Opinion
CV166063111S
11-07-2017
Mark O'Connor v. Town of Guilford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#120)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On April 6, 2017, the plaintiff, Mark O'Connor, filed a three-count amended complaint against the defendant, Town of Guilford. The amended complaint, which is the operative complaint, alleges the following facts. The plaintiff is employed as a police officer by the defendant and has been since 2000. The plaintiff is fifty-nine years old and is the oldest patrol officer in the Guilford Police Department (GPD). He has a bachelor's degree and is a second degree black belt in Judo and Tae Kwon Do, and is a brown belt in Brazilian Jiu-Jitsu. Prior to becoming a police officer for the defendant, the plaintiff was employed as a police officer by the City of New Haven for twenty-one years.
The original complaint was filed on June 20, 2016, and was composed of the same three counts alleging the same causes of action, but lacked certain factual allegations that have since been added.
During his police career, the plaintiff has worked as a detective, an accident reconstruction investigator, a SWAT team member, a field training officer, a DWI instructor, and a bicycle officer. He has worked with Yale Child Studies, participated in the CD-CP Childhood Development Community Policing program, and received an award from Mothers Against Drunk Driving for his motor vehicle enforcement against drunk driving. His career with GPD has been highlighted by multiple accolades from superiors, the State's Attorney's Office, and community members, as well as commendations from the GPD. The plaintiff has served two terms as president of the Guilford Police Union and seven terms as Chief Steward. Throughout his career with the GPD, the plaintiff has received the highest department evaluations of his work.
In 2000, Chief Kenneth Cruz praised the plaintiff for his performance and acknowledged that the plaintiff is a self-motivator. In 2005, Yale University professor, Ian Shapiro, acknowledged the plaintiff's commitment to a particular case and recognized him for his " professional commitment and humane wisdom" that went " beyond any reasonable description of the call of duty." Deputy Chief Dunn also has allegedly acknowledged to the plaintiff that the plaintiff has a " great" personnel file.
In March 2015, the plaintiff took a competitive promotional examination for the position of sergeant grade B within the GPD. Despite placing first on the promotional list, the plaintiff was not promoted. The plaintiff alleges that the defendant did not promote him because, unlike those chosen over him, the plaintiff suffered a workplace injury to his right Achilles tendon, which required intense treatment, surgery, and therapy, which resulted in a significant absence from work. The plaintiff further alleges that this injury was determined to be a compensable injury by the Workers' Compensation Commission, and that the defendant failed and refused to promote the plaintiff to sergeant in part because he pursued his claims for workers' compensation benefits and because he missed significant time from work as a result of the injury.
The plaintiff further claims that the defendant refused to promote him because of his multiple filings and/or amendments to the complaints submitted to the Commission on Human Rights and Opportunities (CHRO) in response to the several times he was passed over for sergeant, which he alleges were discriminatory and retaliatory. The plaintiff alleges that he filed his first CHRO complaint after he was removed from the SWAT team in 2007 because the administrators were looking for " younger blood." He alleges that this complaint was held against him when he was first passed over for sergeant in May 2015. On October 13, 2015, the plaintiff filed another CHRO complaint (October Complaint) in connection with being passed over in May 2015, and on that same day, the plaintiff was again passed over for the position of sergeant. The plaintiff amended his October Complaint with the CHRO on January 8, 2016. On February 28, 2016, the plaintiff was again passed over for the position, and again, the plaintiff amended his October Complaint with the CHRO on April 25, 2016. On April 26, 2016, the plaintiff received a release of jurisdiction from the CHRO.
On August 23, 2016, the plaintiff was again passed over, and the plaintiff again filed a complaint with CHRO on January 26, 2017. The CHRO released jurisdiction over the final complaint on March 7, 2017. The plaintiff alleges that as a result of the discriminatory and retaliatory conduct of the defendant, as perpetrated by its agents acting on its behalf, the plaintiff has suffered economic and non-economic damages including lost wages and benefits, loss of status, humiliation and distress, and damage to his reputation. The defendant filed an answer and special defenses on May 1, 2017. On May 1, 2017, the defendant filed its motion for summary judgment as to the plaintiff's entire amended complaint and a memorandum of law in support with exhibits. The plaintiff filed his memorandum in opposition on June 8, 2017. The defendant filed a reply memorandum on June 16, 2017. On August 1, 2017, the plaintiff filed exhibits in opposition to the motion for summary judgment. On August 3, 2017, the defendant filed the affidavit of GPD's Chief of Police, Jeffrey Hutchinson. This matter was heard at short calendar on August 7, 2017.
DISCUSSION
I
SUMMARY JUDGMENT
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " [I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 222, 131 A.3d 771 (2016). " A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Recall Total Information Management, Inc. v. Federal Ins. Co., 147 Conn.App. 450, 456, 83 A.3d 664 (2014), aff'd, 317 Conn. 46, 115 A.3d 458 (2015).
The defendant moves for entry of summary judgment based on four grounds. First, it argues that the plaintiff failed to exhaust his administrative remedies by not filing any grievance as mandated by his collective bargaining agreement (CBA). Second, the defendant argues that the plaintiff fails to make out a prima facie case of discrimination under either the " but for" test or the McDonnell Douglas test. Third, the defendant argues that in the last ten years, 66 percent of the promotions by the Guilford Board of Police Commissioners (GBOPC) have been to individuals over the age of forty, and that in the last ten years, 55 percent of the promotions to the rank of sergeant grade B have been to individuals over forty. Finally, the defendant argues that the defendant had a legitimate, nondiscriminatory reason for promoting the other candidates.
The plaintiff, in his opposition, first argues that General Statutes § 31-51bb specifically exempts the plaintiff from having to pursue and exhaust a contractual grievance before pursuing his statutory claims under the Connecticut Fair Employment Practices Act (CFEPA) and the Workers' Compensation Act. Second, the plaintiff argues that he has presented a prima facie case of discrimination. Third, the plaintiff argues that a genuine issue of material fact exists as to whether or not the defendant discriminated against the plaintiff in refusing to promote him. And finally, the plaintiff argues that there exists a genuine issue of material fact as to whether the defendant retaliated against the plaintiff in refusing to promote him to sergeant.
II FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The defendant argues that there is no genuine issue of material fact that the plaintiff is a member of the police union, and that the plaintiff is intimately familiar with the language and requirements of the CBA. The defendant also argues that there is no genuine issue of material fact that the plaintiff did not file a grievance pursuant to the CBA for not getting the promotion to the rank of sergeant grade B. The defendant's position is that the plaintiff's case is really a labor dispute cloaked as a discrimination and/or retaliation case. In support of its argument, the defendant quotes language from Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996), where the court stated that it was well settled under both federal and state law that before looking to the courts, an employee should first attempt to exhaust grievance and arbitration procedures, " such as those contained in [a] collective bargaining agreement . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction." The plaintiff counters this, arguing that § 31-51bb and the Supreme Court's decision in Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 481, 628 A.2d 946 (1993), specifically gives the plaintiff the right to pursue his statutory claims without the necessity of exhausting any available contractual or administrative remedies. The court agrees with the plaintiff.
General Statutes § 31-51bb states: " No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal Constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement." " Both the language of § 31-51bb and the legislative history indicate that the legislature intended to . . . eliminate the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court." Genovese v. Gallo Wine Merchants, Inc., supra, 226 Conn. 481.
" Section 31-51bb provides that a cause of action arising under the state or federal constitution or state statute cannot be lost solely because the employee is covered by a collective bargaining agreement. Plainly . . . an employee who does not exhaust the grievance procedures established in a collective bargaining agreement may pursue a cause of action in the Superior Court if the cause of action is premised on an independent statutory claim." (Emphasis in original.) Genovese v. Gallo Wine Merchants, Inc., supra, 226 Conn. 481. " What [§ 31-51bb] makes clear is if the employee has had a right violated, or alleges that a right has been violated by their employer, which has a remedy outside of the collective bargaining agreement . . . [t]hat employee would still be able to bring an independent action in state or federal court, regardless of whether or not they had exhausted the provisions of the collective bargaining agreement ." (Emphasis in original.) Id., 484-85.
The Supreme Court continued: " To hold otherwise would be to deny such an employee the right to pursue a statutory action solely because of the existence of a collective bargaining agreement." Genovese v. Gallo Wine Merchants, Inc., supra, 226 Conn. 481-82.
In Hunt, the court held that an officer's failure to exhaust his administrative remedies pursuant to the collective bargaining agreement deprived the trial court of jurisdiction over his common-law claims. Interestingly, the defendant does not argue against the application of Genovese, nor does it mention the case at all, but in footnote twenty-two of Hunt, the Supreme Court noted that in Genovese, it was " held that . . . § 31-51bb authorizes an employee who has failed to exhaust the grievance procedures in a collective bargaining agreement to pursue a cause of action in the Superior Court if the cause of action arises under the state or federal constitution or under a state statute. Because the plaintiff's contract claims, in contrast to his claims under 42 U.S.C. § 1983, do not arise under any constitutional or state statutory provision, § 31-51bb does not relieve the plaintiff of his obligations to exhaust the administrative remedies available to him under the collective bargaining agreement." Hunt v. Prior, supra, 236 Conn. 429 n.22. In effect, the Supreme Court distinguished the Hunt case from Genovese, highlighting the fact that the cases pertain to different causes of action. Indeed, the Supreme Court has recently reiterated in Spiotti v. Wolcott, 326 Conn. 190, 195, 163 A.3d 46 (2017) that " Genovese is still good law . . ."
The plaintiff's amended complaint alleges three causes of action: (1) age discrimination pursuant to General Statutes § 46a-60(a)(1); (2) retaliation pursuant to General Statutes § 46a-60(a)(4) and; (3) discrimination pursuant to General Statutes § 31-290a. Since each of these causes of action is premised on an independent statutory claim, pursuant to Genovese, the defendant's motion for summary judgment on the basis that the plaintiff failed to exhaust available administrative remedies is denied.
General Statutes § 46a-60(a)(1) reads: " It shall be a discriminatory practice in violation of this section: . . . 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."
General Statutes § 46a-60(a)(4) reads: " It shall be a discriminatory practice in violation of this section: . . . 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."
General Statutes § 31-290a reads:
III
PRIMA FACIE CASE OF DISCRIMINATION
As a threshold issue, both parties have questioned what standard this court is to apply in analyzing the plaintiff's age discrimination claim. Both parties have noted in their briefs that the McDonnell Douglas model is the appropriate standard, as opposed to the " but for" standard for bringing ADEA claims. Consistent with the reasoning set forth in Frederick v. Gladeview Health Care Center, Inc., Superior Court, judicial district of New London, Docket No. CV-11-6011350-S (April 10, 2014, Devine, J.) (58 Conn. L. Rptr. 47, 48-51, ), this court will apply the McDonnell Douglas model to analyze the plaintiff's discrimination claim.
In deciding not to apply the " but for" standard in Gladeview, Judge Devine reasoned: " 'Following the federal precedent for evaluating claims under the Age Discrimination in Employment Act (ADEA), CFEPA claims have traditionally proceeded under one of two analytical frameworks: (1) the mixed-motive/ Price Waterhouse model or (2) the pretext/ McDonnell Douglas model. Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104-05, 671 A.2d 349 (1996). However, in 2009, the United States Supreme Court decided Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) imposing a " but-for" standard on plaintiff's bringing ADEA claims. Id., at 179-80. " [A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the " but-for" cause of the challenged adverse employment action.' Id., at 180. After Gross, the defendant suggests that there has been a split of authority in the Connecticut superior and district courts as to whether this " but-for" analysis also applies to claims under CFEPA.
In the present case, the plaintiff alleges that age was a factor in the town's decision not to promote him, in violation of General Statutes § 46a-60, which is a disparate treatment claim. The defendant argues that the plaintiff fails to make out a prima facie case of discrimination under the McDonnell Douglas test. The defendant's position is that, as a matter of law, the plaintiff has failed to produce a scintilla of evidence that he was not promoted under circumstances giving rise to an inference of discrimination. In other words, the defendant posits that the plaintiff has failed to establish his burden of proof as to the fourth prong of the McDonnell Douglas test.
General Statutes § 46a-60(a) provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . (1) [f]or 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 . . . 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 . . ."
" [D]isparate treatment . . . refers to those cases where certain individuals are treated differently than others . . . The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status." (Internal quotation marks omitted.) Marasco v. Connecticut Regional Vocational-Technical School System, 153 Conn.App. 146, 160, 100 A.3d 930 (2014). " The framework this court employs in assessing disparate treatment 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." (Citations omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). " The burden of establishing a prima facie case [of discrimination] is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder . . . The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor." (Internal quotation marks omitted.) Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 87, 153 A.3d 687 (2017). " In order to establish a prima facie case, the [employee] must prove that: (1) [he] is in [a] protected class; (2) [he] was qualified for the position; (3) [he] suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." (Internal quotation marks omitted.) Id., 87-88.
" The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question." Feliciano v. Autozone, Inc., supra, 316 Conn. 74. " This, too, is a burden of production, and the [employer] merely needs to state a nondiscriminatory reason." Craine v. Trinity College, 259 Conn. 625, 643, 791 A.2d 518 (2002). " After the [employee] has established a prima facie case, and the [employer] has produced evidence of a legitimate, nondiscriminatory reason for the employment action, [t]he [employee] retains the burden of persuasion. [The employee] now must have the opportunity to demonstrate that the [employer's] proffered reason was not true for the employment decision." (Internal quotation marks omitted.) Harris v. Dep't of Corr., 154 Conn.App. 425, 431, 107 A.3d 454 (2014); see also Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 170 Conn.App. 87 (" [t]he employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision was actually motivated by illegal discriminatory bias" [internal quotation marks omitted]). " The [employee] . . . must satisfy [his] burden of persuading the factfinder that [he] was the victim of discrimination either directly by persuading the court . . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Internal quotation marks omitted.) Diaz v. Housing Authority, 258 Conn. 724, 730, 785 A.2d 192 (2001).
" Unlike other areas of the law, [when] a defendant files a motion for summary judgment challenging the merits of an employment discrimination claim, the plaintiff has an initial burden of persuasion, albeit an attenuated one . . . The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis." (Citation omitted; internal quotation mark omitted.) Reddick v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-11-6021301-S, (December 3, 2015, Wilson, J.), quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). " [A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Perez-Dickson v. Bridgeport, 304 Conn. 483, 516, 43 A.3d 69 (2012).
In the present case, the parties are not in dispute regarding the first three elements of the plaintiff's prima facie case for discrimination. Therefore, the issue before this court is whether genuine issues of material fact exist as to whether the adverse employment action occurred under circumstances giving rise to an inference of discrimination. The defendant argues that the plaintiff has failed to offer any evidence, circumstantial or otherwise, to sustain his burden of proof of raising an inference of discriminatory intent as to the defendant. The defendant emphasizes the fact that the plaintiff was a member of a protected class when he was hired at the age of forty-three, that in the last ten years, 66 percent of the promotions have been to individuals over the age of forty, and 55 percent of the promotions to the rank of sergeant grade B have been to individuals over the age of forty, and the defendant follows the same promotion process for every candidate as set forth in the CBA. The defendant's position is that the plaintiff was simply not chosen because the GBOPC determined there was a better candidate from the list.
Although all of this may be true, none of it speaks specifically to what is necessary to satisfy the fourth prong of the McDonnell Douglas test. The plaintiff essentially argues that the age difference of each of the choices made, including Jakober, provide the evidence necessary to satisfy the fourth prong to establish a prima facie case for discrimination.
Martina Jakober was the fourth officer candidate promoted to sergeant grade B on August 23, 2016, over the plaintiff. The plaintiff filed his CHRO complaint, in relation to this promotion of Jakober on January 26, 2017.
The defendant first argues that the plaintiff was hired by the defendant when he was forty-three years old, as a member of a protected class. However, the plaintiff's claim is not that they did not hire him because of his age, but rather, that the town did not promote him because of his age and/or retaliation. The defendant further argues that it is undisputed that in the last ten years, 66 percent of the promotions have been to individuals over the age of forty, and 55 percent of the promotions of sergeant have been to individuals over the age of forty. These factual arguments may be true but the plaintiff's claims relate specifically to him, and these facts are more general. The defendant also argues that it is undisputed that the GBOPC has promoted officers to the rank of sergeant following a prior filing of CHRO and/or workers' compensation claims. Again, this factual argument may be true but the plaintiff's claim is that there was age discrimination and/or retaliation against him personally, not against other officers generally. Lastly, the defendant argues that the GBOPC followed the same promotions process as delineated in the CBA and the plaintiff was interviewed by the GBOPC on every occasion he was in the top three and the same questions were asked to all candidates. This is a reasonable argument but, not a persuasive one. The procedure set forth in the CBA may not have been strictly followed and it appears that the rule of three could be used in a discriminatory and/or retaliatory manner. Indeed, the evidence shows that in each instance, a younger person was chosen each time.
The " rule of three" is a rule where, after candidates for promotion have taken the written exam and the oral assessment, longevity points are added to their score, and the GBOPC selects one candidate from the top three. After the selection, the candidate in fourth place would move up and be part of the next group of three. The " rule of three" is also articulated in Article 36, Section 2 of the collective bargaining agreement which provides in relevant part that " if all minimum qualifications are met, including but not limited to personnel records, the Board of Police Commissioners shall subject each candidate to a written, and oral or assessment center examination by impartial examiners for the rank of Sergeant Grade B, Lieutenant and Captain. Candidates must pass the written test with a 70% score or higher to be eligible for the oral or assessment center. All candidates who successfully pass the written and oral or assessment center examination may be given medical examinations. For those who pass the medical examinations, the result of the combined written and oral or assessment center examinations will result in the issuance of an eligibility list in rank order of those passing the examination. For such position to be filled, the Police Commission and the Chief will interview candidates as necessary and the Police Commission may select any one (1) of the three (3) highest ranking applications remaining on the list at the time each position is filled . . ." (Exhibit B, Def. Mot. Summary Judgment.)
The plaintiff sets forth a simple, yet persuasive argument, especially in light of the defendant's main contention that the plaintiff has not alleged a prima facie case of discrimination because the fourth prong is not alleged. The plaintiff quotes Craine v. Trinity College, 259 Conn. 625, 639-40, 791 A.2d 518 (2002): " The most typical method used by plaintiffs to establish the fourth prong of a prima facie case is to introduce evidence that the defendant later considered, hired, granted tenure to, or promoted comparably qualified individuals not in a protected class of individuals. See Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (plaintiff's replacement by someone outside protected class satisfied fourth element of prima facie case); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (replacement of sixty-plus-year-old plaintiff by thirty-one-year-old permitted inference of age discrimination); Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 135-36 (2d Cir. 2000) (plaintiff's replacement by two employees eighteen and twenty-five years younger permitted inference of age discrimination); Norville v. Staten Island University Hospital, 196 F.3d 89, 96 (2d Cir. 1999) (plaintiff's age discrimination claim based on employer's decision to fill position with younger candidate)." (Footnote omitted.) In this case, the plaintiff was fifty-nine and sixty when he applied for the promotion and the four other candidates chosen were all younger, the oldest being forty years old.
The defendant argues in its reply brief that these cases are inapposite to the facts before this court as this case deals with the rule of three promotional system pursuant to the CBA and the cases cited by the plaintiff do not. The defendant furthers a policy argument that to allow the case to move forward would undermine the CBA and that every time the GBOPC is asked to determine who is best qualified for promotion, they would have to choose the officer over the age of forty over a candidate they deem more qualified. The court finds this argument to be a stretch. The plaintiff alleges age discrimination and retaliation specific to him. The evidence demonstrates that he was consistently one of the top three candidates. The evidence also shows that he scored higher than some of the other candidates. To establish the fourth element of a prima facie case, all the plaintiff is required to do is to put forth evidence " giving rise to an inference of discrimination." Phadnis, supra, 170 Conn.App. 87-88. The plaintiff only has the burden of production, not a burden of proof at this stage. Id., 87. Indeed, there are other federal district court cases that agree with this analysis. See Hurston v. Henderson, United States District Court, Docket No. SA-00-CA-1066, (W.D.Tex. June 10, 2002) (summary judgment denied in race and age discrimination case where postal service used rule of three selection process). The plaintiff is not asking the court to undermine the CBA, but to look into alleged discrimination and/or retaliation by the town in carrying out the CBA's process for promotions. As such, the plaintiff has made a prima facie claim of discrimination against the defendant and the defendant's motion for summary judgment on this ground is denied.
IV
LEGITIMATE NONDISCRIMINATORY REASON
As set forth above, once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its decision regarding the promotion. The defendant's burden at this point is one of production, not one of persuasion. Craine v. Trinity College, supra, 259 Conn. 643. The defendant argues that it has shown a legitimate nondiscriminatory reason for not promoting the plaintiff because the GBOPC interviewed all candidates, the interviews were scored, the officers that were promoted scored higher than the plaintiff during the interview process, that the candidate's performance during the interview process is taken into consideration by the GBOPC in making its final determination, and the GBOPC has promoted officers to sergeant following their filing of a workers' compensation action and/or CHRO claim. The defendant's memorandum reads: " The GBOPC interviewed the plaintiff and other candidates and determined that in their estimation other candidates were better qualified to be promoted."
The plaintiff counters that a genuine issue of material fact exists as to whether or not the defendant discriminated against the plaintiff in refusing to promote him. The plaintiff's position is that the defendant's nondiscriminatory reason that it was the plaintiff's poor interview with the GBOPC is flawed in that an interview with the commissioners is not an element of the promotional process.
Article 36 of the CBA, titled " Promotional Procedures, " provides in relevant part the following: " Section 1. Promotional examinations will be given for the following ranks when necessary to fill vacancies within the department when deemed necessary or when a new position in these ranks is created by the Board of Police Commissioners. Section 2. If all minimum qualifications are met, including but not limited to personnel records, the Board of Police Commissioner shall subject each candidate to a written, and oral or assessment center examination by impartial examiners for the rank of Sergeant Grade B, Lieutenant and Captain. Candidates must pass the written test with a 70 [percent] score or higher to be eligible for the oral or assessment center. All candidates who successfully pass the written and oral or assessment center examination may be given medical examinations. For those who pass the medical examinations, the result of the combined written and oral or assessment center examinations will result in the issuance of an eligibility list in rank order of those passing the examination. For each position to be filled, the Police Commission and the Chief will interview candidates as necessary and the Police Commission may select one . . . of the three . . . highest ranking applicants remaining on the list at the time each position is filled . . . Section 4. The following procedures shall apply when the Department is filling vacancies by promotional examination; a) Promotion shall be based on overall scores obtained as follows: 1) Written exam: fifty percent . . . 2) Oral exam or assessment center: forty percent . . . 3) Longevity: [ten percent] . . ." (Emphasis added.)
There are three elements considered by the GBOPC when deciding on who to select for promotion. Only where it is deemed " necessary" is the GBOPC to interview candidates. This begs several questions that the court finds material to this matter: why was an interview deemed necessary in this instance? Are candidates always interviewed by the GBOPC for the rank of sergeant Grade B? If so, how does this affect the decision making process? How is the interview scored and how is this then calculated into the formula provided by the CBA? Viewing the evidence in a light most favorable to the nonmovant, there are material facts at issue. There is a question about the thought process of the GBOPC and the GBOPC's intent. " A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue . . . Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Langner v. Stop & Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV-95-0377385, (January 27, 2000, Licari, J.). In the present case, the plaintiff was consistently one of the top three candidates. The plaintiff was passed over for the two other candidates, as well as the fourth and fifth place candidates who moved into the top three after the others were promoted. The defendant's nondiscriminatory reasons are broad claims, not specific to the plaintiff. For instance, the defendant argues that each candidate was asked the same questions in the GBOPC interviews. That is to be expected, but says nothing as to how the answers were scored. Moreover, the necessity of an interview by the GBOPC, and their subsequent decision making, with the Chief and Deputy Chief present, and allowing them to provide their input, raises issues regarding the opportunity for discriminatory and/or retaliatory action.
V
CLAIM PURSUANT TO GENERAL STATUTES § 31-290a
In the third count, the plaintiff claims the defendant violated General Statutes § 31-290a by not promoting him in retaliation for filing a workers' compensation claim in 2011. The defendant argues that the plaintiff has not provided a scintilla of evidence that the plaintiff was not promoted for exercising his rights under the Workers' Compensation Act, and also argues that it has provided evidence that the GBOPC has promoted officers who have filed claims in the past. The plaintiff counters this by arguing that he has presented evidence that the defendant knew of his workers' compensation claim in 2011, threatened him with prosecution for pursing the claim at that time, and while the promotional process was taking place, the defendant was an active participating party in the formal hearing process at the workers' compensation commission.
" General Statutes § 31-290a was designed to protect plaintiffs who file for workers' compensation benefits and 'is in essence a statutorily created tort deriv[ed] from the action for wrongful discharge set forth in Sheets [v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)].' Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 52, 578 A.2d 1054 (1990) . . . In order to establish a prima facie case under General Statutes § 31-290a, the plaintiffs bear the initial burden of demonstrating discrimination by a preponderance of the evidence . . . The plaintiffs must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employees because they had exercised their rights under the Workers' Compensation Act . . . Without some proof of an improper motive, the plaintiffs' case must fail . . ." (Citations omitted.) Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 365-66, 588 A.2d 652 (1991). " In order to meet the initial burden of proof in a claim arising under General Statutes § 31-290a, the plaintiffs . . . have . . . to present some evidence of the defendant's discriminatory intent." Id., 369.
First, as to the defendant's main contention that the plaintiff has not provided a scintilla of evidence that he was not promoted because he exercised his rights under the Workers' Compensation Act, analyzed in the light most favorable to the nonmovant, the court disagrees with the defendant. The plaintiff has alleged that Jeffrey Hutchinson is the Chief of Police and that John Dunn is the Deputy Chief of Police. The plaintiff has alleged that he suffered a workplace injury and that he missed significant time because of that injury. The plaintiff has also alleged that the injury was deemed compensable by the Workers' Compensation Commission and that the defendant did not promote him in part because he pursued his claims for workers' compensation benefits.
The evidence demonstrates that while the GBOPC makes the decision on who gets promoted, the Chief and Deputy Chief are both in the room and the GBOPC seeks the opinion of the Chief and Deputy Chief. Pl.'s Ex. 4, p. 25. There also appears to be a difference of opinion as to the necessary elements required to make the decision on who to promote. The CBA outlines a written exam, oral exam or assessment center by a neutral party, and longevity . At least one of the Commissioners believes that the three elements are a written exam, oral exam, and GBOPC interviews . Pl.'s Ex. 4, p. 30.
In addition, the evidence submitted further demonstrates that Chief Terribile, the chief before Chief Hutchinson, did not allow the plaintiff to attend his workers' compensation hearing regarding his on the job injury. Pl.'s Ex. 3, p. 49. The plaintiff won his workers' compensation case, but the parties were still arguing about the compensation owed; Pl.'s Ex. 3, p. 50. Further, once the plaintiff was fit for duty, and submitted a request for compensation based on the state law for mileage, and for the time that he went to therapy, he was subsequently called into the chief's office. Pl.'s Ex. 3, p. 54. Chief Terribile and then Deputy Chief Hutchinson were present and allegedly threatened the plaintiff to have him arrested for felony larceny and defrauding the public community for putting in overtime hours. Pl.'s Ex. 3, p. 54. Despite nothing resulting from these threats, the plaintiff noted that this sort of experience happened under Chief Terribile all the time. Pl.'s Ex. 3, p. 54. Although the plaintiff testified that Chief Hutchinson treated him fairly, it appears that Chief Hutchinson knew about the ongoing workers' compensation matter. The defendant was also an active participating party in the formal hearing process in front of the Workers' Compensation Commission.
Chief Hutchinson was also present when the GBOPC made decisions regarding which officers would be promoted to sergeant grade B. Lastly, the defendant's point about promoting other officers to the rank of sergeant grade B following their filing of workers' compensation claims says nothing specific to the plaintiff. A blanket statement that others have been promoted does not take into account the specific situation and circumstances for this plaintiff in this matter. As such, this court concludes that a genuine issue of material fact remains as to whether the defendant discriminated/retaliated against the plaintiff.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied in its entirety.
(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter. (b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers' Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers' compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorneys fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.
" The cases rejecting the 'but-for' analysis for CFEPA claims are readily identifiable. See, e.g., Hasemann v. United Parcel Service of America, United States District Court, Docket No. 3:11CV554 (VLB), (D.Conn. February 26, 2013); Wagner v. Board of Trustees for Connecticut State University, Superior Court, judicial district of Hartford, Docket No. CV-08-5023775-S, (January 30, 2012, Peck, J.). The defendant, in support of the `but-for' standard, cites Marasco v. Connecticut Regional Vocational-Technical School Systems, Superior Court, judicial district of Waterbury, Docket No. CV-09-5014324-S (October 15, 2012, Dooley, J.) [54 Conn. L. Rptr. 812, ], and Miller v. Ethan Allen Global, Inc., United States District Court, Docket No. 3:10CV01701 (JCH), (D.Conn. May 24, 2012). This court disagrees with the defendant that either of these cases support the application of the `but-for' standard to CFEPA. " In Miller, Judge Hall specifically avoided the issue of which standard to apply: 'While the Second Circuit has applied the " but-for" standard to CFEPA claims . . . at least one Connecticut court has determined that, under the CFEPA, a plaintiff is only required to prove that age discrimination was a contributing or motivating factor, rather than a 'but-for' reason for the adverse employment action . . . As the court resolves Miller's age discrimination claim without reaching this section of the standard, however, the court need not resolve this disagreement.' (Citations omitted.) Miller v. Ethan Allen Global, Inc., supra, United States District Court, Docket No. 3:10CV01701 (JCH). Furthermore, Marasco is equally unavailing given that Judge Dooley seemingly applied the mixed motive theory to the CFEPA claim and the `but-for' standard to the ADEA claim, ultimately granting judgment to the defendant on both. Marasco v. Connecticut Regional Vocational-Technical School Systems, supra, Superior Court, at Docket No. CV-09-5014324-S. " The defendant correctly states that the Second Circuit has, on multiple occasions, applied the `but-for' standard to CFEPA claims. Rubinow v. Boehringer Ingelheim Pharmaceuticals, Inc., 496 Fed.Appx. 117, 118-19 (2d. Cir. 2012); Timbie v. Eli Lilly & Co., 429 Fed.Appx. 20, 21-22, n.1 (2d Cir. 2011). While the Second Circuit did not, in either case, proffer any reasons for the application of `but-for' to CFEPA claims, it affirmed summary judgment for the employers on both the ADEA and the CFEPA counts using the `but-for' standard. Rubinow v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 496 Fed.Appx. at 118-19; Timbie v. Eli Lilly & Co., supra, 429 Fed.Appx. at 21-22, n.1. Accordingly, there seems to be a split of authority between our superior courts which do not apply the `but-for' standard and the Second Circuit which does. Given that the current motion depends largely upon which standard will be applied, this court must choose a side of the split. " 'In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964 . . . the federal statutory counterpart to § 46a-60 . . . At the same time, while often a source of great assistance and persuasive force . . . it is axiomatic that decisions of the United States Supreme Court are not binding on Connecticut courts tasked with interpreting our General Statutes. Rather, Connecticut is the final arbiter of its own laws.' (Citations omitted; internal quotation marks omitted.) Vollemans v. Town of Wallingford, 103 Conn.App. 188, 199-200, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008). While '[w]e have often looked to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute . . . [W]e have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject.' (Citations omitted; internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). In Vollemans v. Wallingford, for instance, the Appellate Court decided (and the Supreme Court affirmed) that the CFEPA's 180-day statute of limitations begins to run on the plaintiff's final day of employment. Vollemans v. Wallingford, supra, 103 Conn.App. at 217-19. In doing so, the Appellate Court departed from nearly thirty years of United States Supreme Court precedent which had held that a claim under the ADEA began to run when the plaintiff was notified of the adverse employment action. Id., citing Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) and Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981). " The 'but-for' standard was considered by the United States Supreme Court in 1989. In Price Waterhouse v. Hopkins, Justice Brennan, writing for a plurality of the court, rejected the employer's argument that the employee was required to prove 'but-for' causation: 'It is difficult for us to imagine that, in the simple words " because of, " Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision.' Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). However, twenty years later, the Court adopted the `but-for' standard because of, in large part, the practical difficulties in applying the three-part burden shifting framework. Gross v. FBL Financial Services, Inc., supra, 557 U.S. at 179-80. [E]ven if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims . . . We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the " but-for" cause of the challenged adverse employment action. Id. ' " Justice Brennan's opinion rejecting the `but-for' standard in Price Waterhouse continues to make good logical sense. Moreover, while this court certainly does not question the United States Supreme Court's concern over the functional application of the burden shifting models in federal courts, there has been no suggestion that Connecticut state courts have experienced the same troubles. Even assuming that such concerns have plagued Connecticut courts, the remedy should be devised by an appellate court. Furthermore, departing from Judge Peck's decision in Wagner and creating a split of authority within our superior courts would invite its own practical difficulties. Until our appellate courts say otherwise, this court will continue to apply the 'mixed motive' and 'pretext' models discussed by our state Supreme Court in Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. at 104-05." (Footnotes omitted.) Frederick v. Gladeview, supra, Superior Court, Docket No. CV-11-6011350-S. This court in Consiglio v. Cigarette, Superior Court, judicial district of New Haven, Docket No. CV126027652S, (January 27, 2014, Wilson, J.) also rejected utilizing the " but for" standard set forth in the United States Supreme Court's decision Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 570 U.S. ___, 186 L.Ed.2d 503 (2013), which held that a plaintiff claiming retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. must establish that the defendant's retaliatory motive was the " but for" cause of his termination. In rejecting the " but for" standard, this court noted: " Accordingly, in the present case, since our Supreme Court has not yet adopted Nassar 's narrow definition of the word 'because' [in Title VII] and applied it to a claim brought under § 31-290a, the court elects not to follow Nassar, and the plaintiff may therefore establish causation by presenting evidence 'that a retaliatory motive played a part in the adverse employment action.' Mele v. Hartford, supra, 270 Conn. at 776." Consiglio v. Cigarette, Superior Court, supra, Docket No. CV126027652S. This court has also recently utilized the McDonnell Douglas standard in Colebaugh v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV-15-6057999-S, (June 12, 2017, Wilson, J.) which involved an age discrimination claim under CFEPA.