Tashena Chambers v. City of Bridgeport Civil Service Commission et al. (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Tashena Chambers, instituted this action against two Defendants, the City of Bridgeport Civil Service Commission, and Behavioral Health Consultants (BHC).

In 2006, the Plaintiff applied for an entry level position with the Bridgeport Police Department.   As part of the pre-employment process, she completed an oral examination, a physical agility test, a background check, a written examination and a polygraph examination.

In June of 2007, after undergoing all of the other examinations and procedures, Tashena Chambers was sent for a psychological screening examination, which was administered by the Defendant, Behavioral Services Consultants (BHC).  As part of this process, she completed the Minnesota Multiphasic Personal Inventory (MMPI–2) Test, which was combined with the Individual Personality Inventory (IPI) Test. An oral examination and interview was also conducted by psychologists engaged by BHC, consistent with its contract with the City of Bridgeport.

During the multiple choice portion of the examination, Tashena Chambers, who is a single parent, claims that she was questioned about her status as an unwed mother.   She was also asked, during the interview, if she would be able to make child care arrangements, if assigned to the midnight shift.   She assured the interviewer that child care responsibilities would not present a problem.   As part of the pre-employment psychological evaluation, a written report dated June 1, 2007 was completed by Dr. Mark J. Kirschner, PhD, a clinical psychologist.   In his report, Dr. Kirschner states:  “Ms. Chambers currently lives with her 9 year old son, born out of wedlock.   She reports that her family is supportive, and that she receives childcare assistance from her mother and grandparents ․”

On June 7, 2007, the Plaintiff received a letter signed by Personnel Director Ralph Jacobs, on behalf of the Bridgeport Civil Service Commission.   The letter informed Tashena Chambers that she had been “disqualified” from competing further for a position as a Bridgeport Police Officer.   The reason for the disqualification was attributed to “Failed Psychological.”

This action was commenced, subsequent to the filing of a complaint with the State of Connecticut Commission on Human Rights and Opportunities (CHRO).

The operative complaint, the Second Revised Amended Complaint dated January 8, 2013, consists of five counts, three of which remain viable.

Counts one and two are brought against the City of Bridgeport Civil Service Commission, pursuant to S. 46a–60(a)(1) of the General Statutes, which reads:

․ (a) It shall be a discriminatory practice in violation of this section:  (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification need, to refuse to hire or employ ․ any individual ․ because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability ․

Count one alleges discrimination based upon Tashena Chamber's race (African American), while Count two alleges discrimination based upon gender.

Count five involves a claim for Tortious Interference with Business Expectancy, addressed to Behavioral Health Consultants (BHC).

Counts three and four of the operative complaint are pled as claims for invasion of privacy, against the Civil Service Commission and BHC respectively.   Both were the subject of earlier motions to strike, which were granted [55 Conn. L. Rptr. 935].

The City of Bridgeport Civil Service Commission has moved for summary judgment as to Counts one and two, in a pleading dated May 23, 2013.

Behavioral Health Consultants (BHC) has also moved for summary judgment, as to its remaining count, Count five.

STANDARD OF REVIEW—SUMMARY JUDGMENT

Connecticut Practice Book S. 17–49 provides that summary judgment shall be rendered forthwith, if the pleadings, affidavits and other proof submitted demonstrate that no issue as to any material fact remains, and that the moving party is entitled to a judgment as a matter of law.  Miller v. United Technologies, 233 Conn. 732, 744–45 (1995).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, and that the party is entitled to judgment as a matter of law.  D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980).   A material fact has been defined as one which will make a difference in the result.  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002).

In deciding a motion for summary judgment, a trial court must view the evidence in the light most favorable to the non moving party.  Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309 (1973);  Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984).   The test to be applied Is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts.  Batick v. Seymour, 186 Conn. 632, 647 (1982).

The burden is on the moving party to show quite clearly what the law is, and that it excludes any real doubt as to the existence, of a genuine issue of material fact.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994);  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).

QUESTIONS FOR TRIER OF FACT REMAIN CONCERNING COUNTS ONE AND TWO

The Defendant Bridgeport Civil Service Commission has moved for summary judgment as to both Counts one and two.   It argues that the Plaintiff, Tashena Chambers, has failed to make out a prima facie case as a matter of law, and that no genuine issue of fact remains to be decided.

This claim is not well taken.

In order to establish a prima facie case of discrimination, the Plaintiff must prove the following elements:  1) that she is a member of a protected class, 2) that she was qualified for the position in question, 3) that she suffered an adverse employment action, and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.  Jacobs v. General Electric Co., 275 Conn. 395, 400 (2005);  Miko v. Commission on Human Rights Opportunities, 220 Conn. 192, 203 (1991).   Circumstantial evidence alone is sufficient to establish that the adverse employment action occurred under circumstances permitting an inference of discrimination.  Perez–Dickson v. City of Bridgeport, 304 Conn. 483, 514 (2012).   The burden of establishing a prima facie case is a burden of production, not a burden of proof, and involves no credibility assessment by the fact finder.   It need not reach the level required to support a jury verdict.  Craine v. Trinity College, 259 Conn. 625, 638 (2002).

Consistent with the analysis in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which Connecticut courts have determined to be controlling, once a prima facie case has been made, a defendant may rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision.   Only then, is the Plaintiff required to prove, by a fair preponderance of the evidence, that the proffered reason is a pretext for discrimination.  Jackson v. Water Pollution Control Authority, 278 Conn. 692, 706 (2006);  Miko v. Commission on Human Rights & Opportunities, supra, 204.

Here, the Plaintiff points to questions asked during the pre-employment process concerning her child bearing, and the circumstances of her pregnancy.   The letter of June 1, 2007 makes a specific reference to a child born out of wedlock, while providing a generally unfavorable evaluation of the Plaintiff Tashena Chambers.

It might be argued, that child care responsibilities could impact one's role as a uniformed Police officer, given the irregular hours worked, and the fact that officers may be placed in harm's way at a moment's notice.   The fact that a prospective employee, male or female, has child care responsibilities, may prompt an iniquity concerning whether those family needs will pose an insurmountable obstacle, if an assignment to the midnight shift is decreed.

However, those arguably legitimate concerns are not impacted by the circumstances of a child's birth—that is, whether the child was conceived out of wedlock.   The Plaintiff points to statistical evidence, that out of wedlock births among African Americans represent a higher percentage of all births, than the percentage of Caucasians born out of wedlock.   Therefore, she plausibly argues, that these questions, and the inclusion of that information in a report, may disproportionately impact African Americans.

The Plaintiff has also raised an issue, concerning whether her alleged failure of the polygraph examination, represents a legitimate reason for her inability to proceed further with the employment process.

The polygraph report, signed by Alfred J. DelCiampo, a Polygraphist, contains the following:  “The applicant was pleasant and cooperative throughout the polygraph interview and procedure.   A review of the applicant's polygraph recordings showed no physiological reactions that might warrant additional polygraph testing and/or background investigation.”

The letter of June 7, 2007, written after the polygraph report, mentions only “Failed Psychological” as the reason for the Plaintiff's disqualification from further competition for a position as a Bridgeport police officer.

Not until a virtually identical form letter dated September 6, 2007, is a “Failed Polygraph” listed as a reason for the Plaintiff's disqualification.

The fact that the Plaintiff is a female, and only females engage in child birthing, further raises a question concerning the claim of discrimination based upon gender.

The motions for summary judgment as to Counts one and two, must therefore be denied.

QUESTIONS OF FACT REMAIN CONCERNING CLAIM OF INTERFERENCE WITH BUSINESS EXPECTANCY

The Defendant, Behavioral Health Consultants (BHC), has moved for summary judgment as to Count five, the only count directed against BHC.

It claims that based upon the facts presented, the Plaintiff Tashena Chambers cannot prevail on her claim of tortious interference with business expectancy.   BHC further maintains that it cannot interfere with a prospective arrangement between the Plaintiff and the City of Bridgeport, because it was acting as the agent of the city, and an agent cannot interfere with the contractual relationships of its principal.

These claims are not persuasive.

Connecticut has long recognized a tort for interference with business expectancy.  Blake v. Levy, 191 Conn. 257, 261 n.4 (1983);  Restatement Torts (Second) S. 766B.

The Restatement reads:

One who intentionally and improperly interferes with another's prospective contractual relation ․ is subject to the other for pecuniary harm resulting from the loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relationship, or (b) preventing the other from acquiring or continuing the prospective relation.

In order to prevail, the Plaintiff must demonstrate that the interference was intentional, and was accompanied by an improper motive, or improper means.   Kakadel v. DeFabritas, 191 Conn. 276, 279–80 (1983).   The Plaintiff must prove lack of justification of the part on the actor.  Daley v. Aetna Life Casualty Co., 249 Conn. 766, 806 (1999).

There is no requirement, in order to state a cause of action, that a Plaintiff prove breach of an existing contract, or that a formal contract exists.   It is enough that the Defendant interfered with a business relationship.  Lawton v. Weiner, 91 Conn.App. 698, 706 (2005).

BHC cannot prevail, based upon its contention that it is the agent of the city, and cannot interfere with a contract involving the city.

It should be noted, that this case does not involve interference with an existing contract.   Furthermore, the City of Bridgeport admits, in its brief, that it exercised no direction or control over Behavioral Health Consultants, LLC, or its authorized personnel.

On page 9 of its brief in support of the motion for summary judgment, the City of Bridgeport Civil Service Commission declares:  “ ․ the Commission did not direct Dr. Kirschner on how to perform Ms. Chambers' psychological evaluation or direct him on what psychological assessments he should use.   Also, the commission did not control how the evaluation should be administered.”

The relationship between BHC and the City of Bridgeport does not bar Tashena Chamber's cause of action.

Construing the facts most favorably to the Plaintiff, she was questioned concerning the birth of her son, and she responded to both standardized test questions, and an oral interview.

In its report of June 1, 2007, BHC does not simply say that Tashena Chambers is a single parent, who explained that child care issues do not present a barrier to employment as a police officer.   Instead, BHC noted that the child had been born “out of wedlock.”

One may obtain the status of a “single parent” in many ways, including the death of a spouse, divorce, separation, abandonment, or the serious illness of a spouse or partner.   Having a child born “out of wedlock” is only one path to single parenthood.

In all such cases, any question should pertain to the ability to care for a child, in the case of Tashena Chambers a single child, while performing the duties of a police officer.   Circumstances surrounding the birth of a child are not germane to this inquiry.

The trier of fact might find, notwithstanding the denials of Dr. Kirschner, that including the fact that the child was born “out of wedlock” in the report, was designed to disqualify from further consideration, an otherwise qualified candidate for the position of police officer.

Therefore, the Defendant, Behavioral Health Consultants, LLC has not demonstrated that no genuine issue of material fact remains between the parties.

Furthermore, whether the actions of BHC was a substantial factor in causing injury to the Plaintiff, is an issue uniquely suited for determination by the trier of fact.

Proximate cause has been defined as actual cause (cause in fact) that is a substantial factor in causing harm to the plaintiff.  Barry v. Quality Steel Products, Inc., 263 Conn. 424, 446 (2002);  Boehm v. Kish, 201 Conn. 385, 391 (1986).   There can be more than one proximate cause of an injury.   Miranti v. Brookside Shopping Center, 159 Conn. 24, 29 (1969).

In this case, because there is room for reasonable disagreement, the issue of proximate causation should be submitted to the trier of fact.  Hughes v. National Car Rental, Inc., 22 Conn.App. 586, 590 (1990).

CONCLUSION

The motions for summary judgment filed by the City of Bridgeport Civil Service Commission, and Behavioral Health Consultants, LLC are DENIED.

RADCLIFFE, J.

Radcliffe, Dale W., J.