Opinion
No. CV-020813590
June 23, 2008
MEMORANDUM OF DECISION
In this matter, the plaintiff, Courtney Gooden, has sued the defendant, State of Connecticut, Department of Corrections (DOC), as a result of his suspension and subsequent separation from state employment. Following this court's decision on November 13, 2007, in which it dismissed counts three and four of the plaintiff's amended complaint, the plaintiff's remaining claims consist of count one, alleging unlawful race discrimination in his employment with the state pursuant to the Connecticut Fair Employment Practices Act (CFEPA) General Statutes § 46a-60(a)(1), (4) and (5) and count two, alleging racial discrimination and retaliation in employment pursuant to the General Statutes § 46a-60(4). The court accepted evidence on November 14 and 15, 2007, and received post-trial briefs from the parties on or about February 26, 2008.
Attached to the original complaint is a release of jurisdiction issued by the Commission on Human Rights and Opportunities pursuant to General Statutes § 46a-100. Said release allows Gooden to bring a civil action in superior court against the Department of Correction, having timely filed a complaint pursuant to General Statutes § 46a-82.
I. Findings of Fact
This court finds the following facts by a fair preponderance of the evidence. On April 25, 1997, the plaintiff was hired by the DOC as a commercial cleaning vocational instructor. Although the plaintiff had had his own residential/commercial cleaning business prior to his employment with the DOC, he concedes that during his interview for employment he was advised by Mr. Bob Suerken, Superintendent of Schools for the Unified School District #1, that he would require formal certification as a vocational instructor as a condition to continued employment. The plaintiff also understood that he would receive an automatic initial certification, then provisional certification after taking three classes in the first two years and finally, full professional certification after completing the required coursework of eight or nine classes.
In a letter dated October 31, 1997, the plaintiff was reminded of this requirement by the subsequent superintendent of schools, Mr. William Barber. In a letter dated May 15, 1998, Mr. Barber once again advised the plaintiff of the requirement, and in particular, noted that his interim certification would expire on August 12, 1999. While the plaintiff consistently received good evaluations on his work, he continued to receive letters as well as evaluations warning him of the impending expiration of his interim certification and his need to acquire appropriate certification. These letters, which the plaintiff received regularly from October 31, 1997 through September 30, 1999 specifically underscored the need for the plaintiff to take "immediate action" and the warning "[a]s you are aware, Connecticut State Statutes require that a teacher hold appropriate certification in order to be employed by the school district." By October 18, 1999, Mr. Barber had advised the plaintiff that he could be terminated if his application for renewal by the Department of Education (DOE) was not approved by November 20, 1999. By then, the plaintiff testified that he had completed two of three courses and had been waiting for his grades as to the third course. According to his November 4, 1999 memo sent to Carol Sullivan, Personnel Manager at the DOC, Mr. Barber indicated his willingness to hold the plaintiff's position vacant for 2-3 months while Mr. Gooden addressed his certification issues, although he noted that there was no guarantee that the State Board of Education would approve his application or do so in a timely manner. According to Mr. Barber, the failure to ensure that instructors were properly certified could result in fines levied by the DOE.
As a result, although he was placed on an unpaid leave of absence on November 20, 1999, the plaintiff was initially given an extension by the DOE to obtain certification by December 19, 1999 at which point, if he was successful, he could be placed back on the payroll. Contrary to the plaintiff's representations that he was merely waiting for his examination results and grades, by December 14, 1999, Mr. Barber received a letter from the Louisiana State University that the plaintiff's coursework would be completed by February 28, 2000. By letter dated December 23, 1999, Ms. Joy McNeil informed the plaintiff that he would be given a final extension until January 20, 2000 to complete the requirements of certification. As such, Mr. Gooden filed a complaint with the Commission on Human Rights and Opportunities dated January 19, 2000. On March 14, 2000, Mr. Gooden was formally separated from employment.
By letter dated May 31, 2000, Ms. McNeil advised the plaintiff that they learned that he had received his teaching certification, and that upon confirmation, they would be willing to consider re-hiring him for his former position. In fact, the plaintiff received his provisional certification effective May 5, 2000 through May 4, 2008. As such, the plaintiff was re-employed as of July 14, 2000.
In subsequent years, the plaintiff complained of inferior working conditions, being disciplined both for his failure immediately to report a missing putty knife which was never recovered and for being late to work. The plaintiff also complained of the DOC's refusal to accommodate his request for flexible scheduling of the classes he would teach due to his desire to attend a class at Yale University, which was scheduled in the middle of the day. The plaintiff admitted that while his work hours were 7:45 a.m. to 2:45 a.m., he would have to leave at noon twice a week in order to take the class at Yale, which started at 1:00 p.m.
Mr. Barber testified that the DOC does not have a flex-time policy, although they have allowed teachers to leave their classes up to 20 minutes early to attend classes, as long as they make up that class time. According to Mr. Barber, the DOC deemed any greater impact on programming as unacceptable since the canceling of daytime classes "raises multiple issues of scheduling, student availability, accountability and supervision."
II. Discussion A. Unlawful race discrimination pursuant to the Connecticut Fair Employment Practices Act (CFEPA).
Connecticut Fair Employment Practices Act (CFEPA) provides, in relevant part, "It shall be a discriminatory practice in violation of this section: For an employer . . . to discriminate against such individual in compensation or terms, conditions or privileges or employment because of the individual's race, color, . . . national origin, . . . Mental retardation, learning disability or physical disability, including but not limited to blindness." General Statutes § 46a-60(a)(1), (4) and (5).
1. Count One: unlawful race discrimination in violation of CFEPA
In Connecticut, the courts "review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996). The courts look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. State v. Commission on Human Rights Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989).
When evaluating claims for racial discrimination based on adverse employment action, Connecticut uses the burden shifting analysis enumerated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and adopted by the Connecticut Supreme Court in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990). This analysis provides useful guidance to those who are faced with the difficult task of determining intent in complicated discrimination cases. It is the plaintiff's burden to prove that the defendant intentionally discriminated against him because of his race. Id.
The McDonnell Douglas burden shifting analysis contains three steps: first, the employee must make a prima facie case of discrimination; second, the employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question; third, the burden shifts back to the employee to 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, 259 Conn. 625, 637, 791 A.2d 518 (2002).
a) Prima facie case of discrimination
Employing the McDonnell Douglas framework, the court first considers whether the plaintiff has met his burden of proving a prima facie case of illegal racial discrimination as alleged in count one. The establishment of a prima facie case creates a rebuttable presumption of discriminatory intent. Lieberman v. Gant, 630 F.2d 60, 63 (2d Cir. 1980). There are four elements to a prima facie case where the aggrieved party is alleging illegal discrimination (1) that he belongs to a protected class; (2) that he was qualified for the position; (3) that he suffered adverse employment action; and (4) that the adverse employment action occurred under circumstances permitting an inference of discrimination. (Citation omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400-01, 880 A.2d 151 (2005).
As an African American, the plaintiff is a member of a protected class and there is no dispute that his unpaid leave of absence and separation, albeit short-lived, qualify as adverse employment actions. As such, the plaintiff satisfies prongs one and three. Fatal to his claim, however, is the plaintiff's failure to establish that he was qualified for the job. The undisputed evidence is that the plaintiff was told even before he was hired that he would need to acquire appropriate certification. Moreover, he was continually reminded of this requirement and the expiration dates of his interim certification throughout his first two years of employment. Upon expiration of his certification, the plaintiff was given an unpaid leave of absence and an additional, limited opportunity to secure certification while the position remained open, and then was ultimately terminated in March 2000 when he failed to secure certification. Given that certification was a condition of ongoing employment, this court cannot find that the plaintiff was qualified for his position once his temporary certification lapsed.
Moreover, regarding prong four, there was no credible evidence presented that could give rise to an inference of discrimination. The plaintiff contends that Mr. Barber's denial of his request for a letter of support took place under circumstances permitting an inference of discrimination. Here, the burden is on the plaintiff to show the connection between his race and the adverse employment decision. Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 53-54. Although the plaintiff claimed that Caucasian colleagues were treated more favorably with respect to requests for extensions on certification requirements, there is no credible evidence of such before the court, and in fact, the evidence shows otherwise.
Moreover, upon learning that the plaintiff had acquired provisional certification after completing the third course, the defendant offered to rehire the plaintiff. The plaintiff accepted this offer and remains employed by the DOC at this time. Indeed, at the defendant's initiative, the plaintiff was offered re-employment as soon as it learned that he had acquired provisional certification. Since the plaintiff has failed to establish a prima facie case of race and color discrimination, this court need not consider the remaining two steps of the McDonnell Douglas burden shifting analysis and finds in favor of the defendant as to count one.
2. Retaliation Claim in violation of Conn. Gen. Stat. § 46a-60
General Statutes § 46a-60(a)(1)(4) prohibits in relevant part: "For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any discriminatory employment practice or because he has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . ." "Most often, retaliation is a distinct and independent act of discrimination, motivated by a discrete intention to punish a person who has rocked the boat by complaining about an unlawful employment practice." (Citation omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 708, 900 A.2d 498 (2006).
The parties also do not dispute the legal standard governing retaliation claims pursuant to Conn. Gen. Stat. § 46a-60. The plaintiff must establish a prima facie case of the following elements: 1) he was engaged in a protected activity; 2) the defendant was aware of the activity; 3) the plaintiff suffered an adverse employment action and 4) there was a causal connection between the protected activity and the adverse employment action. Bramwell v. State, (Conn.Super. 2002), aff'd at Bramwell v. Dept. of Correction, 82 Conn.App. 483, 844 A.2d 957 (2004). Upon such a showing, the defendant must again demonstrate legitimate reasons for its actions; whereupon the plaintiff bears the burden of showing that the defendant's explanations are pretext for a true discriminatory or retaliatory motive.
a) Prima facie case of retaliation i. Protected activity
To demonstrate that that the employee engaged in a protected activity, he must show that he "had a good faith, reasonable belief that the underlying employment practice was unlawful." (Citation omitted.) Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996). In this case, there is no dispute that the plaintiff engaged in the protected activity of filing his CHRO complaint in January 2000 alleging discrimination and acquired right to sue notices, providing the basis for this lawsuit. The mere filing of a complaint is not sufficient, however, to establish that the plaintiff was engaged in a protected activity; the plaintiff must also show that he had a reasonable, good faith belief that the underlying conduct was unlawful. Pappas v. Watson Wyatt Co., No. 3:04-CV-304 (D.Conn. March 20, 2008). "The reasonableness of the plaintiff's belief must be assessed in light of the totality of the circumstances." Id.
Here, the evidence clearly demonstrates, and the plaintiff does not dispute, that he received repeated reminders of the expiration of his initial interim certification and of his obligation to fulfill the course requirements to obtain provisional certification; that the plaintiff was given a three-month grace period after expiration of his initial certification before being placed on a leave of absence; and the plaintiff received two one-month extensions before being separated from employment. After considering the totality of the circumstances, the court finds that the plaintiff did not have a reasonable, good faith belief that Mr. Barber's denial of his request for a letter of support evidenced discriminatory intent. The plaintiff fails to satisfy prong one of a prima facie case for retaliation.
ii. Employer aware of protected activity
While there is undisputed evidence that Mr. Barber was aware of the plaintiff's complaint with the CHRO and this pending litigation, the plaintiff's immediate supervisor, Principal Mary Greaney testified that she was not aware of the complaint before the CHRO. Because Mr. Barber knew about the plaintiff's complaint, prong two of the plaintiff's prima facie case is met.
iii. Employee subject to adverse employment action
To establish an adverse employment action for a retaliation claim, the plaintiff must present evidence of a "materially adverse change in the terms and conditions" of his employment. (Citation omitted; internal quotation marks omitted.) Oliphant v. Connecticut Dept. of Transportation, No. 3:02cv700 (PCD), 2006 U.S. Dist. LEXIS 77021, at *18 (D.Conn. Oct. 20, 2006). Adverse employment action is one that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." (Citation omitted.) Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2005). "Examples of adverse employment actions include termination of employment, a demotion evidenced by a decrease in wage or salary, material loss of benefits . . ." Oliphant v. Connecticut Dept. of Transportation, No. 3:02cv700 (PCD), 2006 U.S. Dist. LEXIS 77021, at *19 (D.Conn. Oct. 20, 2006).
The adverse employment actions, allegedly motivated by discrimination and retaliation, claimed by the plaintiff after he engaged in the protected activity are:
(1) The defendant received a written reprimand for tardiness on September 7, 2001. The tardy notice was a fairly mild admonition and in fact, the plaintiff does not dispute that he was late. "Reprimands, threats of reprimands, and excessive scrutiny of an employee . . . do not constitute materially adverse employment actions." Id. Moreover, "counseling letters, like negative evaluations or other forms of workplace reprimands, are not disruptive enough to rise to the level of adverse employment actions." (Citations omitted.) Id., 21. As such, the court finds that the September 7, 2001 reprimand does not constitute an adverse employment action.
(2) The plaintiff received a one-day suspension on April 1, 2002, for an incident involving a missing putty knife. The plaintiff's union intervened on his behalf and the plaintiff stipulated to an agreement that the suspension would be reduced to a written reprimand that would be expunged after one year provided there were no further incidents of that kind. The plaintiff was also reimbursed for the wages withheld during his one-day suspension. There are obvious security issues resulting from the unexplained and delayed reporting of the loss of a tool in a corrections facility; conduct which can result in a multiple day suspension. Given that reprimands do not constitute adverse employment actions, as well as all of the circumstances surrounding this incident, the court cannot find that the plaintiff's written reprimand for the missing putty knife constitutes an adverse employment action.
(3) The plaintiff was offered a bigger classroom in his current building but was moved to the basement of the Trumbull building when that side of the building was closed. This basement classroom allegedly contained mold and mildew, poor lighting and toilets above leaking into classroom. The plaintiff alleges that this relocation was in retaliation for filing the claim against the DOC. The plaintiff's immediate supervisor, Principal Greavey testified that the plaintiff had a choice between two rooms and he chose this one. Furthermore, Principal Greavey testified that the plaintiff was given a choice of rooms in this particular building for security reasons because his class was comprised of members from the entire prison population, unlike prisoners in the academic classes that all had to be moved between buildings to attend class. Also, the plaintiff's relocation was temporary; it lasted for approximately one year. The court finds that the plaintiff's temporary classroom relocation does not constitute an adverse employment action.
(4) The plaintiff was denied his request for paid flexible time to attend courses on October 9, 2001. The plaintiff received a letter from Mr. Barber informing him that there is no policy allowing attendance at day classes because leaving at noon, instead of 2:45 p.m., would disrupt the plaintiff's class schedule. However, Mr. Barber did state that the plaintiff could attend these classes but that he would have to use his professional leave, personal leave, and floating recess day to accumulate hours to use as pay for course time; therefore, the denial of the plaintiff's request for paid flex time did not constitute an adverse employment action.
Given the above, the court finds that the plaintiff also fails to satisfy his burden of proving that he suffered adverse employment actions.
iv. Causal connection between protected activity and adverse action
Even if, arguendo, the plaintiff established that he had a good faith reasonable belief that the underlying employment practice, which was the subject of his complaints, were unlawful, and had established that he was subject to adverse employment actions, he has also failed to establish a causal connection between the two. Causation is proven by showing that the protected activity was temporally close or followed closely by discriminatory treatment or by circumstances that evidence disparate treatment between the plaintiff and other similarly situated employees, or through "evidence of retaliatory animus directed at the plaintiff by the defendant." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).
Causation may be satisfied by showing a sufficiently close temporal connection between the protected activity and the adverse action. But "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." (Citation omitted; internal quotation marks omitted.) Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); see also Reed v. A.W. Lawrence Co. supra, 95 F.3d 1178 (Citation omitted.) (Twelve days between alleged sexual harassment and discharge could suggest a causal relationship). Courts have not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action. Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999). In this case, however, the various allegedly adverse employment actions occurred months and even years after the complaints filed and in only the instance regarding the denial of flex-time request, was the supervisor aware of the filing of the complaints at issue. As such, this court simply cannot find a causal relationship between the protective activity and the allegedly adverse employment actions.
For the foregoing reasons, the court finds in favor of the defendant with respect to count two and enters judgment for the defendant.