Opinion
No. CV05-4009112S
April 5, 2007
Memorandum of Decision
Before this court in these consolidated matters of Docket Numbers CV 05 4009112 and CV 05 4017925 are the motion for summary judgment, filed by the defendant, the plaintiff's cross motion for partial summary judgment, the defendant's opposition to the plaintiff's cross motion, as well as memoranda of law supporting the positions of the parties relative to the motions and objections which they have filed. For the reasons outlined below, the court grants and denies in part the motion for summary judgment filed by the defendant, and denies the cross motion for summary judgment filed by the plaintiff.
In considering a motion for summary judgment, the court must determine whether the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and, if so, whether the moving party is enticed to judgment as a matter of law. Practice Book § 17-49. See also Mozeleski v. Thomas, 76 Conn.App. 287, 289, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "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." Id., 289-90, quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-59, 783 A.2d 993 (2001).
For purposes of this motion, the defendant concedes the facts as presented by the plaintiff in his affidavit, deposition testimony and other supporting documentation accompanying both parties' memoranda of law. As such, this court finds the following facts are undisputed for purposes of deciding the motions for summary judgment filed by the parties.
The plaintiff, Wayne C. Williams, has worked as a teacher, an administrator and vice principal in the Hartford public schools system for thirty-six years, during the period from 1964 through 2004. From 1999 to 2002, Anthony Amato was the superintendent of schools for the Hartford public schools, during which time he developed a reputation among teachers and administrators as despotic and intolerant of those who did not agree with him.
Particularly controversial was Amato's educational program called "Success for All" (SFA) which was a rigid program emphasizing uniform teaching methods throughout the district, with its overarching goal to improve students' scores on the Connecticut Mastery Test. Emphasizing reading and arithmetic, it deemphasized science and social studies and eliminated art and music programs to the extent that they interfered with the administration of SFA. The program failed after a temporary improvement in testing scores and Amato was fired in October 2002.
During Amato's administration, however, the plaintiff, as vice principle of Burr Middle School, applied for the position of principal at the school. The plaintiff's performance evaluations over his many years in the school system were generally outstanding and from the outgoing principal, he received high scores. Following an extensive application and interview process, the plaintiff was ranked as the number one applicant and was told by the assistant superintendent at the time that, pending approval by Amato, he had the job.
When he met with Amato, however, the plaintiff candidly expressed his reservations about the SFA program. At that point, Amato became "negative" toward the plaintiff and refused to give him the job. The position was offered to Michelle Arbour, and the plaintiff continued as assistant principal, eventually receiving an outstanding evaluation from her as well. Arbour, however, was eventually forced out of the school system and was replaced by Donna Caldeira.
As vice principal under Caldeira, the plaintiff was suddenly receiving very negative evaluations and thus confronted Caldeira with the accusation that she was clearly acting under orders from Amato to fire him. Caldeira did not deny this accusation and instead, said "I don't want to talk about that." He filed a grievance to protest the negative evaluation which resulted in a satisfactory assessment. By then, however, the plaintiff was convinced that he needed to find another position within the school system so he could avoid ongoing conflict with Cadeira.
The plaintiff subsequently learned of an assistant principal position at South Middle School where James Pagan was principal at the time. Assured that Pagan would support his application, the plaintiff applied for the position. Strongly advocating for the plaintiff's transfer to his school, Pagan then contacted Amato who indicated his reluctance, but agreed to permit the transfer on the condition that the plaintiff submit a letter of his intention to retire in two years.
In consultation with his union, the plaintiff and Fagan understood that Amato's demand was unenforceable. Believing that if he did not accept Amato's demand that he retire, he would instead be fired, the plaintiff went through the motions of submitting a letter, indicating his intention to retire in two years. Notably, the letter he originally sent was deemed unacceptable by the human resources office of Hartford public schools because the plaintiff originally drafted his letter indicating his intention to retire in two years. Ultimately, the plaintiff agreed to sign a letter indicating that he would retire in October 2004, rather than indicating his intention to retire at that time. While at South Middle School, the plaintiff was described as "an excellent vice principal."
In February 2004, however, Amato had been terminated and the plaintiff immediately submitted a letter to his union indicating that he was rescinding his intention to retire. He was happy with his position, loved his job and could not afford to retire. On September 8, 2004, he wrote a letter to the chairman of the school board informing him that he did not want to retire and requested a meeting "to explain the circumstances surrounding" his retirement letter and to discuss the feasibility of withdrawing the letter. He was told, however, that his retirement could not be rescinded. As such, at the age of sixty-three, he was replaced on October 29, 2004 by Mark Levy who was in his forties. By his counsel, the plaintiff wrote a letter on November 2, 2004 invoking his due process rights under the Teacher Tenure Act and was informed on November 18, 2004 that he was not entitled to those protections.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. Docket No. CV 05 400 9112 A. Breach of Contract
The plaintiff's first cause of action in this file asserts that the defendant breached its contract of employment with the plaintiff. The plaintiff asserts that his contract of employment was breached when he was terminated without the due process protections to which he claims he is entitled under the Teacher Tenure Act, General Statutes § 10-151 et. seq. The defendant seeks summary judgment based on its claim that the Teacher Tenure Act does not apply to voluntary resignations or retirement, although in its brief, it asserts that the contract at issue is the agreement between the parties to resign, as opposed to the employment contract. Notwithstanding, the court cannot grant summary judgment as to this count since it finds that the issue of whether or not the plaintiff's retirement was voluntary is an issue of material fact, particularly in light of the plaintiff's belief that his agreement to retire was unenforceable. As such, the motion for summary judgment is denied as to this count.
B. Violation of the Connecticut Constitution
The plaintiff has also alleged that he was deprived of his liberty and property interest in continued employment without his due process rights under the Connecticut constitution. Even in the light most favorable to the plaintiff, the nonmoving party with respect to this count, the court finds that the defendant is entitled to judgment as a matter of law. In general, the Connecticut constitution does not allow a private cause of action when there is an adequate legislative remedy. Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 340, 627 A.2d 909 (1993). Here the Teacher Tenure Act operates to protect the due process rights of tenured teachers and like Kelley Property Development, Inc., this case does not present the kind of compelling circumstances which would warrant the creation of a new cause of action under the state constitution. Id. The plaintiff has requested that this court defer ruling on this issue, essentially based on whether he prevails or not on his other counts. The plaintiff, however, has not cited any authority for the proposition that the failure to prevail on a statutory cause of action, which is otherwise an adequate legislative remedy, affords him the opportunity to ask this court to create a cause of action under the state constitution. Citing only the complexity of the courts' decisions in Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998) (holding that there may be a cause of action under the Connecticut constitution where there was an illegal search and seizure), and Aselton v. East Hartford, 277 Conn. 120, 153, 890 A.2d 1250 (2006), the plaintiff has not provided this court with persuasive authority to justify delaying its ruling. The court finds in favor of the defendant on this count.
C. Wrongful Discharge in Violation of Public Policy
The plaintiff has also claimed a cause of action based on wrongful discharge in violation of public policy. "Wrongful discharge" however, provides a cause of action for those employees who are otherwise without remedy. Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 648, 501 A.2d 1223 (1985) (where plaintiff was claiming "wrongful discharge" under common law and fair Employment Practices Act). Tenured teachers, whose employment contract is governed by General Statutes 10-151, have a remedy under that act, unlike at-will employees, and as such, cannot recover for wrongful discharge. Cimochowski v. Hartford Public Schools, 261 Conn. 287, 306, 802 A.2d 800 (2002); Tomlinson v. Board of Education, 226 Conn. 704, 730 n. 18, 629 A.2d 333 (1993). The court finds in favor of the defendant on this count.
D. Violation of the United States Constitution
The plaintiff has also claimed that the defendant violated his federal constitutional rights by depriving him of a property or liberty interest in his continued employment without due process of law in violation of the Civil Rights Act, 42 U.S.C. § 1983. Citing Lee v. Board of Education, 181 Conn. 69, 434 A.2d 333 (1980), the defendant concedes that where a tenured teacher is deprived of the benefits and protections of the Teacher Tenure Act, he or she would have a remedy under 42 U.S.C. § 1983 for damages against the school system. The defendant argues, however, that the plaintiff's voluntary resignation precludes him from invoking the due process protections inherent in the Teacher Tenure Act and as such, as a matter of law, he has no cause of action under 42 U.S.C. § 1983. Because the issue of whether the plaintiff's resignation was voluntary is a disputed issue of material fact, however, this court denies the motion for summary judgment as to this count.
II. Docket No. CV 05 4017925 A. Violation of Age Discrimination in Employment
The plaintiff has also alleged that he was terminated "in material part" because of his age, which was sixty-three at the time of his termination, and that he was replaced by a teacher who was in his forties. He further alleged that this conduct is part of a pattern and practice on the part of the Hartford board of education to force older employees out of the school system to make room for younger employees, in violation of 29 U.S.C § 623 of the Age Discrimination in Employment Act (ADEA). He makes similar allegations invoking Connecticut Fair Employment Practices Act (CFEPA), General Statues § 46a-60 et. seq.
The burden of proof for a plaintiff asserting a claim of age discrimination under the ADEA and under CFEPA is strikingly similar. "In order to establish a prima facie case of age discrimination, the plaintiff must show that he was (1) within the protected age group; (2) qualified for the position; (3) discharged; and (4) that such discharge occurred under circumstances giving rise to an inference of discrimination." Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 134 (2d Cir.) (interpreting the ADEA), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000). "If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises. The burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for discharging the employee." (Citations omitted.) Id. "If the employer articulates a nondiscriminatory reason for its employment decision, the presumption of discrimination raised by the prima facie case simply drops out of picture." (Internal quotation marks omitted.) Id., 134-35. "At this stage, the burden shifts back to the plaintiff to offer proof through presentation of his own case and through cross-examination that would allow a rational factfinder to conclude that the proffered reason was not the true reason for the adverse employment action, and that age was." (Internal quotation marks omitted.) Id., 135. "[The plaintiff] need not prove that age was the only or even the principal factor in the adverse employment action, but only that age was at least one of the motivating factors in that decision." Id. Compare Jacobs v. General Electric Co., 275 Conn. 395, 880 A.2d 151 (2005) (Supreme Court articulates burden of proof in age discrimination case pursuant to General Statutes § 46a-60, a provision of CFEPA).
The defendant's motion for summary judgment as to both causes of action relies again on the issue of what this court has already found is a disputed issue of material fact; that the plaintiff cannot establish the required element that he was adversely discharged since he voluntarily resigned. The plaintiff, however, has established for purposes of summary judgment that he is a member of the protected class, that he was qualified for the position, and that there is a material issue of fact as to whether he voluntarily resigned or was adversely discharged. He has also alleged that the individual who was hired to replace him was in his forties. As the Carlton court observed in employment discrimination cases, the "the burden of establishing a prima facie case is not a heavy one. One might characterize it as minimal." Carlton v. Mystic Transportation, Inc., supra, 202 F.3d 134-35 (citing cases where inference of discrimination established when plaintiff can show duties assumed by younger employees). As such, this court denies the plaintiff's motion for summary judgment on these two counts.
PLAINTIFF'S REVISED CROSS MOTION FOR SUMMARY JUDGMENT
The plaintiff's revised cross motion for partial summary judgment seeks judgment as to liability on the fourth and fifth counts of his complaint in Docket No. CV 05 4009112 in which the plaintiff asserts his cause of action pursuant to the U.S. Constitution under 42 U.S.C § 1983 as well as a claim for equitable relief. Given the court's discussion above regarding the existence of material facts in dispute, the court also denies the plaintiff's cross motion for summary judgment.
CONCLUSION
Based on the above findings, the court denies the plaintiff's revised cross motion for summary judgment, grants the defendant's motion for summary judgment as to count two alleging a cause of action under the Connecticut constitution and count three, alleging wrongful discharge in violation of public policy, and denies the defendant's motions as to the remaining counts.