Hines v. Corrections
ORDER granting 38 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 5/16/2017. (Gould, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:14 CV 1914 (WWE)
STATE OF CONNECTICUT
DEPARTMENT OF CORRECTION,
MEMORANDUM OF DECISION ON SUMMARY JUDGMENT
In this action, plaintiff Arshenna Hines alleges that defendant State of
Connecticut Department of Correction (“DOC”) discriminated against her because she
is an African-American woman and retaliated against her for filing complaints.
alleges disparate treatment based on race and gender in violation of Title VII and the
Connecticut Fair Employment Practices Act (“CFEPA”); she alleges retaliation in
violation of Title VII and CFEPA.1
Defendant has filed a motion for summary judgment on plaintiff’s claims of
disparate treatment and retaliation. For the following reasons, the motion for summary
judgment will be granted.
The parties have submitted statements of undisputed facts, exhibits and
affidavits. These materials reflect the following factual background.
Plaintiff commenced employment as a Correction Officer with DOC on
December 7, 2007. In June 2013, she was promoted to a position as Correctional
Generally, Connecticut anti-discrimination statutes are interpreted in accordance
with federal precedent. Kaytor v. Electric Boat Corp., 609 F.3d 537, 556 (2d Cir.
Treatment Officer (“CTO”) and began a six-month promotional working test period at
the Corrigan-Radgowski Correction Institution.
According to the relevant Collective Bargaining Agreement, a working test period
is considered an extension of the examination process. Unsatisfactory performance
during the working test period is considered a failure of the competitive exam.
Performance evaluations are given at three-month intervals during the working
test period, and a Unit Administrator/Warden may direct the completion of an
unscheduled evaluation when the employee’s performance shows a marked
improvement or deterioration.
Plaintiff was supervised by Jeffrey Zegarzewski, a former Correctional Counselor
Supervisor, and Martin Pluszynski, Correction Lieutenant and Unit Manager for the
Security Risk Group at Corrigan. She was initially assigned to train with CTO Albert
Harraka, whom she alleges treated her adversely, and Counselor Christie Huffer.
Approximately one month later, due to concerns about her performance, she was
assigned to first shift for an additional thirty days of supervision and training with
Harraka and Huffer.
On September 4, 2013, Zegarzewski and Pluszynski completed an initial
performance evaluation of plaintiff. She was rated as overall unsatisfactory, and she
received a Notice of Tardiness. The evaluation was approved by the Deputy Warden
and presented to the plaintiff on September 16, 2013.
Plaintiff’s assignment to first shift was extended another thirty days for further on
the job training. Plaintiff was provided with a letter that extended her working test
period by an additional three months to give her an opportunity to improve her
performance. However, plaintiff refused to sign the letter, and her working test period
was not extended.
Plaintiff filed a grievance regarding her evaluation. However, the grievance was
withdrawn by her union because performance evaluations cannot be grieved during a
working test period pursuant to the Collective Bargaining Agreement.
On September 6, 2013, plaintiff and Harraka had a verbal conflict regarding work
duties. Harraka was thereafter temporarily transferred to another building pending
investigation. Harraka and plaintiff did not work together again after that incident.
In a statement dated September 6, 2013, plaintiff indicated that Harraka had
been unprofessional and uncooperative.
DOC staff attempted mediation with Harraka
and plaintiff but plaintiff refused to participate. She told Deputy Warden Stephen
Bates that she wanted the matter investigated and that she had been subjected to
further retaliation and harassment at Corrigan. Bates instructed her to file an incident
Plaintiff submitted her incident report, which included information about work
interactions from the commencement of her employment. The report was reviewed by
DOC’s Affirmative Action Unit and Labor Relations Unit. The Affirmative Action Unit
determined that the incidents did not fall within the jurisdiction of DOC Administrative
Directives on Equal Employment Opportunity and Affirmative Action or Sexual
Harassment. The Labor Relation Unit determined that the incidents did not rise to the
level of the Administrative Directive on Workplace Violence.
On October 11, 2013, plaintiff received a performance evaluation that rated her
as overall unsatisfactory. It noted that she required remedial training on her duties and
had made frequent errors, including with respect to entering information in the Security
Risk Group database.
Plaintiff was notified that she would remain on first shift until
further notice for continued training and observation.
On October 17, 2013, she reported to DOC that her car had been vandalized.
DOC’s investigation, which included a review of the video surveillance footage,
concluded that plaintiff’s claim was not substantiated.
On November 19, 2013, plaintiff received a performance evaluation, rating her
as overall unsatisfactory. That day, she signed an action plan, setting forth areas of
improvement to ameliorate her performance rating.
On November 22, 2013, plaintiff filed a complaint with DOC’s Affirmative Action
Unit, alleging that she had been harassed by Harraka and that her car had been
vandalized on DOC property. The Affirmative Action Unit concluded that the
allegations did not fall within the jurisdiction of DOC Administrative Directive on Sexual
Harassment or Discrimination. The Unit also found that plaintiff’s allegations of
vandalism could not be substantiated.
On December 9, 2013, plaintiff received an unsatisfactory evaluation. The
evaluation included a Notice regarding her failure to follow procedure regarding late call
out per DOC Administrative Directive 2.11.
After plaintiff’s six-month working test period concluded, plaintiff was offered the
opportunity to self-demote to her previous position of Correction Officer. Plaintiff
Warden Scott Erfe made the decision to demote plaintiff to Correction
Officer effective January 10, 2014.
On January 31, 2014, plaintiff filed a complaint with the Connecticut Commission
on Human Rights and Opportunities (“CHRO”).
From January 10 through August 31, 2014, plaintiff took an approved leave of
absence. She submitted a medical certificate dated July 3, 2014, indicating a probable
duration of her condition until August 31, 2014. On September 1, 2014, plaintiff did not
return to work. By letter, DOC notified plaintiff that she was considered to be on
unauthorized leave and that she was required to submit proper medical documentation
within five days of the letter.
On September 4, 2014, DOC received a faxed medical
certificate that appeared to be a copy of the previous medical certificate submitted by
plaintiff in July. The dates had been whited out and written over. Plaintiff maintains
that her doctor wrote over the dates.
DOC sent plaintiff a form dated October 17, 2014, which indicated that a new
medical certificate was required because the medical certificate that she had submitted
had “missing and inconsistent data.” DOC sent plaintiff a second letter dated October
20, 2014, informing her that she had until October 28, 2014 to provide proper medical
documentation or an investigation would be conducted regarding violations of DOC
Administrative Directive and State Personnel Regulation 5-20 regarding unauthorized
In a third letter dated November 3, 2014, DOC notified plaintiff that proper
medical documentation had not been received, and that an investigation would be
conducted regarding her unauthorized leave.
DOC processed plaintiff’s resignation not in good standing effective November
17, 2014, due to her unauthorized leave of absence for five or more working days
pursuant to State Personnel Regulation 5-243-1(1). By letter dated November 17,
2014, plaintiff was informed that she could appeal the resignation not in good standing
to the Commissioner of Administrative Services. She did not file an appeal.
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on
the moving party to demonstrate the absence of any material factual issue genuinely in
dispute. American International Group, Inc. v. London American International Corp.,
664 F. 2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue
exists, the court must resolve all ambiguities and draw all reasonable inferences against
the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Only
when reasonable minds could not differ as to the import of the evidence is summary
judgment proper." Bryant v. Maffucci, 923 F. 2d 979, 982 (2d Cir.), cert. denied, 502
U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence of any material
factual issue genuinely in dispute. American International Group, Inc., 664 F.2d at
351. In determining whether a genuine factual issue exists, the court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Anderson,
477 U.S. at 255.
If a nonmoving party has failed to make a sufficient showing on an essential
element of his or her case with respect to which he or she has the burden of proof, then
summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving
party submits evidence which is "merely colorable," legally sufficient opposition to the
motion for summary judgment is not met. Anderson, 477 U.S. at 249.
Plaintiff alleges that her performance evaluations, demotion and resignation not
in good standing were motivated by a discriminatory animus based on her race, color
The Court analyzes plaintiff’s claims of disparate treatment and retaliation
according to the burden shifting process established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248, 252-56 (1981).
To establish her prima facie claim of discriminatory treatment, plaintiff must
demonstrate that (1) she belongs to a protected class; (2) she was performing her
duties satisfactorily; (3) she suffered an adverse employment action; and (4) the
adverse employment action occurred under circumstances giving rise to an inference of
discrimination. Although the plaintiff’s initial burden is not onerous, she must show that
the alleged adverse employment action was not made for legitimate reasons. Thomas
v. St. Francis Hosp. & Med. Ctr., 990 F. Supp. 81, 86 (D. Conn. 1998).
If the plaintiff establishes a prima facie case, the defendant must articulate a
legitimate, non-discriminatory business reason for the alleged discriminatory action.
The plaintiff must then prove by a preponderance of the evidence that the supposed
legitimate reason is actually a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993). Plaintiff may raise an inference of discrimination by
showing that her employer treated her less favorably than similarly situated employees
outside her protected class for a similar offense. Graham v. Long Island R.R., 230
F.3d 34, 39 (2d Cir. 2000). However, in this context, plaintiff must demonstrate that
these comparators are similarly situated in all material respects and have “engaged in
comparable conduct.” Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d
For purposes of ruling on this motion, the Court assumes that plaintiff has
established her prima facie case of discrimination. As a legitimate, non-discriminatory
reason for the poor employment evaluations and demotion, defendant maintains that
plaintiff’s performance was unsatisfactory due to errors, tardiness and failure to follow
procedures, and that plaintiff’s performance did not improve despite additional training
and extensions of work test period.
Plaintiff has failed to refute with competent
evidence that this proffered reason the adverse employment action is pretext for
discriminatory animus. Although plaintiff asserts that she received favorable
evaluations as a Correction Officer, she has not shown that she performed satisfactorily
as a CTO. Further, plaintiff has not identified any comparators who were treated more
favorably under similar circumstances. The Court will grant summary judgment on
Defendant argues further that plaintiff has failed to exhaust her administrative
remedies relevant to the resignation not in good standing claim. Even assuming that
plaintiff’s claim was exhausted and that it satisfies the prima facie case, summary
judgment on this claim is still appropriate. Defendant asserts that it processed
plaintiff’s resignation not in good standing due to her unauthorized leave. No evidence
establishes that defendant’s proffered reason constitutes a pretext for discrimination.
In fact, the evidentiary record indicates that plaintiff did not comply with defendant’s
repeated request that she submit acceptable medical documentation to substantiate her
absence. Accordingly, the Court will grant the motion for summary judgment on this
In order to establish a prima facie case of retaliation, plaintiff must show that “(1)
she was engaged in protected activity, (2) the employer was aware of that activity, (3)
an employment action adverse to the plaintiff occurred, and (4) there existed a causal
connection between the protected activity and the adverse employment action.” Lore
v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). In the context of retaliation, the
applicable standard for adverse employment action is broader than that applied to
discrimination claims. Santiesteban v. Nestle Waters North America, Inc., 61 F. Supp.
3d 221, 241 (E.D.N.Y. 2014). To prevail on a retaliation claim, plaintiff need not prove
the merit of her underlying complaint of discrimination, but only that she had a “good
faith, reasonable belief that the underlying employment practice was unlawful.” Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). A “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.” Burlington Northern & Santa Fe
Railway Co., 548 U.S. 53, 68 (2006). Adverse employment action must be “more
disruptive than a mere inconvenience or an alteration of job responsibilities...;” it may
include “a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices ... unique to a particular situation.” Chung v.
City Univ. of N.Y., 605 Fed. Appx. 20, 22 (2d Cir. 2015). However, actions that are
“trivial harms” such as “petty slights or minor annoyances that often take place at work
and that all employees experience” are not materially adverse. Burlington, 548 U.S. at
If plaintiff establishes a prima facie case, defendant must articulate a legitimate,
non-retaliatory reason for the challenged employment decision; plaintiff must then “point
to evidence that would be sufficient to permit a rational factfinder to conclude that the
employer’s explanation is merely a pretext for impermissible retaliation.” Treglia v.
Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002).
Defendant argues that plaintiff did not engage in protected activity and that she
did not exhaust her claim related to the resignation in good standing. Even assuming
proper exhaustion and satisfaction of the prima facie case, plaintiff has failed to adduce
evidence supporting an inference that defendant’s proffered reasons for its actions are
pretext for retaliation. Summary judgment will enter on this claim.
For the foregoing reasons, the Motion for Summary Judgment [doc. #38] is
The Court notes that plaintiff’s complaint also references discrimination
theories of disparate impact and hostile environment. Plaintiff should clarify whether
such claims have been abandoned after the close of discovery, which the Court will not
reopen. Within five days of this Ruling, the plaintiff should indicate whether she has
any remaining claims based on the allegations of her complaint.
Dated this _ 16th___ day of May, 2017 at Bridgeport, Connecticut.
/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE
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