Mullen v Waterbury Board of Education
ORDER granting 36 Motion for Summary Judgment for the reasons set forth in the attached decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 12/07/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDDIE C. MULLEN,
WATERBURY BOARD OF
EDUCATION, RON FROST;
Civil Case Number
December 7, 2017
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [DKT. 36]
employment discrimination action against the Waterbury Board of
Education and Ron Frost (collectively, “Defendants”) under 42 U.S.C. §
1983, alleging discrimination based on race and color. Before the Court is
Defendants’ Motion for Summary Judgment wherein Defendants argue
poor performance and misconduct as reasons for deciding not to rehire
Plaintiff as a substitute teacher. [Dkt. 36]. Upon the Court’s issuance of
the Order to Show Cause, [Dkt. 37], Plaintiff has submitted a Response but
did not include a D. Conn. Civ. L. R. 56(a)(2) Statement. See [Dkt. 38]. The
Court thereafter held a telephonic conference where it instructed
Defendants to submit additional evidence and Plaintiff to submit a Rule
See [Dkt. 42 (Order on Tel. Conf.)].
Defendants complied but Plaintiff did not. For the foregoing reasons, the
Court GRANTS Defendants’ Motion for Summary Judgment.
The foregoing facts are taken from Defendants’ D. Conn. Civ. L. R.
56(a)(1) Statement and other evidence submitted on the record. Because
Plaintiff has not submitted a D. Conn. Civ. L. R. 56(a)(2) Statement, the facts
supported by admissible evidence are deemed admitted. Fed. R. Civ. P.
Plaintiff is an African American male who was previously employed
as a substitute teacher by the City of Waterbury in 1989. [Dkt. 36-2 (D.
Conn. Civ. L. R. 56(a)(1) Stmt) ¶ 2].
He filed with the Connecticut
Commission on Human Rights and Opportunities (“CHRO”) and Equal
discrimination claim against the City of Waterbury and Board of Education
in 1993. [Dkt. 20 (Second Am. Compl. and Exs.) at 20 of PDF (indicating
case number 9330379)]. He worked again for the City of Waterbury as a
substitute teacher from 1995 through 2001. [Dkt. 36-2 ¶ 2]. During this time
in 1997, Plaintiff withdrew his employment discrimination claim with the
[Dkt. 20 at 21 of PDF (accepting his withdrawal of Charge No.
16A931268 on March 24, 1997)].
Plaintiff then worked as a Substitute Teacher in the Stratford school
system from April 2003 until March 2005. Id. at 17 of PDF. Plaintiff has
submitted annual letters from the Connecticut State Department of
Education, Bureau of Human Resources, indicating that he “can accept this
letter as a reasonable assurance that [his] name will remain on the list of
approved Substitute Instructors for the upcoming school year” at WF
Kaynor RVTS and WF Kaynor THS1; these letters were sent in late May and
early June of years 2005 through 2008. Id. at 13-16 of PDF.
Plaintiff applied for a substitute teaching position on November 15,
2011. [Dkt. 36-4 (Mot. Summ. J. Ex. 2, Foster Aff. and Exs.) at 7 of PDF].
At the time, Defendant Ron Frost was the Director of Personnel for the
Waterbury Board of Education, which had standard procedures for
processing teaching applications for people who had previously worked as
substitute teachers in the school system. See [Dkt. 44 (Supp. D. Conn. Civ.
L. R. 56(a)(1) Stmt) ¶¶ 1-3].
Under these procedures, the Director of
Personnel was to contact principals at the applicant’s former schools and,
in circumstances in which the applicant was reported to have poor
performance or unbecoming conduct, it was standard procedure not to
rehire the individual.
See id. ¶¶ 3-4.
Defendant Frost followed these
procedures for Plaintiff’s application and contacted Matt Larkin and Mike
LaRusso, 2 two principals who formerly worked at a Waterbury public
school called the North End Middle School. See id. ¶¶ 5-6. Mr. Larkin
reported Plaintiff came to work intoxicated, and Mr. LaRusso reported
Plaintiff was found sleeping in a classroom and a stairwell.
Id. ¶ 7.
Specifically, the letters dated June 2, 2005 and June 8, 2006 pertain to
“WF Kaynor RVTS.” Id. at 13-14 of PDF. The letters dated June 6, 2007 and
May 27, 2008 pertain to “WF Kaynor THS.” Id. at 15-16 of PDF.
The Court notes that Defendant Frost’s affidavit references Mike
“LoRusso.” The Court will refer to him as Mr. “LaRusso” as all other
documents in evidence utilize this spelling.
Defendant Frost elected not to rehire Plaintiff based on these reports. Id. ¶
On April 2, 2012, Plaintiff filed an employment discrimination action
Respondents”) before the CHRO. [Dkt. 36-4 at 5 of PDF (indicating CHRO
Case No. 1230352 and EEOC/HUD Case No. 16A201200960)]. He alleged
discrimination based on race, color, and his previous opposition, filing,
testimony or assistance. Id.
On June 12, 2012, CHRO Respondents submitted a Response to a
Request for Additional Information, stating in relevant part that there
existed no written policy, but the procedure for hiring a substitute teacher
included the following: “Applicant fills out application and submits to a
qualifications. The application is vetted for any problems or concerns. If
acceptable, the applicant’s name is placed on a substitute teacher list.”
[Dkt. 36-4 at 13 of PDF]. CHRO Respondents also indicated that Plaintiff
deemed not eligible “based on his poor performance issues and
unbecoming conduct during his previous employment” and that “[h]is
application was vetted when he previously applied in 2009. There was no
reason to vet it again.” Id. at 15 of PDF.
Plaintiff submitted a letter in reply on June 30, 2012. Id. at 19 of PDF.
He challenged the Waterbury Board of Education’s application procedure,
stating, “I was turned away before I was able to submit these documents,”
i.e. the criminal background check, drug screening, and verification of
qualification. Id. He argued that he submitted these documents in October
2009, wherein the drug test came back negative. He also argued,
The Board of Education Response was base[d] on poor
performance issues and unbecoming conduct during previous
employment. I can assu[r]e you that there is no perfect human
being on earth. I have been a professional through out [sic]
my carrel [sic] before and after any incident of Feb 5, 2002. If
[sic] the arrogance of a man I once idolize[d], mottle larking,
and another man whom I never met before Feb 26, 2002.
Id. He also stated, “In this Feb 26, 2002 meeting between my self [sic] and
the higher ups, I believe collaboration took place between union president
and the administration. I was not represented at any time even though I
mentioned a medical problem I was having prior to the meeting.” Id. at 20
The CHRO initiated a Draft Finding of No Reasonable Cause on May
15, 2014. 4
Id. at 25 of PDF.
Thereafter, the CHRO issued its Final
Determination on June 13, 2014, dismissing the case on the merits for No
Reasonable Cause. Id. at 37 of PDF. The determination informed Plaintiff
On January 23, 2014, Plaintiff filed a Withdrawal of Complaint for CHRO
No. 1230353 and EEOC No. 16A201200961 against “Waterbury PAL,”
indicating the reason for his withdrawal is: “I have accepted a satisfactory
offer from the respondent. The offer included the following: Confidential.”
[Dkt. 20 at 19 of PDF]. The case numbers are one digit off from the CHRO
and EEOC case numbers discussed at length in this fact section. It
appears that Plaintiff may have filed two sequential cases before the
administrative agencies and withdrew the second in 2014.
The CHRO’s findings are based on evidence not submitted to this Court
and cannot be used for the truth of the matter asserted. See Fed. R. Evid.
801(c). The Court therefore does not include or refer to the findings in this
that he could request reconsideration by the CHRO or appeal the
disposition to the Superior Court of the State of Connecticut. Id. at 38 of
PDF. Plaintiff thereafter received a Notice of Right to Sue letter from the
EEOC on November 26, 2014.
[Dkt. 1 (Compl. and Exs.) at 7 of PDF].
Plaintiff filed this case in January 2015. He denies being intoxicated at
work and claims instead he had a seizure and was for diabetes and high
blood. [Dkt. 20 at 4 of PDF].
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 genuine factual disputes exist.
See 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)). This
means that “although the court should review the record as a whole, it
must disregard all evidence favorable to the moving party that the jury is
not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp., No. 3:03-cv-00481,
2004 WL 2472280, at *4 (D. Conn. Oct. 20, 2004) (“At the summary judgment
stage of the proceeding, [the moving party is] required to present
admissible evidence in support of their allegations; allegations alone,
without evidence to back them up, are not sufficient.”) (citing Gottlieb, 84
F.3d at 518); Martinez v. Conn. State Library, 817 F. Supp. 2d 28, 37 (D.
Conn. 2011). Put another way, “[i]f 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).
A party who opposes 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.” Gottlieb v. Cnty of Orange, 84 F.3d 511, 518 (2d Cir. 1996). 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 & Clearing Corp., 604 F.3d 712, 726–27 (2d
Plaintiff alleges that Defendants discriminated against him on the
basis of race and color in violation of 42 U.S.C. § 1983. Defendants argue
they had a legitimate basis for denying his application as a substitute
teacher and that Plaintiff did not exhaust his administrative remedies with
respect to Defendant Frost.
The Merits of Section 1983 Claims
Section 1983 of Title 42 of the United States Code provides a cause
of action against a “person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subject, or caused to be
subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.” To
bring a claim pursuant to 42 U.S.C. § 1983, a plaintiff must demonstrate a
violation of a federal right and the alleged deprivation “was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988); Feingold v. New York, 366 F.3d 138, 159 (2d. Cir 2004) (same).
Section 1983 is not itself the source of substantive rights, but rather is a
method for federal rights conferred by other statutes. Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004).
Section 1983 protects
individuals from employment discrimination through the rights provided
under 42 U.S.C. § 1981, see id., which establishes that all people “have the
same right . . . to make and enforce contracts,” 42 U.S.C. § 1981.
An employment discrimination case filed under 42 U.S.C. § 1983
utilizes the same burden-shifting framework established by the United
States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973). See Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir.
2013); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123
(2d Cir. 2004); Ziering v. New York City Dep’t of Health, Office of Med.
Exam’r, 621 F. Supp. 679, 680 (S.D.N.Y. 1985) (“The Supreme Court in
McDonnell Douglas Corp . . . set forth the criteria for determining whether a
prima facie case of racial discrimination under Title VII has been proved.
Under the circumstances of this case, these criteria may be used to
determine whether the plaintiff has satisfied his burden under Sections
1981 and 1983.”) (internal citations omitted).
Under this framework the plaintiff must first “establish a prima facie
case of discrimination.”
Garcia, 706 F.3d at 127 (citing Raytheon v.
Hernandez, 540 U.S. 44, 50 n.3 (2003)).
“The burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its
If this burden is met, “the presumption of
intentional discrimination disappears, but the plaintiff can still prove
disparate treatment by, for instance, offering evidence demonstrating that
the employer’s explanation is pretextual.” Id. Plaintiff’s evidence must
“reasonably support a finding of prohibited discrimination.” Id.
A. Prima Facie Case
To establish a prima facie case of employment discrimination, a
plaintiff must show: “(1) that he belonged to a protected class; (2) that he
was qualified for the position he held; (3) that he suffered an adverse
employment action; and (4) that the adverse employment action occurred
under circumstances giving rise to an inference of discriminatory intent.”
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (Title VII); Howard v.
City of New York, 602 F. App’x 545, 546 (2d Cir. 2015) (citing Holcomb for
proposition that plaintiff bears burden to demonstrate prima facie case for
a § 1983 claim) (summary order); Burbank v. Office of Attorney Gen. of
Connecticut, 240 F. Supp. 2d 167, 173 (D. Conn. 2003) (applying a
substantially similar standard in a § 1983 claim for racial discrimination).
Defendants do not challenge Plaintiff’s satisfaction of the first step
under McDonnell Douglas.
Accordingly, the Court presumes without
deciding that Plaintiff’s prima facie case has been satisfied and will
proceed to the second element of the burden-shifting framework.
B. Legitimate, Non-Discriminatory Purpose
Assuming, arguendo, Plaintiff has established his prima facie case,
the Court finds Defendants have sufficiently established a legitimate, nondiscriminatory reason for electing not to rehire Plaintiff.
contend they did not hire Plaintiff as a substitute teacher because of his
poor performance and conduct. Mr. LaRusso reported Plaintiff had been
found sleeping in a classroom and in a stairwell. See [Dkt. 44 ¶ 7]. Mr.
Larkin reported Plaintiff came to school intoxicated. Id.
Previous poor performance is a legitimate, nondiscriminatory reason
for deciding not to hire an applicant. See Burbank, 240 F. Supp. 3d at 173
(finding in a § 1983 case plaintiff’s general poor performance, i.e. “previous
failures of the bar exam, previous work history, lack of recommendations,”
to be a legitimate, non-discriminatory reason for failing to hire); Sengillo v.
Valeo Elec. Sys., Inc., 538 F. Supp. 2d 585, 588 (W.D.N.Y. 2008), aff'd, 328 F.
App’x 39 (2d Cir. 2009) (finding in a retaliation case that “even if plaintiff
were to establish his prima facie case, he cannot rebut [defendant’s]
legitimate, nondiscriminatory reason for failing to rehire him—poor
performance in his previous [ ] position, for which he had been
terminated”); see also Almonord v. Kingsbrook Jewish Med. Ctr., No. 04CV-4071 (NGG) (RML), 2007 WL 2324961, at *10 (E.D.N.Y. Aug. 10, 2007)
(“Defendants proffer a legitimate reason (Plaintiff's poor performance) for
Plaintiff's termination, which Plaintiff has not shown to be pretextual.”);
Figueroa v. Weisenfreund, 255 F. App’x 595, 597 (2d Cir. 2007) (“Further,
even if Figueroa had established a prima facie case of retaliation, Appellees
produced virtually uncontroverted evidence of numerous complaints about
Figueroa’s work performance, thus persuasively establishing that he would
have been fired even in the absence of any protected speech.”). The Court
finds his previous poor performance to be a sufficient basis for electing not
to rehire him. While Plaintiff claims in his Amended Complaint that he
suffered from a seizure, high blood pressure, and diabetes, there is no
evidence that he submitted this information in his application or otherwise
notified Defendants that his prior issues of poor performance and possible
intoxication were now controlled.
Indeed, it had been reported to
Defendant Frost that Plaintiff presented as someone who was not alert and
perhaps under the influence of alcohol, and the employer had no basis to
conclude that prior issues were resolved and would not reoccur.
generally, Sengillo v. Valeo Elec. Sys., Inc., 328 F. App’x at 41-42 (finding an
employer’s decision not to rehire an employee who was terminated for
poor performance is a legitimate, non-discriminatory reason for electing
not to rehire the individual). The Court finds that such a basis for not
rehiring Plaintiff is a legitimate, non-discriminatory reason.
Once a defendant provides a legitimate, non-discriminatory reason
for the employment action, a plaintiff must offer evidence of pretext that
“reasonably supports a finding of prohibited discrimination.” Garcia, 706
F.3d at 127. This means Plaintiff must provide evidence that the prohibited
reason was at least a “motivating factor” and that the legitimate, nondiscriminatory reason was not the only reason for the adverse employment
decision. Back, 365 F.3d at 123.
Plaintiff submitted several newspaper articles ranging from 1993 to
2017 reporting on the Waterbury school system’s need to diversify its
professional staff, which he avers is a “two decade old problem[ ] of hiring,
firing and promotion of African American teachers. . . .” [Dkt. 20 at 3 of
PDF]. For example, one article from 1993 indicates “[r]ecruiting minority
teachers and administrators topped a preliminary list of priorities” for
leaders of the New Vision for Waterbury project. Id. at 8 of PDF. Another
article from 2015 reported on Waterbury’s relative lack of racial minorities
as professional educators in comparison to Hartford and New Haven and a
push from the City to increase the minority educator presence in Waterbury
schools. See id. at 9 of PDF. Notably, one article from April 2016 reported
on Waterbury’s change in the hiring process. See [Dkt. 38 at 6 of PDF]. It
In the past, principals picked which teaching candidates to
interview, and which one was submitted to human resources
Under the new system, the human resources
department will pick candidates and, in cooperation with an
instructional leadership director, sign off on final candidates
before they are approved for hire by the school
superintendent. Principals will be part of the interview panels.
Id. The goal of the policy change, according to Mayor Neil M. O’Leary, is to
“make sure if we do get qualified minority applicants, those applicants get
a fair and reasonable opportunity for employment.” Id. A recent article
yearlong CHRO investigation into
Waterbury’s hiring process, which was reported to have “discriminatory
recruitment and hiring practices.” Id. at 8 of PDF. The draft report findings
“suggest the CHRO likely will not issue a finding of systemic
discrimination across the Waterbury Public Schools.” Id. The Court takes
judicial notice that the Republican-American newspaper reported the final
report was consistent with the draft report. See Editorial, CHRO decision:
Exoneration for Waterbury, Republican-American (May 22, 2017), available
While these newspaper articles document the Waterbury Board of
Education’s longstanding need and efforts to diversify its education staff, it
is not sufficient to rebut Defendants’ legitimate, non-discriminatory reason
for its employment action in this particular case.
To defeat summary
judgment at the pretext stage, a plaintiff “must adduce enough evidence of
discrimination so that a rational fact finder can conclude that the adverse
job action was more probably than not caused by discrimination.” Back,
365 F.3d at 123.
There simply is no evidence in the record that
demonstrates Defendant Frost was aware of Plaintiff’s race when making
the employment decision, let alone that it was a “motivating factor.”
Without the presence of any evidence in the record pertaining to Plaintiff’s
race, a rational fact finder would not reasonably be able to conclude race
discrimination is a factor in Defendant Frost’s decision not to hire Plaintiff,
and accordingly Plaintiff’s claim fails. Because Plaintiff fails to establish
the deprivation of a federal right, the Court need not address whether each
Defendant is considered a “person acting under the color of state law.”
Failure to Exhaust Remedies: Defendant Frost
The question of whether Plaintiff was required to exhaust his
Nonetheless, the Court notes that a plaintiff is not required to exhaust
administrative remedies with the EEOC prior to bringing an employment
discrimination claim under § 1983. See Gresham v. Chambers, 501 F.2d
687, 690-91 (2d Cir. 1974) (finding a plaintiff need not exhaust EEOC
remedies for a race discrimination claim brought under 42 U.S.C. §§ 1981
and 1983 as Title VII does not cover the entire subject matter of the
substantive protections under § 1981); see also Martinez-Rivera v.
Commonwealth of Puerto Rico, 812 F.3d 69, (1st Cir. 2016) (holding that a §
1983 political discrimination claim does not require exhaustion of remedies
prior to bringing suit). Were the Court to have decided Plaintiff had a valid
§ 1983 claim against Defendant Frost, his failure to exhaust would not have
prevented his claim against Defendant Frost.
For the aforementioned reasons, Defendants’ Motion for Summary
Judgment is GRANTED as to both Defendants. The Clerk is directed to
close this case.
IT IS SO ORDERED.
Digitally signed by VANESSA
DN: cn=VANESSA BRYANT, o, ou,
Date: 2017.12.07 11:25:42 -05'00'
Hon. Vanessa L. Bryant
United States District
Dated at Hartford, Connecticut.
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