Kennedy v. ECSU, Final Decision

STATE OF CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
OFFICE OF PUBLIC HEARINGS

CHRO No. 0140203

Fed No. 16aa14051

Commission on Human Rights and Opportunities ex rel. :
Valerie Kennedy

v.

Eastern Connecticut State University

December 27, 2004

FINAL DECISION

I. Parties

The complainant is Dr. Valerie Kennedy, of 187 South Bedlam Road, Mansfield, Connecticut, who appeared pro se. The Commission on Human Rights and Opportunities ("commission"), located at 21 Grand Street, Hartford, Connecticut, was represented by Attorney David L. Kent, of the Office of Commission Counsel. The respondent, Eastern Connecticut State University, with a business address of 93 Windham Street, Willimantic, Connecticut, was represented by Attorney Joseph A. Jordano, of the Office of the Attorney General.

II. Summary of Complaint, Answer and Decision

The complainant filed her Affidavit of Illegal Discriminatory Practice ("affidavit") on November 21, 2000. On August 24, 2001, the complainant filed an amendment to her affidavit and on March 18, 2004 she filed a "second amended complaint". In her affidavit as amended ("complaint"), the complainant alleges that the respondent (her employer at the time of the filing of the affidavit) violated General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4), 42 U.S.C. 2000e ("Title VII"), the federal Americans with Disabilities Act ("ADA") and Section 504 of the federal Rehabilitation Act of 1973 ("Rehabilitation Act") by discriminating against her on the basis of her sex and disability and in retaliation for her requesting reasonable accommodations for her disability. The respondent filed answers to the affidavit and complaint denying it discriminated against the complainant.

For the reasons set forth herein, the complaint is dismissed.

III. Procedural History

The affidavit was filed on November 21, 2000 and assigned to an investigator. After a preliminary investigation, the commission's investigator determined that there was reasonable cause to believe that an unfair practice was committed and, on October 27, 2003, certified the affidavit and first amendment to the commission's executive director and to the attorney general. Upon certification, the Honorable David S. Knishkowy was appointed as the presiding human rights referee. On May 10, 2004, the complaint was reassigned to the undersigned. The public hearing was held on July 8, 13, 14, 15, 16, 19 and August 20, 2004. The commission and the respondent filed their briefs on October 21, 2004, at which time the record was closed. The complainant did not file a brief.

Attached to the commission's brief was a copy of the respondent's response to the investigator's Schedule A request. The Schedule A response was not a contested case pleading nor had it been admitted, or even proffered, as an exhibit during the public hearing. Because the use of a post-hearing brief is an inappropriate method to introduce new evidence, the Schedule A response was not considered in this decision.

IV. Issues and Parties' Positions

In her complaint, the complainant alleged that the respondent illegally discriminated against her by failing to promote her, denying her tenure and not renewing her employment contract (referred to in the exhibits as an "appointment") for another academic year. However, at the time of the public hearing the commission and the complainant proceeded only on the second amended complaint, that the respondent failed to renew the complainant's employment contract because of her learning disability (attention deficit disorder) and her sex (female), and in retaliation for her having requested a reasonable accommodation for her disability. (Transcript page ("Tr.") 3, 17.) The commission contended that the respondent's "publish or perish" requirement was not consistently applied to faculty members and was discriminatorily applied to the complainant. (Tr. 24.)

According to the respondent, its legitimate, nondiscriminatory reason for non-renewal of the complainant's employment contract was the perception by the dean, vice president and president that the complainant's work in the area of creative activity (one of five evaluative categories to be considered pursuant to the collective bargaining agreement) lacked sufficient quality, particularly in the area of scholarly research in her field, to justify renewing her contract. (Tr. 31.)

V. Findings of Fact

References to an exhibit are by party designation and number. The commission's exhibits are denoted as "CHRO Ex." followed by the exhibit number; and the respondent's exhibits are denoted as "R. Ex." followed by the exhibit number. The complainant did not proffer any exhibits. Even though the commission and the respondent introduced some of the same documents, the documents have different exhibit designations and citations herein may reference only one party's exhibit number.

Based upon a review of the pleadings, exhibits, testimony and transcripts, and an assessment of the credibility of the witnesses, the following facts relevant to this decision are found:

VI. Analysis

"While we do not second-guess an employer's hiring standards, the reasons for its employment decision, including its alleged reliance on such standards are subject to scrutiny …." (Internal quotation marks omitted; citations omitted.) Board of Education for the City of Norwalk v. Commission on Human Rights and Opportunities ("Norwalk"), 266 Conn. 492, 513 (2003). The purpose of the public hearing, then, is not to second-guess the respondent's hiring practices. Rather, this hearing is to determine whether the respondent's reasons for not renewing the complainant's contract and terminating her employment are not credible. "This distinction is subtle but important. The essence of this distinction can be illustrated by the following two scenarios. In the first scenario, the fact finder determines that the reasons that the employer offers are not important even though the employer sincerely believes that they are important. This scenario represents an improper interference with the right of an employer to determine the qualifications of its applicants. In the second scenario, however, … the fact finder does not find the reasons are not important, but, rather, that the employer does not even believe that the reasons are important." Id., 514.

A. Section 46a-60(a)(1)
1.

The complainant alleged that the respondent discriminated against her on the basis of her sex and learning disability in violation of § 46a-60(a)(1). Section 46a-60(a) provides in part that "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupation qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness …."

2.

The complainant must prove by a preponderance of the evidence that the respondent discriminated against her on the basis of her sex and/or learning disability. To establish the respondent's liability, the complainant must first establish a prima facie case. "The establishment of a prima facie case creates a rebuttable presumption of discriminatory intent. …. The burden of establishing a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder. The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff's favor." Craine v. Trinity College ("Craine"), 259 Conn. 625, 638 (2002).

To establish a prima facie case of sex and disability discrimination, the complainant must demonstrate that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to the inference of discrimination. Norwalk, supra, 266 Conn. 505; Craine, supra, 259 Conn. 638; Connecticut Commission on Human Rights and Opportunities v. City of New Britain ("New Britain"), 2003 Conn. Super. LEXIS 2059, 13-14. The "qualified" element of a prima facie case means that a significant portion of the complainant's departmental faculty recommended renewal of her contract. Craine, supra, 259 Conn. 639.

If the complainant establishes a prima facie case, the burden of production shifts to the respondent to articulate a legitimate, non-discriminatory reason for the adverse employment action. The respondent's burden is one of production, not persuasion, and involves no credibility assessment. If the respondent articulates such a reason, the complainant then has a burden of persuasion to prove by a preponderance of the evidence that the respondent's articulated reason is merely a pretext for discrimination and that one or more protected traits actually motivated the respondent's decision. Notwithstanding the intermediate shifting of burdens, the complainant retains the ultimate burden of proving that the respondent intentionally discriminated against her on the basis of her sex and/or disability. Norwalk, supra, 266 Conn. 506-07; Craine, supra, 259 Conn. 637; New Britain, supra, 2003 Conn. Super. LEXIS 2059, 13-14.

3.

The complainant established the four elements of her prima facie case. First, with regard to her protected class status, she is a female and has a learning disability. (Findings of Fact paragraph ("FF") 17, 32-36.) Second, she was qualified for the position as evident by the contract renewals for her second through fifth years and the DEC recommendation that her contract be renewed for a sixth year. (FF 19, 22, 26, 31, 46.)Third, she suffered an adverse employment action in that her contract was not renewed for a sixth year. Although, pursuant to the collective bargaining agreement, she received a final one-year contract after the non-renewal, her employment with the university was terminated at the completion of that final contract, and she could not thereafter apply for another one-year contract, promotion or tenure. (FF 5,49.) Finally, the non-renewal occurred under circumstances giving rise to an inference of discriminatory animus in that she was the only person who, in her fifth year, had ever been denied a contract renewal. (Tr. 885, 1244.) Also, the denial occurred after Kleine, Pachis and Carter became aware of the complainant's disability and while the complainant was attempting to obtain the information relating to her request for accommodations of her disability. (FF 37-42, 49.)

The respondent argued that the complainant cannot compare her renewal application with those of other professors because of the subjective nature of the portfolios and because their portfolios would have been reviewed by DECs and deans different from those who reviewed the complainant's portfolio. However, at least for purposes of a prima facie case, the complainant is similarly situated to other professors. Regardless of what academic department the professor was in, all professors were subjected to the same renewal criteria (FF 14; CHRO Exs. 4 and 5) and the same decision-maker, Carter. (FF 11.) The various DECs and deans merely offered non-binding recommendations that Carter could, and occasionally did, reject. (FF 11; Tr. 1141, 1236-37, 1239, 1245-46.)

The respondent articulated a legitimate, non-discriminatory business reason for its decision: the complainant's portfolio did not show quality work in the area of creative activity. (Tr. 1146-49, 1152, 1233-35.) Once the respondent articulates a reason, the complainant must establish by a preponderance of the evidence that the respondent's articulated reason is pretextual and that her contract was not renewed because of discriminatory reasons. Specifically in regard to alleged employment discrimination at an educational institution, the complainant must establish that the respondent does not believe that its legitimate business reason, lack of evident quality in the area of creative activity, is important. Norwalk, supra, 266 Conn. 514. The complainant has not met this burden.

First, the respondent clearly believes that evidence of quality is important. The collective bargaining agreement between the respondent and the complainant's union states: "The criterion for evaluating and recommending full-time members … shall be the quality of activity, including keeping current in one's field, within each of the categories listed below [load credit activity, creative activity, productive service to the department and university, professional activity, years in rank] …." (Emphasis added.) (CHRO Ex. 4, p. 24.) The respondent's faculty senate adopted a bill stating in relevant part: "Quality, not quantity, is what matters. A positive retention, tenure or promotion decision asserts the University's judgment that the candidate has met the standards of excellence of the University as well as her or his discipline and department. …. Excellence in a single area cannot, by itself, carry a career at Eastern Connecticut State University." (Emphasis added.) (CHRO Ex. 5, p.1). The respondent's stated belief in the importance of quality is supported by these contractual and academic obligations.

Second, without second guessing the respondent as to what constitutes quality creative activity, the undersigned finds credible the testimony of the dean, vice president and president (and a review of the exhibits constituting the complainant's portfolio) that there was inadequate information in the complainant's portfolio from which quality could be determined. (Tr. 1146-49, 1152, 1233-35; CHRO Exs. 1, 2, 22; R. Ex. 3.) Quality is a difficult term to define and different conferences and publications have a wide range in the standards of academic rigor they require in the material they will accept to be presented or published. For example, a conference presentation may be an informal luncheon engagement. Or, a presentation may require the prior submission of an entire paper that will be peer-reviewed and pre-approved before one actually addresses a conference. (Tr. 1135-36, 1201.) A conference presentation may be open to virtually anyone who wants to speak or it may be selective in whom it invites to make a presentation. (Tr. 1135-36, 1231.) Presentations might be given at a local conference or a national conference. (Tr. 1133.) Likewise, there is a wide variety of what constitutes a "publication". For example, publications can range from a paper (with no prior peer review) published in connection with a conference presentation to a manuscript in a high quality journal with a rigorous pre-approval selection process. (Tr. 1133-34, 1231.) Therefore, because of these differing standards, it is important that the actual materials presented or published be included in the portfolio as evidence of the requisite quality of creative activity.

Because of these diverse standards, simply citing a publication or a conference presentation in one's vitae without supplying supporting documentation is inadequate for a reviewer to determine the quality of one's role in a conference or the quality of one's publications. This supporting evidence of quality can include comments by peers who have reviewed drafts of papers, the published paper itself, or evidence that one's colleagues are citing one's work in their research. (Tr. 1132, 1134, 1231.) Supportive material can include a video tape of the conference presentation (Tr. 1231), a program book indicating an interactive workshop, handouts, and post-conference correspondence from attendees requesting further information or suggesting joint research projects (Tr. 1137-39.)

The complainant's portfolio lacks verification of quality in the activities she cited for her creative activity. (Tr. 1146-49, 1152, 1233-35; CHRO Exs. 1, 2, 22; R. Ex. 3.) The complainant's supporting documentation generally consists of abstracts of her presentations and manuscripts and of conference agendas giving only her name and the title of her presentation. (CHRO Exs. 1, 2, 22; R. Ex. 3.) She did not provide the actual presentation or the manuscript. Abstracts do not contain sufficient information to determine the quality or intellectual rigor that went into the paper or presentation. (Tr. 1233-34.) The complainant did not include in her portfolio any of her published papers, works in progress or comments about her papers by her peers from which quality could be determined. She did not include any handouts, detailed notes, syllabi, or video or tape recordings from which the quality of her presentations could be determined. As the complainant's papers were co-authored and her presentations were co-presented (and many had similar titles), one could not determine the extent and quality of her individual contribution or the substance of, or the substantive differences among, her presentations and publications. (Tr. 629-62; 1156-57, 1233-35, 1238; CHRO Exs. 1, 2, 22; R. Ex. 3.)

Further, the commission and the complainant did not offer persuasive arguments that the respondent's explanation is a pretext for discriminatory action. In its brief, the commission argued that pretext is evident by the irregular manner in which the respondent applied its criteria as to the complainant. In support of this proposition, the commission cites several examples of alleged irregularity. These examples include the fact that the complainant had been renewed several times prior to the non-renewal and that she was the only person ever denied renewal for the sixth year. However, while the complainant's denial of renewal may be an irregular result, it was not the product of an aberrant process. The renewal process was the same for the complainant as it was for all professors applying for renewal, and was the same process as in past years that had resulted in renewal of the complainant's contract. The commission's argument also implies that once a professor is granted a contract renewal, future renewals should be guaranteed. However, contract renewal is not guaranteed. (FF 13.) Occurring during a six-year probationary period, contract renewal is an annual application and intense review process. (FF 3, 4, 7-12.)

Arguing that non-renewal requires a showing of deficient performance in all of the categories, the commission argued that the complainant's contract should have been renewed because her performance in the areas of teaching, service to the department and professional activity had no demonstrable deficiencies. However, the applicable standard is not the showing of deficiencies in all categories, but rather a showing of "the quality of activity … within each of the categories …." (Emphasis added.) (CHRO Ex. 4, p. 24.) Further, "[e]xcellence in a single area cannot, by itself, carry a career at Eastern Connecticut State University." (CHRO Ex. 5, p.1.) As previously discussed, the complainant's portfolio lacked a showing of quality in the area of creative activity.

The commission argued that the respondent arbitrarily chose one type of creative activity, publication, and then unilaterally imposed it on the complainant as a prerequisite for her renewal even though other professors had been renewed, even tenured, without publishing. However, the complainant self-identified "papers and presentations" and "curriculum development" as her areas of creative activity. Having selected them herself, it was incumbent upon her to substantiate the quality of her work in those areas. While other professors may have been renewed and tenured without publishing, there is no evidence as to how they self-defined their creative activity or the information they included in their subsequent portfolios to substantiate their work.

The commission noted that Pachis' recommendations of other faculty included both general suggestions on how to improve their performance and, in some cases, the specific identification of deficiencies in a faculty member's performance. Because, the commission argued, even those faculty members who had deficiencies were renewed in subsequent years, the complainant's non-renewal must be pretextual. However, these professors may have improved their performance or submitted more detailed substantiation in their later portfolios. Because their portfolios were not submitted as evidence, comparing them to the complainant's would be inappropriate speculation.
The commission also argued that the quality of the complainant's portfolio had improved. Her presentations in local, regional and national symposiums and workshops increased, as had her publications. Although the evidence establishes that the quantity of the complainant's publications and presentations had cumulatively increased, "[q]uality, not quantity, is what matters" (CHRO Ex. 5, p. 1). Absent the complainant's actual work product, the respondent did not have the requisite information to establish the quality of her creative activity.

The commission also seemed to imply that it was the respondent's failure to timely provide reasonable accommodations for the complainant's learning disability that resulted in her creative activity deficiencies. However, first, this is not a reasonable accommodation case and, second, the respondent's business reason is not that the complainant did not engage in creative activity but that she failed to substantiate in her portfolio the creative activity she claimed.

The commission also unsuccessfully attempts to show pretext by arguing that Kleine's testimony at the public hearing as to why the complainant's contract was not renewed differed from her testimony at the arbitration hearing on the complainant's grievance over the non-renewal. However, no transcript of Kleine's arbitration testimony was admitted at the public hearing. Also, the arbitrator found that Kleine's had serious concerns over the quality of the complainant's creative activity. (FF 50.) More importantly, Kleine was not the decision-maker as to whether the complainant's contract was renewed. Kleine merely offered one of several recommendations to Carter, the decision-maker. (FF 11.) There is no evidence that Kleine communicated with Carter as to her reasons for recommending non-renewal beyond her written recommendation that became part of the complainant's portfolio. (FF 12; CHRO Ex. 25.)

The commission's arguments that the respondent's actions were a pretext for discrimination are largely a recital of its prima facie case. Although the commission and the complainant established a prima facie case, they did not produce sufficient evidence for the undersigned to conclude that the respondent's legitimate business reason is false. Norwalk, supra, 266 Conn. 508.

B. Section 46a-60(a)(4)
1.

The complainant also claims that the respondent violated § 46a-60(a)(4) by retaliating against her because she requested an accommodation for her learning disability. Section 46a-60(a) provides in part that "It shall be a discriminatory practice in violation of this section: … (4) For any person, employer, labor organization or employment agency 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 or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 …."

2.

In order to prove her retaliation claim, the complainant must first establish a prima facie case of discrimination. This requires the complainant to show: (1) participation in a protected activity; (2) the respondent's awareness of the complainant's participation in the protected activity; (3) adverse employment action taken by the respondent against the complainant; and (4) a causal connection between the protected activity and the adverse action. Gordon v. New York City Board of Education, 232 F.3d 111, 116 (2d Cir. 2000).

The second required element is satisfied if the complainant can establish that the respondent had general corporate knowledge that she had engaged in a protected activity; she need not establish that specific agents or decision-makers knew of the protected activity. However, lack of knowledge on the part of a particular agent or decision-maker may serve as evidence of a lack of a causal connection, countering the complainant's circumstantial evidence. Id., 116-17. The complainant can establish a causal connection, the fourth required element, "either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the [complainant] by the [respondent]." Id., 117.

Once the complainant has established a prima facie case, the burden of production shifts to the respondent to articulate a legitimate, nondiscriminatory reason for her non-renewal. If the respondent satisfies this burden, the complainant has an opportunity to prove by a preponderance of evidence that the reason offered by the respondent was merely a pretext for retaliation. Quinn v. Green Tree Credit Corporation, 159 F.3d 759, 768-769 (2d Cir. 1998). The complainant "need not disprove the [respondent's] proffered rational for its adverse actions in order to prevail." Gordon, supra, 232 F.3d 117. She may prevail and meet her burden of proof "either by proving that a discriminatory motive, more likely than not, motivated the [respondent] or by proving both that the reasons given by the [respondent] are not true and that discrimination is the real reason for its actions." (Internal quotation marks omitted; citation omitted.) Id.

3.

The complainant established the four elements of her prima facie case. First, her good faith request for a reasonable accommodation constitutes a protected activity. (Commission on Human Rights and Opportunities ex rel. Thomas Nobili v. David E. Purdy & Company, LLC, CHRO No. 0120389, Final Decision, February 6, 2004.) Second, the respondent was aware of the complainant's request. She had discussed the matter with Green, Kleine and Pachis. (FF 37-39, 41.) Green relayed at least general information to Carter. (Tr. 973-76.) Third, the complainant incurred an adverse employment action when the respondent did not renew her employment contract (FF 49.) Fourth, a causal connection exists in that the adverse employment action occurred while the complainant and the respondent were engaged in discussions and gathering information regarding the complainant's need and request for accommodations. (FF 42, 49.)

The respondent articulated a legitimate nondiscriminatory reason for its non-renewal of the complainant's employment contract: lack of evidence of quality work by the complainant in the area of creative activity. (Tr. 1146-49, 1152, 1233-35.)

However, the complainant did not meet her burden of proof that the respondent's business reason is a pretext for retaliation. The evidence presented did not establish that a discriminatory animus motivated Carter's decision not to renew the complainant's contract. Also, as previously discussed, the complainant did not establish that the respondent's stated reason, lack of evidence of quality, was untrue.

C. Section 46a-58(a)
1.
a.

The commission and the complainant argued that the respondent violated Title VII and the Rehabilitation Act, and that the commission can prosecute violations of the federal laws pursuant to General Statutes § 46a-58(a). The respondent argued that the commission lacks subject matter jurisdiction over federal statutory claims. Section 46a-58(a) provides that "It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability." For the reasons set forth, I conclude that violations of such federal laws could constitute a violation of § 46a-58(a) and that the commission is statutorily authorized to prosecute violations of § 46a-58(a).

First, P. A. 03-154 provides that: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or workable results, extratextual evidence of the meaning of the statute shall not be considered." Section 46a-58(a) plainly and unambiguously makes a "deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States" a "violation of this section". Nor would it be an unworkable result for a violation of federal laws to be a violation of this section; rather, such a result would be consistent with the historic remedial purposes of this chapter.

Second, in Trimachi v Connecticut Workers Compensation Committee, the court determined that "General Statutes 46a-58(a) has expressly converted a violation of federal antidiscrimination laws into a violation of Connecticut antidiscrimination laws." 2000 Conn. Super. LEXIS 1548, 21.
Third, in a recent decision the Connecticut Supreme Court concluded that, under § 46a-58(a), the commission could prosecute violations of General Statutes §§ 10-15c and 10-4b. The court further determined that the remedies available under General Statutes §46a-86(c) apply to violations of § 46a-58(a). Commission on Human Rights and Opportunities v Board of Education of the Town of Cheshire ("Cheshire"), 270 Conn. 665 (2004). The court's rationale in finding that the commission had jurisdiction of the state education claims is as applicable to violations of federal discrimination law as it is to violations of §§ 10-15c and 10-4b.

Therefore, I conclude that pursuant to § 46a-58(a) the commission does have jurisdiction to prosecute alleged violations of Title VII and the Rehabilitation Act. I also conclude, based on Cheshire, that if the commission and/or the complainant establish the respondent's liability under applicable federal law, that liability would constitute a violation of § 46a-58(a) and the commission and the complainant would have the remedies available to them under § 46a-86(c).
In addition, the worksharing agreement between the commission and the Equal Employment Opportunity Commission ("EEOC") requires the commission to investigate Title VII allegations. (CHRO Ex. 96.) This public hearing and decision are part of that mandated investigation.

b.

The commission and the complainant argued that the respondent's conduct violated federal anti-discrimination laws, i.e., Title VII and the Rehabilitation Act and, therefore, violated § 46a-58(a). Section 46a-58(a) converts a violation of federal law into a violation of state law only in those instances in which the discriminatory practice is based "on account of religion, national origin, alienage, color, race, sex, blindness or physical disability." Learning disability is not included in this list. Under Connecticut law, a learning disability is separate and distinct from a physical and mental disabilities. See General Statutes §§ 46a-51(15), 46a-51(19), 46a-51(2) and 46a-60(a)(1)⁵. Hence, even if the respondent had discriminated against the complainant on the basis of her learning disability, such conduct would not constitute a violation of § 46a-58(a) and the remedies of § 46a-86(c) would be unavailable.

However, because complainant is also alleging violations of federal law based on her sex and because the commission has contractual and statutory obligations under its worksharing agreement with the EEOC to process cases alleging violations of Title VII, this decision will analyze the complainant's federal claims.

2.

In analyzing the complainant's Title VII claim, it is necessary to examine the results of the arbitration hearing and impact of that result on the Title VII claim. Pursuant to a collective bargaining agreement, the complainant filed a grievance against the respondent for its failure to renew her contract. At the arbitration hearing, the respondent argued that it had not renewed the complainant's employment contract because of deficiencies in the contractual category of creative activity. The complainant's union argued that Kleine had recommended against renewing the complainant's contract in retaliation for reasons that included the complainant's December 1999 request for part-time status for health reasons and her January 2000 request for work accommodations because of her disability. The arbitrator concluded that Kleine had recommended against renewing the complainant's employment contract because Kleine "had serious problems with the [complainant's] 'Creative Activity' performance …." (FF 50;.R. Ex. 20.)

In a Title VII claim, "[w]here an employee's ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee's termination and the employer's illegal motive. " Collins v. New York City Transit Authority, 305 F.3d 113, 115 (2d Cir. 2002). A termination that occurs "only after a decision, based on substantial evidence, of an undisputedly independent, neutral, and unbiased adjudicator that had the power to prevent the termination … is highly probative of the absence of discriminatory intent in that termination." (Citations omitted.) Id., 119. An arbitration decision in favor of an employer's actions may be viewed as an attack on the complainant's prima facie case as well as an attack on a claim of pretext. Id., 119, n.1. "In sum, a negative arbitration decision rendered under a [collective bargaining agreement] does not preclude a Title VII action by a discharged employee. However, a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link. Where, as here, that decision follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact - - e.g. new evidence not before the tribunal - or that the impartiality of the proceeding was somehow compromised." (Internal citation omitted.) Id., 119.

Thus, an arbitration award impacts claims under §46a-60 differently than it does § 46a-58(a) claims alleging a violation of Title VII. Unlike General Statutes § 46a-85 which allows the presiding officer to accord an arbitration award whatever weight he deems appropriate in a claim of discrimination under § 46a-60(a), an arbitration award, while not dispositive of a § 46a-58(a) claim alleging a Title VII violation, must be accorded probative value and the award itself can defeat a prima facie case absent a showing of new evidence or a biased arbitration proceeding. With respect to the complainant's arbitration, the arbitrator concluded that Kleine's reasons for recommended non-renewal of the complainant's contract was Kleine's serious concerns regarding the quality of the complainant's creative activity. (FF 50.) The arbitrator also concluded that the respondent did not violate the collective bargaining agreement with respect to the evaluation process and recommendation regarding the non-renewal of the complainant's contract. (FF 51.) The complainant did not offer evidence challenging the impartiality of the arbitrator or of the arbitration proceeding and did not identify new evidence that was unavailable to the arbitrator.

Further, even if the arbitration award were not probative of the §46a-58(a) claim, the complainant could not prevail on the underlying Title VII violation. To establish the respondent's liability under Title VII, the complainant must establish a prima facie case. The respondent then may produce a legitimate nondiscriminatory business reason for its decision. If the respondent produces a reason, the complainant must prove by a preponderance of the evidence that the respondent discriminated against her because of her disability, her sex and/or in retaliation for her requesting accommodations. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). However, the complainant has not met her burden of proof. Assuming the complainant established her prima facie case, the respondent produced a legitimate nondiscriminatory business reason: the lack of evidence in the complainant's portfolio of quality work in the area of creative activity. (Tr. 1146-49, 1152, 1233-35.) As previously discussed, the complainant did not prove by a preponderance of the evidence that this reason was untrue or a pretext for discrimination.

3.

In order to establish a prima facie case of employment discrimination under the Rehabilitation Act, the complainant must show that (1) she was handicapped within the meaning of the Rehabilitation Act, (2) she was otherwise qualified to perform the essential functions of her position, (3) her contract was not renewed solely because of her learning disability, and (4) the respondent received federal financial assistance. Bates v. Long Island Railroad Company, 997 F.2d 1028, 1035 (2d Cir. 1993), cert. denied, 510 U.S. 992 (1993).

Even if the complainant satisfies conditions (1), (2) and (4), she has not, for reasons previously set forth, established that her contract was not renewed solely because of her handicap. Credible testimony and the portfolio itself support the respondent's stated business reason that her portfolio lacked the requisite showing of quality in the area of creative activity. (Tr. 1146-49, 1152, 1233-35; CHRO Exs. 1, 2, 22; R. Ex. 3.)

VII. Conclusions of Law

VIII. Order

The complaint is dismissed.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Dr. Valerie Kennedy
Ms. Constance Belton Green
Joseph A. Jordano, Esq.
David L. Kent, Esq.

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¹  Pachis' recommendation letter is in two versions: CHRO Ex. 9 and R. Ex. 16. In CHRO 9, Pachis wrote: "However, I strongly urge Dr. Kennedy to put greater emphasis on sharing the product of her scholarship with colleagues in her field through publications and other scholarly means." In the R. Ex. 16 version, this caveat appears as the sentence: "I strongly urge Dr. Kennedy to put greater emphasis in the area of creative activity appropriate to her field."

²  In the exhibits and transcripts, the complainant's condition is alternatively referred to as attention deficit disorder (ADD) and attention deficit/hyperactivity disorder (ADHD). It is not disputed that, as it relates to the complainant, both terms reference the same condition. This decision will use ADD as that is the designation used by the complainant's treating licensed clinical psychologist in his reports, CHRO Ex. 16 and CHRO Ex. 31.

³  The portfolio consisted of four volumes. Relevant to this decision is volume 1 which originally consisted of some version of R Ex. 3 and CHRO Ex. 1, as supplemented by CHRO Ex. 2 and CHRO Ex. 22. Neither the commission's nor the respondent's versions of this volume are accurate as to what was presented to the DEC, dean, vice president and president. For example, the commission's version includes materials that were clearly, and admittedly, not added until after the portfolio was reviewed. The respondent's version includes a lien by the department of social services against an individual who clearly has no connection to this case. Despite the inaccuracy of these exhibits, the similarities of the exhibits and the testimony given permit a sufficient understanding of what this volume of the portfolio included, and did not include. Volumes 2-4 were not introduced as evidence.

⁴  Portions of this exhibit are illegible. But, testimony and the remainder of the exhibit permit a sufficient understanding of the issues and decision of the arbitration.

⁵  P.A. 90-330 amended § 46a-60(a)(1) to include learning disability as a protected trait. The act did not make a corresponding change to § 46a-58(a) nor has such a change been made since then.