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Martinez v. Connecticut Dep't of Corrections

United States District Court, D. Connecticut

August 28, 2015


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          For Eduardo Martinez, Phillip Browne, Plaintiffs: Michelle Gramlich, LEAD ATTORNEY, Employee Rights, LLC, North Haven, CT.

         For CT Dept of Corrections, Defendant: Erik Thebin Lohr, LEAD ATTORNEY, Office of the Attorney General, Employment Rights Department, Hartford, CT.

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         Michael P. Shea, United States District Judge.

         I. Introduction

         Plaintiffs Eduardo Martinez and Phillip Browne allege that they were victims of employment discrimination on the basis of race and national origin during their time as correctional officers at the Central Transportation Unit (" CTU" ) of the State of Connecticut Department of Correction (" DOC" ), the defendant in this case. They claim that they were denied two opportunities to be promoted to lieutenant in a manner that constituted disparate treatment and also has a disparate impact on minorities, in violation of Title VII, 42 U.S.C. § 2000e et seq. [1] Martinez also claims that DOC retaliated against him for

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exercising his right to file a complaint about the discrimination, in further violation of Title VII. DOC has moved for summary judgment on all counts in the complaint. For the reasons set forth herein, the Court will grant in part and deny in part DOC's motion. The case will proceed only as to Martinez's retaliation claim and the plaintiffs' disparate treatment claim as to one, but not both, of the promotion opportunities.

         II. Facts

         A. Undisputed Facts[2]

         Martinez is a Hispanic male of Puerto Rican heritage, and has been a correctional officer with DOC since December 1995. From September 2006 to June 1, 2012, he was assigned to CTU, a division of DOC responsible for transporting inmates. Browne is a black male who has been a DOC correctional officer since September 2002 and been assigned to CTU since June 6, 2009. CTU is part of DOC Central Operations, which also includes K-9, Security Division, Maloney Center for Training and Staff Development, and Special Operations Group. CTU correctional officers are a self-selecting population; every one of them is there by seniority pursuant to a voluntary transfer request.

         On September 3, 2008, the Connecticut Department of Administrative Services (" DAS" ) promulgated exam number 081010 for correctional lieutenant promotions within DOC. Martinez and Browne each took and passed the exam, and therefore were on the DAS certified examination list. On or about March 17, 2009, DOC invited both Martinez and Browne via letter to participate in the recruitment process for lieutenant positions statewide. Martinez and Browne were provided with a document outlining the interview process, were subsequently interviewed, and completed the recruitment process. In August 2009, participating applicants were ranked and sent a letter on or about August 11, 2009, setting forth their respective promotion eligibility tier ranking (Excellent, Very Good, Average, Fair, Below Average, or Ineligible). Certain positions at DOC are " specialized" or " specialty" positions. The August 2009 letter stated that " specialty" positions would require a separate recruitment process.

         Both Martinez and Browne received a " Very Good" promotion eligibility tier ranking in the statewide evaluation process, as did their fellow correctional officer, Christy Semmelrock, a white woman. Like Martinez and Browne, Semmelrock also had completed the seven-part recruitment evaluation process for lieutenant promotional tier ranking. That process utilized a calculation that equally weighted each of the following to determine where a candidate fell on the DOC lieutenant promotional list: (1) exam score, (2) attendance, (3) the last two performance evaluations, (4) disciplinary history, (5) personal interview, (6) facility promotional evaluation; and (7) employee questionnaire.

         In late 2010, two lieutenant positions within CTU were vacant and needed to be

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filled. William Colon, a Hispanic male, was the Director of Tactical Operations and Facility Operations for DOC in 2010 and was involved in the selection process. He considered both Martinez and Browne for one of the lieutenant positions (the " Semmelrock position" or " Semmelrock vacancy" ) but did not select them. Semmelrock was promoted to that position on December 3, 2010. Also promoted to CTU lieutenant (the " Fowler position" or " Fowler vacancy" ) was William Fowler, a white male, on November 19, 2010. These two lieutenant openings were the first CTU lieutenant jobs to be filled by promotion in the preceding five years.

         On May 31, 2011, Martinez filed a complaint with the Connecticut Commission on Human Rights and Opportunities (" CHRO" ). Browne filed his CHRO complaint on June 8, 2011. This lawsuit followed and was filed on May 30, 2013.

         B. Disputed Allegations

         The parties' disputed characterizations of the record are summarized here. Further detail, with reference to specific evidence, is provided in the Court's later analysis of the individual claims.

         Martinez and Browne claim that the process by which Semmelrock and Fowler were promoted had a disparate impact on minorities, thereby depriving them of the opportunity to compete fairly for lieutenant positions. They also allege disparate treatment, in that the promotion process was intentionally manipulated to exclude them from consideration because of their race and/or national origin. Finally, Martinez alleges that after he complained about the promotions to the CHRO, he experienced a string of adverse treatment at CTU, in the form of harassment and certain duties being reassigned, lost, or denied.

         According to the plaintiffs, there is supposed to be a single, well-established, and defined statewide recruitment process that all officers must complete in order to be eligible for promotion for any open lieutenant position. There is a single classification for a correctional lieutenant involving the same duties, regardless of whether the position is titled as generalized or specialized. When vacancies become available, the warden is notified of candidates on the statewide promotion list who are qualified for the position. When a request is made to the Deputy Commissioner of Operations to fill an open lieutenant position, the request is submitted for approval specifying the title and position to be filled. Correctional lieutenant vacancies must then be approved by DAS. Normally, all correctional lieutenant vacancies that become available are posted publicly and, under administrative directives and a collective bargaining agreement, must be physically posted in hard copy on facility bulletin boards. Vacancies are also announced during roll-call.

         The plaintiffs allege that the vacant positions ultimately filled by Semmelrock and Fowler were not posted on the CTU bulletin board and were not relayed during any roll-call. Correctional officers did not have access through work computers to the internet or DOC intranet and therefore relied upon the bulletin board postings to be notified of vacancies. Further, although Colon was the titular head of CTU, an official named Captain Shea essentially ran CTU, and Shea told Browne that the vacancy for a " second shift" lieutenant was not going to be filled and that he would be notified on the bulletin board if it became available.

         The plaintiffs contend that Fowler was selected to fill the " second shift" position through a backdoor, non-standard process that has a disparate impact on minorities

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and, in this particular instance, was utilized intentionally to exclude potential minority applicants. Under the standard promotion system, Fowler was ineligible for promotion to a lieutenant post because he did not fully complete the statewide lieutenant recruitment process described above. As a captain at CTU, Shea would report CTU assignments and recommend transfers to Director Colon. The plaintiffs allege that Shea and Fowler were friends, that Shea made it known that he did not like black or female officers, and that there was an atmosphere of a " good ol' boys club" among the white officers. During the fifteen years prior to the plaintiffs' complaints, all supervisory personnel, including lieutenants, within CTU were Caucasian. Black and Hispanic officers were not promoted within CTU until after the plaintiffs' complaints.

         At the point in 2010 when CTU had two correctional lieutenant vacancies, the " second shift" lieutenant role was being filled by overtime. A separate " administrative lieutenant" position was already filled by Lieutenant Todd Sturgeon. At some point, Shea had Sturgeon reassigned to the second shift lieutenant position, thereby creating a vacancy for the " administrative lieutenant" position. A facility warden can assign a lieutenant to a " specialized" assignment by means of a " post order," which is merely a reassignment of a correctional officer who is already a permanent lieutenant. CTU then classified the vacancy as an administrative lieutenant position and utilized a special, unauthorized promotion process that was separate and distinct from the standard competitive process to be promoted to lieutenant. According to the plaintiffs, there is no directive or authority that allows a separate and distinct recruitment or promotion process for an officer being promoted directly to an " administrative lieutenant."

         When the Fowler vacancy became available, both the DAS exam list and the lieutenant promotional list were available for review, providing CTU officials with information as to eligible candidates. Only four officers within CTU had fully completed the statewide correctional lieutenant promotional process and were eligible for promotion to correctional lieutenant within CTU: three minorities (Browne, Martinez, and non-party Officer Reyes) and one Caucasian (non-party Officer Kowalski).

         Instead, CTU used a separate specialized recruitment process to promote Fowler. Fowler was promoted to the administrative lieutenant position after being interviewed by Colon, Shea, and DOC Human Resources Specialist Jim Faulkner. Approximately six weeks after Fowler was promoted to the administrative lieutenant position, he was transferred to the second shift lieutenant position, and Sturgeon was transferred back into the administrative lieutenant position. This violated the collective bargaining agreement, which provides that an officer is not allowed to be transferred into a different position until the completion of a six-month probationary period in his or her present position.

         * * *

         DOC denies that anyone ever intentionally manipulated the promotion process or retaliated against Martinez.

         It describes its promotion process differently, in a manner suggesting that nothing atypical occurred. According to DOC, it has two general classifications of correctional lieutenants: " non-specialized" lieutenants and " specialized" lieutenants. The promotion process for specialized lieutenants is similar to the process for non-specialized lieutenants (requiring a passing DAS exam score and involving an interview

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and a review of personnel records) but is separate and differs slightly in that it does not require a facility evaluation or an employee questionnaire, and does not require a candidate to be ranked through the statewide process. Within CTU in late 2010, of its full complement of seven total lieutenants at that time, four were specialized: its administrative lieutenant, its operations lieutenant, its routing lieutenant for special training, and its routing lieutenant for regular transportation.

         The March 2009 statewide recruitment announcement, which was posted physically in DOC prison facilities, via email, on the DOC intranet, and online on the DOC and DAS internet websites, invited Martinez and Browne to compete for non-specialized lieutenant positions, and the August 11, 2009 letter specifically noted that " specialty posts, such as in the Security Division, K-9 or Correctional Transportation Unit, are subject to a separate recruitment process; any such vacancies will require a separate posting, application and interview process."

         DOC says that in late 2010, CTU had two different kinds of vacancies, one specialized (the administrative lieutenant position) and the other non-specialized (the Semmelrock position). It filled the non-specialized position from the statewide list, after considering the plaintiffs for promotion but ultimately deciding to promote the equally qualified Semmelrock instead. The administrative lieutenant position was advertised via e-mail, the DOC intranet, and the DOC and DAS internet websites, although DOC does not suggest that it was posted on the CTU bulletin board or announced during roll-call. Thirteen people applied and two withdrew at some point prior to the interview phase. All eleven remaining candidates were interviewed. Of those eleven, two were black and one was Hispanic, for a total of three minority candidates out of the eleven candidates interviewed. Angel Medina, a Hispanic male of Puerto Rican heritage, was one of the minority candidates for the specialized opening. Despite being a personal friend of Colon at the time, Medina was not chosen because Colon believed that Fowler was the best candidate. Further, DOC says that prior to " expiration" [3] of the DAS exam list, a total of six specialized lieutenants were promoted within the DOC Central Office ranks (which includes CTU). One of the six promoted officers was black, and one was Hispanic.

         III. Legal Standard on Summary Judgment

         Summary judgment is appropriate only when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party carries its burden, " the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). An issue of fact is " material" if it " might affect the outcome of the suit under the governing law." Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000). " A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (internal quotation marks and citation omitted).

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          On summary judgment, a court must " construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). " Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). " Any weighing of the evidence is the prerogative of the finder of fact, not an exercise for the court on summary judgment." Id.

         IV. Discussion

         A. Disparate Impact (Martinez and Browne)

         The plaintiffs allege that DOC " used an employment practice that caused a disparate impact on the minority Plaintiffs' [sic] that was neither job related for the specialized Correctional Lieutenant position, nor consistent with business necessity." Compl. ¶ 73. They have since clarified that their disparate impact claim pertains only to the " specialized recruitment process" used to promote Fowler and not the " non-specialized recruitment" used to promote Semmelrock. ECF No. 48, Pls.' Mem. L. Opp. (" Opp. Br." ) at 10 (" Plaintiffs did not raise a disparate impact challenge to the non-specialized recruitment process . . . ." ). For the reasons set forth below, the Court will grant summary judgment on this claim.

         i. Legal Standard

         Title VII prohibits " both intentional discrimination (known as 'disparate treatment') as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as 'disparate impact')." Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). " To make out a prima facie case of disparate impact[:] . . . First, a plaintiff must identify a specific employment practice, rather than rely on bottom line numbers in an employer's workforce." Malave v. Potter, 320 F.3d 321, 325-26 (2d Cir. 2003) (quotation marks omitted). " Second, a plaintiff must present statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for . . . promotions because of their membership in a protected group." Id. at 326 (same). " In the context of promotions, . . . the appropriate comparison is customarily between the composition of candidates seeking to be promoted and the composition of those actually promoted." Id. " Third, any statistics relied upon must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity when combined with other evidence." Id. (same).

         " The employer may directly attack plaintiff's statistical proof by pointing out deficiencies in the data or fallacies in the analysis." Easterling v. State of Connecticut, 783 F.Supp.2d 323, 331 (D. Conn. 2011) (quotation marks omitted). The employer may also rebut the plaintiff's prima facie showing by " proving that the employment practice that causes a disparate impact . . . is job related for the position in question and consistent with business necessity." Id. (same). " [I]f the employer is successful in rebutting the plaintiff's prima facie case, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs." Id. (same).

         ii. Identifying a Policy or Practice

         DOC argues that the plaintiffs have failed to identify a policy or practice because

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" one alleged instance of failure to post a job in a particular location does not constitute a cognizable 'employment practice.'" ECF No. 43-1, Def.'s Mem. L. Supp. (" SJ Mot." ) at 13. Further, according to DOC, the plaintiffs' position " that [the Fowler promotion] constituted an intentionally discriminatory deviation from policy is fatal to their [disparate impact] claim because such a position 'is inherently inconsistent with a disparate impact claim, which is premised on a specific policy or practice that is applied equally to all candidates but has a disproportionate impact on certain groups.'" ECF No. 52, Am. Reply to Pls.' Opp. (" Reply Br." ) at 2 (quoting Collette v. St. Luke's Roosevelt Hosp., 132 F.Supp.2d 256, 277 (S.D.N.Y. 2001)). The Court rejects DOC's argument.

         In making this argument, DOC does not deny that the " specialized" recruitment process is, in fact, a general employment practice, similar to but distinct from the " non-specialized" recruitment process--indeed, this is the very characterization of the recruitment process that DOC itself urges the Court to accept. Rather, DOC is arguing that the plaintiffs have failed to make such a claim, having instead ...

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