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Reaes v. City of Bridgeport

United States District Court, D. Connecticut

February 10, 2017

THIAGO REAES, Plaintiff,


          Donna F. Martinez United States Magistrate Judge

         Plaintiff, 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.[1]

         I. Factual Background

         The following facts, drawn from the parties' Local Rule 56(a) statements, are undisputed.

         On June 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”);[2] a writing sample; and a clinical interview. (City's SOF ¶ 6; Pl.'s SOF ¶ 6.)

         On August 16, 2012, plaintiff completed the psychological examination[3] 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.[4] (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.)

         Dr. 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.)

         In 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 given.” (Id.)

         After a hearing, the Commission denied plaintiff's appeal. (City's SOF ¶¶ 35, 36; Pl.'s SOF ¶¶ 35, 36.) This action followed.

         II. Summary Judgment Standard

         “The 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 41.

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 marks omitted).

         III. Discussion

         Title 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. § 2000e-2(a)(1).[5]

         “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 (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.

         A. Disparate Impact

         Title 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[6] 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).

         “Disparate impact claims follow a three-part analysis involving shifting evidentiary burdens.” Id. Plaintiff bears the ...

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