Reaes v. Bridgeport
ORDER granting 38 defendant's motion for summary judgment. See attached ruling. Signed by Judge Donna F. Martinez on 2/10/17. (Brierley, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CITY OF BRIDGEPORT,
CASE NO. 3:13cv1508(DFM)
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Thiago Reaes, brings this action against the
City of Bridgeport (the “City”) pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., and the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. § 46a-60(a)(1).
that the City discriminated against him on the basis of his
Brazilian national origin when it refused to hire him as a
Currently pending is the City’s motion for summary
judgment. (Doc. #38.)
For the reasons set forth below, the
motion is GRANTED. 1
The following facts, drawn from the parties’ Local Rule
56(a) statements, are undisputed.
is not a recommended ruling; the parties consented to
the jurisdiction of a magistrate judge. (Doc. #33.) See 28
U.S.C. § 636(c); Fed.R.Civ.P. 73(b).
On June 20, 2011, the City announced an examination for the
position of entry level firefighter.
(City’s Local Rule
56(a)(1) Statement of Facts (“City’s SOF”), Doc. #38-1, ¶ 2;
Plaintiff’s Local Rule 56(a)(2) Statement (“Pl.’s SOF”) ¶ 2.)
Applicants were required to pass a written and oral examination;
submit to a physical examination and drug screening; undergo a
background investigation; take a pre-employment psychological
evaluation; and be recommended for hire by licensed psychologist
Dr. Mark J. Kirschner, whom the City retained to conduct the
(City’s SOF ¶¶ 2, 4; Pl.’s SOF ¶¶ 2, 4.)
psychological evaluation consisted of: the California
Personality Inventory (“CPI”) test; the Personality Assessment
Inventory (“PAI”) test; the psychological history report
(“PsyQ”);2 a writing sample; and a clinical interview.
SOF ¶ 6; Pl.’s SOF ¶ 6.)
On August 16, 2012, plaintiff completed the psychological
examination3 and met with Dr. Kirschner for his clinical
CPI is used widely in public safety selection as a
measure of emotional suitability and effective interpersonal
functioning. (City’s SOF ¶ 10; Pl.’s SOF ¶ 10.) The PAI is a
measure of emotional stability and abnormal personality
functioning. (Id.) The PsyQ is a self-reporting questionnaire
that provides life history information pertinent to the
evaluations of candidates for public safety positions. (Id.)
3Dr. Kirschner delegated the administration of the testing
instruments to administrative employee Michelle Falango. He
could not attest to her level of education. (City’s SOF ¶ 9;
(City’s SOF ¶ 15; Pl.’s SOF ¶ 15.)
interviews of job candidates, including plaintiff, Dr. Kirschner
discussed topics such as education, employment, military and law
enforcement experience, driving history, adult relationships,
financial history, legal history, substance abuse, developmental
history, parental responsibilities, and psychological treatment
and evaluation history.4
(City’s SOF ¶ 12; Pl.’s SOF ¶ 12.)
Kirschner wrote a report of his findings based on plaintiff’s
interview and test results.
(City’s SOF ¶ 22; Pl.’s SOF ¶ 22.)
Dr. Kirschner opined that plaintiff’s responses on the CPI were
made in a manner to portray himself in an overly favorable
light--a tactic Dr. Kirschner describes as “faking good.”
(City’s SOF ¶ 22(a); Pl.’s SOF ¶ 22.)
As for the PAI, Dr.
Kirschner concluded that plaintiff’s approach was defensive,
suggesting an unwillingness to admit to many normal human
(City’s SOF ¶ 22(b); Pl.’s SOF ¶ 22.)
Pl.’s SOF ¶ 9.) Dr. Kirschner did not meet plaintiff until
after he completed the tests. (Pl.’s SOF ¶ 21.)
4During plaintiff’s clinical interview, Dr. Kirschner
learned, for example, that plaintiff grew up in Brazil and
speaks Portuguese and English. (City’s SOF ¶ 14; Pl.’s SOF ¶
14.) Plaintiff moved to the United States on a partial college
soccer scholarship when he was 21 years old. (Id.) He earned
30 college credits before quitting because of financial
difficulty. (Id.) Plaintiff has worked as a climate specialist
at the University of Connecticut; as a bartender; and as a
fitness instructor. (Id.) At the time of the interview, he
worked as a part-time tennis instructor. (Id.)
plaintiff’s test-taking approach as careless, which made him
question plaintiff’s integrity and the overall validity of his
(City’s SOF ¶ 22(c); Pl.’s SOF ¶ 22.)
Kirschner did not recommend plaintiff for hire.
(City’s SOF ¶
23; Pl.’s SOF ¶ 23.)
Dr. Kirschner sent his report and recommendation to the
City’s personnel director, David Dunn.
SOF ¶ 23.)
(City’s SOF ¶ 23; Pl.’s
On August 24, 2012, Mr. Dunn sent plaintiff a letter
explaining that he had been disqualified from the hiring process
based on the results of his psychological evaluation.
SOF ¶ 25; Pl.’s SOF ¶ 25.)
Plaintiff appealed that decision to
the Bridgeport Civil Service Commission (the “Commission”).
(City’s SOF ¶ 26; Pl.’s SOF ¶ 26.)
In support of his appeal, plaintiff submitted a two-page
report from Dr. Misty Ginicola, an associate professor of
developmental psychology at Southern Connecticut State
(City’s SOF ¶ 28; Pl.’s SOF ¶ 28.)
opined that administering a personality test on “someone who is
a cultural minority or who speaks English as a second language
is very problematic, in terms of validity (accuracy of the
measure) and reliability (consistency of testing).”
¶ 30; Pl.’s SOF ¶ 30; Def. Ex. N, Doc. #38-3, p. 26.)
explained that “[p]ersonality testing relies on the use of
cultural norms and norming groups to establish acceptable
She also noted that “language is always
important when it comes to assessment, in order to understand
and answer each item appropriately.”
asserted that “[i]f English is not the test taker’s first
language, ethical guidelines require that the test be
administered in their native language to assure validity.”
Dr. Ginicola also opined on the use of the CPI and the
PAI in general.
(City’s SOF ¶ 31; Pl.’s SOF ¶ 31; Def. Ex. N,
Doc. #38-3, pp. 26-27.)
She asserted that the CPI has “low
validity,” and even more so for test takers from “culturally
As to the PAI, she opined that
administrators should use “extreme caution” when giving this
test to non-native English speakers.
expressed that in her professional opinion, the CPI and PAI
“should either be given in [plaintiff’s] native language or
alternative assessments should be given.”
After a hearing, the Commission denied plaintiff’s appeal.
(City’s SOF ¶¶ 35, 36; Pl.’s SOF ¶¶ 35, 36.)
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
A “material” fact is a fact that influences the
case’s outcome under governing law.
Inc., 477 U.S. 242, 247–48 (1986).
Anderson v. Liberty Lobby,
A “genuine” dispute is one
that a reasonable jury could resolve in favor of the non-movant.
The moving party bears the initial burden of establishing
that there are no genuine disputes as to any material fact.
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Once such a showing is made, the non-movant must show that there
is a genuine issue for trial.
The court may rely on
admissible evidence only, Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010), and must view the evidence in the record in the
light most favorable to the non-movant, drawing all reasonable
inferences in that party’s favor.
Weinstock, 224 F.3d at 41.
A party opposing summary judgment cannot defeat the
motion by relying on the allegations in his pleading, or
on conclusory statements, or on mere assertions that
affidavits supporting the motion are not credible. At
[p]laintiffs are required to present admissible evidence
in support of their allegations; allegations alone,
without evidence to back them up, are not sufficient .
. . .
Summary judgment cannot be defeated by the
presentation . . . of but a scintilla of evidence
supporting [a] claim . . . .
Rafael v. State of Conn. Dep’t of Children & Families, No. 3:14CV-1746 (VLB), 2017 WL 27393, at *3 (D. Conn. Jan. 3, 2017)
(citations and internal quotation marks omitted).
Title VII of the Civil Rights Act provides that “[i]t shall
be an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to
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
42 U.S.C. § 2000e–2(a)(1).5
“Title VII prohibits both intentional discrimination (known
as ‘disparate treatment’) as well as, in some cases, practices
that are not intended to discriminate but in fact have a
disproportionately adverse effect on minorities (known as
Ricci v. DeStefano, 557 U.S. 557, 577
Plaintiff does not indicate whether his claim is based
on disparate impact or disparate treatment.
theory, he fails to make a prima facie case.
A. Disparate Impact
Title VII prohibits “practices that are fair in form, but
discriminatory in operation.”
Griggs v. Duke Power Co., 401
claims “proceed under the same analysis as federal
Title VII claims.” Traverso v. State Dep’t of Educ., No.
HHDCV095033170S, 2016 WL 5003985, at *3 (Conn. Super. Ct. Aug.
11, 2016); see also Cutler v. Stop & Shop Supermarket Co., 513
F. App’x 81, 82 (2d Cir. 2013).
U.S. 424, 431 (1971).
“[A] plaintiff need not show that an
employer6 intended to discriminate to state a claim under Title
Rather, [a] prima facie violation of [Title VII] may be
established by statistical evidence showing that an employment
practice has the effect of denying the members of one race equal
access to employment opportunities.”
Gulino v. N.Y. State Educ.
Dep’t, 460 F.3d 361, 382 (2d Cir. 2006) (internal quotation
“Disparate impact claims follow a three-part analysis
involving shifting evidentiary burdens.”
the initial burden of establishing a prima facie case.
To do so, the plaintiff must first identify the
employment practice allegedly responsible for the
disparities . . . .
The plaintiff must then produce
statistical evidence showing that the challenged
practice causes a disparate impact on the basis of race,
color, religion, sex, or national origin . . . . Once
the plaintiff has established a prima facie case of
disparate impact discrimination, the defendant has two
Title VII, an “employer” is defined as “a person
engaged in an industry affecting commerce . . ., and any agent
of such person.” 42 U.S.C. § 2000e(b). Plaintiff asserts that
the City is liable for the alleged discriminatory conduct of Dr.
Kirschner because he acted as an agent of the City. The City
does not contest liability on these grounds. “The term ‘agent’
is not defined by Title VII, but has been interpreted by courts
as an individual who serves in a supervisory position and
exercises significant control over the plaintiff’s hiring,
firing or conditions of employment.” Grey v. Norwalk, 304 F.
Supp. 2d 314, 326 (D. Conn. 2014); see also Pathan v. Conn., 19
F. Supp. 3d 400, 416 (D. Conn. 2014) (“The language of Title VII
makes clear that Congress intended for agents of employers to be
held to the same standards as employers.”).
avenues of rebuttal. First, the defendant may directly
attack plaintiff’s statistical proof by pointing out
deficiencies in data or fallacies in the analysis . . .
. Second, the defendant may rebut a plaintiff’s prima
facie showing by demonstrat[ing] that the challenged
practice is job related for the position in question and
consistent with business necessity . . . . Finally, if
the defendant meets the burden of showing that the
challenged practice is job related, the plaintiff can
only prevail by showing that other tests or selection
devices, without a similarly undesirable racial effect,
would also serve the employer’s legitimate interest in
efficient and trustworthy workmanship.
Here, plaintiff appears to espouse a disparate impact
theory when he contends that the testing instruments used in the
psychological evaluation are “culturally biased.”
Doc. #47, p. 18.)
Specifically, he alleges that
[c]andidates, such as the plaintiff, who have a different
cultural background from the dominant American culture
are at a disadvantage relative to their peers in the
psychological evaluation component of the defendant’s
selection process because Dr. Kirschner refused to take
into consideration that they were likely to have
different background knowledge and experience, or
possess different sets of cultural values and beliefs,
and therefore respond to questions differently.
(Pl. Br., Doc. #47, pp. 32-33.)
Plaintiff offers only Dr. Ginicola’s report in support.
This is insufficient to meet plaintiff’s burden of proof--he has
not produced any “statistical evidence showing that the
challenged practice causes a disparate impact on the basis of .
. . national origin.”
Gulino, 460 F.3d at 382; see also Briscoe
v. City of New Haven, 967 F. Supp. 2d 563, 586 (D. Conn. 2013),
quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994
(1988) (“‘[P]laintiff must offer statistical evidence of a kind
and degree sufficient to show that the practice in question has
caused the exclusion of applicants for jobs or promotions
because of their membership in a protected group.’”).
reasons, to the extent plaintiff attempts to make a disparate
impact claim, he fails to establish a prima facie case.
B. Disparate Treatment
Plaintiff also engages in an argument that suggests a
disparate treatment theory.
This too fails.
In disparate treatment cases, “the plaintiff is required to
prove that the defendant had a discriminatory intent or motive.”
Watson, 487 U.S. at 986; see also United States v. City of N.Y.,
713 F. Supp. 2d 300, 316 (S.D.N.Y. 2010) (“Unlike disparate
impact claims, disparate treatment claims require proof of an
employer’s discriminatory motive . . . .”).
Title VII disparate treatment claims are evaluated under
the three-step, burden-shifting analysis described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
plaintiff first must establish a prima facie case by showing
that he is a member of a protected class; he was qualified for
the position for which he applied; he suffered an adverse
employment action; and the adverse employment action occurred
under circumstances giving rise to an inference of
Id. at 802.
If the plaintiff
establishes a prima facie case, the burden of production shifts
to the employer to articulate a legitimate, non-discriminatory
reason for the adverse employment action.
Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citing
McDonnell, 411 U.S. at 804).
If the employer does so, the
burden shifts back to the plaintiff to prove by a preponderance
of the evidence that the employer’s proffered reason was a
pretext for discrimination.
Burdine at 253.
burden of persuasion “remains at all times with the plaintiff.”
1. Prima Facie Case
The evidence necessary to satisfy the plaintiff’s initial
burden is de minimis.
Zimmermann v. Assoc. First Capital Corp.,
251 F.3d 376, 381 (2d Cir. 2001).
Here, the City concedes that
plaintiff is a member of a protected class, was qualified for
the position for which he applied, and suffered an adverse
Thus, the only remaining question is whether
plaintiff has demonstrated circumstances giving rise to an
inference of discrimination.
A plaintiff can support this
(a) demonstrating that similarly situated employees of
a different race or national origin were treated more
favorably, (b) showing that there were remarks made by
decisionmakers that could be viewed as reflecting a
discriminatory animus, or (c) proving that there were
other circumstances giving rise to an inference of
discrimination on the basis of plaintiff’s . . . national
origin . . . .
Nguyen v. Dep’t of Corr. & Cmty. Servs., 169 F. Supp. 3d 375,
389 (S.D.N.Y. 2016) (citation and internal quotation marks
Here, plaintiff must offer evidence that gives rise
to an inference that Dr. Kirschner administered the
psychological examination differently to plaintiff because of
his national origin.
Plaintiff fails in that regard.
“A plaintiff may raise an inference of discriminatory
intent by showing that the employer . . . treated [him] less
favorably than a similarly situated employee outside [his]
protected group—i.e., a ‘comparator.’”.
Joye v. PSCH, Inc., No.
14CV3809 (DLC), 2016 WL 6952252, at *6 (S.D.N.Y. Nov. 28, 2016);
see also Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d
Cir. 2003) (“[A] showing that the employer treated plaintiff
less favorably than a similarly situated employee outside his
protected group is a recognized method of raising an inference
of discrimination for purposes of making out a prima facie
A plaintiff relying on comparator evidence “must show
[he] was similarly situated in all material respects to the
individuals with whom [he] seeks to compare [himself].”
v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000).
Here, plaintiff has not named a comparator, let alone shown
that the City “treated him less favorably than a similarly
situated employee outside of his protected group.”
F.3d at 39; see, e.g., Russell v. Hughes, No. 3:07-CV-1527
(WWE), 2009 WL 1212754, at *3 (D. Conn. Apr. 30, 2009) (granting
summary judgment where plaintiff “failed to produce any evidence
regarding . . . comparators, including their names, their
supervisors, their positions or their actions that may be
analogous to plaintiff’s.”).
b. Discriminatory Remarks by Decisionmakers
Another way a plaintiff can show disparate treatment is
through evidence of remarks made by decisionmakers that could be
viewed as reflecting a discriminatory animus.
employer who discriminates is unlikely to leave a ‘smoking gun’
attesting to a discriminatory intent, a victim of discrimination
is seldom able to prove his claim by direct evidence, and is
usually constrained to rely on circumstantial evidence.”
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.
As is so often the case, there is no smoking gun here.
c. Other Circumstances
Lastly, a plaintiff can make a prima facie case of
disparate treatment “by showing other circumstances giving rise
to an inference of discrimination.”
Farias v. Instructional
Svs., Inc., 259 F.3d 91, 98 (2d Cir. 2001).
Plaintiff argues that “Dr. Kirschner, in conducting the
psychological examination, failed to adhere to the ethics and
procedures of his profession . . . and ignored the impact that
the plaintiff’s ethnicity, where English was not his dominant
language, [might have] on the results of the psychological
(Pl. Br., Doc. #47, pp. 17-18.)
on what he describes as Dr. Kirschner’s “pronounced deviation”
from the American Psychological Association Ethical Principles
of Psychologists and Code of Conduct (“APA Ethical Principles”).
He asserts that Dr. Kirschner deviated from the APA Ethical
Principles in two ways: (1) by delegating the administration of
the psychological examination to a receptionist who did not have
proper education, training, or experience; and (2) by refusing
to consider plaintiff’s culture, ethnicity, and language
difference when assessing plaintiff’s test results.
Even if Dr. Kirschner deviated from the APA Ethical
Principles, plaintiff has not shown how such deviation gives
rise to an inference of discriminatory intent on the basis of
his national origin.7
At the prima facie stage, “[t]he only
relevant inquiry is whether Plaintiff has come forward with
enough evidence from which a rational fact finder could infer
unlawful discriminatory animus on the part of [Defendants] . . .
When a plaintiff fails to present evidence to establish any
such causal link between [the adverse employment action] and his
[protected class,] summary judgment is appropriate.”
N.Y. City Dep’t of Educ., 39 F. Supp. 3d 314, 322 (E.D.N.Y.
2014) (citation and internal quotation marks omitted); see,
e.g., Whaley v. City Univ. of N.Y., 555 F. Supp. 2d 381, 402
(S.D.N.Y. 2008) (granting summary judgment on Title VII
discrimination claim where “no evidence support[ed] any finding
of discriminatory animus.”).
Although the burden of establishing a prima facie case is
slight, plaintiff has not put forth evidence that satisfies this
He fails to provide concrete evidence of
contends that Dr. Kirschner’s alleged deviation
from the APA Ethical Principles is “tantamount to an employer’s
failure to follow its established hiring procedures, and is
evidence of discrimination.” (Pl. Br., Doc. #47, p. 22.) This
argument is misplaced here--it is more fitting at the pretext
stage. See Bagley v. J.P. Morgan Chase & Co., No. 10 CIV. 1592
PGG, 2012 WL 2866266, at *15 (S.D.N.Y. July 12, 2012) (“Although
[v]iolation of an organization’s internal procedures alone is
insufficient to create an inference of discrimination [or
retaliation] . . ., [f]ailure to follow internal procedures can
. . . be evidence of pretext.” (citations and internal quotation
circumstances giving rise to an inference of discrimination.
See D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)
(holding that party opposing summary judgment “must offer some
hard evidence showing that its version of the events is not
On this record, plaintiff’s disparate
treatment claim fails at the prima facie stage.
2. Employer’s Non-Discriminatory Reason
Even if plaintiff had established a prima facie case of
disparate treatment, the City has articulated a legitimate
nondiscriminatory reason for refusing to hire him.
At the second stage of the McDonnell Douglas analysis, an
employer’s burden is to “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
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507
(1993) (internal quotation marks omitted).
“burden of production is not a demanding one; it need only offer
an explanation for the employment decision.”
Campbell v. Cty.
of Onondaga, No. 504-CV-1007 (NAM)(GHL), 2009 WL 3163498, at *17
(N.D.N.Y. Sept. 29, 2009).
Here, the City sets forth evidence
to show that it did not hire plaintiff because of his
performance on the psychological evaluation.
The City has met
Even if the court were to reach the last prong of the
McDonnell Douglas analysis, summary judgment still would be
appropriate because plaintiff is unable to carry his ultimate
burden of proving that the City’s proffered rationale is “mere
pretext for actual discrimination.”
Weinstock, 224 F.3d at 42.
To satisfy this burden, which is “higher than that . . .
applied for analyzing the prima facie case,” Geoghan v. Long Is.
R.R., No. 06–CV–1435, 2009 WL 982451, at *21 (E.D.N.Y. Apr. 9,
2009), the “plaintiff must produce not simply ‘some’ evidence,
but sufficient evidence to support a rational finding that the
legitimate, non-discriminatory reasons proffered by the
defendant were false, and that more likely than not
discrimination was the real reason for the employment action.”
Weinstock at 42.
That evidence may be either direct or
circumstantial, but must, “taken as a whole, support a
sufficient rational inference of discrimination.”
not enough . . . to disbelieve the employer; the factfinder must
[also] believe the plaintiff’s explanation of intentional
St. Mary’s Honor Ctr., 509 U.S. at 519.
Here, to show pretext, plaintiff offers the same evidence
and makes the same arguments as he did to support his prima
Although plaintiff is entitled to rely “on the same
evidence used to support [his] prima facie case,” Kennebrew v.
N.Y. City Hous. Auth., No. 01 CIV 1654 (JSR)(AJP), 2002 WL
265120, at *14 (S.D.N.Y. Feb. 26, 2002), that evidence does not
show that the City’s legitimate nondiscriminatory reason for
refusing to hire plaintiff was pretext for discrimination.
Plaintiff does little more than conclude that the evidence
establishes pretext, which is insufficient to defeat summary
See, e.g., Gengo v. City Univ. of N.Y., No. 07-CV-681
(KAM)(JMA), 2010 WL 6372012, at *14 (E.D.N.Y. Dec. 2, 2010)
(holding that “plaintiff fails to demonstrate that the nondiscriminatory reason proffered by defendant is pretextual . . .
Plaintiff merely states in a conclusory fashion that pretext
is established by the evidence he compiled in support of his
prima facie case.”).
Unable to carry his burden of proof under either a
disparate impact or disparate treatment theory, summary judgment
For the foregoing reasons, defendant’s motion for summary
judgment (doc. #38) is GRANTED.
This is not a recommended ruling.
The consent of the
parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.
Appeals can be made directly to the
appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 10th day of
Donna F. Martinez
United States Magistrate Judge
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