United States District Court, D. Connecticut
RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO.
C. Hall United States District Judge
plaintiff, Sergeant Jason Koenig (“Koenig”),
brings this employment discrimination and retaliation action
against the defendant, the City of New Haven (“the
City”). See Amended Complaint (“Am.
Compl.”) (Doc. No. 32). Count One of Koenig's
Amended Complaint alleges that the City discriminated against
Koenig in violation of the Americans with Disabilities Act
(“ADA”). See id. at 11. Count Two
alleges that the City retaliated against him in violation of
the ADA. See id. at 11-12. Count Three alleges that
the City retaliated against him in violation of the
Rehabilitation Act. See id. at 12- 13. Count Four
alleges that the City violated the Connecticut Fair
Employment Practices Act (“CFEPA”). See
id. at 13-14. The court construes Count Four broadly to
encompass both a CFEPA discrimination claim and a CFEPA
City now moves for summary judgment on all four counts,
asserting that Koenig “is not entitled to recovery as a
matter of law based upon the undisputed facts.”
Defendant's Motion for Summary Judgment
(“Def.'s Mot.”) (Doc. No. 44) at 1.
reasons that follow, the City's Motion for Summary
Judgment (Doc. No. 44) is granted.
defendant, the City of New Haven, is a municipal corporation
and employer of over one hundred employees, including Koenig.
Defendant's Rule 56(a)(1) Statement of Facts
(“Def.'s Statement”) (Doc. No. 45) at ¶
1; Plaintiff's Rule 56(a)(2) Statement of Facts
(“Pl.'s Statement”) (“Doc. No. 48-2) at
¶ 1. The plaintiff, Koenig, was hired by the City as a
police officer and has since attained the supervisory rank of
Sergeant in the City's Police Department. Def.'s
Statement at ¶ 2; Pl.'s Statement at ¶ 2.
to the City's Civil Service Rules, the City must hold a
civil service test as a pre-requisite to filling certain
positions, including that of lieutenant. Def.'s Statement
at ¶ 6; Pl.'s Statement at ¶ 6. The results of
examinations are used to generate lists of eligible
candidates. See Exh. B, Def.'s Mot. (the
“2013 List”) (Doc. No. 44-2) at 1 (listing
individuals who, “having passed an examination with a
score of 70% or more, and having complied with all the Rules
and Regulations of the Civil Service Board are hereby
certified as eligible for a position” as police
lieutenant). The Civil Service Rules are applicable to all
officers, and the Rules explain the process and procedure for
promotions, eligibility for promotions, and examinations.
Def.'s Statement at ¶ 6; Pl.'s Statement at
¶ 6. To be eligible for a promotion, a candidate must
comply with the requirements of the Civil Service Rules.
Def.'s Statement at ¶ 6; Pl.'s Statement at
September 28 and 29, 2013, Koenig took the examination for
promotion to lieutenant administered by the City. Def.'s
Statement at ¶ 4; Pl.'s Statement at ¶ 4. A
score of 70% or higher is sufficient to pass the lieutenant
exam. See 2013 List at 1. With a score of 71.83,
Koenig was eighteenth among the twenty individuals who passed
the 2013 lieutenant exam. Id.; see also
Def.'s Statement at ¶ 4; Pl.'s Statement at
December 2013, Koenig filed his first lawsuit against the
City and Chief Esserman (the “2013 Lawsuit”),
which was captioned Koenig v. City of New Haven, No.
3:13-CV-1870 (JCH). Def.'s Statement at ¶ 3;
Pl.'s Statement at ¶ 3. In that action, Koenig
alleged claims of discrimination pursuant to the Americans
with Disabilities Act, Section 504 of the Rehabilitation Act,
and the Connecticut Fair Employment Practices Act resulting
from disciplinary actions taken against the
Koenig. Def.'s Statement at ¶ 3;
Pl.'s Statement at ¶ 3.
December 2013, twelve lieutenant positions became available.
Def.'s Statement at ¶ 7; Pl.'s Statement at
¶ 7. The candidates ranked one through twelve from the
2013 List were promoted to lieutenant. Def.'s Statement
at ¶ 7; Pl.'s Statement at ¶ 7. In December
2014, seven lieutenant positions became available. Def.'s
Statement at ¶ 8; Pl.'s Statement at ¶ 8. The
candidates ranked thirteen through sixteen on the 2013 List
were promoted to fill four of the seven lieutenant positions.
Def.'s Statement at ¶ 8; Pl.'s Statement at
¶ 8. The City did not fill the remaining three
the City's Civil Service Rules, lists of individuals
eligible for promotion based on examination results are valid
for a limited period of time. Def.'s Statement at ¶
5; Pl.'s Statement at ¶ 5. In pertinent part, the
Civil Service Rules provide as follows:
The Board shall set the duration of an eligible list at the
time it is approved and the Board may thereafter extend the
duration of the list. The Board's actions shall be
subject to the following:
(a) An eligible list shall initially be in effect for one
year, or until 75 percent of the list has been exhausted,
whichever comes first; provided, however, that the Board
shall be notified in advance of a list expiring, so that the
Board has the opportunity to extend its duration;
(b) Prior to its exhaustion, the Board may extend the
duration of a previously approved eligible list provided that
no eligible list shall be in effect for more than two years.
original certification date of any list shall not be changed
by subsequent corrections, amendments, or modifications to
the list. Def.'s Statement at ¶ 5; Pl.'s
Statement at ¶ 5. The 2013 List was originally set to
expire on November 12, 2013, but, on May 27, 2014, was
extended until May 12, 2015. Exh. B., Def's Mot. at 1. At
the time the list expired, candidates seventeen through
twenty on the 2013 List had not been promoted. Def.'s
Statement at ¶ 10; Pl.'s Statement at ¶ 10.
City next administered the lieutenant exam on March 31, 2017,
and, on July 7, 2017, announced promotions to lieutenant from
among the candidates who applied and tested at that time.
Def.'s Statement at ¶ 15; see Exh. 1,
Pl.'s Opposition (“Press Release”) (Doc. No.
48-4). Koenig did not apply for or take the 2017 examination,
and therefore was not considered for promotion in 2017.
Def.'s Statement at ¶¶ 17-18; Pl.'s
Statement at ¶¶ 17-18.
sworn Affidavit, Koenig states that he has been injured in
the course of performing his duties as a police officer and
sergeant on multiple occasions and, as a result of these
injuries, is permanently disabled. Affidavit of Jason Koenig
(“Koenig Aff.”) (Doc. No. 49-1) at ¶¶
24-26. Koenig states that he is able to “perform the
essential functions of [his] job with or without reasonable
accommodation.” Id. at ¶ 27. In his
Affidavit, Koenig also reproduces a complaint he originally
made to the Equal Employment Opportunity Commission
(“EEOC”) and the Connecticut Commission on Human
Rights and Opportunities (“CHRO”), which
complaint describes the circumstances underlying the 2013
Lawsuit. Id. at ¶ 31.
STANDARD OF REVIEW
motion for summary judgment, the burden is on the moving
party to establish that there are no genuine issues of
material fact in dispute and that the party is entitled to
judgment as a matter of law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986); Wright v.
N.Y. State Dep't of Corr., 831 F.3d 64, 71-72 (2d
Cir. 2016). Once the moving party has met its burden, in
order to defeat the motion, the nonmoving party “must
set forth specific facts showing that there is a genuine
issue for trial, ” Anderson, 477 U.S. at 256,
and present “such proof as would allow a reasonable
juror to return a verdict in [its] favor, ” Graham
v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
“An issue of fact is genuine and material if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d
assessing the record to determine whether there are disputed
issues of material fact, the trial court must “resolve
all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought.” LaFond v.
Gen. Physics Servs. Corp., 50 F.3d 165, 175 (2d Cir.
1995). “Where it is clear that no rational finder of
fact ‘could find in favor of the nonmoving party
because the evidence to support its case is so slight, '
summary judgment should be granted.” F.D.I.C. v.
Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)
(quoting Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). On the
other hand, where “reasonable minds could differ as to
the import of the evidence, ” the question must be left
to the finder of fact. Cortes v. MTA N.Y. City
Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d
One through Four of Koenig's Amended Complaint each
allege discrimination, retaliation, or both, in violation of
the ADA, the Rehabilitation Act, or CFEPA. Courts analyze
claims of discrimination and retaliation pursuant to all
three of these statutes by applying the burden-shifting
framework first articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Koenig v. City of
New Haven, No. 3:13-CV-1870, 2016 U.S. Dist. LEXIS
156873, at **10-13 (D. Conn. Nov. 10, 2016); Richter v.
Connecticut Judicial Branch, No. 3:12-CV-1638 (JBA),
2014 WL 1281444, at *9 (D. Conn. Mar. 27, 2014),
aff'd, 600 Fed.App'x 804 (2d Cir. 2015)
(discussing Rehabilitation Act); Preston v. Bristol
Hosp., 645 Fed.App'x 17, 19 (2d Cir. 2016) (citing
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 556 (2d
Cir. 2010)) (discussing CFEPA).
the McDonnell Douglas burden-shifting analysis, in
order to withstand the Motion for Summary Judgment, Koenig
must put forth evidence that establishes a prima
facie case of discrimination or retaliation. See
McDonnell Douglas, 411 U.S. at 802 (“The
complainant . . . must carry the initial burden [ ] of
establishing a prima facie case of [ ]
discrimination.”). If Koenig establishes a prima facie
case, the burden then shifts to the City to come forth with a
“legitimate, nondiscriminatory rationale for its
actions.” Kovaco v. Rockbestos-Surprenant Cable
Corp., 834 F.3d 128, 136 (2d Cir. 2016). If the City
provides a legitimate rationale, the burden then shifts back
to Koenig to “demonstrate that the proffered reason was
not the true reason for the employment decision.”
court first addresses Koenig's discrimination claims and
then turns ...