Carver v. Drawbridge Inn Restaurant
CHRO No. 9940179
Federal No. 16a994032
Commission on Human Rights and Opportunities, ex rel. Monica Carver, Complainant
Drawbridge Inn Restaurant, Respondent
June 12, 2002
MEMORANDUM OF DECISION
I. THE PARTIES:
The Complainant is Monica Carver, whose current address is P.O. Box 48, Altus, Oklahoma 73521.
The Connecticut Commission on Human Rights ("Commission" or "CHRO") is located at 21 Grand Street, Hartford, Connecticut 06106. At the hearing, the Commission was represented by Attorney Alix Simonetti, Assistant Commission Counsel II.
The Respondent’s business address is located at 34 W. Main Street, Mystic, Connecticut, and it was represented at the Public Hearing by Attorney Richard Haviland, of the law firm Rakosky, Cable & Haviland, P.C., 71 Granite Street, New London, Connecticut.
II. PROCEDURAL HISTORY:
This proceeding was initiated by Monica Carver (hereinafter a/k/a "Complainant") filing a complaint with the Commission on Human Rights (hereinafter "Commission" or "CHRO") on October 30, 1998. Complainant alleged that the Drawbridge Inn Restaurant (hereinafter "Respondent") terminated her employment on October 18, 1998; harassed and discriminated against her with regard to the terms and conditions of employment; retaliated against her on the basis of her race, alienage, and the complaints made by her against such alleged discrimination. The Complainant alleged in this complaint that such actions violated C.G.S. 46a-60(a)(1) and Title VII of the Civil Rights Act of 1964, as amended in 42 U.S.C. 2000 e and the Civil Rights Act of 1991.
After investigation of this complaint by authorized staff of the Commission, and failure of attempted conciliation, a finding that there was reasonable cause for believing that an unfair, discriminatory practice was committed as alleged was made on February 16, 2001. As a result of that finding, the case was certified to a public hearing and a hearing conference was scheduled for and held on March 21, 2001 before the Hon. Lara Manzione, the Presiding Human Rights Referee.
At the above Conference various pre-hearing matters were scheduled and subsequently conducted, and public hearing dates set for December 4 - 7, 2001. On June 8, 2001, the undersigned was substituted for the Hon. Lara Manzione as the Presiding Human Rights Referee.
On November 28, 2001 the Commission filed a "Motion to Amend the Complaint" by alleging that the facts asserted in the Complaint also constituted violations of C.G.S. 46a - 58(a) and C.G.S. 46a-60(a)(4) respectively. At the outset of the hearing the Respondent objected to the amendment, which was subsequently granted in part - as to C.G.S. 46a-60(a)(4), and denied in part - as to C.G.S. 46a-58.
The Hearing was held on December 4, 5, 6, and 7, 2001, as previously scheduled, and on January 15, 2002. Post-hearing briefs were filed as ordered on May 8, 2002, when the record closed, and this decision is based on a careful review of those briefs along with records, documents, exhibits and testimony produced at the hearing.
As a result of the extent of the conflicting testimony (Tr. 758, 766) certain factual findings will necessarily be adopted during the discussion section of this decision.
III. FINDINGS OF FACT:
- All statutory and procedural pre-requisites to the public hearing were satisfied and this complaint, as amended, was properly before the undersigned Presiding Human Rights Referee for final decision.
- The Commission has its offices located at 21 Grand Street, Hartford, Connecticut, c/o Atty. Alix Simonetti.
- The Respondent’s address is 34 W. Main Street, Mystic, Connecticut and its legal representative in this matter is Richard Haviland, Esq., c/o Rakosky, Cable & Haviland, P.C., 71 Granite Street, New London, Connecticut.
- The Complainant was employed as a waitress by the Respondent from April 29, 1998 to October 17, 1998. (Comm. Exh. 10)
- The Complainant had worked in food services for approximately 12-years prior to starting at the Drawbridge Inn (Tr. 109), and Respondent stipulated that she was fully qualified by experience to serve as a waitress (Tr. 116).
- Complainant’s brother, Bob Carver, also worked at the restaurant beginning sometime in August 1998 (Tr. 1814) and continued working there until the end of November 1998 (Comm. Exh. 10).
- The Complainant, as well as her brother, is a Native American belonging to the Ponca Tribe of Oklahoma (Tr. 106; Comm. Exh. 2).
- Complainant worked at numerous different jobs between 1985 and 1998 (Tr. 336-56).
- Complainant filed a discrimination complaint against her employer, the National Congress for American Indians, in 1988 in which she claimed to have been harassed on the job "Due to [her] alienage and to have been wrongfully terminated" (Tr. 109-120).
- Complainant’s brother Bob attempted suicide in 1993. She claimed that he "had trouble facing or coming to terms with his homosexuality" (Tr. 123).
- It took Complainant "a whole year for [me] to overcome the shock of his [her brother’s] suicide attempt and it made me over-hypersensitive" to this problem (Tr. 123).
- Complainant testified that she averaged earnings, from salary and from tips, of approximately $300.00 - $350.00 a week (Tr. 124) while working at the Respondent’s restaurant.
- Complainant’s gross income over six (6) weeks as shown on her W-2 statements, as submitted in Commission Exhibit 4, averaged $252. Her gross income for the period of April to October 1998 (25 weeks) as shown on her 1998 tax return (Comm. Exh. 6) from Respondent was $6,340, or an average of $254 a week.
- The Complainant’s income as reported to the I.R.S. for 1998 was $7,811; for 1999 was $10,224; for 2000 was $8,230 (Resp. Ex. C) and for 2001 over $19,000 (Tr. 316).
- At the time relevant for this proceeding, Maryanne Meyer was the sole owner of the Respondent Restaurant (Tr. 55).
- The parties stipulated that the exhibits, documents, and records submitted by them were accurate and that "the Referee can rely on them for whatever purposes" (the Referee chooses) (Tr. 76, 77).
- John Martunas was hired by Respondent as a line cook in June or July of 1998 (Tr. 68) and in August 1998 was named as head chef and manager (Tr. 169, 674).
- In August 1998, Bruce Brunelle was introduced to the staff as head waiter and as such responsible for assigning shifts and management of the staff (Tr. 169), which included allotting work stations (Tr., 174).
- Bruce Brunelle was primarily responsible for approving requests for shift changes (Tr. 170, 175, 594), and if a waitress called in to request a shift change (a/k/a "called out") and Bruce wasn’t available then the protocol was to ask for John Martunas or Maryanne Meyer (Tr. 170).
- In the event a waitress wanted to request a shift change "you were supposed to let Bruce [Brunelle] know who was covering your shift for you" (Tr. 449). "As long as the shift was covered it wasn’t a problem" to call out. (Tr. 450)
- Although John Martunas acted as head chef and manager of the restaurant (Tr. 448, 674), the owner, Maryann Meyer did not give him authority to fire anyone on his own authority (Tr. 510).
- Doreen Dunsmore worked as a waitress/bartender, generally, Monday-Friday on the lunch shifts, although she "filled in a couple of nights here and there" (Tr. 179). Her shifts were therefore generally different from Complainant. (Tr. 365)
- Complainant testified that section assignments affected income earned (Tr. 267), but on cross-examination admitted that tippage as reflected on her reported income was related to the "overall gross receipts" (Tr. 403), and that income was not affected by table assignments (Tr. 407).
- Complainant stated on cross-examination that the W-2 pay stubs submitted by her (Comm. Exh. 4) and income reported (Comm. Exh. 6) to the I.R.S. did not "actually reflect her income;" (Tr. 397) in fact it was false (Tr. 398).
- In or about the third week of August 1998, the Respondent Maryann Meyer approached Complainant and swung her arm around her and called her "my little Indian friend" (Tr. 184).
- Complainant testified that "she was annoyed and surprised" by this comment (Tr. 185), and that it "changed how she felt about her job - (a) "started to feel a negative aspect … I was feeling annoyed, belittled, prejudiced" (Tr. 189).
- Doreen Dunsmore testified that Maryanne Meyer once referred to Complainant as "our token Indian" in front of a group of people (Tr. 446).
- Monica Carver never complained to Respondent about any of these remarks, referring to her Indian heritage (Tr. 319, 512). She claimed that she was afraid to "if she wanted to keep my job" (Tr. 319).
- In or around the middle of September 1998, her brother Bob reported to her an incident in which John Martunas allegedly called him a "fat fag" and "pinched his nipples" in front of a group of people (Tr. 194), who laughed at him in the kitchen.
- Complainant reacted to the report by saying, "we’re not going to forget about this" (Tr. 1947). Her brother asked her not to make an issue out of this by complaining to Maryanne Meyer (Tr. 194).
- Notwithstanding her brother’s request, Complainant did in fact do so the very next day, complaining to Maryanne Meyer that (this) "constituted sexual harassment" (Tr. 195).
- Complainant testified that she told her brother at that very time "there are going to be repercussions because of that [her complaint]… and, I said watch, I will be fired because of this" (Tr. 195).
- This action and comment contrasts with Complainant’s own reaction to the alleged derogatory comments regarding her own alienage (Finding #28 supra).
- Respondent testified that she did look into the complaint, but did nothing about it because Bob Carver was "vague" about, no one else corroborated it, and John Martunas flatly denied it (Tr. 515-516).
- Complainant testified that, after making this complaint, her station assignments changed; in that, she was constantly assigned to the back area of the restaurant (Tr. 203-204). As a result, her average earnings declined from $50.00 - $70.00/day beforehand to "less than $50.00 during weekdays (Tr. 206), and from $100.00 - $120.00/day on weekends to $60.00 - $65.00/day (Tr. 219).
This testimony is not credible in light of conflicting testimony and exhibits in the record.
- Complainant testified that "Bruce Brunelle did the actual assigning of the wait stations" and the hostess was the one who actually controlled customer seating (Tr. 215). Maryanne Meyer did neither (Tr. 215).
- Complainant also testified that "I was assigned to this [front area] on weekends predominantly because I was considered a strong waitress," (Tr. 217) which area she previously described as the most profitable from a waitress’s standpoint (Tr. 144-45).
- Complainant testified that she complained about her work station assignments to Maryanne Meyer (Tr. 214). This is not credible except for Saturday, October 18.
- Complainant testified that "because I had felt all of this harassment at the workplace I had started to look for another job prior to October 17 and A Time to Cook had hired me…on an on-call basis" (Tr. 225).
- On or about October 17, 1998 Complainant was scheduled to work at Respondent’s restaurant in the evening, but had accepted an assignment to work during that time at A Time to Cook (Tr. 226-29).
- Complainant called the Restaurant asking for Bruce Brunelle, and got Doreen Dinsmore first. On her second try Complainant got Bruce and asked for a "call out" with her brother Bob substituting for her. She gave as a reason that her daughter was ill, which was not true. Brunelle authorized the call out substitution (Tr. 226-9).
- That evening John Martunas drove her brother home and in the process "saw me coming in at midnight from the catering job" (Tr. 226-9).
- Her brother told Complainant the next morning that "you had better call Maryanne … and that John Martunas was ‘really pissed off’ and was going to fire you" (Tr. 226-9).
- Complainant called Maryanne Meyer on Saturday, October 18, and lied to her about where she had been the night before, claiming John Martunas saw her returning from the pharmacy (Tr. 228). According to Complainant Maryanne Meyer said, "fine - just get ready to come in an work" (Tr. 228).
- Complainant testified that Martunas called her later that day and told her "you have been replaced - don’t bother to come in," notwithstanding what the owner had said. (Tr. 228). However, Complainant did not testify that Martunas said she was fired permanently, and in fact I conclude that she quit instead.
- Complainant testified that, during her time with Respondent, she had only one customer complaint against her (Tr. 275).
- Complainant applied for unemployment benefits and received them, as the Respondent did not appear to contest her claim (Tr. 282).
- Complainant testified that she had a "job lined up at Charlies with a start date in early November 1998" (Tr. 314).
- Doreen Dunsmore testified that after the alleged incident between John Martunas and Bob Carver "it was noticeable [to her] that Monica Carver was continuously being assigned to the rear area" (Tr. 453). This testimony is not credible as Doreen and Monica worked different shifts (See Finding #22).
- Maryanne Meyer testified that "Complainant was always complaining" (Tr. 500).
- Respondent also testified that she had "complaints every week by customers about Monica," ... "that she was arrogant and abrasive" (Tr. 499). John Martunas testified similarly (Tr. 676). This testimony is not credible.
- Maryanne Meyer testified that the shift change on the night of October 17 went "horribly" as Bob Carver was not an experienced waiter. (Tr. 504)
- Meyer would have allowed Complainant to come in to work after October 17 (Tr. 505) even though she knew Monica had lied to her (Tr. 508); she decided to "let it go" (Tr. 508).
- Respondent banned Doreen Dunsmore from socially appearing at the restaurant because of her alleged drinking problem (Tr. 519-20).
- Complainant came in to work at Respondent on October 18 but had a brief argument with John Martunas about the previous night’s events and abruptly left never to return (Tr. 509, 678).
- John Martunas testified that Bruce Brunelle had not been called by Monica Carver on October 17 and had not approved the shift change (Tr. 698). This testimony is not credible.
- John Martunas testified that he was unaware that Bob Carver had filed a complaint against him (Tr. 701), which he recanted subsequently (Tr. 703).
- Respondent produced a witness, Catherine Fish, to testify about Complainant’s frequent complaints about her assignments and her walking out the night of October 18. This testimony was not credible as the joint exhibits show that she had not worked at the Respondent at all during 1998 (Comm. Exh. 3; Comm. Exh. 10).
IV. ANALYSIS AND DISCUSSION:
The Complainant, formerly a waitress at the Drawbridge Inn Restaurant in Mystic, Connecticut, filed an Affidavit of Illegal Discriminatory Practice dated October 30, 1998. On the form provided, she alleged that she had been harassed, retaliated against, and discriminated against in regard to the terms and conditions of (her) employment, and ultimately terminated. She claimed that her race - American Indian - and alienage played a part in these actions, which according to the complaint violated C.G.S. 46-60(a)(1) and Title VII of the Civil Rights Act of 1964, as amended.
In the narrative provided by the Complainant she describes her termination, various derogatory comments, and changes in the normal wait station rotations (representing the discrimination in the terms and conditions of her employment alleged) as having followed a September 18, 1998 complaint by her, to Maryanne Meyer, the Respondent’s owner. This "Complaint" (Finding of Fact # 29-31) dealt with the alleged "Sexual Harassment" of her brother on the job, rather than any discriminatory act directed against her. Only in the last paragraph of her affidavit (No. 10) did she refer to any alleged act of discrimination prior to September 18, namely that on "one occasion in early-to-mid August (1998), Maryanne Meyer referred to me as her ‘Little Indian’."
Therefore, the gravamen of this matter rested at the outset on the alleged retaliatory responses of the Respondent to her September 18, 1998 complaint. On November 28, 2001, the Commission filed a Motion to Amend its Complaint, in part, by alleging that the Respondent violated Conn. Gen. Stat. § 46a-60(a)(4) by the actions described in the Complainant’s affidavit. As no new facts were alleged, and the Respondent had long been on notice as to the nature of these allegations, this Motion was granted pursuant to Conn. Gen. Stat. Section 46a-84(g) and Section 46a-54-90(e) of the Regulations of Connecticut Agencies at the opening of the Hearing on December 4, 2001.
A. Applicable Law and Legal Standards:
Complainant alleges that the Respondent violated the cited provisions of the Connecticut Fair Employment Practices Act ("CFEPA"), found in C.G.S. § 46a-51 et seq, and its corresponding provisions within Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Among those provisions is the above - referenced §§ 46a-60(a)(4) which makes it unlawful "for any person, employer… to discharge, expel, or otherwise discriminate against any person because he has opposed any discriminatory employment practice…." The companion federal prohibition is contained in 42 U.S.C. § 2000e-3, which bars employers from discriminating "against any of his employees … because he has opposed any practice made an unlawful employment practice by this Subchapter…."
The legal standards established under the federal statutes may also be applied to Connecticut law. "Although we are not bound by interpretation of Title VII provisions, we have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute." Brittel v. Department of Correction, 247 Conn. 148, 164, 717A.2d 1254 (1998); State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). It is widely accepted that the same legal standards apply to claims under CFEPA as to claims under Title VII. Levy v. Commission on Human Rights & Opportunities, 35 Conn. App. 414, 646, A.2d 893 (1994); Sedotto v. Borg-Warner Protective Services Corporation, 94 F.Supp. 2d 251, 268 (D.Conn. 2000).
Where there is no direct evidence of employment discrimination it is understood that the "McDonnell Douglas - Burdine model of analysis must be employed." Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 225, 676 A.2d 844 (1996); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-3 (1981). "McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in discriminatory - treatment cases" Reeves v. Samuleson Plumbing Products, 120 S.Ct. 2097, 2106 (U.S. 2000). Under this scenario, the Complainant must first set forth a prima facie case of discrimination. Id. If the Complainant succeeds the burden shifts to the Respondent to articulate a legitimate, non-discriminatory reason. Id. "The burden is one of production, not persuasion; it can involve no credibility assessment" Id. "If the Respondent carries this burden, it then shifts back to the Complainant to prove by a preponderance of the evidence" that the legitimate reasons…. Were not the true reasons, but were a pretext for discrimination" Id.
Analysis of a retaliation claim follows the three-step burden-sharing paradigm established in the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,-804 (1973) referenced above. The establishment of the first step, the prima facie case, requires the Complainant to show that (1) she engaged in a statutorily protected activity; (2) the Respondent was aware of the Complainant’s participation in the protected activity; (3) the Complainant suffered an adverse employment action; and (4) there existed a demonstrable causal link between the protected activity and the adverse action. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998); Distasio v. Perkin Elmer Corporation 155 F.3d 55, 56 (2d Cir. 1998).
Recent holdings, including those in the Second Circuit, have held that an activity is protected if the employee had a "reasonable, good faith belief that the underlying employment practice was unlawful" Holava-Braun v. General Electric Company 1889 P.3 461 (2d Cir. 1999); Winmer v. Suffolk County Police Department, 176 F.3d 125, 134 (2d Cir. 1999), "even when or if the conduct itself would not actually qualify as harassment under applicable law." Queen v. Green Trea, Supra, 159 F.3d 769; Sumner v. United States Postal Service, 899 F.2d 202 (2d Cir. 1990). The Respondent concedes this point in its Brief (See Respondents Brief p.7).
The Respondent actively disputed that the alleged incident of harassment - the September 1998 incident between John Martunas and the Complainant’s brother - ever happened, or happened as described by Complainant. It is also true that "isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can be reasonable termed pervasive." Tomka v. Seiler Corp., 66 F.3d 1295, 130 S.N.5 (2d Cir. 1995). The record shows only one such incident of the type that Monica Carver complained to Maryanne Meyer about.
Notwithstanding that, the undersigned is convinced from her testimony that Complainant genuinely believed that the incident had occurred and that it constituted sexual harassment of her brother. No doubt exists that the Complainant was predisposed in this direction on account of her protective feelings toward her brother and her knowledge as to his sensitivity regarding his sexual orientation (Finding of Fact No. 10 & 11). It is a not altogether clear cut proposition that such a belief was "reasonable", as opposed to sincere, but given the somewhat lenient standards required in establishing a prima facie case (Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Comm. 209, 225 (1991)), I am prepared to accept that this first prong was met, albeit barely.
The second prong was easily met in this case and is not substantially in dispute. There is not much else in this case that both parties agree on, but both generally agree that the Complainant, on or about September 18, 1998, went directly to Maryanne Meyer and complained to her that her brother Bob had been "sexually harassed" by John Martunas the previous day. The "sexual harassment" allegedly consisted of the latter referring to her brother as a fat fag; laughing at him in front of co-workers, and twisting his nipples (Tr. 195-96). Ms. Meyer testified that she indeed received this complaint and followed it up with both Bob Carver and John Martunas, claiming that the former was "vague" about it and that Martunas flatly denied it (Tr. 515). Be that as it may, there is little question that the Respondent was aware of this complaint, which for these purposes will be construed as knowledge of Complainant’s protected activity.
It is the third and fourth prongs that create serious obstacles to Complainant. They are: (3), her suffering an adverse employment action as a result of her participation in the protected activity, and (4) the related requirement of establishing a casual link between the two. It is the Complainant’s contention that she suffered two (2) adverse employment actions in retaliation for her protected activity, the first being a detrimental change in her wait station assignments (TR. 203-204), and second her termination from employment on or about October 18, 1998.
It is with regard to these two claims that the evidence produced by both parties becomes inconsistent, contradictory, and in large measure jointly lacking in credibility.
The Complainant alleges that right after the incident (of September 18) her station assignments, previously subject to day-to-day rotation, changed by becoming fixed in that she was constantly assigned to the rear area of the restaurant (Tr. 204). As this area purportedly was less busy, with less turnover, the assertion is that her tip income correspondingly dropped (Tr. 206, 212). The Complainant claims that she complained about this to Maryanne Meyer, and, receiving no satisfaction, and feeling subject to this retaliatory harassment, that she was forced to begin to look for another job prior to October 17 (Tr. 225; Finding #39).
In her complaint affidavit, however, the Complainant indicates that her one and only complaint to Maryanne Meyer about not being properly rotated, and that for a period she describes as being two weeks prior to that date, was made in a conversation on Saturday October 17, 1998, with Ms. Meyer (See ¶ 7, and 7a of Record Exhibit 1). According to Complainant’s affidavit Ms. Meyer blamed this on the inexperience of Joanne Martunas, the hostess. This same conversation was referred to by the Complainant in her testimony (Tr. 214), and referred to as having occurred earlier than the day she was allegedly "fired." It should be noted that Ms. Carver’s complaint affidavit was executed on October 30, 1998, within weeks of the event, as opposed to her public hearing testimony that took place three (3) years later.
The Complainant also testified that it was "Bruce Brunnelle who did the actual assigning of the wait stations, and the hostess is the one that actually controls the customer seating" (Tr. 215, Finding #36). There is, therefore, nothing in the record, as presented by Complainant, which ties Ms. Meyer in any way with the changed nature of her wait station assignments, or with the customer seating. Nor does it appear that the Complainant confronted Ms. Meyer with this problem, and presumably asked for relief from it, until her last conversation with her on her last day as an employee. There was thus no chance given Ms. Meyer to rectify the situation, even if it existed, and makes it difficult, to say the least, to establish that this alleged negative change in her working conditions arose as a result of retaliation against her complaint on September 18.
Also gravely inconsistent and contradictory is the evidence offered by the Complainant to show lost income attributable to the alleged change in her work station assignments. In her testimony on direct, Complainant testified that she averaged earnings, including tips, of between $300.00--$350.00 per week while working at the Respondents restaurant (Finding #12; Tr. 124). However, her gross income as shown on her W-2 forms submitted as Commission Exhibit 4 amounted to an average of $252.00 per week (for the period 08/19-10/14/98). Her income for the period of April to October 1998 at the restaurant, a total of 25 weeks, totaled $6,340.00, or an average of approximately $254.00 a week (Comm. Exh. 6; Finding #13). Therefore, Complainant’s sworn testimony indicated that she made $50.00--$100.00 a week more in income than she reported to the I.R.S. This comes in the face of the Complainant and the Commission’s stipulation that the undersigned could rely on the accuracy of the exhibits and records submitted by them and "rely on them for whatever purposes the Referee chooses" (Tr. 76-77).
Complainant’s contention that her complaint to Maryanne Meyer on or about September 18 resulted in retaliation affecting her income is further contradicted by her own exhibits. In the Commission Exhibit 4, submitted in her behalf, Ms. Carver produced 6 pay stubs for the weeks ending on August 12, 19, September 9, and 30, and October 7, and 14 respectively. In the 3 weekly periods pre-dating the September 18 "incident" these records indicate that Complainant worked an average of 31-hours per week and earned $721.08 gross, or an average of $240.36 per week. The 3-weekly periods subsequent to September 18 show her working an average of 29-hours per week and earning (a total of $795.14. or) $265.04 per week. In short, they show her working slightly less hours but making slightly more money after September 18.
It was only after being confronted with these discrepancies on cross-examination (Tr. 305) that the Complainant claimed that her W-2’s did not reflect on her actual income (Tr. 371), and admitted that her income reported to the I.R.S. was in fact false. In neither event is the Complainant’s credibility on this subject enhanced.
There was indeed considerable confusion and contradictory testimony throughout on the subject of how tip income was earned, credited, and reported. At various times the Complainant testified as to the importance of table assignments to her potential income (Tr. 203-12), and yet at other times conceded that income earned was not affected by table assignments but that tippage was related to gross receipts of the house (Tr. 403, 407). The latter position was claimed by the Respondent to be the case (Tr. 569), Suffice to say, all of the Respondent’s witnesses testified that there had been no material change in the wait station assignments and/or no impact on the earning potential of the Complainant. The only corroborative witness offered by the Complainant, Ms. Doreen Densmore, testified that she observed that Ms. Carver "was treated differently after the incident …. She was constantly put in the back sections of the restaurant" (Tr. 452). This testimony is not credible to the undersigned for various reasons, not the least of which because she worked a different (lunch) shift than the Complainant and only "filled in a couple of nights [Monica Carver’s shift] here and there" (Tr. 179).
In summary, there is nothing in the record that substantiates the Complainant’s claim that she suffered an "adverse employment action" with respect to the terms and conditions of her employment." An adverse action is not every action that the employee dislikes or disagrees with. Rather, a reasonable person must view the decision as adverse. See Leson v. ARI of Connecticut, Inc., 51 F.Supp.2d 135, 142 (D. Conn. 1999). In this case the facts indicate to me that Ms. Carver complained about the alleged change in wait station assignments, resulting allegedly in lost income, to the Respondent owner only on October 18, 1998. At the time of this Complaint she was on the defensive, having been caught in what even she admits was a lie (Tr. 228) about why she had not worked the night before.
Complainant’s own testimony, as well as others, demonstrate that Maryanne Meyer had nothing to do with the table assignments and customer seating, which she complained about to Ms. Meyer. Further, her own exhibits show that she made more, not less, income in the period in which she claimed she was being retaliated against. Therefore, other than her own testimony, which for reasons already cited, and for others soon to follow, lacks substantial credibility, Complainant does not show in any way that there was retaliation against her in this regard.
The Complainant asserts that her "firing" on October 18 was also causally connected to her complaint to Ms. Meyer the month before about her brother’s treatment ("sexual harassment") by John Martunas. This of course presumes that she was indeed fired, or terminated. In fact, I conclude from the evidence that the facts show that Ms. Carver effectively quit her job.
Complainant contends, apparently, that she was fired by John Martunas in a telephone conversation on October 18 (Tr. 228). By way of background, that was the day after she had "called in" and gotten Bruce Brunelle’s approval to have her brother substitute for her on the night shift the previous day. The reason she gave to Brunelle was that her daughter was sick (Tr. 225), when in fact the truth was that she had a job assignment that night with A Time To Cook, a catering outfit, and "it was on an on-call basis" (Tr. 225). By itself it is significant to note, therefore, that she already had applied for and gotten another job - "on-call" as it might be - as of Friday, October 17. This was before she had complained to Maryanne Meyer about her putative lost income as a result of (alleged) changed wait station assignments; also as of that date she had never complained to Maryanne Meyer about her supposed anti-Indian comments (Tr. 319).
Complainant earlier that day had called Ms. Meyer, primarily at the suggestion of her brother, who had warned her that John Martunas was really angry because of her failure to show up for work the previous evening. After lying to Ms. Meyer about why she hadn’t worked the night before, she nonetheless agrees with the latter that Ms. Meyer ended up saying "fine … just get ready to come in for work" (Tr. 228). This is one of the relatively few points of agreement between the two, for Ms. Meyer described the conversation identically, and testified credibly that " had she [Monica Carver] come in to work would you have allowed her to work … of course" (Tr. 505). Thus, both agree that the last conversation between the two had the Respondent owner asking the Complainant to come back to work.
After talking with Ms. Meyer the Complainant received a telephone call from John Martunas around 2:00 p.m. that same day. According to her Martunas said "don’t bother to come in" (Tr. 228), notwithstanding the fact that she told him she had just "talked to Maryanne who had said to me just come in" (Tr. 228).
What was significant at the time to the undersigned about this testimony - as reflected in my contemporaneous notes -- was that Complainant never attributed to Martunas the words "fired," "terminated," "permanent," or anything else of similar vein. The entire context of this testimony, covering Complainant’s interaction that day with Maryanne Meyer and John Martunas, was with the question of her reporting for work that night, and not whether she still had a job at all with the Respondent. The undersigned also does not believe it credible to assume that any reasonable person in Complainant’s shoes - assuming she still wanted to keep her job - would have done what Complainant says she did, which was nothing. When confronted with what appears to be conflicting directives from the owner, and a subordinate, Ms. Carver claims to have accepted the latter, without making any other attempt to verify her real status with the owner.
The explanation for this behavior lies in the fact that the Complainant had already decided to quit working at the Respondent. She admitted this herself on direct when she said "because I had felt all this harassment at the workplace I had started to look for another job" prior to October 17 (Tr. 225). Clearly, she had made contact with A Time to Cook and accepted employment on an "on-call" bases.
She also claims "to have had a job lined up at Charlies with a start date in early November 1998" (Tr. 314; Finding No. 48). In Commission Exhibit 5, Ms. Carver’s application for unemployment compensation dated October 30, she perhaps inadvertently, but perhaps more accurately, effectively described her conversation with John Martunas on October 18 when she wrote "she [Alecia Martunas] had worked the shift I was told not to report to on Saturday" (Comm. Exh. 5 - Claimant Statement p. 2); in other words it dealt with that night alone.
In the answer filed by the Respondent on May 31, 2001 in this case, the Respondent in paragraph 6 "admitted, to the extent that John Martunas called Complainant to inform her that she was being given a 1-day suspension for that night and was going to be replaced for that evening’s shift" (Respondents Answer 5/31/01, ¶6). This description of events would be more consistent with the testimony of both Ms. Carver and Ms. Meyer regarding their last conversation (Finding No. 44 and No. 45), and Ms. Meyers’ testimony that Martunas did not have the authority to fire anyone (Tr. 51O, Finding No. 21) "on his own authority."
It is understood that "whether an employee has been discharged depends on the reasonable inference an employee could draw from what her employer said" "Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 88 (2nd Cir. 1996), and "the analysis must center on the reasonable perceptions of the employee" (Id.). I conclude that based on her own testimony and statements, as well as the evidence in the record as a whole, that it was not a reasonable perception for the Complainant to believe that she had been terminated. Rather this represented the perception that she wanted to believe as in her mind she had already decided to leave Respondent'’ employment.
As of the decisive weekend in October 1998, Complainant had never complained to Respondent directly about alleged remarks concerning her alienage, and had not expressed concerns regarding her wait-station assignments. There is no credible evidence that shows any dimunition in income after the (alleged) Martunas incident with the brother; in fact the evidence is, if anything, to the contrary. Complainant herself acknowledged that she was looking for another job prior to October 17, and therefore had the clear intention to quit prior to then. In fact she had already contacted and been hired on an on-call basis by another employer as of that Friday. According to her own testimony she received conflicting directions from the Respondent owner and an employee John Martunas that Saturday, with the owner telling her to come back to work and Martunas allegedly "firing" her.
An employee still intending to work for the Respondent almost certainly would have gone to the owner, Maryanne Meyer, and asked straight out whether she still had a job given her conversation with Martunas. Although Martunas’ position would on its face lend him the authority to change shifts - and thus to "suspend" Complainant for a night - it was certainly not clear that he had the unilateral authority to fire anyone. He certainly did not have the authority to overrule Ms. Meyer, the owner. That the Complainant did not, in fact, go back to Ms. Meyer, in conjunction with the other indicia, establishes to me that she quit that weekend and as such there was no reason to do so.
Therefore, I find that the Complainant has clearly failed to establish the third prong of a prima facie case of retaliation, namely that she suffered an adverse employment action in retaliation for her engaging in a protected activity. Her essential terms and conditions of employment were not changed to her disadvantage, and she was not fired because she quit. That being the case, it is unnecessary to move to the fourth prong, as there being no adverse action there can be no causal link as between it and the protected activity claimed. Thus, I find that the Complainant has failed in her initial requirement of setting forth a prima facie case as to her claim of retaliation.
However, the undersigned is mindful of the fact that our courts have said that "the burden of establishing a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder" Reeves v. Sanderson Plumbing Products, Inc., S30 U.S. 133, 142 S.Ct. 2097, 147 L.Ed. 2d 105 (2000), "The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plantiff’s favor." Fisher v. Vassar College, 114 F.3rd 1332, 1337 (2nd. Cir. 1997), notwithstanding that this is so in the context of the reality that " the ultimate burden of persuasion remains always with the plaintiff" (Id).
Although my conclusion is that the Complained failed to establish the third or fourth prong of the prima facie test, and barely met the first, even under the very reduced standard of proof referenced above, the result would not differ if a different conclusion was reached on this point.
Assuming in the alternative that the Complainant met – just - her burden of production with regard to the prima facie case, the McDonnell Douglas analysis protocol would still lead me to the same destination, albeit along a slightly longer path. The Respondents’ articulated a legitimate, non-discriminatory response to the retaliation claim. Its response was that it did not change Complainant’s condition of employment and that it did not cause Complainant to lose income. It further answers the Complainant’s prima facie case by asserting that Ms. Carver quit her employment, and was not therefore terminated in retaliation for her complaint in behalf of her brother.
Under the burden shifting paradigm of McDonnell-Douglas, "the burden shifts back to the Complainant to prove by a preponderance of the evidence that the legitimate reasons .... were not the true reasons, but were a pretext for discrimination" Reeves, supra (p. 2106). At this point, then, Complainant runs into the same roadblock to success of her claim as before: there was no credible evidence presented by her to support her claims of adverse action taken by the Respondent in retaliation to her complaint. In fact, her wall to climb is even higher, as now the thin burden of production of a prima facie case is superceded by the fact "that it is the plaintiff's [here Complainant] ultimate burden to prove that the defendant [here Respondent] intentionally discriminated against her" (by way of retaliation). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). This burden, requiring proof of her claim by a preponderance of the evidence, was not met. Complainant did not establish that she lost income as a result of a retaliatory change in her wait station assignments by the Respondent or that she was ultimately terminated. The weight of the evidence is to the contrary.
Therefore, whether for failure to produce a prima facie case, or in the alternative, failure to produce a preponderance of evidence that Respondents reasons were false, her claim necessarily fails and requires dismissal.
C. Discrimination on the Basis of Race and Alienage:
Ms. Carver also contended in her complaint affidavit that she was discriminated against, harassed, and/or terminated as a result of her race and alienage, in this case American Indian. As noted at the outset of my earlier analysis of the retaliation claim, there was little or nothing in the affidavit narrative that associated any discriminatory action by Respondent with Complainant's race or alienage. There was equally little or nothing presented in the evidence or testimony at the hearing, to the point where the undersigned was under the impression that this claim had been abandoned. Nonetheless, the Commission's Brief did reiterate this claim and argue in its behalf.
The model of a prima facie case which would apply here would essentially require Complainant to establish:
(1) that she belonged to a protected class;
(2) that she was performing her duties satisfactorily;
(3) that she was terminated and/or discriminated against with regard to the terms and conditions of employment;
(4) that the termination and/or discrimination occurred under circumstances giving rise to the reasonable inference that they were related to or based on her membership in that protected class Shumway v. united Parcel Service, 118 F.3d 60, 63 (2nd Cir. 1997); Hood v. Kaplan Educational Center, Ltd., 60 F. Supp. 2d 1, 2 (D. Comm. 1999).
The Complainant meets the first and second elements here, but for the reasons set forth in my prior analysis does not come close to meeting the second two. The conclusion remains the same by me, and that is that Complainant did not establish that she was either terminated or that she suffered significant negative changes in her working assignments. Even more than in the retaliatory claim, there was absolutely no evidence whatsoever presented to indicate that either (1) these occurred or (2) that they were in even remotely connected to her race or alienage. All the Complainant could produce were one or two (at most) random, isolated comments such as Maryanne Meyer referring to her once as her "Little Indian". There was one other query by someone as to whether she was "Navajo" (Tr. 187) but that was about it. No evidence was presented other than that, and as noted previously, "in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can be reasonably termed pervasive" Tomka v. Seiler Corp., 66 F.3d 1295, 130 S.W.S. (2nd Cir. 1995).
The Complainant did not come even close to producing anything even remotely resembling a prima facie case of harassment or discrimination on the basis of her race/alienage. That claim must founder too.
In finding against her claims this decision no doubt will disappoint Complainant. This disappointment should, however, be tempered by the fact that even a successful prosecution of her liability case would have resulted in de minimis damages at most. As the Respondent correctly points out in its Brief, the Complainant in fact earned more in subsequent years (1999, 2000, 2001) than she did in 1998 when she worked at the Drawbridge Inn. Her testimony also indicated that she had obtained a full time job offer (Finding No. 48) with a start date in early November 1998, which she was unable to take because of an intervening injury unrelated to the Respondent. Thus her actual damages would at most have been her projected earnings for several weeks less any unemployment compensation benefits received; in all likelihood no more than a few hundred dollars.
The undersigned believes it incumbent upon him to address the unusual circumstance in this case where both parties exhibited a lack of credibility. Some of the credibility issues the undersigned had with the Complainant have been discussed previously. There were others, as for example her evasiveness in acknowledging that John Martunas drove her brother home from work after the alleged incident between them (Tr. 325-7), for to do so would have cast doubt on the seriousness or veracity of the incident itself.
This is by no means, however, to suggest that the Respondent and its witnesses were in any way much more credible in many ways than the Complainant. They weren’t.
My observations of the Respondent owner, John Martunas, and Catherine Fish were that they were frequently hostile and more than willing to bend the truth when it suited them. The latter is a classic case, as she was called to testify about the Complainant’s alleged constant (Tr. 712-13) complaints and her walking off the job on October 17. The problem with that testimony is that the Respondent’s own documents (Comm. Exh. No. 3) show that she didn’t work at all at the Drawbridge Inn during 1998 despite her claim to have done so. Either the document submitted was false, or the testimony was.
On cross-examination Mr. Martunas first claimed (Tr. 701) that he didn’t know whether Bob Carver had ever filed a CHRO complaint against him, which testimony he was promptly forced to retract almost immediately thereafter (Tr. 703) when confronted with evidence to the contrary. It was noticeable that the Respondent tried throughout to project the Complainant as a poor performer (e.g., Tr. 499-500), almost as if there were performance reasons that would support her termination when the Respondent was at the same time claiming that the Complainant quit. The Respondent even admitted (Tr. 762) that it was not standing by its own May 31, 2001 sworn answer that John Martunas had given Complainant a one day suspension (notwithstanding my own conclusion that this was more likely the case). In short the Respondent was willing to testify to almost anything – however contradictory – to defeat Complainant’s claim.
It must have been a tense working environment at the Drawbridge Inn in September – October 1998. The Complainant was no doubt thin-skinned and extremely protective of her brother – perhaps unreasonably so. She undoubtedly soured on working there which was one reason why she was looking elsewhere as early as the first part of October. This attitude no doubt came across to the Respondent and John Martunas, neither of who are examples for sensitivity training, and both probably reciprocated. They certainly did at the hearing where the personal animosity between the parties was fairly apparent.
Ultimately, however, a lack of credibility on both sides does not support a judgement for the Complainant, for the ultimate burden of persuasion lies at all times on the Complainant. See Fisher v. Vassar College, 70 F.3d 1420 (2nd Cir. 1995). Although the Complainant succeeding in casting the Respondent in a somewhat unfavorable light, she did not meet this ultimate burden.
- CONCLUSION AND ORDER:
In light of the foregoing, and in accordance with the provisions of C.G.S. 46a-86(e), it is hereby ORDERED that the Complaint be, and hereby is, DISMISSED.
Dated at Hartford, CT. this 12th day of June, 2002, at the Office of Public Hearings.
Hon. Gordon T. Allen
Presiding Human Rights Referee
c: Hon. Jon P. FitzGerald, Settlement Human Rights Referee
Atty. Alix Simonetti, Assistant Commission Counsel II
Maryanne Meyer, Owner, Drawbridge Inn Restaurant
Atty. Michael A. Rakosky, or Michelle Ross, Paralegal
Raymond P. Pech, Deputy Commission Counsel