never made any comments about the plaintiff's race.

II

Connecticut courts have traditionally looked “to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.”  Craine v. Trinity College, 259 Conn. 625, 637 n.6, 791 A.2d 518 (2002).

“When a plaintiff claims disparate treatment under a facially neutral employment policy, this court employs the burden-shifting analysis set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).   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.”   Craine v. Trinity College, supra, 259 Conn. 636-37.

“To establish a prima facie case of discrimination, the complainant must demonstrate that (1) he is in the protected class;  (2) he was qualified for the position;  (3) he suffered an adverse employment action;  and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination.”  Vollemans v. Wallingford, 103 Conn.App. 188, 220, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).  “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, supra, 259 Conn. 638.   In the present case, the plaintiff sufficiently met the decidedly low hurdle required to establish a prima facie case of race discrimination under § 46a-60.

Because the plaintiff established a prima facie case of race discrimination, the burden then shifted to the defendant to offer a non-discriminatory reason for its adverse employment action, which in this case is a failure to promote.  “Once a defendant has stated a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas framework with its presumptions and burdens disappears ․ and the sole remaining issue is whether the defendant engaged in illegal discrimination.   To prove discrimination, the plaintiff must prove that the defendant's stated nondiscriminatory reason for its decision was in fact a pretext for an unlawful motive ․ A plaintiff must be allowed the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination ․ Although the presumption created by the prima facie case disappears, the plaintiff may rely upon the evidence used in establishing the prima facie case to prove the ultimate issue of ․ discrimination.”  (Citations omitted;  internal quotation marks omitted.)   Craine v. Trinity College, supra, 259 Conn. 643-44.

In this case, there is no dispute that the plaintiff has established a prima facie case of discrimination.   In fact, there is no dispute that he has proven the first three elements of his discrimination claim by a preponderance of the evidence:  (1) He is a member of a protected class in that he is African-American;  (2) He was qualified for the position of Reimbursement Team Leader by the process established by the DAS;  and, (3) Despite his qualifications, he was not hired for the position.   The key issue in the case focuses on the fourth element:  whether the plaintiff has established by a preponderance of the evidence that the defendant's failure to hire him for this promotional position constituted an act of intentional discrimination.

In support of his claim of intentional discrimination, the plaintiff focuses on what he argues are his superior qualifications for the job when compared to Pryzgocki and Martinez.   First, based on his qualifications, the plaintiff achieved a score of 100 percent on the examination portion of his application.   He interprets this meaning that he was a 100 percent match for the position of Reimbursement Team Leader.   The two persons hired for the positions scored 95 percent (Pryzgocki) and 80 percent (Martinez), respectively, and no weight was given to the difference in scores.   Second, for the interview portion of the application process, the panel designed and asked eleven questions of each candidate on the list that primarily focused on eliciting information about the candidate's leadership and motivational skills while ignoring many of the qualifications (experience and training) contained in the job description.   The interview panel was instructed not to consider any differences in examination scores or ratings of each candidate on the list.   Therefore, the plaintiff argues that his 100 percent score based on his higher educational achievements, including his MBA, and his extensive in-service training were rendered meaningless.   Third, the plaintiff argues that he had superior job experience, at least relative to Martinez.

In further support of his claim, the plaintiff argues that although the claimed focus of the interview panel was to evaluate leadership and motivational skills, they did not consult the service ratings of any of the candidates, which in the plaintiff's case indicated that his supervisors rated him superior or excellent in all categories ³ in the years 2000 to 2004 and satisfactory or superior in 1999 and 2005.   The plaintiff also contends that Jovanelly, a panel member, fabricated the plaintiff's response to a question about how he would motivate people.   Jovanelly testified that the plaintiff said, “I tell them what to do and they do it.”   Jovanelly further testified that this demonstrated that the plaintiff was arbitrary and lacking in leadership skills.   Since none of the notes taken by the panel members during the interview, contained in the exhibits, refer to this response, the plaintiff claims that Jovanelly's testimony on this point is false.   In addition, the plaintiff claims that the interview panel manipulated attendance records to his disadvantage by only providing the interview panel with those covering the period, January 1, 2005 through October 2005.   Lynn testified that attendance is a key factor for the position of Reimbursement Team Leader because you cannot be a supervisor and motivate people if you are not there.   Lynn further stated that since the plaintiff's sick leave balance was only 43.96 hours, much lower than that of Pryzgocki and Martinez, the panel concluded that the plaintiff's attendance was subpar.   The plaintiff argues that it was unfair and arbitrary for the panel to consider absences because there was no evidence that the plaintiff exceeded his allotted sick time.   In addition, his vacation time taken in the same period was significantly less than that of the other two candidates.   The plaintiff further argues that the defendant's claim that vacation is different because it is planned ahead while sick time is more disruptive because it is unplanned is a distinction without a difference.

In keeping with the McDonnell Douglas Corp. v. Green, supra, once the employee makes out a prima facie case of discrimination, it is incumbent upon the defendant to come forward with some evidence that it had a legitimate non-discriminatory reason for making the employment decision in question.  “This burden is one of production, not persuasion;  it can involve no credibility assessment.”  (Internal quotation marks omitted.)  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 1817, 36 L.Ed.2d 105 (2000).   The defendant met this burden by presenting evidence that the plaintiff did not perform well at his interview and that DAS followed the procedures employed by all stage agencies in evaluating the candidates for promotion.   The defendant, having come forward with legitimate nondiscriminatory reasons for selecting others for the position in question, the burden then shifted back to the plaintiff to “demonstrate that the reason [s] proffered by the employer [are] merely a pretext and that the decision actually was motivated by illegal discriminatory bias.”  Craine v. Trinity C'ollege, supra, 259 Conn. 636-37.

“Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff ․ And in attempting to satisfy this burden, the plaintiff-once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision-must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination ․ That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence ․ Moreover, although the presumption of discrimination drops out of the picture once the defendant meets its burden of production ․ the trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom ․ on the issue of whether the defendant's explanation is pretextual ․” (Citations omitted;  internal quotation marks omitted.)   Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. 143;  see also Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 506-07, 832 A.2d 660 (2003).

The court has weighed all the evidence and finds that the plaintiff has failed to sustain his burden of proving intentional discrimination by a preponderance of the evidence.   Specifically, the evidence supports the defendant's claim that it followed the promotional and hiring procedures for all state agencies required by law.   Most problematic for the plaintiff is that the statute which governs filling vacancies from candidate lists allows the appointing authority to fill the vacancy in question “by selecting any candidate on the candidate list.”  General Statutes § 5-215a.   Therefore, the defendant was under no obligation to consider the factors that the plaintiff insists demonstrate that he was the most qualified candidate.   The defendant was not obligated to consider his MBA as it was not a requirement for the job.   Although he scored 100 percent on the written examination, ten percentage points were added for having that MBA. There is no evidence of disparate treatment.   While it is true that the defendant did not consider his performance evaluations or his in-service training, neither did the defendant consider these factors in evaluating the other candidates.   In addition, based on all the evidence, the court is persuaded that the interview made all the difference, as it typically does when there are numerous qualified candidates for a job.   Not one of the four members of the interview panel included the plaintiff in his or her list of top four candidates.   Although the plaintiff insists that Jovanelly's testimony concerning a comment that the plaintiff made in the interview ⁴ was false because it was not contained in the notes of any of the interview panel members, the fact is that not one member of the interview panel was impressed with plaintiff's interview performance.   Further, there is no evidence of racial animus on the part of Jovanelly or any of the other interview panel members.   In fact, the plaintiff himself testified that he and Jovanelly had a friendly relationship and that Jovanelly had attended the baptism of a member of the plaintiff's family.   The interview questions themselves were racially neutral.  (See Plaintiff's Exhibit 15.)   The plaintiff also acknowledged that Pryzgocki had more supervisory experience than he did.   Notably, the very first interview question asked the candidate to detail the work experience, education and training that qualifies him for the position.⁵  The second question is directed toward “work performance history” and attendance.   The very last questions asked the candidate to distinguish himself from others.   The remaining eight questions focused on communication skills, initiative, motivating others and other leadership and supervisory skills.   The question concerning attendance was asked in the context of overall performance and was covered with all the candidates.   As for the plaintiff's claim that there has only been one African-American who has been a Reimbursement Team Leader, there are other African-Americans in the Collection Services unit in other roles.   The court finds that there is no evidence that defendant treated the plaintiff differently than any other candidate or intended to discriminate against the plaintiff in any way.

CONCLUSION

“Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position;  it requires only that the decision among the candidates not be discriminatory.”  (Internal quotation marks omitted.)  Craine v. Trinity College, supra, 259 Conn. 649.   Further, it is not the role of the court to second guess a promotional decision made by an employer from among a group of qualified candidates in the absence of proof of discrimination.   Having found that there is insufficient evidence to support the plaintiff's claim of race discrimination, the court finds in favor of the defendant, and accordingly, hereby renders a defendant's verdict.

Peck, J.

FOOTNOTES

FN1. As required, the plaintiff has met all the statutory prerequisites to filing this lawsuit.   He filed an administrative complaint with the Commission of Human Rights & Opportunities (CHRO) on or about April 13, 2006.   The CHRO issued a release of jurisdiction on September 28, 2006.   Section 46a-100 in pertinent part provides as follows:  “Any person who has timely filed a complaint with the Commission of Human Rights and Opportunities ․ and who has obtained a release from the commission ․ may also bring an action in the superior court ․”.  FN1. As required, the plaintiff has met all the statutory prerequisites to filing this lawsuit.   He filed an administrative complaint with the Commission of Human Rights & Opportunities (CHRO) on or about April 13, 2006.   The CHRO issued a release of jurisdiction on September 28, 2006.   Section 46a-100 in pertinent part provides as follows:  “Any person who has timely filed a complaint with the Commission of Human Rights and Opportunities ․ and who has obtained a release from the commission ․ may also bring an action in the superior court ․”

FN2. One candidate dropped out prior to the interviews being conducted..  FN2. One candidate dropped out prior to the interviews being conducted.

FN3. The rating factors included quality of work, quantity of work, dependability and ability to deal with people.   Although there was a fifth factor, supervisory ability, it was not applicable because none of the candidates was in a supervisory position..  FN3. The rating factors included quality of work, quantity of work, dependability and ability to deal with people.   Although there was a fifth factor, supervisory ability, it was not applicable because none of the candidates was in a supervisory position.

FN4. Jovanelly testified that the plaintiff made the statement, “I tell them what to do and they do it,” which Jovanelly felt indicated improper supervisory behavior..  FN4. Jovanelly testified that the plaintiff made the statement, “I tell them what to do and they do it,” which Jovanelly felt indicated improper supervisory behavior.

FN5. Plaintiff's Exhibits 7, 8 and 9 consist of the interview questions with the notes each member of the panel made of the answers given by each candidate.   The notes reflect that each question was asked of each candidate, and therefore, the plaintiff was afforded an opportunity to expound on all of his qualifications for the position..  FN5. Plaintiff's Exhibits 7, 8 and 9 consist of the interview questions with the notes each member of the panel made of the answers given by each candidate.   The notes reflect that each question was asked of each candidate, and therefore, the plaintiff was afforded an opportunity to expound on all of his qualifications for the position.

Peck, A. Susan, J.