Dexter v. Dept of Correction, Final Decision
CHRO No. 0320165
Fed. No. 16aa300261
Commission on Human Rights and Opportunities ex rel.
Frank Dexter, Sr.
State of Connecticut, Department of Correction
August 31, 2005
The parties in this case are: (1) Frank Dexter, Sr. ("complainant"), of Bridgeport, Connecticut, represented by Attorney Marc L. Glenn of the Law Office of W. Martyn Philpot, Jr., L.L.C., of New Haven, Connecticut; (2) the Commission on Human Rights and Opportunities ("commission"), located at 21 Grand Street, Hartford, Connecticut, represented by Attorney David L. Kent, Assistant Commission Counsel II; and (3) the State of Connecticut Department of Correction ("respondent"), with a business address of 24 Wolcott Hill Rd., Wethersfield, Connecticut, represented by Attorney Joseph A. Jordano, Assistant Attorney General, of the Office of the Attorney General.
II. Summary of the parties' positions and decision
In his complaint, the complainant alleged that the respondent violated Title VII and General Statutes §§ 46a-58(a) and 46a-60(a)(1) by discriminating against him in the terms and conditions of his employment and then by terminating his employment, on or about August 27, 2002, as a correction officer at the Bridgeport Correctional Center ("BCC"). He alleged that his race, African American, and color, black, were factors in the respondent's actions.
The respondent filed its answer to the complaint denying that it had discriminated against the complainant on the basis of his race or color. According to the respondent, it terminated the complainant's employment because of his violations of Administrative Directive 2.17 prohibiting undue familiarity between its employees and inmates ("undue familiarity"). These violations included the complainant's use of his personal cell phone to relay messages from a federal inmate housed at BCC to that inmate's brother. (Transcript page ("Tr.") 33-35). According to the complainant, the respondent did not terminate non-African American correction officers who had also been cited for violating the administrative directive. (Tr. 29-31.)
For the reasons set forth herein, the complaint is dismissed.
III. Procedural history summary
The complainant filed his complaint with the commission on November 1, 2002. The commission assigned the complaint to an investigator who determined that reasonable cause existed to believe that the respondent had committed a discriminatory employment practice. On June 30, 2004, the investigator certified the complaint to the commission's executive director and the attorney general. On July 15, 2004, the complaint was assigned to the undersigned. The public hearing was held on April 27, 28, and 29, 2005. Briefs were due on July 28, 2005, at which time the record closed.
IV. Findings of fact ("FF")
References to an exhibit are by party designation and number. The complainant's exhibits are denoted as "C Ex." followed by the exhibit number; and the respondent's exhibits are denoted as "R Ex." followed by the exhibit number. The commission did not introduce any exhibits. Even though documents may have been introduced by more than one party and have different exhibit designations, citations herein may reference only one party's exhibit number.
Based upon a review of the pleadings, exhibits and transcripts of testimony, and an assessment of the credibility of the witnesses, the following facts relevant to this decision are found:
1. The respondent hired the complainant as a correction officer in 1988. (Tr. 42).
2. The complainant has been assigned to BCC since he was hired. (Tr. 42-43.)
3. Frank Estrada ("Estrada") was arrested by the federal government on November 2, 2000 for violations of federal narcotics trafficking laws as well as numerous other charges. (Tr. 380 - 81, 383-84.)
4. The Federal Bureau of Investigation ("FBI") regarded Estrada as one of the largest and most violent narcotics traffickers in the greater Fairfield County. (Tr. 380 - 81, 383-84.)
5. Although Estrada was a federal inmate, he was incarcerated at BCC. (Tr. 67-68, 384.) The respondent houses federal inmates on both temporary and long-term bases. (Tr. 270.)
6. Estrada had also previously been incarcerated at BCC from the spring of 1990 to September 1995. (Tr. 386.)
7. The complainant knew of Estrada from seeing and speaking with him numerous times in the same housing complex where the complainant's mother resided, from newspaper articles and from seeing him as an inmate at BCC. (Tr. 68-69, 112; C. Ex. 17; R Exs. 1, 10.)
8. The complainant was aware that Estrada had been arrested for drug trafficking. (Tr. 115; C Ex. 17; R Ex. 10.)
9. The FBI requested that the respondent monitor Estrada's telephone calls and mail so that the FBI would have access to that information. (Tr. 316, 384.)
10. The respondent monitors telephone calls made by inmates to family members in the community. (Tr. 118-20, 335.)
11. The respondent monitors all inmate telephone calls (other than privileged or legal communications) for safety and security reasons to prevent the importation of contraband and drugs and to determine whether an inmate may be dangerous and present a security risk. (Tr. 276-77.)
12. Telephonic communications by or on behalf of an inmate outside of the monitoring system presents a drastic security threat to the respondent, its employees and the general public. (Tr. 248-249, 251-252, 277, 418, 479-80.)
13. In early 2002, Estrada approached the complainant in BCC. Estrada asked the complainant to telephone Estrada's brother and ask him to bring Estrada various personal items. Estrada provided the complainant with his brother's telephone number. (Tr. 70-71; C Ex. 17; R Exs. 1, 10.)
14. After the complainant completed his shift, he used his personal cell telephone to call Estrada's brother and relay the message. (Tr. 70-71; C Ex. 17; R Ex. 1.) The respondent is unable to monitor the content of telephone calls made by the complainant on his personal telephone on behalf of an inmate. (Tr. 118-20, 335.)
15. The complainant knew Estrada's brother, friends and associates. (Tr. 112; R Exs. 1, 10.)
16. Estrada's brother telephoned the complainant several times on the complainant's cell phone to inquire as to how Estrada was doing. (R Ex. 1.)
17. As a result of one of the calls from Estrada's brother, the complainant checked the respondent's computer records, determined that Estrada had been placed in solitary confinement for refusing to submit a urine sample for a drug test, and used his personal cell phone to relay that information to Estrada's brother. (Tr. 121-22.)
18. The complainant's unmonitored communication to Estrada's brother that Estrada had refused a drug test was an egregious security breach because it told Estrada's brother that the respondent was aware that illegal drugs might be coming into BCC and that it believed Estrada might be receiving illegal drugs. (Tr. 293-94.)
19. The complainant did not disclose to the respondent that he made this telephone call. (Tr. 71.)
20. The complainant knew that it was wrong for him to use his personal cell telephone to make a call at the request of and on behalf of an inmate. (Tr. 56.)
21. During his incarceration at BCC, Estrada became a witness for the federal government. (Tr. 382.)
22. During his interviews with the FBI, Estrada identified the complainant as someone who had done favors for him and had facilitated getting heroin into BCC. (Tr. 385 - 87.)
23. During its investigation of the complainant, the FBI subpoenaed telephone records and determined that twenty-seven (27) telephone calls had been made between Estrada's brother and the complainant's cell phone from the time of Estrada's incarceration until shortly after Estrada's brother himself became a fugitive from the FBI. Twenty-one of these calls were from the complainant's cell phone to Estrada's brother and six were from Estrada's brother to the complainant's cell phone. (Tr. 406; R Ex. 1.)
24. These unmonitored telephone conversations occurred during the time that the FBI was trying to monitor Estrada's telephone calls. (Tr. 407.) The FBI would not have access to any information from communications made by a correction officer outside of the respondent's monitoring system. (Tr. 389 - 90.)
25. In response to the information received from the FBI regarding the complainant's telephone calls on behalf of Estrada, the respondent, on March 19, 2002, placed the complainant on administrative leave, with pay, pending the completion of its own investigation. (Tr. 61; C Ex. 5.)
26. On May 30, 2002, the complainant was interviewed at the United States Attorney's Office. In addition to the complainant, present at the interview were the complainant's attorney, the assistant United States Attorney and two special agents from the FBI. At that interview the complainant admitted to having called Estrada's brother at Estrada's request. (R Ex. 10.)
27. At that interview, the complainant also stated that during his career he had transmitted at least one hundred messages, outside of the respondent's monitoring system, from inmates to their family members. (Tr. 126, 331-32; C Ex 17; R Exs. 4, 10.) Such transmittals constituted violations of the respondent's regulations. (Tr. 127.)
28. The complainant never conveyed to the respondent any information that the inmates had asked him to relay to their families. (Tr. 127, 331-32; C Ex. 17.)
29. In response to the FBI's allegations against the complainant, the respondent commenced an investigation to determine whether the allegations could be substantiated. Its investigators conducted several interviews. The investigators concluded that the allegations could be substantiated and that the complainant's conduct violated Administrative Directive 2.17.1 (Tr. 282-86, 303, 322-24; R Ex. 1.)
30. When interviewed by the respondent's investigators, the complainant admitted that Estrada's brother had called him several times. The complainant also admitted to relaying messages from inmates he knew to their families. (R Ex. 1.)
31. On August 26, 2002, the respondent terminated the complainant's employment for violation of Administrative Directive 2.17 Employee Conduct Standards, engaging in undue familiarity with inmates and unprofessional behavior. The termination was effective August 27, 2002. (C Ex. 7.)
32. Pursuant to the collective bargaining agreement between the complainant's union and the respondent, the termination was grieved and proceeded to arbitration. The arbitrator concluded that the complainant's dismissal was for just cause and denied the grievance. (R Ex. 5.)
33. Disciplinary action for violations of Directive 2.17 range from counseling to termination. (Tr. 219.)
34. The initial stance of the respondent toward both black and white correction officers accused of undue familiarity is termination (Tr. 232-34).
35. In most cases, the respondent has terminated the employment of black, white and Hispanic correction officers who were found to have engaged in undue familiarity with inmates. (Tr. 219-20, 242, 265, 419-20, 485-86; R Ex. 11).
36. In some cases, the respondent has entered into agreements with black, white and Hispanic correction officers resulting in disciplinary action less than termination. (Tr. 220, 222, 226-29, 232-33, 242-43, 485-86; C Ex. 4; R Ex. 11.)
A. § 46a-60(a)(1) - termination
1. Analytical framework
The complainant alleged that the respondent violated General Statutes § 46a-60(a)(1), which provides in part that: "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent … to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color …." Specifically, the complainant alleged that the respondent illegally discriminated against him when it terminated his employment as a correction officer for undue familiarity with inmates. According to the complainant, the respondent did not terminate non-African American correction officers who had also been charged with undue familiarity. The respondent denied that it terminated the complainant because of his race and/or color.
When a complainant alleges disparate treatment under a facially neutral employment policy, the appropriate analytical framework is the burden-shifting paradigm set forth in McDonnell Douglas Corporation. v. Green, 411 U.S. 792 (1973) and its progeny. Craine v. Trinity College, 259 Conn. 625, 636-37 (2002). First, the complainant must establish the four elements of a prima facie case: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was discharged from employment; and (4) the termination occurred under circumstances giving rise to the inference of discrimination. United Technologies Corporation v. Commission on Human Rights and Opportunities, 72 Conn. App. 212, 225-26 (2002), cert. denied, 262 Conn. 920 (2002).
If the complainant establishes a prima facie case, the respondent bears the burden to produce a legitimate, nondiscriminatory reason for the complainant's termination. The respondent satisfies its burden if its evidence raises a genuine issue of fact as to whether it discriminated against the complainant. To accomplish this, the respondent must clearly set forth, through the introduction of admissible evidence, the reasons for the complainant's termination. Once the respondent produces its legitimate, nondiscriminatory reason, the complainant then bears a burden of persuasion to prove by a preponderance of the evidence that the respondent intentionally discriminated against him. Curry v. Allan S. Goodman, Inc., 2004 Conn. Super. LEXIS 3481, 15-16. The complainant can satisfy this burden of persuasion "either directly by persuading [the factfinder] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Internal quotation marks omitted; citations omitted.) United Technologies Corporation v. Commission on Human Rights and Opportunities, supra, 72 Conn. App. 221.
2. Complainant's prima facie case
The complainant satisfied the first and third elements of his prima facie case as he is a member of one or more protected classes, African-American and black, and was terminated from his employment with the respondent. More problematic, though, are the second and fourth elements - whether the complainant was qualified for the position and whether his termination occurred under circumstances giving rise to an inference of discrimination. Factors supporting the argument that he was qualified are the fourteen years he spent working for the respondent, the satisfactory performance reviews he received (Tr. 51), and the testimony of his co-workers that they felt confident and safe working with him and did not observe him engaging in conduct that would compromise the safety and integrity of BCC (Tr. 187, 206, 302-03). However, although his co-workers did not observe him engaging in inappropriate conduct, the complainant did, in fact, violate the administrative directive against undue familiarity numerous times by relaying information not monitored by the respondent from inmates to their family members (FF 26, 27, 30). Unmonitored communications are a drastic security threat to the respondent, its employees and the public at large (FF 11, 12). It is difficult to reconcile the complainant's numerous security violations with his being qualified for his position.
Likewise, it is also difficult to conclude that the complainant satisfied the fourth element of his prima facie case. To establish the fourth element of his prima facie case, the complainant must, in a disparate treatment case, establish that he was treated less favorably than non-African American employees in circumstances from which a race-based motive could be inferred. He must show that in all material respects he was similarly situated to non-African American employees but was treated differently on the basis of his race and/or color. For example, he could show that he and a non-African American correction officer were subjected to the same standards and engaged in similar conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it. Being similarly situated in all material respects does not, however, require disparate treatment of an identically situated employee. The complainant need only show a situation sufficiently similar to his own to support at least a minimal inference that the difference in treatment may be attributable to discrimination on the basis of his race and/or color. United Technologies Corporation v. Commission on Human Rights and Opportunities, supra, 72 Conn. App. 226. Factors arguably supporting an inference of discrimination are the correction officers (Maria Rodriguez Valentin, Juanteenia Mclaurin and unnamed officers in C Ex 4) identified by the complainant as subject to the same administrative directives and to the same ultimate decision-maker, the respondent's commissioner, but who were not terminated for undue familiarity.
However, the correction officers cited by the commission and the complainant are not meaningful comparables from which an inference of discrimination could be drawn. As to the unidentified correction officers in complainant's exhibit 4, no factual information was presented from which it could be inferred that their situations were similar to the complainant's. Also, Mclaurin, like the complainant, is black (Tr. 228-29). Further, at least three critically differentiating circumstances distinguish the complainant's conduct from that of Valentin and Mclaurin. First, the inmate in Valentin's incident was her son and the inmate in Mclaurin's case was her boyfriend (Tr. 420). The complainant and Estrada are not related. Second, unlike correction officers Valentin and Mclaurin, the complainant was not simply the recipient of an inmate's telephone calls. Rather, he made hundreds of telephone calls to third parties on behalf of multiple inmates who were unrelated to him and who included a violent federal inmate who was part of an active on-going FBI investigation (FF 26, 27, 30).
Third, the complainant's communications, unlike Valentin's and Mclaurin's, were done outside of the respondent's telephonic monitoring system (Tr. 421; FF 24, 27). The monitoring system is in place for important safety and security reasons (FF 11,12, 17, 18). The circumvention of this system is an egregious security breach and presents a drastic security threat to the respondent, its employees and the public (FF 11, 12, 17, 18). These distinctions sufficiently distinguish the seriousness of the complainant's conduct as to justify the different discipline imposed upon him from the discipline the respondent imposed on Valentin and Mclaurin. Thus, Valentin's and Mclaurin's situations are not sufficiently similar to the complainant's to support even a minimal inference that he was terminated because of his race and/or color.
For these reasons, the complainant and the commission failed to establish the second and fourth elements of their prima facie case.
3. Respondent's articulated non-discriminatory business reason
Assuming, because the standard for a prima case is de minimis, that the complainant and the commission established a prima facie case, the burden of production shifts to the respondent to articulate a legitimate, non-discriminatory reason for its termination of the complainant's employment. Although he may receive recommendations as to discipline, the sole decision-maker for a termination decision is the respondent's commissioner (Tr. 410-412, 454). According to John Armstrong, then commissioner of the department of correction, he terminated the complainant's employment because the "investigation report and the findings indicated that there were some very serious breaches of security" involving "probably the most significant drug kingpin, running the largest cartel out of Bridgeport that in [the commissioner's] career experience [he] was aware of.
"The situation involved bypassing security systems that were in place at the Bridgeport Correctional Center, while the cooperation agreement between the Department of Correction and the FBI was conducting extensive monitoring of not just Mr. Estrada but his drug empire. And at the time, these phone calls and contacts and favors, as they were put, were done outside the system, which left the information - - whatever that information may have been, unknown to investigators at the point they were serving many warrants." (Tr. 417.)
"The information indicated clearly to me and squarely to me that [the complainant] was not honest and forthcoming to the investigators when they questioned him about it. That he was well aware of the policies that were in place that were necessary for public safety, " testified Commissioner Armstrong (Tr. 418).
Commissioner Armstrong further testified: "The mission of the agency is clearly to protect the public from continuing criminal enterprise by inmates who are in jail. [The complainant's] also aware that our policy and our mission was to protect staff from inmates and events that could occur inside the facility as a result of continuing issues. As well as defeating our systems for protecting those entities. And as well, to prevent contraband, and the likes of things from coming into prisons, which even in this case, a known drug dealer, was in fact believed to have been under the influence and placed into segregation. And at that point in time there were calls going back and forth to a co-defendant [Estrada's brother], at a later date and time, who may have been the person who was sending drugs into him, alerting him to the fact that the Department of Corrections is aware of the drug usage by the brother." (Tr. 418-19.)
4. Complainant's evidence of pretext
"Once a defendant has stated a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas framework - with its presumptions and burdens - disappears … and the sole remaining issue is whether the defendant engaged in illegal discrimination. To prove discrimination, the plaintiff must prove that the defendant's stated nondiscriminatory reason for its decision was in fact a pretext for an unlawful motive." (Internal quotation marks omitted; internal citations omitted.) Craine v. Trinity College, supra, 259 Conn. 643-44. "In order [for the complainant] to prevail, a fact finder must conclude that this evidence gives rise to the inference of actual discrimination … not merely speculation of discrimination." (Citation omitted.) Id., 644. Factors to consider in determining whether the commission and the complainant established pretext and an inference of actual discrimination are "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false and any other relevant evidence." (Internal quotation marks omitted; citations omitted.) Id., 645.
In considering these factors, the complainant's evidence is insufficient to conclude that the respondent terminated him because of his race and/or color. As previously discussed, the complainant's prima facie case is weak (and may not have been established). Also, the respondent's explanation for the termination is factually true; even the complainant concedes that he repeatedly violated the respondent's directive against undue familiarity with inmates (FF 26, 27, 30). Likewise, the additional evidence cited by the complainant is insufficient to give rise to an inference of actual discrimination.
The complainant's additional evidence that he believes demonstrates pretext falls into four general, overlapping categories (Complainant's post hearing brief, p. ("Brief") 10-15). His first general category of evidence is that similarly situated employees were not terminated. The complainant identified Mclaurin, Valentin and the correction officers cited in the respondent's disciplinary log (C Ex. 4) as non-bases, similarly situated correction officers who were cited for undue familiarity with inmates but were not terminated (Brief, 10-12, 15). "As a matter of law, there is ground to find pretext in sanctioning a similarly-situated employee who committed a similar offense much less leniently." (Citations omitted.) Pratt and Whitney/United Technologies v. Commission on Human Rights and Opportunities, 2001 Conn. Super. LEXIS 514, 15, aff'd, 72 Conn. App. 212 (2002), cert. denied, 262 Conn. 920 (2002). In this case, however, both Mclaurin and the complainant are black (Tr. 228-29) and the offenses committed by the complainant's proposed comparators were not as serious as the complainant's.
Although the complainant's comparators were also cited for undue familiarity, the underlying factual circumstances of their offenses differed significantly from that of the complainant's. First, the correction officers listed in complainant's exhibit 4 are not comparable because they are anonymous and no evidence was introduced as to the factual situations of their offenses that led to their being cited for the general violation of undue familiarity. Second, Valentin claimed that she was not the recipient of her inmate son's telephone calls; he was calling to speak with his girlfriend who, along with their son, was living with Valentin (Tr. 161, 165). Mclaurin had the respondent's permission to visit her boyfriend; she erroneously believed that permission also included receiving telephone calls from him (Tr. 421). The complainant, however, knew it was wrong for him to use his personal cell phone to make calls on behalf of inmates (FF 20). Third, the inmates involved in Valentin's and Mclaurin's incidents were a relative (Valentin's son) or, in Mclaurin's case, a boyfriend (Tr. 155-56, 420). The complainant and Estrada are not related. Fourth, Valentin did not make telephone calls on behalf of her son (Tr. 162-63), and there was no testimony that Mclaurin made calls on behalf of her boyfriend to third parties. The complainant, however, was not simply the recipient of telephone calls from an inmate; he relayed information from inmates to third parties (one of whom, Estrada's brother, was himself under FBI investigation) (FF 26, 27, 30; Tr. 383).
Further, contrary to complainant's assertions, the number of telephone contacts is not as relevant to comparative seriousness as is the nature of those contacts (Tr. 461-62). Although the commission and the complainant introduced no evidence as to the nature of the conversations by Valentin's son or Mclaurin's boyfriend, the complainant was, in the case of Estrada, relaying confidential information (FF 17, 18). Also, Valentin's and Mclaurin's incidents involved only one inmate each. The complainant apparently relayed messages for multiple inmates (FF 27, 30). Finally, constituting the most significant difference in the seriousness of conduct is that both Valentin's and Mclaurin's telephone calls were made through the respondent's recorded telephone monitoring system (Tr. 421) while the complainant's telephone calls were not (FF 18, 24, 27). The respondent can review the recordings and know what information was relayed from and to Valentin's son and Mclaurin's boyfriend (Tr. 421); it has no idea what information was relayed from and to the complainant (FF 19, 24, 27, 28). As previously discussed, the monitoring system is an important security measure for the safety of the respondent's employees and the public (FF 11, 12, 18).
The second general category of evidence that the complainant believes demonstrates pretext is the respondent's use of the FBI investigation in its decision to terminate his employment (Brief, 12-13). According to the complainant, the respondent's excessive reliance on the FBI's investigation is actually pretextual and speculative because, despite assertions by Estrada and other inmates that the complainant was bringing contraband into BCC, no contraband was discovered. Also, the complainant was not a priority in the FBI's investigation of Estrada, and federal and state authorities never criminally charged him for his actions (Brief, 12-13). Although no contraband was found, the complainant himself confirmed Estrada's information that he had made telephone calls on Estrada's behalf, which in itself is a violation of the respondent's administrative directives (FF 27, 28, 30). Also, one of the reasons the FBI did not arrest the complainant for his actions was because it had been informed by the respondent that the respondent was terminating the complainant's employment (Tr. 393-94). In addition, the FBI investigation was not the sole basis for the respondent's decisions. The respondent also conducted its own investigation, which corroborated the information provided by the FBI (Tr. 323-32, 412-19; R Exs. 1, 4).
The complainant's third claim is that pretext is evident in the respondent's "inconsistent application of its own policy …. However, the DOC's employee manual clearly indicates that dismissal or termination is reserved as a last option. (C-1)." (Brief, 13.) However, according to the manual: "By the nature of their jobs, correctional employees are expected to adhere to specific standards of behavior. You are responsible to know them. Violation of any of them may subject an employee to serious discipline, including dismissal. The work rules: … You must know Administrative Directive 2.17: Employee Conduct, and the memorandum on the subject." (Emphasis added.)(C Ex. 1, p. 13-14; Tr. 219.) Undue familiarity is one of those serious circumstances in which termination is the standard penalty (Tr. 458). According to the respondent's director of human resources, undue familiarity was and "remains a dismissable [sic] [offense] the first time it happens, because inmates who develop relationships with staff, it sets up a huge security breach that they have now compromised the staff person." (Tr. 479-80; see also testimony of Joseph Stone, service representative for AFSCME Council 4 and for the correction officers, Tr. 248-249, 251-252.)
Finally, according to the complainant, the respondent's "utilization of stipulated agreements is also probative of pretext." (Brief, 13.) The complainant noted that according to complainant exhibit 4, "at least five (5) white correctional officers accused of undue familiarity were reinstated or issued suspension in the Stipulated Agreement process …." (Brief, 15.) Although the respondent has entered into settlements resulting in discipline other than termination for undue familiarity, these settlements have been made not only with white officers, but also with black and Hispanic officers (FF 36). Likewise, white, black and Hispanic officers have been dismissed for undue familiarity (FF 35). Absent expert testimony on the statistical significance, if any, of the data in complainant's exhibit 4 and respondent's exhibit 11, one cannot draw an inference of actual discrimination. Delgado v. Achieve Global, 2000 Conn. Super. LEXIS 3184, 19-20.
B. § 46a-60(a)(1) - terms and conditions
Although not specifically addressed in the complainant's post-hearing brief, the complainant also alleged that the respondent discriminated against him in the terms and conditions of his employment. From his testimony (Tr. 73-75) and complaint (paragraph 6), it appears that the basis for this allegation is the complainant's belief that the respondent was using inmates to entrap him into bringing contraband into BCC. However, the "sting operation" was in response to an inmate-initiated report that the complainant was bringing contraband into BCC (Tr. 328). Such sting operations are routinely used by the respondent in response to allegations by inmates against correction officers to determine the credibility of such allegations, and sting operations have been used in instances of allegations against white correction officers as well as African-American officers (Tr. 329, 331). Thus, the commission and the complainant did not establish that the complainant was being treated differently from non-African American correction officers.
The commission and the complainant also did not establish an actionable hostile work environment. The complainant was the object of sting operations only six times in his fourteen years of employment with the respondent (Tr. 82). Even if a racial motivation could be inferred, the limited number of sting operations over the long time period does not demonstrate the severe or pervasive harassment sufficient to create a hostile work environment that would alter the terms and conditions of the complainant's employment. Brittell v. Department of Correction, 247 Conn. 148, 166-67 (1998); Massey v. Connecticut Mental Health Center, 1998 WL 470590 4 (Conn. Super., July 31, 1998).
C. § 46a-58(a)
The complaint alleged that the respondent violated § 46a-58(a) by violating Title VII. Violations of certain federal antidiscrimination laws can constitute a violation of § 46a-58(a)2, and the commission is statutorily authorized to prosecute violations of § 46a-58(a) and to seek remedies as available in General Statutes 46a-86(c). Commission on Human Rights and Opportunities ex rel. Valerie Kennedy v. Eastern Connecticut State University, CHRO No. 0140203 (Final Decision, December 27, 2004) [citing General Statute § 1-2z; Trimachi v Connecticut Workers Compensation Committee, 2000 Conn. Super. LEXIS 1548, 21; and Commission on Human Rights and Opportunities v Board of Education of the Town of Cheshire, 270 Conn. 665 (2004)].
2. Arbitration award
In analyzing the complainant's § 46a-58(a) claim, it is necessary to examine the impact of the arbitration award on the underlying Title VII allegation. Following his termination and pursuant to a collective bargaining agreement, the complainant filed a grievance against the respondent which went to arbitration (R Ex. 5). The stipulated issues were: "Was the dismissal of the Grievant, Frank Dexter, for just cause? If not, what shall be the remedy, consistent with the contract?" (R Ex. 5, p. 1.) The arbitrator concluded that the respondent had just cause to terminate the complainant's employment (R Ex. 5, p. 14). She found that the complainant "had actual notice of the rules and regulations that he had violated", that "the rules regarding 'undue familiarity' are reasonable and necessary in a prison environment", that "the admissions that [the complainant] made to the FBI and reiterated to the [respondent's] investigators must be considered as proof that he made several contacts with the inmate's brother at the inmate's behest", and that the "fact that the contacts that were identified were made while the [complainant] was not at work does not minimize the violations. In fact, it shows that the [complainant's] familiarity extended beyond the workplace." (R Ex. 5, p. 12.) The arbitrator also found the complainant's "admissions regarding his prior and consistent violation of the 'undue familiarity' prohibitions disturbing, as he does not appear to understand or yet accept the reasons for the existence of the prohibitions." (R Ex. 5, p. 12.)
The arbitrator concluded that the complainant "admits that he was unduly familiar with the inmate and did personal favors for him and his family. The [respondent] had just cause based on those admissions and the evidence gathered in the [respondent's] investigation, as well as security concerns, to terminate the [complainant] for his actions. The [complainant] had an affirmative responsibility to avoid any unnecessary contact with the inmate since he 'knew' him and his family from growing up in Bridgeport. Instead, he admitted to going out of his way to find out information about the inmate and admits to transmitting such information to the inmate's family, etc. At no time did he communicate these contacts to the [respondent]." (R Ex. 5, p. 14.)
The arbitrator also addressed the complainant's claims of disparate disciplinary treatment. She found that "a review of the disciplinary logs does not provide the requisite background information for me to find that the [complainant] was treated differently than others who violated the standards and rules. …. As to the number of disciplines that were resolved short of dismissal resulting from stipulated agreements, I have seen and participated in the processes that result in such agreements. The particulars of each grievance, the facts related to the violation, as well as new information or other factors identified by the just cause elements, are the reason for such agreements. I cannot find disparate treatment without more persuasive evidence. No two disciplinary situations are the same." (R Ex. 5, p. 13.)
In a Title VII claim, "[w]here an employee's ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee's termination and the employer's illegal motive." Collins v. New York City Transit Authority, 305 F.3d 113, 115 (2d Cir. 2002). A termination that occurs "only after a decision, based on substantial evidence, of an undisputedly independent, neutral, and unbiased adjudicator that had the power to prevent the termination … is highly probative of the absence of discriminatory intent in that termination." (Citations omitted.) Id., 119. An arbitration decision in favor of an employer's actions may be viewed as an attack on the complainant's prima facie case as well as an attack on a claim of pretext. Id., 119, n.1. "In sum, a negative arbitration decision rendered under a [collective bargaining agreement] does not preclude a Title VII action by a discharged employee. However, a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link. Where, as here, that decision follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact - - e.g. new evidence not before the tribunal - - or that the impartiality of the proceeding was somehow compromised." (Internal citation omitted.) Id., 119.
Thus, an arbitration award impacts claims under §46a-60(a) differently than it does § 46a-58(a) claims alleging a violation of Title VII. Although General Statutes § 46a-85(b) allows the presiding human rights referee to accord an arbitration award whatever weight he deems appropriate in a claim of discrimination under § 46a-60(a), in a § 46a-58(a) claim alleging a Title VII violation, an arbitration award must be accorded probative value and the award itself can defeat a prima facie case and a claim of pretext absent a showing of new evidence or a biased arbitration proceeding. With respect to the complainant's arbitration, the arbitrator concluded that the respondent had just cause to terminate the complainant's employment because of the complainant's undue familiarity with inmates, and that the evidence proffered by the complainant was insufficient for a finding of disparate treatment. The arbitrator's award followed evidentiary hearings on April 9, 2003 and May 5, 2003 (R Ex. 5, p. 1) at which the complainant was represented by his own attorney (R Ex. 5, p. 4). As noted by the arbitrator, the complainant admitted to both the FBI and the respondent that he had engaged in undue familiarity (R Ex 5, pp. 12, 14). Thus, the arbitration award is based on substantial evidence. Further, the complainant did not offer evidence challenging the impartiality and independence of the arbitrator or the arbitration proceeding, and he did not identify new evidence that was unavailable to the arbitrator. Thus, the arbitration award defeats the complainant's Title VII prima facie case and showing of pretext and, therefore, defeats his § 46a-58(a) claim.
3. Title VII analysis
Further, even if the arbitration award were not probative of the §46a-58(a) claim, the commission and the complainant still could not prevail on the merits of the complainant's underlying Title VII allegation. To establish the respondent's liability under Title VII, they must establish a prima facie case. The respondent then may produce a legitimate nondiscriminatory business reason for its decision. If the respondent produces a reason, the commission and the complainant must prove by a preponderance of the evidence that the respondent discriminated against the complainant because of his race and/or color. McDonnell Douglas Corporation v. Green, supra, 411 U.S. 802-05. However, the commission and the complainant did not meet their burden of proof. First, they did not establish a prima facie case. As previously discussed, they did not satisfy the second and fourth elements of the prima facie case because of the complainant's repeated violations of the respondent's administrative directive against undue familiarity with inmates and his failure to identify correction officers whose violations were as serious as his own. Further, even if they established a prima facie case, also for the reasons previously discussed, they did not establish by a preponderance of the evidence that the respondent's articulated business reason for the complainant's termination was a pretext for discrimination based on his race and/or color.
VI. Conclusions of Law
1. The commission has jurisdiction to prosecute alleged violations of § 46a-58(a).
2. An employment practice that violates Title VII is a discriminatory practice in violation of § 46a-58(a) if the discriminatory employment practice was based on the complainant's religion, national origin, alienage, color, race, sex, blindness or physical disability.
3. If a violation of § 46a-58(a) is found, the commission and the complainant have the remedies available to them under § 46a-86(c).
4. The commission and the complainant did not establish a prima facie case that the respondent discriminated against the complainant on the basis of his race and/or color in violation of § 46a-60(a)(1) either in the terms and conditions of the complainant's employment or in his termination.
5. The commission and the complainant failed to establish a prima facie case that the respondent discriminated against the complainant on the basis of his race and/or color in violation of § 46a-58(a) either in the terms and conditions of his employment or in his termination.
6. Even if the commission and the complainant established a prima facie case, they did not establish by a preponderance of the evidence that the respondent discriminated against the complainant on the basis of his race and/or color in violation of §46a-60(a)(1) either in the terms and conditions of his employment or in his termination.
7. Even if the commission and the complainant established a prima facie case, they did not establish by a preponderance of the evidence that the respondent discriminated against the complainant on the basis of his race and/or color in violation of §46a-58(a) either in the terms and conditions of his employment or in his termination.
The complaint is dismissed.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Mr. Frank Dexter, Sr.
W. Martyn Philpot, Jr., Esq.
Robert C. Jackson, Sr.
Joseph A. Jordano, Esq.
David L. Kent, Esq.
1 The respondent's investigators found that the complainant had violated section 5, subsec. A, item #18 in that he had failed to "cooperate fully and truthfully in any inquiry or investigation conducted by the Department of Correction and any law enforcement or regulatory agency." (R Ex. 1, p 14.) They also found that he had also violated the following sections by engaging in prohibited conduct:
"Sec. 5, subsec. B, item # 4 Convey unauthorized items into or out of a facility, or other correctional unit.
"Sec. 5, subsec. B, item # 11 Engage in unprofessional or illegal behavior, both on and off duty, that could in any manner reflect negatively on the Department of Correction.
"Sec. 5, subsec. B, item # 12 Engage in any activity, which would conflict with the proper discharge of or impair the independence of judgment in the performance of duty.
"Sec 5, subsec. B, item # 15d Personal involvement in an inmate's private or family matters outside professional duties.
"Sec. 5, subsec. B, item # 15e Performance of personal favors for inmates outside professional duties.
"Sec. 5, subsec. B, item # 15i Inconsistently enforce facility rules to favor an inmate or group of inmates.
"Sec 5, subsec. B, item # 21 Engage in conduct that constitutes, or gives rise to, the appearance of a conflict of interest.
"Sec. 5, subsec. B, item # 27 Lying or giving false testimony during the course of a departmental investigation." (R Ex. 1, p. 14.)
The investigators did not make any recommendation as to any disciplinary action that should be taken against the complainant. (Tr. 282-86, 303, 322-244; R Ex. 1.)
2 Section 46a-58(a) provides that: "It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability."