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Hernandez v. Department of Children And Families

United States District Court, D. Connecticut

May 29, 2018



          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Margarita Hernandez has brought this Title VII action alleging racial discrimination and retaliation by defendant Connecticut Department of Children and Families (DCF). This Court earlier entered a ruling denying defendant's motion for summary judgment, and defendant now moves for reconsideration of that ruling on two grounds: (1) that the Court did not consider the effect of an arbitral award in defendant's favor, and (2) that the Court mistakenly characterized plaintiff's comparator evidence.

         I will grant the motion for reconsideration. Although I do not agree with defendant that the arbitration decision requires plaintiff to introduce strong evidence that it was wrong, I conclude that the arbitration decision is nonetheless evidence that may and should be considered for purposes of summary judgment. I also conclude that plaintiff's comparator evidence is substantially weaker than I previously ruled. In light of these additional considerations, I now conclude that there is no genuine issue of fact for trial as to plaintiff's discrimination claim but that there still remains a genuine issue for trial as to plaintiff's retaliation claim.


         The factual background of this case is set forth at length in my earlier ruling on the motion for summary judgment. See Hernandez v. Dep't of Children and Families, 2018 WL 1472516, at *1-2 (D. Conn. 2018). My prior ruling did not discuss the fact that plaintiff grieved and challenged the termination of her employment in accordance with her union's rules and that this ultimately led to an arbitrator for the Voluntary Labor Arbitration Tribunal concluding in June 2017 that there was “just cause” for the termination of plaintiff's employment. See Doc. #38-1. The bulk of the arbitrator's decision concerns the facts of plaintiff's alleged misconduct involving her misuse of DCF computers for plaintiff's personal business reasons. Doc. #38-1 at 1-13. The arbitrator also concluded in a single paragraph at the end of the ruling that plaintiff had not been subject to “disparate treatment”:

The Union argues disparate treatment. However, in none of the cited cases had the employee received a formal counseling about something as serious as plugging a file-laden personal thumb drive into a state computer and accessing files from it; but then in direct and repeated violation of that formal counseling, the employee thereafter had committed the same offense numerous additional times. Moreover, the grievant on her DCF computer accessed her personal files from her thumb drive to advance her private practice, an aggravating consideration. And finally, the grievant as well was insubordinate, and sought to hide that fact, by hiding a personal printer tucked under her desk and covered over with a cardboard box, in an obvious effort to hide her insubordinate behavior from her supervisor. The termination of the grievant did not constitute disparate treatment.

Id. at 14.


         The Court is ordinarily reluctant to grant a motion for reconsideration but of course has a duty to do so if a party points to controlling decisions or material facts that the Court has overlooked. See, e.g., Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). I will first address defendant's argument concerning the arbitration award before turning to address defendant's argument about plaintiff's comparators.

         Arbitration award

         In light of the arbitrator's decision in its favor, defendant relies on the Second Circuit's decision in Collins v. New York City Transit Authority, 305 F.3d 113 (2d Cir. 2002), to argue that summary judgment should be granted in its favor. Although I agree that the arbitration decision warrants evidentiary weight for purposes of my summary judgment ruling, I don't agree that Collins applies to this case to require that plaintiff make a special strong showing that the arbitration decision was wrong.

         In Collins, the Second Circuit acknowledged that “a negative arbitration decision rendered under a CBA does not preclude a Title VII action by a discharged employee.” Id. at 119. It was confronted with what weight-if any-to give to an arbitral decision that was made as part of an employee's disciplinary process and that was necessary to the employee's termination of employment. The court concluded that “[w]here an employee's ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee's termination and the employer's illegal motive.” Id. at 115. The court explained that “a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link, ” and “[w]here, as here, that [arbitral] decision follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact-e.g., new evidence not before the tribunal-or that the impartiality of the proceeding was somehow compromised.” Id. at 119.

         As the facts of Collins makes clear, the arbitral decision there took place as an integral part of the termination process. More recently, the Second Circuit has held “that Collins is applicable only to decisions of a tribunal to which an employer has contractually surrendered the final power to discipline or discharge employees.” Cortes v. MTA New York City Transit, 802 F.3d 226, 233 (2d Cir. 2015) (declining to apply Collins to after-the-fact state administrative agency decision).

         The reason for this limitation on Collins is clear. It is one thing (as in Collins) if an arbitral decision is itself a step along the way of the termination process. In that context, the intervening involvement of a neutral arbitrator obviously tends to vitiate the likelihood that any ...

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