Ballard v. Cheshire Board of Ed. - Respondent's Motion for Sanctions
CHRO No. 9830294
Fed No. n/a
Commission on Human Rights and Opportunities ex rel. :
Chillon Ballard, Complainant
Cheshire Board of Education, et al., Respondent
December 12, 2005
Ruling re: respondent's motion for sanctions
By motion filed November 23, 2005, the respondent ("respondent" or "Board") moved for an order sanctioning the complainant ("complainant" or "Ballard") and the commission for failing to comply with the undersigned's orders of October 20, 2005 and November 9, 2005 to produce documents responsive to various production requests. As a sanction, the respondent proposed that the complaint be dismissed. The commission filed its objection on December 2, 2005. In its objection, the commission did not dispute that the documents had not been produced. Rather, it argued, in part, that it did not possess the requested documents and that "the Commission objects to the relief sought by the Respondent." (P. 1.) The respondent filed a reply to the objection on December 7, 2005. The commission filed its reply to the respondent's reply on December 8, 2005. Although at least fourteen days have elapsed since the filing of the motion, the complainant has not filed a response. Regs., Conn. State Agencies § 46a-54-87a(b).
By motion filed on October 19, 2005, the respondent moved for an order compelling the complainant to produce documents responsive to some of its production requests dated August 1, 2005. The order issued on October 20, 2005 granted in part and denied in part the respondent's motion.1 As to that part of the respondent's motion that was granted, the commission and the complainant were ordered to produce the documents on or before November 10, 2005. The order further specifically admonished the complainant and the commission that: "5. As set forth in section 46a-54-89a of the Regulations of Connecticut State Agencies, failure to comply with this order may result in non-monetary sanctions. The sanctions 'may include: (1) An order that the matters that are the subject of the request for production or disclosure shall be established in accordance with the claim of the party requesting such order; and (2) An order prohibiting the party who has failed to comply from introducing designated matters into evidence.'" (P. 3.)
By motion filed on October 24, 2005, the respondent moved for reconsideration of that part of its motion to compel that had been denied on October 20, 2005. There being no objection, the respondent's motion was granted on November 9, 2005 and the commission and the complainant were ordered to produce the documents on or before November 18, 2005. That order again further specifically admonished the complainant and the commission that: "As set forth in section 46a-54-89a of the Regulations of Connecticut State Agencies, failure to comply with this order may result in non-monetary sanctions. The sanctions 'may include: (1) An order that the matters that are the subject of the request for production or disclosure shall be established in accordance with the claim of the party requesting such order; and (2) An order prohibiting the party who has failed to comply from introducing designated matters into evidence.'" (P. 2.)
The orders of October 20, 2005 and November 9, 2005 required the commission and the complainant to produce for the respondent to inspect and copy (1) "any and all documents relating to the name and address of the complainant's employer(s), the position the complainant held and the dates of his employment for each employer for whom he worked from October 1, 1997 to date"; (2) "any and all documents relating to in school or out of school suspensions imposed on the complainant and his involvement in any fights, altercations or other behavior disruptive to the educational process during his school attendance in Hamden"; (3) "any and all documents relating to the complainant's application to, acceptance at and completion of any post high school education" [Order, October 20, 2005, p. 2.]; and (4) "any and all medical records, including any diagnoses, prognoses and/or doctor's notes, of any person the complainant consulted for any emotional distress from January 1, 1992 to date. Alternatively, the complainant shall provide the respondent with an executed appropriate authorization for each such medical provider consulted along with the name and address of such medical provider." [Order, November 9, 2005, p.2]
In its motion for sanctions, the respondent argued that the commission and the complainant "have failed to produce the documents or appropriate authorizations, in violation of the Orders. Therefore, the Board seeks an Order finding 1) that Ballard did not suffer a compensable, emotional injury as a result of the Board's alleged conduct; 2) that Ballard is unable to provide supporting documentation of his emotional distress from January 1, 1992 to date; 3) that Ballard never sought treatment for emotional distress; and 4) that Ballard is entitled to no compensatory damages. In addition, the Board seeks an Order prohibiting the Complainant from introducing any evidence of his emotional distress and barring the Complainant from seeking compensatory damages. Moreover, the Board moves to dismiss the Complainant's Complaint, because his inability to produce any evidence of his emotional distress effectively bars his recovery of compensatory damages for those alleged injuries." (P. 2.)
The respondent also argued that the complainant's failure to produce the documents has been "highly prejudicial" to the respondent (p. 7). According to the respondent, the complainant's "failure to produce records of such treatment or even to identify the therapist with a release for his medical files, places the Board in an untenable position. It is not able to determine whether in fact he went for therapy or, if he did, what issues existed in his life that caused him to be 'upset.' This evidence is the only way to challenge Ballard's assertion of having suffered emotional distress and without it, the Board is helpless to refute his claim for compensatory damages. This problem is exacerbated by his failure to produce the school and work records that could show his attendance was no different than it had been before the incident in question and that he worked and went on with his life without any difficulty following the three-day suspension." (P. 3.)
Three requirements must be met for sanctions to be imposed for violating an order to produce documents. "First, the order to be complied with must be reasonably clear. … Second, the record must establish that the order was in fact violated. … Third, the sanction imposed must be proportional to the violation." Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 17-18 (2001). In this case, the orders were clear as to what documents were to be produced, the dates by which they were to be produced and the potential consequences for failure to produce. Neither the commission nor the complainant argued that the orders were not clear, nor did they argue that any responsive documents were in fact produced. Determining sanctions appropriate for the violation first requires examining the parties' respective burdens of proof and the effect of the non-production of documents on those burdens.
There are two general methods of allocating burdens of proof in a "disparate treatment" type of case such as this: (1) the pretext/McDonnell Douglas model and (2) the mixed-motive/Price Waterhouse model. Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 104-05 (1996). In both these models, the complainant bears an initial burden of persuasion to establish a prima facie case that he was treated differently than the Caucasian student who was also involved in the altercation. If the complainant establishes his prima facie case under the pretext model, the burden of production shifts to the respondent to articulate a legitimate non-discriminatory reason for the disparate discipline. The burden of persuasion remaining with the complainant, he then has the opportunity to prove by a preponderance of the evidence that the respondent's explanation is a pretext for discrimination. Under the mixed-motive paradigm, once the complainant establishes his prima facie case by a preponderance of the evidence, the burden of persuasion shifts to the respondent to prove by a preponderance of the evidence that it would have made the same decision notwithstanding the complainant's race. Id., 104-08. The documents that the complainant was ordered to produce do not relate to his prima facie case nor are they necessary for the respondent to articulate its legitimate business reason or to prove its motivation. Dismissing the case under these circumstances would not be proportional to the consequences of the violation. Therefore, the respondent's request that the case be dismissed is denied.
On the other hand, the documents requested by the respondent are relevant to the issue of damages. There are four criteria to consider in awarding monetary damages for emotional distress. These criteria are: (1) the subjective internal emotional reaction of the complainant, (2) whether the discrimination occurred in front of other people, (3) the degree of offensiveness of the discriminatory act, and (4) the impact of the discriminatory act on the complainant. Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, 1988 WL 492460, 6 (Conn. Super.) citing Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, CHRO No. 7930433 (June 3, 1985). Because the requested documents deal with medical treatment the complainant may have sought because of his emotional distress and with his post-Cheshire High School educational and employment performance, they clearly relate to the consequential impact of the alleged discriminatory act on the complainant.
As a result of the complainant's failure to comply with the orders to produce
documents and pursuant to section 46a-54-89a(b) of the Regulations of
Connecticut State Agencies, sanctions are as follows: the complainant and the
commission are prohibited from introducing any oral or documentary evidence that
the complainant sought and/or received treatment for emotional distress as a
result of the alleged discriminatory act and they are prohibited from
introducing any oral or documentary evidence of the impact the alleged
discriminatory act had on the complainant's subsequent educational and
employment performance after he withdrew from Cheshire High School.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Mr. Chillon Ballard
Gary S. Starr, Esq.
Michael S. Agress, Esq.
1 The order was mis-captioned "Order re: Commission's motions to compel." As evidenced by the language in the order, it was a ruling on the respondent's motion to compel.