JOAN GLAZER MARGOLIS, United States Magistrate Judge.
On April 20, 2011, plaintiff Ellen Murray, a now-retired Assistant Fire Chief in the Stratford Fire Department, commenced this gender discrimination action against defendants Town of Stratford ["defendant Town" or Town of Stratford], and James Miron, individually and in his official capacity as the Mayor of the Town of Stratford. (Dkt. # 1). On September 19, 2011, plaintiff filed an Amended Complaint (Dkt. # 29), in which she alleges that the defendant Town discriminated against her because of her gender, in their refusal to promote her, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, and CONN. GEN.STAT. § 46a-60(a)(1)(Counts One & Three); the defendant Town has discriminated against her based on gender plus race in violation of Title VII (Count Two); the defendant Town has taken affirmative disciplinary actions in violation of CONN. GEN.STAT. § 31-51q in punishing plaintiff for the exercise of her right to free speech and free association under the First Amendment to the United States Constitution and/or by exercising her rights under Sections 3, 4, or 14 of Article first of the Connecticut Constitution (Count Four); defendant Miron has retaliated against plaintiff under
On August 29, 2011, the defendant Town filed its First Motion to Dismiss Count Four of Plaintiff's Complaint. (Dkt. # 30; see Dkts. ## 21, 24-27, 31-32). On February 8, 2012, the parties consented to trial before this Magistrate Judge and the case was transferred from U.S. District Judge Janet Bond Arterton to this Magistrate Judge. (Dkt. # 37). On May 3, 2012, this Magistrate Judge filed a Ruling on Defendant Town of Stratford's Motion to Dismiss the Fourth Cause of Action, granting defendant Town's Motion on grounds that plaintiff failed to allege that she was subjected to "discipline" within the meaning of CONN. GEN.STAT § 31-51q. (Dkt. # 51). Thereafter, on July 10, 2012, defendants filed their Answers and Affirmative Defense. (Dkts. ## 56-57).
On June 21, 2013, the defendant Town filed its Motion for Summary Judgment, with brief and exhibits in support (Dkt. # 75),
On August 22, 2013, defendants filed their joint brief in opposition to plaintiff's
On that same day, plaintiff also filed her Motion to Strike four exhibits attached to defendant Miron's Motion, with brief in support (Dkt. #86), and her Motion to Strike four exhibits attached to the defendant Town's motion, with brief in support (Dkt. # 87) on grounds that these exhibits are not in admissible form. On September 19, 2013, plaintiff filed her Motion to Strike defendants' brief in opposition to plaintiff's Motion for Partial Summary Judgment on grounds that four exhibits were filed in inadmissible form. (Dkt. #97).
Also on September 19, 2013, plaintiff filed her reply brief in further support of her Motion for Partial Summary Judgment. (Dkt. # 98).
For the reasons stated below, defendant Town of Stratford's Motion for Summary Judgment (Dkt. # 75) is granted in part and denied in part; defendant Miron's Motion for Summary Judgment (Dkt. # 77) is granted in part and denied in part; plaintiff's Motion for Partial Summary Judgment (Dkt. # 79) is denied; and plaintiff's Motions to Strike (Dkts. ## 86, 87, 97) are denied.
Plaintiff was employed by the Town of Stratford in the Stratford Fire Department ["SFD"] for twenty-seven years and nine months from 1982 to 2010, and she was one of four Assistant Fire Chiefs from January 2007 to 2010. (Plaintiff's Local Rule 56(a)1 Statement ¶¶ 1, 4; Defendants' Local Rule 56(a)2 Statement ¶¶ 1, 4; Defendants' 56(a)1 Stmt ¶¶ 1, 3; Plaintiff's 56(a)2 Stmt ¶¶ 1, 4; Undisputed Facts ¶¶ 5-6, 11-12, 15, 25, 34). The position of assistant chief is below only those of fire chief and deputy fire chief. (Defendant Town's 56(a)1 Stmt ¶ 2; Defendant Miron's 56(a)1 Stmt ¶ 2; Plaintiff's 56(a)2 Stmt ¶ 2). Plaintiff is a white female. (Undisputed Facts ¶ 10). Defendant Miron was the Mayor of Stratford from December 2005 to December 2009. (Plaintiff's 56(a)1 Stmt ¶ 2; Defendants' 56(a)2 Stmt ¶ 2; Undisputed Facts ¶ 7).
Plaintiff was a member of the firefighter's union, Local 998, from 1982 until she was promoted to Assistant Chief in January 2007. (Plaintiff's 56(a)1 Stmt ¶ 5; Defendants' 56(a)2 Stmt ¶ 5; Miron's Resp. 10/5/12 ¶ 6; Town's Resp. 10/5/12 ¶ 6). Plaintiff's husband, Thomas Murray, was an Assistant Chief in the SFD and was an active participant in the union, serving on numerous boards and committees. (Plaintiff's 56(a)1 Stmt ¶ 6; Defendants' 56(a)2 Stmt ¶ 6; Undisputed Facts, ¶ 10; Miron's Resp. 10/5/12 ¶¶ 10-16, 50-52; Town's Resp. 10/5/12 ¶¶ 10-16, 50-52). In his work with the firefighter's union, Assistant Chief Thomas Murray was particularly involved in matters related to municipal pensions, and he was regarded as the "go-to" person for firefighters with department issues, union issues, and legal issues. (Plaintiff's 56(a)1 Stmt ¶ 7; Defendants' 56(a)2 Stmt ¶ 7; Cavanaugh Depo. at 107-08). His active involvement in the firefighter's union and advocacy for members of the SFD resulted in him not being well-liked within Stratford Town Hall. (Plaintiff's 56(a)1 Stmt ¶ 8; Defendants' 56(a)2 Stmt ¶ 8; Cavanaugh Depo. at 110). Plaintiff was as enthusiastic, interested, and dedicated to the firefighter's union as her husband. (Plaintiff's 56(a)1 Stmt ¶ 9; Defendants' 56(a)2 Stmt ¶ 9; Cavanaugh Depo. at 108). The Assistant Chiefs of the SFD rejoined the firefighter's union in September 2008 after extensive, contentious negotiations with the Town. (Plaintiff's
James Cavanaugh ["Chief Cavanaugh"] was Fire Chief from June 2009 to January 2013. (Plaintiff's 56(a) 1 Stmt ¶ 3; P; Defendants' 56(a)2 Stmt ¶ 3; Undisputed Facts ¶ 19). When Chief Cavanaugh interviewed for the position of Interim Fire Chief, defendant Miron told Cavanaugh that cost containment was needed in the SFD. (Plaintiff's 56(a)1 Stmt ¶ 16; Defendants' 56(a)2 Stmt ¶ 16; Cavanaugh Depo. at 41). The first opportunity to cut costs associated with the SFD occurred when the firefighter's collective bargaining agreement came up for negotiation, at which time the Town focused exclusively on the salary and benefits of the firefighters, and was not willing to consider reducing costs by other means. (Plaintiff's 56(a)1 Stmt ¶ 17; Defendants' 56(a)2 Stmt ¶ 17; Cavanaugh Depo. at 42-43). According to Chief Cavanaugh, the SFD had a "tremendous" union contract and the Town was going to "attack" the firefighter's union in the negotiation process. (Plaintiff's 56(a)1 Stmt ¶ 18; Defendants' 56(a)2 Stmt ¶ 18; Cavanaugh Depo. at 38).
When defendant Miron decided to run for Mayor, he sought to address several issues affecting the Town, including the reduction of Town costs, which defendant Miron identified as a major issue. (Plaintiff's 56(a)1 Stmt ¶ 19; Defendants' 56(a)2 Stmt ¶ 19; Miron Depo. at 51, 55). Defendant Miron admitted that he took all factors into consideration when hiring someone, that he did not look at matters in a vacuum when making employment decisions, and that he looked at "how the real world affects decisions." (Plaintiff's 56(a)1 Stmt ¶ 20; Defendants' 56(a)2 Stmt ¶ 20; Miron Depo. at 87). During his administration, defendant Miron was involved in negotiating several collective bargaining agreements and would try to keep raises as small as possible. (Plaintiff's 56(a)1 Stmt ¶ 21; Defendants' 56(a)2 Stmt ¶ 21; Miron Depo. at 97, 101).
Defendant Miron admitted that overtime costs and pension costs were big concerns for him; specifically, he was concerned with the fact that the SFD would routinely exceed its overtime budget. (Plaintiff's 56(a)1 Stmt ¶ 27; Defendants' 56(a)2 Stmt ¶ 27; Miron Depo. at 172, 175). The firefighter's union was the only bargaining unit in the Town that had overtime included in the compensation used to calculate a firefighter's pension benefit, as set forth in the pension agreement negotiated between the firefighter's union and the Town. (Plaintiff's 56(a)1 Stmt ¶¶ 28-29; Defendants' 56(a)2 Stmt ¶¶ 28-29; Miron Depo. at 175, 177). Defendant Miron saw the inclusion of overtime in the pension calculation as a problem because it increased the Town's liability for prospective pension benefits. (Plaintiff's 56(a)1 Stmt ¶ 30; Defendants' 56(a)2 Stmt ¶ 30; Miron Depo. at 175). Thus, in accord with the Town's position to try to control costs by various means, defendant Miron sought to limit the scope of the term "compensation" in the pension agreement to exclude overtime pay in the calculation of firefighters' pension benefits, but the firefighter's union would not agree to that change. (Plaintiff's 56(a)1 Stmt ¶¶ 31, 36; Defendants' 56(a)2 Stmt ¶¶ 31, 36; Miron Depo. at 177;
In February 2009, two management positions within the SFD became available-fire chief and deputy fire chief. (Defendants' 56(a)1 Stmt ¶ 4; Plaintiff's 56(a)2 Stmt ¶ 4; Undisputed Facts ¶ 20). In order to perform a nationwide search for candidates to fill the positions of fire chief and deputy fire chief, along with the deputy police chief, the Town retained Randi Frank Consultants and Slavin Management Consultants [collectively "Randi Frank"]. (Defendants' 56(a)1 Stmt ¶ 5; Plaintiff's 56(a)2 Stmt ¶ 5; Undisputed Facts ¶¶ 21, 31). Randi Frank created job descriptions and qualifications for the positions, advertised the positions, developed an interview syllabus and job-specific questionnaires, and designed a grading rubric. (Defendants' 56(a)1 Stmt ¶ 6; Plaintiff's 56(a)2 Stmt ¶ 5; Undisputed Facts ¶ 32).
The job announcement for the position of deputy fire chief advised:
(Defendants' 56(a)1 Stmt ¶ 7; Plaintiff's 56(a)2 Stmt ¶ 7; Undisputed Facts ¶ 33).
At the time she applied for this position, plaintiff possessed a bachelor's degree in physical education, and she represented that she was working towards a master's degree in public safety. (Defendants' 56(a)1 Stmt ¶¶ 8, 10; Plaintiff's 56(a)2 Stmt ¶¶ 8, 10; Plaintiff's Depo. at 14-15; Plaintiff's Resume). The master's degree in public safety was from an on-line university, and to date, plaintiff has only taken one class towards that degree. (Defendants' 56(a)1 Stmt ¶ 11; Plaintiff's 56(a)2 Stmt ¶ 11; Plaintiff's Depo. at 15-16). Plaintiff applied for the position of deputy chief, advanced to a stage in the application process at which she could fill out a job-related questionnaire, and then advanced to an interview stage with three other finalists for the position. (Plaintiff's 56(a)1 Stmt ¶ 23, n. 2; Defendants' 56(a)2 Stmt ¶ 23; Defendants' 56(a)1 Stmt ¶ 12; Plaintiff's 56(a)2 Stmt ¶ 12; Undisputed Facts ¶¶ 35, 37). The other three finalists
Cost containment was, again, a major issue facing the Town when defendant Miron considered plaintiff's candidacy for the deputy chief position. (Plaintiff's 56(a)1 Stmt ¶ 22; Defendants' 56(a)2 Stmt ¶ 22; Miron Depo. at 156). Defendant Miron admitted that the exact purpose of interviewing the three finalists for the position of deputy chief was to find the right fit for his administration, to determine how he would work together with each candidate, and to determine whether he and the candidate had the same goals and objectives moving forward. (Plaintiff's 56(a)1 Stmt ¶¶ 23-24; Defendants' 56(a)2 Stmt ¶¶ 23-24; Miron Depo. at 166-67). Defendant Miron admitted that he would disqualify a candidate for the position of Deputy Chief if that candidate did not support his viewpoint that overtime expenses in the SFD needed to be reduced, and he admitted that grievances filed by the firefighter's union against the Town, related to allegations that the Town bargained in bad faith regarding the Assistant Chiefs rejoining the firefighter's union, were expensive for the Town. (Plaintiff's 56(a)1 Stmt ¶¶ 25-26; Defendants' 56(a)2 Stmt ¶¶ 25-26; Miron Depo. at 167-68,170-71).
The panel that interviewed the final three candidates for the position of deputy chief ["Panel"] included Edmund Winterbottom, the Director of Human Resources, Susan McCauley, the Director of Finance, a representative from Randi Frank, and Chief Cavanaugh. (Plaintiff's 56(a)1 Stmt ¶ 38; Defendants' 56(a)2 Stmt ¶ 38; Cavanaugh Depo. at 67, Miron Depo. at 148; see also Plaintiff's 56(a)1 Stmt ¶ 11 (explaining Winterbottom's position; Defendants 56(a)1 Stmt ¶ 14 (same)). The Panel asked Kepchar if he had any experience negotiating with unions. (Plaintiff's 56(a)1 Stmt ¶ 39; Defendants' 56(a)2 Stmt ¶ 39; Cavanaugh Dep. at 72). The Panel was particularly impressed with Kepchar because he created a program to reduce overtime costs in the Westport Fire Department. (Plaintiff's 56(a)1 Stmt ¶ 40; Defendants' 56(a)2 Stmt ¶ 40; Defendants'
In addition to having worked in a much larger fire department than the SFD (Defendants' 56(a)1 Stmt ¶ 22; Plaintiff's 56(a)2 Stmt ¶ 22; Cavanaugh Depo. at 87; Cavanaugh Aff't ¶¶ 12-13), Maffett had experience operating in a "right to work" state, which does not require employees to join a union even if one exists, and this experience "perked quite an interest in the [T]own" as the Panel thought that Maffett's background "could bring something new to the table." (Plaintiff's 56(a)1 Stmt ¶ 41; Defendants' 56(a)2 Stmt ¶ 41; Cavanaugh Depo. at 88). Chief Cavanaugh admitted that he viewed Maffett's experience in a right to work state as a positive because it could have provided insight into how those municipalities operate and "get around the union[.]" (Plaintiff's 56(a)1 Stmt ¶ 42; Defendants' 56(a)2 Stmt ¶ 42; Cavanaugh Depo. at 88).
During the Panel's discussion of plaintiff's candidacy, Winterbottom and McCauley initially raised a concern that plaintiff's union activity and Assistant Chief Thomas Murray's union activity might make plaintiff a less effective deputy chief. (Plaintiff's 56(a)1 Stmt ¶ 45; Defendants' 56(a)2 Stmt ¶ 45; Cavanaugh Depo. at 109). Defendant Miron, as Mayor, conducted the final interview of the remaining three candidates. (Defendants' 56(a)1 Stmt ¶ 23; Plaintiff's 56(a)2 Stmt ¶ 23; Miron Depo. at 167-68; Miron Aff't ¶¶ 8-9).
Despite her qualifications, plaintiff was not promoted to the position of deputy chief. (Plaintiff's 56(a)1 Stmt ¶¶ 46-47; Defendants' 56(a)2 Stmt ¶¶ 46-47). Following the final interviews by defendant Miron, the position of deputy was offered to Kepchar, who then attempted to negotiate the salary offered for the position, which led the defendant Town to withdraw its offer to Kepchar. (Plaintiff's 56(a)1 Stmt ¶ 57, n. 7; Defendants' 56(a)2 Stmt ¶ 57; Defendant's 56(a)1 Stmt ¶ 24; Plaintiff's 56(a)2 Stmt ¶ 24; Miron Aff't ¶ 10; Cavanaugh Aff't ¶ 19; Miron Depo. at 182-83; Cavanaugh Depo. at 92-93). Following the withdrawal of the offer to Kepchar, the defendant Town offered the position to Maffett, who was hired as Deputy Chief in August 2009. (Defendants' 56(a)1 Stmt ¶ 25; Plaintiff's 56(a)2 Stmt ¶ 25; Plaintiff's 56(a)1 Stmt ¶ 57; Defendants' 56(a)2 Stmt ¶ 57; Undisputed Facts ¶ 42; Miron Aff't ¶ 11; Cavanaugh Aff't ¶ 20).
Plaintiff thereafter filed a charge of discrimination against defendants with the State of Connecticut Commission on Human Rights and Opportunities ["CCHRO"] and with the Equal Employment Opportunity Commission, received a right-to-sue letter from the United States Department of Justice and a release of jurisdiction letter from the CCHRO, and commenced this instant lawsuit. (Defendants' 56(a)1 Stmt ¶ 26; Plaintiff's 56(a)2 Stmt ¶ 26; Undisputed Facts, ¶¶ 1-4).
Plaintiff previously had engaged in litigation against the Town, alleging that she was denied a promotion to assistant chief on the basis of her gender and that the Town permitted the existence of a hostile work environment. (Defendants' 56(a)1 Stmt ¶ 27; Plaintiff's 56(a)2 Stmt ¶ 27; Howley v. Town of Stratford, 217 F.3d 141 (2d Cir.2000)). In that case, the District Court granted summary judgment in favor of the Town and the Second Circuit reversed,
Brian Lampart was promoted from Lieutenant to Assistant Chief Fire Marshal after Assistant Chief Velky retired. (Plaintiff's 56(a)1 Stmt ¶ 48; Defendants' 56(a)2 Stmt ¶ 48; Plaintiff's Depo. at 160-61). The Town did not post a job announcement to accept applications for the position of Assistant Chief Fire Marshal. (Plaintiff's 56(a)1 Stmt ¶ 49; Defendants' 56(a)2 Stmt ¶ 49; Plaintiff's Depo. at 161). Assistant Chief Lampart did not have to take an examination before being promoted, as was customary with the positions of Fire Marshal and Assistant Chief, and he had the option to petition to become part of the firefighter's union, but chose not to. (Plaintiff's 56(a)1 Stmt ¶¶ 50-51; Defendants' 56(a)2 Stmt ¶¶ 50-51; Plaintiff's Depo. at 161). Defendant Miron later promoted Assistant Chief Lampart to Deputy Chief and approved a pay raise. (Plaintiff's 56(a)1 Stmt ¶ 52; Defendants' 56(a)2 Stmt ¶ 52; Plaintiff's Depo. at 161).
In 1990, Roger Macy was promoted from Assistant Chief to Deputy Chief and later went on to become Fire Chief. (Plaintiff's 56(a)1 Stmt ¶ 53; Defendants' 56(a)2 Stmt ¶ 53). In 1994, Ron Nattrass, from West Haven, was hired as Deputy Chief at a time where there were no internal candidates interested in the Deputy Chief position. (Plaintiff's 56(a)1 Stmt ¶ 54; Defendants' 56(a)2 Stmt ¶ 54). In March 2000, Assistant Chief Jay Cybart was promoted to Deputy Chief and later went on to become Fire Chief, at which time Michael Hostetter was promoted from Assistant Chief to Deputy Chief. (Plaintiff's 56(a)1 Stmt ¶¶ 55-56; Defendants' 56(a)2 Stmt ¶¶ 55-56).
Defendant Town of Stratford moves for summary judgment on all counts of plaintiff's Amended Complaint. (Dkt. #75). Specifically, defendant Town asserts that summary judgment is appropriate with respect to: plaintiff's Title VII claims asserted in Counts One and Two because defendant's hiring decisions with respect to the position for which plaintiff applied were made for legitimate, non-discriminatory reasons; plaintiff's claim in Count Three for violation of CONN. GEN.STAT. § 46a-60(a)(1), as such claim is analyzed under the same framework as the Title VII claims and defendant's hiring decisions were made for legitimate, non-discriminatory reasons; plaintiff's claim in Count Five alleging First Amendment retaliation for union activity against defendant Miron in his official capacity as directed against defendant Town, because even if union membership touched upon a matter of public concern, plaintiff can point to no evidence that supports a causal connection between plaintiff's conduct and defendant's actions, and to the extent that plaintiff alleges retaliation for filing her prior lawsuit,
Similarly, defendant Miron moves for summary judgment with respect to plaintiff's § 1983 claim against him individually, as alleged in Count Eight, because the decision not to hire plaintiff was made for legitimate, non-discriminatory reasons, and plaintiff's claim against Miron is barred by the doctrine of qualified immunity (Dkt. #77, Brief at 8-24); and defendant Miron asserts that he is entitled to summary judgment on the First Amendment retaliation claims against him in Count Six because plaintiff cannot establish a causal connection between her conduct and defendant's actions. (Id. at 24-29).
In response, as to her First Amendment retaliation and equal protection claims alleged in Counts Six and Eight against defendant Miron individually, plaintiff contends that defendant Miron is not entitled to qualified immunity. (Dkt. #88, at 17-21).
In their reply brief, defendants assert that there is no evidence that plaintiff was not hired because of a discriminatory motive, but rather, that she was "simply the least qualified of the three finalists." (Dkt. #101, at 3-5). Additionally, defendants reiterate that plaintiff fails to establish a causal connection between her purported protected speech or her prior lawsuit to her alleged retaliation, and plaintiff's reference to other firefighters has little relevance to this case as they rely on beliefs or opinions, and do not demonstrate facts relative to this particular case. (Id. at 6-8). Defendants also contend that defendant Miron is entitled to qualified immunity under these circumstances, there is no binding, mandatory authority on the issue of whether mere participation in a union satisfied the public concern requirement, and plaintiff's claim regarding the telephone interview and questions about her husband lack substance. (Id. at 8-10).
Plaintiff cross moves for summary judgment on Counts Five and Six of her Amended Complaint on grounds that plaintiff satisfies a prima facie case of First Amendment retaliation; defendants cannot justify their failure to promote plaintiff on other grounds; and defendants failure to promote was motivated by retaliatory animus and not fear of disruption. (Dkt. #79, Brief at 11-31).
In her reply brief, plaintiff contends that defendants' objection fails to set forth admissible evidence to create a material factual dispute as to whether defendants would have taken the same adverse employment action in the absence of plaintiff's union activity. (Dkt. #98, at 2). She also reiterates that defendant Miron is not entitled to qualified immunity, and defendants' objection as to causation is baseless. (Id. at 3-8).
Plaintiff moves to strike four exhibits attached to each defendant's Motion for Summary Judgment: the Maffett Reference Summary; the Kepchar Resume; the Maffett Resume; and Plaintiff's Resume (Exhs. B, D, E, & F, respectively), on grounds that these exhibits were appended without any proof of authenticity, and therefore should be stricken from the record. (Dkts. ##86-87, 97). In response, defendants submit an affidavit of the Ronald Ing, the Human Resources Director for the Town of Stratford, who attests to the admissibility and authenticity of these documents. (Dkts. ##99-100).
Rule 901(a) of the Federal Rules of Evidence provides that the authentication requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." FED. R. EVID. 901(a). "[T]o authenticate a document, a witness with personal knowledge to that effect need only testify that the document is what it purports to be." Lachira v. Sutton, No. 3:05 CV 1585(PCD), 2007 WL 1346913, at *2 (D.Conn. May 7, 2007) (citations & internal quotations omitted). Notably, "the witness need not have personal knowledge of the underlying events described in the document, the substance[,] or the accuracy of the document[.]" Id. (citation & internal quotations omitted). In this case, Ing sets forth in his affidavit that as part of his duties and in the normal course of business as Human Resources Director for defendant Town, he maintains and has access to the Town's employment records, and thus he is familiar with the contents of the personnel files of Kepchar, Maffett and plaintiff, and is familiar with the circumstances and facts involved in this pending litigation (Ing Aff't ¶¶ 3-4); these documents are accurate and identical copies of the records contained in the personnel files, and are "routinely made in the regular course" of the Town's business (id. ¶ 6); and the documents were made at or around the time of the circumstances that are described within. (Id.).
In addition, the Federal Rules of Evidence allow for the "business records exception" to the hearsay rule for records of regularly conducted activity, such as the records at issue. See FED.R.EVID. 803(6).
The standard for summary judgment is well established. The moving party is entitled to summary judgment if it demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. FED.R.CIV.P. 56(a). This showing may be made by depositions, affidavits, interrogatory answers, admissions, or other exhibits in the record. FED.R.CIV.P. 56(c). "[O]n summary judgment the inferences to be drawn from the underlying facts contained in the [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). "The substantive law governing the case will identify those facts that are material, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir.2006), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In Count One, plaintiff asserts a claim against defendant Town under Title VII for discrimination based upon gender. (Amended Compl. ¶¶ 55-60). Specifically, plaintiff alleges in her Amended Complaint that the Town knowingly and willfully discriminated against her on the basis of her gender in denying her a promotion to Deputy Fire Chief, for which position she was qualified. (Id.). Defendant Town moves for summary judgment on this claim on grounds that its hiring decision was made for legitimate, non-discriminatory reasons, and plaintiff can point to no evidence that reasonably supports a finding that the Town's reasons were pretextual. (Dkt. #75, Brief at 8-19).
Title VII of the Civil Rights Act makes it unlawful "for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (2013).
In failure-to-promote cases brought under Title VII, courts follow the Title VII burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-07, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)["Hicks"]; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)["Burdine"].
A plaintiff's burden of establishing a prima facie case is not an "onerous" one, see Burdine, 450 U.S. at 253-56, 101 S.Ct. 1089, but rather has been described as "de minimis." Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir.1998) (multiple citations omitted). If plaintiff satisfies her prima facie case, the burden then shifts to defendant to rebut the presumption of discrimination by producing evidence of a legitimate, non-discriminatory reason for the adverse employment action taken. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If defendant carries this burden of production, the presumption raised by the prima facie case is rebutted and the burden shifts back to plaintiff to prove that she was discriminated against. Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089. Plaintiff must prove that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817; accord Vivenzio, 611 F.3d at 106. At all times, the ultimate burden of persuasion remains with the plaintiff to show that the defendant intentionally discriminated against the plaintiff. Hicks, 509 U.S. at 507, 113 S.Ct. 2742, citing Burdine, 450 U.S. at 253, 101 S.Ct. 1089.
Defendant Town's briefs do not appear to dispute that plaintiff has satisfied her prima facie case. (See, e.g., Dkt. #75, at 11 (beginning the analysis with establishing legitimate, non-discriminatory reasons for not promoting plaintiff); Dkt. #101, at 3 (addressing same)). To meet its burden of articulating a non-discriminatory reason for taking an adverse employment action, "an employer's explanation for its reasons must be clear and specific in order to afford the employee a full and fair opportunity to demonstrate pretext." Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 105 (2d Cir.2001) (citation & internal quotations omitted). Defendant acknowledges that plaintiff was "qualified for the position," but it explains that she was not offered the position because she "lacked the substantive leadership experience offered by both Kepchar and Maffett[.]" (Dkt. #75, Brief at 16). Defendant, relying on the testimony of Chief Cavanaugh, explains that the reason that Kepchar and Maffett were ranked ahead of plaintiff, and that Maffett was ultimately hired,
Relying on the resumes of each of these candidates, defendant defeats the rebuttable presumption of discrimination by offering, through admissible evidence, that its decision to hire Maffett over plaintiff was justified based on Maffett's experience, and not based on unlawful discrimination against plaintiff due to her gender. This Court has the duty of "examin[ing] the record as a whole, just as a jury would, to determine whether a jury could reasonably
In addressing its burden, defendant Town contends that "[a]side from her own subjective beliefs regarding the resumes and her being `better qualified,' ... [p]laintiff points to no evidence in support of her contention that the Town's decision not to hire her was based upon her gender." (Dkt. #75, at 13; see Plaintiff's Depo. at 58 (other than comparing resumes, plaintiff has no knowledge of any statements or explicit decisions by the Town not to hire plaintiff because of her gender or race)). Plaintiff, however, alleges that she "met or exceeded all of the qualifications for Deputy Chief[,]" she had twenty-seven years experience, twenty of which as an officer with the SFD, and she had a "spotless[]" personnel record. (Plaintiff's Aff't ¶¶ 24-25). Plaintiff also alleges that Maffett is less qualified than she, and defendants knew that Maffett was less qualified, yet hired him because of his race and gender, and in retaliation against plaintiff for her "prior lawsuit against the Town and [for her] union activity." (Id. ¶¶ 42-43).
"A plaintiff seeking to prove that a discrepancy in qualifications supports an inference of pretext faces a formidable burden." Johnson, 972 F.Supp.2d at 253, 2013 WL 5187147, at *25. As the Second Circuit has explained:
Byrnie, 243 F.3d at 103. "The law is well-established that federal courts hearing discrimination claims do not sit as a super-personnel department to reexamine ... business decisions about how to evaluate
The job announcement for the position of deputy fire chief reads: (1) "[c]andidates should have a bachelor's degree in fire service management or a related area"; (2) "at least ten (10) years of progressively responsible fire service experience," including, (3) "at least (2) two years at the shift supervisor level, or higher, in a fire department the size of Stratford's or larger[]"; and (4) "[c]andidates should ... possess, or be able to obtain, certifications as Fire Officer I and Fire Instructor I issued by the State of Connecticut." (Defendants' 56(a)1 Stmt ¶ 7; Plaintiff's 56(a)2 Stmt ¶ 7; Undisputed Facts ¶ 33). Additionally, as stated in the posting, the SFD candidates with "[a]t least three years previous experience as a Deputy Chief in a comparably, or larger, sized fire department may be substituted for a [b]achelor's degree[,]" and "Fire Officer II or III certification or a master's degree in fire service management or a related field or graduation from the Executive Officer Program at the National Fire Academy [was] preferred." (Id.).
Plaintiff contends that she possessed all of the required qualifications for the job. (Dkt. #88, at 24-25). Plaintiff has a bachelor's degree in physical education from Southern Connecticut State University (Plaintiff's Depo. at 14), which degree she explained is related to fire service management as it taught her "how to teach motor skills, physical activity to people. It's a teaching degree and a huge part of an officer's job is to teach people." (Id. at 60). Yet, upon further questioning at her deposition, plaintiff acknowledged that her degree in physical education is not related to fire services management. (Id.). Maffett's resume reveals that in 1999 he obtained a "Dillard University Special Diploma[,]" (Maffett Resume, at 2), which plaintiff, relying on her "Google" search of Dillard University, contends is not a real diploma. (Plaintiff's Depo. at 80-81). Plaintiff acknowledged, however, that this search did not reveal what diplomas or courses were offered by Dillard University in 1999 when Maffett was in attendance there. (Id. at 81). Defendants, however, have offered no evidence that Maffett, in fact, possessed a bachelor's degree, which is a listed requirement for the position. Kepchar has a bachelor's degree in marketing. (Kepchar Resume, at 6; Plaintiff's Depo. at 72-73). Thus, while plaintiff contends that she satisfied the first requirement of the job posting, her own concession undermines her contention and places her in the same category as Kepchar and Maffett in that they all lack a bachelor's degree in fire services management or a related area.
The job listing provides that a relevant bachelor's degree may be substituted by at least three years previous experience as a Deputy Chief in a comparably, or larger, sized fire department. None of the three candidates' resumes reveals previous experience as a "Deputy Chief[.]" (See Plaintiff's Resume; Maffett Resume; Kepchar Resume). At the time of their applications all three
As Chief Cavanaugh explained, Maffett came from a much larger fire department, consisting of over four hundred firefighters. (Cavanaugh Aff't ¶ 12; Cavanaugh Depo. at 87). As Cavanaugh continued, "[g]iven the size of the Columbia Fire Department, the titles and descriptions of the positions within that department do not align with those of the [SFD]," as the Columbia Fire Department has district chiefs, assistant district chiefs, and battalion chiefs. (Id. ¶ 13). From 1997 to his retirement in 2006, Maffett held the positions of Assistant Chief of Support Services,
Chief Cavanaugh explained that Maffett's experience impressed the interview panel as Maffett "supposedly served as the chief officer in every aspect of the department,... [a]nd he knew all kinds of people in the National Fire Organizations ..., and ... he was coming from a right to work state which [the interview panel] thought could bring something new to the table." (Cavanaugh Depo. at 87-88). It is undisputed that Maffett had thirty-four years of fire service experience compared to plaintiff's twenty-seven years experience, although plaintiff's progressive fire service and shift supervisor experience was within the very department that the Deputy Chief would manage, while Maffett's progressive experience was in another state with different labor laws. However, defendants argue that Maffett's and Kepchar's experience was rated as more valuable because they "each had experience as a chief officer of a fire department and demonstrated experience in administrative and organizational aspects of fire department management." (Dkt. #75, Brief at 15).
Plaintiff testified at her deposition that the entirety of her claim that she was discriminated on the basis of her gender and/or race stems from her comparison of resumes and information obtained in the application process. (Plaintiff's Depo. at 72, 92). She testified that her review of the resumes and qualifications of these two applicants reveal that Kepchar did "not have the number of college courses that [plaintiff] had towards a degree[,]" but plaintiff also acknowledged that at that time, she had only taken one course towards her master's degree (Plaintiff's Depo. at 73, 76, 125);
Plaintiff also contends that defendants knew Maffett was less qualified in that the Human Resources Department Reference Summary prepared by Randi Frank states: "Mr. Maffett's references were asked if they could recommend him for this position. They all responded in the positive and added that they'd recommend him with hesitation." (Maffett Reference Summary)(emphasis added). John Slavin of Slavin Management Consultants was responsible for conducting reference checks for Randi Frank to assist in the executive search of the Fire Chief and Deputy Fire Chief positions. (Slavin Aff't ¶¶ 4-5). Slavin avers that this statement on which plaintiff relies contains a typographical error in that Maffett's references "in fact stated that they would recommend him `without hesitation.'" (Id. ¶¶ 8-10). This explanation is in accord with the first portion of the sentence, "They all responded in the positive...." (Maffett Reference Summary). Notably, this explanation is also in accord with the entire Reference Summary which only includes positive feedback about Maffett. (Id.). Specifically, the references described Maffett as professional, moral and ethical, straightforward, and honest, and the references articulated eight positive professional strengths. (Id.). The references noted that Maffett "[t]akes direction very well[,]" "[i]s responsive[,]" and is a "clear and effective" communicator. (Id.). Additionally, his "military" leadership style was described as "participatory[,]" and he is "well respected by all his commands." (Id.). None of the forgoing suggests that "all" of the recommenders who "responded in the positive" when asked if they would recommend Maffett for the SFD position, would have responded that they would have recommend him with hesitation. (Id.). Thus, reading the Maffett Reference Summary in conjunction with the explanation averred to by its author, John Slavin, the Reference Summary contains a typographical error and there is no evidence, as plaintiff contends, that defendants knew that Maffett was less qualified.
As for the remaining job qualifications, plaintiff was a twenty-seven year employee of the SFD (Plaintiff's Depo. at 88), with two years experience as an Assistant Chief, as compared to Kepchar's five years as an Assistant Chief, and Maffett's nine years as an Assistant Chief. Like Kepchar,
This Court is mindful of the fact that it "must respect the employer's unfettered discretion to choose among qualified candidates." Id. (citations & internal quotations omitted). In this case, plaintiff's subjective belief that her resume and job performance are superior to that of Kepchar and Maffett is not "sufficient evidence to find that the employer's asserted justification is false[.]" Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Rather, the record evidence, taken in the light most favorable to plaintiff, supports a conclusion that defendant, at best, assessed the three final applicants' respective experiences against the stated requirements for the job, which weighed in favor of each of the three candidates at various stages in the selection process, but with that, defendant chose its hirees among candidates with experience and qualifications that exceeded those held by plaintiff. Plaintiff cannot demonstrate that the Town's explanation for not hiring plaintiff was "pretextual, [and] that pretext served to mask unlawful discrimination" based on plaintiff's gender. Byrnie, 243 F.3d at 103 (citations omitted). Accordingly, summary judgment is granted in defendant Town's favor on Count One.
In Count Two, plaintiff asserts a claim against defendant Town under Title VII for discrimination based upon gender plus race in denying plaintiff a promotion to Deputy Fire Chief. (Amended Compl. ¶¶ 61-62). "The term `sex plus' or `gender plus' is simply a heuristic. It is, in other words, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir.2004) (footnote omitted). Defendant Town contends that plaintiff fails to establish a prima facie case of gender plus race discrimination with
In Count Three, plaintiff asserts against defendant Town a violation of the Connecticut Fair Employment Practices Act ["CFEPA"], CONN. GEN.STAT. § 46a-6(a)(1)
In Count Five, plaintiff asserts a claim against defendant Miron in his official capacity under 42 U.S.C. § 1983 for First Amendment retaliation because of association, due to her participation in union activity. (Amended Compl. ¶¶ 74-79). While this Count is alleged against defendant Miron in his official capacity, the "real party in interest" is the Town. State Emp. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 84-85, n. 8 (2d Cir.2007), quoting Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)["Graham"]. As the Second Circuit explained:
Id. quoting Graham, 473 U.S. at 165-66, 105 S.Ct. 3099. Accordingly, both the defendant Town and defendant Miron move for summary judgment on this Count. (Dkt. #75, Brief at 24-30; Dkt. #77, Brief at 24-29). Additionally, in Count Six, plaintiff asserts a claim under 42 U.S.C. § 1983 for First Amendment retaliation due to her participation in union activity, against Miron in his individual capacity.
Public employees, merely by accepting public employment, do not "relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the [government's] operation[.]" Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). "The right to free association is `a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.'" State Emp. Bargaining Agent Coalition v. Rowland, 718 F.3d 126, 132 (2d Cir.2013), quoting Shelton v. Tucker, 364 U.S. 479, 485-86, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) (additional citation omitted), cert. denied sub nom. Malloy v. State Emp. Bargaining Agent Coalition, ___ U.S. ___, 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). "[T]he First Amendment rights of public employees extend[] more generally to all forms of First Amendment expression, including associational activity." Cobb v. Pozzi, 363 F.3d 89, 104 (2d Cir.2004) (emphasis in original). To succeed on a First Amendment claim brought pursuant to Section 1983, plaintiff must "demonstrate that (1) the conduct at issue was constitutionally protected, (2) the alleged retaliatory action adversely affected [her] constitutionally protected conduct, and (3) a causal relationship existed between the constitutionally protected conduct and the retaliatory action." Wrobel v. County of Erie, 692 F.3d 22, 27 (2d Cir.2012) (citation omitted). In an action for retaliation, a plaintiff bears the "initial burden of showing that an improper motive played a substantial part in defendant's action." Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir.2003). The burden "then shifts to defendant to show it would have taken exactly the same action absent improper motive." Id. (citations omitted). "[E]ven if there is evidence that the adverse employment action was motivated in part by protected [activity], the government can avoid liability if it can show that it would have taken the same adverse action in the absence" of the protected activity. Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (citation & internal quotations omitted). Alternatively, defendants can prevail on a motion for summary judgment if they show that "the employee's speech was likely to sufficiently disrupt government activities so as to outweigh the First Amendment
"[A] public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern." Cobb, 363 F.3d at 102 (multiple citations omitted). In her Amended Complaint, plaintiff alleges that defendant Miron was aware of her participation in the union as a whole and as a local bargaining unit, and he retaliated against her by denying her a promotion because of her participation in such union activity. (Amended Compl. ¶¶ 75-77). Last year, the Second Circuit again "stated that it cannot be questioned that the First Amendment's protection of speech and associational rights extends to labor union activities." State Emp. Bargaining, 718 F.3d at 132 (citations and internal quotations omitted). "[T]he Constitution protects associational rights of the members of ... union[s,]" Bhd. of R.R. Trainmen v. Virginia ex rel Va. State Bar, 377 U.S. 1, 8, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), and it is a "well-established principle that union activity is protected by the First Amendment[.]" State Emp. Bargaining, 718 F.3d at 134 & n. 10 (citing cases recognizing a First Amendment cause of action for firings based on union membership).
"Although the Second Circuit has declined to rule on the issue of whether, in the absence of union activity, `pure union membership' is enough to satisfy the public concern requirement," several courts within this Circuit "have determined that union membership in and of itself satisfies the public concern requirement...." Donovan, 547 F.Supp.2d at 218 (multiple citations omitted); see also Castagliuolo v. Danaher, 3:09 CV 418(VLB), 2011 WL 1220595, at *13 (D.Conn. Mar. 29, 2011) (citations omitted)(recognizing the holding of other districts courts within this Circuit that union membership in and of itself satisfies the public concern requirement, but holding, in that case, that plaintiffs' activities went "beyond mere membership[]" as plaintiffs were at the "forefront of efforts to organize a union[,]" and thus that activity satisfied the "public concern" element); see Maglietti v. Nicholson, 517 F.Supp.2d 624, 634-35 (D.Conn.2007) ("the court finds that union membership analogously can be associational activity that touches on public concern.").
As for the second element, there is no dispute that the failure to promote plaintiff amounts to an adverse employment action. See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 383 (2d Cir.2003) (citation omitted)(adverse employment action includes failure to promote).
Plaintiff can establish a causal connection between "protected expression and an adverse employment action indirectly `by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'" Castagliuolo, 2011 WL 1220595, at *13, quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999), abrogated on other grounds by Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012). Plaintiff "may not rely on conclusory assertions of retaliatory motive to satisfy the causal link." Cobb, 363 F.3d at 108, citing Morris, 196 F.3d at 111. Rather, plaintiff "must produce `some tangible proof to demonstrate that [her] version of what occurred was not imaginary.'" Id., quoting Morris, 196 F.3d at 111 (internal quotations omitted). Additionally, plaintiff may rely on the "temporal proximity" of the protected action and the adverse employment action, which must be "very close." Risco v. McHugh, 868 F.Supp.2d 75, 113-14 (S.D.N.Y.2012), citing Cobb, 363 F.3d at 108 (additional citations omitted).
Defendant Miron contends that the evidence is clear that the decision not to hire plaintiff was based on the qualifications and performance of the candidates, and therefore plaintiff can point to no causal connection between defendant's conduct and her union activity. (Dkt. #77, Brief at 26-27; Dkt. #83, at 16; see Dkt. #101,
Plaintiff has presented enough evidence to establish that a question of fact exists as to whether her union membership was a motivating factor in defendant's Town's decision not to promote her. Plaintiff was a member of the firefighter's union, Local 998, from 1982 until the time she was promoted to Assistant Chief in January 2007. (Plaintiff's 56(a)1 Stmt ¶ 5; Defendants' 56(a)2 Stmt ¶ 5; Miron's Resp. 10/5/12 ¶ 6; Town's Resp. 10/5/12 ¶ 6). When plaintiff was in the position of Assistant Chief, in 2008, the Assistant Chiefs of the SFD, which also included her husband, retired Assistant Chief Thomas Murray, negotiated for inclusion in the firefighter's union. (Plaintiff's 56(a)1 Stmt ¶ 10; Defendants' 56(a)2 Stmt ¶ 10; Miron's Resp. 10/5/12 ¶¶ 10-16, 50-52; Town's Resp. 10/5/12 ¶¶ 10-16, 50-52; Miron Depo. at 109). Thomas Murray was an active participant in the union, serving on numerous boards and committees. (Plaintiff's 56(a)1 Stmt ¶ 6; Defendants' 56(a)2 Stmt ¶ 6; Undisputed Facts ¶ 10; Miron's Resp. 10/5/12 ¶¶ 10-16, 50-52; Town's Resp. 10/5/12 ¶¶ 10-16, 50-52; T. Murray Aff't ¶ 4). His work with the firefighter's union particularly involved matters related to municipal pensions, and he was regarded as the "go-to" person for firefighters with department issues, union issues, and legal issues, and as Chief Cavanaugh explained, Thomas Murray's involvement in the union resulted in him not being well-liked within Stratford Town Hall. (Plaintiff's 56(a)1 Stmt ¶ 7; Defendants' 56(a)2 Stmt ¶ 7; Cavanaugh Depo. at 107-08, 110). Plaintiff was as enthusiastic, interested, and dedicated to the firefighter's union as her husband. (Plaintiff's 56(a)1 Stmt ¶ 9; Defendants' 56(a)2 Stmt ¶ 9; Cavanaugh Depo. at 108).
The Assistant Chiefs of the SFD, including plaintiff, rejoined the firefighter's union in September 2008 after extensive, contentious negotiations with the Town. (Plaintiff's 56(a)1 Stmt ¶ 10; Defendants' 56(a)2 Stmt ¶ 10; Cavanaugh Depo. at 106; Miron Depo. at 109; Miron's Resp. 10/5/12 ¶ 7; Town's Resp. 10/5/12 ¶ 7).
Once the Assistant Chiefs became part of the firefighter's union, they, including plaintiff and her husband, negotiated for the inclusion of overtime pay in pension benefit calculations, which calculation method increased the Town's financial liability to retiring firefighters. (Miron
When defendant Miron decided to run for Mayor, he sought to address several issues affecting the Town, including the reduction of Town costs, which defendant Miron identified as a major issue. (Plaintiff's 56(a)1 Stmt ¶ 19; Defendants' 56(a)2 Stmt ¶ 19; Miron Depo. at 51, 55). During his administration, defendant Miron was involved in negotiating several collective bargaining agreements and would try to keep raises as small as possible (Plaintiff's 56(a)1 Stmt ¶ 21; Defendants' 56(a)2 Stmt ¶ 21; Miron Depo. at 97, 101). Under defendant Miron's administration, the Assistant Chiefs did not receive a pay raise prior to 2008, while the unionized workers did. (T. Murray Aff't ¶ 8; Hunsberger Aff't ¶ 6; Cybart Aff't ¶ 11).
Defendant Miron admitted that the Mayor and a member of a collective bargaining unit have different roles, and while both aim to ensure that the public gets a "good value" for their public officials, members of a collective bargaining unit have a different take on how that looks. (Plaintiff's 56(a)1 Stmt ¶ 37; Defendants' 56(a)2 Stmt ¶ 37; Miron Depo. at 187). He acknowledged that when he was interviewing the final three candidates for the deputy fire chief position, the purpose of the interview with him was to decide if the person fits within his administration. (Plaintiff's 56(a)1 Stmt ¶ 23; Defendants' 56(a)2 Stmt ¶ 23; Miron Depo. at 166).
Defendant Miron admitted that he took all factors into consideration when hiring someone, that he did not look at things in a vacuum when making employment decisions, and that he looked at "how the real world affects decisions." (Plaintiff's 56(a)1 Stmt ¶ 19; Defendants' 56(a)2 Stmt ¶ 19; Miron Depo. at 85, 87). However, despite his acknowledged involvement in the union negotiation process, and plaintiff's deposition testimony to the contrary, defendant Miron claimed at his deposition that he did not know if plaintiff was supportive of the Assistant Chiefs returning to the union. (Miron Depo. at 196). Similarly, he testified that he thought that Thomas Murray was supportive of the Assistant Chiefs returning to the union but he did not know if he attended negotiations. (Id.). However, he also acknowledged that during these very negotiations, he had discussions with several Assistant Chiefs, including Assistant Chief Thomas Murray, who were supportive of the Assistant Chiefs rejoining the union. (Id. at 109). Chief Cavanaugh testified that Winterbottom and Susan McCauley, the Director of Finance, initially raised concern that Thomas Murray's union activity might make plaintiff a less effective deputy chief. (Cavanaugh Depo. at 109). Chief Cavanaugh nonetheless clarified that "it wasn't union involvement that brought the whole subject up. It was about their marital status." (Id. at 110). However, he also observed that he thought Winterbottom and McCauley had the impression that plaintiff would not have a smooth transition into the position of Deputy Chief because her husband was not well liked as a result of his union activity. (Id. at 107-110). That said, the interview process included inquiry into the applicants' involvement with unions. Specifically, Kepchar was asked if he had experience
"[E]ven if there is evidence that the adverse employment action was motivated in part by protected speech, the government can avoid liability if it can show that it would have taken the same adverse action in the absence" of the protected activity. Anemone, 629 F.3d at 114 (citation omitted).
Although not specifically included in Counts Five and Six, plaintiff does mention in her Amended Complaint that defendants' actions were motivated by a desire to retaliate against her for her previous lawsuit, Howley v. Town of Stratford, No. 3:97 CV 532(AVC), filed in 1997. (Amended Compl. ¶ 54). Plaintiff testified at her deposition that she believes that her prior lawsuit "was a sore spot for the [T]own[,]" and "had a part" in plaintiff being passed over for promotion. (Plaintiff's Depo. at 92). As just indicated, to demonstrate causation between plaintiff's previous lawsuit and the alleged retaliation by defendants in their failure to promote plaintiff, the "protected activity and the adverse employment action must be sufficiently close in time to support an inference that the two are related." Lomotey, 2009 WL 82501, at *11. "Close temporal proximity between the plaintiff's protected action and the employer's adverse employment action may in itself be sufficient to establish the requisite causal connection between a protected activity." Kaytor, 609 F.3d at 552 (citations omitted). "Temporal proximity of the adverse action to
In Lomotey, the late Senior U.S. District Judge Peter Dorsey held that because of the temporal proximity "of several months between [p]laintiff's CHRO testimony and complaints and his subsequent failures to be promoted, as well as the lack of direct evidence suggestive of retaliation, [p]laintiff ... failed to demonstrate a causal relationship[.]" 2009 WL 82501, at *12. In this case, plaintiff's prior lawsuit was filed in 1997, eight years prior to defendant Miron taking office, and that case was decided following appeal in 2000, which was nine years prior to the decision not to hire plaintiff in this case. In this case, the Court agrees with defendants that the temporal proximity is "far too tenuous for this Court to find that there was any causal connection" between the Howley lawsuit and any alleged retaliatory conduct.
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutor[y] or constitutional rights of which a reasonable person would have known." Fabrikant v. French, 691 F.3d 193, 212 (2d Cir.2012) (citations & internal quotations omitted). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. (citation & internal quotations omitted). For a defendant to secure summary judgment on qualified immunity grounds, "looking at the evidence in the light most favorable to, and drawing all inferences most favorable" to plaintiff, defendant must show that no reasonable jury "could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right." Rapkin v. Rocque, 228 F.Supp.2d 142, 148 (D.Conn.2002) (citation, footnote & internal quotations omitted).
In Counts Seven and Eight, plaintiff alleges a violation of her rights under the equal protection clause, under 42 U.S.C. § 1983, against defendant Miron in his official and individual capacity, respectively.
For the reasons set forth below, defendant Town of Stratford's Motion for Summary Judgment (Dkt. #75) is granted in part and denied in part such that summary judgment is entered in defendant Town's favor on Counts One, Two, Three, and Seven, and on Count Five with respect to plaintiff's prior lawsuit, and summary judgment is denied on Count Five with respect to plaintiff's union membership and activity;
defendant Miron's Motion for Summary Judgment (Dkt. #77) is granted in part and denied in part such that summary judgment is granted on Count Eight and on Count Six with respect to plaintiff's prior lawsuit, and summary judgment is denied on Count Six with respect to plaintiff's union membership and activity;
plaintiff's Motion for Partial Summary Judgment (Dkt. #79) is denied on Counts Five and Six;
and plaintiff's Motions to Strike (Dkts. ##86, 87, 97) are denied.
Counsel are to contact this Magistrate Judge's Chambers for a telephonic scheduling conference with respect to filing a Joint Trial Memorandum, jury selection, and jury trial, with respect to Counts Five and Six only, regarding plaintiff's allegations of retaliation based upon her union membership and activity.
As discussed in Section II.A.3. infra, plaintiff's Motions to Strike (Dkts. ## 86-87, 97) are denied and thus the Court will address the challenged exhibits as appropriate.
Plaintiff relies on the Second Circuit's finding in her previous litigation to conclude that, just as in that case, the Town's showing that a more qualified applicant was hired over plaintiff is "unpersuasive." (Dkt. #98, at 3; see Howley, 217 F.3d at 151-53). However, the facts of the previous litigation differ greatly from the facts here. In that case, as plaintiff cites in her brief, the hiree, Jay Cybart, was ranked third by the assessment panel, whereas plaintiff was the one ranked third in this case and Kepchar, the initial hiree, and Maffett, the final hiree, were ranked first and second, respectively. Id. at 164. Additionally, in that case, the Town relied on Cybart's resume to demonstrate that he was the most qualified candidate but in litigation, the only resume that the Town proffered was a "December 1994 memorandum written by Cybart three months after he was hired." Id. at 152. Conversely, in this case, the Town was in possession of the applicants' resumes, reference summaries, and completed applications, and interviewed each of the three top candidates before offering the position first to Kepchar, and then to Maffett. While ignoring the Reference Summary complied by Slavin Management, plaintiff contends that this case is like Howley in that the Town relied on Maffett's resume but did not verify his actual qualifications. (Dkt. #98, at 3).
Additionally, it is worth noting that Howley was decided in June 2003, almost one year before the Second Circuit's decision in Byrnie, in which the Second Circuit made clear that for plaintiff to defeat summary judgment on her failure to promote claim she must show that her "credentials ... [were] so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff...." Byrnie, 243 F.3d at 103 (citation omitted).
Piscottano v. Murphy, 511 F.3d 247, 274 (2d Cir.2007) (citations omitted).
