Stacy v Department of Correction Whistleblower Retaliation

Stacy v. Department of Correction - Whistleblower Retaliation

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

OPH/WBR No. 2003-002

Joseph E. Stacy

State of Connecticut, Department of Correction, et al.

March 1, 2004

FINAL DECISION

I. Parties and summary

Pursuant to General Statutes § 4-61dd, Joseph E. Stacy ("complainant") filed a whistleblower retaliation complaint with the chief human rights referee on July 22, 2003. The respondents are the State of Connecticut Department of Correction ("DOC") and DOC employees Major Lori Krajniak ("Krajniak"), Lt. Michelle Jenkins ("Jenkins"), Captain Duane Kelley ("Kelley"), Lt. Idette Thompson ("Thompson"), Captain Wayne Valade ("Valade") and Warden George Wezner ("Wezner") (collectively "respondents"). The complainant alleges that the respondents violated § 4-61dd when they retaliated against him for calling DOC's confidential security hotline.

The hearing was held on January 13 and 14, 2004. The complainant appeared pro se and did not testify. The respondents were represented by Assistant Attorney General Joseph A. Jordano.

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

II. Findings of fact

References to testimony are to the transcript page where the testimony is found. References to an exhibit are by party designation ("C" for complainant and "R" for respondents) and number. References to findings of facts are indicated as "FF".

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

1. DOC is a state department. (R. Ex. 1)

2. The complainant, Krajniak, Jenkins, Kelley, Thompson, Valade and Wezner are employees of DOC. (R. Ex. 1)

3. In early March 2002, the complainant made an anonymous complaint to DOC's telephone security hotline regarding the use of inmates rather than maintenance officers to paint over some graffiti. (R. Ex. 3)

4. Reports to the hotline are to be and remain anonymous and confidential. (R. Ex. 3)

5. One or more of the respondents intentionally investigated the telephone call to the hotline to determine who had placed the call and, at least by early April 2002, had determined that the complainant had placed the call. (R. Ex. 3)

6. By a telephone call on July 5, 2002, the complainant transmitted to the Auditors of Public Accounts ("Auditors") information that he had made a report on DOC's confidential hotline; that Jenkins, Thompson, Kelley, Valade and Krajniak had determined that the complainant had made the call; and that the complainant was being retaliated against for calling the hotline. (C. Ex. 2)

7. Thereafter, the complainant notified the Office of the Attorney General ("Attorney General") of his belief that DOC took personnel action against him in retaliation for his disclosure of information to the Auditors. The Attorney General completed its investigation on June 18, 2003. (C. Ex. 1)

8. On July 22, 2003, the complainant filed a complaint with the chief human rights referee alleging that the respondents had violated § 4-61dd by retaliating against him for calling the DOC's confidential hotline. (C. Ex. 3)

9. On September 10, 2003, Kelley, the complainant's supervisor, instructed the complainant to complete an incident report regarding the complainant's behavior toward Kelley that Kelley believed to be disrespectful and insubordinate. Kelley also filed an incident report. (Tr. 24-27; R. Ex. 5)

10. Captain Sandra Morton, an employee of DOC, investigated the incident. In her report dated September 29, 2003, she concluded that the complainant's behavior on September 10, 2003 violated several administrative directives. (R. Ex. 5; Tr. 128-35)

11. Between July 5, 2002, the date of complainant's transmittal of information to the Auditors, and the dates of the hearing, the complainant had not been disciplined, demoted, suspended, terminated or incurred any other adverse personnel action. (Tr. 19, 29, 68-69, 74 - 76, 133, 135, 138, 140 - 41)

III. Analysis

A. Analytical Framework

Connecticut uses the three-step burden shifting analysis established under McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-803 (1973), for claims of employment retaliation. See, for example, Arnone v. Town of Enfield, 79 Conn. App. 501, 507 (2003), cert. denied 266 Conn. 932 (2003) (retaliation under § 31-51m); Delgado v. Achieve Global, 2000 Conn. Super. LEXIS 3184 *23-25 (retaliation under § 46a-60(a)(4)); and Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54 (1990)(retaliation under § 31-290a). Therefore, this three-step analysis will also be used as the analytical framework for retaliation complaints filed with the chief human rights referee under § 4-61dd. Because the requirements of proof under McDonnell Douglas "must be tailored to the particular facts of each case" (Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 204 (1991)), appropriate adjustments will be made in applying this analysis to § 4-61dd cases.

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, 216 Conn. 53. The complainant's "burden of proof at the prima facie stage is de minimus." LaFond v. General Physics Service Corporation, 50 F.3d 165, 173 (1995) (retaliation under § 31-51m).

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 § 4-61dd, the complainant must show 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 the respondent (§§ 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)).

To satisfy the second prong of his prima facie case, the complainant must show that he suffered an adverse personnel action or was threatened by his employer or its employees with an adverse personnel action subsequent to his transmittal of information to the Auditors, or to the Auditors and Attorney General during their investigation (§4-61dd(b)(2). An adverse personnel action includes termination of employment, 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. Retaliatory personnel actions can also take the form of non-economic actions such as a less distinguished title, significantly diminished material responsibilities (Galabya, 202 F.3d 640; Connecticut Commission on Human Rights and Opportunities, 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, 1237 (9th Cir. 2000)). Other indicia unique to a particular situation may also constitute an adverse personnel action. Galabya, 202 F.3d 640.

To satisfy the third prong of his prima facie case, the complainant must introduce sufficient evidence to establish the 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 one or more of the following methods: (1) indirectly, by showing that the transmittal of information to the Auditors or Attorney General "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 [respondents]" (Gordon v. New York City Board of Education, 232 F.3d 111, 117 (2000)); or (3) by a statutorily rebuttable presumption if the adverse personnel action taken or threatened "occurs within one year after the [complainant] first transmits facts and information concerning a matter under subsection (a) of this section to the Auditors of Public Accounts or the Attorney General" (§ 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 the respondent does not produce a legitimate, non-retaliatory reason, the complainant prevails. If the respondent does produce a reason, the analysis proceeds to its third step.

However, if the personnel action occurred within one year of the complainant's transmittal of information to the Auditors or to the Attorney General, then, because of the statutory presumption, the respondent's burden at this second step is both production and persuasion. "The presumptions created by those statutes may be rebutted by sufficient and persuasive evidence to the contrary. These rebuttable presumptions apply only to the question of causation … ." (Internal citations omitted.) Malchik v. Division of Criminal Justice, 266 Conn. 728, 738 (2003). "A [statutory] presumption is equivalent to prima facie proof that something is true. It may be rebutted by sufficient and persuasive contrary evidence. A presumption in favor of one party shifts the burden of persuasion to the proponent of the invalidity of the presumed fact. That burden is met when it is more probable than not that the fact presumed is not true." Salmeri v. Department of Public Safety, 70 Conn. App. 321, 339 (2002), cert. denied 261 Conn. 919 (2002). The evidence presented by the respondent must be "sufficiently credible to meet that burden of persuasion before the statutory presumption can be said to have been successfully rebutted. Insubstantial or suspect evidence cannot perform the same function." (Internal quotations omitted; citation omitted.) Salmeri, 70 Conn. App. 339-40. If the respondent does not produce a persuasive legitimate, non-retaliatory reason, the complainant prevails. If the respondent does produce a reason, the analysis proceeds to the third step.

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. The complainant can show that he was a victim of retaliation by direct evidence that a retaliatory reason motivated the employer'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 employer'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, 79 Conn. App. 507. "Pretext may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, or by reliance on the evidence compromising the prima facie case, without more …." (Internal quotations omitted; citation omitted) LaFond, 50 F.3d 174. Ultimately, the complainant bears the burden of persuasion to establish by a preponderance of the evidence that retaliation was a motive in the employer's decision. Miko, 220 Conn. 205; LaFond, 50 F.3d 173.

B. Complainant's evidence

Applying the analytical framework to this case, I conclude that the complainant established the first prong of his prima facie case, but not the second or third prongs. I also conclude that, even if the complainant established a prima facie case, the respondents produced a legitimate, non-retaliatory reason for their actions and that the complainant failed to establish a retaliatory motive on the part of the respondents.

Beginning with the first step of the analysis, the complainant's three-prong prima facie burden, I conclude that the complainant introduced sufficient evidence to satisfy the first prong of his prima facie case. The respondents are a state department and employees of a state department (FF 1,2). The complainant is an employee of the respondent DOC (FF 2). The complainant transmitted information to the Auditors that the respondents were engaged in conduct prohibited by § 4-61dd(a) (FF 6). Specifically, he reported the respondents' deliberate actions to discover the identity of someone who placed what should have been an anonymous call to DOC's confidential hotline (FF 6). Subsequent to his transmittal of the information to the Auditors, the complainant notified the Attorney General of personnel action taken by the respondents that the complainant believed to be in retaliation for his transmittal of information to the Auditors (FF 7). The Attorney General thereafter concluded his investigation (FF 7).

Although the complainant satisfied the first prong of his prima facie case, he failed to establish both the second and third prongs. Regarding the second prong, because the complainant did not testify it is difficult to determine what adverse personnel actions were taken or threatened by the respondents that the complainant believes were in retaliation for his transmittal of information to the Auditors. The complainant's questioned the witnesses about two employment-related incidents: one that occurred in March 2002, and one in September 2003. However, the complainant did not incur adverse personnel actions from either episode. He was not terminated. He did not suffer a reduction in wages or salary. There was no testimony that his job responsibilities changed or that the respondents created a hostile work environment (FF 11).

The complainant also failed to establish the third prong of his prima facie case, an inference of causation between his transmittal of information to the Auditors and an adverse personnel action.

The March 2002 episode cannot have been in retaliation for the complainant's transmittal of information to the Auditors because the transmittal did not occur until July 2002.

The September 2003 episode arose when incident reports were filed regarding the complainant's behavior. The reports resulted in an investigation that concluded the complainant had violated several administrative directives. (FF 9, 10.)

Even assuming that the September 2003 incident reports and/or investigation constitute actual or threatened adverse personnel actions, the complainant did not establish a causal connection between them and his transmittal of information to the Auditors. Because the September 2003 incident occurred more than one year after the complainant's July 2002 transmittal of information, the complainant does not benefit from the rebuttal statutory presumption. Nor did the complainant offer any indirect or direct evidence suggesting causation. There is no temporal proximity between the report to the Auditors and the September 2003 incident reports and investigation.² There is no evidence that fellow employees who engaged in conduct similar to the complainant's received different treatment. There is no testimony that the respondents discussed with the complainant his transmittal of information to the Auditors. Also, under the facts of this case, the supervisor's awareness of the complaint (Tr. 26), without more, is insufficient to establish causation indirectly or directly. Connecticut Commission on Human Rights and Opportunities, 2003 Conn. Super. LEXIS 2059 *19.

Assuming that the complainant met his prima facie case, under the second step of the analysis the burden of production shifts to the respondents to articulate a legitimate, non-retaliatory reason for the September 2003 incident reports and investigation. The respondents have produced a legitimate, non-retaliatory explanation for the incident reports and investigation. According to the respondents, the incident reports and the subsequent investigation resulted from the complainant's allegedly insubordinate behavior on September 10, 2003. (FF 9, 10.)

Assuming both that the complainant established a prima facie case and that the respondents produced a legitimate, non-retaliatory reason for the incident reports and investigation, the analysis proceeds to the third step. Under the third step of the analysis, the complainant must establish by a preponderance of the evidence that the September 10, 2003 incident reports and investigation were in retaliation for his transmittal of information to the Auditors.

However, the complainant offered no probative evidence from which to draw the conclusion that the incident reports and investigation, even assuming they are adverse personnel actions, were related to his transmittal of information to the Auditors. There is no evidence that the respondents' explanation for the incident reports or the investigation's conclusions are pretextual or not worthy of credence. Also, the complainant's prima facie case, without more, is simply too weak to find a retaliatory motive.

IV. Conclusions of law

1. The respondents did not take adverse personnel action against the complainant.

2. The respondents did not threaten the complainant with an adverse personnel action.

3. There is no causal connection between the September 2003 incident reports and investigation and the July 5, 2002 transmittal of information to the Auditors.

4. The respondents produced a legitimate, non-retaliatory reason for the September 2003 incident reports and investigation.

5. The complainant did not establish by a preponderance of the evidence that a retaliatory motive played a part in the September 2003 incident reports or investigation.

6. The complainant did not establish by a preponderance of the evidence that the respondents retaliated against him for his transmittal of information to the Auditors.

V. Order

The complaint is dismissed.

____________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Mr. Joseph E. Stacy
State of Connecticut Department of Correction c/o Commissioner Theresa Lantz
Ms. Lori Krajniak, Major
Ms. Michelle Jenkins, Lt.
Mr. Duane Kelley, Captain
Ms. Idette Thompson, Lt.
Mr. Wayne Valade, Captain
Mr. George Wezner, Warden
Joseph A. Jordano, 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."

²For surveys of judicial decisions on temporal proximity see Commission on Human Rights and Opportunities ex rel. Jayantha Mather v. State of Connecticut, Department of Transportation, CHRO #9810116, pp. 43-44, April 19, 2001 and Commission on Human Rights and Opportunities ex rel. Frank Secondo v. The Housing Authority of the City of Hartford, CHRO No. 9710713, pp. 46-47, June 9, 2000.