8220420, Flood v. American Can, Final Decsision

 CHRO No. 8220420

Commission on Human Rights and Opportunities ex rel. : Robert Flood, Complainant
American Can Company, Respondent

April 24, 2000


By an amended complaint affidavit dated August 15, 1985 and filed with the Commission on Human Rights and Opportunities ("commission"), Robert Flood ("complainant") alleged that the American Can Company ("respondent") illegally discriminated against him. In the amended complaint, the complainant alleged that the respondent terminated the complainant’s employment and also denied him equal terms, conditions, and privileges of employment on the basis of his age in violation of General Statutes § 46a-60(a)(1) and the federal 1967 Age Discrimination in Employment Act, as amended.

As the complainant has not met his burden of proof for the reasons discussed herein, the complaint is dismissed.


The complainant resides at 300 Third Street, Apt. 417, San Francisco, CA 94107. The commission is located at 21 Grand Street, Hartford, CT 06106. At the time of the filing of the amended complaint, the respondent was located at American Lane, Greenwich, CT.


The complaint affidavit, dated June 24, 1982, and the amended complaint affidavit, dated August 15, 1985, were filed with the commission and assigned to an investigator. According to his certification, the investigator found reasonable cause for believing that an unfair practice had been committed or was being committed as alleged in the complaint (as amended). On August 5, 1991, the investigator certified the amended complaint ("complaint") and the results of the investigation to the chairperson of the commission and to the Attorney General.

Upon certification of the complaint, John F. Daly III was appointed as the presiding officer on February 6, 1992. On February 2, 1995, Hearing Officer Daly voluntarily excused himself and Jon Schoenhorn was designated as presiding officer. On March 2, 1999, the undersigned Human Rights Referee was appointed pursuant to General Statutes § 46a-57 as presiding officer in substitution for Hearing Officer Schoenhorn. A public hearing was held on January 18, 2000 and January 19, 2000. Briefs were due on March 16, 2000 and reply briefs on April 6, 2000. The complainant and the respondent timely filed their briefs and reply briefs. The commission did not file a brief or a reply brief. The record closed on April 6, 2000.


The complainant contends that he was the victim of age discrimination that occurred when, following his notice of termination by the respondent, the respondent failed to transfer him into a lateral job position for which he was qualified. The complainant alleges that the respondent has not produced any evidence of a legitimate, nondiscriminatory reason for its failure to reassign him and that the reasons proffered by the respondent were created after the case was not dismissed at the investigatory stage.

The respondent contends that the complainant has not produced any evidence that his age was a factor in his inability to obtain a transfer to another position. The respondent further contends that, even if liability is found, the complainant failed to produce sufficient evidence from which damages could be awarded.

The respondent’s decision in 1981 to eliminate the Business Advisory Services unit and the complainant’s position in that unit as part of its reduction in force is not at issue. The allegations of age discrimination solely concern the complainant’s inability to obtain an internal transfer to another position.


Based upon a review of the pleadings, exhibits, testimony, and transcript, the following facts relevant to this decision are found:

    1. All procedural, notice, and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to hear the complaint and render a decision.
    2. The complainant is a member of a protected class in that his date of birth is December 10, 1937 and he alleges that he was a victim of discrimination based on age. (Complainant, Tr. 20.)
    3. At the time of the alleged incident, the respondent employed more than 2,000 employees. (Complainant, Tr. 23; Hartwell, Tr. 257.)
    4. The respondent hired the complainant in March 1978 as a project manager for strategic analysis in the Business Advisory Services unit ("BAS"), which was managed by William Hutchison ("Hutchison"). (Complainant, Tr. 20-21.) The complainant’s job title was later changed to manager of BAS. (Complainant, Tr. 20.)
    5. The complainant was 40 years old when the respondent hired him. (Complainant, Tr. 31.)
    6. BAS was part of the respondent’s Strategic Planning Department. (Complainant, Tr. 22.) David Parker ("Parker") managed this department. (Complainant, Tr. 23.)
    7. Four individuals were employed in BAS during 1981: the complainant, Hutchison, Donald Korn ("Korn"), and William Woods ("Woods"). (Hartwell, Tr. 270.)
    8. Woods was born on October 1, 1938. He was 40 years old when the respondent hired him in 1979 and was 42 years old as of September 1981. (Woods, Tr. 83; Complainant’s Ex. 7.)
    9. Korn was older than the complainant when Korn transferred into BAS in 1981. (Complainant, Tr. 209.)
    10. Prior to 1979, the respondent was engaged in the manufacturing and distribution of cans. In addition to its primary business, it was also engaged in the manufacturing and distribution of paperboard packaging and forest products. (Hartwell, Tr. 255-259.)
    11. As a result of the technological changes in the can manufacturing business, the respondent substantially reduced its workforce and changed the business of the company from manufacturing to retail and consumer oriented businesses. (Hartwell, Tr. 258, 260-261.)
    12. In September 1981, the respondent announced it was eliminating BAS. The elimination of BAS was a part of the respondent’s company-wide reduction in force. Parker told the complainant and the other BAS employees that BAS was being eliminated and that BAS’s functions were going to be transferred to the Internal Audit Department. (Complainant, Tr. 44-45.)
    13. There were approximately 20 people in the Strategic Planning Department, including BAS, whose jobs were completely eliminated. Four of these people were over the age of 40 and three of those four worked in BAS. (Complainant, Tr. 207.)
    14. Parker told both the complainant and Woods that he had submitted their names to Robert Bell ("Bell"), head of the respondent’s Internal Audit Department, for consideration for transfer to that department. (Complainant, Tr. 44-45.)
    15. Although the complainant had never worked directly with Bell, Bell was well aware of the type of work the complainant did through meetings at which the complainant had given presentations. (Complainant, Tr. 367-368.)
    16. Both Bell and Bob Halphert of the Internal Audit Department interviewed the complainant and Woods. (Complainant, Tr. 47-48, 53-54; Woods, Tr. 84.)
    17. Following the interviews, Woods was offered a position within Internal Audit. (Woods, Tr. 85.)
    18. Bell did not offer the complainant a position within Internal Audit. (Complainant, Tr. 58, 60.)
    19. In June 1981, Korn was promoted and transferred out of BAS to the respondent’s International Division. (Complainant, Tr. 209-210.)
    20. In December 1981, Korn left his employment with the respondent. Following Korn’s departure from the International Division, the complainant interviewed with Robert Ryan ("Ryan"), head of that division, for Korn’s former position. (Complainant, Tr. 222-223.)
    21. The complainant had been working on a project for the International Division. (Complainant, Tr. 56, 215-216.)
    22. The complainant was not offered a position with the International Division. (Complainant, Tr. 59.)
    23. Kenneth McPartlin, Charles Lochman, Dave Bryan, and Dan Covicchio worked in the Strategic Planning Unit. They were younger than the complainant and transferred out of that unit to other positions with the respondent. However, their job titles, job qualifications, and job responsibilities for their positions in both the Strategic Planning Unit and the positions they transferred into are unknown. Their experience and education are also generally unknown. (Complainant, Tr. 69-73, 182-186, 188-189.)
    24. Of eleven positions in the Strategic Planning Unit that were filled between October 1981 and May 1982, six were filled by individuals 40 years of age or older. (Respondent’s Ex. 6 at Exhibit B.)
    25. Parker, Bell, and Ryan each either hired or recommended the hiring of employees who were the same age as or older than the complainant. (Complainant, Tr. 44-45, 53-54, 209-210.)
    26. The complainant’s employment with the respondent ceased in February 1982 with the elimination of the BAS unit. (Complainant, Tr. 24.)


Applicable Statute

The commission and the complainant allege that the respondent violated General Statutes § 46a-60(a)(1). Said statute provides in relevant part that

"[i]t shall be a discriminatory practice in violation of this section: (1) [f]or an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, … to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s … age …."


Although the language of the federal and state statutes differ slightly, it is clear that the intent of the legislature in adopting the Fair Employment Practices Act to prohibit discrimination was to make the Connecticut statute coextensive with the federal law. State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 469-470 (1989).

"Under federal law, there are four general theories of employment discrimination: disparate treatment, adverse or disparate impact, perpetuation into the present of the effects of past discrimination, and failure to make reasonable accommodation. …. Used in this general sense, ‘disparate treatment’ simply refers to those cases where certain individuals are treated differently than others. The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status. Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate burdens of proof: (1) the mixed-motive/Price Waterhouse model; Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); and (2) the pretext/ McDonnell Douglas-Burdine model. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103-105 (1996).

Pretext/McDonnell Douglas-Burdine model

As set forth in their briefs, both the complainant and the respondent concur that the appropriate analytical framework is the McDonnell Douglas-Burdine model. Under the McDonnell Douglas-Burdine model, the complainant has the initial burden of demonstrating a prima facie case of discrimination. Once a prima facie case has been made, the employer must present some legitimate, non-discriminatory reason for its decision. McDonnell Douglas Corp., supra, 411 U.S. 802. Should the employer succeed in this presentation, the complainant must be afforded an opportunity to show that the respondent’s stated reason for its decision was in fact a pretext for prohibited discrimination. Id., 804. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, supra, 450 U.S. 248. The complainant must show that he "has been the victim of intentional discrimination." Id., 256.

Prima facie criteria

"Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts that are sufficient to remove the most likely bona fide reasons for an employment action …." (Internal citations and quotation marks omitted.) Levy, supra, 236 Conn. 107. To establish a prima facie case, a complainant may make the following four-part showing: (1) that he belongs to a protected class; (2) that he was qualified and applied for a job for which the employer was seeking candidates; (3) that the employer denied him the position despite his qualifications; and (4) that after this denial, the position remained open. Levy, supra, 236 Conn. 107-108. "These four elements will not apply identically to all factual scenarios, and therefore represent only a flexible guideline for how a plaintiff may choose to establish a prima facie case." Lloyd v. WABC-TV, 879 F.Sup. 394, 401 (S.D.N.Y. 1995) (citing McDonnell Douglas, supra, 411 U.S. 802 n. 13). "[T]he prima facie case set forth in McDonnell Douglas Corporation was not intended to be an ‘inflexible formulation.’ Rather, the requirements of proof must be tailored to the specific facts of each case." (Citations omitted.) Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 204 (1991).

For example, in cases such as the present one, where an employer initiated a reduction in force, the prima facie formulation is slightly different. In reduction in force cases, the employee establishes his prima facie case by showing that: (1) he belongs to the protected age group; (2) he was qualified to assume another position at the company had it been available at the time he was discharged; (3) he was discharged; and (4) the discharge occurred under circumstances suggesting that age was a factor. Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1224 (2nd Cir. 1994); Commission on Human Rights and Opportunities ex rel. John Dobrzansky v. Edwards Company, CHRO # 9310400, p. 10 (January 12, 2000).

Burden shift to the respondent

Once the complainant has established a prima facie case, ‘[t]he burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. …. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." (Internal citations omitted.) Burdine, supra, 450 U.S. 254; Gallo, supra, 22 F.3d 1224; Miko, supra, 220 Conn. 204; Levy, supra, 236 Conn. 108-109. However, the proffered explanation "must be clear and reasonable specific." Burdine, supra, 450 U.S. 258; Gallo, supra, 22 F.3d 1226. The respondent need not show that the other candidate was more qualified than the complainant was; "the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria." Burdine, supra, 450 U.S. 259.

Burden shift to the complainant

If the respondent carries this burden of production, the presumption raised by the prima facie case is rebutted. The complainant, because he retains the burden of persuasion, must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision but a pretext for intentional discrimination. Burdine, supra, 450 U.S. 253; Levy, supra, 236 Conn. 108. "This burden now merges with the ultimate burden of persuading the court that [the complainant] has been the victim of intentional discrimination." Burdine, supra, 450 U.S. 256. The complainant "must demonstrate that the reduction-in-force at least in [his] individual case was a pretext for intentional age discrimination. This may be done by reliance on the evidence that established [his] prima facie case, without any additional evidence being required … or by presentation of additional evidence to show that [the respondent’s] reasons for [his] discharge were false …." (Internal citations omitted.) Gallo, supra, 22 F.3d 1226.


The complainant failed to establish all the elements needed for his prima facie case. The complainant did establish that he was a member of a protected class (FF 2) and that he was discharged rather than transferred to another position. (FF 26.)

However, the complainant did not establish that he was qualified for available positions in the company. The complainant did identify some positions that were open. (Complainant’s Ex. 9). He did not, however, introduce as exhibits any written job descriptions nor call as witnesses any hiring personnel from which it could be determined either the education, experience, and other qualifications that were required for these positions or the responsibilities these positions entailed. (FF23.) According to the complainant, Parker referred the complainant to Bell because Parker said that the complainant was qualified; Parker’s subjective belief in the complainant’s qualifications, however, is not a substitute for Bell and Halphert’s own determinations of the qualifications they were seeking. Even if the complainant may have been qualified for the position, Bell and Halphert may have interviewed and ultimately selected better qualified applicants. The complainant did provide testimony and documentation as to his own education and employment experience. (Complainant, Tr. 38-42; Complainant’s Ex. 1.) Nevertheless, absent the respondent’s criteria for the position, the undersigned cannot substitute my judgement for the employer’s discretion in choosing among qualified candidates, provided the decision is not shown to be based upon unlawful criteria. Likewise, absent the respondent’s criteria, the undersigned cannot conclude that the complainant was qualified for the positions simply because the complainant asserted that he was.

Further, the complainant did not establish that the respondent’s failure to transfer him occurred under circumstances suggesting that age was a factor. First, three people in two departments interviewed the complainant. (FF 16, 20.) Two people from the Internal Audit position interviewed the complainant, and the successful candidate was less than a year younger than the complainant. (FF 8, 16, 17.) The complainant was also interviewed with the International Division. (FF 20, 21, 22.) Second, that the respondent hired and transferred employees younger than 40 old years (Complainant’s Ex. 9) does not negate the fact that it also hired and transferred employees who were 40 and older. (Respondent’s Ex. 6 at exhibit B.) Finally, the complainant presented no evidence that the younger individuals who were hired or transferred were less qualified than he was.

The respondent’s reduction in force was an unfortunate situation in which thousands of employees were laid off in a matter of a few years, and those employees who wished to transfer to other positions in the company were competing against other potential transferees and new applicants in an ever shrinking job pool.

Assuming the complainant did establish a prima facie case, the burden of production shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its failure to transfer the complainant. The respondent’s reason that the complainant was not a candidate for transfer is because of his abrasive and confrontational style. (Hartwell, Tr. 278, 295-296, 320, 327-28.) Thus, the respondent meets its burden.

As the respondent carried its burden of production, the complainant now has the burden of demonstrating by a preponderance of the evidence that the proffered reason was not the true reason for the employment decision but was instead a pretext for intentional discrimination.

The complainant alleges various incidents from which he claims that an inference of intentional discrimination should be drawn. The complainant claims that Bell said Bell was unable to hire people for his department because of "head count" and budget limitations. (Complainant, Tr. 58.) The complainant alleges that this reason is false as evidenced by Bell’s hiring of younger people (Complainant, Tr. 60; Complainant’s Ex. 9), and therefore is a pretext for intentional discrimination. However, that the same decision-maker, or multiple decision-makers, may have several, and even inconsistent, reasons for the decision is not, without more, necessarily proof of intentional discrimination. Indeed, "discrimination does not lurk behind every inaccurate statement. Individual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminating but unbecoming or small-minded …. In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by [the complainant]." (Internal quotation marks omitted.) Langner v. The Stop & Shop Supermarket Company, 2000 WL 158325 *8 (Conn. Super., January 27, 2000)(quoting Fisher v. Vassar College, 114 F3d 1332, 1337-38 (2d Cir. 1977)).

Likewise, a company undergoing a reduction in force may have budget requirements that fluctuate.

As previously discussed, that the respondent hired and transferred employees younger than 40 years old does not negate the fact that it also hired and transferred employees who were 40 and older. (Respondent’s Ex. 6 at exhibit B.) The complainant offers no statistical data with accompanying analysis from which one could conclude that specific age groups were being disproportionately impacted and from which the undersigned could thereby infer intentional discrimination. The complainant also presents no evidence that the younger individuals who were hired or transferred were less qualified than he.

The complainant also points to telephone calls not returned by Bell (Complainant, Tr. 55, 57, and 59) and career placement service procedures not properly followed. (Complainant, Tr. 226-227; Complainant’s Ex. 8.) Again, there is no indication that age discrimination was a factor in these instances.

The complainant has failed to prove by a preponderance of the evidence that the reason proffered by the respondent was either not credible or a pretext for intentional discrimination. Like his prima facie case, the complainant has not met this burden either.


  1. The complainant is a member of a protected class.
  2. The complainant did not prove that he was qualified to assume another position available at the time he was discharged.
  3. The complainant incurred an adverse employment decision in that he was discharged rather than obtaining a lateral job transfer.
  4. The complainant failed to prove that his failure to obtain a transfer occurred under circumstances suggesting that age was a factor in the respondent’s decision not to transfer him.
  5. The respondent articulated a legitimate, nondiscriminatory reason for its failure to transfer the complainant.
  6. The complainant failed to prove by a preponderance of the evidence that the reason proffered by the respondent either was not credible or was a pretext for intentional discrimination.


The complaint is dismissed.

Hon. Jon P. FitzGerald
Presiding Human Rights Referee

Mr. Robert Flood
Atty. Harold R. Burke
Atty. Steven M. Post
Atty. Raymond P. Pech