Nicholson et al v. Board of Trustees for the CT State Univ Sys et al
Memorandum of Decision denying 73 Motion for Judgment; denying 76 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 9/12/2011. (Candee, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BARBARA NICHOLSON, MARSHA
BEDNARSKI, and RATHIKA
BOARD OF TRUSTEES FOR THE
CONNECTICUT STATE UNIVERSITY :
SYSTEM, CENTRAL CONNECTICUT :
STATE UNIVERSITY, and
PRESIDENT JACK MILLER, in his
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
In this action, plaintiffs Barbara Nicholson, Marsha Bednarski, and Rathika
Rajaravivarma assert that the denial of their respective requests for promotions and
tenure by defendants Board of Trustees for the Connecticut State University System
(“CSUS”), Central Connecticut State University (“CCSU”) and Jack Miller, President of
CCSU, constitute violations of Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983 and the
Connecticut Fair Employment Practices Act (CFEPA).
Specifically, the complaint alleges disparate treatment of each plaintiff on the
basis of gender in violation of Title VII against CSUS and CCSU (count one); disparate
treatment of plaintiff Rajaravivarma on the basis of her race and national origin in
violation of Title VII against CSUS and CCSU (count two); a continuing course of
discrimination against plaintiff Rajaravivarma on the basis of her race and national
origin in violation of 42 U.S.C. § 1981 and § 1983 against President Miller (count three);
and disparate impact discrimination on the basis of gender in violation of Title VII and
CFEPA against President Miller, CSUS and CCSU (count four).
The parties have filed cross motions for summary judgment. Plaintiffs have
agreed that summary judgment should enter on the claim of disparate impact in
violation of Title VII and CFEPA (count four).1
The parties have filed statements of facts along with supporting exhibits and
affidavits. These materials reflect the following factual background.
At the time relevant to this action, plaintiffs Bednarski, Nicholson and
Rajaravivarma were female professors at CCSU.
Plaintiffs were members of the Connecticut State University American
Association of University Professors (“AAUP”) union. Thus, a collective bargaining
contract governed decisions concerning promotion and tenure. Pursuant to the
contract, each faculty member’s portfolio is evaluated for quality within specific
categories, which are accorded weight in the order listed: (1) “load credit activity;” (2)
creative activity appropriate to one’s field, which includes delivering papers at
professional conferences, research, study and publication; (3) productive services to
the department and university; (4) professional activity, such as attendance and
participation at conferences and workshops, membership in appropriate professional
organizations and other professional activities; and (5) years in rank.
The applicant’s Department Evaluation Committee (“DEC”), academic dean and
the Promotion and Tenure Committee (“PTC”) each make a recommendation as to
To the extent that plaintiffs allege any other violation of CFEPA, such claim is also
promotion or tenure after evaluating the applicant’s portfolio according to the specific
categories. Finally, the CCSU President recommends whether an applicant should be
promoted or given tenure after evaluating the applicant’s portfolio according to the
specific contractual categories. The President of CCSU has the authority to designate
the final list that is submitted to the Board of Trustees, which then announces the final
promotion and tenure decision.2
In 1995, plaintiff Nicholson commenced work as an Assistant Professor of
Biology. In 2001, she was promoted to Associate Professor and granted tenure. In
2005, she applied for a promotion to full professor. The DEC, Dean Susan Pease, and
the PTC recommended that Nicholson be promoted to full professor. President Miller
did not recommend her for such a promotion.
President Miller asserts that he rejected her application for promotion because
he found (1) her student evaluations to be average, (2) her teaching to be adequate but
not very strong, and (3) her creative activity to be lacking in areas of publications or
service to the university. He also noted that she had minimal work on grants.
Plaintiff Bednarski began working at CCSU as an adjunct professor of Science
Education in 1989. In 1997, Bednarski was hired into a tenure track position, and in
April 2004, she received tenure.3
During the 2005-2006 academic year, Bednarski applied for a promotion to full
professor. The DEC, Dean Pease, and the PTC recommended Bednarski for
The role of the Board of Trustees in faculty promotion and tenure is to act upon the
recommendation of the President.
Defendant Miller was not President of CCSU at that time.
promotion to full professor. President Miller did not recommend her for promotion.
President Miller asserts that he found Bednarski’s service to CCSU and her
teaching to be average at best with teaching evaluations that showed no evidence of
During the 2007-2008 academic year, Bednarski was promoted to full professor.
In 2001, plaintiff Rajaravivarma commenced her employment as an Assistant
Professor in the Computer Science Department. In September 2005, she applied for
the first time for both promotion and tenure. The DEC, Dean Pease and the PTC
recommended Rajaravivarma for promotion and tenure. President Miller did not
recommend Rajaravivarma for either promotion or tenure. According to President
Miller, he rejected Rajaravivarma because he found the quality of her work in the load
credit category insufficient to justify tenure and promotion. He noted that she had listed
17 peer-reviewed publications in her portfolio that spanned 18 years, but that 10 of
those publications were dated prior to 2001 and that 3 had yet to be presented or
published. He also found that some of the publications listed were papers that she had
presented at regional conferences, and she did not indicate that she had received
external grants or had made any attempt to obtain external funding.
The AAUP filed a grievance on behalf of plaintiffs and another female professor
regarding the denials of their applications for promotion and tenure. After the
grievances were settled, President Miller reconsidered each of the applications. As part
of this process, he requested Dean Pease to review the portfolios of Nicholson,
Bednarski and Rajaravivarma.
Upon reconsideration, Dean Pease recommended Nicholson and Bednarski for
promotion, but she did not recommend Rajaravivarma for promotion or tenure.
As part of the reconsideration process, President Miller met with the PTC to ask
questions about each applicant. Nevertheless, President Miller adhered to his prior
decisions regarding the plaintiffs, although he did recommend the other female
professor that he had previously rejected for a promotion.
During the 2005-2006 academic year, 32 faculty members applied for
promotions, 20 of whom were male and 12 of whom were female. The female
professors included 9 Caucasians, 1 African American, 1 Native American and plaintiff
Rajaravivarma, who is Indian but is identified as Asian by defendants’ records. Of the
20 male professors, 19 were Caucasians and 1 was Hispanic. Defendants promoted
19 faculty members, 15 of whom were Caucasian males. Barry Westcott, a Caucasian
male, received a promotion although the PTC had not recommended him based on his
load credit activity. The remaining four professors who received promotions were 2
Caucasian females, 1 Hispanic female, and 1 African-American female.4
Relevant to tenure applications, 13 faculty members applied for tenure. Plaintiff
Rajaravivarma was the only applicant who was rejected. Of the 12 faculty members
who received tenure, 5 were Caucasian males, 6 were Caucasian females, and 1 was
an Asian female.
James Mulrooney was granted tenure although his dean had not recommended
him for tenure. Maria Mitchell, a non-Indian female, was granted tenure despite what
plaintiffs assert was a weaker portfolio with no peer-reviewed publications, only one
The 13 faculty members who were denied promotions included 4 Caucasian males,
7 Caucasian females, 1 Native-American female, and plaintiff Rajaravivarma.
national presentation and a few local presentations.
The CCSU Affirmative Action Office conducted investigations into plaintiffs’
complaints of discrimination. These investigations concluded that there was insufficient
evidence to support the claims of discrimination.
In an email dated August 16, 2006 to Anne Ailing, Chief Human Resources
Officer for CCSU, the AAUP requested that CCSU “retain all of the 2005-2006
[promotion and tenure] files pending a potential CHRO action.” The email requested
that CCSU photocopy the complete file prior to returning any original file to an individual
faculty member. The email stated: “To the extent documents are known to be potential
evidence in anticipated or pending litigation, the employer is generally required to retain
copies so that they would be available to the plaintiff in the discovery process.”
In September 2006, defendants notified the applicants that they could pick up
In September 2008, defendants requested that applicants retain documents
related to plaintiffs’ litigation of their discrimination claims (the “2008 Litigation Hold”).
In an April 2009 email, Ailing contacted the applicants to request that each one inform
her what he or she retained of the portfolio submitted in the 2005-2006 academic year
and whether that portfolio could be reassembled; she also instructed the applicants not
to destroy or alter any portfolio documents “since they may be needed in connection
with this case.”
As of this date, only one complete and unaltered portfolio from the 2005-2006
applicant pool other than those of the plaintiffs exists.
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Only when
reasonable minds could not differ as to the import of the evidence is summary judgment
proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
The burden is on the moving party to demonstrate the absence of any material
factual issue genuinely in dispute. Am. Int’l Group, Inc. v. London Am. Int’l Corp., 664
F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the
court must resolve all ambiguities and draw all reasonable inferences against the
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof, then summary
judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party
submits evidence which is “merely colorable,” legally sufficient opposition to the motion
for summary judgment is not satisfied. Liberty Lobby, 477 U.S. at 24.
Plaintiffs’ Motion for Summary Judgment
Plaintiffs maintain that the Court should enter judgment in their favor as a
sanction for defendants’ alleged knowing spoliation of the portfolios of the other 20052006 applicants. Defendants counter that such a sanction is inappropriate because the
portfolios do not represent relevant evidence and because each portfolio belonged to
the individual applicants.
Spoliation is the destruction or significant alteration of evidence or failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable
litigation. Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457 (2d
Cir. 2007). An obligation to preserve evidence attaches to a party once that party has
notice that the evidence is relevant to litigation or when that party should have known
that the evidence may be relevant to future litigation. Fujitsu Ltd. v. Fed. Express Corp.,
247 F.3d 423, 436 (2d Cir. 2001). Once a party reasonably anticipates litigation, the
party “must suspend its routine document retention/destruction policy” and place a
“litigation hold” on the relevant documents to ensure their preservation. Doe v. Norwalk
Cmty. Coll., 248 F.R.D. 372, 377 (D. Conn. 2007). The duty to preserve extends to
those employees likely to have relevant information, who are “key players” in the case.
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).
In accordance with Federal Rule of Civil Procedure 37(b), a federal district court
may impose sanctions against a party who has spoliated evidence. West v. Goodyear
Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). A district court has broad
discretion in crafting a proper sanction for spoliation, but the sanction should promote
prophylactic, punitive, and remedial purposes. In re Terrorist Bombings of U.S.
Embassies in East Africa, 552 F.3d 93, 149 (2d Cir. 2008).
A party seeking a spoliation sanction has the burden to establish that (1) the
party having control over the evidence had an obligation to preserve it at the time the
evidence was destroyed; (2) the evidence was destroyed with a culpable state of mind;
and (3) the destroyed evidence was relevant to the claim or defense at issue. Byrnie v.
Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001).
Obligation to Preserve Evidence
In this instance, it is undisputed that defendants retained control over the
portfolios as of August 16, 2006, when the AAUP provided notice of the potential for
litigation and also requested that the portfolios be preserved.
The concept of “control” has been broadly construed. In re Flag Telecom
Holdings, Ltd. Sec. Litg., 236 F.R.D. 177, 180 (S.D.N.Y. 2006). Control does not
require that the party retain legal ownership or even actual physical possession of the
documents; a party controls documents when that party has “the right, authority or
practical ability” to obtain the documents from a non-party to the action. In re NTL, Inc.
Securities Litig., 244 F.R.D. 179 (S.D.N.Y. 2007).
Here, defendants had actual possession of the portfolios and also had the
practical ability to obtain the portfolios from the applicants, who were employees of
defendant CCSU. Defendants could have copied the portfolios prior to allowing the
applicants to take possession of the portfolios. Despite their ability to control the
preservation of the documents, defendants failed to place a litigation hold over the
portfolios or to instruct applicants to preserve the documents for potential litigation. In
fact, defendants waited more than 2.5 years to place a litigation hold on the portfolios.
Accordingly, the Court finds that defendants had an obligation to preserve the
documents as of August 16, 2006.
Culpable State of Mind
After a court has determined that a party was under an obligation to preserve the
evidence it destroyed, the court must consider whether that party acted with sufficient
culpability to warrant the imposition of sanctions. Plaintiffs have the burden of showing
that the documents were destroyed either knowingly or negligently. Byrnie, 243 F.3d at
Generally, courts within the Second Circuit have found that the failure to
preserve evidence resulting in the loss or destruction of relevant information constitutes
negligence, and, depending on the circumstances, may be gross negligence. See
Treppel v. Biovail Corp., 249 F.R.D. 111, 121 (S.D.N.Y. 2008) (collecting cases). In
Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec. L.L.C., 685
F. Supp. 2d 456, 466 (S.D.N.Y. 2010), a delay of 2 years to institute a litigation hold
supported a finding of gross negligence.
A party’s bad faith or grossly negligent destruction of evidence may be sufficient
circumstantial evidence from which a reasonable fact finder could conclude that the
missing evidence was unfavorable to that party. Residential Funding v. DeGeorge
Financial Corp., 306 F.3d 99, 109 (2d Cir. 2002). However, negligent destruction of
evidence results in spoliation sanctions only if the destroyed evidence was relevant.
Zublake, 220 F.R.D. at 220.
In this instance, defendants waited more than 2 years to place a litigation hold
after they knew of the request for preservation of the portfolios due to potential
litigation. Defendants failed to make an adequate effort to preserve the evidence both
prior to the return of the portfolios to the individual applicants and after the applicants
reclaimed the portfolios. As a result, the portfolios were destroyed, lost or altered.
Defendants’ conduct constitutes gross negligence or at least negligence. Accordingly,
the Court must consider whether the lost material was relevant.
For this purpose, relevance means more than that sufficient to satisfy Rule 401
of the Federal Rules of Evidence and instead requires “sufficient evidence from which a
reasonable trier of fact could infer that the destroyed . . . evidence would have been of
the nature alleged” by the moving party affected by its destruction. Residential
Funding, 306 F.3d at 108–09. The moving party must show that the evidence would
have been helpful in proving the asserted claims and that the party is thereby
prejudiced without that evidence. Pension Comm. of the Univ. of Montreal Pension
Plan, 685 F. Supp. 2d at 467.
Defendants argue that the portfolios do not represent relevant evidence because
President Miller did not compare the applicants’ portfolios and because such academic
determinations involve a subjective process. As discussed further in this memorandum
of decision, plaintiffs are entitled to prove that President Miller treated the applicants
differently for discriminatory reasons. For purposes of establishing disparate treatment,
plaintiffs’ proof may comprise evidence relative to the qualifications considered of the
other applicants outside the protected class. See Alungbe v. Bd. of Trs. of Conn. State
Univ. Sys., 283 F. Supp. 2d 674 (D. Conn. 2003); Hinton v. City College of New York,
2008 WL 591802 at *16 (S.D.N.Y. 2008) (comparing qualifications of plaintiff to other
male applicant for promotion). See also Graham v. Long Island R.R., 230 F.3d 34, 39
(2d Cir. 2000) (discussing evidence of similarly-situated comparators that gives rise to
inference of disparate treatment).
With only one portfolio remaining, plaintiffs are prejudiced in their ability to prove
their claims through the well-established means of using comparative evidence. Thus,
sanctions are warranted based on spoliation of the evidence.
Plaintiffs seek judgment in their favor as a sanction.
The appropriate sanction should be designed to: (1) deter parties from engaging
in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully
created the risk; and (3) restore the prejudiced party to the same position that party
would have been in absent the wrongful destruction of evidence by the opposing party.
Kronisch v. U.S., 150 F.3d 112, 126 (2d Cir. 1998). Sanctions including judgment, an
adverse inference, additional discovery and costs are available to remedy acts of
spoliation. Zimmerman v. Poly Prep Country Day School, 2011 WL 1429221 (E.D.N.Y.
2011). Generally, a trial court should not order judgment where less drastic alternatives
exist. See Dahoda v. John Deere Co., 216 Fed. Appx. 124, 125 (2d Cir. 2007).
Courts should impose the harshest sanction of judgment only where “willfulness,
bad faith, or any fault” including gross negligence on the part of the offending party has
been established. Southern New England Telephone Co. v. Global NAPS, Inc., 251
F.R.D. 82, 90 (D. Conn. 2008). Such egregious conduct warranting a terminating
sanction may include intentional destruction of evidence such as burning or shredding
documents, wiping out a computer hard drive or willful noncompliance with discovery
obligations. In re A & M Florida Properties II, LLC, 2010 WL 1418861, *5 (S.D.N.Y.
2010) (citing cases).
Defendants maintain that copying the portfolio material was not necessary
because President Miller did not compare the portfolios and because the decision to
return the portfolios was supported by the opinion of Attorney David Trainor, the
Associate Vice-Chancellor for Human Resources. Further, defendants notified plaintiffs
that they were returning the materials.
Although failure to preserve the documents by at the very least placing a timely
litigation hold on the portfolios warrants some sanction, defendants’ conduct is not so
egregious as to merit a terminating sanction. An adverse inference that the evidence
destroyed would have been unfavorable to defendants’ defense is a less harsh sanction
than judgment in plaintiffs’ favor.
As discussed further in this decision, it remains a disputed issue whether
President Miller made comparisons in his evaluation of the candidates, and plaintiffs
are entitled to prove their claims by presenting evidence to persuade a jury of disparate
treatment. Although plaintiffs will still need to prove that President Miller evaluated the
candidates on an impermissible basis, an adverse inference based on spoliation
presents a difficult hurdle for the spoliator to overcome. Zubulake, 220 F.R.D. at 220.
Relevant to the extant procedural posture of this case, such an adverse inference may
enable the non-spoliating party to survive summary judgment even in borderline cases.
Byrnie, 243 F.3d at 111.
Defendants’ Motion for Summary Judgment
Defendants argue that plaintiffs cannot establish their claims of disparate
treatment on the basis of gender and that plaintiff Rajaravivarma cannot establish
disparate treatment on the basis of race or national origin in violation of Title VII and 42
U.S.C. § 1981.5
The Court must analyze plaintiffs’ disparate treatment claims according to the
burden shifting process established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 25256 (1981). It is well settled that to establish a prima facie claim of discrimination, each
plaintiff must demonstrate that (1) she belongs to a protected class; (2) she was
performing her duties satisfactorily; (3) she suffered an adverse employment action;
and (4) the adverse employment action occurred under circumstances giving rise to an
inference of discrimination. Although a plaintiff’s initial burden is not onerous, she must
show that her termination was not made for legitimate reasons. Thomas v. St. Francis
Hosp. and Med. Ctr., 990 F. Supp. 81, 86 (D. Conn. 1998).
If a plaintiff establishes a prima facie case, a defendant must articulate a
legitimate, non-discriminatory business reason for the alleged discriminatory action. A
plaintiff must then prove by a preponderance of the evidence that the supposed
legitimate reason is actually a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993). A plaintiff may show pretext by demonstrating weaknesses,
implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate
reasons for its action. Bombero v. Warner-Lambert Co., 142 F. Supp. 2d 196, 203 (D.
Plaintiff Rajaravivarma has brought her Section 1981 claim pursuant to 42 U.S.C.
§ 1983. Section 1981 claims are governed by the same standards as those brought
pursuant to Title VII. Wright v. Monroe Community Hosp., 2011 WL 3236224, *4
In discrimination cases, courts must exercise “an extra measure of caution” in
determining whether to grant summary judgment because direct evidence of
discriminatory intent is rare and such intent must often be inferred from circumstantial
evidence found in the record as a whole. Holtz v. Rockefeller & Co., 258 F.3d 62, 69
(2d Cir. 2001). Disregard or misjudgment of a plaintiff's job qualifications may
undermine the credibility of an employer's stated justification for an employment
decision, although the court must respect an employer’s discretion with respect to
employment decisions that are not based on impermissible bias. Byrnie, 243 F.3d at
Circumstantial evidence of pretext may include evidence of departures from
procedural regularity, Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir.
1997), shifting explanations, EEOC v. Ethan Allen, 44 F.3d 116, 120 (2d Cir. 1994), or
statistics. Stratton v. Dep’t for the Aging for N.Y., 132 F.3d 869, 877 (2d Cir. 1997). A
plaintiff may also raise an inference of discrimination by showing that the employer
treated plaintiff less favorably than a similarly situated employee outside a plaintiff’s
protected group. Graham, 230 F.3d at 39.
In this instance, plaintiffs have satisfied their minimal burden to show a prima
facie case. There is no dispute that they are in a protected class and suffered adverse
employment actions. Plaintiffs have submitted statistical evidence that President Miller
recommended significantly more male candidates for promotion than women; and
evidence that he recommended for promotion and tenure certain Caucasian, male
applicants who had not received favorable recommendation from the PTC or the
Plaintiff Rajaravivarma, a female of Indian national origin, was the only applicant
to be denied tenure, although she had been recommended by the DEC, dean and PTC
at the time of President Miller’s initial review of her application. She proffers that an
inference of national origin or race discrimination is raised by the more favorable
treatment of a non-Indian female applicant who has arguably lesser qualifications.
Plaintiffs’ evidence coupled with the adverse inference afforded by defendants’
spoliation of the actual portfolios indicates that the denials of promotion and tenure
could have occurred under discriminatory circumstances. Thus, the prima facie case is
As their legitimate reason for the employment decisions, defendants maintain
that President Miller reviewed each plaintiff’s portfolio and made his decisions pursuant
to the criteria set forth in the collective bargaining agreement without comparison
among the applicants. Defendants submit that the court should not second guess
President Miller’s judgment with respect to the qualifications of the candidates.
However, plaintiffs have also proffered Miller’s notes that refer to the candidates’
qualifications as average, above average or below average. For instance, with respect
to Nicholson, he wrote that her “evaluations look about average compared to all the
others I have seen here. Which are the data distinguishing her teaching from all the
other candidates reviewed?” Thus, the evidence suggests that President Miller may
have made some comparative evaluations.
In light of the evidence raising inferences of discriminating circumstances on the
prima facie case and the adverse inference due to the spoliation of evidence, Byrnie,
243 F.3d at 111, plaintiffs are entitled to submit their proof to a jury that the promotion
decisions were animated by a gender discriminatory animus. Summary judgment will
be denied as to the claims of gender discrimination relevant to the requests for
Relevant to Rajaravivarma’s claim that she was denied a promotion due to her
race and national origin, the Court notes that a significantly higher number of
Caucasian faculty members received promotions than individuals of other races or
national origin. Such evidence coupled with the adverse inference raises genuine
issues of fact as to the animus motivating defendants’ decision.
The Court recognizes that Rajaravivarma’s assertion that she was denied tenure
on the basis of her gender is weakened by the fact that more female than male tenure
candidates were successful. However, a question of whether gender discrimination
existed remains in light of the adverse inference, the fact that the only candidate to be
rejected was female, and plaintiff’s evidence that a male professor received tenure
even though his dean had not recommended him.
Similarly, in light of the fact that an arguably less qualified female non-Indian
received tenure and the adverse inference based on spoliation, the Court will allow the
jury to determine whether Rajaravivarma’s denial of tenure was motivated by
discrimination based on race or national origin.
Accordingly, the Court will deny summary judgment on the Title VII and Section
Defendants assert that the shield of qualified immunity is appropriate in this
Under federal law, a federal officer is entitled to qualified immunity where (1) his
or her conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known, or (2) it was objectively reasonable for
him or her to believe that such conduct was lawful at the time of the challenged act.
Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). The objectively reasonable
test is satisfied if officers of reasonable competence could disagree on the legality of
the defendant officer’s actions. Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).
The right to be free from discrimination with respect to employment decisions
was “clearly established” at the time relevant to this action. Mickle v. Morin, 297 F.3d
114, 122 (2d Cir. 2002). In light of the disputed issues of fact relative to President
Miller’s decision making and the adverse inference resulting from the spoliation, the
Court cannot determine whether it was objectively reasonable or whether reasonable
officers could disagree on the legality of the challenged conduct. Accordingly, summary
judgment will be denied.
For the foregoing reasons, the cross motions for summary judgment [docs. # 73
and 76] are DENIED. However, plaintiffs are afforded an adverse inference that
defendants allowed the spoliation of the portfolio materials because such evidence was
not favorable to their defense. At the trial, the Court will instruct the jury on the adverse
inference due to spoliation.
Warren W. Eginton
Senior U.S District Judge
Dated this __12th__ day of September, 2011 at Bridgeport, Connecticut.
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