CHRO No. 0010273 Haley v. The City of Hartford, Final Decision
CHRO No. 0010273
EEOC No. 16AA01125
Commission on Human Rights and Opportunities ex rel. : Mary Haley, Complainant
v.
City of Hartford, Respondent
July 1, 2002
FINAL DECISION
I. Parties
The complainant is Mary Haley ("complainant"), of 25 Standish Street,
Hartford, Connecticut. She was represented by Attorney Judith Meyer. The
Commission on Human Rights and Opportunities ("commission"), located
at 21 Grand Street, Hartford, Connecticut, was represented by Attorney C. Joan
Parker and certified legal intern Andrea Merkle. The respondent, City of
Hartford ("respondent"), with a business address of 550 Main Street,
Hartford, Connecticut, was represented by Attorney Ivan Ramos.
II. Summary of Complaint and Decision
The complainant filed a complaint with the commission on February 1,
2000. In her complaint, she alleges that her employer, the respondent, illegally
discriminated against her on the basis of race and mental disability in
violation of General Statutes § 46a-60(a)(1); Title VII of the federal Civil
Rights Act of 1964, as amended, 42 U.S.C. 2003 and the Civil Rights Act of 1991
("Title VII"); and the federal Americans with Disabilities Act, 42
U.S.C. 12101 et seq. ("ADA").
For the reasons set forth herein, the allegations that the respondent
discriminated against the complainant based on her disability in violation of §
46a-60(a)(1) and the ADA are dismissed.
For the reasons set forth herein, the respondent is found to have illegally
discriminated against the complainant on the basis of race in violation of §
46a-60(a)(1) and Title VII. The complainant is awarded relief as set forth
herein.
III. Procedural History
The complaint was filed on February 1, 2000 and assigned to an investigator.
After a preliminary investigation, the investigator found reasonable cause to
believe that an unfair practice was committed as alleged in the complaint. On
May 25, 2001, the investigator certified the complaint and the results of the
investigation to the commission's executive director and to the attorney general
of the State of Connecticut.
Upon certification of the complaint, the undersigned was appointed as presiding
human rights referee. At the hearing conference on June 26, 2001, the public
hearing was scheduled to commence on January 22, 2002. On December 17, 2001, the
complainant and the respondent were defaulted for their failure to attend a
prehearing conference. Subsequently, upon motions by the complainant and the
respondent, the defaults were set aside. By motion dated January 17, 2002, the
complainant requested a continuance of the public hearing due to ill health.
There being no objection, the public hearing was rescheduled to commence on
March 12, 2002. The public hearing was then held on March 12, 13, 14 and 19,
2002. Briefs were ordered filed on or before May 1, 2002 at which time the
record was closed. The commission and the respondent timely filed their briefs.
The complainant did not file a brief.
IV. Issues and Parties' Positions
The complainant and the commission allege that the respondent discriminated
against the complainant based on her race and disability. (Tr. 22.) They contend
that the respondent did not promote the complainant, a Caucasian, as quickly as
it did her non-white, non-disabled co-workers. (Tr. 23.) They argue that this
discrimination was ongoing and began prior to 1998. (Tr. 24.) The complainant
seeks relief including an order that her August 2001 promotion to administrative
clerk be made retroactive to June 1998. (Complainant, Tr. 250.)
The respondent contends that the complaint is time-barred, as the complaint was
not filed within the 180 days of the alleged discriminatory act. (Tr. 39; Answer
dated July 2, 2001.) Also, the respondent denies that it violated federal and
state anti-discrimination laws and denies that the complainant received unequal
duties because of her race and mental disability. (Answer dated July 2, 2001.)
The respondent asserts that the complainant was promoted to every position for
which she actually applied and that the promotions her co-workers received were
positions to which the complainant did not apply. (Tr. 34.)
V. Findings of Fact
References to testimony are to the witness and the transcript page where the
testimony is found. References to an exhibit are by party designation and
number. The commission's exhibits are denoted as "CHRO Ex." followed
by the exhibit number; and the respondent's exhibits are denoted by
"Respondent Ex." and the number. The complainant did not proffer any
exhibits.
Based upon a review of the pleadings, exhibits, testimony and transcripts, and
an assessment of the credibility of the witnesses, the following facts relevant
to this decision are found:
2. The complainant suffers from depression and a borderline personality disorder. At the time of the hearing, she was seeing a therapist once a week and attending a daily program at the Institute of Living as an outpatient. (Complainant, Tr. 167-69.) Because of her mental disability, the complainant had taken two long term and two or three short term leaves of absence. (Complainant, Tr. 219.) The complainant can be intimidated, frightened and avoids confrontation. (Complainant, Tr. 252-54; Perez, Tr. 352; Ford, Tr. 522-523.) The complainant's disability predates her employment with the respondent. (Complainant, Tr. 229.)
3. The respondent is a municipality employing three or more persons. (Washington, Tr. 140; CHRO Exs. 1, 2.)
4. The complainant currently works in the respondent's Department of Licensing and Inspections ("L & I") as an administrative clerk. (Complainant, Tr. 171.)
5. Within her unit in L & I, the complainant's co-workers were Audrey Burchell (formerly known as Audrey Concepcion) ("Burchell"), a Jamaican black female; Jennifer Duncan ("Duncan"), an African-American female; and Maria Perez ("Perez"), an Hispanic female. During the time in question, the complainant has been the only non-Hispanic white female working in L & I. As of October 1, 1998, L & I had 53 employees, only one of whom, the complainant, was a white, non-Hispanic female. (Complainant, Tr. 216; Perez, Tr. 308; Burchell, Tr. 376; CHRO Ex. 34, p. 46.) During the time period relevant to this complaint, Abraham Ford ("Ford"), an African-American male, was the director of L & I. (Ford, Tr. 474.)
6. Prior to becoming director of L & I, Ford was the respondent's chief of zoning administration. He was the complainant's supervisor in both of these positions. (Ford, Tr. 474-75.) As her supervisor, he had been aware from as early as 1989 of the complainant's mental disability, that she could be frightened and that she had difficulty handling confrontation. (Complainant, Tr. 229-30; Ford, Tr. 522-23; CHRO Ex. 33.)
7. The respondent has two procedures for an employee to obtain a promotion. A promotion could be obtained as a result of a vacancy created (1) by another employee leaving a position or through the budget process creating a new position ("new position vacancy") or (2) through a reclassification (or allocation) process ("reclassification"). (Washington, Tr. 44; Respondent Ex. 11.)
8. With a new position vacancy, the department with the vacancy submits a personnel requisition form to the personnel department requesting to fill the position. The request is forwarded to the budget office, to determine if there is sufficient money in the budget appropriation, and to the city manager as the official responsible for the staffing level in the city. (Washington, Tr. 45-47, 93-96, 156-57.)
9. An employee can also obtain a promotion through reclassification. If an employee believes she is "working out of class", meaning that over 50 percent of the duties being performed are actually those of a higher class, the individual can seek to have the position reclassified to a higher class. The employee must complete the necessary application and submit it to her supervisor and then to the department head. Both the supervisor and the department head may comment on the request for reclassification. Regardless of whether they agree with the request, the application is forwarded to the personnel department. The application is also forwarded even if the supervisor and department head refuse to sign it. The personnel department conducts an audit and investigation. (Washington, Tr. 53-55, 59-61, 93-96, 153-54; Respondent's Ex. 11, p. 3-2.)
10. The employee usually initiates the reclassification process. Department heads occasionally initiate reclassification during a budget process. (Washington, Tr. 55, 94-96.)
11. If the personnel director, the budget director and city manager approve the request to fill the new position vacancy or to reclassify the position, the requisition/recruitment process continues. The department with the vacancy creates a job analysis/position questionnaire and forwards it to the personnel department. The job analysis questionnaire specifies the duties for that specific department, supplementing the job descriptions that are generic, citywide descriptions of the job duties. The personnel department then reviews the questionnaire and prepares a job posting. The job posting indicates the promotional opportunity, salary range, duties, qualifications required, examination to be given, and opening and closing dates. Any city employee may apply for promotion to a new position vacancy; only employees within the applicable department may apply for a promotion to a reclassified position. Those individuals who apply and are qualified are notified of the test date. Individuals who do not meet the qualifications are notified of the reasons why they did not meet the qualifications and of the appeal process. (Washington, Tr. 45-47, 49, 51, 103-104, 156-57.)
12. In addition to the generic, city-wide job descriptions, the job duties also include those duties identified by the requesting department in the job analysis questionnaire, the job posting and explanations given to the employee by the appointing authority or the employee's supervisor. (Washington, Tr. 45, 49, 51-52, 152.)
13. In reclassification, the position is reclassified, not the employee currently in that position. Although all eligible employees in that department can apply for the reclassified position, the employee who initiated the reclassification process obtains the promotion to the now reclassified position ninety-nine percent of the time. (Washington, Tr. 60, 103-106, 121.) Historically within L & I, the employee who requested that a position be reclassified always received the subsequent promotion into the newly reclassified position. (Washington, Tr. 121; Ford, Tr. 569-570.)
14. The test given with either a new position vacancy or a reclassification may be a written examination, oral examination, rating of training and experience, performance examination or some combination thereof. (Washington, Tr. 66.)
15. From the results of the test, an eligible register is developed, ranking the applicants in order from highest to lowest score. From that eligibility list, a certification list is developed and given to the appointing authority. The certification list consists of two names more than the number of vacancies. From those names, the appointing authority will interview candidates and then make a selection. (Washington, Tr. 67-68, 136.)
16. In order to obtain a promotion, through either a new position vacancy or reclassification, employees must apply for the position. The applicants must be deemed qualified and physically to perform the duties of the position. They must be on the eligible register list in order to be placed on the certification list. (Washington, Tr. 137-38.)
17. Promotions, whether into a new position vacancy or a reclassified position, are merit based. (Washington, Tr. 106; Respondent Ex. 11, Rule VI, 1.)
18. The promotion levels within L & I from lowest to highest are senior clerk typist, senior account clerk, administrative clerk, administrative assistant, senior administrative assistant and supervisor of licenses and permits. (Ford, Tr. 486.)
19. In 1991, Kay Zazzaro/Cesaro, the administrative clerk in L & I, retired. Her position was not filled; her duties were distributed among the complainant, Burchell, Perez and Duncan. (Complainant, Tr. 209, 230-31; Ford, Tr. 478.)
20. In January 1994, Sheila Lang, office manager for the L & I department, retired. Her duties were distributed among Burchell, Perez, Duncan and the complainant. (Complainant, Tr. 232-33; Ford, Tr. 481.)
21. The complainant began her employment with the respondent in 1982 as a general clerk in L & I. (Complainant, Tr. 171-172.) She progressed from a general clerk to clerk/typist. She then transferred to the position of zoning inspector/assistant. That position caused her anxiety, depression and sleeplessness. For medical reasons, she took a voluntary demotion in 1989 and returned to L & I as a clerk/typist. (Complainant, Tr. 173-74, 252-54; CHRO Ex. 33.) She was subsequently upgraded to senior clerk/typist. The complainant was promoted to senior account clerk effective September 13, 1998 and to administrative clerk effective August 27, 2001. (Complainant, Tr. 171-73; Commission Exs. 6, 8.)
22. The complainant has never been subject to disciplinary action. She has performed her duties well. Unlike with some of her co-workers, there were no complaints about her interaction with other employees or the public. (Complainant, Tr. 283-84; Ford, Tr. 488-89, 494, 544-45.)
23. The complainant has been doing the work of an administrative clerk since 1993. (Ford, Tr. 483-87.) She was still performing the work of an administrative clerk in 1998. (Complainant, Tr. 182; Ford, Tr. 483-87, 564-65.)
24. Perez began working for the respondent in 1982. She has worked in L & I since approximately 1984. She was promoted to senior account clerk in December 1995. In February 1998, Perez submitted a request to have her senior account clerk position reclassified to an administrative clerk position. The position was reclassified and she received the promotion to that administrative clerk's position in June 1998. (Washington, Tr. 110-11, 113; Perez, Tr. 308-10; Commission Ex. 9, 21.)
25. Ford handpicked Perez for promotion to senior account clerk. (Perez, Tr. 338-340.)
26. Duncan began working in L & I in 1990 or 1991. She was promoted to senior account clerk in December 1995. She was promoted to administrative clerk in June 1998 into the position vacated when Burchell became senior administrative clerk. In November 2001, Duncan was promoted to her current position of administrative assistant. (Perez, Tr. 310, 327-28; Ford, Tr. 511-12; Commission Exs. 11, 12, 25, 26, 27, 28.)
27. Within L & I, Ford and the supervisor of the unit with the vacancy prepare the job duties as set forth in a position analysis. (Ford, Tr. 513-14.) The job position analysis for the 1998 administrative clerk position eventually filled by Duncan included duties primarily performed only by Duncan. (Ford, Tr. 519-21.)
28. Ford handpicked Duncan for promotion to senior account clerk and for promotion to administrative clerk. (Perez, Tr. 338-340; Ford, Tr. 519-21.)
29. Duncan has a reputation of being harsh with her subordinates and yelling at them in front of customers. (Ford, Tr. 543.)
30. Burchell has worked for the respondent for twenty-seven years. She has worked in L & I since 1985. (Burchell, Tr. 376-77.) She began in L & I as a senior clerk typist. In 1995, she was promoted to administrative clerk through the budget process creating a new position, a two-grade promotion. In 1998, she was promoted to administrative assistant. Burchell was subsequently promoted into, and currently holds, the position of senior administrative assistant. (Burchell, Tr. 377, 380-81; Ford, Tr. 510-12, 557.)
31. Ford handpicked Burchell for promotion to administrative clerk. (Perez, Tr. 338-340; Ford, Tr. 517.)
32. Between 1995 and 1999, the complainant spoke to Ford on several occasions regarding reclassification of her position. He repeatedly told her that there was no money budgeted for an upgrade and that his hands were tied. However, during this time period, Ford upgraded Burchell, Duncan and Perez. (Complainant, Tr. 180, 210, 226, 303-04, 637; Ford, Tr. 558-59, 565; CHRO Exs. 9, 11, 20, 21, 22, 23, 25, 26, 27, 28.)
33. The complainant went to the personnel department to inquire about the reclassification process. Her understanding from that conversation was that the personnel department could not do anything for her without the approval of her department head, Ford. (Complainant, Tr. 211, 228.)
34. In 1998, Ford hired a new employee, Catherine Cooper ("Cooper"), as a senior account clerk. Cooper is a black female. Although the vacancy was for a senior clerk/typist position was actually filled as a senior account clerk. The complainant, then a senior clerk typist, felt that her duties were more complex than Cooper's duties were. The complainant went to Ford to request a reclassification. The complainant believed that her position should be reclassified to administrative clerk, a two-step increment. Ford agreed that her position should be reclassified, but told the complainant that she could only apply for a one level upgrading at a time. Based on his comment, the complainant applied for only a one-level upgrade, to senior account clerk. The position was reclassified to senior account clerk and the complainant received the promotion to the position. (Complainant, Tr. 183, 199-200, 202-03; 205.)
35. In November 1999, the complainant met with Ford and Burchell. During the discussion, the complainant told them that she had overheard snide remarks concerning another employee who was on a leave for emotional problems. Ford said he would speak to the individual who made the comment and such comments would stop. The complainant did not have to complain again to Ford about inappropriate remarks. (Complainant, Tr. 178-79, 217-18, 284.)
36. During that November 1999 meeting, the complainant also told Ford and Burchell that she felt she had been passed over for promotions as a result of her illness and color. (Complainant, T. 179-80.) Ford responded that his hands were tied. The complainant understood this remark to mean that nothing could be done. (Complainant, Tr. 180, 637.) At this meeting, neither Ford nor Burchell suggested to the complainant that she apply to have her position reclassified. Had Ford suggested that she submit a reclassification application, she would have done so immediately. (Complainant, Tr. 636.)
37. In 2001, during the investigation of her complaint to the commission, Ford suggested to the complainant that her position might be eligible for reclassification. Previously, Ford had never suggested to the complainant that she apply for reclassification nor did he ever initiate the process himself. On March 20, 2001, the complainant submitted a request to have her position as senior account clerk reclassified to administrative clerk. Ford recommended the reclassification and the complainant's promotion. The position was reclassified. Following the requisition/recruitment process, the complainant received the promotion to administrative clerk effective August 27, 2001. (Complainant, Tr. 207, 227-28; CHRO Exs. 6, 14.)
38. A senior account clerk is a member of union Local 1716, American Federation of State, County and Municipal Employees, AFL-CIO ("Local 1716"). (Washington, Tr. 99; Complainant, Tr. 247; CHRO Exs. 4, 5.) Local 1716's retirement pension plan is administered through the State of Connecticut. (Complainant, Tr. 247; Shetensky, Tr. 607.) An administrative clerk is a member of the Hartford Municipal Employee Union ("HMEA"). (Washington, Tr. 99; Complainant, Tr. 247; CHRO Ex. 3.) HMEA's retirement benefits and contributions are administered through the Municipal Employee's Retirement Fund ("MERF"). (Shetensky, Tr. 608.)
39. An employee newly promoted from senior account clerk to administrative clerk may transfer the retirement service she had under Local 1716 into MERF. Because the contribution rate of MERF is higher than that of Local 1716, an employee who transfers her retirement service must pay into MERF the difference between her contribution to Local 1716 and what she would have paid into MERF had she been a HMEA member throughout her employment with the city. (Complainant, Tr. 247-249; Shetensky, Tr. 607-09.)
40. An employee who is a member of Local 1716 contributes 2.25% of her pay into the retirement plan. An employee who was a member of HMEA prior to December 1, 1998 pays six percent of her pay into MERF. An employee who became a member on or after December 1, 1998 pays five percent of her wages into MERF. (Shetensky, Tr. 608, 622-23.)
41. An employee who was a member of HMEA prior to December 1, 1998 is eligible to retire with benefits at the earlier of age 60 with ten years of service or after completion of twenty years of service without regard to age. (Shetensky, Tr. 610-11.)
42. In August 2001, when the complainant was promoted from senior account clerk to administrative clerk, her union membership changed from Local 1716 to MERF. She transferred her pension account from Local 1716 to HMEA and paid $9,116.63 into MERF. Had the complainant been promoted to administrative clerk effective September 13, 1998, she would have paid less into MERF. (Stipulation dated April 16, 2002.)
43. From June 1998 to August 2001, the complainant contributed 2.25% of her pay into the Local 1716 retirement plan. Had she been a member of HMEA, she would have paid six percent of her paycheck into MERF. (Shetensky, Tr. 612-13.)
VI. Analysis
A. Statute of limitations
1. Alleged discrimination based on race
The respondent argues that the complaint is barred by the statute of
limitations because no incident occurred within 180 days prior to the filing of
the complaint. (Respondent Brief, 9 - 11.) The commission argues that the
discrimination against the complainant began when she first commenced performing
the duties of an administrative clerk's position while occupying lower paying
positions and continued with each paycheck she received. (Commission Brief, 17.)
Federal and Connecticut courts have addressed whether inadequate compensation
constitutes a continuing violation. In Lightfoot v. Union Carbide Corp., 110 F.
3d 898 (2d Cir. 1997), the plaintiff, in his 1992 complaint, argued, inter alia,
that when he was promoted in 1988 he should have received a pay raise. He argued
that his employer's failure to adequately pay him at the appropriate salary
level should be treated as a continuing violation because he "continued to
feel the effects of the lower pay up to the time he was terminated". The
court found this argument to be "clearly without merit". Lightfoot,
110 F.3d 907.
In Lightfoot, the court discussed the application of the continuing-violation
exception. "Under the exception, a plaintiff who files a timely EEOC charge
about a particular discriminatory act committed in furtherance of an ongoing
policy of discrimination extends the limitations period for all claims of
discriminatory acts committed under that policy even if those acts, standing
alone, would have been barred by the statute of limitations. The continuing
violation exception applies where there is evidence of specific discriminatory
practices, such as the repeated use of discriminatory seniority lists or
employment tests. Discrete incidents of discrimination that are unrelated to an
identifiable policy or practice, on the other hand, will not ordinary amount to
a continuing violation, unless such incidents are specifically related and are
allowed to continue unremedied for so long as to amount to a discriminatory
policy or practice." (Internal quotation marks omitted; internal citations
omitted.) Lightfoot, 110 F.3d 907.
Thus, actionable discriminatory practices exist when the employer's method of
compensation impacts an entire protected class. Bazemore v. Friday, 478 U.S.
385, 395 (1986)(Brennan, J., concurring in part, joined by all other members of
the Court)(salary disparity based on race); State of Connecticut v. Commission
on Human Rights, 211 Conn. 464 (1989)(male retirees paid less in pension
benefits than female retirees based upon different, gender-based actuarial
tables); Board of Education of the City of Norwalk v. Commission on Human Rights
and Opportunities, 177 Conn. 75, (1979)(female custodians paid less than male
custodians); and Veeder-Root Co. v. Commission on Human Rights and
Opportunities, 165 Conn. 318 (1973)(male workers paid more than female workers).
Unlike the fact pattern in Lightfoot, wherein only a single individual was
affected, the fact pattern in this case demonstrates a policy of continuing
discrimination against an entire protected class, white females. (Infra, Title
VII and state race claims.) That the complainant was the only member of that
class does not preclude the applicability of the continuing violation exception.
Where the discriminatory pay scheme affects an entire protected class, the
continuing violation exception applies to the Title VII and state race/sex based
claims.
Further, the fact pattern of this case demonstrates an on-going pattern of
discriminatorily discouraging the complainant from applying for promotion.
(Infra, Title VII and state race claims.)
2. Alleged discrimination based upon disability
However, relative to her ADA claim, the complainant was not the only disabled
employee in L & I. There was at least one other member. (Complainant, Tr.
179, 217-18.) As there is inadequate information on the number of employees in
that protected class and their promotional history, the commission and the
complainant have failed to establish by a preponderance of the evidence a
discriminatory policy or practice.
In addition to failing to establish a pattern of discrimination against the
class of disabled employees, the commission and the complainant also failed to
establish that the respondent discriminated against the complainant individually
on the basis of her disability within 180 days of the filing of the complaint.
The complainant's vague complaints about the office atmosphere (Complainant, Tr.
216-17) lacked specificity as to incidents and time. Also, her co-worker, Perez,
contradicts her statements. Perez testified that in her 17 years of employment
in L & I, no derogatory comments regarding a person's mental health were
ever made in her presence. (Perez, Tr. 351.) Also, when in November 1999 the
complainant brought to Ford's attention that a student intern had made
inappropriate comments regarding another employee's mental health, Ford said he
would speak to the individual who made the comments and such comments would
stop. Ford scolded the intern and informed him of the inappropriateness of such
comments. The complainant did not have to complain again to Ford about
inappropriate remarks. (Complainant, Tr. 179, 217-18, 284; Ford, Tr. 574-75,
592-93.)
For these reasons, the ADA and state disability claims are dismissed.
B. Title VII and § 46a-64(a)(1) race claim
1. Standard
The commission and the respondent agree that the appropriate analytical model
is McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973) and its progeny.
(Commission's brief p. 21; Respondent's brief p. 17.) The federal methodology
has been adopted for analysis of state employment discrimination claims. Craine
v. Trinity College, 259 Conn. 625, 636-37 (2002); State v. Commission on Human
Rights and Opportunities, 211 Conn. 464, 469-470 (1989). Nevertheless, in
enforcing state antidiscrimination law, "we are not bound by federal
interpretation of Title VII provisions". (Internal quotation marks omitted;
citations omitted.) State, 211 Conn. 470. "[W]e have also recognized that,
under certain circumstances, federal law defines the beginning and not the end
of our approach on the subject." (Internal quotation marks omitted;
citations omitted.) State, 211 Conn. 470.
Under this analytical model, the complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas Corp, 411
U. S. 802; Craine, 259 Conn. 637. "The burden of establishing a prima facie
case of disparate treatment is not onerous." Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). "In order to establish a
prima facie case for failure to promote, the plaintiff must allege that: 1) she
is a member of a protected class; 2) her job performance was satisfactory; 3)
she applied for and was denied promotion to a position for which she was
qualified; and 4) the position remained open and the employer continued to seek
applicants." (Internal quotation marks omitted; citations omitted.) Cruz v.
Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000); Sedotto v. Borg-Warner
Protective Services, 6 Conn Ops 683, 686 (D. Conn. 2000); Langner v. Stop and
Shop Supermarket Company, 2000 WL 158325 *5 (Conn. Super., January 27, 2000).
However, "[t]he facts necessarily will vary in Title VII cases, and the
specification above of the prima facie proof required from respondent is not
necessarily applicable in every respect to differing factual situations."
McDonnell Douglas Corporation, 411 U.S. 802 n. 13. "[T]he precise
requirements of a prima facie case can vary depending on the context and were
never intended to be rigid, mechanized, or ritualistic." (Internal
quotation marks omitted; citations omitted.) Swierkiewicz v. Sorema N. A., 534
U.S. 506, 122 S.Ct. 992, 997 (2002). For example, the general requirement is
that a plaintiff must "allege that she applied for a specific position and
was rejected therefrom, rather than merely asserting that on several occasions
she generally requested promotion." Sedotto, 6 Conn Ops. 686. However, a
valid failure to promote claim may nevertheless arise "in the situation
where the employer refused to accept applications for positions or hand-picked
individuals for promotion to a position without considering applicants."
(Citations omitted.) Sedotto, 6 Conn. Ops 686.
If the complainant succeeds in establishing her prima facie case, the burden of
production then shifts to the respondent to articulate a legitimate,
non-discriminatory reason for its decision. Burdine, 450 U.S. 253; McDonnell
Douglas Corporation, 411 U.S. 802; Craine, 259 Conn. 637.
If the respondent meets its burden, the complainant must then prove by a
preponderance of the evidence that the legitimate reasons offered by the
respondent were not its true reasons, but rather were a pretext for intentional
discrimination. Burdine, 450 U.S. 253; McDonnell Douglas Corporation, 411 U.S.
804; Craine, 259 Conn. 637. "The ultimate burden of persuading the trier of
fact that the [respondent] intentionally discriminated against the [complainant]
remains at all times with the [complainant]." Burdine, 450 U.S. 253; Craine,
259 Conn. 637. "[i]t is permissible for the trier of fact to infer the
ultimate fact of discrimination from the falsity of the employer's explanation.
… The factfinder's disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice to show intentional
discrimination. Thus, rejection of the defendant's proffered reasons will permit
the trier of fact to infer the ultimate fact of intentional discrimination.
Proof that the defendant'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." (Italics in original; internal quotation
marks omitted; citations omitted.) Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147 (2000).
2. Prima facie case
The complainant has established a prima facie case. She is a member of one or
more protected classes as she is a white female. (FF 1.) Her job performance is,
and has been, satisfactory. (FF 22.) She had been performing the duties of
administrative clerk for several years and, subsequent to the filing of the
complaint, was eventually promoted to administrative clerk. (FF 21, 23.) She had
repeatedly expressed an interest in promotion (FF 32); and her failure to apply
for the posted promotional opportunities subsequently filled by her co-workers
is justified because her co-workers were handpicked for the promotions they
received. (FF 25, 28, 31.)
3. Respondent's legitimate reason
In response to the complainant's discrimination claim, the respondent proffers a
legitimate business reason for its failure to promote the complainant earlier
than it did. Under the respondent's personnel policies and union contracts, an
employee must apply for a position, qualify and be placed on a certification
list in order to be considered for promotion. Because the complainant never
applied, she did not go through the requisite procedure even to be considered
for a position. The respondent could not deny, or grant, a promotion to someone
who did not apply for a position. Indeed, the respondent points out, on the two
occasions when the complainant followed the correct procedure she did in fact
obtain the promotions she was seeking.
While the respondent's burden is one of production and not persuasion, its
arguments are, nonetheless, superficially compelling. The complainant concedes
that she saw but did not apply for the job postings for the promotional
opportunities that her co-workers subsequently obtained. (Complainant, Tr.
242-46.) She concedes that she was not qualified for those positions.
(Complainant, Tr. 242-45.) Between 1995 and August 1998, the complainant did not
submit an application to have her own position reclassified. (Washington, Tr.
134-35.) After her successful reclassification request in August 1998 and her
promotion to the newly reclassified position, she did not submit another
reclassification request until her successful request in 2001. (Washington, Tr.
138.) Since 99% of employees whose positions are reclassified obtain the
promotion to the reclassified position (FF 13), it is arguable that had the
complainant applied to have her position reclassified and the position been
reclassified, she would have been the successful candidate and promoted into the
upgraded position.
4. Evidence of pretext
As the respondent produced a legitimate, nondiscriminatory reason, the
complainant must prove by a preponderance of the evidence that the proffered
reason was really a pretext for discrimination.
The complainant amply demonstrated that the reasons proffered by the respondent
are pretextual. It is clear that when it came to promotional opportunities, L
& I's non-African-American female employees (complainant and Perez) were
treated differently than their African-American female co-workers (Burchell and
Duncan).
It would have been futile for the complainant to apply for the pre-existing vacancies because Ford handpicked the successful, non-white female, candidates. (FF 25, 28, 31.) He pre-selected Burchell because of her seniority for a two-grade promotion to the vacant position of administrative clerk. (Perez, Tr. 312; Ford, Tr. 517; FF 31.) However, according to the respondent's personnel rules, "all appointments and promotions in the classified service of the City shall be made according to merit and fitness", not seniority. (FF 17.) Even if seniority were determinative, it was applied discriminatorily; Ford promoted Duncan to Burchell's previous position of administrative clerk in 1998 notwithstanding that she had less seniority in L & I than Perez and the complainant.
Ford also handpicked Duncan and Perez for promotions to senior account clerk in 1995, just giving them their promotions because he had promoted Burchell. (FF 25, 28.) Again, promotions are to be based upon merit. (FF 17.)
In 1998, Duncan was handpicked for promotion to administrative clerk. (FF 28.) When Perez heard Duncan was to be promoted, she asked her supervisor why Duncan was getting the promotion while she was going to be left as payroll clerk (senior account clerk), the supervisor did not have a reason. (Perez, Tr. 317-18.) Ford said Duncan was being promoted to the administrative clerk's position, created by Burchell's promotion to senior administrative clerk, because Duncan's position as senior account clerk could not pass a reclassification study; he then told Perez to apply to reclassify her senior account clerk position to that of administrative clerk. (Perez, Tr. 318, 343-45, 369-70; Ford, Tr. 527-29.) Promotions are supposed to be based upon merit, not the likelihood of successful reclassification. (FF 17.) A legitimate need for administrative clerk could have been met by simply reclassifying Perez's position.
Perez, like the complainant, did not apply for the administrative clerk position eventually filled by Duncan because she was told the position was for Duncan. (Perez, Tr. 321.) Within L & I, Ford and the supervisor of the unit with the vacancy prepare the job duties set forth in the position analysis. (Ford, Tr. 513-14.) In preparing the job position analysis for the 1998 administrative clerk position eventually filled by Duncan, Ford included specific duties primarily only Duncan already performed. (Ford, Tr. 519-21.)
b.
Likewise, applying for posted promotions created by reclassification would also have been futile for the complainant. The job descriptions were designed for the current office-holder who, historically, was the successful candidate for promotion to the newly reclassified position. (FF 13.) For instance, Ford, reacting to Perez's complaint about Duncan's 1998 promotion to administrative clerk, told Perez to apply for reclassification of her own position from senior account clerk to administrative clerk. Perez filed the application. The application was approved and Perez was subsequently promoted into the reclassified position. (FF 24; Perez, Tr. 318, 343-45, 369-70; Ford, Tr. 527.)
c.
Further, the complainant's failure to apply for reclassification of her own position is excusable. Admittedly, this case is an unusual promotion case in that the employee may not only apply for open job postings but also, effectively, initiate her promotion through a successful application to reclassify her current position to a higher level. Nonetheless, Ford actively discouraged the complainant from applying for a reclassification; and, the reasons he proffered, budget constraints and inability to promote more than one person more than one level at a time, were false and discriminatorily applied. Further, in successfully discouraging the complainant from applying for reclassification, Ford knew of the complainant's mental disability, her predisposition to avoid confrontation, and her tendency to be frightened and intimidated. (FF 2, 6.)
Ford testified that he was told in 1993 that he could not promote Burchell, Duncan, Perez and the complainant at once, but that he would be allowed only to promote one of them one grade at one time. (Ford, Tr. 487; 526; 558.) This is inconsistent with his two-grade promotion of Burchell in 1995 (FF 30) and his promotion of two people (Duncan and Perez) in 1998 to administrative clerk. (FF 24, 26.)
Ford testified he did not discourage the complainant from applying for reclassification. (Ford, Tr. 594.) Not true. The complainant repeatedly raised this issue of reclassification and Ford repeatedly told her that his hands were tied because of budget constraints. (FF 32, 36; Ford, Tr. 483.) Yet, despite budget constraints, he told Perez to apply for a reclassification (Ford, Tr. 527) and twice promoted Duncan and Burchell. (FF 24, 26, 30, 32.)
Further, the budget argument is a red herring: the issue in reclassification is whether the job's duties warrant a change in class. According to the respondent's personnel rules, "[i]n the event that a change is found warranted and funds are available in the budget, such change shall take effect immediately. Should the creation of a new class be required with an additional salary range and no funds are available in the budget, then such approval shall not be effective until the beginning of the next succeeding fiscal year." (Respondent Ex. 11, p. 3-2, E.) Thus, had Ford not discouraged the complainant from applying for reclassification, budgetary constraints may simply have delayed her successful reclassification until the next fiscal year rather than resulted in denial of an application.
Also, in 1998, in response to Perez's strong objections to Duncan's proposed promotion to administrative clerk, Ford told Perez to apply for reclassification of her position from senior account clerk to administrative clerk. (Perez, Tr. 318, 343-45, 369-70; Ford, Tr. 527.) Yet, until 2001, subsequent to the filing of this complaint, Ford had never suggested to the complainant that she apply for a reclassification of her position. (FF 37.) Rather, he had repeatedly discouraged her. (FF 32.)
Ford testified that if there had been three administrative clerk positions in 1998 he would have promoted the complainant to one of them. (Ford, Tr. 564.) However, when in 1998 the complainant proposed to request a reclassification of her position from senior clerk typist to administrative clerk, Ford told her she could only apply for a one-level increase to senior account clerk rather than her desired two-level upgrade to administrative clerk. (FF 34.) Based upon his comments, she applied to reclassify her position only to senior account clerk rather than administrative clerk. (FF 34.)
Further, Ford's comments to the complainant that the complainant could apply only for a one-level reclassification are inconsistent with practice and procedure. Ford promoted Burchell in 1995 from senior clerk typist to administrative clerk, a two-level upgrade. The comments are also inconsistent with his testimony that the complainant was already performing administrative clerk work. (Ford, Tr. 483-87, 564-65.) Also, Ford does not decide whether a reclassification application should be granted; that ultimate decision is made by the personnel and budget departments and the city manager. (FF 11.) Additionally, in May 1998, Nellie Starkes was a senior clerk typist in L & I; yet, she was qualified to make the certification list for potential promotion to administrative clerk, a two-step upgrade. (Complainant, Tr. 247; CHRO Ex. 25.)
Although a reclassification application potentially could have been completed without Ford's approval, the complainant reasonably, if erroneously, believed that Ford's approval was necessary. The belief is reasonable in light of contractual language requiring that the employee "make a written request for a review of the classification of his position through his department head to the Director of Personnel". (CHRO Ex. 5, p.5) The application for reclassification does not state that the application can be submitted in spite of the department head's disapproval. Rather, by requiring the department head to "recommend[ ] approval or disapproval of this request", the application strongly implies that a department head's disapproval will result in the application's denial. (CHRO Exs. 14, 15, 16.) The complainant's conversation with the personnel department reinforced her impression that Ford's approval was necessary for a successful application. (Complainant, Tr. 228.) These circumstances, when combined with Ford's repeated discouragement that she apply for reclassification and his failure to suggest that she try to apply for a reclassification, reasonably led the complainant to conclude that an application to reclassify her position would be futile.
1. Title VII
Back pay under Title VII for claims of discriminatory pay cannot extend prior to
the 300-day statute of limitations period. Blake-McIntosh v. Cadbury Beverages,
Inc., 1999 WL 643661 *8 (D. Conn. 1999)(citing Pollis v. New School for Social
Research, 132 F.3d 115, 118-19 (2d Cir. 1997) and Lightfoot., 110 F. 3d 907). As
the complainant filed her complaint on February 1, 2000, the complainant is not
entitled to recover back pay under Title VII for her claims arising prior to
April 7, 1999.
2. § 46a-60(a)(1)
Remedies for violations of § 46a-60(a)(1), however, are governed by §
46a-86(b). Section 46a-86(b) provides in part that "upon a finding of
discriminatory employment practice, the presiding officer may order the hiring
or reinstatement of employees, with or without back pay … provided, liability
for back pay shall not accrue from a date more than two years prior to the
filing or issuance of the complaint".
The complainant, under the facts of this case, is entitled to relief retroactive
to September 13, 1998. September 13, 1998 is the effective date of her promotion
to senior account clerk. This date is appropriate because in 1998 the
complainant proposed to Ford that she apply to reclassify her position to
administrative clerk but was unreasonably and discriminatorily discouraged by
Ford from doing so. However, had she not been discouraged, she would have
successfully applied for the two-grade reclassification and promotion, becoming
an administrative clerk on September 13, 1998 rather than a senior account
clerk.
VII. Conclusions of Law
2. The commission and the complainant did not establish by a preponderance of the evidence that the respondent discriminated against the complainant on the basis of a mental disability within 180 days of the filing of the complaint.
3. The complainant and the commission established a prima facie case that the respondent discriminated against the complainant on the basis of her race and sex, white female.
4. The respondent produced a legitimate, nondiscriminatory business reason for its failure to promote the complainant as quickly as it did its African American employees.
5. The commission and the complainant established by a preponderance of the evidence that the respondent's discrimination against the complainant constituted a pattern and practice of discrimination against an entire protected class, white females.
6. The commission and the complainant established by a preponderance of the evidence that the respondent's articulated reasons were not credible, but rather were a pretext for intentional discrimination against the complainant individually.
7. The complainant is entitled to relief effective September 13, 1998. This is when she was promoted to the reclassified position of senior account clerk. The respondent discriminatorily discouraged the complainant from applying to reclassify her position to that of administrative clerk. Absent the discrimination, the complainant would have successfully applied to reclassify her position to administrative clerk rather than senior account clerk.
2. As a result of the complainant's reclassification to administrative clerk retroactive to September 13, 1998, the complainant shall be eligible to retire after twenty years of service, pursuant to the collective bargaining agreement then in effect for the position of administrative clerk.
3. Respondent shall reimburse the complainant the differential between the contribution amount due by the complainant to the pension plan as of September 13, 1998 and the amount due by her as of August 27, 2001.
4. The complainant shall pay to the respondent the differential between the amount she actually paid into the pension plan and the amount she would have paid had she been promoted to administrative assistant on September 13, 1998.
5. The complainant is awarded back pay from September 13, 1998 to date in the amount of the differential between what she would have been paid had she been promoted to administrative clerk on September 13, 1998 less the amount of wages she has received from the respondent. The complainant is awarded prejudgment and postjudgment interest on the award of back pay in the amount of 10% per annum, compounded annually, from September 13, 1998 to date of payment.
6. The respondent shall cease and desist from engaging in any further discriminatory conduct, pursuant to General Statutues § 46a-60.
7. The respondent shall not retaliate against the complaint and/or her witnesses, pursuant to § 46a-60a(4).
8. Pursuant to §§ 46a-54(13), 46a-54(14) and 46a-97, the respondent shall post, at each facility in conspicuous locations visible to all employees and applicants for employment, commission posters regarding non-discrimination.
__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
c:
Ms. Mary Haley
Atty. Judith Meyer
Ms. Patricia Washington
Atty. Ivan Ramos
Atty. C. Joan Parker