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Mulligan v. Department of Developmental Services

United States District Court, D. Connecticut

March 20, 2017




         Plaintiff Joseph Mulligan alleges disparate treatment and hostile work environment discrimination based on his gender, and retaliation based on his complaints of discrimination. Defendant Department of Developmental Services ("DDS") has moved for summary judgment on all three counts. For the following reasons, defendant's motion will be granted.


         The following information was gleaned from the parties' statements of fact, affidavits, deposition transcripts, and other exhibit documentation.

         Plaintiff began working for defendant in 2004. He was an office assistant whose duties consisted of filing, copying, answering calls, and various other clerical tasks. The terms and conditions of plaintiff s employment are controlled by a collective bargaining agreement. As of 2004, all of defendant's employees were required to undergo sexual harassment prevention and diversity training.

         Multiple of plaintiff s work performance reviews state that he would occasionally wander off and needed to focus on staying in his work area. The reviews also noted some attendance problems. Nevertheless, plaintiff was able to maintain a large volume of work.

         On January 12, 2006, plaintiff received a letter regarding alleged inappropriate behavior, which provided that plaintiff had made inappropriate comments of a sexual nature to one of defendant's consumers. The letter provided:

The DMR work rules clearly state that “employee behavior, conduct and language shall provide a good example for consumers….Any behavior that endangers the safety and welfare of consumers or employees…inappropriate teasing or horseplay is prohibited. Direct or implied threats, even those made in a joking manner, are prohibited.”
Your supervisor and manager have spoken to you on two earlier occasions about inappropriate conduct and language in the workplace.
By way of this letter I am ordering you to cease and desist from any future such actions towards any of our consumers. This kind of behavior will not be tolerated. Any future acts of this kind will result in serious disciplinary follow up.

         On August 24, 2009, plaintiff was suspended without pay for violating DDS work rule #20, which prohibits accessing the internet for personal use during work hours using State equipment.

         Plaintiff alleges only a single similarly situated comparator, a female office assistant, whom plaintiff had often criticized. Plaintiff asserted that the office assistant was angry and hostile over his criticism of her work, resulting in her behaving unprofessionally and creating a scene.

         On February 22, 2012, plaintiff filed a written complaint against the female office assistant. Plaintiff asserts that he was on break when the female office assistant charged at him and took a swing at him. Plaintiff did not return to work until February 27, 2012, where he learned that the female office assistant had been involuntarily transferred to different office in another town. Defendant also suspended her without pay as a result of her conduct toward plaintiff.

         The female office assistant eventually returned to work at plaintiff's office in June 2012, but defendant restructured plaintiff's job duties to eliminate his need for interaction with her. Moreover, the female office assistant was relocated to a different area of the office in an effort to limit her contact with plaintiff.

         Both the female office assistant and plaintiff were represented by their union as part of their respective disciplinary hearings. The female office assistant and plaintiff did not share a similar disciplinary history, and plaintiff, unlike she, refused to agree to the compromised discipline imposed by defendant.

         Plaintiff could not name a similarly situated female co-worker who received less severe discipline than he did for the period of February 2013 to November 2014.

         After receiving numerous written complaints from plaintiff's co-workers about plaintiff's concerning behavior, defendant investigated those claims, including a complaint from a co-worker, for violations of defendant's sexual harassment policy and DDS work rule #3, which concerns inappropriate conduct toward DDS clients.

         On May 22, 2012, a female co-worker filed a sexual harassment complaint against plaintiff. Plaintiff did not learn of the complaint until June 12, 2012, when he was notified of an upcoming meeting with Ms. Reid, an EEO investigator, and a union representative. Defendant took statements from seven non-management employees as part of its investigation and concluded that these third parties described plaintiff's workplace behavior similarly.

         These co-workers told defendant that plaintiff sometimes visited female employees at their homes unannounced, uninvited, and going as far as being physically present in their homes without their knowledge. These co-workers described feeling uneasy, anxious, and uncomfortable around plaintiff.

         One of plaintiff's co-workers complained to defendant that plaintiff told her disturbing information about another co-worker's sexual history, mental health, and drug use; and that plaintiff cursed at her when she told plaintiff to stop disclosing such information.

         Some of plaintiff's co-workers told defendant that plaintiff used inappropriate language such as, “fucking, ” “vagina, ” “talking shit, ” and excused himself by stating that his language constituted “slips.” Some co-workers told defendant that plaintiff is unstable and disrupts other employees at their desks. These co-workers told defendant that plaintiff is unpredictable, chatty one day and quiet another. Most of these co-workers told defendant that they were afraid of retaliation from plaintiff, who had stated that he could take people down. Some co-workers indicated that they were afraid of plaintiff's erratic behavior, using language such as, “He could go off the deep end, ” or, “He could flip.” One June 22, 2012, defendant's Equal Employment Opportunity department interviewed plaintiff about the allegations of sexual harassment and threatening brought against him by co-workers. Plaintiff was accompanied by a union representative.

         On July 12, 2012, plaintiff received a letter from Ms. Reid, which reported her findings and concluded that plaintiff had engaged in sexual harassment. Reid recommended that plaintiff take sexual harassment training as a remedy.

         On July 18, 2012, defendant notified plaintiff that he would have a pre-disciplinary Loudermill hearing on August 1, 2012. Following the hearing, defendant placed plaintiff on paid administrative leave pending a fitness for duty evaluation while defendant further investigated claims of plaintiff's improper behavior toward his female co-workers. Plaintiff was on paid administrative leave from August 1, 2012, until February 8, 2013. He returned to work on February 13, 2013. Plaintiff did not suffer any loss of pay or benefits while on paid administrative leave.

         Plaintiff swore that defendant viewed him as mentally disabled based upon his coworkers' complaints. State regulations permit an agency to request a fitness for duty examination of an employee. Both male and female employees of defendant have ...

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