United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY
F. Martinez United States Magistrate Judge
Thiago Reaes, brings this action against the City of
Bridgeport (the “City”) pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., and the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen.
Stat. § 46a-60(a)(1). Plaintiff alleges that the City
discriminated against him on the basis of his Brazilian
national origin when it refused to hire him as a firefighter.
Currently pending is the City's motion for summary
judgment. (Doc. #38.) For the reasons set forth below, the
motion is GRANTED.
following facts, drawn from the parties' Local Rule 56(a)
statements, are undisputed.
20, 2011, the City announced an examination for the position
of entry level firefighter. (City's Local Rule 56(a)(1)
Statement of Facts (“City's SOF”), Doc.
#38-1, ¶ 2; Plaintiff's Local Rule 56(a)(2)
Statement (“Pl.'s SOF”) ¶ 2.) Applicants
were required to pass a written and oral examination; submit
to a physical examination and drug screening; undergo a
background investigation; take a pre-employment psychological
evaluation; and be recommended for hire by licensed
psychologist Dr. Mark J. Kirschner, whom the City retained to
conduct the evaluation. (City's SOF ¶¶ 2, 4;
Pl.'s SOF ¶¶ 2, 4.) The psychological
evaluation consisted of: the California Personality Inventory
(“CPI”) test; the Personality Assessment
Inventory (“PAI”) test; the psychological history
report (“PsyQ”); a writing sample; and a clinical
interview. (City's SOF ¶ 6; Pl.'s SOF ¶ 6.)
August 16, 2012, plaintiff completed the psychological
examination and met with Dr. Kirschner for his
clinical interview. (City's SOF ¶ 15; Pl.'s SOF
¶ 15.) During clinical interviews of job candidates,
including plaintiff, Dr. Kirschner discussed topics such as
education, employment, military and law enforcement
experience, driving history, adult relationships, financial
history, legal history, substance abuse, developmental
history, parental responsibilities, and psychological
treatment and evaluation history. (City's SOF ¶ 12;
Pl.'s SOF ¶ 12.) Dr. Kirschner wrote a report of his
findings based on plaintiff's interview and test results.
(City's SOF ¶ 22; Pl.'s SOF ¶ 22.) Dr.
Kirschner opined that plaintiff's responses on the CPI
were made in a manner to portray himself in an overly
favorable light--a tactic Dr. Kirschner describes as
“faking good.” (City's SOF ¶ 22(a);
Pl.'s SOF ¶ 22.) As for the PAI, Dr. Kirschner
concluded that plaintiff's approach was defensive,
suggesting an unwillingness to admit to many normal human
faults. (City's SOF ¶ 22(b); Pl.'s SOF ¶
22.) He described plaintiff's test-taking approach as
careless, which made him question plaintiff's integrity
and the overall validity of his test results. (City's SOF
¶ 22(c); Pl.'s SOF ¶ 22.) Dr. Kirschner did not
recommend plaintiff for hire. (City's SOF ¶ 23;
Pl.'s SOF ¶ 23.)
Kirschner sent his report and recommendation to the
City's personnel director, David Dunn. (City's SOF
¶ 23; Pl.'s SOF ¶ 23.) On August 24, 2012, Mr.
Dunn sent plaintiff a letter explaining that he had been
disqualified from the hiring process based on the results of
his psychological evaluation. (City's SOF ¶ 25;
Pl.'s SOF ¶ 25.) Plaintiff appealed that decision to
the Bridgeport Civil Service Commission (the
“Commission”). (City's SOF ¶ 26;
Pl.'s SOF ¶ 26.)
support of his appeal, plaintiff submitted a two-page report
from Dr. Misty Ginicola, an associate professor of
developmental psychology at Southern Connecticut State
University. (City's SOF ¶ 28; Pl.'s SOF ¶
28.) Dr. Ginicola opined that administering a personality
test on “someone who is a cultural minority or who
speaks English as a second language is very problematic, in
terms of validity (accuracy of the measure) and reliability
(consistency of testing).” (City's SOF ¶ 30;
Pl.'s SOF ¶ 30; Def. Ex. N, Doc. #38-3, p. 26.) She
explained that “[p]ersonality testing relies on the use
of cultural norms and norming groups to establish acceptable
answers.” (Id.) She also noted that
“language is always important when it comes to
assessment, in order to understand and answer each item
appropriately.” (Id.) Dr. Ginicola asserted
that “[i]f English is not the test taker's first
language, ethical guidelines require that the test be
administered in their native language to assure
validity.” (Id.) Dr. Ginicola also opined on
the use of the CPI and the PAI in general. (City's SOF
¶ 31; Pl.'s SOF ¶ 31; Def. Ex. N, Doc. #38-3,
pp. 26-27.) She asserted that the CPI has “low
validity, ” and even more so for test takers from
“culturally different backgrounds.”
(Id.) As to the PAI, she opined that administrators
should use “extreme caution” when giving this
test to non-native English speakers. (Id.) Dr.
Ginicola expressed that in her professional opinion, the CPI
and PAI “should either be given in [plaintiff's]
native language or alternative assessments should be
hearing, the Commission denied plaintiff's appeal.
(City's SOF ¶¶ 35, 36; Pl.'s SOF
¶¶ 35, 36.) This action followed.
Summary Judgment Standard
court shall grant summary judgment if 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). A “material” fact is a fact
that influences the case's outcome under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A “genuine” dispute is one that a
reasonable jury could resolve in favor of the non-movant.
Id. The moving party bears the initial burden of
establishing that there are no genuine disputes as to any
material fact. Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000). Once such a showing is made, the
non-movant must show that there is a genuine issue for trial.
Id. The court may rely on admissible evidence only,
Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir.
2010), and must view the evidence in the record in the light
most favorable to the non-movant, drawing all reasonable
inferences in that party's favor. Weinstock, 224 F.3d at
A party opposing summary judgment cannot defeat the motion by
relying on the allegations in his pleading, or on conclusory
statements, or on mere assertions that affidavits supporting
the motion are not credible. At the summary judgment stage of
the proceeding, [p]laintiffs are required to present
admissible evidence in support of their allegations;
allegations alone, without evidence to back them up, are not
sufficient . . . . Summary judgment cannot be defeated by the
presentation . . . of but a scintilla of evidence supporting
[a] claim . . . .
Rafael v. State of Conn. Dep't of Children &
Families, No. 3:14-CV-1746 (VLB), 2017 WL 27393, at *3
(D. Conn. Jan. 3, 2017) (citations and internal quotation
VII of the Civil Rights Act provides that “[i]t shall
be an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex,
or national origin.” 42 U.S.C. §
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 (2009). Plaintiff does not
indicate whether his claim is based on disparate impact or
disparate treatment. Under either theory, he fails to make a
prima facie case.
VII prohibits “practices that are fair in form, but
discriminatory in operation.” Griggs v. Duke Power
Co., 401 U.S. 424, 431 (1971). “[A] plaintiff need
not show that an employer intended to discriminate to state a
claim under Title VII. Rather, [a] prima facie violation of
[Title VII] may be established by statistical evidence
showing that an employment practice has the effect of denying
the members of one race equal access to employment
opportunities.” Gulino v. N.Y. State Educ.
Dep't, 460 F.3d 361, 382 (2d Cir. 2006) (internal
quotation marks omitted).
impact claims follow a three-part analysis involving shifting
evidentiary burdens.” Id. Plaintiff bears the