ROBERT N. CHATIGNY, District Judge.
Plaintiff Frederick Abrams brings this case against the Connecticut Department of Public Safety (DPS), and four of its employees, alleging discrimination in employment. In February 2011, the defendants moved for summary judgment. The motion was granted in part and denied in part. A jury returned a verdict for the defendants on the remaining claims. The Second Circuit affirmed in part and vacated and remanded in part. Following the remand, the defendants once again moved for summary judgment (ECF No. 144). The motion has been denied in an oral ruling. This memorandum provides a more complete statement of the reasons for that ruling.
Plaintiff, a black male, began his employment with DPS in 1986. Four years later he joined the Eastern District Major Crimes Unit. Of the more than thirty detectives assigned to this unit, five or six work on the major crimes van. They are responsible for investigating particularly serious crimes.
Beginning in 1998, plaintiff expressed interest in joining the van. Candidates for service on the van are not selected through a formal process. Instead, detectives make their interest known and submit resumes. During the relevant time period, selections were made by defendants Sergeant John Turner, who supervised the van, and Captain Patrick O'Hara, the Commanding Officer of the Major Crimes Unit. Defendant Lieutenant Colonel Steven Fields reviewed their selections.
Between 2004 and 2009, eight detectives were selected for the van. All were white. Plaintiff then brought this suit challenging his non-selection.
In February 2011, defendants moved for summary judgment. At the third step of the
On appeal, the Second Circuit agreed that the history of discrimination within DPS was not probative. But it held that the statements attributed to Contre and O'Hara did raise an inference of discrimination. In the Court's words, Contre and O'Hara "just might" have been talking about race.
Accordingly, the appellate Court vacated the judgment as it pertained to plaintiff's non-assignment to the van. The Court stated: "[W]e vacate the judgment of the district court granting summary judgment to Defendants on Abrams's Title VII discrimination claim against DPS; and because the analysis is parallel under Abrams's § 1983 Equal Protection Clause claim, we vacate this decision as well and reinstate the relevant individual defendants."
In moving again for summary judgment following the remand, the defendants have raised numerous arguments. Each argument is addressed below.
On a motion for summary judgment, the Court's role is limited to determining whether the record presents triable issues of fact. 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). A fact is "material" if it influences the case's outcome under governing substantive law.
Defendants first argue that the employment actions occurring in 2004 and 2006 — the selection of Detectives Leitkowski and McFadden — did not occur in circumstances giving rise to an inference of discrimination. They reason that the Second Circuit's decision relied heavily on O'Hara's remark in 2007 that Payette was a "better fit" for the van than the plaintiff. Defendants acknowledge that Contre's "fit in" statement was made between 2000 and 2004, but they view his statement as a stray remark by a non-decisionmaker, which cannot by itself support a reasonable inference of discrimination.
Defendant's argument concerning the non-selections in 2004 and 2006 must be rejected. First, it is inconsistent with the Second Circuit's ruling. Plaintiff's Title VII claim asserted that eight white detectives were hired instead of him because of racial discrimination. The Second Circuit vacated the grant of summary judgment as to the "Title VII discrimination claim." The opinion draws no distinction between the non-selections in 2004 and 2006, on the one hand, and, on the other, the non-selections in and after 2007.
Second, plaintiff's evidence on the issue of discrimination with regard to the non-selections in 2004 and 2006 goes beyond Contre's remark.
Defendants next argue that the evidence is insufficient to permit a reasonable inference that any individual defendant violated the Equal Protection Clause. To prevail on his equal protection claim, plaintiff must show (1) that he was treated differently than similarly situated persons outside his protected group, and (2) that this disparate treatment was based on race.
Defendants' challenge to the equal protection claims cannot be sustained. The Second Circuit's opinion does not say in so many words that the plaintiff was similarly situated to the detectives selected for the van (or, rather, that a jury could reasonably so conclude). But that determination is implicit in the Court's analysis. And the Court made it clear that the issue of the defendants' intent is for the jury.
The defendants' next argument is that they are entitled to qualified immunity, an issue the Second Circuit directed this Court to address on remand. This argument must also be rejected.
The doctrine of qualified immunity "shields federal and state officials from money damages unless a plaintiff pleads facts showing 1) that the official violated a statutory or constitutional right, and 2) that the right was clearly established at the time of the challenged conduct."
Here, defendants argue that Fields is entitled to qualified immunity because "his involvement in assignments to the van was limited to overseeing the selections to assure that they were fair" and he "believed that his actions were lawful." ECF No. 144-1, at 19. They argue that O'Hara and Turner are entitled to qualified immunity because they, too, could have believed their actions lawful: all the detectives they assigned to the van possessed special skills that the plaintiff lacked. To support the point, they list the eight detectives selected for the van and their various capabilities.
The defendants' argument is flawed in two respects. First, it is not an argument about qualified immunity. The doctrine of qualified immunity ordinarily turns on the clarity of governing law. Here, the governing law is clear: the plaintiff alleges that Fields, O'Hara and Turner failed to select him for the van because of his race. No reasonable official could think that discriminating against the plaintiff on this basis might be lawful.
Defendants' argument, then, is about the merits — whether they acted with discriminatory intent — not about whether their conduct was reasonable in spite of the constitutional violation. This merits-based argument contains a second flaw — it is inconsistent with the Second Circuit's opinion. Defendants write, for example: "Detective Hoyt had expertise working with other agencies and handling cases involving children and sexual assault. A reasonable official in defendants Turner's and O'Hara's positions would not have understood that they were violating Detective Abrams's rights by assigning Detective Hoyt rather than Detective Abrams to the van for this reason." ECF No. 144-1, at 20. These assertions miss the point of the Second Circuit's ruling. The case was remanded because a reasonable jury could conclude that Turner and O'Hara did not assign Hoyt to the van "for [that] reason." It could instead conclude that they assigned Hoyt to the van because he is white and Abrams is black. Officials who penalize subordinates for their race are not entitled to qualified immunity.
In sum, defendants' argument is about the constitutional merits, not about qualified immunity, and it is untenable in light of the Second Circuit's ruling.
Defendants next argue that they cannot be held liable on the equal protection claims because none of them was personally involved in plaintiff's non-assignment to the van. Defendants' personal involvement in the alleged constitutional deprivation is "a prerequisite to an award of damages under § 1983."
The Second Circuit's language concerning the reinstatement of the equal protection claims leaves some room for interpretation. It reads: "[B]ecause the analysis is parallel under Abrams's § 1983 claim, we vacate this decision as well and reinstate the relevant individual defendants." (The emphasis is mine.) Below, I address the issue of personal participation with respect to each individual defendant. I think the facts and law are best reconciled with the Second Circuit's language by keeping all the defendants in the case.
1. O'Hara. The defendants argue that no reasonable jury could find O'Hara liable for an equal protection violation because "there has been no evidence that [he] intentionally discriminated against the plaintiff because of his race and/or color." ECF No. 144-1, at 26. This argument must be rejected. O'Hara's "fit in" comment was one of the primary grounds for reversal, and he (along with Turner) made the selections for the van. If anyone personally participated in the adverse employment actions (and it is certain that some defendants did), it was O'Hara.
2. Turner. Turner supervised the van and, along with O'Hara, selected its members. He argues that he cannot be held liable because there is no evidence that he intentionally discriminated against Abrams. The best argument for Turner's position is that none of the evidence on which the Second Circuit primarily relied — the "fit in" comments — directly involved him. To determine that he is liable for the violation, a jury would have to infer his impermissible intent from comments made by others. It is fair to argue that a jury could not reasonably make that leap, but for a few reasons I nevertheless conclude that the argument fails. First, the language of the Second Circuit's remand order by its own terms embraces equal protection claims against at least two defendants ("[W]e vacate [the Equal Protection] decision as well and reinstate the relevant individual defendants."). Second, the appellate opinion draws no distinctions among the defendants who participated in van selections.
3. Fields. Fields argues that he cannot be held liable because he "merely oversaw the hiring process." This argument suggests that
4. Timing. In their reply brief, the defendants suggest that plaintiff has failed to show that O'Hara and Fields had any role in some of the van selections because of changes in their employment status. O'Hara and Fields cannot be held personally liable as to employment decisions in which they did not participate at all. But the record is unclear as to which decisions answer to that description. On the defendants' telling, neither O'Hara nor Fields was involved in the decisions concerning Leitkowski (2004), Vining (2008), Hoyt (2008), Cargill (2009) or Kasperowski (2009). Given the timing of O'Hara's changes in employment, that might accurately describe the set of selections with which he had no involvement. That would not, however, seem to be true of Fields, who was District Administrator between 2007 and 2009, as well as in 2004. The Court is unable to resolve this matter on the present record. Accordingly, the parties have been directed to attempt to reach agreement about which defendants can be held liable for which adverse actions. The issue will be addressed again prior to trial.
5. Lynch. Lynch was the head of the DPS Affirmative Action Office, and had no role in selecting detectives for the van. But at some point between 2004 and 2009, plaintiff spoke with Lynch about his non-assignment to the van and told her he was being passed over because of his race. Lynch suggested that he file a complaint outside the department instead of with the Affirmative Action Office, which Abrams interpreted to mean that she would do nothing to help him. Abrams never filed a formal complaint with Lynch.
The defendants argue that Lynch was not involved in the alleged constitutional deprivation because she played no part in the selection process. This argument presents a close question. Plaintiff does not suggest that the department's failure to investigate his charge was itself an adverse employment action, so his claim relies on connecting Lynch's failure to investigate to his non-selection for the van. In the language of § 1983, he must show that Lynch "subject[ed]" him, or "cause[d] [him] to be subjected," to the alleged deprivation. Compared to those of the other defendants, Lynch's role in the unconstitutional conduct was tangential. The plaintiff cites no precedent supporting the view that Lynch can be held to answer for the alleged violations, instead simply stating that "Lynch was personally involved in the ongoing constitutional deprivation suffered by Abrams in connection with his claims of being discriminated against." ECF No. 152-1, at 28.
But several considerations militate against the defendants' argument. One is that the Second Circuit, in reinstating the equal protection defendants, did not suggest that summary judgment might properly be entered as to any of them. A second consideration is this: although § 1983's requirement of causation demands a causal link between Lynch's actions and the alleged deprivation, it demands only a causal link; it does not require Lynch to have been a participant in the formal decisionmaking process.
In my view, the question is simply whether a jury could reasonably draw the inferences required to impose liability on these theories. I think it could. I read the Second Circuit's opinion to say a jury might reasonably conclude that Lynch failed to investigate plaintiff's complaint for discriminatory reasons.
This Court's initial ruling reserved decision on the issue whether plaintiff's non-assignment to the van qualified as an adverse employment action.
The parties agree that detectives on the van do not receive more pay or better benefits than the other detectives in Major Crimes and that selection for the van was not in any formal sense a promotion. Plaintiff's argument relies on evidence that van duty was considered a prestigious assignment.
A substantial body of case law supports the proposition that denial of a transfer to a materially more prestigious position constitutes an adverse employment action. In
Plaintiff points to the following evidence tending to establish that the van was an elite assignment. First, Matthew Turner, who worked in Major Crimes between 2000 and 2004, testified in his deposition that the van was a "desired position within the major crimes squad." That was because the position was "elite," drawing only the "best of the best of troopers." Within Major Crimes, "everybody at the time [he] was there aspired to be on the van because the van is the elite members within major crime." Van detectives were the "lead investigators" for most homicides — detectives not assigned to the van would "go and assist" van members. Detectives on the van were held out to other troopers and the public as "elite" law enforcement officers. Matthews DT (manually filed), at 15-17.
Matthews's testimony is corroborated by other evidence. Turner testified that he tried to hire only the "strongest investigators" for the van. Turner DT, at 75. Fields testified that he tried to select only detectives who had demonstrated "excellence" and "[n]ot just good proficiency, but great proficiency." He agreed that detectives on the van investigated most homicides, which was the reason that only the best officers were selected for service. Fields DT, at 32-35. Moreover, more detectives desired to work on the van than could be accommodated. Of the more than thirty detectives in Major Crimes, no more than six served on the van at any given time.
The defendants assert that this evidence fails to show that plaintiff's non-assignment was an adverse employment action. They raise several arguments to support the point. First, they say, plaintiff has shown only that he experienced subjective disappointment when he was denied van duty, not that his non-selection for the van worked any objective material disadvantage. The defendants are correct to note that the case law distinguishes between subjective disappointment and objective disadvantage. But this principle finds expression chiefly in the courts' unwillingness to accept a plaintiff's unadorned opinions as objective evidence of prestige. For instance, in
In this case, although plaintiff relies mostly on deposition testimony on the issue of prestige, he relies on deposition testimony from parties other than himself. Moreover, those parties did not offer conclusory statements to the effect that van duty was prestigious: they explained why they thought so and why detectives were drawn to the van. (Basically, they thought the van prestigious because it was widely known that many detectives wanted to join it, and many detectives wanted to join it because it investigated serious crimes and accepted only the very best of troopers.)
In sum, the defendants' argument is unpersuasive because it focuses on the form of the plaintiff's evidence (deposition testimony) instead of its source (parties other than the plaintiff) and substance (opinions about prestige that are not conclusory, but are instead undergirded by supporting facts about van service). As a result, this first argument must be rejected.
The defendants' second argument is that Matthews's opinions about the van shed no light on the plaintiff's non-assignment because Matthews left Major Crimes in 2004 and most of the plaintiff's denials of transfer occurred after that. They place great weight on this statement from Matthews's deposition: "[T]he van is a desired position within the major crimes squad. Or it used to be. I don't know if it's so much anymore. I'm not sure." Matthews DT, at 15. Matthews's testimony, they urge, therefore has no bearing on whether Abrams's non-assignments in 2006, 2007, 2008 and 2009 were adverse employment actions.
Plaintiff cannot prevail on the basis of a non-assignment to the van unless that non-assignment was an adverse employment action. But evidence tending to show that one non-assignment qualifies can be applied to others. Moreover, the plaintiff does not have to produce a witness to testify about attitudes toward the van in 2006, another to testify about attitudes toward the van in 2007, another for 2008, and so on. The question is not whether a deposition witness has stated, "In 2007 detectives thought such-and-such about the van," but whether the record evidence permits a reasonable inference that the van was a prestigious assignment during the period in question.
I think it does. Matthews's testimony speaks directly to the way detectives viewed the van between 2000 and 2004. His description of van duties fits the descriptions offered by Fields and Turner, so the attributes that made the van attractive from 2000-2004 still existed between 2005 and 2009. In other words, after 2005 — just as before — van detectives still worked almost exclusively on homicides, they were still few in number relative to the Major Crimes unit as a whole, and they were thought to have superior qualifications. Given that these attributes of van duty did not change, a juror might infer that attitudes toward the van did not change either.
Finally, defendants argue that when a plaintiff seeks transfer to an "elite" unit but is denied, it is an adverse employment action only if the position offered other advantages, such as more or better opportunities for career advancement. One case from within the Second Circuit provides support for this proposition.
Accordingly, defendants' motion for summary judgment has been denied.
So ordered.
