Payton v. DMHAS - 0220394, Ruling Re: R's Motion to Dismiss

CHRO No. 0220394

Fed No. 16aa201183

Commission on Human Rights and Opportunities ex rel.
Meredith Payton

v.

State of Connecticut, Department of Mental Health and Addiction Services

July 6, 2004

Ruling re: the respondent's motion to dismiss

I.

By a motion to dismiss filed on May 27, 2004 ("motion"), the State of Connecticut, Department of Mental Health and Addiction Services ("respondent" or "DMHAS") moves to dismiss the Affidavit of Illegal Discriminatory Practice ("complaint") filed by Meredith Payton ("complainant") with the Commission on Human Rights and Opportunities ("commission" or "CHRO"). The commission filed its objection to the motion ("objection") on June 25, 2004. The respondent filed a response to the commission's objection on June 30, 2004. The complainant did not file a response.

For the reasons set forth herein, judgment is entered in favor of the respondent and the case is dismissed.

II.

The complainant filed his complaint with the commission on May 8, 2002. He claims that the respondent violated General Statutes § 46a-60(a)(1) and Title VII of the federal Civil Rights Act of 1964, as amended, by discriminating against him in the terms and conditions of his employment on the basis of his religion. According to the complaint, the respondent will not allow him to use his religious title, "reverend", in the context of his employment relationship and is treating him differently than another DMHAS employee whom the respondent had allowed to use a religious title.

III.

General Statutes § 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 occupational qualification or need, to … discriminate against such individual in compensation or in terms, conditions or privilege of employment because of the individual's … religious creed …." There are two general methods to allocate burdens of proof in an employment discrimination case: (1) the pretext/McDonnell Douglas-Burdine model, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and (2) the mixed motive/Price Waterhouse model, Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989).

IV.

A.

1.

The respondent raises three arguments in its motion. First, it argues that the complainant has not incurred any adverse employment action. Second, the respondent argues that there are no facts from which an inference of discrimination can be drawn. Third, the respondent argues that the complaint should be dismissed because the requested relief would result in the respondent violating the Establishment Clauses of the federal and state constitutions. (Motion, 1.)

In its objection, the commission argues that the complainant has stated a claim for which relief can be granted and has alleged sufficient facts from which an inference of discrimination can be drawn. The commission also argues that practical relief can be awarded to the complainant and that the respondent has failed to prove that the relief sought violates the Establishment Clauses of the federal or state constitutions (Objection, 3). According to the commission, the practical relief that could be granted includes allowing the complainant to wear his ministerial collar on the job site, to play religious music at his desk, to use his religious title at work, and to be addressed by his religious title in the performance of his job duties. (Objection, 8-9, 13.)

According to the commission, the complainant's allegations in his complaint include that the respondent would not allow him to play religious music and harassed him regarding religious items on his desk. The commission also asserts that the complaint alleges that other DMHAS employees were allowed to play secular music and use profanity. (Objection, 5-6, 8, 9, 10-11, 11-12). Actually, however, these incidents are not alleged in the complaint. Also, the commission's objection is not accompanied by an affidavit by an individual with personal knowledge of these alleged incidents. It is also not clear from the complaint that the respondent objected to the complainant using his religious title in personal interactions with staff and client. As counsel for the commission does not represent the complainant, I am unsure of her authority to make factual representations on behalf of a non-client and about which her own client has no personal knowledge. However, for purposes of this motion I will treat these incidents as having been alleged by the complainant.

2.

A motion to dismiss tests, among other things, whether on the face of the record the tribunal lacks jurisdiction. Upson v. State, 190 Conn. 622, 624 (1983). Here, the respondent's three arguments do not constitute a claim of lack of jurisdiction. Rather, its first two arguments essentially are that the complainant cannot prove even a prima facie case, that there are no genuine issues of material fact and, therefore, that it is entitled to judgment as a matter of law. This is more properly a motion for summary judgment. The respondent's third argument essentially challenges the legal sufficiency the complainant's proposed relief. This is more properly a motion to strike. Therefore, notwithstanding its designation, the respondent's motion to dismiss will be treated, where appropriate, as a motion for summary judgment and as a motion to strike. See Commission on Human Rights and Opportunities ex rel. Thomas Nobili v. David E. Purdy & Company, LLC., CHRO No. 0120389, p. 2 (Ruling on motion to dismiss, January 17, 2003) and Commission on Human Rights and Opportunities ex rel. Lorraine Stevens v. The Urban League of Hartford, CHRO No. 0010328, p. 1-2 (Ruling on motion to dismiss, December 5, 2002).

B.

1.

"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. In deciding a motion for summary judgment the trial court must view the evidence in the light most favorable to the nonmoving party. Summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." (Internal quotations omitted; internal citations omitted.) Sizer v. Connecticut Post, 2004 Conn. Super. LEXIS 1272, *3-4; Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368 (2000); Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712 (1993).

The respondent analyzes this case using the McDonnell Douglas method and first argues that the complainant cannot establish a prima facie case of religious discrimination. To establish a prima face case of disparate treatment, the complainant "must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class." (Citations omitted.) Williams v. New York City Department of Sanitation, 2001 U. S. Dist. LEXIS 15594 *53 (S.D.N.Y.). The respondent asserts that the complainant cannot establish the third and fourth elements: he cannot show that he has incurred an adverse employment action and he cannot show an inference of discrimination.

2.

An adverse employment action includes termination of employment, demotion evidenced by a decrease in wages or salary or a material loss of benefits. Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2nd Cir. 2000); Connecticut Commission on Human Rights and Opportunities v. City of New Britain, 2003 Conn. Super. LEXIS 2059, *15. Adverse employment actions can also take the form of non-economic actions such as a less distinguished title, significantly diminished material responsibilities (Galabya, supra, 202 F.3d 640; Connecticut Commission on Human Rights and Opportunities, supra, 2003 Conn. Super. LEXIS 2059, *15) or the employer's creation of a hostile work environment (Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001); Ray v. Henderson, 217 F.3d 1234, 1241-42 (9th Cir. 2000)). Other indicia unique to a particular situation may also constitute an adverse employment action. Galabya, supra, 202 F.3d 640.

In the present case, the complainant was not terminated from employment. He did not suffer a decrease in salary or benefits or a change in his material job duties. Also, the facts alleged in the complaint and the commission's objection construed most favorably to the complainant do not give rise to a religiously hostile work environment. Rather, the actions taken by the respondent reflect the respondent's obligation (as a public employer) "to provide services in a religion-neutral manner." Knight v. State of Connecticut Department of Public Health and Quental v. State of Connecticut Commission on the Deaf and Hearing Impaired, 275 F.3d 156, 168 (2001) (consolidated cases). Under the facts of this case, the respondent's actions do not rise to the level of an adverse employment action.

3.

The respondent argues that the complainant not only cannot show an adverse employment action but also cannot establish an inference of discrimination. To establish an inference of discrimination, the complainant must show "that he was treated differently than persons outside the relevant protected classes." Williams, supra, 2001 U. S. Dist. Lexis 15594, *59. Also, the persons outside his protected class to whom he compares himself must be similarly situated. "To show that persons are similarly situated in all relevant aspects, [the complainant] must demonstrate that he was similarly situated … in terms of position, performance, qualifications, and conduct. …. In addition, the Court must consider whether other differentiating or mitigating circumstances distinguish the respective employees." (Internal citations omitted.) Blake-McIntosh v. Cadbury Beverages, 1999 U. S. Dist. LEXIS 16550, *38 (D. Conn.). In this case, the complainant and Arthur Norton ("Norton"), his comparison, are both in the same protected class - both are ordained Christian ministers. Also, Norton and the complainant are not similarly situated. They did not have the same job title - Norton's job title was associated chaplain, complainant's was case manager. Further, even if Norton and complainant could be construed as different protected classes, Norton retired five years before the complaint was filed. The difference between the treatment of Norton and the complainant reflect the respondent's conformance with its obligations to provide services in a religiously neutral manner.

Similarly, the respondent's revocation of its prior permission that the complainant could use his religious title also reflects its belated conformance with its obligations to provide public services in a religiously neutral manner.

The commission also argues that employees who were allowed to play secular music and use profanity during work hours are similarly situated to the complainant. The commission fails to identify the employees' positions, job duties, supervisors, or even the names of these employees. Assuming that there are such employees, secular music and profanity do not violate the Establishment Clauses. Although disciplinary action may be warranted in the use of profanity, as the complainant also was not disciplined or subjected to adverse employment action for his religious references, he is not being treated disparately.

C.

In its motion to dismiss, the respondent analyzes this case under the McDonnell Douglas paradigm. This method of allocating burdens of proof is used in the absence of direct evidence of employment discrimination when the complainant's case on a showing of inference and pretext. McDonnell Douglas Corp, supra, 411 U.S. 802-04; Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 224-26 (1996). This case, however, presents direct evidence of the respondent intentionally making a religious-based decision. Both the complainant and the respondent agree that a supervisor told the complainant that he could not use his religious title at work. In the situation where direct evidence is present, the appropriate analytical method is the mixed-motive/Price Waterhouse model. Price Waterhouse, supra, 490 U.S. 246. To make out a prima facie case of religious discrimination, the complainant must show that "[he] held a bona fide religious belief conflicting with an employment requirement; (2)[he] informed [his] employer[ ] of this belief; and (3) [he] was disciplined for failure to comply with the conflicting employment practice." Knight and Quental, supra, 275 F.3d 167. Should the complainant establish a prima facie case, the burden then shifts to the respondent to show a bona fide occupational need, or undue hardship, that prevents it from accommodating the complainant's belief. Id.; § 46a-60(a)(1).

In the present case, the complainant makes no claim that his use of a religious title at work, playing of religious music or displaying religious items on his desk are requirements of his religious belief. Nor, as previously discussed, was the complainant disciplined or subjected to adverse employment actions. Even assuming that he established a prima facie case, the respondent demonstrated a bona fide occupational need to proscribe the complainant's religious activities at the work site: if it allowed the complainant to engage in religious behavior at work, the respondent would be violating the Establishment Clauses of the federal and state constitutions, as discussed more fully in the next section.

D.

The respondent also claims that, even if the complainant prevailed on the merits, his requested relief is unconstitutional. A party seeking to challenge the legal sufficiency of any prayer for relief may do so by filing a motion to strike. The complaint is to be construed in favor of the complainant and a claim for relief may be stricken only if the relief sought could not be legally awarded. Trimachi v. Connecticut Workers Compensation Committee, 2000 Conn. Super. LEXIS 1548, *4 citing Pamela B. v. Ment, 244 Connn. 296, 325 (1998).

In Caldor, Inc. v. Thorton, 191 Conn. 336 (1983), our Supreme Court found that General Statutes § 53-303e was unconstitutional because its use of "Sabbath" violated the Establishment Clauses. At that time the statute provided, in part, that "[n]o person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day." The court noted that it "cannot construe the term 'Sabbath,' as utilized in § 53-303e(b), as synonomous [sic] solely with 'day of rest' and therefore devoid of religious overtones." Caldor, supra, 191 Conn. 347. In determining that the statute was unconstitutional, the court noted the heavy religious connotation in the dictionary and encyclopedia definition of the word Sabbath. Caldor, supra, 191 Conn. 347-48, n. 8 - 9.

As defined in the dictionary "reverend" means "(1) Deserving of reverence. 2. Pertaining to or characteristic of clergy. 3. Often Reverend. Designating a member of the clergy." The American Heritage Diction (2d College Ed.) If the word 'Sabbath' is not devoid of religious overtones, then certainly the word 'reverend' is also not devoid of religious overtones. Likewise, the proposed remedies of allowing the complainant to wear his ministerial collar on the job site, to play religious music at his desk, to use his religious title at work, and to be addressed by his religious title in the performance of his job duties would also constitute actions with unambiguous religious overtones.

The commission argues that the respondent's actions are hindering the complainant's exercise of his religion. (Objection, 12.) However, neutrality is not the same as hindrance and, as a state agency, the Establishment Clauses impact the respondent differently than if it were a private employer. The Establishment Clause prohibits the state "from appearing to take a position on questions of religious belief …. Thus, the interest of the State in avoiding an Establishment Clause violation may be a compelling one justifying an abridgment of free speech otherwise protected by the First Amendment. The Supreme Court recently recognized that the state interest in avoiding an Establishment Clause violation may be characterized as compelling and therefore may justify content-based discrimination. …. When government endeavors to police itself and its employees in an effort to avoid transgressing Establishment Clause limits, it must be accorded some leeway, even though the conduct it forbids may not inevitably be determined to violate the Establishment Clause and the limitations it imposes might restrict an individual's conduct that might be protected by the Free Exercise Clause if the individual were not acting as an agent of government." (Internal quotation marks omitted; internal citations omitted.) Knight and Quental, supra, 275 F.3d 165. The respondent's actions in restricting the complainant's religious activities in the workplace environment are consistent with its responsibilities under the Establishment Clauses.

V.

The commission also argues that it has interests separate and distinct from those of the complainant. The commission's interests include that it is a separate party to the action, has an institutional interest in eliminating discrimination and, therefore, has its own interest in the denial of the respondent's motion. It argues that it is entitled to its own adequate remedies at law and that dismissing this complaint would preempt it from vindicating the public interest in not having state agencies engage in religious discrimination. (Objection, 3.) Obviously, though, as the respondent is not discriminating against the complainant, there is no discrimination for the commission to eliminate and no remedies to which it is entitled. As previously discussed, the complainant has not suffered a cognizable adverse employment action and is not being treated differently than similarly situated current employees. Also, the respondent's actions are consistent with its obligations under the Establishment Clauses of the federal and state constitutions.

In addition, there are two flawed implications in the commission's argument. The commission first errs in its implication that because of its institutional interests a complaint can never be dismissed because of its validity or a complainant's actions. However, its own regulations provide otherwise. For example, Section 46a-54-88a(d) of the Regulations of Connecticut State Agencies provides that a "presiding officer may, on his or her own or upon motion by a part, dismiss a complaint or a portion thereof if the complainant or the commission: (1) Fails to establish jurisdiction; (2) Fails to state a claim for which relief can be granted; (3) Fails to appear for a lawfully noticed conference or hearing without good cause; or (4) Fails to sustain his or her burden after presentation of the evidence." (Emphasis added.) Note that the connector is "complainant or commission", not "both the commission and the complainant …." Thus, for example, a case could be dismissed for the complainant's failure to appear at a duly noticed conference or hearing, regardless of whether the commission appeared and regardless of its institutional interests.

The commission next errs in its implication that if this or any case is dismissed the commission loses its opportunity to vindicate the public interest. The General Statutes and the commission's own regulations again provide otherwise. General Statutes § 46a-54 provides in part that "[t]he commission shall have the following powers and duties: … (8) to receive, initiate as provided in section 46a-82, investigate and mediate discriminatory practice complaints …." See also Section 46a-54-39a of the Regulations of Connecticut State Agencies (effective November 4, 2002) and Section 46a-54-51 of the Regulations of Connecticut State Agencies (effective January 1, 1993 to November 3, 2002). Thus, using the example in the previous paragraph, if a complaint were dismissed because of the complainant's failure to appear, the commission could initiate a complaint in its own right in lieu of maintaining the action on behalf of the complainant's (dismissed) complaint. Likewise, in this case, if the commission believes that the respondent is actually engaging in religious discrimination, it can initiate its own complaint against this respondent.

VI.

For the reasons set forth herein, judgment is entered in favor of the respondent and the case is dismissed.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Rev. Meredith Payton
Beth Z. Margulies, Esq.
Cheryl A. Sharp, Esq.