Opinion
No. CV03 040 21 49 S
March 15, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #137
The plaintiff, Josephine Tosado, commenced this action against the defendant, the judicial branch of the state of Connecticut, in 2003. She alleges the following facts in the complaint that she filed on March 30, 2006. The plaintiff, a Hispanic female, is employed by the judicial branch as an interpreter for various trial courts. In 1997, the plaintiff filed a charge of discrimination with the Commission On Human Rights and Opportunities (CHRO) alleging that the chief interpreter discriminated against her because of her sex, race and nationality. The CHRO dismissed the charge in 1999, and although the agency issued a notice of right to sue to the plaintiff, she did not seek a remedy in the Superior Court.
The plaintiff filed a request to amend several paragraphs of the complaint after the defendant filed the motion for summary judgment. The defendant filed a timely objection to the request. The court denied the plaintiff's request and sustained the defendant's objection thereto.
The plaintiff filed a second charge of discrimination with the CHRO on August 12, 2002, in which she alleged that employees of the judicial branch harassed her on the basis of her race, sex and her ancestry and retaliated against her because she had filed her previous charge of discrimination. The CHRO dismissed the plaintiff's charge and issued her a notice of right to sue, which she received on January 14, 2003.
The plaintiff then commenced the present action on April 10, 2003. In the operative complaint, she alleges that the conduct that the defendant's employees engaged in before, during and after she filed her charges of discrimination constitutes harassment on the basis of her race, sex and ancestry and retaliation for her opposition to the defendant's discriminatory conduct. She presumably seeks redress under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq.
This presumption is based on the following. Although the plaintiff does not refer to any statute in count one, the complaint initially contained a second count in which she referred to Title VII of the Civil Rights Act of 1964. The plaintiff withdrew count two on November 6, 2006.
The defendant filed a summary judgment motion on July 12, 2006, and supporting memoranda on that date and on July 31, 2006. The plaintiff filed a revised memorandum opposing the motion on November 6, 2006. The defendant filed a reply, and the motion was heard on the short calendar on November 20, 2006.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
The defendant argues that it is entitled to summary judgment on the following grounds: the court lacks subject matter jurisdiction over the action because the plaintiff did not file it within ninety days of the date that she received a notice of right to sue from the CHRO; the court lacks subject matter jurisdiction over the allegations that pertain to events that occurred before February 22, 2002, and after August 22, 2002, because the plaintiff did not exhaust her remedies pertaining to these events with the CHRO; and the plaintiff's remaining allegations do not state claims upon which relief can be granted.
The defendant also argues that the plaintiff's claim for punitive damages under Title VII is barred by the doctrine of sovereign immunity; the plaintiff's claim is barred by the applicable statute of limitations; and the plaintiff lacks standing to raise claims on behalf of other employees. The first argument is moot, as the plaintiff withdrew her Title VII claim. The defendant abandoned the second argument by not briefing it. As to the third argument, it is apparent that the plaintiff is not attempting to assert claims on behalf of others. Rather, she has included allegations of discriminatory conduct that was directed toward others, which is permissible in the context of a claim of hostile workplace harassment. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000).
As to the defendant's first argument, under General Statutes § 46a-101(e), when the CHRO releases a complaint and issues a notice of right to sue to the complainant, the complainant may bring an action to the Superior Court, provided that the action "shall be brought within ninety days of receipt of the release from the commission." Here, the plaintiff concedes that she did not file an action after she received a notice of right to sue from the CHRO regarding her 1997 charge of discrimination. Therefore, the court lacks subject matter jurisdiction over the conduct that formed the basis for that charge. As to the plaintiff's August 2002 charge, she alleges that she received the notice of right to sue on January 14, 2003. The marshal's return provides evidence that she commenced this action by serving the writ of summons and complaint on the defendant eighty-six days later, on April 10, 2003. See Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) (action commences on date writ is served on defendant). Therefore, the court does not lack jurisdiction over this action on this ground.
The defendant next argues that the court lacks subject matter jurisdiction over incidents of alleged discrimination that occurred before February 22, 2002, or more than 180 days before the plaintiff filed her charge of discrimination on August 22, 2002. General Statutes § 46a-100 provides that "[a]ny person who has timely filed a complaint with the Commission . . . in accordance with section 46a-82 and who has obtained a release from the commission . . . may also bring an action in the superior court . . ." (Emphasis added.) In turn, § 46a-82(e) requires that "[a]ny complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . ."
According to our Supreme Court, while compliance with § 46a-82(e) is "mandatory," a complainant's failure to do so does not deprive the commission of subject matter jurisdiction. Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001). The court explained that "if a time requirement is deemed to be mandatory, it must be complied with, absent such factors as consent, waiver or equitable tolling . . . [T]hus the commission could properly dismiss [a complaint] if it was not filed within 180 days of the alleged act of discrimination." (Emphasis in original.) Id. The trial courts in this and the federal arena have extended this conclusion to judicial actions premised on CFEPA, that is, they have determined that courts also can properly decline to consider allegations that occurred more than 180 days before the date that the plaintiff filed a complaint with the CHRO. See Vollemans v. Wallingford, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0286311 (January 10, 2006, Tanzer, J.) (40 Conn. L. Rptr. 600), and Kahn v. Fairfield University, 357 F.Sup.2d 496, 503 (D. Conn. 2005).
Here, the plaintiff does not argue that the defendant waived the 180 day requirement or consented to the court's consideration of the allegations that occurred prior to that date. Instead, she contends that the court can consider all the conduct that preceded her August 2002 charge because that defendant engaged in a continuing course of conduct that created a hostile work environment such that all of its conduct constituted one unlawful employment practice. Our Supreme Court has recognized that the limitations period of § 46a-82(e) may be equitably tolled where an employer engages in continuing acts of discrimination. State v. Commission on Human Rights Opportunities, 211 Conn. 464, 473, 559 A.2d 1120 (1989).
Nevertheless, the United States Supreme Court recently determined that the applicability of such a tolling provision depends on the nature of the alleged discrimination. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Because our courts "have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute"; (internal quotation marks omitted) Williams v. Commission on Human Rights Opportunities, supra, 257 Conn. 278; the court considers this precedent.
As to the plaintiff's retaliation claim, in National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 113, the court clarified that, as a general rule, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act." Pursuant to this rule, each of the plaintiff's allegations of retaliation is a discrete act, and the court is precluded from considering the allegations regarding conduct that occurred prior to February 22, 2002.
Our courts have "on occasion . . . interpreted our statutes even more broadly than their federal counterparts, to provide greater protections to our citizens, especially in the area of civil rights." Commission on Human Rights Opportunities v. Savin Rock Condominium Ass'n, Inc., 271 Conn. 373, 386 n. 11, 870 A.2d 457 (2005). The plaintiff has not, however, offered an argument as to why the court should do so in these circumstances.
According to other federal precedent, however, the court is not necessarily precluded from considering incidents of alleged retaliation that occurred after the plaintiff filed her charge on August 22, 2002, despite the fact that she did not amend her charge or file a new one pertaining to this conduct. As the Second Circuit Court of Appeals explained, "[t]he issuance of a `right to sue' letter, although not constituting an open license to litigate any claim of discrimination against an employer, does permit a court to consider claims of discrimination reasonably related to the allegations in the complaint filed wit the EEOC, including new acts occurring during the pendency of the charge before the EEOC." (Internal quotation marks omitted.) Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir. 1980). Because the plaintiff's allegations of retaliatory conduct that occurred after she filed her 2002 charge are reasonably related to the allegations in her CHRO complaint, the court can consider these allegations in ruling on the defendant's motion.
As one court explained, "[t]o force an employee to return to the state agency every time he claims a new instance of discrimination in order to have . . . the courts consider the subsequent incidents along with the original ones would erect a needless procedural barrier." Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973).
As to the plaintiff's claim of unlawful harassment, in National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 122, the court expressly excepted claims for hostile work environment from the general rule precluding the court from considering conduct that occurred more than the prescribed number of days before the plaintiff filed the charge of discrimination. As the court stated, "a charge alleging a hostile work environment claim . . . will not be time barred so long as all acts which constitute the claim are part of the same employment practice and at least one act falls within the time period." Id., 122. Although it is not clear that the plaintiff's claim for unlawful harassment is a hostile workplace environment claim, as opposed to disparate treatment claim, the court will assume that it is for the purposes of this motion. The plaintiff has alleged two acts of discrimination based on sex, race, national origin or ancestry that may have occurred after February 22, and before August 22, 2002. First, she alleges that in 1998, and "until his retirement in 2002 Mr. Rosa [the plaintiff's supervisor] openly treated male interpreters better than female interpreters." According the evidence, Rosa retired in July 2002. Second, she alleges that in "July or August 2002, Ms. Soto [the plaintiff's supervisor] accused Plaintiff of being unable to read English."
The court explained that hostile environment claims are treated differently because they "are different in kind from discrete acts. Their very nature involves repeated conduct . . . The unlawful employment practice . . . occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts." (Citations omitted; internal quotation marks omitted.) National Railroad Passenger Corp. v. Morgan, supra, 536 U.S. 115.
Although the plaintiff characterizes this conduct as retaliatory, it could also conceivably be related to the plaintiff's race, national origin or ancestry.
Therefore, the plaintiff's claim of unlawful harassment is not time barred. Moreover, as explained above, the court is not precluded from considering either conduct that occurred prior to February 22, 2002, or conduct that occurred after August 22, 2002, as long as it is reasonably related to the conduct that the plaintiff alleged in her CHRO complaint.
The next consideration is the defendant's argument that the plaintiff's allegations are insufficient to support a cause of action for retaliation. Specifically, the defendant contends that the plaintiff cannot establish a prima facie case of discrimination in that she does not allege that she suffered any adverse employment action, and it has met its burden of providing nondiscriminatory reasons for its conduct.
Section 46a-60(a)(4) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section . . . [f]or any . . . employer . . . 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 . . . under [General Statutes] section 46a-82, 46a-83 or 46a-84 . . ." Under federal law, "[t]he McDonnell Douglas burden shifting analysis used in claims of discrimination in violation of Title VII also applies to retaliation claims brought pursuant to Title VII." Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003). Pursuant to this analysis, "a plaintiff can avoid dismissal by presenting the minimal prima facie case defined by the Supreme Court in McDonnell Douglas . . . By making out this minimal prima facie case . . . the plaintiff creates a presumption that the employer unlawfully discriminated, and thus places a burden of production on the employer to proffer a nondiscriminatory reason for its action . . . [O]nce the employer articulates a non-discriminatory reason for its actions, the presumption completely drops out of the picture . . . Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. (Internal quotation marks omitted.) Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006).
Title VII's anti-retaliation provision provides in relevant part: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
"To establish a prima facie case of retaliation, an employee must show (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." (Internal quotation marks omitted.) Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003). The defendant contends that the plaintiff cannot establish the second element. It relies on the affidavit of Maria Kewer, a personnel manager, who attests that the defendant has not disciplined, demoted, suspended, involuntarily reassigned or transferred or terminated the plaintiff. The defendant also points out that the plaintiff admitted in both her deposition testimony and her discovery responses that she did not suffer any financial loss except for the sick time she used when she missed work or left early due to the conduct of other employees. As to the plaintiff's evidence that she received two written warnings, the defendant asserts that neither the warnings or the loss of sick time constitute discipline because they are not defined as such under the plaintiff's collective bargaining agreement.
The defendant does not, however, address the following additional allegations of retaliatory conduct, all of which appear to be properly before the court: the plaintiff was falsely accused of spying on her supervisor, refusing to accept an assignment, taking an unauthorized leave, being absent, failing to report an absence, stealing, being unable to read English and failing to file paperwork on time; her requests for time off were denied without reason; she was required to bring in a note from a doctor regarding her need for an inhaler; she was denied permission to leave work when she became ill; the plaintiff's supervisor scolded her in public, told her to "shut up," threw a book at her; the supervisor said in front of others that if it were up to her, the plaintiff would "be out of there" and she arranged the schedule so that it was not possible for the plaintiff to do her job; the plaintiff's grievances and complaints to her superiors were denied; she was required to work over a holiday; she received an unsatisfactory evaluation; and the plaintiff was wrongfully denied another position.
The United States Supreme Court recently addressed the nature of the "adverse employment action" requirement of the Title VII retaliation provision in Burlington Northern Santa Fe Railway Co. v. White, U.S. 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The court first rejected the argument that "the employer's actions prohibited by the anti-discrimination provision should . . . be limited to conduct that affects the employee's compensation, terms, conditions, or privileges of employment." (Internal quotation marks omitted.) Id., 2411. Instead, the court concluded, "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related acts and harm." Id., 2414.
The court then considered, "the level of seriousness to which this harm must rise before it becomes actionable retaliation." Id., 2415. The court concluded that "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." (Internal quotation marks omitted.) Id. The court noted that "[w]e phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters . . . A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." Id. In the case before it, the court decided that the jury reasonably concluded that the following two actions by the employer were materially adverse: its reassignment of the plaintiff to a position that was less desirable, and its suspension of the plaintiff for thirty-seven days without pay, despite its later reinstatement of her with back pay. Id., 2417-18.
Under these standards, the plaintiff has alleged conduct by the defendant that a reasonable fact-finder could find "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." (Internal quotation marks omitted.) Id., 2415. Thus she has alleged conduct by the defendant that, if true, is sufficiently materially adverse to constitute actionable retaliation.
The defendant next argues that, by virtue of Kewer's affidavit testimony, it has met its burden of establishing legitimate nondiscriminatory reasons for its conduct such that the burden shifts to the plaintiff to establish that its conduct was premised on unlawful retaliation, which, it contends, she has not done. In her affidavit, Kewer generally testifies that the plaintiff has never been disciplined, she explains why the plaintiff might have not been paid for sick time, and she explains that the written warning the defendant issued to the plaintiff was not a disciplinary action because it does not qualify as such under the plaintiff's collective bargaining agreement. Even assuming that Kewer's explanations establish legitimate nondiscriminatory reasons for these particular incidents, the defendant has not offered any explanation for the numerous other incidents that the plaintiff alleges in support of her retaliation claim. Until it does so, the presumption of retaliation remains, and the plaintiff is not required to meet her "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated [against her] . . . (Internal quotation marks omitted.) Joseph v. Leavitt, supra, 465 F.3d 90. Accordingly, the defendant has not met its burden of establishing that it is entitled to summary judgment as to the plaintiff's claim of unlawful retaliation.
The final question is whether the plaintiff has alleged conduct that is sufficient to support a claim of unlawful harassment. Assuming that the plaintiff is alleging a claim of hostile work environment, the defendant contends that the plaintiff has not alleged that it engaged in conduct that is sufficiently severe to support such a claim.
Under Title VII, a "hostile work environment claim . . . is not limited to sexual advances or sexual behavior . . . It also includes nonsexual behavior directed at an employee because of her gender"; Evans v. Southern New England Telephone Co., United States District Court, Docket No. 3:00 CV 1124 (WIG), 2006 U.S. Dist. LEXIS 71257, *51 (D. Conn. October 2, 2006); and because of the plaintiff's race and membership in other protected classes. See Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999). The plaintiff's claim will be analyzed pursuant to the standards that apply to such claims.
Unlike or our statute; see General Statutes § 46a-60(a)(8); Title VII does not contain a separate section prohibiting sexual harassment. Instead such claims are analyzed under the general provision that, like § 46a-60(a)(1), prohibits employers from discriminating against individuals in the terms, conditions and privileges of employment on the basis of the individual's sex, race, national origin or ancestry. See 42 U.S.C. § 2000e-2(a)(1).
"In order to survive summary judgment on a claim of hostile work environment harassment, a plaintiff must produce evidence that `the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victims employment.' Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) . . ." Diggs v. Manchester, 303 F.Sup.2d 163, 179 (D.Conn. 2004). "[T]his test has objective and subjective elements: the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive . . . Among the factors to consider . . . are the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance . . . In determining whether a hostile environment exists, we must look at the totality of the circumstances . . . As a general rule, incidents must be more that episodic; they must be sufficiently continuous and concerted in order to deemed pervasive." (Citations omitted; internal quotation marks omitted.) Terry v. Ashcroft, supra, 336 F.3d 147. Nevertheless, "a single act can create a hostile work environment if it in fact work[s] a transformation of the plaintiff's workplace." (Internal quotation marks omitted.) Feingold v. New York, 366 F.3d 138, 150 (2004).
In this case, the plaintiff's claim of unlawful harassment is arguably based on the following allegations that occurred from 1999 to 2005: her supervisor treated male interpreters better than female interpreters in some unspecified manner; for some time, her supervisor required the plaintiff and other female interpreters, but not the male interpreters, to cover trials by themselves, he once falsely suggested that she disparaged the marshals assigned to the courthouse, and he once told a third party that he was going to kill her; a male employee whom the plaintiff did not know "degraded" her by telling her that he would take her to a test site in his own car; on one occasion, a non-Hispanic employee denied the plaintiff's request for time off; a non-Hispanic human resources manager once declined to assist the plaintiff; the defendant imposed a time-keeping system on interpreters that discriminated against Hispanic women; and her supervisor once accused the plaintiff of being unable to read Spanish.
The plaintiff's allegations do not rise to the level of creating an objectively hostile work environment because they do not demonstrate that the defendant engaged in a severe or pervasive pattern of harassment that was motivated by the plaintiff's gender, race, national origin or ancestry such that it created an objectively hostile or abusive work environment. Federal courts have consistently held that isolated, sporadic incidents of alleged harassment, such as those alleged by the plaintiff, do not constitute a hostile work environment as a matter of law. See Diggs v. Manchester, supra, 303 F.Sup.2d 181 (few sporadic racially derogatory remarks not severe enough to constitute hostile work environment); Sanchez v. University of Connecticut Health Care, 292 F.Sup.2d 385, 396 (D. Conn. 2003) (three derogatory comments about national origin not sufficiently severe or pervasive). Therefore, the defendant's motion for summary judgment should be granted as to the plaintiff's claim for unlawful discrimination.
For the foregoing reasons, the court grants the defendant's motion for summary judgment as to the plaintiff's claim for unlawful discrimination on the basis of sex, race, national origin and ancestry, and denies the motion as to her claim for unlawful retaliation.