Winter et al v. State of Connecticut et al
Filing
74
ORDER denying 72 Motion for Reconsideration in full as procedurally improper. Reconsideration is proper only in the case of an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Virgin Atl. Airways, Ltd. v. Natl Mediation Bd., 956 F.2d 12451255 (2d Cir. 1992). While Defendants articulate the standard for reconsideration in their motion, their arguments fall short of that high bar. Defendants es tablish no clear error in the Courts evaluation of the facts and law presented by the parties in their briefing for and against Judgment on the Pleadings and Summary Judgment. Nor do Defendants offer newly available evidence relevant to the Courts O rder. Defendants also fail to establish that the Courts ruling, while correct at the time, has been rendered in error by intervening law. A Motion for Reconsideration is not a vehicle for relitigating previously decided issues, or for raising new a rguments that could have been raised earlier. Defendants Motion is accordingly denied. The Court also directs the parties' attention to the attached Corrected Memorandum of Decision Granting and Denying, in Part, Defendants' Motion for Judgment on the Pleadings and Denying Defendants' Motion for Summary Judgment. The Corrected Memorandum of Decision remedies a clerical error in the text of the Court's conclusion, which incorrectly stated Plaintiffs' Title VII claims were to continue against individuals in their official capacities. Signed by Judge Vanessa L. Bryant on 10/19/2016. (Hudson, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE WINTER,
:
HOWARD JACOBS, AMY JONES,
:
JAMES SMOLLEN, BILL CORTEZ,
:
FRED TORRES, CHRIS ST. JACQUES,:
AND TONY SANTOS,
:
Plaintiffs,
:
:
v.
:
:
STATE OF CONNECTICUT,
:
CONNECTICUT DEPARTMENT OF
:
MOTOR VEHICLES, PHILIPPIA
:
FLETCHER-DENOVELLIS, DAN
:
CALLAHAN, NATALIE SHIPMAN,
:
AND VICTOR DIAZ,
:
:
Defendants.1
CIVIL ACTION NO.
3:14-cv-1139 (VLB)
October 19, 2016
CORRECTED MEMORANDUM OF DECISION GRANTING AND DENYING, IN PART,
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Dkt. ## 53, 63]
Plaintiffs George Winter (“Winter”), Howard Jacobs (“Jacobs”), Amy Jones
(“Jones”), James Smollen (“Smollen”), Bill Cortez (“Cortez”), Fred Torres
(“Torres”), Chris St. Jacques (“St. Jacques”), and Tony Santos (“Santos”),
employees of the Connecticut Department of Motor Vehicles (“DMV”), bring
claims of race and age discrimination under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Equal Protection Clause, pursuant
to 42 U.S.C. § 1983, and the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. § 46a-60(a), et seq., against Defendants the State of
Connecticut and the DMV, and individual defendants Philippia FletcherDeNovellis (“Fletcher-DeNovellis”), Dan Callahan (“Callahan”), Natalie Shipman
1
The Court GRANTS Plaintiffs’ unopposed motion to withdraw their Second
Amended Complaint against Defendants Elizabeth Kranz and James Rio. See
[Dkt. #62]
1
(“Shipman”), and Victor Diaz (“Diaz”) (collectively the “Employer Defendants”).2
The Employer Defendants have moved for judgment on the pleadings and for
summary judgment. The Caucasian plaintiffs allege that they were victims of
reverse discrimination, claiming that the Defendants promoted a younger African
America male applicant instead of them on the basis of his race and age, thereby
denying them a promotion on the basis of their race and age. For the reasons that
follow, the motion for judgment on the pleadings is GRANTED and DENIED in
part, and the motion for summary judgment is DENIED.
I.
Factual Background
Plaintiffs allege that during the events in question, they were each employed
by the DMV. [Dkt. #23, Second Am. Compl. at ¶ 4]. In 2012, the DMV conducted a
promotional exam. [Id. at ¶ 13]. In order to be eligible for a promotion, the DMV
employee must have served as a Motor Vehicle Inspector for at least four years.
[Id. at ¶ 14]. For this round of promotions, the DMV initially set a closing date of
February 17, 2012, by which point all employees seeking promotion would need to
have satisfied the four-year service requirement. [Id. at ¶ 15]. At the Police Union’s
request, the closing date for the position was moved back four days, to February
21, 2012. [Id. at ¶ 16].
One of the positions open for promotion was that of sergeant. [Id. at ¶ 15].
The plaintiffs allege that the DMV implemented a program called “Temporary
Service in a Higher Class,” through which applicants were interviewed and
temporarily promoted to the sergeant position before their written examinations
2
While Plaintiffs originally brought claims against each individual defendant in
both their individual and official capacity, they subsequently withdrew their
official capacity claims against Defendant Diaz. See [Dkt. ## 48-49].
2
were graded. [Id.]. An African American male, Robert Tyson (“Tyson”) and each
of the Plaintiffs applied for the sergeant position and took the sergeant
examination. None of the Plaintiffs are African-American and all are over forty years
old. [Id. at ¶ 37].
In the course of reviewing the personnel files of each of the applicants for
the position, Defendant Fletcher-DeNovellis, a human resources employee,
discovered that the date on which Tyson began his employment with the DMV had
been inaccurately recorded in the agency’s computer system. [Id. at ¶ 18]. On
March 20, 2012, Fletcher-DeNovellis advised all applicants scheduled for
interviews on March 21 and March 23, 2012 that the interviews had been postponed
indefinitely. [Id. at ¶ 17]. The next day, March 21, 2012, the agency notified Tyson
that he was not eligible to sit for the sergeant exam, based on the February 21, 2012
closing deadline. [Id. at ¶ 19].
Two days later, on March 23, 2012, Tyson appealed the denial of his eligibility
to take the sergeant exam, and he claimed that in denying his application, the DMV
discriminated against him on the basis of his race and age. [Id. at ¶ 20]. On March
27, 2012, Tyson filed a formal complaint against the DMV and James Rio, a Division
Chief at the DMV. [Id. at ¶ 21]. The complaint alleged that Tyson was denied the
opportunity for promotion because he was an African-American and the youngest
candidate who applied for a promotion. [Id.]. Plaintiffs contend that Tyson’s formal
complaint was never investigated. [Id. at ¶ 22].
On April 27, 2012, a new sergeant exam was announced, with a closing date
of May 11, 2012. [Id. at ¶ 23]. Tyson and another police inspector, whose race and
age are not disclosed, had sufficient tenure to qualify for promotion to sergeant
3
based on the later closing date. [Id. at ¶ 24]. On the same day as the closing date,
May 11, Tyson withdrew his formal complaint. [Id. at ¶ 25]. After the closing date,
a four-person interview panel was assembled to conduct interviews on June 28,
June 29, and July 6, 2012. [Id. at ¶¶ 26-27]. The panel consisted of Chief Rio, whom
Tyson named in his March 27, 2012 complaint, Elizabeth Kranz, a branch manager,
and Defendants Fletcher-DeNovellis and Diaz, Deputy Commissioner of the DMV.
[Id. at ¶ 27]. In light of Tyson’s allegations, Rio sought to remove himself from the
panel, but Defendant Callahan, who was aware of the substance of Tyson’s
complaint, encouraged Rio to remain on the panel. [Id. at ¶¶ 22, 28]. During his
interview with the panel, Tyson disclosed the complaint, and the panel members
discussed it afterwards. [Id. at ¶ 29].
Following the interviews, the panel members prepared a flow chart in which
they ranked each of the candidates. [Id. at ¶ 30]. Defendant Shipman, the DMV’s
Equal Employment Opportunity Manager, signed off on the chart, which designated
three applicants as “highly recommended.” [Id. at ¶¶ 12, 31-32]. Tyson was one of
the three applicants so designated. [Id. at ¶ 32]. Like Callahan, Shipman was aware
of and discussed Tyson’s formal complaint, though neither she nor anyone else
investigated it. [Id. at ¶¶ 22, 31]. Thereafter, Tyson and the other applicant were
approved for two of the sergeant positions. [Id. at ¶ 33]. Neither Tyson nor the
other successful applicant had sufficient tenure to qualify to sit for the exam the
first time the promotion was posted. [Id. at ¶ 33]. All of the Plaintiffs completed
the selection process for the sergeant position, but none were selected. [Id. at ¶
34]. Plaintiffs further allege that the selection process did not comply with Conn.
4
Gen. Stat. § 5-220, which requires a delegation plan by heads of agencies and a
post-procedural audit. [Id. at ¶ 35].
II.
Defendants’ Motion for Judgment on the Pleadings
A. Standard for Judgment on the Pleadings
“After the pleadings are closed, but early enough not to delay trial, a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “A motion for
judgment on the pleadings is decided on the same standard as a motion to
dismiss under Fed. R. Civ. P. 12(b)(6).” Barnett v. CT Light & Power Co., 900 F.
Supp. 2d 224, 235 (D. Conn. 2012) (citing Hayden v. Paterson, 594 F.3d 150, 159
(2d Cir. 2010)).
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Sarmiento v. U.S., 678 F.3d 147, 152 (2d Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability, it stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(internal citations omitted).
5
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) or Rule 12(c) “is limited to the facts as asserted within the four corners of
the complaint, the documents attached to the complaint as exhibits, and any
documents incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007); see also Jureli, LLC v. Schaefer, 53 F. Supp. 3d 552,
554 (E.D.N.Y. 2014) (“[E]vidence outside of the pleadings may not be considered
by the Court when deciding a motion to dismiss pursuant to Fed. R. Civ. P.
12(c).”).
B. Plaintiffs’ Title VII Claims Against the Individual Defendants, Their §
1983 claims against Defendants the State of Connecticut, the DMV, and
the Individual Defendants in their Official Capacity, and Their CFEPA
Claims Are Dismissed
The unsustainability of Plaintiffs’ Title VII claims against the individual
defendants, their § 1983 claims against Defendants the State of Connecticut, the
DMV, and the individual defendants in their official capacity, and their CFEPA c
are well settled. “Title VII does not impose liability on individuals . . . .” Lore v.
City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012); see also Speigel v. Schulmann,
604 F.3d 72, 79 (2d Cir. 2010) (“[T]he remedial provisions of Title VII . . . do not
provide for individual liability.”). Accordingly, Plaintiffs’ Title VII claims against
individual defendants Fletcher-DeNovellis, Callahan, Shipman, and Diaz are
DISMISSED.
CFEPA claims brought against the state, state entities, and individual state
employees in their official capacities, like the claims Plaintiffs bring here, are
barred by the Eleventh Amendment and the State’s sovereign immunity. See,
e.g., Hubert v. State of Connecticut Dep’t of Corr., No. 14-cv-00476 (VAB), 2016
WL 706166, at *7 (D. Conn. Feb. 22, 2016) (dismissing official capacity claims
6
under the CFEPA); Perez v. Connecticut Dep’t of Corr. Parole Div., No. 3:13-cv150 (JCH), 2013 WL 4760955, at **4-5 (D. Conn. Sept. 4, 2013) (finding Eleventh
Amendment barred CFEPA claims against Connecticut Department of
Corrections and the Department of Administrative Services).
The Plaintiffs have failed to establish subject matter jurisdiction over their
remaining CFEPA claims because they fail to allege that they received release of
jurisdiction notices from the Connecticut Commission on Human Rights and
Opportunities (“CHRO”). “For any complaint dismissed pursuant to this
subsection, the executive director or the executive director's designee shall issue
a release of jurisdiction allowing the complainant to bring a civil action under
section 46a-100." Conn. Gen. Stat. Ann. § 46a-83 (West). The Connecticut
Supreme Court has held that an employee “can only bring a civil action against
the [employer] if she requests and obtains a release from the commission.”
Angelsca Prods., Inc. v. Comm'n on Human Rights & Opportunities, 248 Conn.
392, 405 (1999). See Anderson v. Derby Bd. of Educ., 718 F. Supp. 2d 258, 272 (D.
Conn. 2010) (“The courts of this District have consistently applied the exhaustion
provisions of the CFEPA to dismiss discrimination claims, finding a lack of
subject matter jurisdictions where the plaintiff failed to obtain the requisite
release prior to pursuing a private cause of action in court.”) (citing Pleau v.
Centrix, Inc., 501 F. Supp. 2d 321, 328 (D. Conn. 2007) and Conn. Gen. Stat. §§
46a-100 and 46a-101). Although Plaintiffs do allege that they received “right to
sue” letters from the Equal Employment Opportunity Commission (“EEOC”), see
[Dkt. #23, Second Am. Compl. at ¶ 38], such letters are insufficient to establish
jurisdiction over their CFEPA claims. See Sebold v. City of Middletown, No. 3:05-
7
cv-1205 (AHN), 2007 WL 2782527, at *19 (D. Conn. Sept. 21, 2007) (“A right to sue
letter from the EEOC does not permit a person to file a claim with the Superior
Court on an employment discrimination cause of action without a release of
jurisdiction from the CHRO because the right to sue from the EEOC has no legal
significance under the CFEPA.”).
While the CHRO and the EEOC have a work-sharing agreement under
which a CHRO release of jurisdiction letter suffices to satisfy the federal
exhaustion requirement, the terms of that agreement are not reciprocal and do
not provide that an EEOC right to sue letter satisfies the CFEPA exhaustion
requirement. Edwards v. William Raveis Real Estate, Inc., No. CIV.A. 08-CV1907JCH, 2009 WL 1407233, at *3 (D. Conn. May 19, 2009), citing Bogle–Assegai v.
State of Connecticut, 470 F.3d 498, 505 (2d Cir.2006). Accordingly, Plaintiffs’
CFEPA claims are DISMISSED.
Finally, Plaintiffs’ § 1983 claims against Defendants State of Connecticut,
the Connecticut DMV, and the individual defendants in their official capacities fail
as a matter of law because the Supreme Court has held “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.” Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
“[T]he Eleventh Amendment bars federal courts from accepting such suits
brought by private parties against an unconsenting State and its agencies,” and it
“is thus ‘clearly established that the Eleventh Amendment bars section 1983
claims against state agencies.’” Taylor v. Norwalk Cmty. Coll., No. 3:13-cv-1889
(CSH), 2015 WL 5684033, at *14 (D. Conn. Sept. 28, 2015) (quoting P.C. v. Conn.
Dep’t of Children & Families, 662 F. Supp. 2d 218, 226 (D. Conn. 2009)).
8
Accordingly, Plaintiffs’ § 1983 claims against Defendants State of Connecticut,
the Connecticut DMV, and the individual defendants in their official capacities are
DISMISSED.
C. The Amended Complaint States Claims Under § 1983 and Title VII
Against Defendants State of Connecticut, DMV, Callahan, Shipman,
Fletcher-DeNovellis, and Diaz
“To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and the laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, the Plaintiffs allege that
the Defendants discriminated against them on the basis of their race and age, in
violation of the Equal Protection Clause, and that they did so under color of state
law, because the Defendants were state employees acting in their official
capacities as DMV employees and performing their responsibilities pursuant to
state law. See id. at 49-50; Hayut v. State Univ. of New York, 352 F.3d 733, 744 (2d
Cir. 2013).
“Once action under color of state law is established, [Plaintiffs’] equal
protection claim parallels [their] 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.” Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (citing and
quoting Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d. Cir. 1998) (“In
analyzing whether conduct was unlawfully discriminatory for purposes of § 1983,
we borrow the burden-shifting framework of Title VII claims.”).
Title VII prohibits an employer from refusing to promote an individual
“because of such individual’s race, color, religion, sex, or national origin.” 42
9
U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are analyzed under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–04, (1973). See, e.g., Bucalo v. Shelter Island Union Free Sch. Dist.,
691 F.3d 119, 128 (2d Cir. 2012). Under the McDonnell Douglas framework, a
plaintiff must set out a prima facie case of discrimination by demonstrating: “(1)
that plaintiff within the protected group; (2) that plaintiff applied for a position for
which he was qualified; (3) that plaintiff was subject to an adverse employment
decision; and (4) that the adverse employment decision was made under
circumstances giving rise to an inference of discrimination.” Pippin v. Vernon,
660 F. Supp. 2d 354, 363 (D. Conn. 2009). Even at the summary judgment phase,
where a plaintiff must put forth evidence in support of each of these elements, the
“plaintiff's prima facie burden [i]s minimal and de minimis.” Woodman v. WWORTV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (internal quotation marks omitted).
Moreover, “courts in this Circuit have generally held that a plaintiff need not
establish a prima facie case of employment discrimination to survive a motion to
dismiss; however, the claim must be facially plausible and must give fair notice to
the defendants of the basis for the claim.” Consoli v. St. Mary Home/Mercy Cmty.
Health, No. 3:13-cv-1791 (JBA), 2014 WL 3849978, at *4 (D. Conn. Aug. 5, 2014)
(quoting Barbosa v. Continuum Health Partners, 716 F. Supp. 210, 215 (S.D.N.Y.
2010). This does not preclude consideration of “the elements of a prima facie
case,” as these elements may aid the court “in determining whether there is
sufficient factual matter in the complaint to give such notice to defendants.” Id.
The Plaintiffs have plausibly alleged that they were the victims of
discrimination. They allege facts which call into question the Defendant's
10
motivations in suspending and reinstituting the promotion proses and promoting
the Plaintiff. John Doe v. Columbia University, 2016 WL 4056034 (2d Cir. 2016). In
that case, the Second Circuit held that a university may discriminate against a
male student on the basis of his gender in investigating and adjudicating a
female' sexual assault complaints where it acts in a pro-female gender biased
manner to demonstrate that it takes seriously allegations of sexual assault in
order to refute criticism and protect its reputation. Similarly here Plaintiffs claim
that Defendants rigged the promoting process in Tyson's favor in response to
Tyson's race and age discrimination charge.
The Plaintiffs have plead facts which establish the fourth prong of the
McDonnell Douglas framework, which facts establish an inference of
discriminatory motivation, the court need not address the unsettled question of
whether a majority plaintiff must plead background circumstances to sustain a
Title VII case in this circuit. In essence they have so pled. However, had they not
satisfied the fourth prong, they may not have satisfied the plausibility
requirement.
Considering the allegations as a whole, drawing all reasonable inferences
and construing the complaint as a whole in the light most favorable to the
Plaintiffs, the allegations are sufficient to raise circumstances giving rise to an
inference of discriminatory motivations in promoting Tyson. Plaintiffs contend
that the DMV commenced a round of promotions in February 2012. See [id. at ¶¶
15-16]. In the course of reviewing the personnel files of each of the applicants for
the position, Defendant Fletcher-DeNovellis discovered that the start date listed
in the DMV’s computer system for a black applicant, Tyson, was inaccurate, and
11
that Tyson was ineligible for a promotion at that time. [Id. at ¶ 18]. On March 20,
2012, Fletcher-DeNovellis advised all applicants scheduled for interviews on
March 21 and March 23, 2012 that the interviews had been postponed indefinitely.
[Id. at ¶ 17]. She gave no reason or explanation for the sudden cancellation of the
interviews. The following day, March 21, 2012, the DMV notified Tyson that he
was not eligible to apply for the sergeant opening, based on the position’s
closing date of February 21. [Id. at ¶ 19]. Two days later, on March 23, 2012,
Tyson filed an appeal of this decision, stating therein his belief that the DMV had
discriminated against him on the basis of his race and age. [Id. at ¶ 20]. Four
days later, on March 27, Tyson filed a formal discrimination complaint against
both the DMV and its division chief, James Rio. [Id. at ¶ 20].
One month after Tyson filed his formal complaint, a new sergeant exam
was announced, and the revised closing date permitted Tyson, in addition to at
least one other applicant, to qualify for the position. [Id. at ¶¶ 23-24]. On the
same day applications for the new sergeant position closed, Tyson withdrew his
complaint against Rio and the DMV. [Id. at ¶ 25].
At no point was his complaint ever investigated, but every person involved
in the hiring process, including a panel member and a manager who signed off on
the candidate ranking form, was aware of and discussed it. [Id. at ¶¶ 12, 31-32].
Tyson was interviewed by an allegedly tainted panel, which included Rio, a direct
target of Tyson’s earlier complaint. [Id. at ¶ 27]. Indeed, recognizing the potential
conflict of interest, Rio sought to remove himself from the panel, but Defendant
Callahan, who was aware of the substance of Tyson’s complaint, encouraged Rio
to remain on the panel. [Id. at ¶¶ 22, 28]. The remainder of the panel became
12
aware of Tyson’s complaint prior to making its promotion decisions because
Tyson disclosed it during his interview. [Id. at ¶ 29]. After conducting
deliberations, which allegedly included discussions of the complaint, it prepared
a flow chart, which Defendant Shipman approved, and which ranked Tyson in the
top three of all applicants. [Id. at ¶ 31].
Tyson was selected for one of the sergeant positions. [Id. at ¶ 33].
Plaintiffs further allege that this unusual selection process did not comply with
Connecticut law, which required a delegation plan by heads of agencies and a
post-procedural audit. [Id. at ¶ 35].
Collectively, the procedural irregularities present in this round of
promotions, the close proximity in time between Tyson’s filing and withdrawal of
his complaint and the establishment of a new sergeant position for which Tyson
qualified, the composition of the hiring panel, which included one of the
individuals Tyson named in his recently withdrawn complaint, the substance of
the panel’s deliberations, which allegedly included discussions of the complaint,
and its decision to promote Tyson permit for the inference that Tyson’s
promotion was tied to his discrimination complaint. To be sure, this in itself may
not establish discriminatory intent, since, even if true, the panel may have had
non-discriminatory reasons to consider the withdrawn complaint in deciding to
promote Tyson, such as removing the specter of possible litigation. However,
these facts do permit for the reasonable possibility that the DMV and the named
defendants sought to promote Tyson because of his age and race in order to
avoid generating additional evidence in support of any future complaint he or
another similarly-situated employee might bring. Accordingly, at this stage, the
13
Court finds that the allegations do raise sufficient circumstances of
discriminatory intent to survive the Defendants’ motion for judgment on the
pleadings.
III.
Defendants’ Motion for Summary Judgment
Summary judgment should be granted “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.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any
evidence in the record that could reasonably support a jury's verdict for the
nonmoving party, summary judgment must be denied.” Am. Home Assurance
Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006)
(internal quotation marks and citation omitted). In addition, determinations of the
weight to accord evidence or assessments of the credibility of witnesses are
improper on a motion for summary judgment, as such are within the sole
province of the jury. Hayes v. New York City Dep’t of Corr., 84 F. 3d 614, 619 (2d
Cir. 1996).
“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 the summary
14
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, 817 F. Supp. 2d 28, 37 (D.
Conn 2011). Where there is no evidence upon which a jury could properly
proceed to find a verdict for the party producing it and upon whom the onus of
proof is imposed, such as where the evidence offered consists of conclusory
assertions without further support in the record, summary judgment may lie.
Fincher v. Depository Trust and Clearance Co., 604 F.3d 712, 727 (2d Cir. 2010).
IV.
Analysis
A. Issues of Disputed Fact Remain
Defendants’ motion for summary judgment, whose accompanying Rule
56(a)(1) Statement consists entirely of six paragraphs, fails to establish that
there are no disputed issues of material fact and that Defendants are therefore
entitled to summary judgment. The first paragraph of the Defendants’ Rule 56(a)
Statement asserts that “[n]o plaintiff in this case has any evidence of age or race
based discrimination, by any defendant, against any plaintiff.” [Dkt. #63-2. Defs.’
Rule 56(a)(1) Statement at ¶ 1]. As an initial matter, this statement is a legal
conclusion, and therefore cannot be considered. See, e.g., Webster v.
Pomperaug Reg’l Sch. Dist., No. 3:04-cv-1265 (DJS), 2007 WL 987539, at *6 (D.
Conn. Mar. 30, 2007) (striking portions of moving defendant’s Rule 56(a)
Statement which contained legal conclusions). In addition, even if admitted, the
fact that the Plaintiffs during their depositions could not identify any particular
15
evidence of age or race discrimination does not mean that no such evidence
exists. Indeed, given that the Defendants exclusively managed and administered
the hiring process, it is unsurprising that the Plaintiffs, mere applicants, could
not identify how, if at all, the Defendants acted with discriminatory intent during
the course of this process.3
The second paragraph of the Defendants’ Statement admits numerous
allegations in the Second Amended Complaint, including (i) the timing of the
decision to cancel and then renew the interview process relative to Tyson’s filing
his formal complaint of discrimination, and his withdrawal of the complaint on the
same day applications for the renewed process were closed, (ii) Tyson was not
eligible for promotion under the original hiring process, (iii) nobody at the DMV
investigated Tyson’s complaint, (iv) the hiring panel included Chief Rio, one of
the individuals Tyson named in the complaint, (v) Rio sought to remove himself
from the panel, but Defendant Callahan, who was aware of the substance of
Tyson’s complaint, encouraged Rio to remain on it, (vi) the remainder of the panel
became aware of and discussed Tyson’s complaint prior to making its promotion
decisions because Tyson disclosed it during his interview, and (vii) Defendant
Shipman approved a flow chart ranking Tyson as one of the top applicants. See
[Dkt. #63-2. Defs.’ Rule 56(a)(1) Statement at ¶ 2 (asserting that “the defendants
do not dispute the background factual allegations set forth on pp. 5-8, ¶¶ 13-29,
31-34, and 37” of the Second Amended Complaint].
3
The Court does, however, note the insufficiency of Plaintiffs’ response in its
Rule 56(a)(2) Statement, consisting of a citation to hundreds of pages of
deposition transcript and then the entire record of this case. See [Dkt. #64-1,
Pl.’s Rule 56(a)(2) Statement at ¶ 1].
16
Paragraphs three through five of the Defendants’ Rule 56(a) Statement
contend that Defendant Callahan had no involvement in the hiring process until
March 30, 2012, that he cancelled and restarted the process because he believed
it was flawed, that Tyson was qualified to sit for the renewed hiring process, and
that two Caucasian males in their late forties to early fifties were hired along with
Tyson. [Id. at ¶¶ 3-5]. While relevant and probative, these facts are not alone
sufficient to remove from dispute the issue of whether Tyson’s hiring was the
product of unlawful discrimination. If anything, they serve to highlight the
existence of such a dispute, as they are explanations for some of the
circumstances Plaintiffs have set forth, which the Defendants admit, and which
the Court has found are collectively sufficient to support an inference of
discrimination.
The final paragraph of the Defendants’ Rule 56(a)(1) Statement is similarly
insufficient to resolve this case. Defendants merely offer testimony from one of
the panel members stating that Tyson and the two older Caucasian males were
promoted “because a majority . . . believed that these three presented and
interviewed best at that time.” [Id. at ¶ 6]. Again, even accepting this assertion
as true, the mere presence of a non-discriminatory motivation does not preclude
the existence of a discriminatory one. See, e.g., Gallo v. Prudential Residential
Servs., Ltd. P’ship, 22 F.3d 1219, 1221 (2d Cir. 1994) (reversing grant of summary
judgment in favor of employer and noting that the existence of a nondiscriminatory explanation for an adverse employment action, such as a
reduction-in-force, is not alone sufficient to preclude discrimination because
“sometimes the validity of a company’s legitimate reduction masks, in an
17
individual case, a discriminatory animus”). Moreover, the portions of deposition
testimony Defendants rely upon do not establish that the panel selected Tyson
for non-discriminatory reasons. The first section of testimony discusses only
Kranz’s view of Tyson’s interview and her reasons for rating him highly. See
[Dkt. #63-14, Ex. K to Defs.’ Mot. for Summ. J., Kranz Dep. Tr. at 74:23-77:9]. The
second merely establishes that the majority of the panelists rated Tyson in the
top three of all applicants. [Id. at 84:24-86:8]. It does not offer any evidence as to
why the other panelists rated Tyson as they did.
As Plaintiffs note in their Rule 56(a)(2) Statement, numerous issues of fact
remain in this case, chief among them, the motivation behind (i) the suspension
and rescheduling of the hiring process, (ii) the manner in which the DMV
responded to Tyson’s formal complaint, and (iii) the decision of the panel
members and other DMV staff to promote Tyson. See [Dkt. #64-2, Pls.’ Rule
56(a)(2) Statement of Disputed Facts].
B. The Defendants Have Failed to Establish that they are Entitled to
Qualified Immunity
The doctrine of qualified immunity shields public officials performing
discretionary functions from civil liability “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), or
“insofar as it was objectively reasonable for them to believe that their acts did not
violate those rights,” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991),
cert. denied, 505 U.S. 1221 (1992). The doctrine accommodates (on the one hand)
the interest in protecting public officials “from undue interference with their
duties and from potentially disabling threats of liability,” Harlow, 457 U.S. at 806,
18
and (on the other hand) the interests in “deterring public officials' unlawful
actions and compensating victims of such conduct.” Elder v. Holloway, 510 U.S.
510, 511 (1994).
“[W]hether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
‘objective legal reasonableness' of the action . . . assessed in light of the legal
rules that were ‘clearly established’ at the time it was taken.” Anderson v.
Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow, 457 U.S. at 818-19). In
determining whether a particular right was clearly established at the time an
official acted, courts typically consider:
(1) whether the right in question was defined with “reasonable
specificity”; (2) whether the decisional law of the Supreme Court and
the applicable circuit court support the existence of the right in
question; and (3) whether under preexisting law a reasonable defendant
official would have understood that his or her acts were unlawful.
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991).
Here, the right alleged by the Plaintiffs—to be free from racial and age
discrimination—is clearly defined and supported by decisional law of the
Supreme Court and the Second Circuit. To the extent the Defendants decided not
to promote one or more of the Plaintiffs because of their age or race, it would not
have been objectively reasonable for them to believe that they were not violating
the law by doing so. Here, the Defendants “rely entirely on the absence of a
prima facie case and do not provide any explanation for [their] decision not to
promote [Plaintiffs].” Looby v. Hartford, 152 F. Supp. 2d 181, 186 (D. Conn. 2001).
Accordingly, they are not entitled to qualified immunity. Id. at 189-90 (denying
qualified immunity to defendants who were alleged to have discriminated against
19
a Caucasian plaintiff by failing to promote him despite promoting four other
Caucasian males where defendants merely relied on fact that half of the available
positions were filled by white candidates and failed to put forth any evidence
rebutting the plaintiff’s claim that he was not promoted because of his race).
IV.
Conclusion
For the foregoing reasons, the Employer Defendants’ motion for judgment
on the pleadings is GRANTED and DENIED in part, and the motion for summary
judgment is DENIED. Trial will go forward on Plaintiffs’ § 1983 claims against the
individual defendants and on their Title VII claims against the Defendant state
entities. The remaining claims are DISMISSED.
IT IS HEREBY SO ORDERED, ADJUDGED AND DECREED this 19th day of
October, 2016 at Hartford, Connecticut.
_________/s/______________
Vanessa L. Bryant,
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?