Leftridge v. Anthem Blue Cross, Memo of Decision
CHRO No. 9830218
Commission on Human Rights and Opportunities ex rel.
Rachael Leftridge, Complainant
Anthem Blue Cross and Blue Shield of Connecticut, Respondent
January 22, 2001
MEMORANDUM OF DECISION
- On October 27, 1997, Rachael Leftridge ("the complainant") filed an Affidavit of Illegal Discrimination Practice ("the complaint") with the Commission on Human Rights and Opportunities ("the commission"), in which she alleged that her employer, Anthem Blue Cross and Blue Shield of Connecticut ("the respondent"), failed to promote her because of her race, in violation of General Statutes §46a-60(a)(1) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and as protected by General Statutes §46a-58(a).
- The commission investigated the charges of the complaint, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on December 21, 1999, in accordance with General Statutes §46a-84(a).
- Due notice of the public hearing was sent to all parties and attorneys of record on January 5, 2000, in accordance with General Statutes §46a-84(b) and §46a-54-90 of the Regulations of Connecticut State Agencies ("the regulations").
- All statutory and procedural prerequisites to the holding of the public hearing have been satisfied, and the complaint is properly before the human rights referee for decision.
- The public hearing was conducted on November 7 and 8, 2000. The record closed on December 20, 2000, when the parties filed their respective post-hearing briefs.1
FINDINGS OF FACT
- On or about October 31, 1988, the respondent hired the complainant, an African-American, as a claims processor in the customer service branch of its national accounts division. The complainant’s starting salary was approximately $22,000 per year. (Transcript ["Tr."] pp. 7-8, 151)
- At some time in the middle of 1989, the complainant was promoted to a position that included both claims processing duties and customer service representative responsibilities; the promotion was accompanied by a salary increase. (Tr. 7) In 1996, the complainant’s position was reclassified with the new title of customer service representative ("CSR"); the change was not a promotion and it did not involve any increase in salary. (Tr. 9) The main duties of a CSR included, among other tasks, answering phone calls from members and providers regarding the status of claims, eligibility, and benefit coverage. On occasion, the complainant would, among her other duties, assist newer employees. (Tr. 12-13) The nature of the position required CSRs to have good interpersonal skills and the ability occasionally to deal with stressful situations and irate customers. (Tr. 12, 105-06)
- Since 1996, the complainant and other CSRs reported to "team leader" Carolyn Fletcher, who is African American. Above Fletcher in the national accounts division hierarchy was the division manager, Carol Sullivan, who is Caucasian. (Tr. 27, 33, 56, 74, 152)
- From September 16 through September 18, 1997, the respondent posted on a bulletin board an announcement of a vacancy for a senior customer service representative, accompanied by a copy of the formal job description. (Tr. 16-17, 145-46; Exs. R-9, R-10) The person in this position would supervise CSRs and would report to and work closely with Fletcher, the team leader. (Exs. R-9, R-10) Thus, the position would constitute a promotion for the complainant and other CSRs. According to the posting,
- The complainant filed her application for the promotional position on or about September 18, 1997. (Ex. R-4; Tr. 16-17)
- Two other CSRs also applied for the position: Kristen Russo, who is Caucasian, and Mildred Rodriguez.2(Exs. R-3, R-5; Tr. 18, 23, 126) Russo had been hired as a CSR in October 1996; she worked in the same division as the complainant and reported directly to team leader Fletcher. (Tr. 126-28)
- Russo was on vacation from Monday, September 15, through Monday, September 22, 1997, and thus did not see the three-day posting for the senior CSR position. (Tr. 129, 131) One of her co-workers, however, left a copy of the posting on her desk for her to see when she returned from vacation and Russo filed her application on or about September 25, 1997. (Tr. 132-33; Ex. R-3)
- According to the respondent’s written "open posting" policy, candidates must submit their applications during the "posting period," a term defined as the "three (3) business days in which job openings are posted and applications accepted." (Ex. R-1) The policy also states that "[l]ate applications may be considered under special circumstances, i.e. [sic] return to work after absence due to illness, short term disability leave or paid time off . . ." (Id.; see also Tr. 32, 75, 173) Paid time off includes paid vacation (Ex. R-13; Tr. 173-74), and the respondent’s records reveal that Russo’s vacation time was in fact treated as scheduled paid time off.3 (Ex. R-12)
- According to the open posting policy, the human resources unit selects the "most qualified of those candidates meeting minimum requirements," and then the hiring manager (in this case, Fletcher) arranges for interviews and "[r]eviews all candidates’ personnel records including performance appraisals, and reviews attendance records . . ." before making the final selection. (Ex. R-1; see Tr. 113) All three candidates passed the initial scrutiny by the human resources unit and were granted interviews. (Tr. 92)
- Because Fletcher was out on short-term disability leave, the three candidates were interviewed by Joan Tirpak, a Caucasian, who was the team leader in the membership and billing department within the national accounts division. (Tr. 18, 21, 27, 92)
- The interviews involved a set of eight questions prepared in advance by Fletcher, with input from Tirpak. (Tr. 57-58; Ex. C-1) All three candidates were asked the same questions, and Tirpak contemporaneously wrote down key portions of their answers.4 (Ex. C-1; Tr. 19-20, 93, 136)
- The hiring decision was made jointly by Tirpak, Fletcher, and division manager Carol Sullivan, although Fletcher, as supervisor of the senior CSR, had the ultimate decision making authority. (Tr. 56-57, 96, 103, 153-54; see Exs. R-1, R-9, R-10) In addition to the responses to the interview questions, the decision makers relied upon their observations of the candidates’ demeanor, work habits and daily performance, and upon the candidates’ annual performance appraisals. Fletcher, in particular, was familiar with the candidates’ work habits and performance. (Tr. 34, 67-72, 77, 85-86) Although Tirpak did not supervise the candidates, she also observed them on a daily basis, particularly when she covered for Fletcher during the latter’s disability leave. (Tr. 107-08, 112-13)
- Fletcher found Russo’s interview responses to be more thorough, specific, and informative than those of the complainant. (Tr. 62-65, 76)
- Fletcher perceived Russo as one who "would truly go the extra mile" in her work, whereas the complainant was less thorough. (Tr. 77-78) In Fletcher’s judgment, although the complainant was a productive and valuable employee, Russo’s overall performance was better than that of the complainant. (Tr. 79-82)
- Tirpak also determined that Russo was the best candidate, based on Russo’s more-detailed responses to the interview questions,5 her day-to-day performance, her superior analytical skills, and her demeanor and composure. (Tr. 97, 108) In Tirpak’s opinion, Russo’s positive attitude served as an example for the people with whom she worked (Tr. 99). Like Fletcher, Tirpak perceived Russo as "being more willing to take that extra step to do either more research or be willing to help out . . ." (Tr. 102)
- Customer service representatives were evaluated annually on five performance objectives: productivity, accuracy, timeliness, documentation, and customer service skills. According to the complainant’s 1997 performance appraisal, the complainant exceeded one of the objectives (productivity) and met the other four.6 According to Russo’s 1997 appraisal, Russo likewise exceeded one objective (customer service skills, an objective that was weighted more heavily than productivity) and met the other four. Customer service representatives were also rated annually on a set of eight skills: quality and service, professionalism and integrity, company policy, leadership, teamwork, adaptability, communication, and problem solving. The complainant exceeded two (leadership, teamwork) and met six of the eight skills assessed; Russo exceeded five (quality and service, professionalism and integrity, leadership, teamwork, and communication) and met the other three. (Exs. C-2, C-3) According to Russo’s 1997 appraisal, the respondent had chosen Russo to serve as a mentor for new CSRs. (Ex. C-3)
- The complainant’s 1997 combined overall rating for skills and performance objectives was 3.20 on a scale of 4.00; Russo’s was 3.45.7 Both figures fall within the respondent’s range of "met measurements," which extends from 2.51 through 3.50. Although the textual portion of the complainant’s 1997 appraisal describes a knowledgeable and reliable employee whose performance has improved over time, Russo’s 1997 appraisal stands out as superior, effusively commending her consistent excellence in the entire panoply of CSR skills. (Exs. C-2, C-3)
- In 1995, the complainant’s overall rating was 3.05; in 1996, according to her performance appraisal (prepared by Fletcher), the complainant’s overall rating declined to 2.95. (Ex. C-2) According to the 1996 appraisal, the complainant scored only a "2" ("did not meet measurements") in the skill entitled "company policy." (Id.) The appraisal went on to explain: "Attendance problem—Placed on warning for excessive tardies and absent [sic]. Improvement has occurred. However, Rachael needs to continue to work on the use of unscheduled time." (Id.) According to the complainant’s 1996 "performance improvement" plan, the complainant committed to "Make every effort to be at work every day. Schedule appointments at end of day whenever possible. Maintain/update on hours used on a regular basis." (Id.)
- In 1996, the complainant had been verbally admonished by a supervisor for using an inappropriate tone of voice with a customer on the telephone. (Tr. 14-15; see also Complaint ¶2) On another occasion, the complainant hung up on a customer who had telephoned for assistance. (Tr. 28) The complainant’s performance appraisal for 1996 indicated that she needed to "continue to work on communication skills. . . to consistently communicate effectively with customers." (Ex. C-2)
- The complainant’s 1997 performance appraisal acknowledged improvement both in her attendance ("Rachel [sic] has good attendance") and in her communication skills. (Ex. C-2)
- The decision makers, both independently and collectively, ranked Russo as the best candidate, the complainant a close second best, and Rodriguez a distant third. They determined that the promotion should go to Russo and, several days after the interviews, Tirpak notified the complainant of their decision. (Tr. 21, 62, 75-82, 96-97) The promotion went into effect in January 1998. (Tr. 25, 139)
- Fletcher later told the complainant that both the complainant and Russo were good employees and, in the complainant’s words, that they were "neck and neck" in vying for the promotion. (Tr. 22, 82)
- In January 1999, the complainant was promoted to a newly vacant position as senior CSR; she has held that position since then. (Tr. 25-26, 37)
With a few exceptions (see Finding of Fact ["FF"] 23 and 24), the complainant has performed her CSR duties satisfactorily and she has received various merit increases throughout her career. (Exs. C-2, R-11; Tr. 9, 14)
This position assists the Operations Team Leader to promote favorable company relations through the effective direction and control of the unit activities involving staff and workflow in order to achieve prompt, courteous and accurate resolution of telephone inquiries and correspondence pertaining to group and direct pay enrollment, membership, billing and claims.
This position requires comprehensive knowledge of all phases of Anthem Blue Cross Blue Shield business acquired through a minimum of one year customer service experience within a Customer Action Team account structure; strong problem solving skills in order to resolve unusual or complex cases referred by team members, Operations Team Leader or upper management; good judgment as well as strong interpersonal, organizational, and communication skills.
(Ex. R-9; see also Ex. R-10, the formal job description, which articulates the duties and requirements in greater detail.)
DISCUSSION AND CONCLUSIONS
The complainant alleges that the respondent’s failure to promote her to senior customer service representative constitutes unlawful discrimination on the basis of race, in violation of Title VII and the Connecticut Fair Employment Practices Act ("FEPA"), General Statutes §§ 46a-51 et seq. Title VII makes is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. §2000e-2(a)(1) According to General Statutes §46a-60(a)(1), it is a discriminatory practice "[f]or an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar . . . from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race . . ."
When, as in this case, there is no direct evidence of discriminatory motive, federal courts generally analyze Title VII disparate treatment claims using the three-step, burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and its progeny. See, e.g., Chertkova v. Connecticut General Life Insurance Company, 92 F.3d 81, 87 (2nd Cir. 1996); McCulley v. Southern Connecticut Newspapers, Inc., 98 F.Supp.2d 216, 221-22 (D.Conn. 2000). Connecticut courts and this tribunal follow the same model for cases brought under the analogous state statutes. Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996); Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 203 (1991); Commission on Human Rights and Opportunities ex rel. Intagliata v. Wal-Mart Stores, Inc., CHRO No. 9740381, p. 15 (July 31, 2000). Furthermore, Connecticut courts and this tribunal may look to federal interpretation of Title VII for guidance in their enforcement of FEPA. Brittell v. Department of Correction, 247 Conn. 148, 164 (1998); Commission ex rel. Intagliata v. Wal-Mart, supra, p. 14.
Under the McDonnell Douglas approach, the complainant must initially establish a prima facie case, which gives rise to a presumption of discrimination. If the complainant succeeds, the burden of production shifts to the respondent to articulate—not prove—a legitimate, non-discriminatory reason for its employment decision. Should the respondent meet its burden, the presumption disappears and the burden returns to the complainant, who must prove that the proffered reason is actually a pretext for prohibited discrimination. The complainant retains at all times the ultimate burden of persuasion on the critical issue—whether the respondent was motivated, at least in part, by discriminatory intent. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507-08 and 515 (1993); McDonnell Douglas v. Green, supra, 411 U.S. 801-804.
The complainant’s burden of proving her prima facie case is not onerous and, in fact, has been described as "de minimis." Weinstock v. Columbia University, 224 F.3d 33, 42 (2nd Cir. 2000); Ann Howard’s Apricots Restaurant v. Commission, supra, 237 Conn. 225. Furthermore, the elements of a prima facie case need not rigidly follow those set forth in McDonnell Douglas. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 108 n.20 (1996). To establish a prima facie case under both Title VII and FEPA, the complainant must show that (1) she is a member of a protected class, (2) she was qualified for the position for which she applied, (3) she suffered an adverse employment decision, and (4) the decision occurred under circumstances giving rise to an inference of discrimination. Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2nd Cir. 2000); Weinstock v. Columbia University, supra, 224 F.3d 42; McCulley v. Southern Connecticut Newspapers, supra, 98 F.Supp.2d 222; Connecticut Department of Correction v. Connecticut Commission on Human Rights and Opportunities, 2000 WL 1763709 *5 (Conn. Super.); Denault v. Connecticut General Life Insurance Company, 1999 WL 549454 *6 (Conn. Super.)
At the outset, I find that the complainant has demonstrated that, by virtue of her race, African American, she is a member of a protected class under both Title VII and FEPA (see, e.g., McDonnell Douglas v. Green, supra, 411 U.S. 802; Connecticut Department of Correction v. Connecticut CHRO, supra, *6), and that she suffered an adverse employment decision, the denial of a promotion. Brown v. Coach Stores, 163 F.3d 706, 710 (2nd Cir. 1998)(failure to promote recognized as adverse employment action). Accordingly, she has established the first and third elements of her prima facie case.
To establish that she is "qualified," for the purposes of the second element of her prima facie case, the complainant need not prove that she was the most qualified candidate; nor must she "demonstrate that [her] performance was flawless or superior." She merely must show that she "possesses the basic skills necessary for the performance of [the] job." de la Cruz v. New York City Human Resources Admin., 82 F.3d 16, 20 (2nd Cir. 1996) (citations and internal quotation marks omitted); Owens v. New York City Housing Authority, 934 F.2d 405, 409 (2nd Cir. 1991). The complainant has satisfied her burden by showing that she had more than ten years of experience in customer service and was familiar with most, if not all, aspects of the customer service unit. Her potential to perform capably as a senior CSR not only is demonstrated by her testimony and documentary evidence, but is underscored by the initial scrutiny of the human resources unit, which, upon review of her qualifications, deemed her eligible to proceed to the interview stage. Furthermore, witnesses Fletcher and Tirpak both admitted that the complainant possessed the basic qualifications for the position; their opinion was borne out a year later when the complainant was awarded a promotion to senior CSR.9 I conclude that the complainant has satisfied her modest burden with respect to her qualifications.
To establish the final element of her prima facie case, the complainant must present evidence of circumstances that give rise to an inference of discrimination. This element is a "flexible one that can be satisfied differently in differing factual scenarios." Chertkova v. Connecticut General Life Insurance, supra, 92 F.3d 91. Circumstances that may give rise to an inference of discrimination include an employer’s criticism of the employee’s performance in offensive terms relating to her protected class; actions or remarks made by decision makers that could be viewed as reflecting a discriminatory animus; and invidious comments about others in the protected class. Id.; Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2nd Cir. 1994); Denault v. Connecticut General, supra, 1999 WL 549454 **6, 9-10. The complainant has adduced no evidence of such circumstances. The record contains no examples of race-related comments or actions by the decision makers or by anyone in a position to influence the decision makers. For that matter, the record contains no evidence of any disparaging comments made by anyone in the respondent’s employ, in any context, about the complainant’s or anyone else’s race.
Another way for an employee to satisfy the fourth element is by demonstrating that she was treated differently from similarly situated employees outside of her protected class or, simply, that the desired position was awarded to someone outside of her protected class. Austin v. Ford Models, Inc., 2000 WL 1752966 *11 (2nd Cir. 2000) (African American female replaced by Caucasian male); Holt v. KMI-Continental, Inc., 95 F.3d 123 (2nd Cir. 1996) (the black plaintiff satisfied the fourth criterion by showing that the desired promotions were given to white co-workers); McCulley v. Southern Connecticut Newspapers, supra, 98 F.Supp.2d 222 and 223 n.4 (discriminatory animus may be inferred if promoted individual is not a member of plaintiff’s class) ; Martinez v. United Technologies Corp., 50 F.Supp.2d 130, 134 (D.Conn. 1999) (fourth element of prima facie case may be satisfied by showing that plaintiff was treated differently than similarly situated employee outside of his protected class); Connecticut Department of Correction v. Connecticut Commission on Human Rights, supra, *6 (white employees faced lesser sanctions than black plaintiff for same rule violation).10 This is the situation here, where the promotion was given to a white employee who, at the time, held the same position in the same division as the black complainant, and who was subject to the same workplace standards. On its face, the fact that the white employee had fewer years of experience further supports an inference of discrimination. Because the complainant’s burden is a minimum one, I conclude that, based on this evidence, the complainant has satisfied the fourth prong of her prima facie case.
After the complainant has established her prima facie case, the burden shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its action. "Any legitimate non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d 1332, 1335-56 (2nd Cir. 1997), cert. denied, 522 U.S. 1075 (1998). Under Title VII, an employer has "discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria," Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981), and thus the choice of a better qualified candidate clearly may be a legitimate, non-discriminatory reason for rejecting the complainant. Byrnie v. Town of Cromwell Public Schools, 73 F.Supp.2d 204, 210 (D.Conn. 1999). Despite the complainant’s qualifications and lengthier service, the decision makers determined, both individually and collectively, that Russo was the better qualified candidate. They based their opinions on the candidates’ performance appraisals, interview responses, and daily work performance. The testimony of Fletcher and Tirpak is consistent, credible, and persuasive, and I accordingly find that the respondent has met its burden.
Once the respondent has articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts back to the complainant, who must prove by a preponderance of evidence that the respondent’s proffered reason was a pretext for intentional discrimination. Reeves v. Sanderson Plumbing Products, supra, 120 S.Ct. 2106. According to the U.S. Supreme Court,
‘The factfinder’s disbelief of the reasons put forward by the [employer] . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the [employer’s] proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.’
Proof that the [employer’s] explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. . . . In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose...
(Citations omitted.) Id. at 2108. Thus, "a prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability . . ." Id. at 2109; see also Graham v. Long Island Rail Road, supra, 230 F.3d 43 (the evidence offered in support of the fourth prong of the prima facie case may also be used to demonstrate that the respondent’s proffered reason is pretext for discrimination).
The complainant argues that the proffered justification for choosing Russo is merely a pretext for discrimination. However, she has demonstrated only that she was qualified for the promotion and that the position was given to a white employee with fewer years of experience. This alone, while sufficient to support the complainant’s prima facie case, does not satisfy her ultimate burden. The complainant failed to adduce any additional evidence to suggest, much less demonstrate, that the respondent’s proffered reason is unworthy of credence. On the contrary, the evidence shows that in the unanimous and factually-justified opinion of the decision makers, Russo proved herself to be the better candidate of the two.
There is no question that both the complainant and Russo met the basic qualifications for the senior CSR position. Furthermore, it is undisputed that the complainant had many more years of experience than Russo. The record, however, contains utterly no support for the notion that purely objective factors such as experience and seniority should be the determining criteria.
The position of senior CSR demands skills that cannot always be measured objectively; the decision makers needed to consider qualities such as candidates’ interpersonal and communication skills and their ability to train, motivate and supervise others, none of which automatically correlates with years of experience or is quantifiable, for example, by an objective measure such as a written examination. It is true that subjective criteria do not always provide as definitive a comparison as do objective standards, and it is well recognized that subjective criteria11 can be manipulated to mask a discriminatory motive. Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993); Nagel v. Avon Board of Education, supra, 575 F.Supp. 105, 110-11 (D.Conn. 1983). However, the "use of subjective criteria is not preclusive of a finding that [employment decisions] have been made on other than discriminatory bases." Id. at 110; see also Byrnie v. Town of Cromwell Public Schools, 73 F.Supp.2d 204, 213 (D.Conn. 1999) (quoting Nagel). Nothing in Title VII (and, by implication, FEPA) requires employers to "overlook subjective factors gleaned from applications and interviews." Byrnie v. Town of Cromwell, supra, 73 F.Supp.2d 213, and cases discussed therein. In fact, it is well established in the Second Circuit that an employer may base its hiring decision on subjective criteria: "When a decision to . . . promote . . . one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn." Nagel v. Avon Board of Education, supra, 575 F.Supp. 110, quoting Lieberman v. Gant, 630 F.2d 60, 67 (2nd Cir. 1980); see also Byrnie v. Town of Cromwell, supra, 73 F.Supp.2d 213.
Fletcher had abundant opportunity to observe the daily performance of both candidates and opined with authority that Russo was the better candidate. Tirpak, likewise aware of the candidates’ daily work, shared Fletcher’s opinion. The respective performance appraisals are consistent with Fletcher’s and Tirpak’s assessments. The appraisals reveal that both candidates had the requisite skills for the promotion, but that Russo was rated higher in many more categories and scored higher than the complainant overall. The complainant’s appraisals, on the other hand, identify several performance deficiencies—some over a period of several years—including absenteeism and the occasional inability to deal with difficult individuals. None of the complainant’s weaknesses was so significant as to render her unqualified (and her subsequent improvement no doubt justified her promotion in early 1999), but a comparison of the appraisals logically validates the decision makers’ preference for Russo, who, on this record, appeared to be emerging as the "rising star" of the respondent’s customer service branch.
None of the decision makers made the complainant her first choice. All three believed Russo was the more qualified candidate and their shared opinion is borne out by the answers given in the interviews and by the candidates’ performance evaluations. The complainant has offered nothing to contradict the respondent’s assessments of her work or her interview responses except for self-serving reiterations of her qualifications and abilities. She is not necessarily wrong in her self-assessment, but she has not presented evidence of such a disparity between Russo’s and her credentials as to suggest pretext. Byrnie v. Town of Cromwell, supra, 73 F.Supp.2d 212 ("the disparity in qualifications must be overwhelming to be evidence of pretext"). The decision makers’ comparative analyses of Russo and the complainant appear "to be based on genuinely and sincerely held views and constituted reasonable, fair and logical judgments." Nagel v. Avon Board of Education, supra, 575 F.Supp. 109; see Lieberman v. Gant, supra, 630 F.2d 67. The complainant has not shown otherwise.
Another way to show that the respondent’s proffered reason was pretext (or, for that matter, to satisfy the fourth element of the prima facie case) is to show that the respondent did not consistently apply its own promotional policy. See Stern v. Trustees of Columbia University, 131 F.3d 305, 310, 313 (2nd Cir. 1997); Byrnie v. Town of Cromwell Public Schools, supra, 73 F.Supp.2d 211; Martinez v. United Technologies, supra, 50 F.Supp.2d 134 n.4. Here, the complainant initially argued that the respondent circumvented its written policy when it accepted Russo’s late-filed application. The complainant conceded her mistake, however, when she realized that the policy allows for late-filed applications when an in-house candidate is on vacation or other paid leave during the application period. Russo was, indeed, on vacation from September 15 until September 22, 1997, missing the entire posting period, but she submitted her application shortly after her return. The respondent did not deviate from its policy or show partiality by accepting Russo’s application after the posted deadline; it correctly followed all procedural steps and relied on the appropriate selection criteria in awarding the promotion. Despite intimations in her post-hearing brief, the complainant has submitted no evidence to show that the respondent pre-selected Russo for the promotion or manipulated the process to favor Russo. Accordingly, no inference of discrimination can be drawn from the application and interview process.
Finally, nothing in the record so much as suggests that race discrimination motivated the respondent’s decision. As discussed above, the complainant has submitted no evidence of remarks or actions by the decision makers—or by any other agent or employee of the respondent—which could be construed as reflecting racial bias. Fletcher and Tirpak unequivocally and emphatically testified that the decision makers did not even discuss the race of the candidates; the complainant has offered nothing but her own unsupported opinions to challenge this credible testimony. Moreover, the fact that Fletcher, the primary decision maker, is the same race as the complainant further undermines any suggestion of discriminatory animus. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 1002 (5th Cir. 1996) (DeMoss, J., concurring in part and dissenting in part); Hardy v. Marriott Corp., 670 F.Supp. 385, 392 (D.D.C. 1987); Gray v. Frito-Lay, Inc., 1982 WL 397 *3 (S.D. Miss. 1982); Commission on Human Rights and Opportunities ex rel. Grant v. Yale-New Haven Hospital, CHRO No. 9530477, p. 31 (October 13, 1999). The complainant received promotions prior to the 1997 situation and again in 1999 when another senior CSR position was available. The respondent’s decision not to promote her in 1997 merely reflects a business decision untainted by any unlawful discriminatory motive.
The complainant has not proven that the respondent’s failure to promote her at the end of 1997 was motivated, in whole or in part, by the complainant’s race. The respondent has not only articulated, but has substantially demonstrated with consistent and uncontroverted evidence, a legitimate, non-discriminatory reason for its choice, and the complainant has failed to persuade me that the reason deserves no credence or masks a discriminatory motive.
FINAL DECISION AND ORDER
In light of the foregoing, in accordance with the provisions of General Statutes §46a-86, it is hereby ordered that the complaint be, and hereby is, DISMISSED.
Dated at Hartford, Connecticut this ____ day of January, 2001.
David S. Knishkowy
Human Rights Referee
- R. Leftridge
ENDNOTES1The documents referred to in paragraphs 1 through 5 were not offered or admitted as exhibits. Nevertheless, they are part of the file maintained in the Office of Public Hearings and are part of the record of this case. See General Statutes §4-177 and §46a-54-111 of the regulations.
2The record contains little evidence about Rodriguez, and her role in this matter is negligible.
3Although the complainant initially argued that Russo’s application was untimely, upon review of the respondent’s open posting policy (Ex. R-1), she conceded that Russo was entitled to—and met—the extended deadline because Russo had been on vacation when the position was posted. (Tr. 32-33)
4Despite the complainant’s intimations, there is no evidence that Tirpak manipulated the written answers or did anything other than scrupulously record the key elements of the candidates’ responses.
5Without judging the appropriateness of the candidates’ answers, I can, nonetheless, readily see that Russo’s are more detailed and deliberative than those of the complainant. (Ex. C-1)
6According to the respondent’s rating system, "exceeded measurements" means "[p]erformance is consistently outstanding, clearly above expectations. All or most objectives and measurements were exceeded by such a degree that it is obvious to everyone who is knowledgeable of the employee’s performance." "Met measurements" means "[s]uccessful overall performance meets all expectations of the job as outlined. Some areas of performance may have exceeded measurements, which balances some areas of performance which may have approached but not quite met measurements." (Exs. C-3, C-10)
7There appear to be two numerical errors in Russo’s evaluation, neither of which was pointed out by any of the parties. First, by comparing Russo’s sole evaluation to all three of the complainant’s, one can readily see that the wrong values were assigned to two of the performance criteria: the standard for "timeliness" was incorrectly given a weight of 0.15 per point instead of 0.10, and the standard for "customer service skills" was given a weight of 0.10 per point instead of 0.15. (Employees were given three points for meeting a criterion, four for exceeding it.) Second, Russo’s score for "documentation" was calculated incorrectly. The evaluation worksheet indicates that 0.05 (the weight per point) multiplied times 3 points equals a score of 0.30; correct multiplication would yield a score of 0.15. Russo’s corrected score, taking into account the proper weight and calculations, would be 3.50, rather than 3.45.
8Although any deficiencies in the complainant’s performance over the years may, as discussed below, justify choosing another individual for the promotion, "Second Circuit case law makes clear that [the employee’s] actual performance on the job ‘is distinct . . . from the issue of minimal qualification to perform a job.’" Evans v. State of Connecticut, 935 F.Supp. 145, 157 (D.Conn. 1996), superseded on other grounds, 967 F.Supp. 673 (D.Conn. 1997) (quoting Owens v. New York City Housing Authority, supra, 934 F.2d 409).
9The respondent also explicitly acknowledged the complainant’s qualifications in its June 7, 2000 memorandum of law in opposition to the complainant’s motion to compel: "Although Complainant was qualified for the promotion, she was not the most qualified applicant at that time." (Memorandum, p. 1) Furthermore, in its memorandum of law in support of its motion in limine (October 13, 2000), the respondent stated, "Anthem determined that complainant was qualified for the position, but not the most qualified applicant." (p.1)
10In the Department of Correction case, brought in state court under FEPA, the comparison between the plaintiff and others outside the protected class did not use the term "similarly situated." See also Denault v. Connecticut General, supra.
11A candidate’s interview performance is considered to be a subjective criterion; Byrnie v. Town of Cromwell, supra, 213; as is an employee’s written performance evaluation. Smitherman v. Williams-Sonoma, Inc., 1999 WL 608781 *4 (S.D.N.Y. 1999).
5 Frederick Street
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Laura Lee A. Dorflinger, Esq.
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Commission on Human Rights and Opportunities
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Regina M. Hopkins, Esq.
Commission on Human Rights and Opportunities
Anthem Blue Cross and Blue Shield of Connecticut
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Giovanna Weller, Esq.
Carmody and Torrance
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