217 F.3d 141 (2nd Cir. 2000), 99-7966, Howley v Town of Stratford and W. Holdsworth

Docket Nº:Docket No. 99-7966
Citation:217 F.3d 141
Party Name:ELLEN HOWLEY, Plaintiff-Appellant, v. TOWN OF STRATFORD and WILLIAM HOLDSWORTH, Defendants-Appellees.
Case Date:June 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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217 F.3d 141 (2nd Cir. 2000)

ELLEN HOWLEY, Plaintiff-Appellant,



Docket No. 99-7966

United States Court of Appeals, Second Circuit

June 23, 2000

Argued: February 17, 2000

Appeal from a judgment of the United States District Court for the District of Connecticut, Alfred V. Covello, Chief Judge, summarily dismissing complaint alleging sexual harassment and failure to promote, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

Vacated and remanded.

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KAREN LEE TORRE, New Haven, Connecticut, for Plaintiff-Appellant.

RICHARD J. BUTURLA, Milford, Connecticut (Berchem, Moses & Devlin, Milford, Connecticut, on the brief), for Defendant-Appellee Town of Stratford.

Before: KEARSE, JACOBS, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Ellen Howley appeals from so much of a final judgment of the United States District Court for the District of Connecticut, Alfred V. Covello, Chief Judge, as (1) dismissed her complaint alleging that defendant Town of Stratford ("Town") failed to promote her to the position of assistant chief of its Fire Department ("Department" or "Fire Department"), and permitted a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., as amended by the Civil Rights Act of 1991, and (2) declined to exercise supplemental jurisdiction over her state-law claims against the Town and defendant William Holdsworth for intentional infliction of emotional distress through sexual harassment. The district court granted summary judgment in favor of the Town, dismissing the Title VII claims on the ground that there was insufficient evidence to show (a) that the Town's stated reasons for not promoting Howley were pretextual, and (b) that Holdsworth's verbal abuse of Howley

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created a hostile work environment. On appeal, Howley contends principally that the court impermissibly resolved issues of fact that should have precluded the entry of summary judgment on her failure-to-promote claim, and disregarded pertinent evidence in support of her hostile-work-environment claim. For the reasons that follow, we agree, and we vacate the judgment of the district court and remand for further proceedings.


The Town's Fire Department consists of approximately 100 firefighting personnel. Howley, who attained the rank of lieutenant, was at all pertinent times the Department's only female firefighter. In the present action, Howley contends principally that the Town, in violation of Title VII, discriminated against her on the basis of gender in denying her a promotion to the position of assistant chief in the Department's fire suppression division, and that it tolerated a hostile work environment in which she was subjected to sexual harassment. Viewed in the light most favorable to Howley as the party challenging the grant of summary judgment, the affidavits, depositions, and documents in the record reveal the following events.

A. The Failure To Promote

Howley joined the Department as a firefighter in 1982 and achieved the rank of lieutenant in July 1989. In June 1992, the Town closed one of its four firehouses, and as a cost-saving measure it, inter alia, demoted four lieutenants, including Howley, to the rank of firefighter. The firefighters union to which Howley belonged commenced an arbitration proceeding that eventually resulted in, inter alia, Howley's reinstatement as a lieutenant. The arbitration award, issued in May 1994, did not state that the reinstatement or restoration of rank was to be retroactive.

In the meantime, in January 1994, the Town posted an opening for the position of assistant chief in the Department's fire suppression division. One of the qualifications for that position was four years of "line officer" experience. Although the record contains no express definition of that term, there is no dispute that the position of lieutenant is such a "line office[]." Howley wished to compete for the position but had been a lieutenant for only some three years prior to the 1992 station closing. Aware of the four-year-line-officer requirement, Howley spoke to Fire Department Chief Roger Macey about the matter. Macey told Howley to file her application despite the unresolved state of the arbitration proceeding seeking reinstatement of her lieutenancy.

Howley filed her application on January 21, 1994, but heard nothing from the Town for several weeks. When she eventually heard a rumor that a date for the assistant-chief examination had been set, she inquired of Macey as to whether she would be allowed to take it, sending a formal letter of inquiry on February 22. By letter dated March 3, 1994, Jacques Obernesser, the Town's director of human resources, informed Howley that she was ineligible because she lacked the requisite four years of line-officer experience due to her demotion to the rank of firefighter upon the 1992 firehouse closing. With union backing, however, Howley challenged that decision; and on March 9 an agreement was reached in which the Town agreed to allow Howley to take the examination on a conditional basis pending resolution of the then-still-pending arbitration proceeding. The examination was held on March 10.

The assistant-chief examination was conducted by an independent company, which used a panel of assessors made up of chiefs, deputy chiefs, and assistant chiefs of fire departments in other Connecticut municipalities ("assessment panel" or "panel"). The panel evaluated the candidates in six areas, including their abilities to supervise the handling of a fire incident, to give safety training, to work with other supervisors, to resolve personnel disputes,

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and to handle press interviews. In each area and overall, the candidates were ranked on the basis of the following performance scale:

00 and above Excellent, Better than Expected. 80 to 89 Good, Competent, Expected. 70 to 79 Barely Adequate, Less than Expected. 60 to 69 Somewhat Inadequate, Less than Acceptable, Failing Score. 50 to 59 Totally Unacceptable, Failing Score. Six candidates, including John J. Cybart, who was eventually given the job, took the examination. Howley was the only female candidate.

By letter dated June 6, 1994 ("Panel Report"), the Town received the examination results and the assessment panel's recommendations. Cybart (to whom the panel referred as candidate #1) ranked third among the six candidates. Howley (to whom the panel referred as candidate #4) ranked fifth. The panel recommended Howley "only with the serious reservations" stated in its report on her (Assessment Panel Summary of Candidate #4 [Howley] at5), and recommended Cybart only "with the reservations" stated in its report on him (Assessment Panel Summary of Candidate #1 [Cybart] at5). As to Howley, the panel's overall summary was as follows:

The candidate's total score of 77.40 is barely adequate. The assessors noted a number of areas in the exercises where the candidate's performance could be improved. The candidate exhibited a general nervousness and seemed uncomfortable in most of the exercises. The candidate seemed to lack self-confidence and assertiveness, when required. The candidate also did not exhibit the technical knowledge required in the exercises. The assessors felt that this candidate would benefit greatly with more training and experience.

(Assessment Panel Summary of Candidate #4 [Howley] at5.) The overall summary as to Cybart was as follows:

The candidate's total score of 81.66 is in the good category, but it is on the low end. The candidate had some difficulty in the training exercise (B) and in the meeting with the firefighters (C). In both of these exercises, as well as in the group exercise (D), the candidate was not assertive enough to perform extremely well. The candidate does appear to be able to function in a fire department. However, it was noted in both exercises A and B that the candidate's performance would benefit by more technical knowledge regarding the operations of a fire department.

(Assessment Panel Summary of Candidate #1 [Cybart] at5.)

Rather than Cybart (candidate #1), the assessment panel stated that it "felt that candidate #2 was clearly the best qualified and [it] recommended [candidate #2] with no reservations" (Panel Report at 1). The Town hired Cybart.

After receiving a right-to-sue letter, Howley commenced the present suit in 1997. Following a period of discovery, the Town moved for summary judgment, seeking dismissal of the failure-to-promote claim on the ground that the Town had articulated legitimate nondiscriminatory reasons for denying Howley the promotion and that there was no genuine issue as to pretext. The Town argued that Howley had not been promoted "because she did not meet the minimum line officer experience requirement for that position," and that "even if she had had the four years of line officer experience, she would still have been eliminated from further consideration based upon her low test result and the recommendations of the panel of assessors." (Affidavit of Jacques Obernesser dated February 25, 1999, ¶16; see also Affidavit of Town Manager Mark Barnhart dated March 1, 1999, ¶19 (same), and ¶18 ("Cybart was selected because we considered him overall to be the best qualified candidate.").)

Howley opposed summary judgment, arguing that the reasons advanced by the Town were not genuine and that the Town's line-officer criterion had not been

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applied uniformly to men. She submitted her affidavit stating, inter alia, that at least one male firefighter, Robert Wilcoxson, had been considered for a prior assistant-chief position despite lacking four years of line-officer experience; he received the appointment....

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