Doe v. University of Hartford

Filing 103

ORDER granting 96 MOTION for Reconsideration re 91 Order on Motion for Summary Judgment and adhering to the Court's previous decision denying defendant's motion for summary judgment on plaintiff's discrimination claim. Signed by Judge Warren W. Eginton on 11/30/12. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN DOE,
Plaintiff,
v.
UNIVERSITY OF CONNECTICUT,
Defendant.

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3:09-CV-1071-WWE

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR
RECONSIDERATION
The defendant, University of Connecticut, has filed a motion for reconsideration to call the
Court’s attention to matters and controlling decisions, which counsel believes the Court overlooked
in the initial decision denying summary judgment on plaintiff’s discrimination claim pursuant to
Title VII.
Reconsideration will be granted only if the moving party identifies controlling decisions or
data that the court overlooked and that could reasonably be expected to alter the court's decision.
See Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration
may not be used simply to relitigate an issue that has been decided adversely to the movant. Joyce v.
Semple, 2012 U.S. Dist. LEXIS 150294 (D. Conn. 2012).
Defendant asserts that (1) plaintiff signed a release and waiver prohibiting this suit, (2) the
proxy or alter ego theory allows an affirmative defense, and (3) superceding Second Circuit law
allows an affirmative defense. Because these theories, if accurate, could reasonably be expected to
alter the Court’s decision, defendant’s motion for reconsideration is GRANTED.
Release and Waiver
Defendant argues that plaintiff signed a 2006 release and waiver that prohibits his current
claim. The relevant portion of the release and waiver states:
Mr. Doe and UCPEA agree that by this agreement they waive, release,

promise not to file, bring or pursue any judicial, quasi-judicial or
administrative complaint, charge, claim, suit, grievance, or action, against the
University or its present or former officers, representatives or employees
under any collective bargaining agreement, federal or state constitution,
statute, law or regulation, including but not limited to, 42 U.S.C. Sec. 1983,
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Connecticut Fair Employment
Practices Act, or with any and all common law principles, whether in tort or
contract concerning Mr. Doe's unpaid disciplinary suspension.
The release and waiver is clearly limited to potential litigation concerning plaintiff’s
unpaid disciplinary suspension. It does not act as a waiver of all potential actions regardless of
their basis. Here, plaintiff’s claim is not dependent on his unpaid disciplinary suspension.
Therefore, the release and waiver does not prohibit plaintiff’s discrimination claim.
Proxy or Alter Ego Theory
Defendant next argues that the proxy or alter ego theory does not prohibit the availability
of the Faragher/Ellerth affirmative defense. However, exclusion of the Faragher/Ellerth
defense in this case was not based on a proxy or alter ego theory. Therefore, the fact that the
proxy or alter ego theory does not prohibit the defense here is irrelevant.
Finnerty
Finally, defendant argues that the Court overlooked the controlling case law of Finnerty v.
William H. Sadlier, Inc., 176 Fed. Appx. 158 (2d Cir. 2006).
This Court relied on Min Jin v. Metro Life Ins. Co. for the proposition that “[r]equiring
an employee to engage in unwanted sex acts [in order to retain one’s job] . . . fits squarely within
the definition of ‘tangible employment actions’ that the Supreme Court announced in Faragher
and Ellerth.” 310 F.3d 84, 94 (2d Cir. 2002). Where facts support a finding of a tangible
employment action, the Faragher/Ellerth affirmative defense is not available to the employer.

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Ellerth v. Burlington Industries, Inc., 524 U.S. 742, 765 (1998).
Defendant argues that this Court should not have relied on Jin because a subsequent
Second Circuit decision, Finnerty, distinguishes Jin and supports defendant’s position that no
tangible employment action exists in this case. However, Finnerty directly supports this Court’s
decision. 176 Fed. Appx. at 161-62. While Finnerty distinguishes itself from Jin, both Finnerty
and Jin hold that sexual assault predicated on threats of termination constitutes tangible
employment action. Id.
Jin v. Metropolitan Life Ins. Co., 310 F.3d 84 (2d Cir.2002), cited by
Finnerty, is consistent with that decision. There, we concluded that the
district court erred by giving the jury a definition of tangible employment
action that excluded from consideration the fact that in order to retain her
job Jin was required to submit, and in fact did submit, to weekly sexual
assaults by her superior. Id. at 97-99. A rational juror could conclude, we
reasoned, that Jin received an official employment benefit-the retention of
her job-in return for submitting to her supervisor's physical abuse, a
scenario we characterized as “a classic quid pro quo.” Id. at 94. Here, by
comparison, Finnerty does not contend that Richards explicitly threatened
her with termination or otherwise formally altered or threatened to alter
her job responsibilities if she did not submit to his advances. There is no
evidence from which a rational juror could conclude that Finnerty suffered
a tangible employment action as a result of Richards' alleged harassment.
Id.
Defendant asserts that plaintiff failed to allege that he was threatened with termination,
and, thus, the Faragher/Ellerth defense is available to defendant. However, plaintiff’s sworn
affidavit directly contradicts defendant’s assertion:
Each time I was assaulted I begged Smith to stop. I am married and have a
family. However, Smith would repeatedly remind me that he was my boss
and he had given me my job and could take it away. He would say “you
need this job.” I was completely dependent on Smith for my livelihood. He
would tell me “you scratch my back and I will scratch yours.” I did not
report Smith’s treatment of me because I was ashamed and in fear of
losing my job.
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Here, as in Jin, plaintiff alleges that he was explicitly threatened with termination if he
did not submit to his superior’s advances. Therefore, the Faragher/Ellerth defense is not
available to defendant. As Finnerty does not alter this Court’s prior decision, summary judgment
will again be denied as to plaintiff’s discrimination claim.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is DENIED as to
plaintiffs discrimination claim.

Dated this 30th day of November, 2012, at Bridgeport, Connecticut.

____________/s/_________________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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