Opinion
No. CV09-5025809
September 28, 2010
MEMORANDUM OF DECISION
The plaintiff Michael Schumer has brought this action against the defendants Southern Connecticut State University ("University') and Bharat B. Bhalla, who at the time of alleged incident was the interim Dean of the School of Business at the University, alleging that he was illegally denied the opportunity to apply for a full-time tenure track position as a professor in the Department of Management/MIS of the School of Business. The plaintiff's amended complaint presently contains three counts: Count One which asserts a claim of age discrimination in violation of Title VII of the Civil Rights Act of 1964; Count Three which asserts a claim of age discrimination in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-58 et seq.; and Count Five which asserts a claim of tortious interference with the plaintiff's employment contract. The defendants have filed a motion for summary judgment seeking the entry of judgment on all three remaining counts.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997). See also Practice Book § 17-49. The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
In August 2003, the plaintiff was appointed as a "special appointment" to a temporary faculty position in the Department of Management/MIS of the School of Business at the University. Under the applicable union contract, a special appointment is limited to two years. In the spring of 2004, the plaintiff's special appointment was extended for its final year through May 31, 2005.
In October 2004, a search committee comprised of members of the Department of Management/MIS began a search for a person to fill a newly created tenure track faculty position within the department. The search committee consisted of Dr. Jeanette Oppedisano, the department chairperson, and Dr. Stepanovich and Dr. Mullen, who were faculty members. Dr. Oppedisano subsequently met with the plaintiff and others to discuss the drafting of a job description for the open tenure track faculty position. The plaintiff had previously expressed to Dr. Oppedisano his interest in applying for the position.
The search committee was responsible for recommending a candidate for the position. While Dean Bhalla would have input into the selection, the President of the University, Cheryl Norton, would ultimately select the candidate for the position after conferring with the Academic Vice-President.
On November 12, 2004, during a meeting of the faculty of the School of Business, Dean Bhalla, who had been appointed in August 2004 as the interim Dean of the School of Business, addressed the faculty and twice stated that "we are looking for a young person" to fill the open tenure track faculty position in the Department of Management/MIS. The plaintiff was present during the meeting. He subsequently filed a complaint with Dr. Oppedisano, his department head, and with the University's Office of Diversity and Equity.
On November 15, 2004, the plaintiff submitted an application to be considered for the tenure track faculty position. On January 19, 2005, the search for the tenure track faculty position was canceled by President Norton. Instead of a tenure track position, the Department of Management/MIS was authorized to fill a temporary, emergency one-year position. The plaintiff was not eligible to apply for that position.
Norton stated that she canceled the search after receiving information that the plaintiff had been involved in discussions with members of the search committee concerning the drafting of the job description for the position and had discussed the position with the committee. Norton also stated that she canceled the search due to the perception that an internal candidate was given an unfair advantage in the hiring process.
The plaintiff was 62 years of age during the time period in question. He asserts that the tenure track faculty position was canceled as a result of age discrimination.
With respect to the first count of the amended complaint, the plaintiff concedes that claims of age discrimination are not covered by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 and agrees that judgment may enter as to Count One of the amended complaint.
In the third count, the plaintiff asserts a claim of age discrimination and illegal retaliation in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-58(a) et seq. Section 46a-60(a) provides, in relevant part, that "It shall be a discriminatory practice in violation of this Section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of emp1oyment because of the individual's . . . age . . . (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under Section 46a-82, 46a-83 or 46a-84."
The defendants contend that summary judgment should enter with respect to the age discrimination claim asserted in the third count because (1) the plaintiff has provided no evidence that he would have been hired; (2) the individual who made the allegedly discriminatory remarks was not the decision-maker regarding hiring and (3) the plaintiff has not provided any evidence to rebut the non-discriminatory reason for terminating the employment search offered by the defendants. The defendants further contend that summary judgment should enter on the retaliation claim contained in the third count because (1) the plaintiff has not pled such a claim and (2) the defendants have offered evidence establishing that the reason for the termination of the search was unrelated to the plaintiff's complaints. Finally, the defendant Bhalla asserts, inter alia, that the claim against him in count five for the intentional interference with a contract or business relationship fails because the plaintiff had no legal contract or expectation of future employment.
The plaintiff asserts that he has submitted sufficient evidence to support his claims that he was discriminated against by the defendants on the basis of his age and that he was denied the opportunity to continue working at the University because of his complaints regarding age discrimination to warrant submitting those claims to a trier of fact. The plaintiff also contends, with respect to his tortious interference claim, that the issue of whether he would have been offered the permanent tenure track faculty position is an issue of fact that must be decided by the trier of fact
For the foregoing reasons, I agree with the defendants that summary judgment should enter as to count five but not as to count three.
The framework for establishing discrimination claims under the Connecticut Fair Employment Practices Act, General Statutes § 46a-58(a) et seq., is well-established. Such claims are to be analyzed using the burden-shifting methodology set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Craine v. Trinity College, 259 Conn. 625, 636 (2002). "Pursuant to that methodology, first, the [plaintiff] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the [plaintiff] must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination . . . Once the [plaintiff] establishes a prima facie case, the employer then must produce legitimate, nondiscriminatory reasons for its adverse employment action . . . This burden is one of production, not persuasion; it can involve no credibility assessment . . .
"After the plaintiff has established a prima facie case, and the defendant has produced evidence of a legitimate, nondiscriminatory reason for the employment action, [t]he plaintiff retains the burden of persuasion. [The plaintiff] now must have the opportunity to demonstrate that the [defendant's] proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination. [The plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Citation omitted; internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400-01 (2005).
The defendants argue that the plaintiff has failed to meet the first requirement, that of establishing a prima facie case of discrimination, because he has offered no evidence that he would have in fact been hired for the tenure track faculty position had the search continued. The defendants seek to impose upon the plaintiff a requirement to prove that, "but-for" the discrimination, he would have been hired for the tenure track position. Such a requirement contradicts the plain language of the Connecticut Fair Employment Practices Act. The Act makes it a discriminatory practice "to refuse to hire or employ or to bar or to discharge from employment" any individual because of that individual's age. Section 46a-60(a). Accepting the defendants' argument would graft upon the statute a limitation that is not there. Its protections would only extend to those individuals who could show that they would have been hired or employed absent the illegal discrimination. The statute contains no such limitation.
Such a requirement also finds no support in the case law establishing the elements of a prima facie case of discrimination. As stated earlier, to establish a prima facie case, the plaintiff must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. The burden of establishing a prima facie case of discrimination has been described as "minimal," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), and "de minimis," Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001). The plaintiff has presented evidence that he suffered an adverse employment action by not being offered the opportunity to apply for the tenure track faculty position. A mere refusal to hire or employ, as alleged here, constitutes an adverse action for purposes of establishing a prima facie case. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
The defendants further assert that the plaintiff has failed to establish a claim of age discrimination because Bhalla, the person who made the allegedly discriminatory remarks, was not the person who decided to end the search for a tenured faculty member and the plaintiff has made no showing that Bhalla's remarks were directed at the plaintiff or actually impacted the decision to terminate the search. I am not persuaded.
The Second Circuit scrutinizes four factors in determining whether particular remarks not directly related to the adverse action against the plaintiff are probative of discriminatory intent: "(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process)." Henry v. Wyeth Pharmaceuticals, Inc., 08-1477cv (2d Cir. 2010). None of these factors are regarded as dispositive. Id.
Applying that four-factor analysis here, the plaintiff has submitted sufficient evidence to warrant a fact finder to reasonably find that the remarks by Bhalla are of a discriminatory intent to insure that the University did not hire a person of the plaintiff's age. According to Jeannette Oppedisano, a faculty member and member of the search committee, Bhalla twice stated to the faculty at a meeting held on November 12, 2004, that "I told the Management department that they were to hire a young faculty member." Oppedisano also stated that Bhalla made a similar statement prior to November 12, 2010 and that Oppedisano had told Bhalla to refrain from making such comments because state and federal law prohibit age discrimination. He apparently ignored her advice. Bhalla, at the time he made his remarks, was the acting Dean of the School of Business with considerable influence over the members of the search committee, who were faculty members of the business school. The remarks were made shortly after the search commenced and were made in relation to that very search. Though the import of the remarks is disputed, it is not disputed that they were in fact made and they could reasonably be construed as exhibiting an intent to limit the hire to an individual of a young age.
The defendants argue that the plaintiff has offered no evidence that Bhalla's discriminatory intent influenced Norton's decision to terminate the search. This argument is related to the defendants' claim that the plaintiff has not shown that their non-discriminatory reason for the termination of the search was pretextual. As stated previously, after a defendant has proffered a non-discriminatory reason for the adverse employment action, the burden is on the plaintiff to prove that he is the victim of intentional discrimination. He can accomplish that either by proving that a discriminatory motive motivated the defendants or by proving that the reasons given by the defendants are not true and that discrimination was the real reason for the actions. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). See also Jacobs v. General Electric Co., 275 Conn. 395, 400-01 (2005).
Here, the plaintiff has submitted sufficient evident to raise an issue of material fact as to whether discriminatory intent was a factor in the decision by Norton to terminate the search. Tashis v. The Riese Organization, 211 F.3d 30, 36 (2d Cir. 2000) (It is sufficient for the plaintiff to demonstrate that discrimination was a motivating factor in the employment decision. It need not be the only motivating factor). Norton was aware of the allegedly discriminatory statements by Bhalla and that Bhalla had previously been told by Oppedisano that such comments were arguably discriminatory. Oppedisano also recommended to Norton in an e-mail that Bhalla should be excluded from the search process. Despite her recommendation, Norton did not remove Bhalla from the search process. Although Norton stated that she canceled the search after receiving information that the plaintiff had been involved in discussions with members of the search committee concerning the search and she was concerned about the appearance that the plaintiff obtained an unfair advantage, it is unclear to what extent Norton actually investigated the nature of the plaintiff's involvement and its impact on the fairness of the search. Finally, the plaintiff has submitted evidence that Patricia Terry, the University's affirmative action officer, recommended to Norton that she end the search because it was a "lose, lose" proposition, in that discrimination could be claimed whether the search was continued or terminated. This evidence reasonably raises the issue of whether Norton's decision to terminate the search for a full-time faculty member was motivated, at least in part, by a desire to prevent the hiring of the plaintiff.
The defendants further contend that summary judgment should enter on the third count which contains a claim of retaliation claim because the plaintiff has failed to plead such a claim and has failed to specifically identify the statutory basis for that claim as required by Practice Book § 10-3. General statutes § 46a-60(4) provides that it is a discriminatory practice for any employer to discriminate against any person because such person has opposed ay discriminatory practice. The plaintiff alleges in count three of his complaint that he complained to his department chairperson about the discriminatory statements by Bhalla and that the University canceled the faculty search in retaliation for his complaint. Although the plaintiff has not specifically identified § 46a-60(4) as the basis for his claim, these allegations sufficiently put the defendants on notice as to the nature and substance of his claim of retaliation. Rocco v. Garrison, 268 Conn. 541, 557 (2004). ("As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery").
The defendants also contend that summary judgment should enter on the retaliation claim because they have offered evidence establishing that the reason for the termination of the search was unrelated to the plaintiff's complaints. Retaliation claims are evaluated under the same burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792. Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). "First, the plaintiff must establish a prima facie case of retaliation by showing: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action . . . If the plaintiff sustains this initial burden, a presumption of retaliation arises. The defendant must then articulate a legitimate, non-retaliatory reason for the adverse employment action. If so, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action. A plaintiff can sustain this burden by proving that a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause; if the employer was motivated by retaliatory animus, [the anti-discrimination statute] is violated even if there were objectively valid grounds for the adverse employment action." (Internal quotation marks and citations omitted.) Id., 164-65. The same evidence which supports a direct claim of discrimination in terminating the faculty search by the defendant's age would allow a jury to reasonably find that the defendants canceled the search in retaliation for the plaintiff's opposition to the defendants' discriminatory practice.
Finally, the defendant Bhalla asserts that summary judgment is warranted as to the claim of tortious interference with business expectancies contained in count five because the plaintiff has failed to provide evidence of actual loss. I agree.
A successful action for tortious interference with business expectancies requires the satisfaction of three elements: "(1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000). "It is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss. Thus, it must appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit. Such a determination is a question for the trier of fact, as is the question of whether the plaintiff has suffered an actual loss. If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was made hypothetical by the very wrong of the defendant." (Internal quotation marks and citations omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 97 (2007).
Here, the plaintiff has presented no evidence upon which a trier of fact could reasonably conclude that it was reasonably probable that he would have been hired for the tenure track faculty position. The plaintiff was filling a temporary faculty position and was on the last year of a two-year contract. His contract could not be renewed. The plaintiff submitted his application for the permanent tenure track faculty position along with a number of other applicants and he had no objective expectation that he would be hired for the tenure track position. In short, the plaintiff was one applicant among many for the position and he has presented no evidence that it was reasonably probable that he, rather than one of the other applicants, would be hired for that position had the search not been canceled. Accordingly, he has not presented evidence that he suffered actual loss as a result of the actions of the defendant Bhalla.
For the aforementioned reasons, the defendants' motion for summary judgment is granted as to counts one and five of the plaintiff's complaint and denied as to count three.