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Moore v. Department of Correction

United States District Court, D. Connecticut

June 2, 2017



          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Christian Moore is a black male who worked in the affirmative action unit at the State of Connecticut Department of Correction (DOC). His job was to investigate claims of discrimination against and within the DOC as well as to help the DOC meet its affirmative action hiring goals. When plaintiff encountered troubles with colleagues at work, he concluded that these problems were due to his race, his gender, and his dedication to the work of the affirmative action office.

         Workplace conflicts plagued the DOC's affirmative action unit during the time at issue in this lawsuit. The conflicts embroiled employees of different races and genders, as well as many members of a different DOC unit-the human resources department-which performed personnel tasks in collaboration with the affirmative action unit. Both units suffered through and contributed to a tense working environment such that employees of both units began to complain about one another. After that, members of both units alleged retaliation for having filed complaints, and so on.

         Plaintiff felt targeted by members of both units, particularly after the head of the human resources department made a FOIA request for plaintiff's emails. The results of this request revealed that plaintiff had extensively used his state computer to send personal emails, and plaintiff in turn was subject to discipline for misuse of DOC computers. Plaintiff believes the FOIA request and ensuing discipline were motivated by discriminatory and retaliatory animus.

         Plaintiff has filed this lawsuit suit against the DOC and various DOC officials including Leo Arnone, Daniel Callahan, Kimberly Weir, Tracey Butler, and Sandra Sharr. He alleges that the DOC as his employer engaged in race- and gender-based discrimination as well as retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He further alleges cognate claims for discrimination and retaliation under the Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen. Stat. § 46a-60 et seq. In addition, he alleges pursuant to 42 U.S.C. § 1983 that each of the individual defendants discriminated against him in violation of his rights under the Equal Protection Clause.

         Defendants have moved for summary judgment on all counts (Doc. #60). For the reasons set forth below, I conclude that triable issues of fact remain as to plaintiff's claim of Title VII retaliation against the DOC, as well as his equal protection retaliation claim against defendant Callahan. All other claims and defendants will be dismissed.


         The following facts are either agreed upon by both parties or presented in the light most favorable to plaintiff as the non-moving party. The DOC's affirmative action unit was responsible for many duties that dovetailed with those of the DOC's human resources department. The affirmative action unit, for example, was responsible for developing the DOC's affirmative action plan: a plan creating goals for the DOC to achieve representation reflective of the applicable labor market in all aspects of the employer/employee relationship, including in hiring and promotions. With that plan, the human resources department could then embark on recruitment and hiring efforts, but could hire or promote a candidate only if it had adequately completed paperwork reflecting compliance with the affirmative action plan, consulted with the affirmative action unit throughout most of the hiring process, and received a “sign-off” from the affirmative action unit prior to extending an offer.

         The affirmative action unit was also charged with investigating DOC employee complaints of harassment or retaliation. After each investigation, it would forward its findings to the human resources department for a determination of whether a pre-disciplinary hearing should be held, and the human resources department, in turn, would recommend discipline to the Commissioner of the DOC.

         In this way, the affirmative action unit and human resources department worked hand in hand, in most tasks relying and depending on each other to perform their job duties. Each unit, too, had a similar structure: each had a department head that reported directly to the Commissioner of the DOC, and underneath that department head worked managers and other employees.

         Over the years, tensions simmered between the two departments as each perceived shortcomings in the other during performance of their complementary job duties. In the hiring or promotion process, the affirmative action unit would receive a “recruitment package” from the human resources department that, from the affirmative action unit's perspective, did not comply with the processes or goals set forth in the affirmative action plan; after a period of review, the affirmative action unit would send that package back to the human resources department without approval, challenge the human resources department about the paperwork submitted, and pose questions about, for example, why a “goal” candidate had not been recommended for a position, or why certain explanations had not been provided in the paperwork. See Doc. #61 at 147-51; e.g., Doc. #70-4 at 1-3, 7-15.

         For its part, the human resources department felt stymied in its efforts to promptly hire qualified candidates for open positions. It believed that the affirmative action unit would purposefully delay acting on or approving several recruitment packages until it could extract a concession on a particular package. See Docs. #60-9 at 6-8; #60-7 at 45; #60-10 at 5, #72-1 at 9.

         These work-related tensions between the affirmative action unit and the human resources department permeated the ranks of each unit. Managers and subordinates alike begrudged those of the other unit for hindering the hiring/promotion process or the affirmative action goals of the DOC. Doc. #60-9 at 6.

         At times, the heads of each unit required the Commissioner's intervention to resolve stalemates. Id. at 8. By September of 2009, plaintiff's boss, the director of the affirmative action unit, Bob Jackson, and the director of human resources, Dan Callahan, were barely on speaking terms. Because of that conflict, Jackson delegated to plaintiff, who was then serving in the position of Equal Employment Opportunity Specialist 2, his authority to approve/reject recruitment packages on behalf of the affirmative action unit.

         But by 2010, the relationship between the departments had continued to sour, creating a tense and acrimonious working environment for all. Not only had the normal tensions between the units worsened, but now employees of each unit claimed that they personally were being retaliated against or harassed by employees of the other unit, on the basis of race, gender, and/or age.

         Even the two department heads filed complaints against one another: Callahan (white male) filed a complaint against Jackson (black male), and vice versa. Jackson's complaint of September 3, 2010, against Callahan alleged that “the tone of the conversation [between Callahan and me relating to a recruitment package] was so intense [that] I concluded based on past experiences that Dan's comment was race related.” See Doc. #70-2 at 2.

         Plaintiff was interviewed on December 2, 2010, and December 7, 2010, in connection with the incident of September 3, 2010, between Callahan and Jackson. See Doc. #60-10 at 5-6. He indicated that “Dir. Callahan would call Dir. Jackson and they would argue [about a recruitment package]. . . . [I]t seems like Dir. Callahan would take it personal. When you take something personal, you are already pissed off about it and Dir. Jackson would reciprocate it.” Id. at 5. Plaintiff stated that, although Jackson and Callahan took their recruitment-package disagreements personally, he did not feel that the interactions between the departments were evidence of invidious discrimination. Id. at 4-6.

         In the same interview, plaintiff also discussed with investigators a complaint lodged by two affirmative action unit employees, Loyda Borton (Hispanic female) and Debbie Sass (white female), against Jackson (black male). See Id. at 3-4. Borton and Sass had accused Jackson of retaliating against them for participating in the investigation of a prior complaint by Callahan against Jackson. See Docs. #61-1 at 142-42; #60-10 at 4-5; see also Doc. #33 (¶¶ 49, 50) to Jackson v. Conn. Dep't of Corr., No. 12cv1714 (AVC). Plaintiff refuted the charge against Jackson, telling the investigator that both Borton and Sass had felt entitled to a certain promotion, but when neither got the promotion, they used “any petty annoyance they have had with [Jackson] . . . to claim retaliation.” Doc. #60-10 at 5. Plaintiff also explained that the poor working relationship between Jackson and Borton was Borton's fault, and that the poor working relationship between Jackson and Sass was because Sass preferred to work independently. See Id. at 3-5.

         In the meantime, defendant Leo Arnone began his tenure as the new Commissioner of DOC in July of 2010. At that time, Arnone liked the job plaintiff was doing in the affirmative action unit and worked to promote him, eventually by personally writing to the governor's office.[1] As a result of those efforts, plaintiff was promoted to Equal Employment Opportunity Manager of the affirmative action unit in November of 2010. This new position, however, was subject to a six-month “working test period”; plaintiff would work in the new position and receive a commensurate pay increase, but would not permanently achieve the promotion until passage of the probationary period without incident.

         Arnone was well aware of the tensions between the affirmative action unit and the human resources department, and he was specifically aware of the dueling complaints between Callahan and Jackson, as well as the collateral damage wreaked upon others in human resources and the affirmative action unit because of their mutual animosity. He knew that Callahan and Jackson considered their differences relating to recruitment packages to rise to the level of personal and intentional discrimination against one another. Doc. #72-4 at 21.

         Over time, Arnone seemed to side with Callahan; when he later testified at a deposition, Arnone agreed that, beyond the normal friction that may arise between affirmative action units and human resources, the affirmative action unit at the DOC was trying to pull a “power play” on human resources, “an immature” thing to do. Doc. #60-7 at 45. Arnone also testified that he did not trust Jackson to submit unadulterated statistics about whether the DOC treated minority employees different from non-minority employees. See Doc. #72-4 at 30-32.

         Tensions between the affirmative action unit and human resources department boiled over on March 29, 2011, because of a recruitment package-in which a Native American “goal” candidate was recommended by the human resources department, seemingly a result acceptable to both departments-that plaintiff did not timely approve. Angry e-mails zipped back and forth between subordinates of the two units, then e-mails between the heads of the departments, and then e-mails from the head of one department to the subordinate of the other, such as an e-mail from Callahan to plaintiff on March 30, 2011: “That this package[, ] which really was a simple package with one qualified goal candidate, was clearly and purposefully delayed by you is not acceptable to me. Just because you have the power to delay this package does not justify the delay. . . . The way you have treated this package is unfortunately typical of the way this process[ ] has been abused. It [a]ffects the agency, my employees and the candidate in a way that does not meet my standards of professionalism.” Doc. #60-13 at 14-15.

         The next day, both sides complained to Arnone. See Doc. #60-13. Callahan complained of retaliation by plaintiff, whom Callahan suspected was retaliating against him for having filed a complaint against Jackson in September 2010. Doc. #70-6 at 1. Plaintiff, too, complained of retaliation by Callahan against him, suspecting that Callahan was mistreating plaintiff because plaintiff had been on Jackson's side with respect to the September 2010 incident between Callahan and Jackson. Doc. #60-13 at 18 (“I am being targeted because of a discontention for Director Jackson.”).

         Jackson, too, got involved in this dispute between Callahan and plaintiff, reaching out to Arnone and noting that he was “becoming very concerned for the well being and safety of my employees.” Id. at 7, 13. Arnone responded to Jackson that “there are equally serious allegations across both units from within and from outside each unit. Some of the complaints seem to be thinly [veil]ed attempts to support a position and some seem to have real merit. We are in the process of investigating all of them.” Id. at 13.

         Not satisfied to wait for the results of the myriad retaliation complaints that had just been lodged, only four days after this incident, on April 4, 2011, Callahan upped the ante by sending a Freedom of Information Act (FOIA) request to the DOC's legal department, seeking, among other documents, “[a]ll e-mails to or from Robert Jackson and Christian Moore for the last two years.” Doc. #70-8 at 2.[2] Callahan's FOIA request also asked for the phone records and work calendars of Jackson and plaintiff dating back to September 3, 2010-the date of Jackson's racial discrimination complaint against Callahan-because Callahan wanted to determine whether Jackson had been directing plaintiff to delay recruitment packages in order to get back at Callahan for perceived racism arising in the incident of September 3, 2010, and more generally to “expose” what was happening behind the scenes in the affirmative action unit. See Doc. #60-9 at 20-21. Callahan also sought information about certain investigations run by the affirmative action unit because he suspected that the affirmative action unit investigators were sending draft investigations to Jackson, but that Jackson was altering the conclusions with respect to whether discrimination or retaliation had occurred. Doc. #72-1 at 3.

         Joan Ellis, the DOC's FOIA Administrator and a work acquaintance of Callahan's, received Callahan's “unusual” FOIA request and set to work. Doc. #60-14 at 18.[3] While going through plaintiff's e-mails on April 21, 2011, she noticed that there was a large volume of personal e-mails-e-mails relating to church business, vacation bookings, and other purely personal matters beyond mere community outreach. These e-mails were being sent and received by plaintiff during work hours, in clear violation of several administrative directives that govern DOC employees.

         Although she had never before reported an employee for e-mail misconduct that was revealed by a FOIA request, Ellis decided to report plaintiff's email usage to her supervisor, Brian Garnet, because she had never previously seen this quantum of personal email usage. Doc. #60-14 at 22-23.[4] Garnet, in turn, reported the matter to Arnone, even though neither FOIA requests nor this type of workplace policy violation are normally reported to the Commissioner. See Doc. #60-7 at 23-25.

         Ellis eventually briefed Arnone on the matter by showing him a sampling of plaintiff's e-mails from over 1, 000 personal e-mails found on plaintiff's computer. On April 26, 2011, Arnone directed a Security Division investigation into the violations. Doc. #60-20 at 1. He specifically cautioned that neither Callahan nor plaintiff be made aware of the investigation or its outcome.

         On May 9, 2011, the Security Division investigator who was assigned to assess plaintiff's computer misuse issued a report finding that plaintiff had violated several administrative directives. Doc. #60-20. Plaintiff admitted to the investigator that he had violated these directives, but insisted that “a building wide audit would reveal a lot of this type of conduct.” Doc. #60-19 at 5, 8.[5]

         On May 13, 2011, plaintiff received in-hand notice that a pre-disciplinary Loudermill hearing would take place on May 17, 2011, for his computer infraction. On May 16, 2011, plaintiff requested additional time to seek legal counsel and prepare for his hearing, and he was granted an extension to May 19, 2011. On May 17, plaintiff again requested additional time so that he and an attorney could review the hundreds of personal e-mails the DOC asserted were improper; but by an e-mail sent at 5:02 p.m. on May 18, 2011, plaintiff was denied an additional extension and told that his Loudermill hearing would proceed on May 19, 2011. On the date of his scheduled Loudermill hearing, plaintiff had already retained an attorney, was at work, and knew that the hearing was proceeding and that he had the right to present evidence in his defense, and yet he decided not to attend.

         After the Loudermill hearing, the DOC's Labor Relations office recommended that plaintiff be issued a written reprimand. Arnone, who did not personally supervise plaintiff, concurred with the discipline and decided to take the “unusual” step of personally issuing plaintiff an unsatisfactory promotional working test period performance evaluation. See Doc. #60-7 at 41 (“[a]bsolutely not” typical for a commissioner to give a working test period failure performance evaluation to a mid-level manager whom he did not supervise). Although the evaluation set forth several metrics by which to rate plaintiff, Arnone rated plaintiff in only one category, “Judgment, ” and rated him overall as “Unsatisfactory” because of his violation of ...

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