Opinion
No. CV 07-4029029 S
October 29, 2010
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff has brought a three-count complaint against the defendant. Count One is brought pursuant to General Statutes § 46a-60(a)(3) and (4) alleging discrimination or retaliation in violation of the Connecticut Fair Employment Practices Act (the Act). Counts Two and Three allege intentional infliction of emotional distress and negligent infliction of emotional distress respectively. The defendant has filed a motion for summary judgment. The plaintiff asserts that "a multiplicity of genuine issues of material fact remain unresolved in the instant matter warranting a full adjudication by the trier of fact." The Court agrees with the plaintiff.
I. Legal Standard
"`In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. `The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.' . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Citations omitted.) Allstate Ins. Co. v. Barron, 260 Conn. 394, 405 (2004).
II. Background
The plaintiff alleges in his complaint that the defendant Union initiated federal litigation asserting that civil service examinations were not culturally biased, failed to appoint a minority to the executive board of the union, failed to represent interests of minority firefighters in disciplinary proceedings and allowed preferential favorable treatment to Caucasians in discipline and in the filling of vacant positions without first requiring testing. The individual plaintiff alleges he voiced his opposition to this discriminatory and disparate treatment and that he was subjected to retaliation, public scorn and ridicule. Further, the plaintiff alleges, on account of his race, that on April 2, 2006, he was "detailed" to a location other than his regular assignment, while an overtime officer, Captain Stacey, "who is Caucasian of race, white of color and Hispanic of ethnicity," was assigned to the plaintiff's normal work location. The plaintiff further alleges that he requested the defendant to "intervene" in the matter, but the defendant failed to do so. The plaintiff testified at his deposition that this "detailing" of him to another firehouse on the date in question was used as a form of "harassment" meant to "aggravate" him. He further testified that this was part of a pattern of harassment by the Fire Department based upon his race and in retaliation for his complaints of racial discrimination. (See, plaintiff's deposition pp. 63-67.) The plaintiff claims and that the defendant Union was obligated to protect him from this form of racially based harassment, and that despite his requests for their assistance, the Union failed to do so. (See, Affidavit of plaintiff dated October 21, 2010, par. 4: "I specifically requested Patrick Eagan [the Union President] file a grievance on my behalf when I was wrongfully detailed to Engine 15 in lieu of my normal work assignment at Engine 6 on or about April 1, 2006; he discriminatorily refused to do so.") As a result of the alleged discriminatory conduct of the defendant Union, the plaintiff also alleges he has suffered "severe emotional distress and trauma, sleeplessness, loss of appetite, overly burdensome financial hardships, damage to their relationships with their family and friends, as well as damage to their self-esteem and sense of self-worth." The plaintiff further alleges that the defendant "intended to inflict emotional distress upon the plaintiff and that the defendant knew or should have know that emotional distress was a likely result of their collective conduct."
With respect to Count One, the parties agree that to establish his prima facie case, the plaintiff must prove that he: (1) is a member of the protected class; (2) was qualified for the benefit conferred; (3) suffered an adverse action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). With respect to a claim of retaliation, the plaintiff must show: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) that an adverse employment action against him occurred; and (4) a causal connection between the protected activity and the adverse action existed. Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536 (2009). The defendant concedes in its brief that the plaintiff's membership in the union may be substituted for his qualification for the position/benefit conferred and that the loss of some benefit or protection afforded by union membership may be substituted for the third element of suffering an "adverse action," assuming plaintiff can sustain his burden of proof. It is undisputed that the plaintiff is African-American and is a member of a protected class.
The defendant in its motion for summary judgment essentially argues that the plaintiff cannot establish his prima facie case because he suffered no adverse employment action as a result of the Union's failure or refusal to pursue a grievance on his behalf as a result of the plaintiff being detailed away from his normal work assignment. In support of this, the defendant points to the fact that by the plaintiff's own admission he did not, for example lose any pay, seniority or benefits as a result of his one day "detailing" to another location. The defendant further argues that there was a legitimate, nondiscriminatory reason for the defendant Union not filing a grievance on the plaintiff's behalf, as the plaintiff admitted that there exists a general practice of detailing officers pursuant to established fire department practice. The defendant goes on to point out several bits of testimony which allegedly show the "lack of credibility" of the plaintiff's claims of discrimination and retaliation. (See, Defendant's Memorandum in Support of Motion for Summary Judgment, p. 18.)
The claims of the defendant miss the mark, however. First, issues of credibility are not appropriate for resolution on a motion for summary judgment. Second, the defendant admitted at oral argument that if plaintiff's assertion was true — that he was "detailed" out of his normal assignment ". . . as part of the calculated and vindictive manner in which the [defendant] Union declined to afford [the plaintiff] the same protection it affords other Caucasian and white of color individuals within its membership," — that this deliberate discrimination by the Union would (if proved) constitute an "adverse employment action." Moreover, if a "disproportionately heavy workload" constitutes an "adverse employment action," (See, Feingold v. New York, 366 F.2d 138, 153 (2d Cir. 2004)) certainly deliberate racially discriminatory treatment of the plaintiff would also constitute an adverse employment action. Such alleged treatment of the plaintiff would also constitute "other indices [of adverse employment actions] unique to [the] particular situation [of the plaintiff]." Id. at 152. The defendant's remaining claims in support of its motion merely address the strength of the plaintiff's case and do not afford a basis to grant a motion for summary judgment.
III Conclusion
Even where the evidence in a case is alleged to strongly favor one party that court may not arrogate to itself the role of trier of fact and, thus, decide issues of material fact as a matter of law. "A party has the same right to submit a weak case [to the jury] as he has to submit a strong one." Rosick v. Equipment Maintenance Service, Inc., 33 Conn.App. 25, 36 (1993), quoting Faulkner v. Samperi, 190 Conn. 412, 419 (1983).
The plaintiff has clearly established a prima facie case and rebutted the defendant's claim that there was a legitimate, nondiscriminatory reason for its conduct. Issues of credibility are within the exclusive realm of the trier of fact, and therefore, cannot be resolved by summary judgment. Battistoni v. Weather King Products, 41 Conn.App. 555, 564 (1996). This Court must view the evidence in a light most favorable to the non-movant. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984); Kinne v. DeBasse, 35 Conn.App. 349, 352 (1994). Based upon the foregoing issues of disputed fact, the defendant's motion for summary judgment is, therefore, denied.