Kristen Hopes-McFadden v. New Haven Board of Education (2010)

This case came before the undersigned on May 6, May 12 and May 13, 2010.   Thereafter, post-trial briefs were filed by the parties on June 4, 2010.¹

FACTS

The evidence disclosed the following facts.   The plaintiff, Kristen Hopes-McFadden, is an African-American female and has been employed as a teacher by the defendant, the New Haven board of education, since 1997.   For a large part of the 2007-2008 school year, the plaintiff taught at MicroSociety magnet school (MicroSociety).   At that time, the principal at MicroSociety was Laura Russo.   In May 2008, the plaintiff was involuntarily transferred from MicroSociety to the Katherine Brennan School (Katherine Brennan).   This transfer followed an investigation conducted by Andrea Lobo-Wadley, director of personnel and labor relations for the New Haven public schools, into allegations that the plaintiff failed to follow school established procedures and protocols, was insubordinate and called Russo a racist.   Lobo-Wadley determined that these allegations were true and recommended to the superintendent that the plaintiff be transferred from MicroSociety.   Thereafter, in June 2008, the plaintiff filed a complaint with the commission on human rights and opportunities (the initial CHRO complaint).   In an “affidavit of illegal discriminatory practice,” the plaintiff alleged that she was harassed, put on administrative leave and involuntarily transferred, and that her race and color were a factor in these actions.   Exhibit 1.

Following the involuntary transfer, the plaintiff completed the 2007-2008 school year at Katherine Brennan.   When the plaintiff learned that teachers at Katherine Brennan were expected to report to work at 8:20 a.m., she requested and received a start-time accommodation from Lobo-Wadley due to child-care concerns.   As a result, the plaintiff reported to work at 9 a.m. Celeste Davis, the principal at Katherine Brennan, placed the plaintiff as a co-teacher in a remedial reading program, which was led by Jimmy Lee Moore.   At the time of the plaintiff's arrival at Katherine Brennan, Davis was not aware of the reason for the plaintiff's transfer from MicroSociety.

In September 2008, the plaintiff continued her position as a co-teacher in Moore's classroom and continued to report to work at 9 a.m. Between September 2008 and January 2009, the plaintiff was one of several school employees who were assigned by Davis to cover for an absent teacher when there was no available substitute.   In November 2008, she expressed to Davis that she did not want to be used to substitute.   In addition, the union president, Dave Cicarella contacted Davis after receiving two complaints from the plaintiff regarding the issue.   In January 2009, the plaintiff refused a request from Kathy Jones, who was filling in as principal, to cover a class.   She covered the class after she was told by Davis that her refusal would be considered insubordination.   On January 29, 2009, the plaintiff received a letter from Davis informing her that she was expected to arrive at school at 8:20 a.m., pursuant to her union contract.   The plaintiff responded with a letter in which she informed Davis that Lobo-Wadley had agreed to allow her to report for work at 9:00 a.m. Thereafter, on February 3, 2009, the plaintiff filed a second CHRO complaint in which she alleged that she had been retaliated against as a result of her initial CHRO complaint.   Exhibit D. The plaintiff then took a leave of absence for situational anxiety.   She returned to Katherine Brennan at the end of April 2009.   By that time, Jones was the principal at Katherine Brennan.   Jones made a start-time accommodation for the plaintiff, whereby she reported for work at 8:35 a.m. Upon her return, the plaintiff was again one of several members of school staff to cover classes for absent teachers.   At the time of trial, the plaintiff is still teaching at Katherine Brennan.

The nature of the plaintiff's suit is a retaliation complaint, in which she alleges that the defendant retaliated against her for filing the initial CHRO complaint.   Specifically, the plaintiff alleges the following acts constituted retaliation on the part of the defendant:  (1) she was placed as a co-teacher in Moore's classroom;  (2) she was asked to cover classes for absent teachers at Katherine Brennan;  and (3) in January 2009, she was ordered to arrive to work at 8:20 a.m., in compliance with the school's start time.

DISCUSSION

“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] ․ The act is coextensive with Title VII of the federal Civil Rights Act of 1964, and Connecticut courts therefore look to federal case law for guidance in interpreting the provisions of the act.”  (Citation omitted;  internal quotation marks omitted.)  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).   Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex or national origin ․” 42 U.S.C. § 2000e-2(a)(1).   In addition, “[t]itle VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.”  McMenemy v. Rochester, 241 F.3d 279, 284 (2d Cir.2001).

“To establish a prima facie case of retaliation, a plaintiff must show four elements:  (1) that he participated in a protected activity;  (2) that the defendant knew of the protected activity;  (3) an adverse employment action against him;  and (4) a causal connection between the protected activity and the adverse employment action.”  Ayantola v. Board of Trustees of Technical Colleges, supra, 116 Conn.App. 536.  “If the [p]laintiff is able to establish a prima facie case of retaliation, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action ․ If the employer provides such a reason, the burden shifts ․ back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation.”  (Citation omitted;  internal quotation marks omitted.)  Eaton v. Coca-Cola Co., United States District Court, Docket No. 01664 (D.Conn. July 19, 2010).

As for the first element, “in order to be protected activity the complainant must put the employer on notice that the complainant believes that discrimination is occurring.”  Eaton v. Coca-Cola Co., United States District Court, Docket No. 3:06CV01664 (D.Conn. July 19, 2010).  “An employment practice need not actually violate Title VII for the protected activities element of a retaliation claim to be satisfied.   The plaintiff is only required to have had a good faith, reasonable belief that he was opposing an employment practice made unlawful by Title VII.” McMenemy v. Rochester, supra, 241 F.3d 285;  see also Kessler v. Westchester County Dept. Of Social Services, 461 F.3d 199, 210 (2d Cir.2006) (court held, inter alia, plaintiff engaged in protected activity because initial complaint alleged he was denied promotions and other privileges of employment granted to “younger or non-Jewish or non-White or Female counterparts”).  “The reasonableness of the plaintiff's belief is to be assessed in light of the totality of the circumstances.”   Pappas v. Watson Wyatt & Co., United States District Court, Docket No. 3:04CV304 (D.Conn March 20, 2008);  see also Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178-80 (2d Cir.1996).

This court cannot reasonably conclude that the totality of the evidence supports the plaintiff's proposition that she had a good faith, reasonable belief that she was being discriminated against when she filed her initial CHRO complaint.   In her initial CHRO complaint, the plaintiff admits that Russo had problems with her performance, that she did not follow school protocol and that she refused to follow Russo's direction regarding carrying her coat with her throughout the day.   Exhibit 1. Although the plaintiff stated a belief that she was being harassed and discriminated against, she did not allege that the expectations placed upon her by Russo were different than what Russo expected of the plaintiff's white colleagues.  Id. This court notes that while “[t]here are no magic words that must be used when complaining about a supervisor in order to qualify a complaint as protected activity ․” Eaton v. Coca-Cola Co., supra, Docket No. 3:06CV01664, the plaintiff's initial CHRO complaint is devoid of any specific allegation of differential treatment.

Moreover, the testimony presented at trial does not indicate that the plaintiff could have formed a reasonable belief that, as of June 2008, she was being discriminated against because of her color or race.   Lobo-Wadley testified that she recommended to the superintendent that the plaintiff be transferred from Micro Society “based on the circumstances.”   Tr. transcript, May 6, 2010, p. 114.   The recommendation was made after Lobo-Wadley investigated “allegations of failure to follow school established procedures and protocols, insubordination, and calling [the plaintiff's] principal a racist to her face.”   Such investigation revealed that the plaintiff “was in fact insubordinate and ․ did fail to follow the established building procedures and protocols ․ called Ms. Russo a racist in front of other staff members and plugged [her] ears and sang la, la, la when Ms. Russo attempted to communicate with [the plaintiff] on some of these issues.”  (Internal quotation marks omitted.)   Defendant's exhibit A. Lobo-Wadley testified that her investigation revealed that, although the plaintiff felt that the principal was “picking on her,” the plaintiff was not being treated differently;  rather, the expectations set for the plaintiff were the same as those set for other school employees.   Transcript, May 6, 2010, p. 128.   The behavior outlined in that letter was confirmed by the testimony of John Fortier, another teacher at MicroSociety, and Cynthia Johnson, a clerk typist at MicroSociety.   Tr. Transcript, May 12, 2010, pp. 8, 91.   Fortier testified that he witnessed the plaintiff cupping her hands over her ears and singing while Russo was attempting to discuss her issues with the plaintiff and Johnson testified that she overheard the plaintiff call Russo a racist.

This court finds that the plaintiff's allegations of discrimination, as outlined in her initial CHRO complaint, are more properly characterized as workplace interactions between an employer and an insubordinate employee.   The record reveals no indication of discrimination or disparate treatment on the part of Russo and thus, the plaintiff could not have had reasonably believed that, at the time she filed the initial CHRO complaint, Russo's actions violated the law.   Therefore, the law does not recognize the plaintiff's filing of that complaint as a protected activity.   See Reed v. A.W. Lawrence & Co., supra, 95 F.3d 1178-80 (1996), see also Gooden v. Dept. of Correction, Superior Court, Judicial District of Hartford, Docket No. CV 02 0813590 (June 23, 2008, Elgo, J.).   Accordingly, this court need not address the subsequent prongs of the prima facie case for retaliation.

CONCLUSION

The plaintiff failed to prove that she was engaged in a protected activity and therefore, she failed to establish a prima facie case of retaliation.   As a result, judgment may enter for the defendant.

Skolnick, J.T.R.

FOOTNOTES

FN1. This court notes that the plaintiff filed a reply to the defendant's post-trial brief on June 14, 2010.   There was no discussion before this court regarding filing of reply briefs.   As a result, this court declines to consider the plaintiff's reply brief..  FN1. This court notes that the plaintiff filed a reply to the defendant's post-trial brief on June 14, 2010.   There was no discussion before this court regarding filing of reply briefs.   As a result, this court declines to consider the plaintiff's reply brief.

Skolnick, David W., J.T.R.