Dwyer v. Yale University - Memorandum of Decision

CASE NO. 0130315; 0230323

EEOC NO. 16aa200644

Commission on Human Rights and Opportunities ex rel. : 
Erin Dwyer, Complainant

v.

Yale University, Respondent

November 29, 2005

MEMORANDUM OF DECISION

Preliminary Statement

The Complainant, Erin Dwyer (hereinafter "Complainant" using the feminine pronoun) appeared pro se; however, Attorney John Williams assisted the Complainant with her post hearing briefs. C. Joan Parker, Assistant Commission Counsel II, appeared on behalf of the Commission on Human Rights and Opportunities (hereinafter "Commission" or "CHRO"). Attorney Patrick Noonan appeared on behalf of Yale University (hereinafter "Respondent"). The issues addressed in this decision are: 1) whether the Respondent discriminated and retaliated against the Complainant when it allegedly failed to respond to her reports of workplace harassment that created a hostile work environment; 2) whether the Respondent discriminated and retaliated against the Complainant by allegedly treating her differently when it failed to promote her, demoted her, aided and abetted against her, suspended and terminated her; 3) whether the Respondent failed to provide a reasonable accommodation; and 4) if so, whether the Complainant is entitled to any damages or other relief.

For the reasons set forth below, it is herein determined that the Complainant has proven that the Respondent is liable for creating a hostile work environment by failing to remedy the harassment under state law which occurred at Ezra Stiles and Morse Dining Hall ("ESM") in 2001. Judgment is entered in favor of the Complainant and the appropriate relief is ordered as set forth herein.

However, the Complainant's other claims for discrimination and retaliation for the suspension/termination, failure to promote, demotion, failure to provide a reasonable accommodation and aiding and abetting are hereby dismissed for the reasons set forth herein.

Parties

The Complainant resides at 44 Stratton Way, Branford, CT 06405. The Commission is located at 21 Grand St., 4th Floor, Hartford, CT 06106. The Respondent is located at 155 Whitney Avenue, New Haven, CT 06511.

Procedural History

On January 17, 2001, the Complainant filed her first complaint, CHRO No. 0130315, with the Commission alleging that the Respondent denied her a promotion on or about December 2000 and harassed her because of her transgender status in violation of General Statutes § 46a-81 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e and the Civil Rights Act of 1991.

The Complainant amended her first complaint on May 11, 2001 to add a claim that the Respondent discriminated against her because of her sexual orientation or its perception that she was homosexual. The Complainant again amended her first complaint on September 6, 2001 to add more particular allegations and references to General Statutes §§ 46a-60(a)(4), 46a-60(a)(5) and 46a-81c. The Complainant amended her complaint a third time on December 6, 2001 to add again more particular allegations, General Statutes § 46a-60(a)(1) and mental disorder (Gender Dysphoria).

The Commission investigated the allegations of the first complaint, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the first complaint was certified to public hearing on May 7, 2003, in accordance with General Statutes § 46a-84(a). On May 13, 2003, the Office of Public Hearings sent to all parties of record the Original Notice of Public Hearing along with the complaint and its amendments. The Respondent filed an answer to the first complaint on May 30, 2003.

The Complainant filed her second complaint, CHRO No. 0230323, on January 23, 2002. She alleged that the Respondent demoted her (failed probationary period), harassed her on or about September 2001 and thereafter, failed her on her probationary period on or about October 30, 1999, poorly evaluated her on or about September and October 2001 (failed probationary period), retaliated against her on or about October 30, 2001, aided and abetted discrimination against her on or about August 2001 and thereafter, and placed her on probation on or about September 2001 because of her sex (female/transgender), mental disorder (Gender Dysphoria) and having previously opposed discriminatory conduct, all in violation of General Statutes §§ 46a-58(a), 46a-60(a)(1), 46a-60(a)(4), 46a-60(a)(5), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e and the Civil Rights Act of 1991. On January 31, 2003 the Complainant amended her second complaint to add more particulars and the allegations of suspension, termination and violation of the American with Disabilities Act, 42 U.S.C. 12101 et seq.

The Commission investigated the allegations of the second complaint affidavit, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the second complaint was certified to public hearing on September 5, 2003, in accordance with General Statutes § 46a-84(a). On September 16, 2003, the Office of Public Hearings sent to all parties of record the Original Notice of Public Hearing along with the complaint affidavit and its amendments.

On October 9, 2003, the Presiding Referee ordered that the two complaints be consolidated for the purpose of one public hearing. The Respondent filed an answer to the second complaint, as amended, on October 10, 2003. The Public Hearing (hereinafter "Hearing") on the above-captioned matter was held on July 20-23, 2004, August 17, 18, 23-27, 2004, November 29-30, 2004, December 1-3, 6, 2004, January 31, 2005 and February 1, 2, 4, 2005. All statutory and procedural prerequisites to the Hearing were satisfied and this complaint is properly before the undersigned Human Rights Referee for decision.

References made to the first set of transcript pages are designated as "Tr." with the accompanying page numbers to follow. Christina Kane's testimony is the only testimony in the second set of transcripts and is designated as "Kane Tr." with the accompanying page numbers to follow beginning again with page 1. References made to the testimony of Michael Sequeo¹ at the investigator's factfinding conference are designated as "FC Tr." with the accompanying page numbers to follow beginning again with page 1. References to the exhibits are designated as either "R. Ex." for the Respondent or "CHRO Ex." for the Commission with the accompanying exhibit numbers to follow. References made to the findings of fact are designated as "FF" followed by the accompanying numbers.

Findings of Fact

Hostile Work Environment

Branford Saybrook ("BS") Dining Hall, 1995 and Trumbull Dining Hall, 1996

BS Dining Hall, 1999

Berkeley Dining Hall, 2000

ESM Dining Hall, 2000

ESM Dining Hall, Fall 2001

School of Management ("SOM") Dining Hall, April 2002

BS Dining Hall, 2002

Reasonable Accommodation

Disparate Treatment

Retaliation and Disparate Treatment of Third Cook Trial Periods at ESM Dining Hall, 2001 and BS Dining Hall, 2002

Suspension and Termination 2002

Damages

Introduction

The Respondent has been charged with violating General Statutes §§ 46a-81(c), 46a-60(a)(1), (a)(4) and (a)(5), Title VII of the Civil Rights Act of 1964 as amended and the Americans with Disabilities Act ("ADA"), when it allegedly discriminated against the Complainant by 1) failing to respond to her continued reports of workplace harassment by both co-workers and management; 2) by treating her dissimilarly to other employees in trial periods; and 3) by suspending and ultimately terminating her because she is a transgendered woman with a mental disability who was, or was perceived to be homosexual, and in retaliation for participating in the University's grievance process and filing a CHRO complaint. Neither, the Commission nor the Complainant, by the adoption of the Commission's brief, is pursuing the Complainant's federal disability claim. See CHRO Brief, p. 2; Complainant Brief, p. 1.

It is well established that Connecticut's anti-discrimination statutes are coextensive with the federal law on many of these issues and therefore, this case will be analyzed using both the prevailing Connecticut and federal law. See Pik- Kwik Stores, Inc. v. Commission on Human Rights and Opportunities, 170 Conn. 327, 331 (1976). The state courts look to federal fair employment case law when interpreting Connecticut's anti-discrimination statutes, but federal law should be used as a guide and not the end for interpreting the statutes. Therefore, we are not bound by the federal interpretation of Title VII provisions. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53 (1982); see also State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989).

Disparate Treatment

The Complainant claims that she was treated differently than other employees when she was denied six promotions, was retaliated against, suspended and terminated. Under the Connecticut Fair Employment Practices Act ("CFEPA"), General Statutes §§ 46a-51 et seq., in order for the Complainant to establish a prima facie case of discrimination based on sex or sexual orientation (actual or perceived), she must prove 1) she belongs to a protected class; 2) she applied and was qualified for the position; 3) she suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and further refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); Ann Howard's Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 225 (1996).

If the Complainant proves a prima facie case of discrimination based on disparate treatment, the burden shifts to the Respondent to produce a legitimate business reason for its actions. If that burden of production is satisfied, the burden of proof then shifts back to the Complainant to prove that the Respondent's proffered reason is pretextual or false. See Ann Howard's Apricots Restaurant, Inc. v. CHRO, supra, 237 Conn. 225; Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 203 (1991). It has been established by the Second Circuit that the Complainant's initial burden to prove a prima facie case is de minimis. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

The analysis is slightly different for cases alleging disability discrimination. In order to establish a prima facie case of a discriminatory adverse employment action based on a disability, under CFEPA, the Complainant must prove that: (1) the employer is subject to CFEPA; (2) she suffers from a disability within the meaning of the statute; (3) she could perform the essential functions of her job with or without a reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. See Miko v. Commission, supra, 220 Conn. 203 (1991); Ann Howard's Apricots Restaurant, Inc. v. CHRO, supra, 237 Conn. 225 (1996). Once the Complainant proves a prima facie case of discrimination based on disability, the same burden shifting analysis mentioned in the previous paragraph above applies.

To establish the first element of a prima facie case, the Complainant must prove she belongs to a protected class. The Complainant has alleged she belongs to the protected classes of sex, sexual orientation (actual and perceived), mental disability and having previously opposed discriminatory conduct. General Statutes § 46a-58(a) states in pertinent part: "It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of …color, race, sex … or physical disability."

Also, as set forth in General Statutes § 46a-60(a)(1), "It shall be a discriminatory practice in violation of this section: (1) For 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 such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, . . . sex, . . . present or past history of mental disability, . . .." The following is an analysis of each of the protected classes claimed by the Complainant.

Whether the Complainant belongs to a protected class because she suffers from a "mental disability."

Under CFEPA

Under CFEPA, an individual is considered mentally disabled if she "has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of '[DSM-IV].'" General Statutes § 46a-51(20). The Complainant alleged in her complaint affidavit that she suffered from Gender Dysphoria. Complaint No. 0130315, par. 3; Complaint No. 0230323, par. 4. The Respondent denied that the Complainant was disabled and argued the same in its brief. Answer to Complaint No. 0230323, par. 4 and R. Brief, p. 2.

The Complainant made the Respondent aware that she had changed her name from Neil Eckels to Erin Dwyer and that she was transitioning her sex from male to female. FF 1, 2. She presented to the human resources department her motor vehicle license, which indicated she was a female. FF 2. Although the Respondent denied the Complainant suffered from Gender Dysphoria, it was shown from the Respondent's witness, Director of Labor Relations, Santo Gallitioto, that the Respondent was aware that the Complainant was transgendered suffering from Gender Identity Disorder as listed in the DSM-IV. FF 4. See DSM-IV, Codes 302.85 and 302.6.

The Respondent's witness, Santo Gallitioto, wrote notes dated December 6, 2000 of a conversation he had with the Commission Counsel, C. Joan Parker, regarding the Complainant's situation. R. Ex. 22. Although the Commission stated that "Gender Dysphoria" is listed in the DSM-IV instead of "Gender Identity Disorder," both Gallitioto and Commission Counsel discussed the terms interchangeably in regard to the Complainant. R. Ex. 22.

Gallitioto stated in his notes that "Joan [Parker] will send me the standards of care for 'GID'." He testified that GID is an acronym for Gender Identity Disorder. Tr. 4162. He stated in his notes that he was referred to the Gender Dysphoria Association, the standards of care for Gender Indentity Disorders. R. Ex. 22. In his notes, Gallitioto inquired whether a private restroom would suffice as a "reasonable accommodation." R. Ex. 22. Ironically, this information provided in Gallitioto's notes worked against the Respondent's defense that the Complainant was not disabled or that she did not prove she was disabled.

Gallitioto testified that he received information regarding the Complainant's condition of Gender Identity Disorder. Tr. 4164, 4222-23. He testified that licensed practitioners were present at a meeting to discuss the Complainant's situation but he did not know whether their specialty was GID. Tr. 4164, 4222-23. He testified that he called "medical professionals that were familiar with GID and asked them about a plan." Tr. 4222-23. Evidently, the Respondent was familiarizing itself with the Complainant's situation, which was Gender Identity Disorder, a mental disability. FF 4.

To substantiate this further, Katherine Matzkin, Director of Placement and Staff Relations, testified that she met with the Complainant, who wanted her employment records changed to reflect that she had changed her name and sex. Tr. 3193-94; FF 47. She testified that the Complainant told her that she had a court order to allow her name change and that the motor vehicle department issued a driver's license stating she was a female. Tr. 3194. She testified that the Complainant told her that "she had been working with her physician and was going for a sex change in the future, that part of the process is to reach a certain hormonal level and then transgender to a female identity and remain in that identity for approximately one year before surgery." Tr. 3194.

Matzkin corroborated Gallitioto's testimony by testifying that she organized a meeting with a psychiatrist and other professionals to assist the employees and the Complainant at the workplace regarding the Complainant's transition. Tr. 3196. She testified that Gallitioto organized with the CHRO to locate a bathroom for the Complainant's use. Tr. 3196-97. The Respondent sought to provide the Complainant with a private restroom and gave her the day off with pay in order to prepare other employees for the Complainant's return to work. FF 48.

The Respondent cannot have it both ways by arguing it does not believe the Complainant possessed a disability but then arguing that it tried to provide her with reasonable accommodations upon her return to work after her sex change, and in fact did so, and that it sought and received the standards of care for Gender Identity Disorders. FF 48; R. Ex. 22.

I find that the Complainant suffers from the mental disability of Gender Identity Disorder pursuant to DSM-IV, and therefore, under state law, she belongs in a protected class due to her mental disability. FF 4.

Whether the Complainant belongs to a protected class because of her "sex."

Under Both CFEPA and Title VII

Sex discrimination is prohibited. See General Statutes § 46a-60(a)(1). In addition, General Statutes §46a-51(17) reads: "'Discrimination on the basis of sex' includes but is not limited to discrimination related to pregnancy, child-bearing capacity, sterilization, fertility or related medical conditions."

Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "it shall be an unlawful employment practice for an employer . . . to 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).

The Respondent argued that the Complainant is not protected under Title VII or General Statutes § 46a-60(a)(1) as a transgendered or transsexual individual. R. Brief, p. 1. I disagree.

In Price Waterhouse, "[t]he Supreme Court made clear that in the context of Title VII, discrimination because of sex includes gender discrimination: In the context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. The Court emphasized that we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group." Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004). (Internal quotation marks omitted; citations omitted.) See also Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) ("stating that Title VII encompasses instances in which the perpetrator's actions stem from the fact that he believed that the victim was a man who failed to act like one and that sex under Title VII encompasses both the anatomical differences between men and women and gender.") (Internal quotation marks omitted.) Smith v. City of Salem, supra, 378 F.3d 573.

"Sex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity." Smith v. City of Salem, supra, 378 F.3d 575 (holding that the plaintiff, a biological male by birth and transsexual diagnosed with GID, who did not conform to sex stereotypes when he expressed less masculine and more feminine mannerisms and appearance, stated a claim for relief pursuant to Title VII's prohibition of sex discrimination.) Similar to the plaintiff in Smith, the Complainant belongs to the protected class of sex under both CFEPA and Title VII, because she was born biologically a male and is now a transsexual female. Tr. 397-99; FF 1, 2. Also, pursuant to Price Waterhouse and Smith, the Complainant belongs to the protected class of sex, because she alleged harassment by her co-workers that included comments about her feminine characteristics and appearance and lack of masculinity. This is discussed further infra, pgs. 55 and 62.

Whether the Complainant belongs to a protected class because of her "sexual orientation" or "perceived sexual orientation."

Under CFEPA

Section 46a-81a provides in pertinent part: "'sexual orientation means having a preference for heterosexuality, homosexuality or bisexuality, having a history of such preference or being identified with such preference . . .."

Also, section 46a-81c provides in pertinent part: "It shall be a discriminatory practice in violation of this section: (1) For an employer . . . to bar or to discharge from employment any individual or to discriminate against [her] in compensation or in terms, conditions or privileges of employment because of the individual's sexual orientation . . .."

The Complainant belongs to the protected class of sexual orientation by virtue of being a homosexual. FF 3. She testified that she was a homosexual when her name was Neil Eckels and that it was known by Respondent that she was a homosexual. She also belongs to the class of being perceived as a homosexual. The Complainant was called a faggot. FF 17, 18, 37. The Respondent did not deny the Complainant's claim that her protected class basis was sexual orientation. See Answer to Complaint No. 0230323, par. 4. Therefore, the Complainant belongs to the protected class of sexual orientation or perceived sexual orientation.

Under Title VII

Title VII does not prohibit discrimination on the basis of actual or perceived sexual orientation.

Whether the Complainant belongs to a protected class for "having previously opposed discriminatory conduct."

Under CFEPA and Title VII

General Statutes § 46a-60a(4) states in pertinent part, it is a discriminatory practice " For any person, employer, . . . to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint . . .."

Title VII provides that it "shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this subchapter." 42 U.S.C. § 2000e-3(a).
The Complainant filed a CHRO complaint on January 17, 2001 and filed a grievance some time near the end of 2001 or early 2002 opposing discriminatory conduct and therefore belongs in the protected class of having previously opposed discriminatory conduct. Complaint; CHRO Ex. 92.

The Complainant testified that she was denied six promotions: 1) the gardener position in 1995; 2) the cook's helper position at Trumbull Dining Hall in 1996; 3) the cook's helper position at Berkeley Dining Hall in 2000; 4) the third cook position at ESM Dining Hall in 2001; 5) the head GSA position at SOM in 2002; and 6) the third cook position at BS Dining Hall in 2002. Tr. 605. The gardener position and the two cook's helper positions at Trumbull and ESM Dining Halls will not be analyzed under the disparate treatment analysis because they are beyond the 180-day statute of limitations. Neither the Complainant nor the Commission argued in their briefs that legal authority exists that would allow for the inclusion of alleged acts of disparate treatment that are beyond the 180-day statute of limitations. However, those claims for denied promotions that are beyond the 180-day statute of limitations may still be considered as part of an alleged ongoing hostile work environment (see National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) and may also support an inference of discrimination for the fourth element of a prima facie case for disparate treatment. See Id. at 113.

Much of the Complainant's testimony was inconsistent, evasive and non-responsive. Her answers lacked definiteness and caused me to find her not credible regarding certain material issues. In addition, she provided witnesses who undermined her case.

The Complainant's testimony was extremely inconsistent regarding the claim that the tests and trial periods that she participated in for the third cook positions were discriminatory. On redirect examination of herself in regard to five of the cook's tests, she testified "[t]hat what I'm claiming is the discrimination was in the denial of the cook's helper jobs. That [sic] what caused the discrimination that I would have been much more better prepared if I had had the experience as cook's helper, which I could have had twice when I took all seven of these tests." Tr. 1372-73. In response to my question, "So you're saying that the discrimination was not in how you were evaluated on these tests, but that you did not receive the position of cook's helper?" the Complainant testified, "Right . . . The discrimination was in that I was denied the opportunity to be a cook's helper twice, in '96 and 2000." Tr. 1373. Again, in response to my questioning of her, she attempted to clarify her position by testifying that she was not claiming five of the seven tests for third cook were discriminatory, but the tests in December 2000 and May 2001 (CHRO Ex. 63 and 70 respectively) were discriminatory. Tr.1372-75, 1378.

However, the May 2001 test that she claimed was discriminatory resulted in her receiving a trial period for third cook. Tr. 1406. Again she testified that the discrimination was in her not receiving the cook's helper jobs and that she made a mistake testifying and wanted to correct her testimony that on a certain test there was no discrimination. Tr. 1354, 1381. Also, although she received the trial period she still believed that she was being treated differently; however she testified that she did not ask anyone to resolve it further. Tr. 1409.

Among her inconsistencies was her testimony that she does not believe any of the failed tests and trial periods dealing with the positions other than cook's helper positions were discriminatory. Tr. 1491-92. She testified what she believes was discriminatory was that she did not receive either of the cook's helper positions. TR. 1491-92, 1496-97. In addition, on recross examination, she confirmed her redirect testimony and went a step further to testify in the affirmative that she thought it was "the result of not having that cook's helper position that caused [her] to fail the cook's test and the cook's trial periods." Tr. 1496-97. She testified by implying all the tests and trial periods for third cook, not just the first five tests, were not discriminatory. Tr. 1496-97. The Complainant believed that had she obtained a cook's helper position, she would have been able to pass the third cook tests and trial periods. FF 54.

This testimony completely defeats the purpose of analyzing the Complainant's claims that she was denied two third cook promotions because of discrimination. Based on this testimony and the many inconsistencies in the Complainant's testimony as a whole, I do not find that the Complainant claimed that any tests or trial periods pertaining to any of the third cook positions were discriminatory. FF 54.

Failed trial period for Head GSA position at SOM in April 2002

As previously discussed, the Complainant belongs to the protected classes of sex, sexual orientation, perceived sexual orientation, mental disability and having previously opposed discriminatory conduct under state law, and sex and having previously opposed discriminatory conduct under federal law. In April 2002, the Complainant bid on a head GSA position at SOM and proceeded to the trial period under Sullivan's supervision. FF 51. By virtue of proceeding to the trial period, the Complainant established that she was qualified for the position. On May 13, 2002, she was discharged from the position when she failed the trial period and she established it occurred under an inference of discrimination by her allegations that she wore feminine items and that derogatory comments were made about her. Tr. 623-24, 1299-300.

As additional support for the inference of discrimination, Sullivan was aware of the transgender issue. Tr. 3504. He testified that the Complainant did wear skirts at times and a hair restraint. Tr. 3510. The Complainant testified that during an argument between her and Sullivan, Sullivan told her that they should go outside and settle this man to man. Tr. 1299-300. Sullivan testified that he did not make that statement. Tr. 3483. The Complainant has demonstrated a prima facie case of discrimination.

As its legitimate business reason, the Respondent produced evidence that it failed the Complainant on her trial period because her performance was inadequate. Therefore, it is important to review the duties of this position. The essential duties of the head GSA position are the following:

Sullivan further testified that the duties of the head GSA were:

The Respondent argued in its brief and Sullivan testified that the Complainant's performance was unsatisfactory in that 1) she displayed no knowledge of food safety, 2) she failed to store food properly, 3) she failed to clean after her use of materials, 4) she smoked while carrying in food, 5) she failed to clean the loading docks, 6) she threw away table skirts instead of folding and storing them, 7) she was not able to multi-task, which prevented her from completing tasks effectively, 8) she did not complete inventory and order forms in a timely manner, 9) she failed to deliver and pick up food timely and 10) she reacted in a loud and strong manner to constructive criticism. See R. Brief, p.35; CHRO Ex. 87; Tr. 3463-3502.

In further support of this, Sullivan further testified that 1) the Complainant had sanitation issues, 2) she did not complete jobs, 3) the quality of her work was incomplete and inconsistent, 4) she needed help with daily tasks, and 5) her general knowledge of the position was unsatisfactory. Tr. 3463-3502; CHRO Ex. 87. Sullivan testified the Complainant performed the daily functions slowly by SOM standards. Tr. 3491-92. Also, Sullivan testified that the Complainant become threatening when told to do catered events. Tr. 3494-95.

He testified that a head GSA, Donna, trained the Complainant. Tr. 3506. Sullivan testified that he has failed four people and most file grievances. Tr. 3511. He did not testify whether those four belonged to any of the Complainant's protected classes; however, that was not contested.

Sullivan provided a detailed itemized account of the Complainant's daily performance as part of her evaluation. CHRO Ex. 87. Satisfactory performance is performing the job at a level which meets the legitimate expectations of the employer. Cole v. Millard, 116 F. 3d 465 (2d Cir. 1997). The Complainant must show that she was satisfactorily performing the job at the time she failed the trial period in order to prove that she was "qualified for the position." Cole v. Millard, supra, 116 F.3d 465; Thornley v. Penton 104 F.3d 26, 29 (2nd Cir. 1997).

The Complainant presented evidence to rebut the Respondent's proffered reasons. She testified that when she received her performance evaluation, the four pages of notes with itemized dates regarding the alleged poor performance were not attached. CHRO Ex. 87. She testified that she saw those items for the first time after she filed a complaint in 2003. Tr. 1289. However, she testified that Sullivan did in fact bring these performance issues to her attention at various times when they occurred, but he did not have the list of problems with him when they met to talk during those times. Tr. 1296. Therefore, there is no dispute that the performance issues occurred, but the Complainant believes they were mischaracterized. Tr. 1296.

The Complainant testified that the duties of a head GSA were to unload the food and beverages from the tractor-trailer trucks; stock refrigerators for beverages; deliver catering supplies; do setups for catering; get things from the store room; and do inventory and ordering for the dining room. Tr. 609, 1125-26. She testified that this head GSA job was "a totally different job than what a Head GSA would do everywhere else. It was much more complicated, had a lot more different and varied work to it that you wouldn't do as Head GSA's [sic] anywhere else." Tr. 1125-26. To emphasize, she testified, "[t]his job was harder and more complicated than other Head GSA jobs that you could have gotten." Tr. 609.

In response to each of the performance problems that Sullivan noted on her performance evaluation (CHRO Ex. 87) and as summarized below, the Complainant stated as follows:

Ultimately, the Complainant's testimony did not rebut the Respondent's reasons that her performance was not satisfactory, but instead corroborated it. She testified that almost all of the problems were mischaracterizations and the situations were being misconstrued. Tr. 1296. Instead of rebutting the Respondent's proffered business reasons, she substantiated them by testifying the job was "more complicated." Tr. 1126. I find that the Complainant often claimed that duties were not her job to do when, in fact, pursuant to the list of job duties for the position, and the Complainant's and Sullivan's understanding of the duties, they were. It appeared she claimed that certain duties were not her duties because in other dining halls, the head GSA had fewer duties. Unfortunately, she did not accept the fact that she was not in "other dining halls." She testified that Sullivan said she was not "fit for the job" and believed this to be derogatory. Tr. 1320. She testified that at the time she took the job she was a labor grade 3 working twenty-four hours and the position was a labor grade 6 working forty hours, so she took the job because she needed the money. Tr. 1314-15. The Complainant's reason for taking the job may have contributed to her lack of ability to do the job.

There were many witnesses who corroborated Sullivan's performance evaluation of the Complainant; although they worked with the Complainant at other times and other facilities, they observed similar behavior. Angela Ben-Elohim testified that while she worked with the Complainant, she would see that the Complainant was not washing her hands after cigarette breaks. Tr. 2991. Ben-Elohim testified that the Complainant was not able to do more than one thing at a time. Tr. 2992. James Moule, the manager at Davenport, also substantiated Sullivan's reasons. He testified that the Complainant had work ethic issues. Under his supervision, he witnessed the Complainant taking frequent breaks, that her organization was lacking, and that food was left out and uncovered. Tr. 3523-24. Also, Theresa Joanne Little testified that comments about the Complainant were made because of the Complainant's lack of work ethic. Tr. 2417-18. She testified that everyone observed the Complainant taking long breaks, smoking, not washing hands, and not using gloves to mix salads among other things. Tr. 2423-34.

William Hinners (a first cook at Davenport) also testified that he observed the food the Complainant prepared and that it was "sloppy" and there were issues with sanitation. Tr. 2484, 2491-93. Although the Complainant presented a few witnesses, (Dolores Padilla, Joan Rynne and Michael Sequeo) who were co-workers, representing that she performed well or they were satisfied and did not have any problems with the Complainant's work, there was overwhelming testimony to the contrary. Tr. 2348, 2455-56; FC Tr. 54-6.

The Complainant has not successfully proven that the Respondent's proffered reasons are pretextual or false. Instead of unequivocally denying the problems and providing corroboration for her position, she provided excuses for why duties were not completed or completed timely, and stated that the job was more complicated than other head GSA jobs, that she was still learning and that she believed certain duties were not part of her job. Essentially, she was not able to perform the job to the Respondent's satisfaction. FF 53. See Cole v. Millard, supra, 116 F.3d 465. I find that the Respondent's proffered reasons are credible and that failing the Complainant on her trial period was not based on discrimination because of her protected classes.

In addition, I do not find that Sullivan made the statement that he and the Complainant go outside and "settle it man to man", or that the alleged statement, not being "fit for the job," if said, was derogatory. Therefore, this adverse action was analyzed under the McDonnell Douglas/Burdine model for disparate treatment and not the direct evidence/mixed-motive standard for state or federal law.

Suspension/Termination Issue

The suspension/termination issue will be analyzed under the McDonnell Douglas framework. The Complainant belongs to the protected classes of sex, sexual orientation, perceived sexual orientation, mental disability and having previously opposed discriminatory conduct as discussed earlier. It is undisputed that the Complainant was employed with the Respondent and assigned to work at BS until further notice, and therefore was still qualified to work. FF 55. The Complainant was suspended without pay on December 2, 2002 and ultimately terminated on December 20, 2002 under circumstances that gave rise to an inference of discrimination (it was well known she was transgendered and had been called a faggot). FF 1, 2, 17, 18, 37, 60. The Complainant established a prima facie case of discrimination for the suspension and termination.

The Respondent contended that it suspended and terminated the Complainant for threatening violence in the workplace and carrying weapons in the workplace. R. Brief, p. 2-6. The Respondent's workplace violence policy states: "All reports of violence, threats, harassment, intimidation and other disruptive behavior will be taken seriously and will be dealt with appropriately. Individuals who commit such acts may be removed from the premises and may be subject to disciplinary action, criminal penalties, or both." R. Ex. 38. Matzkin testified that it is a violation of the workplace violence policy "if an employee brandishes mace and a box cutter . . . if she feels threatened, she intends to spray them until they go down and slice their throats." Tr. 3307.

In making its decision, the Respondent considered the three incidents where the Complainant showed the boxcutter and mace to employees after being told that she should not have those items. FF 56-58. In addition, it heavily considered the investigation done by the Human Resources Director for Dining Services, Blanche Temple, and the fact that the Complainant had a prior incident with a push cart and an employee, among other things in her work history. FF 59, 61; Tr. 1435; CHRO Ex.101. The Complainant met with Tavella on November 25, 2002 at such time she showed the knife and mace to Tavella in her office at which time Tavella told her that she should not have those items, and that Tavella would have to report it. FF 56. The Complainant told Tavella that she had those items because she was told to be "armed." FF 56.

Next, on November 26, 2002, an incident occurred where the Complainant showed the boxcutter and mace to two custodians, Marrow and Viera. FF 57. Paul Catalano, the custodians' supervisor testified that the custodians told him that the Complainant stated to them that if she had any problems with anyone, she would spray them and cut them. Tr. 3450. However, Riccio testified that when she met with Temple and the custodians, the custodians denied that the Complainant made those statements. Tr. 2588. She testified that Temple did not believe the custodians. Tr. 2588. The union's lawyer, Michael Boyle, the manager of BS, Pascale, and Pascale's assistant, Christina Kane, all corroborated Catalano's testimony by testifying that the custodians also told them what the Complainant said about the use of her mace and boxcutter. FF 57. Pascale testified that this incident with the custodians occurred on November 26, 2002. Tr. 3871-72. The Complainant testified that it was on Tuesday, November 26, 2002 when she met with the custodians, but she did not remember telling them that she would "spray anyone and cut them." Tr. 4275-76. The Complainant testified that on November 26, 2002 Ben- Elohim asked her to leave the items at home. Tr. 4275. The Complainant testified that she never brought them to work again.

On the contrary, Ben-Elohim testified that on November 27, 2002, the Complainant took the mace and boxcutter out of her purse and showed them to Ben-Elohim and she reported this to Pascale the manager. FF 58. The Complainant told Ben-Elohim that she had them to protect herself. FF. 58. I find Ben-Elohim credible.

On December 2, 2002, the Complainant was suspended without pay in order for Temple to complete a full investigation into whether the Complainant possessed weapons and made threats in the workplace. FF 59, 60. There is much testimony about the sequence of events and whether the Complainant was told twice not to have the mace and boxcutter but showed them to an employee anyway after being told that. I do not find the sequence of events to be of grave importance. What is important is 1) the Complainant was told at least once that she should not have these weapons; 2) on two other subsequent occasions the Complainant showed these weapons to employees; 3) the existence of a workplace violence policy; and 4) a full investigation was conducted which considered the Complainant's prior conduct. FF 56, 61. The Respondent took all those facts into consideration and terminated the Complainant. FF 61. The Complainant filed a grievance; her grievance was heard at arbitration and the termination was upheld. R.Ex. 33.

The Respondent's witnesses testified about many other employees who had been disciplined for workplace violence. Tr. 3068-71, 3129-32, 3216-18. The Commission argued that these employees participated in conduct more serious or violent than the Complainant and were not disciplined as harshly. CHRO Brief, p. 36. The Commission argued that in particular, Carmen Baez made a verbal threat to an employee without a weapon and was ultimately suspended. CHRO Brief, p. 36; Tr. 3067-68, 3225. The Commission distinguished the fact that Baez made a direct threat to a particular person and the Complainant did not, but the Complainant was terminated. This is misleading. Essentially, Carmen Baez was terminated by the Respondent. Tr. 3067, 3225. However, she filed a grievance that was taken to arbitration. Tr. 3067-68. As a result of the arbitration, Baez's termination was changed to a suspension. Tr. 3067-68. It is important to note that the Respondent did treat Baez the same as the Complainant, but her ultimate discipline, a suspension, was a result of impartial arbitration. FF 62-63.

The Commission also argued that the Respondent did not punish other similarly situated employees as harshly as it punished the Complainant. CHRO Brief, p. 34. It argued that although the three incidents occurred wherein the Complainant showed weapons to employees, none of the employees "felt threatened." CHRO Brief, p. 35. It argued that in all of the other employee violence situations testified to, the threat was direct and specific, as opposed to a general statement like the Complainant's, and that those employees were not treated as harshly as the Complainant. CHRO Brief, p. 35. However, this is inaccurate.

Matzkin testified that an employee in the medical school, a post doctorate employee and an employee in the athletic department were all terminated for workplace violence and remained terminated. Tr. 3216-20. Some of these employees did not make "direct threats." Raymond Pol placed a leatherman (work tool) to his own throat in front of employees and said, "if anybody messes with me," and then gestured across his neck; he was terminated. Tr. 3216, 4180. Matzkin testified that an athletic department employee said, "I feel like taking an Uzi and blowing away the management that gets . . .". He did not have a weapon with him in the workplace and the threat was a general statement, but he was terminated. Tr. 3218. Matzkin testified that the postdoctoral fellow said to a fellow employee, "if you want to be safe, you need to be away from New Haven on Friday. I'm going to bring Yale and the Medical School down." He did not have a weapon and the threat was a general statement, but he was terminated. Tr. 3219. The Complainant and the Commission have not rebutted the evidence presented by the Respondent that it terminated employees who committed threats of violence even when the threats were not necessarily directed at particular individuals. Matzkin testified that these employees filed lawsuits and grievances, lost their claims and remained terminated. Tr. 3239-40.

Neither the Complainant nor the Commission presented evidence to show that the terminated employees who made threats without weapons, whether directed at an individual or not, belonged to her protected classes. Therefore, I find there were incidents of threats of violence that either did not involve a weapon or were not directed at a particular person and the employees were terminated similarly to the Complainant. FF 62.

There were situations where the employees' terminations were altered to less serious disciplinary actions because of the circumstances that followed, e.g., a grievance filed, arbitration or settlement. Tr. 3069-70. Here, the Complainant's termination case went to arbitration and the arbitrator upheld the termination. R. Ex 33. As stated earlier, the Respondent has no control over the arbitrator. FF 63.

The Complainant has not proven that the Respondent's proffered reasons were pretextual or false. Therefore, the Complainant has not proven that the suspension and termination were discriminatory. I find the Respondent is not liable for discrimination here and the Complainant's claims for the suspension and termination are dismissed.

Retaliation

The Commission contended that the Respondent unlawfully retaliated against the Complainant when it failed her on her trial period for third cook at ESM on September 3, 2001 because of her participation in the grievance process and filing of a CHRO complaint. CHRO Brief, p. 29.

To establish a prima facie case of retaliation, the Complainant must first prove that 1) she was engaged in protected activity; 2) the employer was aware of that the Complainant engaged in the protected activity; 3) she suffered an adverse employment action by the Respondent; and 4) there is a link or causal connection between the protected activity and the adverse employment action. Richardson v. New York State Department of Correctional Service, 180 F.3d 426, 443 (2d Cir. 1999). "We evaluate [retaliation] claims under the burden shifting rules established by the Supreme Court in McDonnell Douglas, supra 411 U.S. 792 ." Richardson v. New York State Department of Correctional Service, supra, 180 F.3d 443. Once a complainant demonstrates a prima facie case of retaliation, the respondent has the burden to produce evidence that there was a legitimate, non-retaliatory reason for the complained of action. Once the respondent satisfies that burden, the burden shifts to the complainant to prove that the respondent's proffered reason is merely a pretext for impermissible retaliation. Id.

Here, it has already been established that the Complainant did not claim that her tests or trial periods for third cook were discriminatory, but that she failed those tests and trial periods because she had not obtained the position of cook's helper. FF 54. Because it has been found based on the Complainant's inconsistent testimony that none of the tests or trial periods for third cook were discriminatory, I find they are also not retaliatory. Neither the Commission nor the Complainant argued that any other acts were retaliatory based on the Complainant's protected activities of participating in the grievance procedures and filing CHRO complaints.

Hostile Work Environment Claim

Connecticut General Statutes § 46a-60(a)(8) provides, "It shall be a discriminatory practice in violation of this section: (8) For an employer, . . . , to harass any employee, person seeking employment or member on the basis of sex. 'Sexual harassment' shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment."

"In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60. E.g., State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). 'Although the language of [Title VII of the Civil Rights Act of 1964, § 703 (a) (1); 42 U.S.C. § 2000e-2 (a)] n29 and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 . . . which extended the provisions of the Fair Employment Practices Act . . . to prohibit discrimination on the basis of sex . . . was to make the Connecticut statute coextensive with the federal [statute].'" Brittell v. Department of Correction, 247 Conn. 148, 164 (1998).

Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1) provides: "It shall be an unlawful employment practice for an employer . . . to fail or to refuse to hire or to discharge any individual, or otherwise to 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 . . . " Title VII does not explicitly prohibit sexual harassment; however, the U.S. Supreme Court has found that sexual harassment is a form of unlawful discrimination that violates Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 786-787 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See McKinney v. Dole 765 F. 2d 1129 (D.C. Cir. 1985)(Where no sexual harassment but harassment based upon sex.)

"To prove a work environment sexual harassment claim, a claimant must establish that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual/harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition or privilege of employment (i.e., that the harassment was sufficiently pervasive or severe to create an abusive work environment); and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action." Britell v. State of Connecticut, Department of Correction, 1997 Conn. Super. LEXIS 2451, 38, aff'd, 247 Conn. 148 (1998).

The "conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). "The correct inquiry is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome …." Meritor Savings Bank v. Vinson, supra, 477 U.S. 68. "[T]he question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact …." Id. at 68. Further, "in a case of alleged sexual harassment which involves close questions of credibility and subjective interpretation, the existence of corroborative evidence or lack thereof is likely to be crucial." Henson v. City of Dundee, supra, 682 F.2d 912, n. 25.

Once the alleged harassing conduct has been determined to have occurred and to have been unwelcome, I must then determine whether the Complainant has proven that the harassment occurred because of her protected classes of, mental disability, sex or sexual orientation (actual or perceived). Next, I must determine whether the Complainant has proven that the harassment affected a term, condition or privilege of her employment and created a hostile work environment. "Thus, in Meritor we held that sexual harassment so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment violates Title VII." (Internal quotation marks omitted; citations omitted.) Faragher, supra, 524 U.S. 786. "So, in Harris, we explained that in order to be objectionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We directed courts to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Internal quotation marks omitted; citations omitted.) Faragher, supra, 524 U. S. 787-88; See also Clark County School District v. Breeden, supra, 532 U.S. 270-71; Harris v. Forklift, supra, 510 U.S. 17; Henson v. City of Dundee, supra, 682 F.2d 904; Meritor Savings Bank, FSB v. Vinson, supra, 477 U.S. 67; Britell v. Department of Correction, supra, 1997 Conn. Super. LEXIS 2451, 39.

"To establish a claim of hostile work environment, the workplace (must be) permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." (Internal quotation marks omitted; citations omitted.) Brittell v. Department of Correction, supra, 247 Conn.166; Gallagher v. Delaney, 139 F. 3d 338, 347 (2d Cir. 1998). "The incidents must be persistent, not isolated." (Internal citations omitted; quotation marks omitted.) Massey v. Connecticut Mental Health Center, 1998 WL 4705590, 3 (Conn Super., July 31, 1998). "Mere utterances of sexual epithets which perhaps give rise to offensive feelings on the part of an employee are not sufficient. … " Britell v. Department of Correction, supra, 1997 Conn. Super. LEXIS 2451, 39. Additionally, if a victim does not subjectively view the environment to be abusive, the conduct cannot be found to have altered the conditions of the victim's employment." Id. at 39-40.

In considering the objective test, the question is whether the environment is offensive to the reasonable person and whether a "reasonable [person] would find the conditions of her employment altered for the worse." (Internal citations omitted.) Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). Here, the reasonable person should be a reasonable person in the Complainant's "shoes": a transsexual woman. See Torres v. Pisano, 116 F. 3d 625, 633 (2d Cir. 1997). "The environment need not be unendurable or intolerable. Nor must the victim's psychological well-being be damaged. In short, the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but most egregious cases." (Internal quotation marks omitted; citations omitted.) Terry v. Ashcroft, supra, 336 F.3d 148.

"The fifth element is where proof of the agency relationship … is needed. The plaintiff must show that a specific basis exists for imputing the conduct that created the hostile work environment to the employer. … [I]t is apparent that the fifth element has two parts, the employer's actual or constructive knowledge of the harassment and the employer's inaction or lack of adequate action after learning of it. A somewhat more refined statement of essentially the same criterion is that the plaintiff must prove that the defendant either provided no reasonable avenue for complaint or that the defendant knew of the harassment but did little or nothing about it." (Internal citations omitted.) Britell v. Department of Correction, supra, 1997 Conn. Super. LEXIS 2451, 42.

"When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages . . .. the defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise . . .. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Brittell v. Department of Correction, supra, 247 Conn. 147, 167 n30. The same standard for establishing a hostile work environment or for imputing liability to an employer applies when the harasser is a co-worker as well as when the harasser is a supervisor. Id. at 167.

"The law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . [sexual] harassment by co-workers . . .." (Internal quotation marks omitted.) Torres v. Pisano, supra, 116 F.3d 636. "[O]nce an employer has knowledge of a racially [or sexually] combative atmosphere in the work-place he [or she] has a duty to take reasonable steps to eliminate it. The standard is essentially a negligence one . . . and reasonableness . . . depends among other things on the gravity of the harassment alleged, the severity and persistence of the harassment . . . and . . . the effectiveness of any initial remedial steps and the nature of the work environment . . . and the resources available to the employer. An employer's response should be evaluated to determine how prompt, appropriate, and adequate it was. To determine whether the remedial action was adequate, we must consider whether the action was reasonably calculated to prevent further harassment. Once an employer has in good faith taken those measures, which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think [it] can be charged with discriminating on the basis of race [or sex]. Whether an employer has fulfilled [its] responsibility [to take reasonable steps to remedy a discriminatory work environment] is to be determined upon the facts in each case." (Internal quotation marks omitted; citations omitted.) Brittell v. Department of Correction, supra, 247 Conn. 147, 168-169, See also Faragher v. City of Boca Raton, supra, 524 U.S. 775-76.

The Complainant was employed by the Respondent from 1985 until 2002 and worked at several of the Respondent's facilities during that time period. FF 1. For the purposes of this decision, the Complainant's allegations of hostile work environment surrounding each facility for each time she worked there will be analyzed separately. See Richardson v. New York Sate Department of Correctional Service, 180 F.3d 426 (2d Cir. 1999) (where the hostile work environment claims were analyzed separately for each facility at which the plaintiff worked from 1988 through 1994). In addition, because there exists an alleged act of hostile work environment that is within the 180-day statute of limitations, those alleged acts of hostile work environment that are beyond the 180-day statute of limitations will be considered for purposes of determining liability. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).

Alleged Acts of Harassment

The following nine scenarios were alleged by the Complainant to be harassment causing a hostile work environment because of her sex, sexual orientation (actual and perceived) and mental disability. The following analysis will reveal that of the nine scenarios, harassment based on the Complainant's mental disability, sex or sexual orientation (actual or perceived) was shown to have occurred in four of them (1996 Trumbull, 1999 BS, 2000 ESM and 2001 ESM) and a hostile work environment was created in one of those (ESM 2001) for which the Respondent is liable.

1) 1995 Grounds Maintenance for Gardener Position

In 1995, the Complainant worked in grounds maintenance as a senior groundskeeper and John Kul was her supervisor. FF 5. During her time there, she was the senior bidder for a gardener position and she took the written and practical tests. CHRO Ex. 3. FF 10. The practical test included a pruning section and flagstone section. FF 10. The pruning section of the practical test was never administered to the Complainant; therefore, her test was incomplete. FF 11. Ultimately, she did not obtain the gardener position. FF 11.

The Complainant testified that she was denied the gardener position because a physical plant worker, Robert Moriarty, and two other co-workers, Richie Schnyer and Ed McEnerney, made derogatory remarks about her. Tr. 207-08. She testified that they said that she was a homosexual and they did not want homosexuals in grounds maintenance. Tr. 207-08. She also testified that she heard talk about the Respondent getting rid of her because she is a homosexual. Tr. 207-08. She testified that she was called a faggot while working in grounds maintenance. Tr. 156-59, 202. The Complainant believed that she was perceived as being a homosexual. Tr. 126.

The Complainant could complain to the union, human resources, labor relations or EOO and any of those bodies would do an investigation. FF 7. Mucha was the assistant in human resources and she would have to report to a human resources person such as Tavella or Mack in a situation where violence, threats or harassment were involved, such as those with the Complainant. FF 8. The Complainant testified that she reported the harassment by her co-workers to Mucha, Kul and Riccio. Tr. 211-12, 217-18. She testified that in late 1994 or early 1995, she asked Kul to allow her to change the time she punched in or out so not to be "bombarded" by co-workers with homosexual talk about her. Tr. 219. She testified that she told Kul "they constantly badger me about being a homosexual." Tr. 220.

Kul testified that in 1995, he did not know the Complainant was a homosexual. Tr. 1604-5. He testified that the Complainant did not ask him to change her hours. Tr. 1570-71. He testified that he either did not recall the Complainant telling him that the co-workers made derogatory remarks about her or that in fact she did not tell him about it. Tr. 1606. I find Kul's testimony credible. Neither Mucha nor Riccio testified that they were told about this alleged harassment.

The Complainant also testified that she complained to Mucha about not being given the pruning section of the test and that she filed a grievance because of it. Tr. 156. Mucha testified that she contacted Walt Debboli, a supervisor in grounds maintenance, to find out where the Complainant should go to take the pruning test. Tr. 2062. Debboli testified that he did not administer the tests. Tr. 1731. The Complainant also testified that she reported this situation regarding the gardener test to Santo Gallitioto, Meg Riccio, Head Steward of the Union, and Patricia Mack, Director of Human Resources, but that nothing further was done. Tr. 156-159, 212. She testified that she also reported this situation to Len Margolis, Chief Steward in Grounds Maintenance. Tr. 122. The Respondent argued in its brief that because the test was so many years ago, the reason is unknown why the Complainant was not given the pruning section of the test and that it could possibly be because she withdrew. R. Brief, p. 33.

The Complainant provided no witnesses to corroborate that she was being badgered for being a homosexual or for being perceived as a homosexual. FF 12. I do not find that the alleged acts of harassment occurred and therefore, I do not find the Complainant was subjected to unwelcome harassment. In addition, she did not report this alleged harassment to Kul or anyone else. Tr. 1602-10. Although it has been established that the Complainant was not given the complete gardener test, I do not find that it was because of harassment based upon her protected classes.

2) 1995 September/October at BS as Desk Attendant

After she left grounds maintenance in 1995, the Complainant obtained a desk attendant job at BS, where she worked for Pascale. FF 13. Sometime around 1995-1996, while the Complainant worked with Pascale in the BS Dining Hall, the Complainant testified that a "family" meeting was held. Tr. 257-58. She testified that Glen Green and Norman Richardson told her that the meeting was about her and that Pascale and Susanne Sheehan² said she was an alcoholic, drug addict, poor worker, troublemaker, faggot and they should fire her "f------ ass". Tr. 265-66. Unfortunately for the Complainant, she did not provide any corroboration for this testimony and I do not find that the statements were made. FF 14. Glenn Green, Norman Richardson and Sheehan did not testify to corroborate that this was stated. Also, Pascale denied saying this. Tr. 3824. In addition, even if the Complainant was able to prove the statements were made, she did not testify that she reported this situation. I do not find that she was told that these alleged harassing remarks were stated; hence, she has not proven that the harassment occurred.

The Complainant testified that Pascale told her about remarks that Dawn Hendricks, a grounds maintenance person, made about the Complainant. She testified that Pascale stated that Hendricks said the Complainant was an alcoholic, drug addict, troublemaker, poor worker and gay, and Pascale wanted to know whether it was true. Tr. 199, 271. The Complainant testified that this upset her and that she did not tell Pascale she was gay. Tr. 199. The Complainant also testified that Pascale told the Complainant that she should cut her hair. Tr. 271. The Complainant testified that her hair was longer than that of most males. Tr. 271. Pascale denied saying these things or that they occurred. Tr. 3824-25. The Complainant testified that she left BS in September 1996 because of these alleged remarks. Tr. 272. The Complainant did not provide any corroborating evidence or testimony that these statements occurred. FF 14. Also, even if it was proven to have occurred, again the Complainant did not testify that she reported any of these comments to anyone. Therefore, I also find that this alleged act of harassment did not occur.

3) 1996 at Trumbull Dining Hall for Cook's Helper Position

Around May 1996, the Complainant bid for a cook's helper position in Trumbull Dining Hall and was qualified for the position. FF 15. Mucha directed the Complainant to meet with Jesse Caraway, the manager of Trumbull Dining Hall, for an interview regarding the position and she did. FF 16. At the meeting, the Complainant testified that Caraway told her that he did not allow faggots to work in his dining hall and that "he" (the Complainant) should go back to Saybrook where "he" belongs. Tr. 244. The Complainant testified that she reported this to Pascale, who was her current manager at BS. Tr. 244. She testified that Pascale said she could not do anything about it. Tr. 245. Pascale testified that the Complainant did not complain to her about being called a faggot. Tr. 3819.

The Complainant also reported this to Mucha. FF 19. She also testified that she reported to Riccio and Mack that she did not get the position. Tr. 226. However, at this time, she did not report the alleged derogatory comments to them. Riccio testified that the Complainant did not report the Trumbull incident to her until some time after the Berkeley incident in 2000 had occurred. Tr. 2541-45. Riccio's testimony about what the Complainant told her regarding the incident at Trumbull in 1996 with Caraway was similar to the Complainant's testimony.

Mucha testified that she did remember what Complainant told her about Caraway. Tr. 1998-2010. Mucha also testified that she told Mack about the situation. Tr. 2037. I find Mucha credible. Mucha contacted Caraway to ask about the meeting and the alleged incident. Tr.2011-12. Mucha testified that Caraway confirmed he met with the Complainant. Tr. 2012. Caraway denied he made that statement. Tr. 2011-12. Mucha told Caraway to contact Mack if he did say it. Tr. 2011. Mucha testified that Caraway told her that the Complainant was not taking the position. Tr. 2013. As a result, Frank Douglas, a less senior bidder was given the position. FF 20.

Caraway testified that he remembered meeting Frank Douglas, who received the position, but did not meet the Complainant. Tr. 1783-85. Caraway testified that he had never met the Complainant before the CHRO factfinding, which was clearly not true based upon Mucha's testimony. Tr. 1771-72. I do not find Caraway's testimony credible and, therefore, I find that Caraway did make the derogatory statement to the Complainant. FF 17, 18. The Complainant testified that she never heard back from Mucha regarding this incident. Tr. 246.

The Complainant has proven that this derogatory comment was unwelcome by reporting it immediately to Mucha. It is common knowledge that the term "faggot" is slang for "a male homosexual", usually used disparagingly, directed at the Complainant's sexual orientation. The American Heritage Dictionary, Second College Edition; Merriam-Webster Dictionary. Therefore, it constituted harassment based upon sexual orientation under state law. The harassment, however, was not severe or pervasive because it occurred only once in isolation and there was no physical contact. Massey v. Connecticut Mental Health Center, supra, 1998 WL 4705590, 3; Faragher v. City of Boca Raton, supra, 524 U.S. 775. Although it appeared the Complainant found the environment to be offensive, a reasonable person in the Complainant's shoes may not have found it offensive because no time was given to see what the actual environment would have been and whether the harassment would have altered the conditions of the employment since the Complainant did not take the position. Therefore, it cannot be found that a reasonable person in the Complainant's shoes would have found the environment to be offensive based on the one derogatory statement by Caraway. I do not find the harassment altered the conditions of employment and created a hostile work environment.

4) 1999 at BS as Pantry Worker/Desk Attendant

On March 23, 1999, the Complainant worked as a pantry worker/desk attendant at BS for Pascale until November 1999. FF 21. She testified that she was harassed, intimidated and threatened on the job by her co-workers and an assistant manager who she worked with in the salad room. Tr. 284-85; Complaint Affidavit allegation # 39. She testified that Len LeFrasier harassed her. Tr. 285. She testified that Marcy Riley said to her, "God's going to send you straight to hell for being what you are. . . Why don't [you] get [your] hair cut, get married and have children? What's wrong with you?" Tr. 285. She testified that Jackie Brooks said the same thing. Tr. 285-86. She testified that Clay Price said, "Faggots shouldn't be allowed to work at Yale. If we knew there was a faggot here, we got to get rid of him and we should kick the shit out of him." Tr. 286. The Complainant testified that Sue Sheehan³, Pascale's assistant manager, essentially caused the Complainant to feel she should find another place to work. Tr. 287. The Complainant testified that this occurred daily from March until November. Tr. 288.

She testified that she complained to Pascale, Stanley and Riccio. Tr. 288, 290-92, 2531, 2546. The Complainant testified that she continued to be harassed every day after this. Tr. 294. The Complainant left this position in November 1999. She testified that she left for fear of her safety, she could not sleep, was afraid of being attacked by co-workers, was carrying pepper spray and could not take the abuse any further Tr. 296. She testified that she did not experience any physical abuse or harassment. Tr. 297.

Although there was no testimony to corroborate the Complainant's testimony, Riccio verified that the Complainant reported the harassment during the time it was occurring and how it was adversely affecting her. FF 23. Because the Complainant reported the harassment to Riccio contemporaneously with its occurrence, I find the harassment occurred. FF 22. I find the harassment was unwelcome and it was based on the Complainant's sex and sexual orientation under state law and sex under Title VII. These acts occurred every day from March until November 1999, and, although not amounting to a physical attack, they were frequent, physically threatening and offensive. The Complainant was offended and believed the harassment altered the conditions of her employment. A reasonable person in the Complainant's shoes also would have felt that it was offensive and interfered with the conditions of employment. Brittell v. Department of Correction, supra, 247 Conn. 147. I find the harassment altered the conditions of the Complainant's employment and amounted to a hostile work environment. Id.; See also Faragher v. City of Boca Raton, supra 524 U.S. 775; Henson v. City of Dundee, supra, 682 F.2d 897; Harris v. Forklift Systems, Inc., supra, 510 U.S. 17.

The Complainant testified that in May 1999, she met with Pascale. Tr. 288. She testified that she told Pascale what was being said about her and she told her that she could not sleep at night, she was blacking out on the job, and she could not remember what she had done for the day. Tr. 288-89. She testified that she told Pascale that she was a transsexual and that the things people were doing were unfair. Tr. 1384-91. She testified that Pascale told her she would talk to the workers, but the Complainant testified that it did not stop; instead the harassment was worse. Tr. 288-90. She testified that she complained three times to Pascale, once in May 1999, once in September 1999 and once in November 1999. Tr. 290. She testified that she had complained to Pascale after going to Yale EOO, but things became worse and Pascale told her that she did not care. Tr. 290. Pascale denied any of this occurred. Tr. 3821-22.

In April 1999, she reported to Riccio, Head Steward of the Union, that she was being harassed, threatened, humiliated and intimidated every day and that her health was failing. Tr. 292. Riccio testified that Complainant told her that people were discriminating against her, they thought she was gay and did not want to work with her; and the Complainant thought the manager was "backing it up." Tr. 2546. Riccio testified that the Complainant felt she could not do her job; she seemed depressed, sad and thought everyone at BS was against her. Tr. 2546. Riccio told her that they would go to the EOO. Tr. 2552. Riccio and the Complainant met with Stanley in June 1999. FF 23. The Complainant testified that Riccio filed a formal complaint with Stanley and that she and Riccio gave Stanley the names of six people who were harassing her. Tr. 293, Complaint Alleg. # 42.

The Complainant testified that Stanley said she would investigate and report back to Riccio. Tr. 294. The Complainant testified that she spoke to Stanley one more time in late August or early September 1999. The Complainant testified that Stanley told her that she had spoken with Sheehan/Schand but had not spoken to the other five people. Tr. 295

Stanley contacted the Complainant to schedule a meeting with Sheehan/Schand and the Complainant, but the Complainant refused to meet. FF 24. Riccio testified that Stanley's notes stated that Stanley suggested a meeting to clear the air but the Complainant declined to meet. Tr. 2712-13, 2716; R. Ex. 39. The Complainant testified on cross examination that Stanley did ask her whether she would meet with Stanley and Sheehan/Schand, and that she declined because she felt it would be useless since Sheehan/Schand no longer worked in the same dining hall as the Complainant. Tr. 767-68. The Complainant testified she wanted Stanley to interview the other five employees. Tr. 762-63, 765-67. Riccio did not hear back from Stanley regarding this. Tr. 2555.

I find the Respondent took prompt remedial measures by commencing an investigation to remedy the harassment, but the Complainant did not want to cooperate with Stanley's investigation. See Brittel v. Department of Correction, supra, 247 Conn. 167, 170-71. It is impossible to know whether the Respondent's remedial action was adequate under the law or would have remedied the harassment since the Complainant did not cooperate. See Id. at 167-72. Given that the Complainant often worked in various dining halls and if Sheehan/Schand had in fact left BS, it was quite possible that the Complainant would be working with Sheehan/Schand again and, therefore, a meeting with her would have been reasonable in attempting to remedy the harassment. Therefore, I find the Respondent showed that 1) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and [2)] that the [Complainant] unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise . . .." Brittell v. Department of Correction, supra, 247 Conn.167. I do not find the Respondent liable for the hostile work environment at BS in 1999.

5) 2000 at ESM as PAN GEOS Pantry Worker

a) On February 7, 2000, the Complainant took a pantry worker position to work on Pan Geos at ESM under the supervision of Michael Stringer. FF 33. The Complainant testified that she "got along" with Rucco, a co-worker, until their relationship changed on or about December 5, 2000 when the Complainant notified the Respondent of her legal name change from Neil Eckels to Erin Dwyer and her transition from male to female. Tr. 347, 397; CHRO Ex. 64. At this time, the Complainant testified Rucco refused to work with her and did all the work himself. Tr. 392, 396-97. The Complainant testified that she reported this to Stringer. Tr. 392-93, 2257-58. Stringer testified that the Complainant did not work with Rucco and the Complainant did not tell him that Rucco would not work with her. Tr. 2260. Contrary to this, Theresa Little, a co-worker, saw the Complainant working on Pan Geos with Rucco. Tr. 2382, 2387. I find Little credible.

The Complainant testified that she had nothing to do and felt humiliated. Tr. 392-93. The Complainant testified that Rucco did not give the Complainant work assignments for approximately 4-5 months. Tr. 411. Stringer testified that the Complainant did tell him she had no work to do. Tr. 2258. However, Stringer testified that her work did not decrease, but it was the nature of it that had decreased as well as her assignments. Tr. 2257. The Complainant testified that during this timeframe, around March 2001, she would ask Angela Joan Rynne, Michael Sequeo and Dolores Padilla for work and that she would help them; "otherwise, [she] read books, did [her] mail, ate." Tr. 393, 411. She testified that she also spoke to Brian Frantz, the assistant manager, about trying to get some work to do. But still there was no work for her. Tr. 411-12. In addition, Mary Ann Sasso, a co-worker, testified that the Complainant had asked her for work. Tr. 3325-26. Sequeo testified that the Complainant would take the initiative to ask Seqeuo if he needed help. FC Tr. 19-10. The Complainant assisted Sequeo in the kitchen. Tr. 393. The Complainant testified that she wanted "something that [she] can call a job." Tr. 393.

Sequeo testified he remembered the Complainant talking to Stringer about not having anything to do all day and asking whether Stringer could find something for the Complainant to do. FF 36. Sequeo testified that he witnessed people refusing to work with the Complainant. FC. Tr. 57. Stringer's testimony was inconsistent with the Complainant's and Sequeo's on the issue of the Complainant's lack of work. I do not find Stringer credible and I find Sequeo's factfinding conference testimony reliable. Therefore, I find that Rucco did ignore the Complainant and would not give her work to do on Pan Geos, and that the Complainant did report this to management with no resolution. FF 34, 36. The alleged "lack of work" has been proven true.

The Complainant's witness, Little, testified that very few people spoke to the Complainant before her legal name change. Tr. 2399. She testified that during the time the Complainant worked on Pan Geos, employees told her that the Complainant had a poor work ethic and a bad attitude, and that was the reason they did not want to work with the Complainant. Tr. 2427. In addition, she thought the Complainant was taking long breaks. Tr. 2409. Also, Sequeo did not recall whether the Complainant was harassed. FC Tr. 21.

The Complainant has proven that she wanted to work and therefore, not having any work to do was unwelcome harassment. She has also proven that because Rucco refused to work with her after her legal name and sex change, that the harassment was based on her protected classes of sex under state and federal law, and mental disability under state law. FF 35. Although the harassment was ongoing, it did not involve any physical contact, it was not intimidating or threatening, and the Complainant was able to find other work to do from her co-workers or she was able to otherwise occupy her time. Although the Complainant claimed she was humiliated, she testified that she found other things to do if she did not have any work to do, such as read books, do her mail and eat. Tr. 411.

I do not find that the Complainant believed the harassment was offensive or sufficiently severe or pervasive that it unreasonably interfered with her work and altered the conditions of her employment. Although a reasonable person in the Complainant's shoes may have found it offensive and sufficiently severe or pervasive, and altered the conditions of employment causing a hostile work environment, the Complainant did not. The Complainant did not prove that the harassment amounted to a hostile work environment.

b) The Complainant also testified that in late 1999 or early 2000 before her name change, Nicole Roseboro said, "He's already an ugly guy, why would he want to be an ugly woman." The Complainant testified that she heard this and reported it to Stringer who responded negatively and said "deal with it." Tr. 437-38. Sasso, testified that she heard rude comments about the Complainant's hair and lipstick color on a consistent basis. Tr. 3322-23. Little testified that she heard co-workers making comments about the Complainant being an "ugly man" and "why would he want to be an ugly woman". Tr. 2406. Little testified that, in particular, Rucco told her the Complainant was an "ugly guy, why would he want to become an ugly woman." Tr. 2380. I find that derogatory comments were made and that they were unwelcome harassment based on the Complainant's protected class of sex under state and federal law. FF 35.

The Complainant had testified she had heard derogatory comments in late 1999 or early 2000 by Nicole Roseboro, which I interpret to be prior to April 2000, and she reported them to Stringer who told her to "deal with it." Tr. 437-38. Although Stringer testified that the Complainant did not complain to him about co-workers making derogatory remarks, I find his testimony is questionable. Tr. 2254. However, on April 9, 2000, the Complainant wrote letters to Robert Junghandel, John Turenne and Eric Uscinski stating that Stringer had been supportive of her and had encouraged her. CHRO Ex. 43, 44, 60. She stated that she told Stringer that she was lucky to be able to work with "such professional people as the three of them." She also stated that she hoped to continue working with Stringer. The Complainant made no mention in the April 9, 2000 letter about the harassment she experienced in late 1999 or early 2000, or about reporting it to Stringer and his not doing anything to help. The Complainant never fully explained this inconsistency and it undermines her credibility on whether she reported the incidents to Stringer.

I do not find the Complainant believed this harassment to be subjectively offensive because she did not mention it in her April 9, 2000 letter to management. See Brittell v. Department of Correction, supra, 247 Conn.148; Faragher v. City of Boca Raton, supra, 524 U.S. 775. In addition, there was no corroboration that she reported the harassment. FF 36. Riccio did not testify that the Complainant told her that derogatory remarks were being made about her, only that there was no work to do since her name change. Tr. 2557. I do not find this harassment amounted to a hostile work environment .

6) 2000 January/February at Berkeley Dining Hall for Cook's Helper Position

Some time around February 2000, the Complainant bid on a cook's helper position at Berkeley Dining Hall and was qualified for the position. FF 26. The Complainant met with Fred Aransky, the manager, and Mike Schoen, the first cook, at Berkeley in early March. Tr. 349, 2021. After her meeting with Aransky, Schoen asked the Complainant to meet her in the moat to talk and they did. FF 27. In the moat, the Complainant testified that Schoen said that if the Complainant took the job they would make "his" life miserable. Tr. 352. The Complainant testified that Schoen screamed at the Complainant, yelling epithets and saying, "I hate your guts, hate that you got your job back and hate what you are." Tr. 352. Schoen testified that they did meet in the moat. Tr. 2204. He testified that he did not like the Complainant but denied threatening the Complainant. Tr. 2206-07. Schoen testified he did not like the Complainant because she messed up the system with all her "over-bidding" on jobs. Tr. 2221. He testified that he would be the one to train her, which would be a waste of time if she left. Tr. 2224. He said he did not know the Complainant was a homosexual and that he has family members who are homosexual. Tr. 2224-25. He testified that he discussed the situation with Uscinski, Aransky and Riccio. Tr. 2208-11. I find his testimony credible.

Riccio testified that the Complainant told her that when she and Schoen met in the moat, Schoen "questioned [the Complainant] on if she really wanted to work here and that he told her that the people in Berkeley all worked together and that he didn't want any problems." Tr. 2544. Riccio's version of the incident was quite different than the Complainant's version. Riccio's version was actually more consistent with Schoen's testimony regarding his issues with the Complainant over-bidding and his concerns that she might not stay in the position. FF 28. Riccio did state that the Complainant told her that she felt very threatened by Schoen. Tr. 353-54, 2542-44. At some time later, Riccio spoke to Aransky and Schoen; Schoen denied making any threats to the Complainant. FF 30. The Complainant testified that Riccio said "nothing can be done, they denied it." Tr. 356. The Complainant testified that Riccio would not file a grievance. Tr. 356-58. Riccio did nothing further. Tr. 2548. It is important to note that this transpired before the Complainant changed her name. Tr. 2548.

Aransky testified that Mucha or Uscinski told him that Complainant would not take the job. Tr. 2776. The Complainant complained to Mucha about this incident with Schoen in the moat. FF 29; Tr. 2023. Mucha did not believe that Schoen would say such things. Tr. 2023-24. She thought it was a misunderstanding. Tr. 2023. Mucha testified that she told Tavella but the Complainant did not want to speak to Tavella at that time. Tr. 2032-33. She contacted Aransky and Schoen and did nothing further. Tr. 2023-24. She testified that Aransky told her that he was not aware that it happened. Tr. 2023-24. Aranksy informed Mucha that the Complainant withdrew from the position. FF 31. However, Schoen, who is a union member and on the Executive Board of the union, testified that a withdrawal from a position is supposed to be in writing. Tr. 2192. Tr. 2196; R. Ex. 25, p.25.

The Complainant testified she did not hear back from Mucha except when Mucha asked the Complainant to sign a withdrawal form and she refused. Tr. 353-54. The Complainant testified that she told Mucha she could not take the job if she was not going to be protected. Tr. 356.

The Complainant then wrote letters dated April 9, 2000 to Junghandel, Turenne and Uscinski, complaining, among other things, about unprofessional conduct of Aranksy and Schoen and stating that she could not take the job. Tr. 358-63; CHRO Ex. 43, 44, 60. She did not state in the letter that she was harassed or discriminated against or that she feared Schoen. FF 29. Uscinski testified that the Complainant stated in the letter that Aranksy was unprofessional. Tr. 3359, 3362-63. Uscinski stated that human resources did not call him about the moat incident; that he received the letter from the Complainant and then he spoke with Junghandel and Aransky. Tr. 3418. Uscinski corroborated that Schoen took the Complainant to the moat to talk. Tr. 3419-20.

I find that a meeting occurred in the moat between Schoen and the Complainant and that the Complainant considered it unwelcome harassment by Schoen, but I do not find the harassment was based on her protected classes. The Complainant did not provide evidence to corroborate her version of the moat incident. Instead the Complainant's witness, Angela Ben-Elohim, testified that the Complainant told her that Schoen "took her in the courtyard and put a knife to her neck or something to that effect, as far as no faggots work in my Dining Hall, something disgusting like that." Tr. 2994. This was completely inconsistent with the Complainant and Riccio's testimonies at the Hearing. I do not find the Complainant's version of the facts of her meeting with Schoen credible here. There may have been inappropriate behavior on the part of Schoen but I do not find it was based on the Complainant's protected classes. FF 32. However, even if it was harassment based on her protected classes, I also find that it did not alter the conditions of her employment. It was not severe or pervasive enough because 1) it occurred in isolation; Massey v. Connecticut Mental Health Center supra, 1998 WL 4705590, 3; and 2) the Complainant did not mention the harassment or discrimination in the April 9, 2000 letter. She did not state that she was afraid of or threatened by Schoen but only stated, she thought he was unprofessional. CHRO Ex. 43, 44, 60. Therefore, the Complainant did not prove that she was harassed based on her protected classes.

7) 2001 at ESM as Pantry Worker

Although Aransky was the manager of ESM and the Complainant had previously believed Aransky was unprofessional at Berkeley Dining Hall in 2000, she nevertheless took a temporary pantry job at ESM on or about November 1, 2001. Tr. 470. She testified that she was constantly harassed and humiliated by co-workers, particularly George White, a part-time pantry worker, who sneaked up behind her "all the time," bumped into her "all the time," grabbed her hand, called her a faggot, told her that she deserved what she got and that he would also make her apologize "every day." FF 37; Tr. 473, 478. She testified that she reported White's conduct to Aransky. Tr. 477, 495-97,1320-22. She testified that she asked Aransky to transfer her but it did not happen. Tr. 492-93. She testified she told Aransky she was afraid of White and that she could not take it anymore. Tr. 496-97. She testified that Aransky said he was waiting word from Uscinski about transferring the Complainant. Tr. 496-97.

Aransky agreed that the Complainant complained about White. Tr. 2800. He testified that the Complainant told him that "George" would say, "Hey man. This is the way I talk, man" to the Complainant and threatened her. Tr. 2800-01. He testified that the Complainant told him she felt intimidated by White because a comment was made that the Complainant was a man. Tr. 2800. He testified that Complainant felt everyone was picking on her, in particular Sue Avitable. Tr. 2802, 2809. He testified that the Complainant and Avitable had an argument but when Aranksy asked Avitable about it, she denied it. Tr. 2872. Aransky had decided not to discipline anyone. Tr. 2876-77. He testified that he spoke to Valerie Stanley and that she tried to talk to everyone about how employees should be treated. Tr. 2809-10. Aransky testified that he spoke to the employees and they denied the Complainant's accusations. Tr. 2792. He testified Rita Solvena felt threatened by the Complainant because the Complainant told her "let's go out back." Tr. 2880-81. Again, Aransky spoke to both the Complainant and Solvena and did nothing further. Tr. 2881. I find Aransky credible.

Although there were no eyewitnesses to White's conduct, I find that because the Complainant reported the conduct contemporaneously with its occurrence, it in fact occurred. FF 37-39. Based on Aransky's testimony that Complainant told him she felt threatened by White, I find that the Complainant was subjected to unwelcome harassment based upon her sexual orientation (actual or perceived) under state law. The harassment occurred frequently, as described by the Complainant's use of the phrases "all the time" and "every day" (Tr. 473, 478), it involved the physical grabbing of the Complainant's arm, and it was intimidating and threatening to the Complainant. Britell v. Department of Correction, supra, 1997 Conn. Super. LEXIS 2451, 38. See also Torres v. Pisano, supra, 116 F. 3d 625, 631 (where the testimony indicated the supervisor "constantly" harassed the plaintiff, without indicating all of the dates the harassment occurred, established that the conduct was sufficiently pervasive to support a hostile work environment claim.) I find that a reasonable person in the Complainant's shoes would have found that this harassment was offensive and unreasonably interfered with her work environment and I find that the Complainant felt it was offensive and unreasonably interfered with her work environment enough for her to take another job with fewer hours which resulted in less pay. FF 40. I find the harassment was pervasive and altered the conditions of the Complainant's employment amounting to a hostile work environment.

The Complainant testified that after going to the police to report White's conduct, the police referred her to EOO. Tr. 3173. She reported the harassment to Frances Holloway, Director of EOO and Valerie Stanley's assistant. FF 39. Holloway testified that she met with the Complainant on February 18, 2002. Tr. 3173-81. She testified that the Complainant told her about the problems in the workplace. Tr. 3175. She could not remember specifics but she testified that the Complainant was very upset, agitated, frightened to go to back to work and felt that her co-workers were treating her badly. Tr. 3174-75. Holloway testified she called Mucha, Aransky and Uscinski to discuss the problem and to get a status of jobs to locate a job for the Complainant to transfer to. Tr. 3176. They found a temporary solution and on February 23, 2002, the Complainant was sent to Davenport in a rounds position where she would work with James Moule. FF 40. The Complainant took the job and testified that she did so in order to feel safe. Tr. 500, 3176-8; CHRO Ex. 81, 82. The job was for twenty-four hours per week instead of forty-hours per week. FF 40. Holloway then gave the Complainant's file to Stanley. She does not know whether Stanley followed up. Tr. 3184-86. Holloway did not hear from Uscinski or Aransky again and she had no further contact with the Complainant. FF 41. The Complainant testified that this did not resolve the harassment; it just gave her a safe place to work. Tr. 1434.

The Respondent was aware of the harassment and reacted by transferring the Complainant to a less desirable position without investigating the situation and without resolving it with George White and the Complainant. The remedial measures the Respondent took were not adequate or not "reasonably calculated to prevent further harassment." Brittell v. Department of Correction, supra, 247 Conn. 168-9. The measures taken ultimately penalized the Complainant by causing her to work for fewer hours resulting in less pay. See Hostetler v. Quality Dining Inc., 218 F.3d 798, 811-12 (7th Cir. 2000). The Respondent provided no testimony or evidence that it eradicated the harassment other than to say that it transferred the Complainant to a job with fewer hours resulting in less pay. The Respondent is liable here for the hostile work environment created at ESM between November 2001 and February 2002.

8) 2002 April at SOM for Head GSA Position

In April 2002, The Complainant bid on and received a head GSA position at SOM working for Robert Sullivan. FF 42. The Complainant testified that she believed that Sullivan was overly critical of her performance because she was transgendered. Tr. 614. She also testified that the head GSA position was more complicated than other head GSA positions. Tr. 609, 614. During her thirty-day trial period as a head GSA, the Complainant testified she had spilled some hot water on her leg, that it scalded her leg and that her leg was red. Tr. 622. She testified that she raised her pants leg and a co-worker, who was a cook, remarked with negative comments about her shaven leg. Tr. 622-23. She testified that the cook said, "that's the most disgusting thing I've ever seen, it turns my stomach." Tr. 623-24. There was no corroboration for what this employee said about her shaven leg. She also testified she wore nail polish and eye shadow on the job. Tr. 623-24. Sullivan failed her at the end of the thirty days at which time she testified that Sullivan said, "[the Complainant] isn't a good fit for this job." Tr. 1320.

The Complainant testified that, on one occasion, she raised her voice after Sullivan asked her to "go outside on the lawn . . . and settle this man to man." Tr. 1299-300. Sullivan testified that he did not say, "let's settle man to man". Tr. 3483. The Complainant did not testify that she reported this. She also testified that Bill (a co-worker) would not talk to her. Tr. 1301. She testified this was because "he wouldn't work with a faggot." Tr. 1301. Sullivan testified that he was aware of her transgender issue. Tr. 3504. Sullivan testified that Complainant did wear skirts at times and hair restraints; however, no co-workers complained about the transgender issue. Tr. 3504, 3508, 3510. I find Sullivan credible. The Complainant provided no corroboration for the alleged derogatory comments and there is no evidence that she reported these incidents. FF 43. Therefore, I do not find that she was subject to unwelcome harassment.

9) 2002 September at BS for Third Cook Position

On or about August 27, 2002, the Complainant began a trial period for a third cook's position at BS Dining Hall supervised by Pascale. FF 44. During her trial period, the Complainant testified that two co-workers, Mary Ann Sasso and Sabrina Selfridge, refused to work with her. Tr. 513. The Complainant complained about this to Pascale and Susanne Sailor, the Assistant Director of Dining Halls (who had replaced Junghandel), Junghandel and Ben-Elohim. Tr. 513-14, 2579, 2964. The Complainant also testified that Sailor told Pascale to tell cooks to work with the Complainant. Tr. 523-24. She testified that she told Pascale about her problems with Sasso and Selfridge during her thirty-day evaluation. Tr. 515, 520-21, 1435; CHRO Ex. 97. The Complainant testified that Ben-Elohim spoke to Sasso and Selfridge and told them to "knock it off." Tr. 522. Ben-Elohim testified that the Complainant complained that no one would help her and that the Complainant told management that she needed keys for supplies. Ben-Elohim testified that was unaware of any other problems and that she did not hear anything about sexual orientation issues. Tr. 2964-65. She testified that the Complainant was not qualified. Tr. 2989-90. The Complainant was never given a key to the storage area. Tr. 523-6, 2965.

The Complainant told Riccio about the problems that she experienced during her trial period. FF 45. She said her trial period was being sabotaged. Riccio tried to work on the concerns. Tr. 2578. Riccio testified that she spoke to Glenn Green, the first cook, Sasso, the second cook, and Padilla, the first cook, about helping the Complainant during her trial period at BS in the Fall 2002; she said everyone agreed to help. Tr. 2578. Ben-Elohim also told Riccio that the Complainant was experiencing problems, the cooks were not working with the Complainant, and they needed to do so. Tr. 2580. She testified that a meeting was held with Sailor, and Sailor said she would speak to Pascale to tell the employees to work with the Complainant. Tr. 2581.

The Complainant testified that nothing improved. Tr. 527. The Complainant had received a one-day suspension on November 11, 2002 during her trial period regarding an incident with a push cart and a co-worker, Sasso. CHRO Ex. 101; Tr. 1435, 3135-39; FF 61. The Complainant's witness, Darlene Gray, testified that the Complainant made a threat against Sasso during the time Gray worked at BS in the Fall of 2002. Tr. 2295-96, 2306-07. Pascale asked Gray what happened between Sasso and the Complainant relative to the push cart incident and Gray told Pascale about it and the statement the Complainant made which was, "Mary Ann, I wish I could just take her lifeless body and just lay it out on York Street." Tr. 2306-07; FF 45. I find Darlene Gray to be credible.

Gray also testified that Selfredge and Sasso did work with the Complainant. Tr. 2311. She testified that she did not see any different treatment because of transgender issues and she testified that Pascale did not treat the Complainant differently. Tr. 2296. Ben-Elohim testified that she, Green and Pascale helped the Complainant. Tr. 2988. She testified that employees did not like the Complainant because of her work ethic.Tr. 2990.

The Complainant also testified that she told Pascale at the sixty-day trial evaluation about the problems she was having in the kitchen. Tr. 528. At the end of the second trial period, she testified she reported the problems again to Green, Pascale and Ben- Elohim Tr. 532. Pascale testified that she did not see any discrimination. Tr. 3854. During the trial period, she saw a letter from the Complainant dated November 3, 2002 to dining hall services. CHRO Ex. 100. In the letter, the Complainant stated that employees were not working with her. Pascale testified that she spoke to Sasso. Tr. 3858. She testified that the Complainant had stated in the letter that she had confidence in Pacale and Green. Tr. 3856-57; CHRO Ex.100.

It is interesting to note that while Sasso worked with the Complainant from 1999 through 2000 at ESM when the Complainant was a pantry worker, Rynne testified that Sasso "bent over backwards" to help the Complainant. Tr. 2350. Rynne stated that during this time in 2002 at BS, Sasso told her that she was trying to help the Complainant with constructive criticism, but that the Complainant did not "take too kindly to that." Tr. 2364; FF 45. This appeared to be one of the reasons Sasso was not assisting the Complainant any longer. Also, the Complainant's co-workers had issues with her work ethic. Tr. 2426-27; FF 45.

The evidence established that a lack of cooperation with the Complainant occurred. However, there was overwhelming evidence that this conduct was not unwelcome harassment based on her protected classes but, in fact, was incited by the Complainant. FF 45. In addition, there was no evidence presented that the conduct occurred because of her protected classes. FF 46. Therefore, I do not find unwelcome harassment occurred here.

Reasonable Accommodation

The Complainant argued that the Respondent failed to provide her with a reasonable accommodation when it took one and one half years to provide the Complainant with a locker for storage of her personal items. To establish that the Respondent failed to provide a reasonable accommodation, the Complainant must establish 1) she is disabled within the meaning of the statute; 2) the Respondent was fully aware of her disability; 3) the Complainant was able to perform the essential functions of her job with or without reasonable accommodations; and 4) the Respondent did not provide her with a reasonable accommodation. Stone v. Mount Vernon,118 F.3d 92, 96-97 (2d Cir. 1997).

The Complainant bears the burden to show that a reasonable accommodation existed that would have allowed her to perform the essential functions of her job. Borkowski v. Valley Central School District, 63 F.3d 131, 138-9 (2d Cir. 1995). Once the Complainant has satisfied her burden, the Respondent has the burden to prove the accommodation would be unreasonable or would cause undue hardship. Id.

Herein, as previously discussed, the Complainant possessed a disability, Gender Identity Disorder, under state law. Therefore, the Complainant has proven she is disabled and that the Respondent was aware of the Complainant's disability, as previously discussed. The Respondent did not dispute that the Complainant was qualified for the job she was performing in December 2000 (pantry worker at ESM) at the time she requested reasonable accommodations. Thus, the Complainant established that she was able to perform the essential functions of her job as a pantry worker at ESM with or without a reasonable accommodation. However, the Complainant did not establish that the Respondent failed to provide her with an accommodation.

On December 5, 2000, the Complainant met with Matzkin to notify the Respondent of her legal name change and designation as a female. FF 47. Matzkin gave the Complainant the day off with pay in order for Matzkin to prepare the employees about the Complainant's changes. FF 48. The Complainant spoke to Matzkin and Gallitioto soon after who told her to return to work and that she would be able to use a designated handicapped bathroom and that they would find a locker for her use. FF 48. The Complainant acquiesced to this. FF 48.

Stringer was the manager of ESM at the time. FF 33. Stringer testified that the lock to the handicapped bathroom was altered in order for the Complainant to use it. Tr. 2248. Stringer testified that it was his responsibility to locate a locker for the Complainant. Tr. 2245. Stringer testified that he contacted various individuals to locate a stand-alone locker but he was not successful. Tr. 2246-50. He asked the Complainant to use his office to store her personnel items until he could locate one and she agreed. Tr. 2247; FF 49. Stringer testified that when he left ESM, the locker still had not been obtained. Tr. 2250. Although it took the Respondent one and one half years to provide the Complainant with a locker, the Respondent allowed her to store her personal items in an employee's office during the time she was without one. Tr. 408, 2248, 2250; FF 49.

The Commission argued that storing her personnel items in a cubicle in the manager's office was not a "suitable long-term accommodation" and was not the accommodation that the Complainant and the Respondent agreed to. CHRO Brief, p. 33. It may not have been the one agreed to, but neither the Complainant nor the Commission has proven that is was not a reasonable accommodation for the time being. Also, the Complainant did not present any evidence that a stand-alone locker existed, was available to be purchased or that any other reasonable accommodation existed that would have allowed her to perform the essential functions of her job.

In addition, she did not prove that having to leave her personal items in an office instead of a locker prevented her from performing the essential functions of her job. FF 50. On the contrary, the Complainant testified she needed a locker to store her personal items and that it was "especially important for [her] because [she] had a part-time job and [she] had to change into [her] uniform for the other job." Tr. 407. While I agree that it was unfortunate to wait such a long time for a locker, not once did the Complainant testify that she was not able to perform the essential functions of her job with the Respondent because she did not receive the locker sooner. I find the Complainant was able to perform the essential functions of her job without a reasonable accommodation. Also, the Respondent did not refuse to accommodate her; it merely provided an alternative reasonable accommodation until another one became available. Tr. 4244-46. Therefore, the Complainant fails on her claim for failure to accommodate and it is dismissed.

Aiding and Abetting

The Complainant alleged the claim of aiding and abetting pursuant to General Statutes § 46a-60(a)(5) which reads: " It shall be a discriminatory practice in violation of this section: (5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so." However, neither the Complainant nor the Commission presented evidence to show who aided and abetted against the Complainant and to support this allegation in its brief. Therefore, this claim is dismissed.

Conclusion

The Respondent violated General Statutes § 46a-81c(1) by creating a hostile work environment based on the Complainant's sexual orientation or perceived sexual orientation during her employment at ESM between 2001 and 2002 and is liable to the Complainant for her injuries. The Complainant shall be paid the lost wages she incurred when she transferred from the pantry worker position at ESM on February 23, 2002 to the rounds position at Davenport, less all mitigation. The Respondent is found not to have discriminated, retaliated or aided and abetted discrimination against the Complainant for the lost promotions, demotions, poor evaluations, being placed on probation, failure to accommodate, and the suspension and termination.

Damages

Pursuant to General Statutes § 46a-86(b), the Presiding Referee has the authority "to order the hiring or reinstatement of employees, with or without back pay." The Connecticut Supreme Court has further stated that "the victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is he has a right to be restored to the position he would have attained absent the unlawful discrimination…such an order for relief may include retroactive and prospective monetary relief…where prohibited discrimination is involved the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future." (Internal quotation marks omitted; citations omitted.) State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, No. CV92520590 (Superior Court, Judicial District of Hartford/New Britain at Hartford, Jan. 27, 1994, Maloney, J.). Consistent with federal law, the goal of the courts is to make the Complainant whole and put her in the position she would have been in absent the discriminatory conduct. Landgraf v. USI Film Prods., 511 U.S. 244, 254 (1994).

General Statutes § 37-3a authorizes the Human Rights Referee to award prejudgment interest on the back pay award. The award of interest on back pay is within the discretion of the Human Rights Referee. Silhouette Optical Limited v. Commission on Human Rights and Opportunities, supra, No. CV92520590 (Superior Court, Judicial District of Hartford/New Britain at Hartford).

The Complainant requested that she be reinstated to a Labor Grade 11 position; be paid full back pay and benefits (including seniority, pension, vacation time, sick time and personal time, including all such that had accrued prior to the date of her termination) retroactive to January 17, 1999, two years prior to the date of her initial complaint; and receive statutory interest upon the entire award. See Prayer for Relief. On August 4, 2005, the Complainant was ordered to file a supplemental prayer for relief with its reply brief to provide the figures necessary to calculate back pay damages and other relief if so awarded; however, she failed to provide that information. Though evidence exists in the record from which I am able to calculate the necessary figures for back pay damages; the record does not contain the figures necessary to calculate any further relief associated with benefits. CHRO Ex. 79, 81, 82, 86, 89, 90, 95. Additionally, the suspension and termination were not found to be discriminatory and therefore, damages cease on December 2, 2002. FF 65.

The Respondent is found liable for the hostile work environment it created while the Complainant worked at ESM as a pantry worker from November 2001 until February 23, 2002. During that time, she was working 40 hours per week for $13.23 per hour. FF 64. But for the hostile work environment, she would have been paid $21,168.00 from February 23, 2002 through December 2, 2002 when she was legally suspended without pay and ultimately terminated. FF 65. It has been established that the Complainant has a general duty to mitigate. See NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2nd Cir. 1965); Vera Lozano v. International Broadcasting 50 F.3rd 67 (1st Cir. 1995). The Respondent has the burden of establishing that the Complainant failed to mitigate. Ann Howard's Apricot Restaurant v. CHRO, 237 Conn. 209 (1996). The trier of fact determines what constitutes a reasonable effort to mitigate damages. Id. The Respondent did not argue that the Complainant failed to fully mitigate her damages.

The Complainant mitigated her damages during that time in the amount of $20,223.34. FF 65. It is known that at times the Complainant would obtain outside part-time employment while working with the Respondent. Tr. 407, 3820. However, there is no evidence in the record that this occurred in 2002. Also, the Respondent has not disputed this.

Therefore, the Complainant's back pay damages are $944.66. This is calculated as follows:

Total Damages but for the hostile work environment

• February 23, 2002 through December 2, 2002
  $13.23 multiplied by 40 hours multiplied by 40 weeks
  equals total pay $21,168.00. FF 66.

Total Mitigation is $20,223.34.

The Total Award of damages less mitigation are $944.66.

Order

In accordance with the provisions of General Statutes § 46a-86, the complaint allegations that the Respondent discriminated and retaliated against the Complainant in the terms and conditions of her employment when it suspended her, terminated her, failed to promote her, poorly evaluated her, placed her on probation, demoted her and aided and abetted against her because of her protected classes are HEREBY DISMISSED.

Conversely, the Respondent violated General Statutes § 46a-81c(1) when it created a hostile work environment based on the Complainant's sexual orientation and is liable to the Complainant for her injuries. The Complainant is entitled to an award of back pay along with 10% pre and post-judgment interest and other relief as ordered hereinafter.

So Ordered,
Dated this _______ day of November 2005 at the Office of Public Hearings, 21 Grand Street, 3rd Floor, Hartford, Connecticut.

____________________________________
The Honorable Donna Maria Wilkerson
Presiding Human Rights Referee

c. Attorney Patrick Noonan
Attorney John R. Williams
Raymond P. Pech, Assistant Director of CHRO
Ms. Erin Dwyer
Yale University

¹  Michael Sequeo died after he testified at the factfinding conference prior to the Hearing. The transcripts of his testimony from the factfinding conference were admitted as CHRO Ex. 110 A-C.

²  Although the Complainant testified that it was "Sheehan", the complaint allegation #9 alleged "Schand". Also, refer to footnote 2 infra.

³  In this section, it is unclear from the transcript whether the name mentioned on Tr. 287 and 767-68 should have been "Sheehan" or "Schand". As stated in the previous footnote, it appears that a mistake may have been made with the phonetic spelling of the actual person named by the witness due to the similarities of the names "Sheehan" and "Schand" as they were recorded by the court reporter's taping device. However, it is found that the investigator attempted to have the Complainant meet with one of the individuals she had complained about. The name will appear throughout the remainder of the decision as Sheehan/Schand.