Femia v. City of Meriden
| Docket Number | AC 45866 |
| Decision Date | 19 December 2023 |
| Parties | JOHN FEMIA v. CITY OF MERIDEN |
| Court | Connecticut Court of Appeals |
1
JOHN FEMIA
v.
CITY OF MERIDEN
No. AC 45866
Court of Appeals of Connecticut
December 19, 2023
Argued October 24, 2023
Procedural History
Action to recover damages for alleged employment discrimination, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Abrams, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
Eric R. Brown, for the appellant (plaintiff).
Stuart C. Johnson, with whom was Emily Holland, for the appellee (defendant).
Alvord, Elgo and Moll, Js.
OPINION
ALVORD, J.
In this employment discrimination action, the plaintiff, John[1] Femia, appeals from the summary judgment rendered by the trial court in favor of his employer, the defendant, the city of Meriden. The plaintiff claims that the court improperly concluded that there was no genuine issue of material fact with respect to his allegation that he was not selected for a promotion in 2019 within the Meriden Police Department (department) on the basis of his age in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq.[2] We affirm the judgment of the court.
The following facts, viewed in the light most favorable to the plaintiff as the nonmoving party, and procedural history are relevant to our resolution of this appeal. The plaintiff began working for the department in 2000, at which time he attended the Connecticut Police Officer Standards and Training (POST) Academy. After graduating from the academy in 2001, the plaintiff worked as a patrol officer within the department. In 2002, the plaintiff resigned from full-time employment with the department to pursue his legal education.[3] After graduating from law school and then working as an attorney, the plaintiff resumed full-time employment with the department as a patrol officer in 2008, until he was promoted to the rank of detective in 2012.
The department's General Order Promotions-01 (general order) guides its promotional process. Pursuant to the general order, the promotional process is designed to address "[1] Validity: Proof through statistical data that a given component of the selection process is job related either by predicting a candidate's job performance or by detecting important aspects of the work behavior related to the position; [2] Utility: Proof of the usefulness that a given component of the selection process can be used as a predictor of job success; [and 3] Adverse Impact: Proof that a given component is not discriminatory towards a member of a particular protected class, age, race or ethnic background, as measured by the '80% rule.'" (Emphasis omitted.) Meriden Police Department, General Order Promotions-01 (effective June 24, 2016) p. 5. The components of the promotional process include: "[1] A written examination; [2] An oral examination; [and 3] The awarding of points as determined by the candidates Seniority" (collectively, the exam). Id., p. 3. A candidate becomes eligible for a promotion by obtaining a passing grade on the exam and being placed on the promotional list. See id. The general order also contains a section entitled "Development and Use of Promotional Eligibility Lists," which states that the defendant determines the criteria and procedures for creating and using a promotional eligibility list. Id., p. 5. These procedures include, in part,
"[t]he method for selecting [candidate] names from the lists." Id.
The plaintiff first sought promotion to the rank of detective sergeant in 2014. Although the plaintiff received the second highest score on the exam, the department's chief, Jeffry Cossette, did not promote any candidate at that time.[4] In 2016, the plaintiff again completed the exam for possible promotion to the rank of detective sergeant. The plaintiff received the highest score on the exam. Thereafter, Cossette promoted Detective Shane Phillips.[5] In 2018, the plaintiff took the exam for possible promotion to the rank of detective sergeant. The plaintiff received the highest score on the exam, and Detective John Wagner received the second highest score. Cossette promoted Wagner to the rank of detective sergeant. At the time of this promotion, Wagner was thirty-nine years old, and the plaintiff was forty-two years old.[6]
The plaintiff filed a complaint with the Commission on Human Rights and Opportunities, which issued a release of jurisdiction on May 4, 2020. Thereafter, on June 24, 2020, the plaintiff commenced the present action against the defendant. The operative complaint, amended February 11, 2021, alleged one count of age discrimination in violation of General Statutes § 46a-60 (b) (1). The defendant answered the complaint and asserted a special defense alleging that the plaintiff failed to mitigate his damages.
On January 31, 2022, the defendant filed a motion for summary judgment as to the operative complaint, accompanied by a supporting memorandum of law and appended exhibits. Therein, the defendant argued that the plaintiff had not established a prima facie case of age discrimination because "[t]he evidence demonstrates that there is no significant difference in age between the plaintiff and the individual who was promoted instead of him. The plaintiff cannot make out a prima facie case of age discrimination without showing that there was a significant difference in age between himself and the individual who was promoted." Alternatively, the defendant argued that, even if the plaintiff could establish a prima facie case of age discrimination, there was no evidence that the defendant's proffered legitimate reason for promoting Wagner instead of the plaintiff was pretextual.
The defendant appended the following exhibits: the general order; the 2018-2019 detective sergeant promotional eligibility list; the plaintiffs 2016-2018 performance evaluations; Wagner's 2016-2018 performance evaluations; excerpts from the plaintiffs deposition transcript; excerpts from Phillips' deposition transcript; a copy of the defendant's responses to the plaintiffs first set of interrogatories and requests for production; and Cossette's signed affidavit. In his affidavit, Cossette averred that he promoted Wagner instead of the plaintiff
because the plaintiffs "social skills, communication skills, and command presence were lacking as compared to . . . Wagner . . . ." Cossette also attested that Wagner had obtained the respect of his fellow officers, whereas the plaintiff had not to the same extent, and Wagner was "better suited" for leadership positions. Cossette averred that, at the time of his promotional decision, he did not know the ages of the plaintiff or Wagner, nor did he know that the plaintiff was older than Wagner.
On June 3, 2022, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment, in which he argued that he had established a prima facie case of age discrimination. In support of his opposition, the plaintiff maintained that (1) all persons promoted to the detective sergeant position in the department after 2008 were under the age of forty, (2) a senior member of the department command staff made an ageist comment to him,[7] (3) a reasonable jury could conclude that Cossette knew of the plaintiffs age when he did not select the plaintiff for the promotion because Cossette had access to the plaintiffs personnel file, which contained his age, and (4) a reasonable jury could find that the defendant's proffered nondiscriminatory reasons for not promoting the plaintiff were a pretext for discrimination.
The plaintiff submitted the following exhibits in support of his opposition: the plaintiffs deposition transcript; the defendant's responses to the plaintiffs second set of interrogatories and requests for production; a copy of the plaintiffs driver's license and resume; the general order; the plaintiffs 2018 performance evaluation; the department's 2018 detective sergeant examination results; the 2018 promotional eligibility list; the defendant's responses to the plaintiffs first set of interrogatories and requests for production; Cossette's deposition transcript; deposition transcripts from two supervisors; and the plaintiffs affidavit. In his affidavit, the plaintiff averred that, in addition to his regular patrol and detective duties, he also had the following duties and responsibilities: "[1] POST certified Search and Seizure instructor; [2] POST certified Criminal Law Instructor; [3] POST certified Search Warrant Preparation Instructor; [4] Gang training of staff at the Venture Academy and Wilcox Tech High School; [5] Presenter to the Meriden Council of Neighborhoods on gangs; [6] Instructor at the [department's] Citizen's Police Academy; [7] Intelligence Liaison Officer to the Connecticut Intelligence Center (CTIC) since 2014 and [he] received a statewide award for leadership in this role; [8] Gang Intelligence Officer from 2015 through approximately 2018; [and 9] Liaison to the Connecticut FBI Joint Terrorism Task Force Executive Board from 2015 to present." Additionally, the plaintiff averred that, "[t]o my knowledge, following my return to the [department] in September, 2008, I was the only candidate who placed
first on the [promotional] eligibility list for promotion to the position of Detective Sergeant who was not promoted to the position of Detective Sergeant." The court, Abrams, J., held oral argument on the motion for summary judgment on August 5, 2022.
On September 14, 2022, the court issued a memorandum of decision, wherein it determined "that the plaintiff failed to raise a genuine issue of material fact on the issue of whether his adverse employment action occurred under circumstances giving rise to a claim of age discrimination. Having failed to make such a showing, the plaintiff has not set forth a...
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