Michael Jones v. State of Connecticut Department of Children & Families (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 160)

This case arises from the employment relationship of the plaintiff, Michael Jones, and the defendant, State of Connecticut Department of Children and Families (DCF).  The plaintiff alleges that his employment with the defendant started in 2007 and was terminated on October 22, 2008.   In a five-count complaint, the plaintiff alleges that during that the course of his employment he was discriminated against and ultimately terminated because he is homosexual and African–American.   The plaintiff further alleges that he was retaliated against by the defendant because he filed complaints relative to this discrimination.

On December 26, 2008, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO).   On October 25, 2010, the plaintiff received a release of jurisdiction from the CHRO. On November 20, 2010, the plaintiff initiated this lawsuit.   In his complaint, the plaintiff alleges sexual orientation discrimination in violation of General Statutes § 46a–81c (count one), retaliation in violation of General Statutes § 46a–60(a)(4) (count two), hostile work environment in violation of General Statutes § 46a–60 et seq. (count three), race discrimination in violation of General Statutes § 46a–60(a)(1) (count four), and retaliation in violation of § 46a–60(a)(4) (count five).

On May 30, 2013, the defendant filed a motion for summary judgment as to all counts on the ground that there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law.   The motion is accompanied by a memoranda of law and the following exhibits:  a letter to the plaintiff from a DCF personnel officer;  a durational written performance assessment for May 25, 2007 through September 25, 2007;  counseling memoranda from December 21, 2007, January 24, 2008, and February 20, 2008;  performance evaluations for the periods of December 28, 2007 through April 28, 2008, and April 28, 2008 through October 10, 2008;  an email from the plaintiff to Wanda Estrella;  excerpts from the depositions of Michael Wood and Jeanette Perez;  a letter regarding his termination;  correspondence from Estrella to the plaintiff;  and an affirmative action report.

On August 5, 2013, the plaintiff filed an opposition to the motion for summary judgment and attached the following exhibits:  an affidavit from the plaintiff, excerpts from the depositions of the plaintiff, Valeriana DeBrito, Dana Goldberg, Jeanette White, Richard Ijeh, Jeanette Perez, and Michael Wood, the defendant's final investigative report;  service ratings of the plaintiff from December 2007 through April 2008, and April 2008 through October 2008;  two sets of interrogatory responses from the defendant;  letters from DeBrito to the plaintiff dated December 21, 2007 and February 20, 2008;  a letter from the plaintiff to Wanda Estrella;  an arbitrator's decision;  correspondence from Kellena Nelson to Robert Lapdula regarding the plaintiff;  an email from Christine Lau to Wanda Estrella;  and an email from Jeanette White to Michael Wood regarding the plaintiff.

On August 7, 2013, the defendant filed a reply brief in support of its motion.   On August 12, 2013, the court heard oral argument on the short calendar.   On August 20, 2013, the plaintiff filed a surreply.

I

DISCRIMINATION CLAIMSCount One

In count one, the plaintiff alleges sexual orientation discrimination in violation of General Statutes § 46a–81c.  Section 46a–81c states, in relevant part:  “It shall be a discriminatory practice in violation of this section:  (1) 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 sexual orientation or civil union status ․”

“The framework this 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 ․ We 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 ․ In order for the employee to first make a prima facie case of discrimination, the plaintiff must show:  (1) the plaintiff is a member of a protected class;  (2) the plaintiff was qualified for the position;  (3) the plaintiff suffered an adverse employment action;  and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination.”  (Citations omitted;  internal quotation marks omitted.)  Feliciano v. Autozone, Inc., 142 Conn.App. 756, 769, cert. granted on other grounds, 310 Conn. 908 (2013).

It is undisputed that the plaintiff is homosexual and therefore a member of a protected class, the plaintiff was qualified for the position, and the plaintiff suffered an adverse employment action in that he was terminated.   The remaining question is whether and the adverse employment action occurred under circumstances that give rise to an inference of discrimination.

As to the prima facie case, the following evidence creates a genuine issue of material fact:  The plaintiff's affidavit (Plaintiff's Exhibit (Pl's.Ex.) 1), states that he was ridiculed for being homosexual in that his behaviors were mimicked, he was called flamboyant, his supervisor would roll her eyes at his behavior, and jokes were made at his expense.   He further states that non-homosexual employees were not subject to such ridicule.   Valeriana DeBrito, the person to whom the plaintiff directly reported for part of his employment period, testified in her deposition that other employees mimicked or joked at the plaintiff's expense and this was acceptable because she thought they were friends.  (Pl's Ex 3, at 57–58).   In the defendant's investigation of the plaintiff's complaints, the following is included:  “Mr. Lapadula indicated Ms. DeBrito has come to his office many times indicating that the Complainant was being ‘Flamboyant.’   Mr. Lapadula stated he has tried talking to Ms. DeBrito about her perceptions of gay men.”   Lapadula was DeBrito's supervisor.   Subsequently, DeBrito gave the plaintiff poor employment reviews and issued him counseling memoranda, which ultimately led, in part, to his termination.   See Pl's Ex 5 (performance evaluation), Defendant's Exhibit (Defs.Ex.) C, D, & E (counseling memos) and Defs. Ex. K (termination letter).   This evidence is sufficient to create an issue of material fact as to whether the plaintiff was terminated under circumstances that give rise to an inference of discrimination, the final element of a prima facie case of discrimination based on sexual orientation.

Once a prima facie case is established, “[t]he employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question ․ This burden is one of production, not persuasion;  it can involve no credibility assessment.”  (Internal quotation marks omitted.)  Feliciano v. Autozone, Inc., supra, 142 Conn.App. 769.   The defendant has presented evidence of unsatisfactory performance by the plaintiff.   On this point, the defendant has submitted ample evidence, including two performance evaluations (Defs. Ex F & G) and three counseling memos (Defs. Ex. C, D, & E), all of which outline specific ways in which the plaintiff's job performance was deficient, including failure to follow directions or abide by office guidelines.   Among the rules broken by the plaintiff was a policy not to visit homes or use his work issued cell phone on a holiday when the office was closed.   See Defs. Ex. E (counseling memo from DeBrito to the plaintiff).

Under the McDonnell Douglas v. Green analysis, “[o]nce the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove that the proffered reason is pretextual.”  (Citation omitted.)   Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 105, 671 A.2d 349 (1996).   As with the prima facie case, the plaintiff has provided sufficient evidence to demonstrate that there is a genuine issue of material fact as to why he suffered an adverse employment action.   Specifically, the plaintiff demonstrates that a heterosexual employee was not disciplined for the same conduct that resulted in the plaintiff receiving a counseling memo and negative performance reviews that ultimately led, in part, to his termination.   Specifically, the plaintiff refers to the policy regarding working on a holiday.   See Pl's Ex 9, Deposition of Richard Ijeh, pp.   49–51 (Ijeh was not disciplined for working on Christmas and Independence Day).   In other words, the plaintiff argues that if he was dismissed because of poor performance reviews, those reviews themselves were based on discriminatory animus and therefore the “legitimate” reasons were pretextual.   While this evidence is not dispositive, it is sufficient to create a genuine issue of material fact regarding sexual orientation discrimination.

Count Four

In count four, the plaintiff alleges race discrimination in violation of General Statutes § 46a–60(a)(1) Section 46a–60(a)(1) states “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 or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness.”

The McDonnell Douglas Corp v. Green analysis discussed above also applies to this count.   As with count one, it is undisputed that the plaintiff is African–American, and therefore a member of a protected class, that the plaintiff was qualified for the position, and that the plaintiff suffered an adverse employment action in that he was terminated.   The remaining question is whether the adverse employment action occurred under circumstances that give rise to an inference of discrimination.   Unlike count one, in which the plaintiff presented evidence that he was discriminated against based on sexual orientation, there is no evidence at all in the record that the plaintiff was discriminated against based on his race, nor has the plaintiff pointed to any such evidence in support of his pleadings.   In its motion for summary judgment, the defendant has stated that a prima facie case is not possible on this issue.   The court agrees.   There being no genuine issue of material fact as to the claim of race discrimination, summary judgment is appropriate as to count four.

II

RETALIATION CLAIMSCounts Two and Five

In counts two and five, the plaintiff alleges that the defendant retaliated against the plaintiff in violation of General Statutes § 46a–60(a)(4).   In count two, the plaintiff alleges that he was retaliated against because of a complaint regarding sexual orientation discrimination.   In count five, the plaintiff alleges that he was retaliated against because of a complaint regarding race discrimination.   In both instances, the plaintiff alleges that he was terminated as a result of his complaint.   Because each of these counts arises from the same retaliatory act, they may be discussed together.   Section 46–60(a)(4) states:  “(a) It shall be a discriminatory practice in violation of this section:  ․ (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a–82, 46a–83 or 46a–84.”

The established burden shifting analysis of McDonnell Douglas Corp. v. Green applies equally to retaliation claims in the context of this case.  “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, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).

The parties agree that the plaintiff participated in a protected activity in lodging a complaint about his treatment in the workplace, the defendant knew of this complaint, and subsequently the plaintiff suffered an adverse employment action.   The parties dispute whether there is a genuine issue of material fact on the issue of a causal connection.

According to the evidence in the record, on October 3, 2008, the plaintiff filed an official complaint alleging discrimination.   See Pl's Ex. 4, Final Investigation Report.   On October 22, 2008, the plaintiff was terminated.   Our Appellate Court has noted that, “[t]ermination within several months of the time the allegedly protected activity occurred may be sufficient to create an inference of causation.”  Li v. Canberra Industries, 134 Conn.App. 448, 457, 39 A.3d 789 (2012).   In Li, the Appellate Court held that a motion for summary judgment was improperly granted where the plaintiff could demonstrate temporal proximity between the protected activity and the adverse employment action.   Id. (“Although there surely was evidence of perfectly permissible reasons for the plaintiff's discharge as well, a genuine issue of fact nonetheless existed.   We therefore conclude that the court erred in granting the defendants' motion for summary judgment as to count one.”).   In the instant case, the less than three week period between complaint and termination is sufficient to create a genuine issue of material fact as to whether there is an inference of causation.   That the plaintiff had previously received poor reviews may be relevant when this case is presented on its merits, but, in the context of a motion for summary judgment, this court is constrained to conclude that a general issue of material fact exists.   For these reasons, the motion for summary judgment as to counts two and five must necessarily be denied.

III

HOSTILE WORK ENVIRONMENTCount Three

In count three of the complaint, the plaintiff alleges that he suffered a hostile work environment in violation of the Connecticut Fair Employment Practices Act based on ridicule he suffered as a result of his sexual orientation.

As to this claim, the defendant argues, not that there is no issue of material fact, but rather that the claim for hostile work environment based on sexual orientation is legally insufficient because the plaintiff brings this action pursuant to General Statutes § 46a–60, which covers hostile work environment claims for many classes, but not for sexual preference discrimination.   Sexual preference claims, the defendant argues, are governed by General Statutes § 46a–81c

First, our Supreme Court has held that hostile work environment based on sexual orientation discrimination is actionable.  Patino v. Birken Manufacturing Co., 304 Conn. 679, 697, 41 A.3d 1013 (2012) (“the legislature's use of that phrase (‘terms, conditions or privileges of employment’) in § 46a–81c(1) evidences its intent to permit hostile work environment claims where employees are subject to sexual orientation discrimination.”)   The elements of such a claim are, as with other hostile work environment claims.  “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.”  (Internal quotation marks omitted.)  Brittell v. Dept of Correction, 247 Conn 148, 167, 717 A.2d 1254 (1998).

While the plaintiff refers to hostile work environment under “ § 46a–60 et seq.,” the heart of this count is contained in paragraphs 65–69 of the complaint in which the plaintiff clearly states that his work environment was permeated with discrimination based on his sexual orientation and he faced ridicule that was severe and pervasive and created an abusive work environment and, when informed of this activity, his employer did nothing to eliminate the abuse.   Further, elsewhere in the complaint, and included by reference, the plaintiff complains of discrimination under § 46a–81.   In addition, the defendant could have moved to strike this count at a point in time in this action when the plaintiff would have an opportunity to plead over and correct what may well be a scrivener's error.   On the eve of trial, the defendant should not benefit from its delay by having this count completely removed from the complaint.   For these reasons, the motion for summary judgment is denied as to count three.

CONCLUSION

Accordingly, for all the foregoing reasons, the motion for summary judgment is hereby granted as to count four and denied as to counts one, two, three and five.

Peck, J.

Peck, A. Susan, J.