United States District Court, D. Connecticut
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Eduardo Martinez, Phillip Browne, Plaintiffs: Michelle
Gramlich, LEAD ATTORNEY, Employee Rights, LLC, North Haven,
Dept of Corrections, Defendant: Erik Thebin Lohr, LEAD
ATTORNEY, Office of the Attorney General, Employment Rights
Department, Hartford, CT.
ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
P. Shea, United States District Judge.
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.  Martinez also claims
that DOC retaliated against him for
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.
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
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.
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.
2010, two lieutenant positions within CTU were vacant and
needed to be
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.
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.
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.
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
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
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.
plaintiffs contend that Fowler was selected to fill the
" second shift" position through a backdoor,
non-standard process that has a disparate impact on
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.
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 "
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
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.
* * *
denies that anyone ever intentionally manipulated the
promotion process or retaliated against Martinez.
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
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.
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."
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"  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.
Legal Standard on Summary Judgment
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).
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.
Disparate Impact (Martinez and Browne)
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.
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).
Identifying a Policy or Practice
argues that the plaintiffs have failed to identify a policy
or practice because
" 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
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