Rosa v. CT Dept of Children & Families

Filing 40

ORDER granting 34 Defendant's Motion for Summary Judgment. The Clerk is instructed to enter judgment in defendant's favor and to close this case. Signed by Judge Warren W. Eginton on 10/12/11. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOE ROSA,

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Plaintiff,
v.
STATE OF CONNECTICUT,
DEPARTMENT OF CHILDREN
AND FAMILIES,
Defendant.

No. 3:09-CV-1633-WWE

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
In this action, plaintiff has filed a complaint pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e, et seq., and the Connecticut Fair Employment Practices Act, Conn.
Gen. Stat. §§ 46a-60, et seq., alleging discrimination in employment based on race and color.
Defendant State of Connecticut, Department of Children and Families (“DCF”) has filed a
motion for summary judgment. For the following reasons the motion for summary judgment will
be granted.
BACKGROUND
The parties have submitted statements of facts with accompanying exhibits and affidavits
that reveal the following factual background.
Plaintiff, a white male, has been employed with defendant DCF for twenty three years as
a Children Services Worker (“CSW”). In May, 2008, plaintiff applied for the position of Lead
Children Services Worker (“LCSW”). Three other applicants were considered.
Defendant selected an African-American female, Shantee McKissick, to fill the LCSW
position. Plaintiff has alleged that he was denied the LCSW promotion because of his race and
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color. As evidence of discrimination, plaintiff argues that he was more experienced and more
qualified than Ms. McKissick. Plaintiff had Bachelor of Arts degrees in psychology and
sociology and had partial credit toward his Masters Degree in social work. He had also been
employed by defendant as a CSW for over twenty years at the time of his LCSW application. In
contrast, Ms. McKissick had not yet completed her Bachelor of Arts degree and had been
employed by defendant for less than three years.
The work experience required for the LCSW classification is two years as a CSW. The
classification of LCSW is considered a competitive classification under the state merit system.
As such, individuals must take and pass an examination administered by the Department of
Administrative Services (“DAS”) in order to be considered for appointment. Upon passage,
applicants were interviewed by a diverse panel consisting of a white male, a Hispanic male, and
an African American female. The hiring manager was a white female.
On July 1, 2008, after being denied the promotion, plaintiff filed a complaint against DCF
with the Connecticut Commission on Human Rights and Opportunities (“CHRO”). DCF’s
Division of Diversity and Equity conducted an internal investigation based on the CHRO
complaint and found insufficient evidence to believe that discrimination occured.
Defendant alleges that Ms. McKissick was selected over plaintiff and the other candidates
because of her more relevant experience and better performance during the interview in which
she demonstrated superior understanding of issues specific to the LCSW position.
Plaintiff, who remains employed as a CSW at DCF, filed this complaint on November 14,
2009.

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DISCUSSION
A motion for summary judgment must be granted if the pleadings, discovery materials
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
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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).
Title VII
Claims of employment discrimination brought under Title VII are assessed under the
burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell Douglas framework, a plaintiff must
first establish a prima facie case of discrimination by showing that: (1) he is a member of a
protected class; (2) he is qualified for his position; (3) he suffered an adverse employment action;
and (4) the circumstances give rise to an inference of discrimination.
Once a plaintiff has established a prima facie showing of discrimination, the burden shifts
to the employer to articulate some legitimate, nondiscriminatory reason for the employment
action. McDonnell Douglas, 411 U.S. at 802. “The defendant must clearly set forth, through the
introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the cause of the employment
action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). The burden then shifts back
to plaintiff to demonstrate that the defendant’s non-discriminatory reason is a mere pretext for
actual discrimination. This requires a plaintiff to produce “sufficient evidence to support a
rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were
false, and that more likely than not discrimination was the real reason” for the employer’s
actions. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). “A reason
cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason was
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false, and that discrimination was the real reason.” Hicks, 509 U.S. at 515.
Assuming arguendo that plaintiff succeeded in establishing a prima facie case of
employment discrimination, the claim fails because DCF has proffered legitimate,
nondiscriminatory reasons for the adverse employment action, and plaintiff has failed to
demonstrate adequately that such reasons comprise mere pretext for discrimination.
An employer can meet the burden of proffering a legitimate non-discriminatory
justification by introducing “admissible evidence which would allow the trier of fact rationally to
conclude that the employment decision had not been motivated by discriminatory animus.”
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Here, defendant
contends that Ms. McKissick was better qualified and performed better during her interview.
On September 29, 2006, two years before the application process, Ms. McKissick was
appointed to serve as a Temporary LCSW. Defendant deemed Ms. McKissick’s experience as
Temporary LCSW to be relevant to her qualification as for the LCSW position. In addition,
defendant alleges that Ms. McKissick outperformed plaintiff during the interview process.
Comments in the DCF applicant tracking system note that Ms. McKissick demonstrated a good
understanding of interdisciplinary teamwork as well as responsibilities of the LCSW position. In
contrast, plaintiff received some negative feedback. For example, plaintiff is listed as having
identified only one leadership quality when asked to provide three. As virtually “[a]ny legitimate
nondiscriminatory reason [for the adverse action] will rebut the presumption triggered by the
prima facie case,” defendant DCF has met its burden of production. Fisher v. Vasser College,
114 F.3d 1332, 1335-36 (2d Cir. 1997). Therefore, the presumption of discrimination “drops out
of the picture” and the burden shifts back to plaintiff to demonstrate that the defendant’s non5

discriminatory reason is a mere pretext for actual discrimination. Hicks, 509 U.S. at 511.
As cited in plaintiff’s own memorandum, plaintiff must provide a “smoking gun or at
least a thick cloud of smoke to support his allegations of discriminatory treatment.” Sista v.
CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006). Instead, plaintiff merely continued to
point to the disparity between his and Ms. McKissick’s background and experience.
Plaintiff insists that the discrepancy in qualifications is circumstantial evidence of intent
to discriminate. While evidence used to establish the prima facie case can also serve to
demonstrate pretext, plaintiff has not met his burden. Reeves v. Sanderson Plumbing Prod., Inc.,
No. 99-523 2000 WL 19134 *5-6 (U.S. 2000). The third stage of the McDonnell Douglas
framework requires a plaintiff to produce evidence that the nondiscriminatory reasons proffered
by the employer were false, and that more likely than not discrimination was the real reason for
the employer’s actions. See Van Zant, 80 F.3d at 714. Plaintiff has produced no such evidence
and failed to meet his burden of persuasion. Therefore, defendant’s motion for summary
judgment pursuant to Title VII will be granted.
Connecticut Fair Employment Practices Act
“[T]he Eleventh Amendment bars suits of any sort against a state in federal court unless
the state has consented to be sued or Congress has expressly abrogated the state's immunity.”
Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir. 1997). Although Connecticut has consented to
petitions for relief based on CFEPA claims in the superior court, this waiver of immunity does
not extend to the federal court system. Conn. Gen. Stat. §46a-100; Walker v. State of
Connecticut, 106 F.Supp 2d 364 (D. Conn. 2000). Plaintiff does not debate this issue in his
opposition to defendant’s motion for summary judgment. Thus, plaintiff’s state law claim
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predicated on CFEPA is barred by the doctrine of sovereign immunity and may not be brought in
federal court by virtue of the Eleventh Amendment.
CONCLUSION
For the above stated reasons, defendant’s motion for summary judgment [doc #34] will
be GRANTED. The Clerk is instructed to enter judgment in defendant’s favor and to close this
case.
DATED this 12th day of October, 2011 at Bridgeport, Connecticut.

__________________/s/____________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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