Walsh v. City of Norwalk

Filing 38

ORDER granting the defendant's 28 Motion for Summary Judgment. Signed by Judge Donna F. Martinez on 9/30/11. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANGELA WALSH,
Plaintiff,
v.
CITY OF NORWALK
Defendant.

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CASE NO. 3:08CV1905(DFM)

RULING ON MOTION FOR SUMMARY JUDGMENT
This is a case brought under the Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"),
and the Connecticut Fair Employment Practices Act ("CFEPA"),
Conn. Gen. Stat. § 46a–60 et seq.

Pending before the court is

the defendant's Motion for Summary Judgment (doc. #28).
I.

Procedural History
The plaintiff commenced this action in December 2008 after

receiving right-to-sue letters from the Equal Employment
Opportunity Commission ("EEOC") and the Connecticut Commission
on Human Rights and Opportunities ("CCHRO").

The plaintiff

alleges that the defendant, her former employer, discriminated
against her on the basis of her gender.

(Doc. #1.)

In February

2010, the parties consented to jurisdiction by a magistrate
judge pursuant to 28 U.S.C. 636(c) and Fed. R. Civ. P. 73.
(Doc. #19.)

II.

Factual Background
The following facts are undisputed.

The plaintiff became a

member of the Norwalk Department of Police Services ("police
department") in August 1976 and eventually achieved the rank of
lieutenant.

(Doc. #28-6.)

From January 1996 to December 2004,

the plaintiff worked for twelve bid periods1 in Community
Services, six bid periods in the Patrol Division, five bid
periods in Special Services and then seven more bid periods in
the Patrol Division.

(Doc. #35-1 at 4-6.)

In December 2004, while the plaintiff was working under
Captain Rosemary Arway as a shift commander in the Patrol
Division, Arway met with Deputy Chief Mark Palmer to discuss
personnel assignments.

Following that discussion, Arway and

Palmer recommended to Police Chief Harry Rilling that the
plaintiff be transferred to another division.
2, #28-20 at 2.)

(Doc. #28-19 at

Chief Rilling concurred and planned to effect

the transfer in January 2005.

(Doc. #28-18 at 3.)

Upon hearing of the proposed transfer, the plaintiff's
husband, Captain Daniel Walsh, approached Chief Rilling to
discuss it.

As a result of that conversation, Chief Rilling

postponed the transfer.

(Id.)

The plaintiff telephoned Chief

1

A "bid period" lasts four months. (Doc. #28-18 at 2.)
Three bid periods is equal to one year.
2

Rilling, and he informed her that she could remain in the Patrol
Divison.

(Doc. #33-3 at 15.)

In September 2005, after two more bid periods in the Patrol
Division, the plaintiff was transferred to Community Services.
(Doc. #28-18 at 4.)

She replaced Lieutenant Peter Randall, who

wanted to leave Community Services.
4-6.)

(Doc. #33-1 at 12, #35-1 at

After two months, Chief Rilling offered to transfer the

plaintiff back to the Patrol Division, and she accepted.

(Doc.

#28-14, #28-18 at 5.)
The plaintiff alleges gender discrimination in the twomonth transfer to Community Services.

She filed a grievance

with the Norwalk Board of Police Commissioners, which was denied
in November 2005.

(Docs. #28-10, #28-12.)

The plaintiff filed

a separate grievance with the Connecticut Board of Mediation and
Arbitration claiming that the union contract entitled her to
choose her assignment based on seniority.

(Doc. #28-11.)

The

board denied the claim in October 2008, ruling that the union
contract entitled employees to their choice of "shift" on the
basis of seniority but not to their choice of "position
assignment."2

(Doc. #28-13.)

The plaintiff's gender

discrimination claims with the CCHRO and the EEOC were denied in
October and November of 2008, respectively.

2

(Doc. #1 at 14-15.)

This decision mirrors the board's March 1998 decision on a
similar grievance. (Doc. #28-7 at 4-5.)
3

III. Standard of Review
"The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Civ. P. 56(a).

Fed. R.

"[A] fact is 'material' if it 'might affect the

outcome of the suit under the governing law.' . . .

A fact

issue is 'genuine' if 'the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.'"

Mitchell

v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party bears the initial burden of establishing
that there are no genuine issues of material fact.

Weinstock v.

Columbia University, 224 F.3d 33, 41 (2d Cir. 2000).

Once such

a showing is made, the non-movant must show that there is a
genuine issue for trial.

Id.

The parties may support their

assertions by either "(A) citing particular parts of materials
in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations . .
. , admissions, interrogatory answers, or other materials or (B)
showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact."
P. 56(c)(1).

Fed. R. Civ.

The court may rely only on admissible evidence;

Spiegel v. Schulmann, 604 F.3d 72, 81 (2nd Cir. 2010); and must
4

view the evidence in the record in the light most favorable to
the non-movant, drawing all reasonable inferences in that
party's favor; Weinstock, 224 F.3d at 41.
IV.

Discussion
A.

Employment Discrimination Standard

Where there is no direct evidence of discrimination, Title
VII claims are evaluated under the three-step burden-shifting
analysis described in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-804 (1973).3

See Johnson v. C. White & Son, Inc., 772

F. Supp. 2d 408, 413 (D. Conn. 2011).

The plaintiff first must

establish a prima facie case by showing that (1) she is a member
of a protected class; (2) she was qualified for the position he
held; (3) she suffered an adverse employment action; and (4) the
adverse employment action occurred under circumstances giving
rise to an inference of discriminatory intent.

McDonnell, 411

U.S. at 802.
Once the plaintiff establishes a prima facie case, the
burden of production shifts to the employer to articulate a
legitimate, non-discriminatory reason for the adverse employment
action.

Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981) (citing McDonnell, at 804).

3

If the

Because Connecticut law follows Title VII in all parts
relevant to this matter, the analysis of the plaintiff's federal
and state claims is the same. See Burbank v. Blumenthal, 75
Fed. Appx. 857, 858 (2d Cir. 2003).
5

employer is able to do so, the burden shifts back to the
plaintiff to prove by a preponderance of the evidence that
employer's proffered reason was a pretext for discrimination.
Id.

"[I]f the plaintiff has failed to show that there is

evidence that would permit a rational factfinder to infer that
the employer's proffered rationale is pretext, summary judgment
dismissing the claim is appropriate."

Patterson v. County of

Oneida, 375 F.3d 206, 221 (2d Cir. 2004).

The ultimate burden

of persuasion "remains at all times with the plaintiff."
Burdine, at 253.
B.

Prima Facie Case

The defendant concedes that the plaintiff has shown prima
facie that she is a member of a protected class, was qualified
for the position she held and suffered an adverse employment
action.

However, the defendant argues that she has failed to

make a prima facie showing of discriminatory intent.

(Def.'s

Mem., doc. #28-1 at 10.)
The evidence necessary for the plaintiff to satisfy this
initial burden is de minimis.

Zimmermann v. Associates First

Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).

"[T]he mere

fact that a plaintiff was replaced by someone outside the
protected class will suffice for the required inference of
discrimination at the prima facie stage of Title VII analysis."
Id.

See, e.g., Gladwin v. Pozzi, 403 Fed. Appx. 603, 606 (2d
6

Cir. 2010) (affirming prima facie inference of race and gender
discrimination where black female replaced by white male).
Here, there is no dispute that the plaintiff, a female, was
involuntarily transferred to Community Services to replace a
male who wanted to leave that position.

These circumstances

give rise to a prima facie inference of discriminatory intent.
C.

Showing of Discriminatory Intent

The defendant argues next that the plaintiff has failed to
demonstrate that the defendant's justification for the adverse
employment action was pretext.
The defendant maintains that it transferred the plaintiff
to Community Services based on her performance as a commander in
the Patrol Division.

In support, the defendant submits the

affidavits of Chief Rilling and former deputy chiefs Palmer and
Arway.

Arway's affidavit states that, in December 2004, she and

Palmer recommended the plaintiff's removal from the Patrol
Division "based on her performance in this position with, at all
times, the goal of advancing the efficiency of the police
department."

(Doc. #28-20 at 2.)

Arway later wrote in an email

that the plaintiff "was transferred as a result of her ability
(or inability) and not because of gender."

(Doc. #28-16.)

Palmer's affidavit concurs that, in December 2004, Arway
characterized the plaintiff as a "disaster" who would call Arway
at home to discuss matters that the plaintiff should have
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handled herself.

Palmer "understood exactly what Captain Arway

meant," and they recommended transfer on that basis.
1 at 1-2.)4

(Doc. #35-

Finally, Chief Rilling's affidavit asserts that he

understood the recommendation to be "the result of the
performance and personality" of the plaintiff, and he agreed
with their recommendation.

(Doc. #28-18 at 3.)

This evidence

is sufficient to carry the defendant's burden of production.
The burden, therefore, lies with the plaintiff to prove
that the defendant's justification is pretext.

She asserts that

the police department had a longstanding practice of allowing
lieutenants to choose their assignments based on seniority.

She

also maintains that it was police department policy that
officers should not be assigned outside of the Patrol Division
for extended periods.

According to the plaintiff, her

involuntary assignment back to Community Services, where she

4

This affidavit was attached to the defendant's reply brief
in response to the plaintiff's challenge to Arway's credibility
in her opposition papers. (See Pl.'s Mem., Doc. #33 at 18.)
The Court's consideration of this document "is not improper or
unfair to defendant because 'reply papers may properly address
new material issues raised in the opposition papers . . . .'"
Wesco Distribution, Inc. v. Anshelewitz, No. 06cv13444, 2008 WL
2775005, at *6 n.3 (S.D.N.Y. July 16, 2008) (quoting Bayway
Refining Co. v. Oxygenated Marketing and Trading A.G., 215 F.3d
219, 226-27 (2d Cir. 2000) (consideration of evidence submitted
with reply papers rather than with moving papers was proper
because evidence was submitted in response to new argument made
in opposition and because objecting party: 1) was not surprised
by new evidence; 2) did not move for leave to file a sur-reply;
and 3) did not claim to have any contrary evidence to introduce
"even if it were given an opportunity to proffer it").
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previously had spent four years, was inconsistent with these
practices.

Additionally, the plaintiff contends that Chief

Rilling assigned her to replace male Lieutenant Randall in
Community Services simply because Randall preferred to move
elsewhere.

Finally, the plaintiff contends that her performance

in the Patrol Division could not have been subpar given her long
tenure in the police department.
The evidence does not support the plaintiff's contentions.
Other than the plaintiff's conclusory statement, there is no
evidence of a longstanding practice of allowing senior
lieutenants their choice of assignment.

See, e.g., Patterson v.

County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (conclusory
allegation of practice and policy was insufficient to show the
existence of genuine issue to be tried).

As indicated by the

state mediation board's ruling on the plaintiff's grievance,
police department employees were contractually entitled to bid
their shift based on seniority but not their assignment.

Nor is

there any evidence of the alleged policy prohibiting extended
assignments outside of the Patrol Division5 or of preferential
treatment of Lieutenant Randall.

5

It appears that in May 1996, the plaintiff's husband,
Captain Daniel Walsh, wrote a memo to Police Chief Harry Rilling
suggesting that it was in the best interests of the police
department not to assign officers to positions outside of the
Patrol Division for more than two to three years. (Doc. #28-9.)
9

To the contrary, the evidence shows that the plaintiff and
Lieutenant Randall both spent long periods in Community Services
and relatively shorter periods in the Patrol Division.

The

plaintiff was the Community Services lieutenant for four years
from 1996 to 1999.

She subsequently spent two years as a shift

commander in the Patrol Division, nearly two years in Special
Services and then two more years in the Patrol Division before
the transfer back to Community Services in September 2005.
Similarly, Lieutenant Randall spent two years as a shift
commander in the Patrol Division before being transferred to
Community Services in 2002, where he spent nearly four years.
Upon being replaced by the plaintiff in September 2005, he began
working in Special Services.

(Doc. #35-1 at 4-5, #35-2 at 2.)6

In sum, the evidence does not raise a rational inference
that the defendant's justification was pretext.

The plaintiff's

belief that she deserved more deference in light of her three
decades of service in the police department is not sufficient to
carry her burden of proving intentional discrimination.

There is no evidence that the police department adopted this
suggestion.
6

The court may rely on this evidence, which was attached to
the defendant's reply brief, because the plaintiff raised the
material issue of preferential treatment of Lieutenant Randall
in her opposition, did not move for leave to file a sur-reply,
and did not claim to have any contrary evidence to introduce.
See note 3, supra.
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V.

Conclusion
For the foregoing reasons, the defendant's motion for

summary judgment is granted.
This is not a recommended ruling.

The parties consented to

the exercise of jurisdiction by a magistrate judge, and the case
was transferred to the undersigned for all purposes including
the entry of judgment on February 23, 2010.

(See doc. #19.)

SO ORDERED at Hartford, Connecticut this 30th day of
September, 2011.
_______/s/_______________________
Donna F. Martinez
United States Magistrate Judge

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