Mills v. Southern CT State Univ et al
Filing
97
ORDER granting 58 Defendants' Motion for Summary Judgment. See the attached Memorandum of Decision. The Clerk is directed to enter Judgment for the Defendants, and to close this case. In light of the entry of judgment for the Defendants, 95 Joint Motion for Extension of Time is moot. Signed by Judge Vanessa L. Bryant on 8/10/11. (Engel, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JUDITH MILLS,
Plaintiff,
v.
SOUTHERN CONNECTICUT STATE
UNIVERSITY, SAMUAL ANDOH AND
YILMA GEBREMARIAM,
Defendants.
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CIVIL ACTION NO.
3:08-cv-1270 (VLB)
August 10, 2011
MEMORANDUM OF DECISION GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [Doc. #58]
The plaintiff, Judith Mills (“Mills”), a professor at Southern Connecticut
State University (“SCSU”), filed this action against SCSU and her fellow
professors Samuel Andoh (“Andoh”) and Yilma Gebremariam (“Gebremariam”)
(collectively, the “Defendants”). Mills asserts a claim against SCSU under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (Count
One). She also asserts claims against Andoh and Gebremariam for violation of
the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §§
46a-60 et seq. (Counts Two and Three), intentional infliction of emotional distress
(Counts Four and Five), and violation of the Equal Protection Clause as enforced
by 42 U.S.C. § 1983 (Counts Six and Seven).
Presently pending before the Court is the Defendants’ motion for summary
judgment on all counts. [Doc. #58].1 For the reasons stated below, the
Defendants’ motion is GRANTED.
I. FACTUAL BACKGROUND
Mills is a female professor of Economics at SCSU, where she has been
teaching since August 1992. Defendants’ Local Rule 56(a)(1) Statement [Doc.
#58-3] (hereinafter Def. 56(a)(1) Statement) ¶ 2. Andoh is currently a professor in
the Department of Economics and Finance (the “Department”) at SCSU and has
been teaching there since 1987. Id. ¶ 1. Andoh was the Chairperson of the
Department from January 1996 to August 2009. Id. ¶ 12. In this capacity, Andoh’s
duties included, among other things, evaluating faculty renewal, tenure and
promotion. Id. ¶ 13. Andoh was not ultimately responsible for disciplining or
promoting faculty, but could only make recommendations to the Dean. Id. ¶ 14.
Gebremariam is currently a professor in the Department at SCSU and has been
teaching there since August 1990. Id. ¶ 3. Gebremariam was not responsible for
supervising any faculty at SCSU. Id. ¶ 17.
Mills alleges that she was sexually harassed by Gebremariam and
subjected to discrimination based upon her gender by Andoh, Gebremariam and
Adam Abugri (“Abugri”), another male faculty member in the Department.
Plaintiff’s Local Rule 56(a)(2) Statement [Doc. #74] ¶ 20. The harassment and
1
SCSU and Gebremariam filed their motion for summary judgment on
September 10, 2010. [Doc. #58]. On September 27, 2010, Andoh moved for
permission to join in or adopt the legal arguments contained in the memorandum
of law in support of the motion for summary judgment filed by SCSU and
Gebremariam. [Doc. #61]. The Court granted Andoh’s motion on October 4, 2010.
[Doc. #66].
2
discrimination by these individuals which gives rise to this lawsuit allegedly
began in 2004. Deposition of Judith Mills [Doc. ##58-7, 72, 73, 84-1, 85-4]
(hereinafter “Mills Depo.”) at 14. Specifically, on or about October 15, 2004,
Gebremariam was asked to compose a paragraph for an advertisement for SCSU
Interim President Philip Smith’s retirement brochure, and he sought the
assistance of Mills. Def. 56(a)(1) Statement ¶ 32. Gebremariam claims that Mills
was very helpful and, out of gratitude, he attempted to hug her. Id. ¶ 33. Mills
stopped him from hugging her and told him it was inappropriate, at which point
Gebremariam pulled back. Id. ¶ 33. Mills objects to the characterization of the
incident as an “attempted” hug, claiming that Gebremariam actually hugged her
in such a manner that he was “plastered to [her] front” and that she “pushed him
away.” Mills Depo. at 57-58.
Mills reported this incident to Gary Crakes (“Crakes”), another professor in
the Department. Def. 56(a)(1) Statement ¶ 34. Crakes in turn reported the
incident to Andoh, who told Gebremariam that the hug was inappropriate and that
he was to apologize to Mills. Id. ¶ 35. The Defendants claim that Gebremariam
placed a call to Mills that day to apologize and that Mills accepted the apology.
Id. ¶ 36. Gebremariam then followed up with Andoh and told him that he
apologized to Mills, and Andoh believed the issue was resolved. Id. ¶ 37. Mills
admits that she received a call from Gebremariam apologizing about the incident,
but testified that she believed him to be sorry that she was unhappy about it, not
sorry that he had made inappropriate contact with her. Mills Depo. at 59.
3
Subsequently, on November 19, 2004, Mills went to Andoh’s office to see
what he had done about the hug incident and to ask if he kept a “secret”
personnel file on her. Def. 56(a)(1) Statement ¶ 38. After the meeting, Mills wrote
a written complaint about the hug incident and gave it to Andoh. Id. ¶ 39. Andoh
then reported the incident to the Office of Diversity and Equality (“ODE”). Id. ¶
39. The ODE conducted an investigation and issued a report concluding that
Gebremariam did not sexually harass Mills and that the issue was resolved and
handled appropriately by Andoh. Id. ¶ 42. Other than this instance, Gebremariam
never touched Mills nor did he ever make any comments to her of a sexual
nature. Mills Depo. at 60-61. Mills further admits that Gebremariam never used
vulgar language or any sexual profanity in her presence. Id. at 73-74. She claims,
however, that Gebremariam made comments to her that she interpreted as
suggesting that she or other women were not following “the appropriate gender
role.” Id. at 60-61. Specifically, Mills recounted a conversation in which
Gebremariam asked her why she was working with small children when her
children were considerably older. Id.
In December 2004, Debra Savage (“Savage”), a female professor in the
Department, accused Gebremariam of being a woman basher and sent an email
to the Dean of SCSU in which she repeated her accusations against
Gebremariam. Def. 56(a)(1) Statement ¶¶ 46-47. The Defendants claim that,
because of these incidents, Gebremariam feared that no matter what he said or
did Mills and Savage would assert claims of harassment or threaten to sue him.
Id. ¶ 48. As a result, on September 29, 2005, Gebremariam resigned from the
4
Department Evaluation Committee (“DEC”), which is an internal Department body
that evaluates faculty members for promotion, because he felt that could not
objectively evaluate Mills or Savage for promotion in light of their claims against
him. Id. ¶ 49. Two other male faculty members also resigned from the DEC
because of emails from Savage that were accusatory in nature. Id. ¶ 49.
Subsequently, at a faculty meeting for the School of Business on October 10,
2005, Gebremariam spoke about what he described as unprofessional
accusations against him and his wife; he did not mention anyone by name. Id. ¶¶
50-51. After the meeting, Mills and Savage filed a complaint accusing
Gebremariam of verbally attacking them in the meeting. Id. ¶ 52. The DCE
investigated the claim and concluded that Mills and Savage were not
discriminated against on the basis of gender during the meeting and that there
was no indication that threatening or harmful language had been expressed. Id. ¶
53.
After this incident, Gebremariam resigned from all departmental faculty
committees that included Mills and Savage. Id. ¶ 56. Mills claims that after the
incident, Gebremariam and other male faculty members shunned her. Mills Depo.
at 74-75. She also claims that she was excluded from discussions among faculty
members, and that it got to the point that no male faculty members would engage
in conversation with her other than in passing. Id. at 75-76.
In regard to Andoh, Mills admits that he never made any sexually explicit
remarks, comments about her looks, sexual jokes, nor did he ridicule her in front
of others. Id. at 101, 103-04. Mills contends that Andoh “supported”
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Gebremariam’s harassment of her by failing to properly respond to the hug
incident. Id. at 24-25. She testified, however, that she did not report the incident
directly to Andoh, that she did not known when Crakes, who she had informed of
the incident, reported it to Andoh, and that she did not know whether Andoh
spoke with Gebremariam or what he said to Gebremariam. Id. at 84-85. Mills also
alleges that Andoh exhibited hostile behavior toward her. Specifically, she claims
that when she went to speak with Andoh about the hug incident in November
2004, he became angry and dropped his books and slapped his desk, which
frightened her. Id. at 85-89. Mills claims that during another meeting in January
2005, Andoh “stomped out of his office and slammed the door,” which caused
her to become terrified that he “might strike or hit her.” Id. at 270-74. Andoh
denies this, claiming that he never exhibited angry or violent behavior toward
Mills and always acted professionally. Def. 56(a)(1) Statement ¶ 66. Mills further
claims that Andoh was among the group of male faculty members who shunned
her. Mills Depo. at 105.
In addition, Mills claims that Abugri harassed her because he “looms.”
Mills Depo. at 26-27. She explained that when Abugri disagreed with her at
faculty meetings he would sometimes “get in her face, maybe a foot away.” Id. If
he was seated several seats away, he would sometimes “lean over the table”
toward Mills when he disagreed with her. Id. at 28-29. Mills further claims that
Abugri was dismissive of her and shunned her after she made complaints about
other male faculty members in the Department. Id. at 33-35. In 2008-2009, Abugri
sent emails to Mills about a dispute involving the selection of a Department
6
Chairperson that she claim were threatening in their tone. Id. at 37-38. For
instance, in one particular email that Mills claims was threatening, Abugri stated,
in relevant part:
Following section II.D.9 of the Senate Document on the Chair’s
selection the DPC of Economics and Finance (Drs. Mills, Savage and
Grubacic) is recalled by a majority of members in the department . . .
On that basis, the committee is still recalled. If there are any hidden
justifications, then let the department and the entire faculty on
campus know of those justifications and to who they are to be
submitted. That will require an amendment to the Senate document
on Chairs Selection. In the Dean’s memo below which Dr. Mills
prefers to call instructions, instructions?, majority of us in the
department are not aware of any discussions leading to this memo.
If that is a new standard procedure of the Senate and the Provost
outside the chairs document, then all departments and faculty on
campus must be informed. It is our collective right to have a hearing
on any subject that affects us and on which “conclusions” are drawn
about.
Def. Exh. 9 [Doc. #58-9] at 54-55. Mills admits that Abugri never touched her or
made any sexual remark toward her. Mills Depo. at 31.
Mills claims that, after complaining of harassment and discrimination by
male faculty members, she was retaliated against by being denied a promotion to
a tenured faculty position. The evaluation process for promotion to a tenured
faculty position at SCSU occurs in several steps. The process begins with
submission of an application to the DEC, which is comprised of tenured faculty
members chosen from within the candidate’s Department and which must be
comprised of at least three people. Def. 56(a)(1) Statement ¶¶ 90-92. After that
the application is evaluated by the Chairperson of the Department. Id. The
application is then considered by the Dean of the School. Id. ¶ 93. The next step
is evaluation by the University Promotion and Tenure Committee (the “P&T
7
Committee”), which is comprised of fifteen elected faculty members. Id. ¶ 94. As
a candidate’s application moves through the process, each body must review the
file and evaluate the candidate’s qualifications for promotion in the categories of
teaching or professional competence, creative activity, productive service to the
department, professional attendance and participation, and years in rank. Id. ¶
96. Each body then renders an evaluation on a scale ranging from “do not
recommend” to “very strongly recommend.” Id. ¶ 97. After all the reviews are
completed, the candidate’s file is then sent to the President, who makes the final
decision on the promotion. Id. ¶ 99.
In 2005, Mills was being considered for promotion. Savage was also being
considered for promotion in 2005. The three members of the DEC at the time
were Gebremariam, Crakes, and Robert Eldridge. Id. ¶ 101. As noted previously,
all three members resigned from the DEC because they did not believe they could
review the applications for promotion submitted by Mills and Savage in an
unbiased manner due to accusations that had been leveled against them by the
applicants. Id. Also in 2005, Andoh requested that the President recuse him from
evaluating Mills, citing fear that she would take action against him if he gave her
anything short of an exemplary evaluation. Id. ¶ 102. Andoh claims that he
played no role in the DEC members’ resignations. Id. ¶ 104. The resignations
effectively disbanded the DEC because only two other faculty members were
eligible to sit on the DEC at the time. Id. Upon learning about the resignations of
the DEC members, Andoh took steps to issue a “hardship DEC” but his request
was denied by the President. Id. ¶¶ 105-106. Mills filed a contractual grievance
8
and the remedy for that grievance provided that she could reapply for promotion
the following year and if granted, it would apply retroactively. Id. ¶ 106.
Mills reapplied for promotion in 2006, and was evaluated by the DEC, Dean,
and P&T Committee. Id. ¶ 107. The three members of the DEC in 2006 were Peter
Bodo, Mehdi Mostaghimi, and James Thorson. Def. Exh. 20 [Doc. #58-12]. Andoh
declined to write an evaluation letter. Id. The DEC and Dean recommended Mills
for promotion, but the P&T Committee did not. Def. 56(a)(1) Statement ¶ 107.
Mills does not know what criteria the P&T Committee used to make its decision.
Mills Depo. at 149-50. SCSU’s President ultimately decided not to promote Mills.
Def. 56(a)(1) Statement ¶ 109. Gebremariam was on the P&T Committee in 20062007 but recused himself from reviewing Mills’ application for promotion and
claimed that he did so in order to avoid accusations that he negatively impacted
the committee’s decision regarding Mills. Id. ¶ 95. Mills does not know the
reason her promotion was denied by the President. Mills Depo. at 110.
In addition to the denial of promotion, Mills also complains that she was
discriminated and retaliated against in various other ways. She contends that
Andoh, who was responsible for preparing teaching schedules for the
Department, denied her requests to teacher upper level courses and refused to
accommodate the schedule she asked for. Id. at 93-95. She further claims that
Andoh was slower in responding to her than he was in responding to male faculty
members, and that he often said that she was wrong about a point while agreeing
with male faculty members who said the same thing. Id. at 101-02. In addition,
she claims that male faculty members “boycotted” graduation and Economics
9
Society events that she hosted, and that students were discouraged from
participating in these events. Id. at 151-52. She also claims that students have
told her that they were worried that they would have trouble getting
recommendations if they associated with her outside of class. Id. However, she
did not identify any particular student who was discouraged from participating in
events she hosted or who were refused a recommendation for associating with
her. Id. Finally, she contends that she was labeled a “troublemaker” outside of
the Department, which made it difficult for her to deal with other deans or get
elected to University committees or participate in other career-enhancing
activities. Id. at 129-30, 143-46. Mills testified, however, that since 2006 she has
served on numerous University committees and was elected as the faculty Senate
representative from her Department. Id. at 198-99.
II. STANDARD OF REVIEW
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court “construe[s] the
evidence in the light most favorable to the non-moving party and . . . draw[s] all
reasonable inferences in its favor.” Huminski v. Corsones, 396 F.3d 53, 69-70 (2d
Cir. 2004). “[I]f there is any evidence in the record that could reasonably support
a jury’s verdict for the non-moving party, summary judgment must be denied.”
Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313,
315 (2d Cir. 2006) (internal quotation marks omitted). “The moving party bears
the burden of showing that he or she is entitled to summary judgment.”
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Huminski, 396 F.3d at 69. “[T]he burden on the moving party may be discharged
by ‘showing’ – that is pointing out to the district court – that there is an absence
of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002). “If the party moving for summary judgment
demonstrates the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence
that would be sufficient to support a jury verdict in its favor.” Burt Rigid Box, Inc.
v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
III. DISCUSSION
A. Title VII Claim Against SCSU
In Count One, Mills alleges that SCSU violated Title VII by discriminating
against her on the basis of her gender, creating a sexually hostile work
environment, and retaliating against her when she complained of gender-based
discrimination and harassment by male faculty members. The Court will address
each claim in turn.
1. Gender-Based Discrimination
Title VII prohibits an employer from discriminating against an employee
because of the employee’s race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-2(a)(1). Title VII discrimination claims are analyzed using the burdenshifting framework set forth in McDonnell Douglas Corp., v. Green, 411 U.S. 792,
802 (1973). The McDonnell Douglas standard requires that a plaintiff establish a
prima facie case of discrimination by showing that (1) she is part of a protected
class; (2) that she was qualified for her position; (3) that she suffered an adverse
11
employment action; and (4) that the circumstances surrounding the employment
action give rise to an inference of discrimination. See Weinstock v. Columbia
University, 224 F.3d 33, 42 (2d Cir. 2000). The Second Circuit has noted that the
burden of establishing a prima facie case is “minimal” or “de minimis.”
Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
If the plaintiff can establish a prima facie case, the burden shifts to the
defendant to proffer a legitimate, nondiscriminatory reason for the adverse
employment action. McDonnell, 411 U.S. at 802. As this stage, the defendant
need only proffer, not prove, the existence of a nondiscriminatory reason for its
employment decision. See Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248,
254-55 (1981). “This burden is one of production, not persuasion; it can involve
no credibility assessment.” Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 142 (2000) (citation and internal quotation marks omitted).
If the defendant meets its burden of production, the burden shifts back to
the plaintiff to show that the legitimate, nondiscriminatory reason offered by the
defendant is mere pretext for illegal employment discrimination. McDonnell, 411
U.S. at 804. “Although intermediate evidentiary burdens shift back and forth
under this framework, [t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Reeves, 530 U.S. at 143 (citation and internal quotation marks
omitted).
Here, it is undisputed that Mills is a female and therefore a member of a
protected class. It is also undisputed that Mills was qualified for her position as a
12
professor of Economics. Therefore, the Court’s analysis focuses on the third and
fourth elements of the prima facie case.
An adverse employment for purposes of a discrimination claim is a
“materially adverse change in the terms and conditions of employment” that
must be “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000) (citation omitted). Termination, demotion evidenced by a decrease in
earnings, a less distinguished title, a material loss of benefits, significantly
decreased material responsibilities, or other indicators unique to a particular
employment context may constitute an adverse employment action. Id. “Not
every action that is perceived negatively by an employee is a materially adverse
change in the terms and conditions of employment.” Klein v. New York Univ., - F.
Supp. 2d - , 2011 WL 2020880, at *7 (S.D.N.Y. Apr. 1, 2011). Mills asserts a number
of actions by faculty members at SCSU that she claims were materially adverse.
a. Failure to Promote
First, Mills claims that she was denied a promotion to a tenured faculty
position based upon her gender in 2005-2006 and 2006-2007. A failure to promote
is an adverse employment action. See Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.
2007). However, Mills has failed to present sufficient evidence to demonstrate
that she was denied a promotion in circumstances giving rise to an inference of
discrimination.
The evaluation process for promotion to a tenured faculty position at SCSU
occurs in several steps. Review of a candidate’s application by the DEC is the
13
first step in the process. The candidate’s application materials then go to the
Department Chairperson, Dean, and P&T Committee for evaluation, in that order.
The President makes the final decision on the promotion.
Mills first submitted her application for promotion in 2005. Savage also
applied for promotion in 2005. However, all three members of the DEC resigned
because they did not believe they could impartially evaluate the applications due
to the fact that Mills and Savage had leveled accusations of discrimination and
harassment against each of them. As a result, the DEC was effectively
disbanded, and the evaluation process never occurred in 2005. Mills grieved the
denial of her promotion for the 2005-2006 year. SCSU resolved the grievance by
agreeing that if Mills applied for and was promoted in 2006-2007, the promotion
would be retroactive to 2005.
Mills reapplied for promotion in 2006. The promotion process was
conducted at all levels through a final decision by the President. Both the DEC
and Dean recommended Mills for promotion. However, the P&T Committee did
not recommend her for promotion, and the President decided not to promote her.
Mills claims that she was denied a promotion due to her gender. However,
she has submitted no evidence to support this assertion. She does not present
any evidence to show that males were disproportionately promoted, or that SCSU
used different criteria in evaluating male applicants for promotion than they used
in evaluating her or females in general. She does not point to any degrading
remarks made by anyone at SCSU about her. Instead, Mills speculates that
Andoh and Gebremariam influenced the promotion decision. However, the
14
evidence in the record does not support this claim. In 2005, Gebremariam
resigned from the DEC because he did not believe he could fairly evaluation Mills
for promotion in light of the accusations of harassment she had leveled at him.
The other members of the DEC resigned as well due to similar accusations that
had been leveled against them by Mills and Savage. Andoh requested a hardship
DEC on behalf of Mills, but the President denied his request. As a result, Mills’
evaluation was conducted the following year by a different DEC. Gebremariam
was not on that DEC. In 2006, the DEC and Dean both recommended Mills for
promotion. Andoh did not submit an evaluation because he feared that Mills
would take action against him if he gave her anything short of an exemplary
evaluation. The P&T Committee decided not to recommend Mills for promotion.
Gebremariam was on the P&T Committee in 2006, but recused himself from
reviewing Mills’ application. The President ultimately denied Mills’ application for
promotion. Thus, the evidence indicates that, contrary to Mills’ unsupported
allegation, Gebremariam and Andoh played no role in her evaluation for
promotion. Mills presents no information to suggest that the P&T Committee or
the President denied her application because of gender bias.
Furthermore, even if Andoh and Gebremariam did exert influence on the
P&T Committee and caused her promotion to be denied, Mills has not produced
sufficient evidence to demonstrate that they did so because of her gender. Mills
claims that, in October 2004, Gebremariam hugged her. Apart from the hug, she
admits that Gebremariam never touched her or made any sexual remarks to her.
She claims that Gebremariam made comments that she interpreted as suggesting
15
that she or other women were not following “the appropriate gender roles.” Mills
Depo. at 60-61. However, the only specific conversation she recounted was one
in which Gebremariam asked her why she was working with small children when
her children were considerably older. Id. No reasonable juror could interpret this
fairly innocuous statement to be indicative of gender bias. Mills also complains
that Gebremariam verbally attacked her during a faculty meeting in October 2005,
which she interprets as gender discrimination. During the meeting, faculty
members discussed problems with the Business School, including the negative
interpersonal atmosphere. Gebremariam Aff., Def. Exh. 2 [Doc. #58-6] ¶ 25.
Gebremariam spoke in general terms about what he described as unprofessional
accusations against him and his wife. Id. He did not single out Mills or mention
anyone by name. Again, no reasonable juror could find Gebremariam’s general
statements about accusations that had been leveled against him which he
believed to be unfair and unprofessional to constitute gender bias on his part.
In regard to Andoh, Mills admits that he never made any sexually explicit
remarks, comments about her looks, sexual jokes, nor did he ridicule her in front
of others. Mills Depo. at 101, 103-04. She claims, however, that Andoh
“supported” Gebremariam’s alleged harassment of her. Although it is not
entirely clear what she means by this, it appears that Mills is claiming that Andoh
did not properly respond to her complaint about the hug incident. However, Mills
does not explain how Andoh’s response was deficient, and based upon the
evidence in the record it seems to have been entirely appropriate. After the hug
incident occurred, Mills reported it to Crakes, not to Andoh directly. When
16
Crakes informed Andoh of the incident, Andoh spoke with Gebremariam and told
him that the hug was inappropriate and that he was to apologize to Mills. Mills
admits that Gebremariam did call her to apologize, although she questions the
sincerity of his apology. Id. at 59. At this point, Andoh believed the issue to have
been resolved. However, approximately one month later, Mills went to Andoh’s
office to ask what he had done about the hug incident. After the meeting, Mills
provided a written complaint to Andoh and Andoh reported the hug incident to
ODE, which conducted an investigation and concluded that Gebremariam did not
sexually harass Mills and that the issue was resolved and handled appropriately
by Andoh. Contrary to Mills’ conclusory assertions, no reasonable juror could
conclude that Andoh’s response to this incident reflects gender bias.
Mills also claims that Andoh, Gebremariam, and other male faculty
members “shunned” her. But there is no evidence that the shunning, if it did
occur, was based upon her gender. Instead, the evidence in the record suggests
that Andoh and Gebremariam avoided Mills because she repeatedly accused
them of harassment and discrimination and they feared that she would do so
again regardless of what they said or did. Mills also claims that Andoh became
angry during meetings with her. In one instance, he allegedly dropped his books
and slapped his desk. Mills Depo. at 85-89. During another meeting, he allegedly
“stomped out of his office and slammed the door.” Id. at 270-74. However, Mills
provides no evidence that Andoh’s frustration with her had anything to do with
her gender.
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In summary, the only evidence that Mills submits to support her allegation
that Andoh and Gebremariam discriminated against her because of her gender is
her deposition testimony containing her own unsubstantiated and conclusory
beliefs. This is insufficient to create a genuine issue of material fact for trial. See
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (“To allow a party to defeat a
motion for summary judgment by offering purely conclusory allegations of
discrimination, absent any concrete particulars, would necessitate a trial in all
Title VII cases.”). Furthermore, there is no evidence that Andoh or Gebremariam
played any role in SCSU’s decision not to promote her to a tenured faculty
position. Nor is there any evidence that the P&T Committee, which recommended
that her application for promotion be denied, or the President, who ultimately
denied her promotion, harbored gender bias. Accordingly, Mills cannot sustain a
gender discrimination claim based upon her failure to be promoted.
b. Course Assignments
Next, Mills contends that Andoh denied her requests to be assigned to
teach upper level classes and refused to accommodate the schedule she wanted.
“A university professor’s dissatisfaction with course assignments when he or
she ‘does not allege any resulting loss in wages’ is not an adverse employment
action.” Klein, 2011 WL 2020880, at *10 (quoting Boise v. Boufford, 121 Fed.
Appx. 890, 892-92 (2d Cir. 2005)). Mills has not offered any evidence that the
courses she was assigned impacted her compensation or other material benefits.
Therefore, her course assignments and schedule do not constitute adverse
employment actions.
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Furthermore, there is no evidence that her course assignments were made
in circumstances giving rise to an inference of discrimination. Mills alleges that
Andoh gave her less favorable course assignments than he gave male
colleagues. However, she offers nothing more than conjecture and conclusory
allegations that Andoh gave preferential course assignments to male professors.
See Babcock v. New York State Office of Mental Health, No. 04 Civ. 2261 (PGG),
2009 WL 1598796, at *4 (S.D.N.Y. June 8, 2009) (“Conclusory statements that
‘similarly situated’ employees outside the protected class were treated more
favorably are not sufficient to defeat summary judgment.”). During her
deposition, Mills admitted that she does not know what classes were requested
and received by her male colleagues. She could only identify one course,
Intermediate Economics, that she would have liked to have taught but was not
given an opportunity to teach. Mills Depo. at 313-15. This class was generally
assigned to a male professor, Dr. Bodo. Id. at 100. When asked about her course
load from Fall 2005 to Fall 2010, Mills testified that she could not recall any
specific course that she requested and was denied. Id. at 302, 312. Mills also
testified that she was assigned several courses that she enjoyed teaching,
including upper level courses, graduate MBA courses, independent study
courses, and “LINKS” courses, which are smaller in size than regular classes. Id.
at 299-302, 305, 308-12. Mills also asserts that she had difficulty getting her
classes scheduled around faculty Senate meetings. However, she admitted that
in each instance Andoh ultimately changed her schedule so that she could attend
the meetings. Id. at 316-18.
19
As Department Chairperson, Andoh was required to balance a number of
competing interests when preparing the course schedule. Andoh Decl. [Doc. #585] ¶¶ 37-40. He had to balance the preferences of each professor for courses and
times with classroom availability and student interests and needs. Id. Andoh
sought faculty input about their preferences and tried to accommodate each
faculty member’s preferences to the extent possible. Id. The fact that Mills was
not permitted to teach one course that she wanted to teach and that Andoh may
not have accommodated her preferred schedule in every regard simply does not
give rise to an inference that she was subjected to discriminatory treatment on
the basis of her gender.
c. Other Actions
Mills also complains of a number of other actions, including Andoh’s lack
of promptness in responding to her, other faculty members “shunning” her and
“boycotting” events that she hosted, students being discouraged from
associating with her outside of class and being warned that they may not get
recommendations if they did so, and being labeled a troublemaker outside the
Department, which she claims negatively influenced her ability to serve on
University committees or engage in other career-enhancing activities. However,
she presents no evidence that any of these actions rose to the level of a
“materially adverse change in the terms and conditions of employment.”
Galabya, 202 F.3d at 640.
Moreover, Mills’ assertion that these actions were taken on the basis of her
gender is entirely speculative and does not support an inference of
20
discrimination on the part of anyone at SCSU. Indeed, in many instances the
testimony she cites fails to demonstrate that these actions even occurred at all.
For example, Mills claims that students were discouraged from attending events
she hosted and told that if they associated with her, certain male faculty would
not give them recommendations. She claims that Andoh made these statements
to students. However, she testified that she is not aware of a single student who
was denied a recommendation by Andoh or Gebremariam. Mills Depo. at 345-46.
Similarly, Mills claims that she was labeled a “troublemaker” and that faculty
members inside her Department negatively influenced people outside the
Department against her. However, when asked to recount specific instances,
Mills could only describe one brief hearsay conversation between Gebremariam
and Dr. Onley of the Political Science Department in 2009, which she described as
a “run-in” between the two men, during which Gebremariam allegedly said that
“he was sort of hoping that we had gone away.” Mills Depo. at 146-47. Apart
from this single incident, Mills surmised that people outside the Department had
been negatively influenced based upon the “reaction” that she received when she
spoke during committee meetings, such as when people looked at her with
“surprise” if she made a good point that contributed to the discussion. Id. This
type of conjecture is insufficient to create a genuine issue of material fact for trial.
Mills further claims that, as a result of being labeled a “troublemaker,” she had
difficulty serving on University committees or participating in other careerenhancing activities. However, she offers no concrete evidence to support this
claim. To the contrary, Mills testified that since 2006 she has served on
21
numerous University committees and was elected to the faculty Senate from her
Department. Id. at 198-99.
In sum, the only evidence that Mills cites in support of her discrimination
claim is her own deposition testimony, which is replete with conclusory and selfserving accusations that cannot create a genuine issue of material fact for trial.
See Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999) (“Statements
that are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.”); Lizardo v. Denny’s,
Inc., 270 F.3d 94, 104 (2d Cir. 2010) (“[A] jury cannot infer discrimination from thin
air.”).
2. Hostile Work Environment
Under Title VII, it is unlawful for an employer to subject employees to a
discriminatorily hostile or abusive work environment. Harris v. Forklift Sys. Inc.,
510 U.S. 17, 21 (1993); 42 U.S.C. § 2000e-2(a)(1). To prove that a workplace is
actionably “hostile” under Title VII, a plaintiff must demonstrate that: (1) she
“subjectively perceive[d] the environment to be abusive;” (2) the conduct was so
“severe or pervasive” that it created an “objectively hostile or abusive work
environment”, meaning “an environment that a reasonable person would find
hostile or abusive;” and (3) the conduct created an environment abusive to
employees “because of their race, gender, religion or national origin.” Harris, 510
U.S. at 21-22.
The Supreme Court has established a non-exhaustive list of factors
relevant to determining whether a workplace is so severely or pervasively hostile
22
as to support a Title VII claim. These include “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; whether the conduct unreasonably interfered with plaintiff's
work; . . . whether it unreasonably interferes with the employee's work
performance[;]” and “[t]he effect on the employee's psychological well-being[.]”
Id. at 23.
To determine “whether an environment may be considered sufficiently
hostile or abusive to support [a Title VII claim],” courts must consider “the totality
of the circumstances.” Williams v. Westchester, 171 F.3d 98, 100 (2d Cir.1999)
(citing Harris, 510 U.S. at 23). The factors outlined above must be evaluated
“cumulatively” so that the Court can “obtain a realistic view of the work
environment.” Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir.1997)
(citations omitted). This includes evaluating the “quantity, frequency, and
severity” of the discriminatory incidents. Id. “In order to meet [her] burden, the
plaintiff must show more than a few isolated incidents of [gender-based]
enmity[.]” Williams, 171 F.3d at 100. Instead, the plaintiff “must establish that
[her] workplace was permeated with instances of [sexually] discriminatory
conduct such as ‘discriminatory intimidation, ridicule, and insult,’ such that ‘the
environment would reasonably be perceived, and is perceived, as hostile or
abusive.’” Id. (citations omitted).
Furthermore, the alleged hostility must be generated on the basis of a
protected characteristic. As the Second Circuit has noted, federal law “does not
guarantee a utopian workplace, or even a pleasant one. Indeed, Title VII is not a
23
civility code.” McGallum v. Cedar Graphic, Inc., 609 F.3d 70 (2d Cir. 2010).
Personality conflicts between employees are not the business of the federal
courts. Vore v. Indiana Bell Telephone Co., Inc., 32 F.3d 1161, 1162 (7th Cir.
1994). The fact that a supervisor is rude, disrespectful, yells at or criticizes an
employee will not support a hostile work environment claim in the absence of any
connection to a protected characteristic. See Breeding v. Arthur J. Gallagher and
Co., 164 F.3d 1151, 1159 (8th Cir. 1999).
Much of the evidence that Mills cites in support of her hostile work
environment claim is the same as that used to support her discrimination claim.
Mills alleges that Gebremariam inappropriately hugged her in October 2004. She
claims that Gebremariam made a comment about her working with small children
that she interpreted to suggest that she was not following appropriate gender
roles. She further alleges that Gebremariam spoke in general terms about
unprofessional accusations against him and his wife during a faculty meeting in
October 2005, which Mills construed as a verbal attack on her. She contends that
Andoh “supported” Gebremariam’s harassment of her by failing to respond
properly to her complaint about the hug incident, even though Andoh instructed
Gebremariam to apologize to her and later referred the matter to OCE for an
investigation. She also alleges that Andoh engaged in threatening behavior
toward her during two meetings, in one case dropping his books and slapping the
desk and in another instance slamming his office door.
In addition, Mills asserts that another male faculty member, Abugri,
harassed her because he “looms,” which she described as “getting in her face,
24
maybe a foot away,” or “leaning over the table” toward her when he disagreed
with her at faculty meetings. Mills Depo. at 26-29. She further claims that Abugri
sent emails to her discussing the selection of a new chairperson which were
“threatening in tone,” including an email in which Abugri noted that a committee
on which Mills had been a member had been recalled and expressed his view that
if a new procedure was being implemented regarding the chair selection process
all faculty members needed to be informed and had the right to a hearing on the
matter. Mills Depo. at 37-38. Contrary to Mills’ assertion, however, there is
nothing in the emails that could reasonably be construed as a threat. Instead,
Abugri appears to have been merely expressing his disagreement with Mills.
Finally, Mills claims that Andoh, Gebremariam, Abugri, and other male
faculty members created a hostile work environment by “shunning” her and
excluding her from discussions between faculty members.
The Court holds that the evidence submitted by Mills is insufficient as a
matter of law to demonstrate that the workplace was permeated with instances of
“severe or pervasive” discriminatory conduct based upon her gender. “Usually,
a single isolated instance of harassment will not suffice to establish a hostile
work environment unless it was ‘extraordinarily severe.’” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (citation omitted). Thus, Mills must
demonstrate “either that a single incident was extraordinarily severe, or that a
series of incidents were sufficiently continuous and concerted to have altered the
conditions of her working environment.” Id. Mills does neither. Gebremariam’s
hug, which apparently was in gratitude for Mills’ assistance on a project and
25
which could be construed as non-sexual, clearly was not severe enough to give
rise to a hostile work environment claim. See, e.g., Tabachnik v. Jewish
Theological Seminary of America, No. 03 Civ. 2759(HB), 2004 WL 414826, at *3
(S.D.N.Y. Mar. 4, 2004) (“Merely hugging a subordinate in an effort to console,
touching a subordinate’s thigh during a meeting when such conduct could be
construed as non-sexual in nature, and stating one’s love for a subordinate in a
telephone message, do not collectively establish a hostile work environment.”);
Feliciano v. Alpha Sector, No. 00 CIV. 9309(AGS), 2002 WL 1492139, at *8 (S.D.N.Y.
July 12, 2002) (rejecting hostile work environment claim where supervisor
complimented plaintiff, attempted to hug her, stated on one occasion that he
wanted to “lay with” her, and kissed her).
The remaining incidents cited by Mills, including Gebremariam’s statement
during the faculty meeting, Gebremariam’s comment about Mills working with
small children, Andoh’s response to her complaint about the hug by
Gebremariam, Andoh’s expressions of frustration during meetings with her, and
Abugri’s emails and his “looming” over her when he disagreed with her, were
either entirely appropriate or fairly innocuous behaviors that do not give rise to a
hostile work environment claim. Mills seems to have interpreted any expression
of disagreement with her as harassment. However, Title VII is not a “general
civility code for the American workplace.” Oncale v. Sundowner Offshore Servs.,
Inc., 235 U.S. 75, 80 (1998). Participating in a workplace, particularly an academic
environment like SCSU, necessitates debate and disagreement that may become
vigorous at times. Nothing in Mills’ deposition testimony suggests that anyone at
26
SCSU crossed the boundaries of permissible debate and subjected her to
“discriminatory intimidation, ridicule, and insult.” Williams, 171 F.3d at 100. Nor
does the fact that Mills’ male colleagues shunned her or avoided her at work
constitute an actionable offense under Title VII. See Quarles v. Bronx Lebanon
Hosp. Center, 75 Fed. Appx. 846, 848 (2d Cir. 2003) (allegations that plaintiff was
“shunned, kept away from meetings he usually attended, and his authority was
undermined” did not give rise to a hostile work environment claim). As another
district court has observed, “[s]tepping out of one’s home into the working world
means, to some extent, subjecting oneself to the slings and arrows of daily life.
Title VII does not codify Emily Post’s rules of etiquette.” Feliciano, 2002 WL
1492139, at *8. Furthermore, there is no evidence that any of the foregoing
conduct was based upon Mills’ gender. Therefore, Mills cannot establish a
hostile work environment claim.
3. Retaliation
The anti-retaliation provision of Title VII prohibits an employer from
discriminating against an employee because that individual “opposed any
practice” made unlawful by Title VII or “made a charge, testified, assisted or
participated in” a Title VII proceeding or investigation. 42 U.S.C. § 2000e-3(a).
Title VII retaliation claims are analyzed under the same McDonnell Douglas
burden-shifting framework employed for claims of discrimination. Terry v.
Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).
To establish a prima facie case of retaliation under Title VII, a plaintiff must
make four showings: (1) that she was engaged in “protected activity”; (2) that her
27
employer was aware of that activity; (3) that she suffered an adverse employment
action; and (4) that there was a causal connection between the protected activity
and the adverse employment action. Manoharan v. Columbia Univ. Coll. of
Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). As with discrimination
claims, if the plaintiff makes the prima facie showing, the burden shifts to the
defendant to proffer a legitimate, nondiscriminatory reason for the adverse
action. Johnson v. County of Nassau, 480 F. Supp. 2d 581, 600 (E.D.N.Y. 2007). If
the defendant does so, the burden shifts back to the plaintiff to demonstrate that
the defendant’s proffered reasons are simply a pretext for retaliation. Id.
The Defendants do not dispute that Mills engaged in protected activity by
complaining of alleged employment discrimination. See Hubbard v. Total Comm.,
Inc., 347 Fed. Appx. 679, 680-81 (2d Cir. 2009) (“‘Protected activity’ includes
opposition to a discriminatory employment practice or participation in any
investigation, proceeding, or hearing under Title VII.”); Sclafani v. PC Richard &
Son, 668 F. Supp. 2d 423, 437 (E.D.N.Y. 2009) (noting that even “informal
complaints to supervisors constitute protected activity under Title VII”). There is
also no dispute that SCSU was aware of Mills’ complaints, since they were
reported to the ODE and the ODE conducted investigations into her allegations.
Therefore, the Court must consider whether Mills suffered an adverse
employment action and, if so, whether there was a causal connection between the
protected activity and the adverse employment action.
Unlike in the context of a disparate treatment claim, a materially adverse
action for purposes of a retaliation claim need not affect the plaintiff’s terms and
28
conditions of employment. Cunningham v. New York State Dept. of Labor, 326
Fex. Appx. 617, 620-21 (2d Cir. 2009). In the retaliation context, the Supreme
Court has adopted an objective standard based upon a hypothetical reasonable
employee. Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006)
(internal quotation marks omitted). Under that standard, “[w]hether a particular
[action] is materially adverse depends upon the circumstances of the particular
case, and should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.” Id. (citation and internal
quotation marks omitted). Nevertheless, “petty slights or minor annoyances that
often take place at work and that all employees experience do not constitute
actionable retaliation.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting
White, 548 U.S. at 68).
In order to demonstrate a causal connection between the protected activity
and the adverse employment action, the plaintiff must show “that a retaliatory
motive played a part in the adverse employment action.” Kessler v. Westchester
County Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).
a. Failure to Promote
Mills’ failure to be promoted qualifies as an adverse employment action.
However, she has failed to present sufficient evidence to show a causal
connection between her complaints of discrimination and her failure to be
promoted. Gebremariam, the person who Mills formally accused of harassing
her, resigned from the DEC when she applied for promotion in 2005, as did the
other two members of the DEC. As a result, Mills was evaluated the following
29
year by a new DEC and promised retroactive effect of any resulting promotion.
That DEC recommended her for promotion, as did the Dean of the Business
School. Andoh, who Mills also accuses of discriminating against her, played no
role in the evaluation process. The P&T Committee decided not to recommend
Mills for promotion. Gebremariam, who was on the P&T Committee in 2006,
recused himself from reviewing Mills’ application. Ultimately, the President
decided not to promote Mills. Although Mills speculates that Andoh and
Gebremariam influenced the P&T Committee against her, she offers no evidence
whatsoever to support this allegation.
Nor does Mills provide circumstantial evidence of retaliatory animus, such
as, for example, evidence of disparate treatment of employees who engaged in
similar conduct or a showing that her complaints of discrimination were followed
closely in time by the adverse action. See Sumner v. Postal Service, 899 F.2d
203, 209 (2d Cir. 1990); Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000). Mills made her complaint regarding the hug incident in late 2004, and
claims that Gebremariam verbally attacked her in October 2005. The P&T
Committee made its decision not to recommend Mills for promotion on March 2,
2007, and the President denied Mills’ application for promotion on April 13, 2007,
nearly two-and-a-half years after her complaint about the hug and a-year-and-ahalf after her complaint about Gebremariam’s statements during the faculty
meeting. The passage of time between Mills’ complaints and SCSU’s decision
not to promote her defeats any retaliatory nexus in the circumstances of this
case. See, e.g., Cunningham v. Consolidated Edison Inc., No. CV-03-3522(CPS),
30
2006 WL 842914, at *19 (E.D.N.Y. Mar. 28, 2006) (holding that a passage of two
months between protected activity and adverse employment action attenuated
causal relationship); Hussein v. Hotel Employees & Restaurant Union, Local 6,
108 F. Supp. 2d 360, 367 (S.D.N.Y. 2000) (“the passage of more than two months
defeats any retaliatory nexus”); Ponticelli v. Zurich American Ins. Group, 16 F.
Supp. 2d 414, 436 (S.D.N.Y. 1998) (finding that two-and-a-half months is “hardly
the close proximity of time contemplated . . . for allowing a plaintiff to establish
the ‘causal connection’ element of [a] retaliation claim”). Thus, there is no
evidence, either direct or circumstantial, that the P&T Committee or the President
harbored any retaliatory motive against Mills.
b. Other Actions
None of the other actions that Mills complains of constitute adverse
employment actions, even under the more lenient standard applicable to
retaliation claims. Mills’ complaint about receiving an unfavorable work schedule
is simply not supported by her deposition testimony. She identified only one
class that she wanted to teach but was not given an opportunity to teach. She
also claimed that it was difficult to get her classes scheduled around Senate
faculty meetings, but admitted that Andoh ultimately changed her schedule so
that she could attend the meetings. She also admitted that she taught several
classes she enjoyed. She was unaware of what courses other professors
requested. Thus, there is no basis to conclude that Andoh retaliated against her
by assigning her an unfavorable work schedule. In creating a course schedule
for the Department, Andoh had to attempt to balance the preferences of several
31
professors with a number of other competing concerns. Mills cannot reasonably
expect her every request to be accommodated one hundred percent of the time.
Mills’ other allegations of retaliatory action are similarly unsupported by
her deposition testimony. For instance, she claims that students were
discouraged from attending events she hosted and threatened that they would
not receive recommendation letters if they associated with her. However, she
was unable to provide any specifics and did not identify a single student who was
denied a recommendation by Andoh or Gebremariam. She claims that she was
labeled a troublemaker outside the Department and as a result had difficulty
serving on University committees. However, she has presented no evidence to
substantiate this claim. On the contrary, she admits that, since 2006, she has
served on several committees and was elected to the faculty Senate from her
Department. She claims that Andoh was slower in responding to her than he was
to other faculty members. Even if true, there is no evidence that any delay by
Andoh in responding to her amounted to anything more than a “petty slight or
minor annoyance” that cannot give rise to an actionable retaliation claim. Hicks,
593 F.3d at 165.
Finally, Mills claims that Andoh, Gebremariam, Abugri and other male
faculty members shunned her after she complained of harassment and
discrimination. In the circumstances of this case, the Court does not believe that
the shunning and ostracism that Mills claims to have experienced amounts to an
adverse employment action. Given Mills’ repeated claims of discrimination and
harassment that appear to have been unfounded, the efforts taken by
32
Gebremariam, Andoh and others to avoid her unless necessary out of fear that
they would be subjected to further accusations was understandable. Moreover,
the Court does not believe that a reasonable person would be dissuaded from
making a charge of discrimination as a result of the shunning that Mills alleges
took place in this case, particularly in light of Mills’ admission that she was an
active participant in University committees and the faculty Senate. There is no
evidence that Mills was excluded from any activities that contributed significantly
to her professional development or prevented her from advancing her career.
See, e.g., Mabry v. Neighborhood Defender Service, 769 F. Supp. 2d 381, 399
(S.D.N.Y. 2011) (holding that plaintiff’s allegation that he was excluded from
management meetings did not rise to the level of a material adverse action);
Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (holding that plaintiff’s
allegations that she was kept out of the departmental information “loop” was not
sufficient to constitute retaliation); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958,
969 (8th Cir. 1999) (holding that ostracism and disrespect by supervisors did not
rise to the level of an adverse employment action). To hold otherwise would
transform Title VII into a “general civility code” for the workplace. Oncale, 235 at
80.
B. CFEPA Claim Against Andoh and Gebremariam (Counts Two and Three)
In Counts Two and Three, respectively, Mills alleges that Andoh and
Gebremariam’s conduct violated Section 46a-60 of the CFEPA. Mills does not
specify which subsections of the CFEPA apply to this claim. Section 46(a)(1)
addresses discrimination based upon a protected classification. However, there
33
is no personal liability under this subsection. See Perodeau v. City of Hartford,
259 Conn. 729, 737 (2002) (holding that “[Section] 46a-60(a)(1) does not impose
liability on individual employees”). Section 46(a)(5) refers to aiding and abetting.
Although Mills summarily argues in her memorandum in opposition that Andoh
and Gebremariam aided and abetted discrimination against her, there are no facts
pleaded in the complaint and no evidence which would support a claim for aiding
and abetting. Therefore, the only viable claims that Mills alleges is a claim for
retaliation under Section 46a-60(a)(4), which can support personal liability. See
Perodeau, 259 Conn. at 738.
It is well-established that CFEPA claims proceed under the same analysis
as federal Title VII claims. See Craine v. Trinity Coll., 259 Conn. 625, 637 n.6
(2002) (“We look to federal law for guidance on interpreting state employment
discrimination law, and the analysis is the same under both.”); Brittell v.
Department of Correction, 247 Conn. 148, 164 (1998); State v. Commission on
Human Rights and Opportunities, 211 Conn. 464, 470-71 (1989). The Court has
held that Mills has presented insufficient evidence to survive summary judgment
on her Title VII retaliation claim. Since the same analysis applies to her CFEPA
claims against Andoh and Gebremariam, the Defendants’ motion for summary
judgment is granted with respect to these claims as well.
C. Equal Protection Claim Against Andoh
and Gebremariam (Counts Six and Seven)
In Counts Six and Seven, respectively, Mills alleges that the actions of
Andoh and Gebremariam violated the Equal Protection clause as enforced by 42
U.S.C. § 1983. The analytical framework of a workplace equal protection claim
34
parallels that of a discrimination claim under Title VII. See Patterson v. County of
Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (“Most of the core substantive
standards that apply to claims of discriminatory conduct in violation of Title VII
are also applicable to claims of discrimination in employment in violation of §
1981 or the Equal Protection Clause.”), Jemmott v. Coughlin, 85 F.3d 61, 67 (2d
Cir. 1996) (“[W]hen § 1983 is used as a parallel remedy with Title VII in a
discrimination suit . . . the elements of the substantive cause of action are the
same under both statutes.”). “Once action under color of state law is
established, the analysis for such claims is similar to that used for employment
discrimination claims brought under Title VII, the difference being that a § 1983
claim, unlike a Title VII claim, can be brought against individuals.” Demoret v.
Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006).
Mills’ equal protection claims fail as a matter of law for all of the reasons
discussed in the Court’s analysis of her Title VII claim. Mills has failed to submit
evidence sufficient to establish a prima facie case of gender-based discrimination
or retaliation or to demonstrate “severe or pervasive” harassment necessary to
support a hostile work environment claim. Moreover, Andoh and Gebremariam
are entitled to qualified immunity because Mills has not shown that they violated
a clearly established constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (government officials performing a discretionary function are immune
“from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known”); Pearson v. Callahan, 555 U.S. 223, 232 (2009).
35
D. Intentional Infliction of Emotional Distress Claims
Against Andoh and Gebremariam (Counts Four and Five)
In Counts Four and Five, Mills asserts intentional infliction of emotional
distress claims against Andoh and Gebremariam, respectively. In order to prevail
on a claim for intentional infliction of emotional distress under Connecticut law, a
plaintiff must establish the following four elements: “(1) that the actor intended
to inflict emotional distress; or that he knew or should have known that emotional
distress was a likely result of his conduct; (2) that the conduct was extreme and
outrageous; (3) that the defendant's conduct was the cause of the plaintiff's
distress and (4) that the emotional distress sustained by the plaintiff was severe.”
Petyan v. Ellis, 200 Conn. 243, 253 (2006).
The question of whether a defendant’s behavior was extreme and
outrageous is initially a question for the Court to decide and only in cases where
reasonable minds may disagree does it become a question for the jury.
Bombalicki v. Pastore, 71 Conn. App. 835, 840 (2002). Courts have set a high
standard for what qualifies as extreme and outrageous. Conduct that is “merely
insulting or displays bad manners or results in hurt feelings” is not sufficient to
establish a claim for intentional infliction of emotional distress. Id. The conduct
has to be “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Id.
“In the employment context, it is the employer's conduct, not the motive
behind the conduct, that must be extreme or outrageous. An employer's adverse
yet routine employment action does not constitute extreme and outrageous
36
conduct even if based on race or other improper motives.” Robinson v. City of
New Haven, 578 F. Supp. 2d 385, 390 (D. Conn. 2008) (internal citation and
quotation marks omitted). “Routine employment action, even if undertaken with
improper motivations, does not constitute extreme or outrageous behavior when
the employer does not conduct that action in an egregious and oppressive
manner.” Conge v. Sikorsky Aircraft Corp., No.3:075-cv-1650, 2007 WL 4365676,
at *10 (D. Conn. Dec. 11, 2007).
In this case, none of the conduct that Andoh and Gebremariam allegedly
engaged in rises to the level necessary to support an intentional infliction of
emotional distress claim. No reasonable juror could conclude that
Gebremariam’s hug was “extreme and outrageous.” Nor could a reasonable juror
conclude that Gebremariam’s statements during the faculty meeting or his
reference to Mills’ work with young children qualify as “extreme and outrageous”
behavior.
Similarly, none of the conduct that Andoh is alleged to have engaged in
qualifies as “extreme and outrageous.” Mills claims that Andoh “supported”
Gebremariam’s harassment of her by not properly responding to the hug
incident. However, the record reveals that Andoh took appropriate steps to
address the incident. Mills’ dissatisfaction with the outcome of the ODE’s
investigation into the hug incident does not give rise to a claim for intentional
infliction of emotional distress. Likewise, Mills cannot assert such a claim based
upon her unhappiness with the course schedule that Andoh assigned to her.
37
The other actions that Andoh allegedly engaged in, including slapping his
desk in anger during a meeting with Mills, slamming his door after another
meeting, and failing to respond promptly to her, may have frightened or insulted
her or hurt her feelings, but they were not sufficiently egregious to support an
intentional infliction of emotional distress claim. See, e.g., Bator v. Yale-New
Haven Hospital, 73 Conn. App. 576, 577-78 (2002) (holding that plaintiff could not
sustain a claim for intentional infliction of emotional distress where his employer
ordered him to report to work while under a physician’s care, falsely accused him
of endangering a patient’s life, and subjected him to disparate treatment); Carroll
v. Allstate Insurance Co., 262 Conn. 433, 443-44 (2003) (holding that there was
insufficient evidence to support a claim for intentional infliction of emotional
distress where defendant, a fire inspector, harassed the plaintiff, whose house
had burned down, by repeatedly questioning him, making racially charged
comments, and conducting a shoddy investigation resulting in a determination
that the plaintiff set the fire deliberately); DeLeon v. Little, 981 F. Supp. 728, 738
n.8 (D. Conn. 1997) (holding that defendant’s actions did not rise to the level of
extreme and outrageous behavior where defendant’s conduct included “[giving]
orders to purchase illegal drugs, orders to stand guard while [d]efendant
ingested illegal drugs, orders to perform personal errands, orders to perform
tasks for a private employer, repeated telephone calls to plaintiff at her home,
[making] threats to terminate plaintiff’s employment and replace her with an
individual of another race, implementation of discriminatory sick time policies,
monitoring of attendance at work, and repeated degrading and humiliating
38
criticism of [p]laintiff in the presence of others.”). The fact that Andoh and
Gebremariam may have shunned and avoided Mills does not support her claims
against them for the same reason.
Finally, Andoh and Gebremariam cannot be held liable for failing to
promote Mills because there is no evidence that they were responsible for the
promotion decision. To the contrary, Andoh declined to evaluate Mills, and
Gebremariam resigned from the DEC and recused himself from evaluating Mills in
his capacity as a member of the P&T Committee. Moreover, even if they were
involved in the denial of Mills’ promotion, there is no evidence that the denial was
anything other than a “routine employment action” and thus did not constitute
extreme or outrageous behavior. See Bombalicki, 71 Conn. App. at 841 (holding
that evidence was insufficient to support claim for intentional infliction of
emotional distress where defendant’s actions included “expressing his dislike of
the plaintiff, talking about the plaintiff unfavorably to other [employees],
opposition to the plaintiff’s promotion and an ultimate decision not to recommend
the plaintiff for promotion”).
IV. CONCLUSION
Based upon the foregoing reasoning, the Defendants’ motion for summary
judgment [Doc. #58] is GRANTED. The Clerk is directed to enter judgment for the
Defendants, and to close this case.
IT IS SO ORDERED.
/s/
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 10, 2011.
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