Ledan v. City of Danbury, No. (X01) CV-04-4001301S (Conn. Super. 7/18/2006)

Decision Date18 July 2006
Docket NumberNo. (X01) CV-04-4001301S,(X01) CV-04-4001301S
CourtConnecticut Superior Court
PartiesKaren Ledan v. City of Danbury Opinion No.: 94440
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#135)

BARBARA J. SHEEDY, JUDGE.

Factual Background

The plaintiff, Karen Ledan, has brought this action against the City of Danbury for damages she alleges are the result of the defendants' discrimination against her in the terms and conditions of her employment as a Clerk Typist II working within the Records Division of the Police Department.

The seminal event was the reclassification of the Clerk Typist position held by a colleague ("Yager") on or about September 2002. Yager received a raise of one (1) pay grade as a result of that reclassification. When Ledan learned of the same, she applied for a reclassification, essentially taking the position if one were entitled to it, so too was she. By letter from the City's Personnel Director on December 27, 2002, Ledan was informed her application was denied and that "the information provided is not substantial enough to warrant review by Civil Service or reclassification at this time." Opp. Memo, Ex. 8. Yager's application had been received and approved by the reclassification committee and presented to and approved by the Civil Service Commission. Ledan, on March 20, 2003, filed a complaint with the Connecticut Commission of Human Rights ("CHRO"), alleging discrimination on the basis of her gender (female—as was Yager) in violation of C.G.S. §46a-60(a)(1) et seq., which is part of the Connecticut Fair Employment Practices Act ("CFEPA"). On or about September 4, 2003, her complaint was amended to include discrimination on the basis of harassment, sexual harassment, and retaliation in violation of §§46a-60(a)(4) and (a)(8). On or about April 2, 2004, CHRO issued Ledan a Release of Jurisdiction letter and, on June 2, 2004, the Equal Employment Opportunity Commission issued her a Right to Sue letter, thus providing her the option of bringing suit on her claim.

Count One of the complaint dated July 19, 2004, alleges sexual harassment in violation of C.G.S. §46a-60(a)(8), which harassment created a hostile work environment. Specifically, she claims Police Captain Sullo said to her that Yager "must give good b____j____" in order to command her salary (¶3), that Yager received a reclassification when she did not (¶3), and that the defendants knew or should have known of the toxic, harassing aspects of the workplace (¶4). Ledan claims the harassment consisted of police personnel following her around, checking out visitors to the records room, depriving her of making or receiving personal phone calls and/or using her cell phone at work when other city employees could, etc. Count Two alleges retaliation for having engaged in a protected activity—specifically, the complaints she made regarding Yager's reclassification, her denial of reclassification, and her subsequent filing of charges with the CHRO.

Defendant has moved for summary judgment and claims there is no genuine issue of material fact in that: a) the sexual harassment/hostile work environment claim of Count One fails because the offending conduct is not severe and pervasive or remotely sexual in nature; and b) the retaliation claim of Count Two fails because Ledan has not suffered an adverse employment action and has not asserted a causal connection between a protected activity and the adverse actions claimed. The plaintiff has objected. Both parties have filed memoranda of law supported by extensive documentation, all of which the court has examined, and oral argument was heard on June 19, 2006.

Applicable Law

Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. §17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). The non-moving party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209 (2000). It must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560 (2001). A conclusory assertion [in an affidavit] does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of summary judgment. Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94 (2000). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. (Internal quotation marks omitted.) Cummings & Lockwood v. Gray, 26 Conn.App. 293, 296-97 (1991). In ruling on this motion, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1998).

Adjudication

It needs first to be stated that, though the defendant did not raise the statute of limitations as a ground of objection, it was in fact argued in its supporting memorandum, which is improper. Since, however, the plaintiff has addressed the argument in her opposing brief the court shall do so here. Defendants' claim is that, since "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice,' " each such act must have occurred within one hundred eighty (180) days of the plaintiff's filing of her complaint with the CHRO. See C.G.S. §46a-82(e); Williams v. Comm. On Human Rights and Opportunities, 54 Conn.App. 251, 255 (1999). The plaintiff filed her first complaint with CHRO on March 20, 2003; therefore, any alleged discriminatory act occurring prior to September 20, 2002, the defendant argues, is time-barred. Plaintiff's response is that she seeks damages "only for the events of retaliation and discrimination that include the denial of reclassification and all incidents or harassment and/or retaliation that occurred after that event." Opp. Memo, at 11. She notes, however, that evidence of otherwise time barred discriminatory acts may be admissible if offered as background evidence supporting or illuminating an actionable claim and cites to Malarkey v. U.S. Ct. of App. for Second Circuit, 983 F.2d 1204 (1993). Malarkey merely stated as dicta discriminatory acts "may" constitute relevant background evidence." Id. at 1211. Clearly, if at all admissible, it is so only under the ordinary evidentiary standards of probity and prejudice and/or under decisional law applicable to discriminatory acts as later here discussed and will be a matter for the trial judge. That having been said, the plaintiff seeks no damages for any act occurring before September 20, 2002,1 and the defendant, following such concession, made no further statute of limitations argument.

Sexual Harassment/Hostile Work Environment

The complaint does not allege a discriminatory act based upon the plaintiff's age though the plaintiff alludes to the same in her memorandum. One cannot recover on an allegation not stated in the complaint nor may the jury consider the same. C.G.S. §46a-60(a)(8) defines sexual harassment as "any unwelcome sexual advances or request for sexual favor or any conduct of a sexual nature" when submission to such conduct is either explicitly or implicitly made a term or condition of employment, when rejection of or submission to such conduct is used as the basis for employment decisions affecting such individual or such conduct has the purpose or effect of substantially interfering with an individual's work performance or "creating an intimidating, hostile or offensive working environment." Id. The plaintiff ignores that, even if in fact there is what a jury could find was a hostile work environment, that environment must be predicated on sexual conduct directed to Ledan. As above earlier stated, the only specific sexual conduct pled in the First Count is Captain Sullo's alleged comment regarding Yager's giving of "good b____j____ in order to command such a salary." ¶3. While the comment is crude, it is addressed to Yager and degrading to her and Ledan points to no other conduct or statements of a sexual nature by any agent of the defendant. The plaintiff cites to a United States Supreme Court case in which it is stated that, to be actionable under Title VII, 42 U.S.C. §1983 (and Florida law), a sexually hostile work environment must be "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim, in fact did perceive to be so." (Citation omitted.) Farragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The Court noted the need to "look at all the circumstances" to determine whether an environment is sufficiently hostile or abusive—to include the frequency of the discriminatory conduct, its severity, whether it is physically humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Id., at 787-88. "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id., at 788.

The single sexually-oriented incident alleged in the complaint consists of a crude comment about another (Yager)...

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