Moore v. Connecticut Department of Correction et al

Filing 82

RULING ON MOTION FOR SUMMARY JUDGMENT. For the reasons set forth in the attached ruling, Defendants' motion for summary judgment (Doc. # 60 ) is GRANTED in part as to Count I (Title VII discrimination) and DENIED in part as to Count I (Title VII retaliation); GRANTED as to Count II (CFEPA discrimination and retaliation); GRANTED as to Count III (equal protection claim against defendant Leo Arnone); DENIED as to Count IV (equal protection claim against defendant Daniel Callahan); and GRANTED as to Counts V through VII (equal protection claims against defendants Kimberly Weir, Tracey Butler, and Sandra Sharr).The parties shall file their joint trial memorandum by August 2, 2017. Jury selection shall proceed on September 7, 2017 ( with a back-up jury selection date of October 5, 2017, in the event that other trials take precedence). Please refer to the District of Connecticut website for my "Trial Preferences" and "Instructions for Joint Trial Memorandum." It is so ordered. Signed by Judge Jeffrey A. Meyer on 6/2/2017. (Gruber, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTIAN MOORE,
Plaintiff,
v.

No. 3:13-cv-01160 (JAM)

DEPARTMENT OF CORRECTION et al.,
Defendants.
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Christian Moore is a black male who worked in the affirmative action unit at the
State of Connecticut Department of Correction (DOC). His job was to investigate claims of
discrimination against and within the DOC as well as to help the DOC meet its affirmative action
hiring goals. When plaintiff encountered troubles with colleagues at work, he concluded that
these problems were due to his race, his gender, and his dedication to the work of the affirmative
action office.
Workplace conflicts plagued the DOC’s affirmative action unit during the time at issue in
this lawsuit. The conflicts embroiled employees of different races and genders, as well as many
members of a different DOC unit—the human resources department—which performed
personnel tasks in collaboration with the affirmative action unit. Both units suffered through and
contributed to a tense working environment such that employees of both units began to complain
about one another. After that, members of both units alleged retaliation for having filed
complaints, and so on.
Plaintiff felt targeted by members of both units, particularly after the head of the human
resources department made a FOIA request for plaintiff’s emails. The results of this request
revealed that plaintiff had extensively used his state computer to send personal emails, and

plaintiff in turn was subject to discipline for misuse of DOC computers. Plaintiff believes the
FOIA request and ensuing discipline were motivated by discriminatory and retaliatory animus.
Plaintiff has filed this lawsuit suit against the DOC and various DOC officials including
Leo Arnone, Daniel Callahan, Kimberly Weir, Tracey Butler, and Sandra Sharr. He alleges that
the DOC as his employer engaged in race- and gender-based discrimination as well as retaliation
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He further
alleges cognate claims for discrimination and retaliation under the Connecticut Fair Employment
Practices Act (CFEPA), Conn. Gen. Stat. § 46a-60 et seq. In addition, he alleges pursuant to 42
U.S.C. § 1983 that each of the individual defendants discriminated against him in violation of his
rights under the Equal Protection Clause.
Defendants have moved for summary judgment on all counts (Doc. #60). For the reasons
set forth below, I conclude that triable issues of fact remain as to plaintiff’s claim of Title VII
retaliation against the DOC, as well as his equal protection retaliation claim against defendant
Callahan. All other claims and defendants will be dismissed.
BACKGROUND
The following facts are either agreed upon by both parties or presented in the light most
favorable to plaintiff as the non-moving party. The DOC’s affirmative action unit was
responsible for many duties that dovetailed with those of the DOC’s human resources
department. The affirmative action unit, for example, was responsible for developing the DOC’s
affirmative action plan: a plan creating goals for the DOC to achieve representation reflective of
the applicable labor market in all aspects of the employer/employee relationship, including in
hiring and promotions. With that plan, the human resources department could then embark on
recruitment and hiring efforts, but could hire or promote a candidate only if it had adequately

2

completed paperwork reflecting compliance with the affirmative action plan, consulted with the
affirmative action unit throughout most of the hiring process, and received a “sign-off” from the
affirmative action unit prior to extending an offer.
The affirmative action unit was also charged with investigating DOC employee
complaints of harassment or retaliation. After each investigation, it would forward its findings to
the human resources department for a determination of whether a pre-disciplinary hearing should
be held, and the human resources department, in turn, would recommend discipline to the
Commissioner of the DOC.
In this way, the affirmative action unit and human resources department worked hand in
hand, in most tasks relying and depending on each other to perform their job duties. Each unit,
too, had a similar structure: each had a department head that reported directly to the
Commissioner of the DOC, and underneath that department head worked managers and other
employees.
Over the years, tensions simmered between the two departments as each perceived
shortcomings in the other during performance of their complementary job duties. In the hiring or
promotion process, the affirmative action unit would receive a “recruitment package” from the
human resources department that, from the affirmative action unit’s perspective, did not comply
with the processes or goals set forth in the affirmative action plan; after a period of review, the
affirmative action unit would send that package back to the human resources department without
approval, challenge the human resources department about the paperwork submitted, and pose
questions about, for example, why a “goal” candidate had not been recommended for a position,
or why certain explanations had not been provided in the paperwork. See Doc. #61 at 147–51;
e.g., Doc. #70-4 at 1–3, 7–15.

3

For its part, the human resources department felt stymied in its efforts to promptly hire
qualified candidates for open positions. It believed that the affirmative action unit would
purposefully delay acting on or approving several recruitment packages until it could extract a
concession on a particular package. See Docs. #60-9 at 6–8; #60-7 at 45; #60-10 at 5, #72-1 at 9.
These work-related tensions between the affirmative action unit and the human resources
department permeated the ranks of each unit. Managers and subordinates alike begrudged those
of the other unit for hindering the hiring/promotion process or the affirmative action goals of the
DOC. Doc. #60-9 at 6.
At times, the heads of each unit required the Commissioner’s intervention to resolve
stalemates. Id. at 8. By September of 2009, plaintiff’s boss, the director of the affirmative action
unit, Bob Jackson, and the director of human resources, Dan Callahan, were barely on speaking
terms. Because of that conflict, Jackson delegated to plaintiff, who was then serving in the
position of Equal Employment Opportunity Specialist 2, his authority to approve/reject
recruitment packages on behalf of the affirmative action unit.
But by 2010, the relationship between the departments had continued to sour, creating a
tense and acrimonious working environment for all. Not only had the normal tensions between
the units worsened, but now employees of each unit claimed that they personally were being
retaliated against or harassed by employees of the other unit, on the basis of race, gender, and/or
age.
Even the two department heads filed complaints against one another: Callahan (white
male) filed a complaint against Jackson (black male), and vice versa. Jackson’s complaint of
September 3, 2010, against Callahan alleged that “the tone of the conversation [between

4

Callahan and me relating to a recruitment package] was so intense [that] I concluded based on
past experiences that Dan’s comment was race related.” See Doc. #70-2 at 2.
Plaintiff was interviewed on December 2, 2010, and December 7, 2010, in connection
with the incident of September 3, 2010, between Callahan and Jackson. See Doc. #60-10 at 5–6.
He indicated that “Dir. Callahan would call Dir. Jackson and they would argue [about a
recruitment package]. . . . [I]t seems like Dir. Callahan would take it personal. When you take
something personal, you are already pissed off about it and Dir. Jackson would reciprocate it.”
Id. at 5. Plaintiff stated that, although Jackson and Callahan took their recruitment-package
disagreements personally, he did not feel that the interactions between the departments were
evidence of invidious discrimination. Id. at 4–6.
In the same interview, plaintiff also discussed with investigators a complaint lodged by
two affirmative action unit employees, Loyda Borton (Hispanic female) and Debbie Sass (white
female), against Jackson (black male). See id. at 3–4. Borton and Sass had accused Jackson of
retaliating against them for participating in the investigation of a prior complaint by Callahan
against Jackson. See Docs. #61-1 at 142–42; #60-10 at 4–5; see also Doc. #33 (¶¶ 49, 50) to
Jackson v. Conn. Dep’t of Corr., No. 12cv1714 (AVC). Plaintiff refuted the charge against
Jackson, telling the investigator that both Borton and Sass had felt entitled to a certain
promotion, but when neither got the promotion, they used “any petty annoyance they have had
with [Jackson] . . . to claim retaliation.” Doc. #60-10 at 5. Plaintiff also explained that the poor
working relationship between Jackson and Borton was Borton’s fault, and that the poor working
relationship between Jackson and Sass was because Sass preferred to work independently. See
id. at 3–5.

5

In the meantime, defendant Leo Arnone began his tenure as the new Commissioner of
DOC in July of 2010. At that time, Arnone liked the job plaintiff was doing in the affirmative
action unit and worked to promote him, eventually by personally writing to the governor’s
office.1 As a result of those efforts, plaintiff was promoted to Equal Employment Opportunity
Manager of the affirmative action unit in November of 2010. This new position, however, was
subject to a six-month “working test period”; plaintiff would work in the new position and
receive a commensurate pay increase, but would not permanently achieve the promotion until
passage of the probationary period without incident.
Arnone was well aware of the tensions between the affirmative action unit and the human
resources department, and he was specifically aware of the dueling complaints between Callahan
and Jackson, as well as the collateral damage wreaked upon others in human resources and the
affirmative action unit because of their mutual animosity. He knew that Callahan and Jackson
considered their differences relating to recruitment packages to rise to the level of personal and
intentional discrimination against one another. Doc. #72-4 at 21.
Over time, Arnone seemed to side with Callahan; when he later testified at a deposition,
Arnone agreed that, beyond the normal friction that may arise between affirmative action units
and human resources, the affirmative action unit at the DOC was trying to pull a “power play” on
human resources, “an immature” thing to do. Doc. #60-7 at 45. Arnone also testified that he did
not trust Jackson to submit unadulterated statistics about whether the DOC treated minority
employees different from non-minority employees. See Doc. #72-4 at 30–32.
Tensions between the affirmative action unit and human resources department boiled
over on March 29, 2011, because of a recruitment package—in which a Native American “goal”

Callahan, too, recognized plaintiff’s potential, and nominated him in late-2010 to an elite, state-wide
program that identifies, grooms, and trains future leaders within the State of Connecticut’s employ.
1

6

candidate was recommended by the human resources department, seemingly a result acceptable
to both departments—that plaintiff did not timely approve. Angry e-mails zipped back and forth
between subordinates of the two units, then e-mails between the heads of the departments, and
then e-mails from the head of one department to the subordinate of the other, such as an e-mail
from Callahan to plaintiff on March 30, 2011: “That this package[,] which really was a simple
package with one qualified goal candidate, was clearly and purposefully delayed by you is not
acceptable to me. Just because you have the power to delay this package does not justify the
delay. . . . The way you have treated this package is unfortunately typical of the way this
process[ ] has been abused. It [a]ffects the agency, my employees and the candidate in a way that
does not meet my standards of professionalism.” Doc. #60-13 at 14–15.
The next day, both sides complained to Arnone. See Doc. #60-13. Callahan complained
of retaliation by plaintiff, whom Callahan suspected was retaliating against him for having filed a
complaint against Jackson in September 2010. Doc. #70-6 at 1. Plaintiff, too, complained of
retaliation by Callahan against him, suspecting that Callahan was mistreating plaintiff because
plaintiff had been on Jackson’s side with respect to the September 2010 incident between
Callahan and Jackson. Doc. #60-13 at 18 (“I am being targeted because of a discontention for
Director Jackson.”).
Jackson, too, got involved in this dispute between Callahan and plaintiff, reaching out to
Arnone and noting that he was “becoming very concerned for the well being and safety of my
employees.” Id. at 7, 13. Arnone responded to Jackson that “there are equally serious allegations
across both units from within and from outside each unit. Some of the complaints seem to be
thinly [veil]ed attempts to support a position and some seem to have real merit. We are in the
process of investigating all of them.” Id. at 13.

7

Not satisfied to wait for the results of the myriad retaliation complaints that had just been
lodged, only four days after this incident, on April 4, 2011, Callahan upped the ante by sending a
Freedom of Information Act (FOIA) request to the DOC’s legal department, seeking, among
other documents, “[a]ll e-mails to or from Robert Jackson and Christian Moore for the last two
years.” Doc. #70-8 at 2.2 Callahan’s FOIA request also asked for the phone records and work
calendars of Jackson and plaintiff dating back to September 3, 2010—the date of Jackson’s racial
discrimination complaint against Callahan—because Callahan wanted to determine whether
Jackson had been directing plaintiff to delay recruitment packages in order to get back at
Callahan for perceived racism arising in the incident of September 3, 2010, and more generally
to “expose” what was happening behind the scenes in the affirmative action unit. See Doc. #60-9
at 20–21. Callahan also sought information about certain investigations run by the affirmative
action unit because he suspected that the affirmative action unit investigators were sending draft
investigations to Jackson, but that Jackson was altering the conclusions with respect to whether
discrimination or retaliation had occurred. Doc. #72-1 at 3.
Joan Ellis, the DOC’s FOIA Administrator and a work acquaintance of Callahan’s,
received Callahan’s “unusual” FOIA request and set to work. Doc. #60-14 at 18.3 While going
through plaintiff’s e-mails on April 21, 2011, she noticed that there was a large volume of
personal e-mails—e-mails relating to church business, vacation bookings, and other purely
personal matters beyond mere community outreach. These e-mails were being sent and received

2
Plaintiff suspects—without adducing any admissible evidence in support of this belief—that defendant
Sandra Sharr, Director of Legal Affairs, tipped off Callahan about plaintiff’s complaint against Callahan, which was
the impetus for Callahan’s FOIA request.
3
Plaintiff, too, made a FOIA request for Callahan’s e-mails, the results of which he received on April 28,
2011. Doc. #70-8 at 1.

8

by plaintiff during work hours, in clear violation of several administrative directives that govern
DOC employees.
Although she had never before reported an employee for e-mail misconduct that was
revealed by a FOIA request, Ellis decided to report plaintiff’s email usage to her supervisor,
Brian Garnet, because she had never previously seen this quantum of personal email usage. Doc.
#60-14 at 22–23.4 Garnet, in turn, reported the matter to Arnone, even though neither FOIA
requests nor this type of workplace policy violation are normally reported to the Commissioner.
See Doc. #60-7 at 23–25.
Ellis eventually briefed Arnone on the matter by showing him a sampling of plaintiff’s emails from over 1,000 personal e-mails found on plaintiff’s computer. On April 26, 2011,
Arnone directed a Security Division investigation into the violations. Doc. #60-20 at 1. He
specifically cautioned that neither Callahan nor plaintiff be made aware of the investigation or its
outcome.
On May 9, 2011, the Security Division investigator who was assigned to assess plaintiff’s
computer misuse issued a report finding that plaintiff had violated several administrative
directives. Doc. #60-20. Plaintiff admitted to the investigator that he had violated these
directives, but insisted that “a building wide audit would reveal a lot of this type of conduct.”
Doc. #60-19 at 5, 8.5
On May 13, 2011, plaintiff received in-hand notice that a pre-disciplinary Loudermill
hearing would take place on May 17, 2011, for his computer infraction. On May 16, 2011,

4
That same day, plaintiff wrote to Jackson and requested that plaintiff no longer have responsibility for
reviewing recruitment packages because he was afraid of “facing . . . repercussions.” Doc. #60-11 at 2.
5
Months later, plaintiff would provide the names of several other DOC employees—some of them his
friends—who used their computers for personal matters; those employees would also be disciplined. See Doc. #71-1
at 4–5.

9

plaintiff requested additional time to seek legal counsel and prepare for his hearing, and he was
granted an extension to May 19, 2011. On May 17, plaintiff again requested additional time so
that he and an attorney could review the hundreds of personal e-mails the DOC asserted were
improper; but by an e-mail sent at 5:02 p.m. on May 18, 2011, plaintiff was denied an additional
extension and told that his Loudermill hearing would proceed on May 19, 2011. On the date of
his scheduled Loudermill hearing, plaintiff had already retained an attorney, was at work, and
knew that the hearing was proceeding and that he had the right to present evidence in his
defense, and yet he decided not to attend.
After the Loudermill hearing, the DOC’s Labor Relations office recommended that
plaintiff be issued a written reprimand. Arnone, who did not personally supervise plaintiff,
concurred with the discipline and decided to take the “unusual” step of personally issuing
plaintiff an unsatisfactory promotional working test period performance evaluation. See Doc.
#60-7 at 41 (“[a]bsolutely not” typical for a commissioner to give a working test period failure
performance evaluation to a mid-level manager whom he did not supervise). Although the
evaluation set forth several metrics by which to rate plaintiff, Arnone rated plaintiff in only one
category, “Judgment,” and rated him overall as “Unsatisfactory” because of his violation of the
computer policies. Doc. #70-11.6 Arnone issued this performance evaluation on May 23, 2011,
just one day before plaintiff’s working test period for Equal Employment Opportunity Manager
was to expire.
It was no coincidence that plaintiff’s discipline was imposed before the end of his
working test period: the Security Division investigator assigned to plaintiff’s computer-misuse

6

The only other time Arnone recalls issuing a performance evaluation like this one—that is, not filling out
the entire evaluation—was for Jackson. Doc. #60-7 at 32. Arnone had also been involved in the decision to
terminate Jackson.

10

case had been told to handle the investigation promptly, before the investigator was scheduled to
go on a vacation, Doc. #72-3 at 3, and specifically referenced the end of plaintiff’s working test
period in his report. Arnone had even told plaintiff: “I can’t discipline you here and then allow
you to finish the working test period.” Doc. #60-7 at 30. Because he received this negative
evaluation, plaintiff failed his working test period: he reverted back to his prior position as Equal
Employment Specialist 2, received a lesser pay, and was prohibited from being promoted for a
two-year period.
In the meantime, on May 11, 2011, defendant Kimberly Weir (black female) had become
the acting director of the affirmative action unit. By then, Jackson had been removed from his
position, fired for retaliating against staff in the affirmative action unit (Borton and Sass) who
had participated in the investigation of Callahan’s complaint against Jackson. See Docs. #60-39
at 12; #60-4 at 7. Weir held her new role as acting director of the affirmative action unit
simultaneously with her current role as director of the Security Division, which she had headed
at the time the investigation into plaintiff’s computer usage had been initiated. As soon as she
started, she immediately began to make changes to how the affirmative action unit was run, and
plaintiff and a few others in the affirmative action unit wrote to Arnone on June 9, 2011, with
their concerns. See Doc. #60-32 at 1 (“This is a very sensitive time for us[;] . . . some of our staff
have been extracted out of our unit, another one of our colleagues was dismissed, our Director
has been walked out, and now we are feeling like we are being subjected to unnecessary
pressures.”). In the letter, plaintiff requested that Weir not be informed of their concerns “out of
fear for any repercussions or retaliatory actions,” id. at 1, but in his letter responding to plaintiff,
Arnone sent a copy to Weir. Id. at 2.

11

Soon after her move to the affirmative action unit, Weir began to closely monitor her new
subordinates’ attendance. Plaintiff (and several other employees) took great offense to Weir’s
hypervigilance and, by letter dated August 8, 2011, plaintiff suggested that her scrutiny was
“intimidating” and the product of his “being targeted.” Doc. #60-33 at 1–2.
In January of 2012, Weir sent an e-mail to the entire affirmative action unit setting a strict
deadline by which all employees were to complete their many overdue investigations. See Doc.
#60-36 at 6. Plaintiff explained to Weir that his outstanding investigations could be attributed to
his taking intermittent FMLA leave for medical problems caused by workplace stress, Doc. #6034 at 1, but Weir responded callously on February 1, 2012, that plaintiff had a track record of
being late in submitting his reports, that his FMLA-covered medical absences did not fully
account for his lack of productivity, and that she could not possibly have caused plaintiff’s stress
because she was merely “holding you accountable for your work . . . .” Id. at 2.7
Soon after this exchange, on March 5, 2012, the DOC, with Arnone’s blessing, created a
new job post within the affirmative action unit: Legislative and Administrative Advisor 2. Doc.
#71-7 at 4, 7. On the website listing this new post, the DOC wrote: “At the present time, the
oversight of [affirmative action] investigations has been assigned to [Weir], based on lack of
available managerial staff. . . . Current backlogs . . . require that this position be established as
soon as is possible.” Id. at 6.
The new position of Legislative and Administrative Advisor 2 called for performance of
many of the functions that had been performed by plaintiff before he failed his working test

7
Within days of that exchange, Weir removed an employee from plaintiff’s supervision because both were
behind in submitting reports. Doc. #60-35 at 1. Plaintiff told Weir that he would consider removal of a directly
reporting employee as a “sign of retaliation,” but Weir responded that it was intended to lighten his load until such
time that plaintiff is “in a position to manage your own work load and assume responsibility for others.” Ibid. The
removed employee protested to Weir, and explained that all employees in the affirmative action unit had outstanding
investigations because they were understaffed, and that plaintiff was an excellent supervisor. Doc. #71-4 at 2.

12

period as Equal Employment Opportunity Manager: conducting investigations, overseeing
others’ investigations, and conducting certain trainings. Id. at 6. But the position added more
duties than plaintiff had previously shouldered, and added a new requirement that the employee
have a law degree, because the DOC envisioned for this position “research and assistance in
matters pertaining to legislation, regulations and administrative policy, including the drafting [of]
proposed legislation and regulations and responding to legislative inquiries in coordination with
[the DOC’s] Legislative liaison and the Commissioner.” Ibid.
Weir continued to run a tight ship as head of the affirmative action unit. In a performance
evaluation discussed on April 26, 2012, Weir told plaintiff that, despite having an employee
removed from his supervision, he “struggles to complete assignments timely. Outstanding
investigations remain a concern.” Doc. #60-52 at 3, 5. Tensions built, and on June 21, 2012,
Weir requested security videos from a correctional facility to confirm whether plaintiff was at a
place he said he would be. After learning that plaintiff had not been at the facility, she sent an email on June 25, 2012, to all affirmative action unit employees, requiring that every employee email or call Weir each time he or she arrived or left for the day. Doc. #60-36 at 7. Plaintiff was to
have another performance review with Weir the next day, but upon receipt of this e-mail, which
appeared to directly target him, he requested that a witness be present during his performance
review with Weir.
At his performance review with Weir, plaintiff refused to sign his own evaluation, which
stated that he “has the potential to be an effective manager; however, he needs to work on
passive aggressive behavior, improve time management skills and be more receptive to
constructive criticism and feedback.” Doc. #60-52 at 6. The meeting continued, fraught, as true
for almost all communications between the two, and soon Weir brought up the video tapes

13

purporting to reflect plaintiff’s unexcused absence. Plaintiff got upset and left the meeting, and
immediately filed an incident report. In the report, plaintiff recounted the meeting and stated that
he was being “harassed,” “targeted,” and “retaliat[ed] against” by Weir, and stated that he goes
to work “in fear that she is watching me and will do something to harm me!” Doc. #60-43 at 1.
In her responsive incident report, Weir stated that she, too, had begun to fear for her safety
during that meeting. Doc. #60-53 at 1.
The list of hostile encounters between Weir and plaintiff need not be reviewed here in its
entirety. See, e.g., Doc. #71-5 at 1 (attempt by Weir to dock plaintiff’s pay); id. at 3 (Weir telling
plaintiff not to abuse his FMLA/vacation time). Suffice it to say that Weir and plaintiff each
targeted and were targeted by the other. Each suffered health consequences for working in this
toxic environment. See Doc. #60-43 at 1–2 (plaintiff: “She has caused me to suffer from
depression, and anxiety, and panic attacks [for] which I am on three different medications
because of her. . . . She is going to cause me to have a heart-attack or a stroke due to the
stress . . . .”); Doc. #60-45 at 3 (Weir left as acting director of the affirmative action unit on
September 10, 2012, because “being attacked by [plaintiff] . . . was affecting my health. And my
doctor said either I let it go or I drop dead.”).8
On October 29, 2012, shortly before Weir’s departure as acting director of the affirmative
action unit, the DOC hired Holly Darin (white female) to the position of Legislative and
Administrative Advisor 2. Plaintiff helped train Darin regarding the policies and procedures of
the affirmative action unit, and he also helped with training three new affirmative action unit

8
Around the same time the relationship between Weir and plaintiff devolved into open hostility, plaintiff
also perceived slights from Tracy Butler, then-director of human resources, in her unreasonable scrutiny of
plaintiff’s FMLA leave in 2012, see Doc. #60-41; failure to discipline plaintiff’s co-worker, Loyda Borton, for
making age-based comments about plaintiff in June of 2012, see Doc. #71-11; and refusal to allow plaintiff to put
documents into his personnel file, see Doc. #61-1 at 146.

14

employees. Doc. #71-10 at 1. At that time, Darin was not the acting director of the affirmative
action unit, but she later applied for and received that position. Doc. #61-1 at 152.
Plaintiff filed a complaint with the Connecticut Commission on Human Rights and
Opportunities on August 12, 2011, and he eventually filed this lawsuit on August 12, 2013.
DISCUSSION
The principles governing a motion for summary judgment are well established. Summary
judgment may be granted only if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of
material fact exists for summary judgment purposes where the evidence, viewed in the light most
favorable to the nonmoving party, is such that a reasonable jury could decide in that party's
favor.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The evidence
adduced at the summary judgment stage must be viewed in the light most favorable to the nonmoving party and with all ambiguities and reasonable inferences drawn against the moving party.
See, e.g., Tolan, 134 S. Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d
Cir. 2013). All in all, “a ‘judge’s function’ at summary judgment is not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.’”
Tolan, 134 S. Ct. at 1866 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Plaintiff claims that he was subject by the DOC to Title VII retaliation as well as to Title
VII race- and gender-based discrimination (Count I). In addition, he alleges equal protection
violations by the individual defendants pursuant to § 1983 (Counts III through VII). Each of
these claims will be discussed in turn.

15

As an initial matter, I will grant defendant’s motion for summary judgment on plaintiff’s
CFEPA claim (Count II), because the Eleventh Amendment plainly bars relief against the DOC
as an entity of the State of Connecticut and because neither the State nor Congress has waived
Eleventh Amendment immunity against CFEPA claims in federal court. See Pawlow v. Dep’t of
Emergency Servs. & Pub. Prot., 172 F. Supp. 3d 568, 577–78 (D. Conn. 2016) (collecting cases).
Contrary to plaintiff’s assertion, defendant DOC did not waive this defense, as it was pleaded in
the answer. Doc. #15 at 14 (second affirmative defense).
Title VII Retaliation
Under Title VII of the Civil Rights Act of 1964, an employer may not “discriminate
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42
U.S.C. § 2000e-3(a) (emphasis added).
Plaintiff’s claim of retaliation is governed by the familiar McDonnell Douglas burdenshifting framework. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 556 (2d Cir. 2010). This
framework requires him to show “(1) participation in a protected activity; (2) that the defendant
knew of the protected activity; (3) an adverse employment action; and (4) a causal connection
between the protected activity and the adverse employment action.” McMenemy v. City of
Rochester, 241 F.3d 279, 282–83 (2d Cir. 2001). An adverse employment action is judged by an
objective standard: “plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination. . . . [N]ormally petty
slights, minor annoyances, and simple lack of good manners in the workplace fall well short of

16

this standard.” Sacco v. Legg Mason Inv. Counsel & Trust Co., N.A., 660 F. Supp. 2d 302, 313
(D. Conn. 2010) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67
(2006)).
Critical to this claim is how one defines what was plaintiff’s “protected activity.” In its
opening brief, the DOC did not challenge whether plaintiff engaged in a protected activity. See
Doc. #60-1. But in its reply, the DOC for the first time argued that plaintiff had not engaged in a
protected activity because his only alleged protected activity was generally opposing
discrimination by making sure all qualified applicants, including “goal applicants,” were
considered fairly. See Doc. #76 at 3; Cooper v. N.Y. Dep’t of Labor, 819 F.3d 678, 681 (2d Cir.
2016) (per curiam) (firing of director of equal opportunity development office for opposing
amendment of internal procedures that increased likelihood of discrimination did not constitute
Title VII retaliation: “opposing an employer’s failure to engage in affirmative action is
nevertheless unprotected under the statute” and does not qualify as a “protected activity”);
Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 594 (2d Cir.
2016) (objecting to an employer’s failure to adhere to its own affirmative-action program is not
protected activity because such a failure is not an “unlawful employment practice” under Title
VII); Whethers v. Nassau Health Care Corp., 956 F. Supp. 2d 364, 381 (E.D.N.Y. 2013)
(presenting cases of discrimination to upper management as part of job duties in diversity office
does not constitute “protected activity”), aff’d, 578 F. App’x. 34 (2d Cir. 2014). I need not
consider the DOC’s argument in this regard (or determine whether plaintiff had been opposing
discrimination on behalf of specific applicants, e.g., Doc. #70-4), because the argument was not
timely and properly raised. See Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (“Arguments
may not be made for the first time in a reply brief.”).

17

But even considering the DOC’s argument on its merits, the argument overlooks
evidence that plaintiff engaged in “protected activities” beyond merely working in the
affirmative action unit: (1) he filed a liberal amount of complaints on his own behalf against
employees of the DOC, opposing perceived discrimination against him on the grounds of race,
gender, and age; see, e.g., Doc. #60-38 at 1, 9 (July 2011 complaint for age discrimination
against Loyda Borton substantiated); Doc. #60-37 at 3 (CHRO complaint for failure of working
test period); and (2) he participated in, and provided testimony with regard to, investigations of
other complaints of discrimination/retaliation within his unit.9 See Hicks v. Baines, 593 F.3d 159,
161–62 (2d Cir. 2010) (protected activities include participating in any manner in an
investigation, proceeding, or hearing pursuant to Title VII). I conclude that plaintiff has
established at least a genuine fact issue that he engaged in a protected activity when he
participated in the investigation of the Jackson/Callahan complaints relating to the incident of
September 3, 2010. See Doc. #60-10 (plaintiff’s statement regarding September 3, 2010,
incident).
The question then becomes whether the desire to retaliate against plaintiff for this
protected activity was the but-for cause of an adverse employment action. Plaintiff asserts that he
was subject to numerous adverse employment actions, but most critical in this case is the alleged
adverse employment action allegedly resulting from Callahan’s FOIA request: the discipline
imposed after the FOIA request revealed plaintiff’s violation of several administrative directives
regarding use of a work computer for personal reasons.10
9

Indeed, the Department of Administrative Services (DAS), tasked with investigating complaints made by
or against anyone within the affirmative action unit, put it well: “Since the fall of 2010, all of the members of the
Affirmative Action unit have been involved as complainants, respondents or witnesses in investigations of several
different discrimination complaints filed by or against members of the unit . . . .” Doc. #60-38 at 2–3.
10
Plaintiff does not assert that the FOIA request, itself, was an adverse employment action, even though it
seems that having a disgruntled co-worker search your e-mail records to find dirt on you—something a co-worker

18

I view plaintiff’s theory of recovery for his discipline as alleging a “cat’s paw” theory of
liability. The Second Circuit has recently held that the “cat’s paw” theory of liability supports
recovery for claims of retaliation in violation of Title VII, and it arises when “an employee is
fired or subjected to some other adverse employment action by a supervisor who himself has no
discriminatory motive, but who has been manipulated by a subordinate who does have such a
motive and intended to bring about the adverse employment action.” Vasquez v. Empress
Ambulance Serv., Inc., 835 F.3d 267, 272–73 (2d Cir. 2016) (quoting Cook v. IPC Intern. Corp.,
673 F.3d 625, 628 (7th Cir. 2012) (Posner, J.)).
Here, plaintiff was subject to discipline by Arnone, who arguably had no desire to
retaliate against plaintiff and ostensibly imposed discipline on plaintiff only after an independent
investigation into plaintiff’s computer misuse by members of the Security Division. But a
genuine fact issue remains whether the disciplinary process leading to Arnone’s ultimate
decision was tainted and manipulated by Callahan, who did have such a motive to retaliate
against plaintiff and intended to bring about the adverse employment action.
To be sure, the record evidence could support the contrary conclusion: from Callahan’s
perspective, Callahan made his FOIA request because plaintiff appeared to be on Jackson’s side
in the all-out war between Jackson and Callahan, and Jackson was using plaintiff to help retaliate
against Callahan. See Docs. #72-1 at 9, #60-9 at 20. Indeed, only days before the request, on
March 31, 2011, Callahan filed a complaint against plaintiff for harassment “in retaliation for
[Callahan’s] filing a complaint against Robert Jackson in September 2010.” Doc. #70-6 at 1. But

might be prohibited from doing if not employed by an agency subject to the Freedom of Information Act—might
very well “dissuad[e] a reasonable worker from making or supporting a charge of discrimination.” See Burlington,
548 U.S. at 67. Cf. Murphy v. Spring, 58 F. Supp. 3d 1241 (N.D. Okla. 2014) (discussing public employer’s
unauthorized access of plaintiff’s private e-mails in context of retaliation, invasion of privacy, and other causes of
action); Nepomuceno v. Astellas US LLC, 2013 WL 3746143, at *5 (D.N.J. 2013). See also Doc. #60-14 at 18
(FOIA administrator considered Callahan’s request “unusual”).

19

a reasonable jury could also conclude that Callahan had filed his complaint of March 31, 2011,
against plaintiff because plaintiff opposed Callahan’s discriminatory treatment of Jackson, or at
the very least participated in the investigation of Callahan’s complaint against Jackson by giving
testimony favorable to Jackson.
In other words, a jury could reasonably conclude that Callahan perceived plaintiff to be
advocating for an alleged victim of Title VII discrimination (Jackson), or knew of plaintiff’s
participation in a Title VII investigation; that Callahan wanted plaintiff to stop advocating for
Jackson, or to punish him for having providing testimony in that investigation; and that
Callahan’s FOIA request was motivated by a desire to retaliate against plaintiff for opposing
Callahan’s alleged discrimination against Jackson, or participating in the investigation. See Doc.
#70-8 at 2 (FOIA request, on its face, requested plaintiff’s records on and after September 3,
2010); Doc. #60-9 at 6 (Callahan describes “the September 3rd issue between Bob [Jackson] and
I, that was a [plaintiff] issue . . . .”). Whether Callahan’s desire to retaliate was the but-for cause
of his FOIA request is an issue that a jury should decide. See Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2528 (2013).
If a reasonable jury could conclude that Callahan’s FOIA request was motivated by a
desire to retaliate against plaintiff for opposing Callahan’s discriminatory treatment of Jackson
(or giving testimony regarding Callahan’s complaint), a jury could reasonably infer that the
disciplinary process resulting from the FOIA request was tainted by Callahan’s impermissible
motive to retaliate against plaintiff, even if Callahan played no part in imposing the ultimate
discipline on plaintiff for computer misuse. To this point, the DOC essentially argues that
plaintiff’s ultimate discipline—a written reprimand resulting in his failed working test period—
was not proximately caused by Callahan’s actions because several intervening acts (e.g.,

20

Callahan’s ignorance that plaintiff was misusing his computer, plaintiff’s choice not to attend his
Loudermill hearing) severed the causal connection between any retaliatory motive by Callahan
and plaintiff’s ultimate adverse employment action. See Staub v. Proctor Hosp., 562 U.S. 411,
422 & n.3 (2011) (describing “intent” and proximate causation).
Again, this is a triable issue. Although Callahan may not have known that plaintiff had
violated several administrative directives regarding computer usage when he made his FOIA
request, he very clearly intended an adverse employment action to result to plaintiff; after all,
Callahan expected when he made the FOIA request to find evidence that plaintiff had been
retaliating against Callahan on behalf of Jackson, the “puppet master,” and desired to “expose”
plaintiff’s misconduct within the affirmative action unit. See Doc. #60-9 at 20–21. A reasonable
jury could certainly conclude that Callahan’s actions—which were intended to produce a
disciplinary consequence for plaintiff—set in motion the series of events that led to plaintiff’s
receipt of discipline, and that plaintiff’s disciplinary process was tainted by an impermissible
motive to retaliate against him for siding with Jackson in Jackson’s Title VII complaint against
Callahan.
Nor was the DOC’s investigation into plaintiff’s computer misuse, or the ultimate
discipline imposed on plaintiff, fully and completely “unrelated” to or “independent” from
Callahan’s original retaliatory action. See Staub, 562 U.S. at 421 (“[I]f the employer’s
investigation results in an adverse action for reasons unrelated to the supervisor’s original biased
action . . . then the employer will not be liable. But the supervisor’s biased [action] may remain a
causal factor if the independent investigation takes it into account without determining that the
adverse action was, apart from the supervisor’s recommendation, entirely justified.”).

21

Several unsettling facts raise a triable issue regarding the “independence” of the
investigation and the discipline that resulted from Callahan’s arguably impermissibly motivated
FOIA request:


Ellis found Callahan’s FOIA request to be “unusual,” and yet continued on;



It was unusual for Arnone to learn of employee violations of administrative directives, or
even personally request investigations in such violations, but he did both here;



Despite some evidence that Loudermill postponements were common, several DOC
employees rushed the investigation and disciplinary process, and understood that the end
of plaintiff’s working test period was coming up, see Doc. #72-3 at 3 (investigator told to
prioritize this investigation before leaving for vacation); Doc. #60-20 at 1 (investigative
findings reference plaintiff’s working test period); Doc. #60-22 at 1 (plaintiff denied
second extension of Loudermill hearing);



Arnone imposed plaintiff’s discipline the day before plaintiff’s working test period was to
end because he wanted plaintiff to fail the working test period, see Doc. #60-7 at 30
(Arnone told plaintiff during meeting: “I can’t discipline you here and then allow you to
finish the working test period.”); id. at 28 (Arnone discussing that in any event he could
have ensured plaintiff’s failure of the working test period by extending that period);



Despite not being plaintiff’s supervisor, Arnone personally issued plaintiff the
unsatisfactory evaluation that caused failure of the working test period, which is
“[a]bsolutely not” normal, see id. at 41; and



Arnone was arguably on Callahan’s “side” in the Jackson/Callahan dispute, and believed
that the affirmative action unit was trying to pull an “immature” “power play” on human
resources, see id. at 45.

See Collins v. Conn. Job Corps, 684 F. Supp. 2d 232, 252 (D. Conn. 2010) (plaintiff may “show
that forbidden purposes lurk in [an alleged non-discriminatory employment] decision” by
pointing to “[d]epartures from procedural regularity”).
At trial, defendant will be free to argue to the jury that Callahan’s actions did not
proximately cause plaintiff’s adverse employment action, perhaps because plaintiff did not attend
his Loudermill hearing, or perhaps because plaintiff’s computer violations were particularly
flagrant and would have been discovered eventually. And defendant will also be free to argue
that Arnone’s investigation into plaintiff’s computer misuse was truly independent of Callahan’s
22

FOIA request, and that the “unusual” actions taken in initiating the investigation and imposing
discipline on plaintiff were appropriate responses in light of the disastrous states of the
affirmative action unit and human resources at that time, or were an attempt by Arnone to mentor
plaintiff in the hopes that plaintiff would recover from this incident and again rise up within the
DOC.
Ultimately, however, plaintiff has presented a plausible narrative, supported by testimony
and other evidence, that would permit a jury to find that Callahan’s decision to make a FOIA
request was motivated by a desire to retaliate against him for opposing Jackson’s treatment (or
merely providing testimony for Jackson in connection with Callahan’s complaint), and that
Arnone’s involvement in imposing discipline for the infractions revealed by the FOIA request
was not fully separate from Callahan’s retaliatory motive. In sum, therefore, I conclude that these
are all triable issues that preclude summary judgment on the retaliation portion of Count I of the
complaint.
Title VII discrimination (race and gender)
I turn now to plaintiff’s claim of discrimination on the basis of his race or gender. Under
Title VII, an employer may not “discharge any individual, or otherwise . . . discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C.
§ 2000e-2(a)(1). To prove his case, plaintiff must show “(1) that he belonged to a protected class;
(2) that he was qualified for his position . . . ; (3) that he suffered an adverse employment action;
and (4) that the adverse employment action occurred,” at least in part, because of plaintiff’s
protected status (e.g., his race or gender). 42 U.S.C. § 2000e-2(a), (m); Nassar, 133 S. Ct. at

23

2526; Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 251–52 (2d Cir. 2014); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
Plaintiff has met his prima facie burden: he belonged to a protected class (African
American male); he was qualified for his position as Equal Employment Opportunity Manager;
he received discipline that resulted in his removal from his position as Equal Employment
Opportunity Manager; and his removal as manager caused him a loss in pay, position, and
prestige. Plaintiff has also met his minimal burden of showing that he was disciplined in a
manner that gives rise to an inference of discrimination: the person who replaced plaintiff—and
whom he had to train—was an employee (white female) outside of his protected class, which
suffices to raise an inference of discrimination. See Zimmerman v. Assocs. First Capital Corp.,
251 F.3d 376, 381 (2d Cir. 2001). Defendant, in turn, offered a legitimate, non-discriminatory
reason for the discipline resulting in plaintiff’s removal as manager: plaintiff’s flagrant violation
of the administrative directives regarding computer usage.
It is a closer case whether plaintiff has adduced sufficient evidence to show that
defendant’s proffered reason for the discipline was a mere pretext for discrimination on the basis
of plaintiff’s race or gender, as distinct from retaliation for plaintiff’s engaging in an activity
protected by Title VII. See Abrams, 764 F.3d at 251. Even if “defendant’s explanation for an
employment practice is ‘unworthy of credence,’” the plaintiff still must ultimately prove “[t]he
crucial element,” for his cause of action, which is “discrimination, not dishonesty.” Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147 (2000)); Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 155–156 & 155 n.5
(2d Cir. 2010); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 514–15 (1993).

24

Therefore, a discrimination claim may require more than just evidence that an employee
was treated differently from his co-workers—it requires proof that the differential treatment was
actually motivated by plaintiff’s protected status. The matter is further complicated in this case,
in part because plaintiff’s job duties entailed open discussions of race and gender, and in part
because plaintiff was criticized—and targeted—only for his job performance.
In support of his racial discrimination claim, plaintiff points to evidence suggesting that
he, specifically, was treated differently than others: (1) Callahan’s FOIA request and his shifting
reasons for requesting plaintiff’s e-mails; (2) plaintiff’s discipline for computer misuse and
others’ lack of discipline for the same misconduct; (3) Arnone’s unusual personal involvement in
the disciplinary process; and (4) the fact that the Legislative and Administrative Advisor 2
position involved essentially the same job functions plaintiff had performed but added a
credential he did not hold, perhaps to purposefully exclude him from attaining that position in the
future. See Doc. #69 at 15–18. Plaintiff then places those specific instances of conduct in the
overall context of his work as an employee of the affirmative action unit, and he argues that a
reasonable jury could infer that plaintiff’s discipline was racially motivated because he ensured
fair consideration of candidates that may frequently have been of his same race.
I do not agree that this suffices for pretext on the racial discrimination claim. There is no
evidence to suggest that Callahan’s FOIA request was motivated by racial animus as opposed to
the desire to retaliate against plaintiff for his protected activities in support of Jackson.
Accordingly, the “cat’s paw” theory does not work for this claim for lack of an invidious paw.
Moreover, there is no evidence to suggest that the discipline imposed by Arnone was motivated
by racial animus in a manner distinct from any quarrels with how plaintiff did his job as an
advocate in the affirmative action unit for those frequently of the same race, see Cooper, 819

25

F.3d at 681, or in a manner distinct from any desire to retaliate against plaintiff for supporting
Jackson in Jackson’s claim of racial discrimination.
Nor does the fact that the DOC may have a history of discrimination in imposing
discipline raise a triable issue regarding pretext in this case. Plaintiff’s argument in this regard is,
as confirmed by plaintiff’s counsel at oral argument, essentially a species of his retaliation claim:
plaintiff was disciplined, at least in part, because he took seriously his role as an affirmative
action unit employee. But plaintiff’s work in the unit, alone, does not suffice to show pretext for
the decision to discipline him because of his race, and it speaks, if at all, to plaintiff’s claim of
retaliation. See ibid. Simply put, the tensions present in this toxic work environment and the
concomitant criticisms lodged against plaintiff for his work in the unit may have been related to
discussions of race, but those tensions do not, on the record here, lead to a triable inference that
plaintiff was targeted even in part because of his race.
The evidence likewise does not suffice for pretext on any gender discrimination claim,
which plaintiff’s counsel confirmed at oral argument is supported by the same evidence he
advances in support of his prima facie case: that a member outside of plaintiff’s protected class
succeeded in obtaining the position of Legislative and Administrative Advisor 2, a position for
which plaintiff was admittedly unqualified. Even viewing the facts in the light most favorable to
plaintiff, it would not be reasonable to infer, without more, that defendant added qualifications (a
law degree) and job duties (e.g., drafting proposed legislation and regulations) to the Legislative
and Administrative Advisor 2 position, which was later filled by a woman, in order to exclude
and discriminate against plaintiff because of his gender.

26

In short, no reasonable jury could conclude that plaintiff’s discipline was motivated by
his race or gender. Therefore, I will grant defendant’s motion for summary judgment on
plaintiff’s claim of Title VII discrimination.
Equal Protection Claims
Lastly, the individual defendants move for summary judgment on plaintiff’s equal
protection claims brought pursuant to § 1983. “Once action under color of state law is
established, [plaintiff’s] equal protection claim parallels his Title VII claim. The elements of one
are generally the same as the elements of the other and the two must stand or fall together.” See
Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004). Because there is no genuine issue of
fact to support plaintiff’s Title VII discrimination claim against the DOC, there is no need for me
to consider his cognate equal protection discrimination claims against the individual defendants.
On the other hand, because I have concluded that a genuine fact issue remains as to plaintiff’s
Title VII retaliation claim, I will consider the remaining equal protection claims insofar as they
rest on plaintiff’s evidence of retaliation.
The individual defendants each assert that they are entitled to qualified immunity for their
actions. Not every violation of the Constitution justifies an award of money damages in a civil
lawsuit like this one. That is because the doctrine of qualified immunity protects individual
government officials “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In this manner, “qualified immunity
gives government officials breathing room to make reasonable but mistaken judgments about
open legal questions.” Lane v. Franks, 134 S. Ct. 2369, 2381 (2014). It follows that a public
official is entitled to qualified immunity if “(1) his conduct does not violate clearly established

27

statutory or constitutional rights of which a reasonable person would have known, or (2) it was
objectively reasonable for him to believe that his actions were lawful at the time of the
challenged act.” Simpson v. City of New York, 793 F.3d 259, 268 (2d Cir. 2015).
Evaluating the first prong of qualified immunity, I conclude that the right to be free from
retaliation for engaging in activity protected by Title VII was clearly established in 2011 at the
time of the conduct at issue in this case. See Hicks, 593 F.3d at 171 (2010 ruling stating that
Equal Protection Clause prohibits retaliation for “participation in discrimination investigations
and proceedings”); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 81–82 (2d
Cir. 2015) (discussing Hicks and reaffirming principle that “[w]hen a supervisor retaliates
against an employee because he complained of discrimination, the retaliation constitutes
intentional discrimination against him for purposes of the Equal Protection Clause.”).
Turning to the second prong, I would ordinarily evaluate the objective reasonableness of
the defendant’s actions. But an equal protection claim requires a showing of subjective intent to
discriminate or retaliate. See Vega, 801 F.3d at 82. Where, as here, the constitutional claim
contains a subjective component such as the specific intent to retaliate against plaintiff because
of a protected activity, the qualified immunity inquiry changes. To avoid the bar of qualified
immunity on a motion for summary judgment, plaintiff must make a “heightened” showing of
“particularized evidence of direct or circumstantial facts . . . supporting the claim of an improper
motive . . . . [T]he particularized evidence of improper motive may include expressions by the
officials involved regarding their state of mind, circumstances suggesting in a substantial fashion
that the plaintiff has been singled out, or the highly unusual nature of the actions taken.” Blue v.
Koren, 72 F.3d 1075, 1084 (2d Cir. 1995); Baker v. Connecticut, 2006 WL 581205, at *14–15
(D. Conn. 2006).

28

As for defendant Tracey Butler, plaintiff has fallen woefully short of his burden to
adduce “particularized evidence” of an improper motive to retaliate against plaintiff for
participating in the investigation of Callahan’s complaint against Jackson, or for opposing
discrimination made unlawful by the Equal Protection Clause.11 Plaintiff has offered evidence
only for his claim that Butler discriminated against him on the basis of his race, but insofar as
that same evidence might be probative of his claim of retaliation, Butler’s alleged actions
occurred long after plaintiff’s discipline and removal as manager, and they had little, if anything,
to do with plaintiff’s participation in his own or Jackson’s internal complaints. I will grant
summary judgment to Butler on the basis of qualified immunity.
As for defendant Kimberly Weir, plaintiff again offers evidence relating only to his claim
that Weir harbored discriminatory—and not retaliatory—animus towards plaintiff, and only with
respect to events occurring after plaintiff’s discipline for computer misuse. The evidence of
Weir’s distrust of plaintiff may be strong, but it does not arise in a context suggestive of a desire
to retaliate against plaintiff for participating in the investigation of Callahan’s complaint against
Jackson, or for opposing discrimination made unlawful by the Equal Protection Clause. The
record does not reasonably support an inference that Weir cared, one way or another, about
plaintiff’s participation in the Jackson/Callahan dispute, or about plaintiff’s lodging of his own
claims of discrimination against others. Instead, the records suggest only that Weir was a
demanding and sometimes antagonistic boss to most (if not all) of her subordinates, of all races
and genders, and regardless whether they had engaged in protected activity. I will grant summary
judgment to Weir on the basis of qualified immunity.

Plaintiff alleges that: (1) Butler unreasonably scrutinized plaintiff’s FMLA leave (even if he was never
denied leave) in 2012; see Doc. #60-41; (2) in June of 2012, Butler declined to discipline plaintiff’s co-worker,
Loyda Borton, for making age-based comments about plaintiff, see Doc. #71-11; and (3) Butler did not allow
plaintiff to put documents into his personnel file, see Doc. #61-1 at 146.
11

29

As for defendant Sandra Sharr, plaintiff effectively abandoned his claim against her at
oral argument. Even if this claim had not been abandoned, I find that plaintiff has adduced no
admissible evidence about Sharr in support of his claim. The only evidence in the record is
plaintiff’s “reasonabl[e] belie[f] [that] Sandra Sharr tipped off Callahan that I have filed a
complain[t] against him” for the incident of March 29, 2011, see Doc. #70-3 at 1 ¶ 5, which in
part may have prompted Callahan’s FOIA request. But there is no admissible evidence in the
record here on this point, and so I will grant summary judgment to Sharr on the basis of qualified
immunity because plaintiff has failed to make any particularized and admissible showing of
Sharr’s improper motive.
As for defendant Arnone, the evidence also falls short of creating a jury issue that he
acted against plaintiff because of plaintiff’s protected activity. As the ultimate decisionmaker,
there is no doubt that Arnone took action adverse to plaintiff, but the issue remains whether he
did so because of plaintiff’s involvement in protected activity. Although the evidence suggests
that Arnone generally favored Callahan over Jackson and that he distrusted Jackson, there is no
“particularized” evidence that Arnone specifically wished to target Jackson’s protected activity
of filing a complaint against Callahan, much less that Arnone derivatively sought to target
plaintiff because of plaintiff’s protected activity in support of Jackson. There were ample
alternative reasons involving plaintiff’s improper use of the DOC’s computer for Arnone’s
disciplinary action against plaintiff; thus, the evidence falls well short of any “heightened”
showing of a specific improper motive by Arnone. Arnone is entitled to qualified immunity.
As for defendant Callahan, I conclude that he is not entitled to qualified immunity at this
time. Callahan’s decision to FOIA plaintiff’s e-mails was a “highly unusual” action that, in light
of the context by which it arose, Callahan’s own statements in e-mails to plaintiff and Jackson,

30

and the dates listed within the request itself, provides particularized evidence of an impermissible
motive to retaliate against plaintiff for his protected activity.
CONCLUSION
Defendants’ motion for summary judgment (Doc. #60) is GRANTED in part as to Count
I (Title VII discrimination) and DENIED in part as to Count I (Title VII retaliation); GRANTED
as to Count II (CFEPA discrimination and retaliation); GRANTED as to Count III (equal
protection claim against defendant Leo Arnone); DENIED as to Count IV (equal protection
claim against defendant Daniel Callahan); and GRANTED as to Counts V through VII (equal
protection claims against defendants Kimberly Weir, Tracey Butler, and Sandra Sharr).
The parties shall file their joint trial memorandum by August 2, 2017. Jury selection shall
proceed on September 7, 2017 (with a back-up jury selection date of October 5, 2017, in the
event that other trials take precedence). Please refer to the District of Connecticut website for my
“Trial Preferences” and “Instructions for Joint Trial Memorandum.”
It is so ordered.
Dated at New Haven, Connecticut, this 2d day of June 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

31