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Pouncey v. Town of Hamden

United States District Court, D. Connecticut

November 27, 2017

RAYMOND POUNCEY, SR., Plaintiff,
v.
TOWN OF HAMDEN, et al., Defendants

          RULING ON MOTION FOR SUMMARY JUDGMENT

          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Raymond Pouncey has worked for the Town of Hamden as a firefighter since 1997. He alleges that the Town of Hamden (“the Town”) and various members of the Hamden Fire Department subjected him to on-the-job discrimination because of his religion.

         He has brought this action by way of a 154-page amended complaint, claiming religious discrimination and the creation of a hostile work environment (Counts 1, 5, 9, 13, 17); retaliation (Counts 2, 6, 10, 14, 18); intentional infliction of emotional distress (Counts 3, 7, 11, 15, 19); and negligent infliction of emotional distress (Counts 4, 8, 12, 16, 20). The religious discrimination, hostile work environment, and retaliation claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., the Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen. Stat. § 46a-60, and against individual defendants under 42 U.S.C. § 1983. Defendants have moved for summary judgment on all claims. For the reasons set forth below, I will grant defendants' motion for summary judgment as to all claims except the hostile work environment claims against the Town under Title VII and CFEPA.

         Background

         Plaintiff has been a Jehovah's Witness since 1995 and has been employed by the Town of Hamden as a firefighter at the Hamden Fire Department (HFD) since September 2, 1997. According to plaintiff, he has been the victim of religion-based discrimination by the Town and members of the HFD since Memorial Day of the year 2000. On May 29, 2000, the HFD was to participate in the Town's Memorial Day parade, but plaintiff objected to participating due to his religious beliefs. Because of his refusal, he was suspended without pay for one day by former Fire Chief Sullivan, who is not a defendant in this case.

         Plaintiff contacted the ACLU, grieved his suspension, and prevailed: he had any letters removed from his personnel file and received two days of pay. But, according to plaintiff, his failure to march in the parade has plagued him ever since then in the eyes of others-particularly because Battalion Chief Samuel DeBurra told plaintiff in 2009 that plaintiff has been a “marked man” since the parade because of his religion. Doc. #67-4 at 29.

         Plaintiff alleges multiple additional incidents and varieties of religion-based discrimination. These include, as discussed seriatim below, incidents involving cursing by co-workers in his presence, false accusations of misconduct, verbal and written warnings, transfers among stations, a suspension in 2012, a missed overtime opportunity, a reduction in duties, and failure to be promoted.

         Cursing

         Plaintiff has clashed with many of his coworkers throughout the years, often because of their propensity to curse in front of him, which he finds objectionable because of his religion. He has unapologetically made his religious objection to cursing known throughout the fire department, Doc. #61-13 at 7, either by confronting the offender and soliciting an apology, or by writing an incident report and requesting that his managers counsel the entire department about the effect of cursing on plaintiff.

         In a 2012 e-mail to plaintiff, Fire Chief David Berardesca noted several instances in which plaintiff had objected to cursing, and the Chief responded by training the platoon members and otherwise counseling them to stop cursing in plaintiff's presence. Doc. #63-3. But because it is known that plaintiff is averse to cursing, plaintiff contends that every instance of profanity, even if not directed at him, constituted harassment on the basis of his religion.

         False accusations of misconduct

         Plaintiff points to four allegedly false accusations of misconduct by his colleagues. The first incident occurred on September 25, 2012, when the HFD participated in a training session requiring the use of a 165-pound mannequin. Plaintiff and Lt. Pechmann (not a defendant) were haltingly moving the mannequin to place it in the truck, with Lt. Pechmann cursing that the mannequin was “fucking heavy.” When they reached the truck, plaintiff dropped the mannequin, causing Lt. Pechmann to aggravate a back injury. Plaintiff states that he thought he heard Lt. Pechmann say “all set”-as in, go ahead and drop the mannequin-when in fact Lt. Pechmann had said “hold up a sec.” See Doc. #62-4. But Lt. Pechmann and Firefighter Martin (also not a defendant) filed incident reports in which they alleged that plaintiff intentionally dropped the mannequin, saying to Lt. Pechmann “you dropped the F bomb, I dropped the bag.” After review of the reports, Chief Berardesca concluded that plaintiff had intentionally dropped the bag and suspended plaintiff for two days. Doc. #61-4 at ¶¶ 38-41.

         Plaintiff appealed his suspension to the Fire Commission, successfully overturned the suspension on January 30, 2013, and never served his two-day suspension. During the time plaintiff pursued his appeal of the suspension, he was eligible but passed over for one overtime shift on December 13, 2012, Doc. #67-4 at ¶ 24, though he made up that shift on February 3, 2013. Docs. #61-14 at 2; #61-4 at ¶ 46.[1]

         The second incident occurred on March 14, 2014, when plaintiff and defendant Lt. Kevin St. John responded to a medical call. Plaintiff and a colleague perceived Lt. St. John as being rude and unprofessional by yelling at plaintiff near a patient, while Lt. St. John believed that plaintiff shut a door in his face during that call. See Doc. #62-7. Although Battalion Chief DeBurra concluded that plaintiff's account of the event was more credible than Lt. St. John's, he “did not see the need for any further action, ” id. at 7, which plaintiff assails for failure to discipline Lt. St. John for filing a false report.

         The last two false accusations occurred within a short time span, the first being on October 30, 2014, when plaintiff arrived for work two minutes late and was written up by Captain Couture. Doc. #62-8. Only three days later, plaintiff was again written up by Captain Couture, this time for leaving work before he had been properly relieved from duty. Doc. #62-9. On November 3, 2014, plaintiff was called in to speak with Battalion Chief Fitzmaurice (not a defendant) and Captain Couture about being late and leaving before he had been properly relieved. Doc. #67-4 at ¶ 51.

         After plaintiff filed an internal harassment complaint, HR investigated and concluded that plaintiff had indeed been treated unfairly and that the rules surrounding a firefighter's reporting for and being relieved from duty “leave too much room for discretion.” Doc. #67-5 at 21. The report concluded that management should provide “more clarity” to the “entire department of the standards required of all Firefighters” because it appeared that “[t]he unfortunate and inconsistent application of the policy regarding punctuality and proper relief did create a discrepancy” in plaintiff's case. Id. at 22. The HR officer also concluded that plaintiff's meeting with Battalion Chief Fitzmaurice had not resulted in a verbal warning and was not considered as such by the administration, id. at 21, though plaintiff continues to assert that this was a discriminatory verbal warning.

         Written warning

         On November 3, 2014, the day plaintiff was called in to meet with Battalion Chief Fitzmaurice and Captain Couture for a “verbal warning, ” plaintiff was also issued a written warning for physical intimidation of Captain Couture in violation of the Town's workplace violence policy. Doc. #67-5 at 13. The incident arose because Captain Couture admitted to plaintiff that he had been telling others about plaintiff's being late for and not being properly relieved from duty. During the exchange, Captain Couture began to raise his voice, standing approximately three feet away from plaintiff, who then put his coffee down and stood back in the same position. Captain Couture told plaintiff to back up, but plaintiff refused. Doc. #62-10. Plaintiff received a written warning on November 25, 2014 from Chief Berardesca, Doc. #67-5 at 13. He grieved the warning, and on June 22, 2016, the Town agreed to rescind the written warning. Doc. #67-5 at 15.

         Transfers

         Plaintiff was transferred between fire stations at least ten times, nine of which occurred prior to early 2011. Doc. #61-2 at ¶ 5; #67-4 at 5 ¶ 17. Plaintiff alleges that one of the transfers in 2000 was a result of his being asked to raise a flag and refusing for religious purposes. Doc. #61-9 at 15-17.[2] A more recent transfer occurred on December 5, 2014, when plaintiff was notified that he would be transferred from Station 9 to Station 3, but that transfer was rescinded on December 11, 2014 (and plaintiff never worked at Station 3 on account of this failed transfer). Plaintiff was also transferred between platoons on January 15, 2015, but he remained at Station 9. Neither the December 2014 nor the January 2015 transfer is mentioned in the operative amended complaint.

         Plaintiff's transfers between stations may have resulted in a reduction in duties because, upon arriving at each new station, he would lose any seniority he once had as to his rank in the prior station, which might result in his being unable to choose a preferred locker or bunk in the new station. Doc. #61-9 at 13-14. Additionally, being transferred to a new station might have altered plaintiff's responsibilities to the extent that a new station might have more than one apparatus, requiring potentially more responsibility, or a different apparatus, resulting in potentially less or different responsibility. Id. at 14. Defendants note that firefighters are routinely transferred and attach a sampling of those transfers in support of their summary judgment motion. Doc. #62-3.[3]

         Reduction in duties and failure to be promoted

         Plaintiff alleges that Lt. St. John assigned him to the “rider” position instead of “driver” when responding to calls in October of 2013 and May of 2015. The parties dispute whether a firefighter's seniority plays a part in that firefighter's assignment as a “driver” or “rider” on any given call: defendants state that it does not affect the “driver” assignment because the senior officer directs apparatus assignments, but plaintiff asserts that it is “custom” for “the most senior guy or firefighter” to be offered the driving position. Compare Doc. #61-8 at ¶¶ 7, 8, with Doc. #67-4 at ¶¶ 71, 72. Although being assigned to the “rider” position on any given call does not affect the firefighter's pay or benefits, it may carry a negative connotation or affect opportunities for professional growth. Compare Docs. #67-1 at 4; #67-4 at ¶¶ 74, 88, with Doc. #61-4 at ¶¶ 20-22. Lt. St. John states that he assigned plaintiff to the rider position because plaintiff's strength allows him to remove and prepare the heavy-duty hose and ladder with greater ease than others, id. at ¶ 14, but plaintiff disagrees, stating that Battalion Chief Labanca (not a defendant) had hired plaintiff as a driver and that Lt. St. John's disregard of that assignment evidences a discriminatory motive.

         Plaintiff also contends that he was passed over for promotion because of his religion. Doc. #64-4 at 29-31. To be eligible for promotion, a firefighter must take and pass a written lieutenant exam. If the firefighter passes the exam, he or she is placed on an eligibility list based on the exam score, which list will become certified. Once a list is certified, the Town can fill the lieutenant spot from among the three individuals with the highest scores on the lieutenant exam. The certified list expires every six months but may be recertified for up to two years. Of the three times plaintiff asserts his failure to be promoted, he did not take one exam, failed another, and was ranked sixth on the eligibility list dated July 22, 2009. See Doc. #63-1 at 5. The list was certified on August 3, 2009, and recertified until it was allowed to expire on February 3, 2011; during that almost two-year period, the five people before him on the list were promoted as late as December 6, 2010. Plaintiff contends that he was unable to properly prepare for the exam in 2009 because he was under stress from a false accusation of violence (not included in the acts alleged to be discriminatory, above) by Lt. Kobbe (not a defendant). He also contends that the Town intentionally allowed the list to expire because he would have been next to be promoted. Doc. #67-4 at ¶ 92.

         Plaintiff has had other interpersonal clashes with his coworkers unrelated to his religious beliefs. For example, in 2008, plaintiff was an organizer for a charitable concert, soliciting donations from his union and other firefighters. After he had accepted donations, the concert fell through in 2009 for lack of ticket sales, but plaintiff did not refund some of his coworkers' donations because the funds had already been expended on concert promotion. His coworkers were upset, and when plaintiff asked Gary Merwede, the Deputy Fire Chief and Union president at the time (but not a defendant), why they were upset, Merwede responded that they wanted their “pound of flesh” from plaintiff. Doc. #61-5 at ¶¶ 7-16; Doc. #61-11 at 1-6. Plaintiff has had other clashes with Captain Couture, detailed in a 2014 incident report, including that plaintiff “blew the whistle” on Couture for using fire department equipment to help Couture's girlfriend move a large stone while the firefighters were on duty (thus missing a medical call), as well as that plaintiff had received help building his house from Couture, who had felt pressured to do so. Doc. #62-9 at 6, 8.

         Plaintiff filed a succession of administrative charges and two federal court complaints that have now been consolidated in this action. He filed his first charge before the Connecticut Commission on Human Rights and Opportunities (CHRO) on February 28, 2013, for which a release of jurisdiction issued on January 15, 2014. Doc. #46, Exs. 1, 2. He then filed his first federal court complaint (against only the Town and Chief Berardesca) on April 9, 2014. Doc. #2.

         Plaintiff filed his second CHRO charge on April 8, 2014, and received a release of jurisdiction for his second CHRO charge on October 30, 2014. Doc. #45, Exs. 3, 4. Plaintiff filed his second ...


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