United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer United States District Judge.
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.
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
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.
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.
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.
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.
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.
accusations of misconduct
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.
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.
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
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.
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
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.
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. 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.
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.
in duties and failure to be promoted
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.
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.
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.
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.
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