Doe v. University of Hartford
Filing
91
ORDER granting in part and denying in part 73 Motion for Summary Judgment. Defendant's motion for summary judgment is GRANTED as to plaintiff's retaliation claim. Defendants motion for summary judgment is DENIED as to plaintiff's discrimination claim. Signed by Judge Warren W. Eginton on 10/25/12. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN DOE,
Plaintiff,
v.
THE UNIVERSITY OF CONNECTICUT,
Defendant.
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3:09-cv-01071-WWE
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
Plaintiff filed this action against defendant University of Connecticut, asserting violation
of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42
U.S.C. § 2000 et seq. Specifically, plaintiff asserts that defendant discriminated against him by
subjecting him to sexual harassment and retaliated against him for making complaints about the
harassment.
Defendant has moved for summary judgment. For the following reasons, defendant’s
motion will be granted in part and denied in part.
BACKGROUND
The parties have submitted statements of facts, affidavits, and supporting exhibits. These
submissions reflect the following factual background.
Plaintiff began working for Dining Services at defendant University in August 1998. He
resigned from Dining Services on June 2, 1999. Plaintiff was later hired as a permanent
employee, holding various titles from January 2002 through March 19, 2008, when he was
terminated following a felony conviction.
After returning to work for defendant in 2002, plaintiff became a Program Aide in
defendant’s International Affairs department. Plaintiff served a temporary assignment in a higher
class as a Business Services Supervisor. However, at all relevant times, plaintiff’s actual job title
was Program Aide.
Plaintiff was arrested by University police on May 6, 2006. Defendant placed him on
administrative leave following the arrest from May 8, 2006 through October 6, 2006. Plaintiff
agreed to serve a fifteen day unpaid disciplinary suspension for “threatening and abusive conduct
towards [his] supervisors and others during and after a work-related social function.” By the
terms of the agreement, plaintiff acknowledged that further conduct of a similar nature would be
cause for discipline up to and including dismissal from his employment.
Plaintiff’s May 6 arrest resulted in a criminal conviction on June 26, 2007. Plaintiff is
not claiming the three week disciplinary suspension as part of his damages in this lawsuit.
Plaintiff was arrested again on March 9, 2007 and was charged with a felony for sexually
assaulting a minor, his supervisor’s daughter. He was convicted on January 18, 2008 of a Class
C felony. Under the terms of plaintiff’s probation, he could not have any contact with children
under the age of eighteen, other than his own children. Plaintiff is not claiming as damages in
this lawsuit that he was wrongfully dismissed from his employment.
Plaintiff’s Allegations Against His Supervisor
Plaintiff has alleged that his immediate supervisor at defendant University subjected him
to unwelcome sexual harassment, including forcing plaintiff to engage in both anal and oral sex
in the workplace, two to three times per week. Plaintiff testified that the last time he submitted
to his supervisor’s advances was March 27, 2006. The last time he was subjected to sexual
advances was May 6, 2006, immediately prior to his arrest for threatening his supervisor.
Defendant has an Office of Diversity and Equity (“ODE”) which monitors the
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University’s compliance with federal and state statutes related to diversity and civil rights,
including Title VII. ODE also serves as the University’s neutral investigative unit for internal
discrimination complaints.
At all relevant times, defendant’s civil rights policies and procedures were posted
throughout the University. Their policies can also be viewed on ODE’s website and the
University’s e-policy website. Defendant has a well publicized policy against harassment of any
kind, including sexual harassment. In accordance with state law, defendant provided diversity
and harassment prevention training to its employees.
Plaintiff filed a formal complaint with ODE on June 29, 2006. The complaint detailed
the alleged unwelcome sexual harassment by plaintiff’s supervisor. At the time of the complaint,
plaintiff was under investigation following his arrest for threatening on May 6, 2006, and was on
paid administrative leave.
Upon filing of the complaint, ODE immediately contacted both the Office of the Attorney
General and Human Resources. Defendant immediately placed plaintiff’s supervisor on paid
administrative leave while the allegations were investigated. Plaintiff’s supervisor never
returned to work at defendant University.
After investigating plaintiff’s allegations of sexual harassment against his supervisor,
ODE concluded that the supervisor had violated the University’s sexual harassment policy.
Human Resources scheduled a pre-disciplinary hearing to discipline plaintiff’s supervisor, but he
resigned before the hearing was completed.
DISCUSSION
A motion for summary judgment must be granted if the pleadings, discovery materials
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before the court and any affidavits show that 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. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A dispute regarding a material fact is genuine if there is sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). 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).
If a nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he 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 met. Liberty
Lobby, 477 U.S. at 24. The mere existence of a scintilla of evidence in support of the
nonmoving party’s position is insufficient; there must be evidence on which the jury could
reasonably find for him. See Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir.
2004).
On summary judgment, the court resolves all ambiguities and draws all permissible
factual inferences in favor of the nonmoving party. See Patterson v. County of Oneida, 375 F.3d
206, 218 (2d Cir. 2004). If there is any evidence in the record from which a reasonable inference
could be drawn in favor of the opposing party on the issue on which summary judgment is
sought, summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion
Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
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Discrimination (Sexual Harassment)
Title VII discrimination claims are analyzed under the burden-shifting framework
whereby the plaintiff must first establish a prima facie case by a preponderance of the evidence.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 251 (1981). If the plaintiff
succeeds in establishing a prima facie case, the burden of production shifts to the employer “to
articulate some legitimate, nondiscriminatory reason” for its action. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). If the employer is able to articulate a nondiscriminatory
reason for its action, the plaintiff bears the burden of showing that the employer’s proffered
reason for its action was merely a pretext for discrimination. Id. at 804.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
“discriminate against any individual with respect to his compensation, terms, conditions or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Employer liability depends on whether the alleged harassment was perpetrated by supervisors or
coworkers. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Employers are
strictly liable for harassment inflicted by supervisors, but they can assert an affirmative defense
when the harassment does not result in a tangible employment action. See id.
A tangible employment action “constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Ellerth v. Burlington
Industries, Inc., 524 U.S. 742, 761 (1998). Where facts support a finding of a tangible
employment action, an affirmative defense in not available to the employer. See id. at 765.
Defendant does not deny that plaintiff was subject to sexual harassment. Still, defendant
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argues that plaintiff was not subject to tangible employment action because plaintiff did not
suffer a demotion or a decrease in economic benefits. See Lee v. Glessing and Palantine
Nursing Home, 140 F. Supp. 2d 215 (N.D.N.Y. 2001). However, the Second Circuit has held
that “[r]equiring an employee to engage in unwanted sex acts . . . fits squarely within the
definition of ‘tangible employment actions’ that the Supreme Court announced in Faragher and
Ellerth.” Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002). Plaintiff need not
prove additional “direct economic harm.” Id. Therefore, defendant may not assert its affirmative
defense to employer liability, and defendant’s motion for summary judgment on plaintiff’s
discrimination claim will be denied.
Retaliation
To state a claim for retaliation in violation of Title VII, a plaintiff must show that: (1) he
participated in a protected activity known to the defendant; (2) the defendant took an
employment action disadvantaging him; and (3) there exists a causal connection between the
protected activity and the adverse action. Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007).
Here, plaintiff asserts that both his complaint to ODE and his resistance of sexual
advances constitute protected activity.
Plaintiff’s complaint to ODE in June, 2006 clearly qualifies as protected activity.
However, whether rejecting sexual advances, in and of itself, constitutes a protected activity is an
open question in the Second Circuit. See Reid v. Ingerman Smith LLP, 2012 WL 2700508 at *9
(E.D.N.Y. 2012). The Court adopts the view that the mere rejection of sexual advances does not
constitute a protected activity. If resisting advances constituted a protected activity, then “every
harassment claim would automatically state a retaliation claim as well.” Del Castillo v.
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Pathmark Stores, Inc., 941 F. Supp, 437, 439 (S.D.N.Y 1996). “The law protects employees in
the filing of formal charges of discrimination as well as in the making of informal protests of
discrimination, including making complaints to management,” Gregory v. Daly, 243 F.3d 687,
700-701 (2d Cir. 2001), but protection does not extend to the mere rebuke of advances. Reid
2012 WL 2700508 at *9. Thus, plaintiff’s complaint to ODE remains as plaintiff’s only
protected activity.
Plaintiff asserts that the following conduct constituted adverse actions: (1) threats and
intimidation by his supervisor; (2) a change in reporting structure imposed by his supervisor; (3)
the suspension imposed on plaintiff for threatening his supervisor; and (4) the filing of false
criminal charges in May, 2006. However, plaintiff has not offered evidence of a causal
connection between these actions and his ODE complaint. Indeed, all four of the actions began
before plaintiff filed his complaint with ODE on June 29, 2006. Plaintiff never worked with his
supervisor after his May 6, 2006 arrest. At that time, the change to plaintiff’s reporting structure
had already been implemented. Obviously, the filing of criminal charges in May, 2006 predated
plaintiff’s June, 2006 complaint. Finally, plaintiff was placed on administrative leave following
his arrest from May 8, 2006 until October 6, 2006. Although the stipulated fifteen-day
suspension was not finalized until September, the arrest, investigation, suspension, and criminal
conviction of plaintiff resulted from plaintiff’s threatening and abusive conduct during and after a
work-related social function on the night of May 5, 2006. Plaintiff has offered no evidence of a
causal connection between his suspension and his complaint to ODE. As no reasonable jury
could find a causal connection between plaintiff’s protected activity and defendant’s adverse
actions, summary judgment will be granted for defendant on plaintiff’s retaliation claim.
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CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is GRANTED in
part and DENIED in part. Defendant’s motion for summary judgment is GRANTED as to
plaintiff’s retaliation claim. Defendant’s motion for summary judgment is DENIED as to
plaintiff’s discrimination claim.
Dated this 25th day of October, 2012 at Bridgeport, Connecticut.
___________/s/__________________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE
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