Claudio Reyes v Office of the Comptroller Whistleblower Retaliation

Claudio Reyes v. Office of the Comptroller - Whistleblower Retaliation

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

OPH/WBR No. 2004-006

Claudio Reyes

State of Connecticut, Office of the Comptroller, Retirement & Benefit Services Unit

March 18, 2004

Ruling re: Motion to Dismiss

I. Summary

Claudio Reyes ("complainant") filed a whistleblower retaliation complaint with the chief human rights referee on January 20, 2004. In his complaint, he alleges that the State of Connecticut Retirement Recovery Unit (more properly known as the Office of the Comptroller, Retirement & Benefit Services Division) ("respondent") violated General Statutes § 4-61dd in its method of calculating his retirement benefits.

On February 17, 2004, the respondent filed a motion to dismiss. In its motion, the respondent alleges that the chief human rights referee lacks jurisdiction to hear the complaint because the complainant did not comply with the requirements of §4-61dd prior to filing his complaint. The complainant filed an objection to the motion to dismiss on March 3, 2004.

For the reasons set forth herein, the motion to dismiss is granted.

II. Standards for review of a motion to dismiss

"A motion to dismiss attacks the court's jurisdiction to hear the present action: the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. …. Every presumption is to be indulged in favor of jurisdiction. In ruling upon a motion to dismiss, the complaint is to be construed most favorably to the plaintiff." (Internal quotations omitted; internal citations omitted.) Lueneburg v. Mystic Dental Group, 1996 Conn. Super. LEXIS 2001 *4-5. "A ruling on a motion to dismiss is neither a ruling on the merits of the action … nor a test of whether the complaint states a cause of action. …. Motions to dismiss are granted solely on jurisdictional grounds." (Internal quotations omitted; internal citations omitted.) Malasky v. Metal Products Corporation, 44 Conn. App. 446, 452 (1997).

III. Analysis

A. Analytical Framework

Connecticut uses the three-step burden shifting analytical framework established under McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-803 (1973), for claims of whistleblower retaliation brought under § 4-61dd. See Joseph E. Stacy v. State of Connecticut Department of Correction, OPH/WBR No. 2003-002 (Final Decision, March 1, 2004). These three shifting evidentiary burdens are: (1) the complainant's burden in the presentation of his prima facie case, (2) the respondent's burden in the presentation of its non-retaliatory explanation for the adverse personnel action, and (3) the complainant's ultimate burden of proving the respondent retaliated against him because of his transmittal of information to the Auditors of Public Accounts ("Auditors").

In the first step of the three-step McDonnell Douglas analysis, the complainant "bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination." Ford v. Blue Cross and Blue Shield of Connecticut, Inc., 216 Conn. 40, 53 (1990). The complainant's "burden of proof at the prima facie stage is de minimus." LaFond v. General Physics Services Corporation, 50 F.3d 165, 173 (1995).

The prima facie step of the analysis has three parts, or prongs. To satisfy the first prong, the complainant has "the burden at the outset of proving by a preponderance of the evidence a prima facie case of retaliat[ion] [ ] as defined under the statute." LaFond, 50 F.3d 172. Under the second prong, the complainant must show that he suffered an adverse personnel action or was threatened by the respondent or its employees with an adverse personnel action subsequent to his transmittal of information to the Auditors, or transmittal to the Auditors and Attorney General during their investigation (§4-61dd(b)(2)). The third prong requires the complainant to introduce sufficient evidence to establish an inference of a causal connection between the personnel action threatened or taken and his transmittal of information to the Auditors or Attorney General. The complainant can establish the inference of causation by indirect or direct evidence or by operation of statute as a rebuttable presumption. Gordon v. New York City Board of Education, 232 F.3d 111, 117 (2000); § 4-61dd(b)(5).

If the complainant establishes a prima facie case through direct or indirect evidence, then the respondent, as the second step of the analysis, has the burden to produce a legitimate, non-retaliatory reason for its action. Ford, 216 Conn. 53-54. If causation is established by a rebuttable presumption pursuant to § 4-61dd(b)(5), then the respondent's burden is both production and persuasion. Stacy, OPH/WBR No. 2003-002, 7-8 (Final decision). If the respondent satisfies the applicable burden, the analysis proceeds to the third step. If the respondent does not satisfy its burden, the complainant prevails.

In the third step of the analysis, the complainant must prove by a preponderance of the evidence that he was retaliated against because of his transmittal of information to the Auditors. He must establish that personnel action was taken or threatened against him by a state officer or employee, as defined in § 4-141, a quasi-public agency officer or employee, an officer or employee of a large state contractor or an appointing authority in retaliation for his disclosure of information to the Auditors or the Attorney General (4-61dd(b)(1)). The complainant can show that he was a victim of retaliation by direct evidence that a retaliatory reason motivated the respondent's action. Ford, 216 Conn. 54. Alternatively, the complainant can persuade the factfinder that he was the victim of retaliation through indirect evidence "showing that the [respondent's] proffered explanation is unworthy of credence" (Ford, 216 Conn. 54) or is a pretext for retaliatory personnel action. The complainant "must offer some significantly probative evidence showing that the [respondent's] proffered reason is pretextual and that a retaliatory intention resulted" in the adverse personnel action. Arnone v. Town of Enfield, 79 Conn. App. 501, 507 (2003). Ultimately, the complainant bears the burden of persuasion to establish by a preponderance of the evidence that retaliation for the transmittal of information was a motive in the respondent's decision. Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 205; LaFond, 50 F.3d 173.

B. The Respondent's Motion

In its motion to dismiss, the respondent alleges that the chief human rights referee has no jurisdiction because the complainant did not comply with the prerequisites of §4-61dd before he filed his complaint. The respondent argues that the complainant did not transmit information to the Auditors, did not notify the Attorney General of personnel action taken or threatened against him because of his transmittal to the Auditors, and did not wait until the completion of the Attorney General's investigation before filing his complaint with the chief human rights referee. In other words, the respondent argues that the complainant cannot establish the first prong of his prima facie case.

As the first prong of his prima facie case under § 4-61dd, the complainant must establish several statutory elements. The respondent must be a state department or agency, a quasi-public agency, or a large state contractor (§§ 4-61dd(a)(1), 4-61dd(g)(2), 1-120). The complainant must be an employee of a state department or agency, a quasi-public agency, or a large state contractor (§§ 4-61dd(b)(1), 4-61dd(b)(2)). The complainant must either have transmitted facts and information to the Auditors that the respondent was engaged in conduct prohibited by § 4-61dd(a)¹ or, alternatively, have transmitted information to the Auditors or the Attorney General in connection with their investigation(s) (§§ 4-61dd(a); 4-61dd(b)(1)). The complainant must show that he then notified the Attorney General of retaliatory personnel action taken against him or threatened against him by the respondent or its employees subsequent to the transmittal of information to the Auditors or the Attorney General (§ 4-61dd(b)(2)). Finally, the complainant must show that the Attorney General concluded its investigation of the retaliatory allegations (§ 4-61dd(b)(2)).

The whistleblower retaliation complaint form includes two sections seeking information required by the §4-61dd. In section 7, a complainant is instructed to "State the date(s) you disclosed information to the Auditors of Public Accounts or to the Attorney General pursuant to Connecticut General Statutes § 4-61dd(a)." Section 8 provides that "Before the complainant may file a complaint with the Chief Human Rights Referee, he or she must notify the Attorney General of the personnel action taken or threatened and that Attorney General must undertake and conclude an investigation of that personnel action. a. Date you notified the Attorney General of the personnel action: ____ b. Date the Attorney General concluded the investigation of the personnel action: _______ The complainant or representative completing this form shall attach written notification from the Office of the Attorney General that the Attorney General's investigation has been concluded." (Bold type in the original.)

In this case, the complainant did not complete these two sections. His attachments to the complaint do not include written notification from the Attorney General that an investigation has been concluded. In his response filed March 3, 2004 to the respondent's motion, the complainant concedes that he did not transmit information to the Auditors prior to his filing of this complaint with the chief human rights referee and says he is going to send a complaint to Auditors. Although the complainant also wrote that the "Attorney General already has the complaint in writing", he did not provide verification that the Attorney General has already completed his investigation of the alleged retaliatory personnel action.

IV. Conclusion

Even construing the complaint most favorably to the complainant, the complainant did not comply with the requirements of § 4-61dd before he filed this complaint with the chief human rights referee. The complainant apparently did not transmit information to the Auditors prior to filing his complaint with the chief human rights referee and did not notify the Attorney General of allegedly adverse personnel action taken against him after he transmitted information to the Auditors. He also apparently did not wait until the conclusion of the Attorney General's investigation of the alleged adverse personnel action before filing his complaint with the chief human rights referee.

V. Order

The respondent's motion is granted and the complaint is dismissed.

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Mr. Claudio Reyes
Ms. Nancy Wyman, Office of the Comptroller
Maria C. Rodriguez, Esq.

¹ § 4-61dd(a) provides in relevant part: "Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency or any quasi-public agency, as defined in section 1-120, or any person having knowledge of any matter involving corruption, violation of state or federal laws or regulations, gross waste of funds, abuse of authority or danger to the public safety occurring in any large state contract, may transmit all facts and information in his possession concerning such matter to the Auditors of Public Accounts."