CHRO: Carretero v. Hartford Public Schools - Ruling on Motion for Summary Disposition

Carretero v. Hartford Public Schools - Ruling on Motion for Summary Disposition
Carretero v. Hartford Public Schools - Ruling on Motion for Summary Disposition

CHRO No. 0310481

Commission on Human Rights and Opportunities ex rel.
Stefan Carretero, Complainant

v.

Hartford Public Schools, Respondent

November 28, 2005

RULING ON MOTION FOR SUMMARY DISPOSITION

BACKGROUND

On May 12, 2003, the complainant, Stefan Carretero, filed a discrimination complaint against the respondent, alleging that he experienced negative attitudes, harassment, and discrimination in the terms and conditions of his employment as a non-tenured teacher during the 2002-2003 school year because of his color and ethnic background (Black/Hispanic), as well as his gender and his age (33), in violation of various state and federal anti-discrimination laws.

On September 19, 2003, the complainant filed an amended complaint alleging that he met with the respondent's personnel officer on March 26, 2003, after she had issued him a notice indicating that his contract would not be renewed for the following school year. He believed at the time that the decision was not final. According to the complainant, the officer offered him a "pre-typed resignation letter" which could go into his personnel file in lieu of a non-renewal notice. The complainant declined to execute the letter, because he hoped his performance would improve and the notice would be withdrawn.

On April 11, 2003, according to the amended complaint, the complainant filed an "internal complaint" against the school principal regarding her "ongoing harassing conduct." Consequently, he was allegedly denied a transfer to another school, placed on administrative leave on May 1, and thereafter terminated.

Finally, he claims to have experienced retaliation, in violation of General Statutes 46a-60(a)(4), after he filed the initial complaint in this action; to wit: the respondent's director of human resources denied his request to remove the non-renewal notice from his personnel file and replace it with a notice of his resignation.

The respondent filed timely answers prior to the commission's investigation and again on February 22, 2005 after the complaint was certified for public hearing and notice of hearing issued. The respondent denies, both generally and with specificity, most of the pertinent allegations in the initial complaint. In its answer to the amended complaint, the respondent alleges that it decided on March 26, 2003 not to renew the complainant's contract because of performance issues, that it advised the complainant accordingly, and that it offered to allow him to resign voluntarily to avoid having a non-renewal notice in his personnel file. The respondent acknowledges that the complainant declined this offer.

The respondent further pleads that the complainant never complained about discriminatory treatment until after he was notified that his contract would not be renewed. The respondent emphasizes that it made its decision on or about March 26, prior to any denial of transfer. The respondent agrees that the complainant was placed on leave after he was notified that his contract would not be renewed, but argues that this was not in retaliation for his internal complaint.

Finally, the respondent denies retaliating against the complainant for filing the initial complaint here. According to the respondent's answer, the complainant himself had previously declined the respondent's offer to have his personnel file modified to reflect a voluntary resignation. Moreover, the "complainant thereafter failed to pursue a hearing [under General Statutes 10-151], as was his right, to challenge the decision not to renew his employment . . .."

On July 11, 2005, the respondent filed a two-part motion for "summary disposition," arguing (1) that the termination claim is barred by the complainant's failure to exhaust his administrative remedies, and (2) that the retaliation claim must fail because the complainant has not demonstrated he suffered an adverse employment action and because its own legal defense is unassailable. The motion is accompanied by a memorandum of law; an affidavit from the director of human resources, Gail Johnson; the school superintendent's March 26, 2003 letter to the complainant regarding non-renewal of his position for the following year; the complainant's March 27, 2003 letter to Gail Johnson requesting, in accordance with 10-151, a statement of reasons for his non-renewal; and Johnson's April 1, 2003 written response to the complainant. On October 11, 2005, the commission filed a memorandum of law in opposition to the respondent's motion.

I. EXHAUSTION OF REMEDIES

In the first part of its motion, the respondent asserts that the complainant cannot bring his termination complaint to the commission because he failed to exhaust the administrative remedy available to him under General Statutes 10-151, the Teacher Tenure Act. As emphasized by the respondent, "where a litigant has an available administrative remedy to challenge an employer's action, that administrative remedy should be exhausted before further litigation ensues." (Respondent's Memorandum of Law, p. 8). Accordingly, argues the respondent, the commission lacks jurisdiction to proceed in this matter.

Once a party raises a challenge to jurisdiction, the issue must be resolved before the court can proceed further. Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 578-79 (2003); see also Federal Deposit Insurance Corp. v. Peabody N.E. Inc., 239 Conn. 93, 99 (1996) (when the subject matter of an adjudicatory body is challenged for lack of jurisdiction, the challenge must be addressed before the case can move forward, because any movement is necessarily the exercise of jurisdiction).

A motion to dismiss is an appropriate means to challenge, among other things, a tribunal's jurisdiction to hear an action. Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51 (2002). Although the present motion is one for summary judgment or, as titled, "summary disposition," because the exhaustion doctrine implicates subject matter jurisdiction, it should be treated as a motion to dismiss. Stepney v. Town of Fairfield, supra, 263 Conn. 563; Paul v. New Haven, 48 Conn. App. 385, 388 n.2 (1998) (a motion for summary judgment that argues lack of subject matter jurisdiction because of a failure to exhaust administrative remedies should be treated as a motion to dismiss). Accordingly, I will treat the respondent's motion as such.

A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. Malasky v. Metal Products Corp., 44 Conn. App. 446, 451-52 (1997), cert. denied, 241 Conn. 906 (1997). In evaluating the motion, the complainant's allegations and evidence are accepted as true and interpreted in a light most favorable to the complainant; every reasonable inference is to be drawn in favor of the non-moving party. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608 (1998).

Section 46a-54-88a of the Regulations of Connecticut State Agencies authorizes the presiding human rights referee to dismiss a complaint or a portion thereof, if the complainant or the commission, inter alia, fails to establish jurisdiction. Commission on Human Rights and Opportunities ex rel. Friedman v. State of Connecticut, Office of the Comptroller, CHRO No. 0110195 (Ruling on motion to dismiss, November 17, 2003). Thus, the present motion is properly before this tribunal.

It is a well-settled principle of administrative law that "if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Emphasis added.) Stepney, LLC v. Town of Fairfield, 263 Conn. 558, 563 (2003). The doctrine of exhaustion of administrative remedies provides that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." (Emphasis added.) Id. at 564. A primary purpose of the doctrine is 

to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review. . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer. . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities.

(Emphasis added; citations and internal quotation marks omitted.) Id. at 564-65. See also D'Eramo v. Claims Commission, 273 Conn. 610, 616 (2005), citing Drumm v. Brown, 245 Conn. 657, 676 (1998), (a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum); Miller v. O'Meara, 2005 Conn. Super. LEXIS 897, 5 (same).

Emphatically common to the aforementioned cases, as well as to the cases upon which the respondent relies, is the fact that it is the Superior Court--not another administrative agency--that obtains jurisdiction only after administrative remedies are exhausted. See, e.g., Simko v. Ervin, 234 Conn. 498 (1995); LaCroix v. Board of Education, 199 Conn. 70 (1986); Murphy v. Young, 44 Conn. App. 677 (1997). The respondent concedes this point, but asserts that the same principles should apply in this situation, even though the commission is not a court or other "reviewing" tribunal. Nonetheless, the respondent has failed to provide--and I am unaware of--any legal authority for the proposition that a terminated, non-tenured teacher must exhaust his 10-151 remedies before he can file an appropriate discrimination complaint with the commission.

Section 10-151(c) of the General Statutes provides the means by which a non-tenured teacher whose contract has not been renewed may challenge the board's decision. According to 10-151(c), in pertinent part,

The contract of employment for a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section;1 otherwise the contract of [a non-tenured] teacher shall be continued into the next school year unless such teacher receives written notice by April first in one school year that such contract will not be renewed for the following year. Upon the teacher's written request, a notice of nonrenewal or termination shall be supplemented within seven days after receipt of the request by a statement of the reason or reasons for such nonrenewal or termination. Such teacher, upon written request filed with the board of education within twenty days after the receipt of notice of termination or nonrenewal shall be entitled to a hearing, except as provided in this subsection, (A) before the board, (B) if indicated in such request and if designated by the board, before an impartial hearing panel established and conducted in accordance with the provisions of subsection (d) of this section, or (C) if the parties mutually agree before a single impartial hearing officer chosen by the teacher and the superintendent in accordance with the provisions of subsection (d) of this section. Such hearing shall commence within fifteen days after receipt of such request unless the parties mutually agree to an extension not to exceed fifteen days. The impartial hearing panel or officer or a subcommittee of the board of education, if the board of education designates a subcommittee of three or more board members to conduct hearings, shall submit written findings and recommendations to the board for final disposition. The teacher shall have the right to appear with counsel of the teacher's choice at the hearing. A teacher who has not attained tenure shall not be entitled to a hearing concerning nonrenewal if the reason for such nonrenewal is either elimination of position or loss of position to another teacher. The board of education shall rescind a nonrenewal decision only if the board finds such decision to be arbitrary and capricious.

Nowhere does 10-151 endow a board of education with primary (or, for that matter, exclusive) jurisdiction to adjudicate claims of employment discrimination. As the Connecticut Supreme Court has recognized,

there is nothing legislatively unusual about there being separate and independent remedies for . . . discrimination, concurrent with those afforded by the commission under its statutory scheme. For example, in the area of employment discrimination, both General Statutes 5-227 and 46a-60 cover similar situations, yet may be brought to different fora. Similarly, General Statutes 10-153 and 46a-60 both cover discrimination against teachers on the basis of sex or marital status.

Commission on Human Rights and Opportunities v. Board of Education of the Town of Cheshire, 279 Conn. 665, 722 (2000).

The board is authorized to rescind the termination or non-renewal of a non-tenured teacher if it determines, based on a record established by the board (or its designated subcommittee), an impartial hearing officer, or panel (hereinafter "the 10-151 tribunal"), that the decision was "arbitrary and capricious." While the complainant may raise his discrimination claim as part of his argument to the 10-151 tribunal; see Sekor v. Capwell, 1 F.Sup.2d 140, 143 (D.Conn. 1998); he is not required to do so. And while it is possible that the 10-151 tribunal would consider such claim in its evaluation, there is no absolute requirement that it do so--in depth, or even at all. In short, there is no reason to assume that such tribunal would give the discrimination claim the same scrutiny, under the same applicable standards, as would the commission. The board's goal is to determine whether the initial decision was arbitrary and capricious (and, if so, to rescind the non-renewal decision); the commission's goal, however, is to determine whether unlawful discrimination occurred, which may require a far more expansive inquiry,2 and which may lead to wider panoply of remedies, including monetary recompense for the complainant as well as equitable relief benefiting not only the individual but also the commission's and the public's interest in preventing employment discrimination.

The respondent essentially desires to graft the policy underpinnings of the exhaustion doctrine onto a situation simply not contemplated by the doctrine itself. Drawing analogies from the court cases, the respondent proffers the argument that the complainant's failure to submit to the 10-151 process would effectively deprive the commission of a well-developed record upon which it might later rely. Such record, claims the respondent, would be beneficial because it reflects the "judgment concerning a matter uniquely within the [board's] province." The respondent summarizes its argument as follows:

The complainant should be held to the same standard here as he would if the matter were brought to the Superior Court without first exhausting his remedies under the Tenure Act. In bypassing the adequate and available remedy of an administrative hearing to challenge the nonrenewal decision, complainant deprived this Commission of the benefits of that process--a record of the reasons for respondent's decision not to renew his employment as well as complainant's claims of discrimination would have been developed before an administrative agency with expertise in teacher employment matters. . . . The Commission would have had the benefit of the school board's informed judgment on the issue.

(Respondent's Memorandum, p. 14). As the respondent emphasizes, a reviewing court would indeed benefit from a record appropriately developed by an administrative agency with the necessary expertise. But the sweeping analogy to the commission's own process is unsupported by legal authority and the respondent ignores several critical, pragmatic points: the commission already has expertise in the area of employment discrimination, it is statutorily charged with (and quite capable of) developing its own record, and it can satisfactorily dispose of those matters entrusted to it by the legislature. See Stepney v. Town of Fairfield, supra, 263 Conn. 564-65.

As the Connecticut Supreme Court emphasized in Cheshire, "Although we do not deny the state board's expertise over matters involving the public schools, and that such expertise would certainly cover claims of various forms of discrimination, we also recognize the commission's expertise over such claims." Commission v. Board of Education of the Town of Cheshire, supra, 279 Conn. 725. While the facts (and applicable statutes) between Cheshire and the present case differ, the logic does not. In fact, it is well established that the commission is statutorily charged "with initial responsibility for the investigation and adjudication of claims of employment discrimination." Sullivan v. Board of Police Commissioners, 196 Conn. 208, 215 (1988). Thus, the commission does not and would not need the assistance of another administrative tribunal whose focus, questions, goals, and panoply of relief all may differ from its own.

Accordingly, I conclude that neither the exhaustion doctrine itself nor its underlying policy applies in this situation. Therefore, the respondent's motion as it pertains to the allegations of discriminatory termination or non-renewal should be denied.

II. SUMMARY JUDGMENT RE COMPLAINANT'S PRIMA FACIE CASE AND RESPONDENT'S PROFFERED DEFENSES.

The respondent next argues that the retaliation claim must fail because the complainant cannot establish his prima facie case and cannot successfully dispute the respondent's legal defense articulated in its motion.

A motion for summary judgment "is designed to eliminate the delay and expense of litigating an issue where there is no issue to be tried." Dingle v. Fleet Bank, 2002 Conn. Super. LEXIS 1837, 3, quoting Wilson v. New Haven, 213 Conn. 277, 279 (1989). Motions for summary judgment have been recognized as appropriate means of resolving employment cases; see, e.g., Abo-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2nd Cir. 2000); Brittell v. Department of Correction, 247 Conn. 148 (1998). Commission human rights referees have the authority to rule on such motions in administrative adjudications; see, e.g., Commission on Human Rights and Opportunities ex rel. Blake v. Beverly Enterprises, CHRO No. 9530630 (July 8, 1999); Commission on Human Rights ex rel. Nobili v. David E. Purdy & Company, CHRO No. 0120389 (January 17, 2003).

The presiding tribunal shall render summary judgment when the moving party has demonstrated, with pleadings, affidavits, and any other evidence, that no genuine issue of material fact exists and that, therefore, the moving party is entitled to judgment as a matter of law. In deciding the motion for summary judgment, the tribunal must view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences against the moving party. Orkney v. Hanover Ins. Co., 248 Conn. 195, 201 (1999); Ferucci v. Southern New England Telephone Company, 2005 Conn. Super. LEXIS 2206, 3; Langner v. The Stop & Shop Supermarket Company, 2000 Conn. Super. LEXIS 216, 5; cf. Conn. Practice Book 17-49 (summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show that there is no genuine issue to any material fact and that the moving party is entitled to judgment as a matter of law).

While the party seeking summary judgment has the burden of showing the absence of any material fact, the party opposing summary judgment must substantiate its position by providing an evidentiary foundation showing the existence of a genuine issue of material fact. Counter-affidavits and other concrete evidence may refute evidence properly presented in support of the motion; mere conclusory statements or assertions of fact, however, will not. See Langner v. Stop & Shop, supra, 2000 Conn. Super LEXIS, 5-6, quoting Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55 (1998); Butler v. The NASDAQ Stock Market, Inc., 2005 Conn. Super. LEXIS 2090, *3. Ultimately, this tribunal's role is not to resolve issues of fact, but to determine if any issue of material fact exists. Nolan v. Borkowski, 206 Conn. 495, 500 (1988). A material fact has been defined simply as "a fact which will make a difference in the result of the case." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990). If a genuine issue of material fact exists, the motion should be denied. See Nolan v. Borkowski, supra, 500.

Analysis of a claim of unlawful retaliation, under both state and federal law, follows the paradigm established in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Treglia v. Town of Manlius, 313 F.3d 713, 719 (2nd Cir. 2002); Miller v. Edward Jones & Co., 355 F.Sup.2d 629, 642 (D.Conn. 2005). The complainant must first establish a prima facie case of retaliation by demonstrating (1) that he engaged in a protected activity; (2) that the respondent was aware of such activity; (3) that he suffered an adverse employment action; and (4) that a causal connection existed between his exercise of the protected activity and the adverse employment action. Treglia v. Town of Manlius, supra, 719; Majewski v. Bridgeport Board of Education, 2005 Conn. Super. LEXIS 209, 44. The complainant's burden at this stage is de minimis. Treglia v. Town of Manlius, supra, 719. Should the complainant satisfy his burden, the respondent must then articulate a legitimate, non-discriminatory reason for its actions, whereupon the ultimate burden returns to the complainant to demonstrate that the respondent's reasons are false or pretext for a retaliatory motive. Id. at 721.

Here, the respondent does not address the first, second, or fourth criterion of the complainant's prima facie case. I will assume for the purposes of this motion, therefore, that the complainant has satisfied his burden for these matters. Instead, the respondent argues (1) that the complainant has failed to demonstrate that he suffered an adverse employment action, and (2) that the argument raised in the present motion constitutes an irrefutable legitimate defense that, by itself, warrants summary judgment.

Whether the complainant suffered an adverse employment action raises a question of fact. In its memorandum of law, the respondent correctly cites to various cases for the principle that an adverse employment action consists of a "materially adverse change in the terms, privileges, duration and conditions of employment." See, e.g., Treglia v. Town of Manlius, supra, 313 F.3d 720. Examples of adverse employment actions include discharge, demotion or failure to promote. See, as cited by the respondent, Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991), cert. denied, 501 U.S. 1218 (1991); see also Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2nd Cir. 2000).

I take no umbrage with the respondent's recitation of adverse actions that may occur while an employee is employed. But the respondent fails to acknowledge adverse situations that occur prior to the existence of an employment relationship (e.g., failure to hire) or, as appropriate in this case, after an employment relationship has ended. Indeed, in certain circumstances, a former employee can bring a Title VII retaliation claim against a former employer after his employment has ended. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (a Title VII cause of action existed where former employer, in retaliation for former employee's earlier discrimination lawsuit, gave a negative reference to a prospective employer); Wannamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2nd Cir. 1997) (a former employee may be able to state a claim of retaliation under the ADEA if the complaint "blacklists" her after her employment has ended, thus damaging her reputation); Pantchenko v. C.B. Dolge Company, 581 F.2d 1052, 1055 (2nd Cir. 1978) (former employee may bring Title VII claim where former employer, in retaliation for a prior EEOC charge, refuses to provide letters of recommendation to prospective employers); Easterling v. State of Connecticut Department of Labor, 356 F. Sup.2d 103 (D.Conn. 2005) (former employee might have a colorable ADEA claim if she could demonstrate that her former employer took steps to prevent her from gaining future employment).

According to the amended complaint, the respondent offered the complainant an opportunity to resign--in lieu of non-renewal of his contract--in order to avoid the stigma of a negative employment record. Initially, the complainant declined this option, hoping that his improved performance would lead the respondent to reconsider its decision. When the complainant was nonetheless terminated and thereafter filed a discrimination complaint with the commission, he changed his mind but the respondent declined to modify the complainant's personnel file. Thus, the respondent's decision may have denied the complainant a personnel record that would facilitate, rather than thwart, future employment elsewhere. Even with no additional evidence, I believe an issue of fact exists whether the complainant suffered an adverse employment action. Were the respondent relying on this argument alone, I would, without hesitation, deny its motion for summary judgment.

The respondent also argues that, even assuming proof of a prima facie case, the complainant has raised no genuine factual issues to undercut the legal propriety of respondent's decision to retain the notice of non-renewal in the complainant's personnel file. According to the respondent, an employer may take reasonable defensive measures in response to an employment discrimination complaint--measures which, while adverse to the complainant, are not deemed adverse employment actions for purposes of a retaliation claim. See Respondent's Memorandum of Law, pp. 16-18, discussing, inter alia, United States v. New York City Transit Authority, 97 F.3d 672 (2nd Cir. 1996); Klem v. Popular Ford Sales, Inc., 975 F.Sup. 196 (E.D.N.Y. 1997).

In U.S. v. New York City Transit Authority, supra, 97 F.3d 672, the policy of the employer transit authority was to handle internal complaints informally within the organization. The employer, however, referred cases involving external litigation to its legal office, where its counsel would take appropriate actions to defend against the employee's charge. The EEOC, on the employee's behalf, challenged this practice as retaliatory. In directing summary judgment in the employer's favor, the Second Circuit

Court of Appeals recognized that

[a]t some level of generality, any action taken by an employer for the purpose of defending against the employee's charge can be characterized as adverse to the employee. . . .[I]t cannot be doubted that an employer may . . . take . . . steps reasonably designed to prepare for and assist in the defense. An employer has latitude in deciding how to handle and respond to discrimination claims, notwithstanding the fact that different strategies and approaches in different cases and classes of cases will result in differences of treatment. Reasonable defensive measures do not violate the anti-retaliation provision of Title VII . . .

(Emphasis added.) Id. at 677. The court found that disturbing this practice "would impair the ability of an employer to place its defense in the hands of counsel. Counsel would be unable to take the most basic precautions to defend against the claim."

Similarly, the Federal District Court in Klem v. Popular Ford Sales, supra, 975 F.Sup. 196, held that an employer's reasonable defensive measures against a discrimination claim do not violate an anti-retaliation provision, even though such measures are adverse to the charging party. Id. at 204.

The respondent claims that it chose not to renew the complainant's contract because he failed to meet the respondent's standards of (or potential for) excellence, and informed him accordingly; see letter dated April 1, 2003 from Gail Johnson, the respondent's executive director for human resources, to the complainant; see also Johnson's affidavit accompanying the pending motion, par. 6 (June 21, 2005). Approximately one month after the complainant filed his initial claim with the commission, his union representative requested that the respondent change the complainant's employment record to reflect his resignation rather than non-renewal. As stated in her recent affidavit, Johnson decided "not to grant the complainant's request for a change of the employment record because [the termination] complaint was pending and I was concerned that a change of the record would negatively impact the [respondent's] defense of [that] complaint." Affidavit, par. 12. Johnson's argument, while raised for the first time in the present motion, is consistent with, and supported by, the logic of the cases cited in the respondent's memorandum of law.

The respondent, however, may have had motives other than its legal defense. For example, according to the amended complaint, Johnson told the complainant's union representative that she would not change the resignation "because [he] filed a complaint [with the commission]." (Emphasis added.) The respondent did not directly deny this allegation in either its answer or its present motion (and accompanying affidavit). In its answer to the amended complaint, the respondent merely stated that the

[c]omplainant chose not to voluntarily resign from his employment in March 2003 when he was given the opportunity to resign and avoid a negative notice of non-renewal in his employment record. Moreover, complainant thereafter failed to pursue a hearing, as was his right, to challenge the decision not to renew his employment for the successor school year. Under these circumstances, respondent had no reason to rescind its notice of non-renewal of the complainant's employment.

This, alone, is hardly a convincing response and the "circumstances" to which the respondent refers cannot alone provide unassailable support for this proffered defense.

Moreover, this tribunal lacks probative information on the circumstances leading the complainant initially to reject the chance to resign; how other terminated, non-tenured teachers were treated and what opportunities were offered to them; under what situations the opportunity to resign was provided, disallowed or even retracted; and why failure to pursue a hearing under 10-151 of the General Statutes should play a role in the respondent's decision not to change the complainant's personnel file. I believe the extant factual record does not support summary judgment and further fact-finding and analysis are needed.

The respondent filed its summary judgment motion long after it provided its answer to the amended complaint, raising an entirely new rationale for its decision. Its newly-proffered justification appears to be a well-reasoned, legally supported afterthought, but
an afterthought nonetheless, leaving one still to wonder what motivated the respondent at the time it made its decision. As such, this issue might well be served by further fact-finding and, in turn, legal analysis, perhaps under the "mixed-motive" approach as articulated in Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 105-06 (1996). This approach might be particularly apt in light of Johnson's alleged comment that she would not change the complainant's personnel file because he filed a complaint with the commission (i.e., exercised a protected activity).

The commission suggests that the present record contains far too little evidence for me to make an informed judgment and, accordingly, requests that it be allowed to complete discovery. (The parties' initial requests for production were served on or about October 14, 2005; responses have yet to be filed.) As the Connecticut District Court has noted, "After discovery, if the nonmoving party 'has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate." (Emphasis added.) Brown v. Town of Greenwich, 2004 U.S. Dist. LEXIS 18673, 4 (D.Conn.), quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986); cf. Musso v. Seiders, 194 F.R.D. 43, 48 (1999) (because discovery had been closed, the complainant could no longer rely on her complaint allegations alone to defeat defendant's jurisdictional challenge); Federal Deposit Insurance Corp. v. Marke Painting Company, 1992 U.S. Dist. LEXIS 16011 (S.D.N.Y. 1992) (affidavit consisting mostly of speculation not sufficient to overcome a motion for summary judgment when all discovery has been completed). Thus, although there is no requirement that the parties complete discovery prior to filing a motion for summary judgment, these cases suggest the benefits of waiting until discovery is completed.

The aforementioned federal cases rely upon Rule 56(c) of the Federal Rules of Civil Procedure. Connecticut cases, following the state's Practice Book, offer similar guidance. Although incomplete discovery does not automatically foreclose summary judgment; see, e.g., West v. Town of Thomaston, 2002 Conn. Super. LEXIS 26; and it is not an abuse of discretion to decide a motion for summary judgment without the completion of discovery where the discovery sought would not address the dispositive issue; Powers v. McGuigan, 769 F.2d 72, 76 (1985); the trial court--and thus, by analogy, this tribunal--has the discretion to allow the parties to continue the discovery process to obtain additional documentation in support of subsequent, material affidavits, or simply to deny the motion for summary judgment. See, e.g., Castelvetro v. Mills, 1996 Conn. Super. LEXIS 1351, 13-17.

To the extent that its argument relies upon facts beyond those alleged in the complaint, the commission unfortunately has failed to provide corroborative documents or affidavits. See Musso v. Seiders, supra, 194 F.R.D. 48. However, completion of discovery may, among other things, augment the complainant's rebuttal of the motion and clarify Johnson's alleged remark to the union representative--a remark which, if actually made, could reveal a retaliatory animus. "Where 'the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.'" (Emphasis added.) Frillici v. Town of Westport, 1991 Conn. Super. LEXIS 2074, 1, quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1984). Thus, granting the motion for summary judgment could be premature without allowing the complainant (through the commission) the opportunity to obtain, through discovery, what may be pertinent information on these matters. I believe this to be the prudent approach here.

Viewing the record before me in a light most favorable to the complainant, sufficient issues of material fact exist regarding the respondent's proffered reasons to warrant denial of summary judgment. In particular, although the respondent has attempted to shield its decision behind the logic of "legal strategy," questions remain regarding the timing of and motivation behind (or in addition to) that strategy. Moreover, questions remain regarding issues such as, but not limited to, the treatment of similarly situated teachers, the incidents leading up to the status of the complainant's personnel file, and the remarks Johnson allegedly made to the complainant's union representative. Accordingly, this portion of the respondent's motion for summary judgment should be denied without prejudice.

CONCLUSION

I. The respondent's motion for summary disposition of the termination claim, based on the "exhaustion of remedies" doctrine and accordingly treated as a motion to dismiss, is hereby denied.

II. The respondent's motion for summary disposition of the retaliation claim, based on the respondent's legal defense (proffered for the first time in the motion itself), as well as the complainant's alleged failure to make out a prima facie case, is hereby denied without prejudice. The parties may address these issues more fully at the public hearing.

 

 David S. Knishkowy
 Human Rights Referee

 

1  The reasons in subsection (d) include: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher; or (6) other due and sufficient cause.

2  For example, nothing in the language of 10-151 suggests that the board would consider whether the complainant were treated differently than similarly situated teachers not in his protected class.





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