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Jones v. Department of Children and Families

Court of Appeals of Connecticut

April 4, 2017

MICHAEL JONES
v.
DEPARTMENT OF CHILDREN AND FAMILIES

          Argued September 19, 2016

         Appeal from Superior Court, judicial district of Hartford, Scholl, J. [judgment].

          James V. Sabatini, for the appellant (plaintiff).

          Josephine S. Graff, assistant attorney general, with whom wereAntoriaD. Howard, associateattorney general, and, on the brief, George Jepsen, attorney general, and Ann E. Lynch, assistant attorney general, and for the appellee (defendant).

          DiPentima, C. J., and Prescott and Gruendel, Js.

          OPINION

          GRUENDEL, J.

         In this employment discrimination case, the plaintiff, Michael Jones, appeals from the trial court's judgment in favor of the defendant, the Department of Children and Families. On appeal, the plaintiff claims that the court improperly concluded that he did not meet his burden of persuasion with respect to his allegations that the defendant subjected him to unlawful discrimination on the basis of his sexual orientation. See Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq. Specifically, the plaintiff contends that the court: (1) improperly imposed on the plaintiff the burden of proving the falsity of the reason given by the defendant for the termination, (2) improperly applied an adverse inference against the plaintiff (3) failed to correctly apply the ‘‘cat's paw'' theory of liability, (4) erred by failing to make factual findings regarding discriminatory animus held by the plaintiff's supervisors, and (5) improperly concluded that the plaintiff's retaliation claim relied on timing alone. We disagree with the plaintiff's assertions and affirm the judgment of the trial court.

         The following facts and procedural events are relevant to this appeal. The plaintiff, an African-American homosexual male, began his employment as a durational social worker trainee with the defendant on May 25, 2007. On December 26, 2008, the plaintiff filed a claim of employment discrimination against the defendant with the Commission on Human Rights and Opportunities (commission) alleging, in part, the claims set forth in the present case. In December, 2010, following the commission's release of jurisdiction, the plaintiff brought an action in state court alleging employment discrimination in violation of the act. Specifically, the plaintiff claimed that the defendant discriminated against him during his employment because of his sexual orientation, retaliated against him because he submitted a formal complaint about the discriminatory behavior, and subjected him to a hostile work environment.

         Following a trial to the court, the court, Scholl, J., made detailed factual findings. Among these were findings that were uncontested in the trial court proceedings and others that were made by the court based on its evaluation of the evidence. The following facts are undisputed. The plaintiff was an employee of the defendant within the meaning of the act. Valeriana DeBrito, who was employed by the defendant as a social work supervisor, supervised the plaintiff for part of the time that he was employed by the defendant. The affirmative action report written by the defendant's internal investigator concluded that DeBrito had engaged in discriminatory behavior toward the plaintiff on the basis of his sexual orientation.

         Over the course of the plaintiff's employment with the defendant, he received three formal counseling memos. These memos were not considered a form or act of discipline by the defendant, but were instead used to evaluate the plaintiff's continued employment. On May 19, 2008, the defendant gave the plaintiff an initial probationary performance evaluation, which rated the plaintiff's overall performance as ‘‘fair, '' partly on the basis of poor ratings in the categories of human relations and judgment. On or about October 3, 2008, the plaintiff e-mailed the defendant's human resources director to notify the defendant of discriminatory and harassing conduct that had been directed toward him. Subsequently, in a nine month evaluation dated October 16, 2008, the plaintiff received an overall job performance rating of ‘‘unsatisfactory.'' The plaintiff was terminated from the defendant's employ on October 22, 2008, prior to the expiration of his probationary work period. On December 26, 2008, the plaintiff filed a complaint with the commission. The commission issued the plaintiff a release of jurisdiction letter dated October 25, 2010.

         The court made the following additional factual findings. DeBrito was the plaintiff's immediate supervisor from May, 2007, until April, 2008. At the beginning of the plaintiff's employment, the plaintiff and DeBrito were friendly, but DeBrito mimicked the plaintiff on occasion. DeBrito completed a durational performance assessment of the plaintiff, dated September 25, 2007, covering the period from May 25, 2007, until September 25, 2007, which could be characterized as generally favorable to the plaintiff.

         On October 25, 2007, DeBrito and her supervisor, Robert Lapadula, met with the plaintiff and addressed with him their concerns about his disrupting the work place by being overly social. On December 7, 2007, the plaintiff was appointed to a permanent social worker position, to be effective on December 28, 2007, subject to a ten month probationary period[1] that was to expire on October 27, 2008. A probationary period is a preliminary period of employment used to determine whether the employee is well suited for the position for which he was hired and whether the employee should be retained on a permanent basis. The defendant is not required to use progressive discipline for a probationary employee.

         On December 21, 2007, DeBrito issued a formal counseling memorandum to the plaintiff regarding a failure to follow directives. Three incidents were cited in the memo. The first two incidents involved the plaintiff's directing new trainees to supervise visits with families without approval from DeBrito. The third incident involved the plaintiff's conducting a supervised home visit that exposed the children to safety risks without approval from DeBrito and in disregard of her directives. The memo indicated that DeBrito had addressed these issues with the plaintiff on several occasions and that they had both met with Lapadula on October 25, 2007, regarding these and other performance issues. Although the memo was not considered formal disciplinary action, it noted that the ‘‘failure to make and sustain significant improvements in the area[s] listed above may result in [the plaintiff] being dropped during [his] [probationary] period.''

         On January 24, 2008, the plaintiff was issued a second counseling memo by DeBrito regarding his failure to follow directives. This memo cited an incident from December, 2007, during which the plaintiff had submitted plans to a family for review that were different from the plans DeBrito had approved. The memo once again noted that a failure to improve could result in the plaintiff's termination during his probationary period. At the time that this counseling memo was issued, Michael Wood, the principal human resources specialist for the defendant, suggested to DeBrito and Lapadula that ‘‘strong indicators are being given that [the plaintiff] may not be a good match for the agency.'' He noted that this was ‘‘the second formal counseling matter for this [probationary] employee that has demonstrated behavior of not being able to follow instructions.'' On February 20, 2008, the plaintiff received a third counseling memo from DeBrito regarding his failure to follow directives. The memo cited an instance in which the plaintiff conducted the defendant's business when its office was closed, and had entered false information into the defendant's system.

         On May 19, 2008, DeBrito completed an employee service rating for the plaintiff for the first four months of his probationary period from December 28, 2007 to April 28, 2008. The plaintiff was evaluated overall as ‘‘fair, '' a rating that is below satisfactory. The evaluation indicated that this rating was based on claims that the plaintiff was ‘‘difficult, pushy and demanding'' with service providers and clients, and that he had shown resistance to supervision. The evaluation also indicated that the plaintiff needed to demonstrate improvement in judgment because he had conducted a supervised visit in a home when he was told by his supervisor not to do so, and had conducted state business on a holiday, without prior approval or supervision, by meeting with a family in the defendant's parking lot. On or about October3, 2008, the plaintiff filed aninternal discrimination complaint with the defendant's director of human resources in which he claimed discrimination, alleging that his rights as a black gay man had been ‘‘trampled upon.''

         In an evaluation dated October 16, 2008, which covered the period from April 28, 2008 to October, 2008, the plaintiff's new supervisor, Dana Goldberg, [2] rated the plaintiff's overall performance as ‘‘unsatisfactory.'' At the time she prepared this evaluation, Goldberg was unaware of the plaintiff's October 3, 2008 complaint. Goldberg's evaluation was based on unsatisfactory ratings in the categories of human relations and judgment. As to human relations, the evaluation noted that since May, 2008, the defendant had received several complaints about the plaintiff, including one complaint that he had left children alone during a supervised visit and another that he allowed the noncustodial biological father to learn the previously undisclosed location of his children's residence. The plaintiff already had admitted to the veracity of some of these complaints at the time Goldberg issued her evaluation. In regard to judgment, the evaluation also cited the fact that the plaintiff had made inappropriate comments about the defendant's staff to a client and another staff member.

         On October 22, 2008, Wood told the plaintiff he was being terminated from employment. The defendant's internal investigation of the plaintiff's October 3, 2008 complaint did not begin until after the decision to terminate the plaintiff had been made. The letter of termination cited the fact that during the plaintiff's probationary period, he had ‘‘regressed in the areas of ability to learn new duties, dependability, human relations, and judgment . . . .'' DeBrito and Goldberg were not involved in the decision to terminate the plaintiff's employ, but their evaluations of his performance were considered by the defendant's human resources department, the ultimate decision-maker regarding the plaintiff's termination.

         The defendant's internal investigation into the plaintiff's October 3, 2008 discrimination complaint was concluded on December 11, 2008. The report by the investigator found that there was sufficient evidence to believe that DeBrito had engaged in discriminatory behavior based on the plaintiff's sexual orientation. The report concluded, however, that the defendant had a legitimate reason to terminate the plaintiff during his probationary period due to his poor judgment and poor human relations skills. The defendant issued DeBrito a formal counseling memo as a result of the investigation.

         In a subsequent grievance hearing, an arbitrator found that there was enough evidence to establish that two of the plaintiff's supervisors had acted in a manner at least appearing to be discriminatory with respect to the plaintiff's sexual orientation. The arbitrator concluded, however, that the record lacked any clear evidence of a nexus between any intentional discriminatory supervision of the plaintiff and his loss of employment, and that there was ...


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