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Brian Foley v. City of Hartford
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This is an action under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes §§ 46a–60 et seq. The plaintiff alleges in counts one and two, respectively, that the defendant, through its agents, has engaged in sexual harassment discrimination in violation of General Statutes § 46a–60(a)(8)(C) and sexual orientation/perceived sexual orientation discrimination in violation of General Statutes § 46a–81c. In count three, the plaintiff alleges that the defendant, through its agents, has retaliated against the plaintiff in violation of General Statutes § 46a–60(a)(4).
-I-
[T]o establish a hostile work environment claim, a plaintiff must produce evidence sufficient to show that the workplace is 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 ․ [I]n order to be actionable ․ a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so ․ Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance ․ As the Court of Appeals for the Second Circuit explained with respect to offensive slurs in another context: [T]here must be more than a few isolated incidents of ․ enmity ․ meaning that [i]nstead of sporadic ․ slurs, there must be a steady barrage of opprobrious ․ comments ․ Thus, whether ․ slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs ․ considered cumulatively in order to obtain a realistic view of the work environment ․
Patino v. Birken Mfg. Co, 304 Conn. 679, 699–700, 41 A.3d 1013 (2012).
The Court of Appeals for the Second Circuit has “cautioned ․ that hostile work environment claims present mixed question[s] of law and fact that are especially well-suited for jury determination ․ [T]hat the facts are undisputed does not automatically mandate summary judgment; rather, summary judgment is appropriate only where application of the law to those undisputed facts will reasonably support only one ultimate conclusion ․” Schaine v. Quality Payroll Systems, Inc., 445 F.3d 597 (2d Cir.2006).
-II-
There exists a genuine issue of material fact with respect to the hostile work environment claim on the basis of perceived sexual orientation brought pursuant to § 46a–81c. “A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice ․” There is evidence that Chief Daryl Roberts and other co-workers referred to the plaintiff as Sergeant “Sponge Bob Square Pants,” a children's cartoon character often associated with homosexuality, in public and on a regular basis since 2002. Specifically, there is evidence that Roberts referred to the plaintiff as Sergeant Sponge Bob so often that other lieutenants began to refer to the plaintiff by that name and that the plaintiff has continuously been referred to by this moniker up until the time that he filed the present action. There is also evidence that Roberts made homophobic jokes on a regular basis and in 2007, Roberts commented on the plaintiff's “nice hair” and indicated that the hair style “made [Roberts] wonder about [the plaintiff].” Evidence suggests that thereafter the plaintiff showed Roberts his wedding ring to demonstrate that he was married, and Roberts subsequently insinuated that the plaintiff was homosexual by commenting, “Yeah, I just want to make sure. I don't know if you're married to a man or a woman.” There is also evidence that, days later at a staff meeting, Roberts once again commented on the plaintiff's “nice hair” and subsequently muttered, “It makes you look like a homo.” There is also evidence that Roberts commented on other employees' sexual orientation and suggested at a staff meeting that one employee should attend the “gay pride parade.” There is evidence that on another occasion, Roberts compared the appearance of one employee to that of a pregnant transsexual. Based upon the evidence suggesting that these types of comments and insinuations were common-place, it is clear that a genuine issue of material fact exists as to whether the plaintiff was subjected to a continuous hostile work environment based upon his perceived sexual orientation. See Patino v. Birken Mfg. Co., supra, 304 Conn. 700 (finding that “the trial court did not abuse its discretion when it concluded that the jury reasonably could have determined that the plaintiff was subjected to a hostile work environment” based upon “[t]he evidence of ․ derogatory comments [regarding the plaintiff's homosexuality] ․ made multiple times per week, sometimes several times a day, over a prolonged period of time, despite the plaintiff's repeated complaints to his supervisors”); see also, Jacobson v. International Tours & Events, LLC, Superior Court, judicial district of New Haven, Docket No. CV–09–5029826–S (July 11, 2011, Fischer, J.).
-III-
The plaintiff also brings a hostile work environment claim on the basis of sex pursuant to § 46a–60(a)(8). Given that language with sexual orientation overtones can be the basis of a claim of discrimination on the basis of sex; see generally Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998 (1998); Barrows v. Seneca Foods Corp., 512 Fed.Appx. 115, 117 (2d Cir.2013); Riccio v. New Haven Board of Education, 467 F.Sup.2d 219 (D.Conn.2006); for the same reasons articulated as to the plaintiff's hostile work environment claim brought pursuant to § 46a–81c, the court is satisfied that a genuine issue of material fact remains as to this claim as well.
-IV-
Further, there also exists a genuine issue of material fact as to whether the alleged harassment may be imputed to the defendant employer. “A plaintiff pursuing a hostile work environment claim must establish a basis, rooted in common law agency principles, on which to hold an employer liable for the conduct of its employees ․ The law is clear that an employer may not stand by and allow an employee to be subjected to a course of ․ [sexual] harassment by co-workers ․ Accordingly, an employer will be held liable for harassment perpetrated by its employees if the employer provided no reasonable avenue for complaint, or ․ the employer knew (or should have known) of the harassment but unreasonably failed to stop it.” Brittell v. Dept. of Correction, 247 Conn. 148, 167–69, 717 A.2d 1254 (1998).
-V-
Finally, a genuine issue of material fact exists as to whether the defendant exercised reasonable care to prevent and correct promptly the behavior of which the plaintiff complained. In the record, there is evidence that Roberts was the plaintiff's supervisor and that the plaintiff sent letters to Eddie Perez, who was at the time the mayor of the city of Hartford, in which the plaintiff complained of the harassment occurring at the Hartford police department.
For the above reasons, the Motion for Summary Judgment is denied.
Wagner, JTR
Wagner, Jerry, J.T.R.
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Docket No: HHDCV106011297S
Decided: November 04, 2013
Court: Superior Court of Connecticut.
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