CHRO: Clements v Town of Brookfield, Final Decision and Orders

Clements v Town of Brookfield, Final Decision and Orders
Clements v Town of Brookfield, Final Decision and Orders

CHRO No. 9620571
Commission on Human Rights and Opportunities, ex rel. Joyce Clements, Complainant
v.
Town of Brookfield, Respondent

July 6, 2000

FINAL DECISION and ORDERS

I.  THE PARTIES:

The Complainant:
Joyce Clements
2 Laurel Drive
Brookfield, CT 06804

The Commission:
Cheryl A. Sharp, Esq.Assistant Commission Counsel II
The Commission on Human Rights and Opportunities
21 Grand Street, 4th Floor
Hartford, CT 06106

The Respondent:
The Town of Brookfield
C/o Michael P. McKeon, Esq.
Sullivan, Schoen, Campane, Connon, LLC
646 Prospect Avenue
Hartford, CT 06105-4286

II. PROCEDURAL HISTORY:

This matter was initiated by the Complainant, Joyce Clements (hereinafter "Complainant"), on May 21st, 1996, by her execution of an Affidavit of Illegal Discriminatory Practice, alleging ongoing discrimination against her with respect to the terms and conditions of her employment. Specifically, the Complainant charged the Respondent, Town of Brookfield, with harassing and demoting her on account of her age, in violation of Connecticut General Statutes §§ 46a-58, 46a-60(a)(1), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634. On April 24, 1997, Complainant executed another affidavit, in which she asserted that she had been wrongfully terminated from her employment on June 29, 1996, and that her previously held position was reinstated and a younger male placed in it. In this Amended Complaint she alleged that the foregoing termination was based, illegally, on her gender and age.

After an investigation by the Commission on Human Rights and Opportunities (hereinafter "Commission"), and after the failure of attempted conciliation, a finding of reasonable cause for believing that an unfair employment practice had been committed, as alleged by Complainant, was made on October 30, 1997. After this certification was made, a Notice of Public Hearing was issued on November 13, 1997, setting forth December 12, 1997 as the date for the hearing conference. In that Notice the Honorable John F. Daly, III, was appointed as Presiding Hearing Officer.

Subsequently, the undersigned was designated on February 22, 1999 as the Presiding Human Rights Referee in substitution for the Honorable John Daly. At a Status Conference, held on March 19, 1999, dates for production were established and a Pre-Hearing Conference scheduled for October 26, 1999. As a result of that latter conference, Public Hearing dates were established for February 29, 2000 through March 3, 2000.

The Public Hearing commenced on February 29, 2000, and concluded on March 1, 2000.

This decision is based on the evidence presented at the hearing, the documents and exhibits constituting the record in this case, and the post-hearing submissions of the parties.

III.  FINDINGS OF FACT:

  1. Statutory and procedural prerequisites to the public hearing were satisfied and the complaint is properly before the undersigned Human Rights Referee for decision.
  2. Complainant was born April 22, 1943 (Tr. 10) and her gender is female.
  3. Complainant was employed by the Respondent from July 27, 1987, until June 29, 1996 (Tr. 11). During the period from July 27, 1987 until January 1994, her position was described as Data Processing Coordinator. In January of 1994 the Respondent revised the Complainant’s job description, which was thenceforth entitled Computer Systems Coordinator. (Tr. 217; Exhibit Comm.-11.)
  4. Complainant’s duties generally included, irrespective of the titular description, the following: Ensuring on a daily basis that all computers and computer security systems in all of the Respondent’s departments (save the Police Department) were in working order, including generally securing back-ups and performing troubleshooting functions. Complainant physically maintained the hardware, periodically saw to the updating of the computers, and trained other town employees on software use. (Tr. 19-21, 25.)
  5. From 1987 until 1995, the Complainant reported directly to the First Selectman who, for all but the first few months of her time with the Respondent, was Bonnie Smith. (Tr. 12-13.)
  6. Complainant performed the duties assigned to her in a generally satisfactory manner (Tr. 174-175), and was qualified for the position as it was described by the Respondent (Respondent’s Brief pg.17).
  7. Bonnie Smith’s date of birth was July 6, 1940 and her gender female (Exhibit R-24).
  8. Complainant herself testified that during the course of her employment with the Respondent she had a good personal and working relationship with Ms. Smith. (Tr. 49.)
  9. In 1995, Mr. Raymond Bolek, who had been serving as Respondent’s Director of Finance, assumed the consolidated position of Comptroller/Director of Finance. This merger of positions was made in an attempt to cut costs and streamline job functions (Tr. 142-143, 255-256; Exhibit R-17). Mr. Bolek’s date of birth is November 30, 1942 (Exhibit R-24) and his gender male.
  10. As part of the Town’s efforts at increasing its data processing capabilities, and overall efficiency, Complainant was transferred to Mr. Bolek’s supervision in 1995 (Tr. 28; Tr. 142-143).
  11. As part of the Complainant’s January 1991 performance evaluation by Ms. Smith, the latter noted: "it is clear to me that the Town needs someone to manage our present computer system and to plan for future computer enhancements, but I am no longer convinced that this position justifies a full-time person" (Exhibit Comm. No. 18). This put the Complainant on notice from 1991 that there were doubts at the top level of Town government as to whether a full-time position, as held by her, was warranted.
  12. During the entire course of her employment with the Respondent, the Complainant was a one-person department (Tr. 51, 82).
  13. The Board of Selectmen acts as a quasi-legislative body for the Town of Brookfield. It and the Board of Finance are separate and distinct elected entities (Tr. 185-186).
  14. The Town of Brookfield’s operating budget is prepared and submitted annually by the Board of Selectmen for approval to the Board of Finance. The Board of Finance can and has rejected the Board of Selectmen’s budget requests (Tr. 185-186, 186-189).
  15. After approval by the Board of Finance, the budget must ultimately be approved by the Town’s residents in a public referendum (Tr. 185-189).
  16. During deliberations on the Respondent’s proposed 1996-1997 budget, the Town’s residents twice voted down the Board of Finance’s proposal, notwithstanding budget cuts made previously by the Board of Selectmen and Board of Finance (Tr. 202-203).
  17. The Board of Finance had been pressuring Ms. Smith and the Board of Selectmen for at least 3-4 years prior to 1996 to eliminate Complainant’s position and to hire an outside consultant as an independent contractor in its place. (Tr. 156, 201-202, 260-261.) This position was part of that Board’s desire to "privatize" certain town functions (id).
  18. During the years when the Board of Finance sought to eliminate Complainant’s position, prior to 1996, Bonnie Smith fought to save the job and maintain the position occupied by Complainant (Tr. 13, 56, 68, 156, 171, 261). During her testimony, the Complainant herself acknowledged that Ms. Smith and/or Mr. Bolek had previously been successful in convincing the Board of Finance to keep her position. (Tr. 56, 68)
  19. Complainant testified, nonetheless, that the only individual that she believed discriminated against her was Bonnie Smith. (Tr. 103.)
  20. During the years up to and including June 29, 1996, the Complainant received the same incremental pay raise given other Town employees. (Tr. 18.) Complainant herself acknowledged that she retained the same position with generally the same job duties and responsibilities right up to June 29, 1996. (Tr. 50.)
  21. At the time (1995) that Complainant was transferred to Mr. Bolek’s supervision, Ms. Smith directed the latter to help her maintain current people in their jobs – such as Complainant – and specifically to work on a "rationale," or "compelling information," that would justify retention of Complainant’s position. (Tr. 245-246.) This purpose behind the transfer was explained to Complainant at the time it was done. (Tr. 13.)
  22. Mr. Bolek sought to comply with Ms. Smith’s directions in part by, in addition to her other duties, assigning her to work with the Board of Education employees in order to assess how best to expand the Board’s data processing capabilities. Mr. Bolek believed that this would enable the Complainant to assist in combining and streamlining the Town’s and the Board’s computer systems (Tr. 246, 256, 263-264).
  23. Complainant refused to work with the Board employees claiming that that part of the job was a union position (Exhibit Comm. No. 11). She also considered that the work involved with Mr. Bolek was "menial" and "beneath her" (Tr. 36). As noted in Finding No. 21, the motive behind this assignment was to justify the continuation of Complainant’s full-time position, and I find that it was not a demotion.
  24. Severe budget pressures affecting the 1996-1997 budget convinced Ms. Smith that the Board of Finance would insist on budget reductions, and that she would finally have to defer to the Board’s longtime insistence on eliminating Complainant’s position and replacing it with an outsourced computer consultant. (Tr. 21, 202, 206.)
  25. Ms. Smith told Complainant in February 1996 that her position would be eliminated in the forthcoming 1996-1997 fiscal year budget (Tr. 19).
  26. At the time Complainant’s position was eliminated she was 90% vested in her pension plan. (Tr. 76.) Complainant would have been 100% vested had she completed 10 years of service with the Town (id). The full vesting of Complainant’s pension rights was predicated on her years of service and not upon her age (Tr. 77).
  27. Six positions were eliminated in the 1996-1997 budget, three held by males and three by females (Exhibit R-23). The ages of the employees whose positions were eliminated were : 31, 28, 41, 48, 53, and 62 (Exhibit R-23).
  28. The proposed $9,583,866 budget the Board of Selectmen submitted to the Board of Finance, including therein the elimination of Complainant’s position, was further reduced by the Board of Finance to $9,525,567. (Exhibit Comm.-2.) Notwithstanding these reductions, the Town’s residents twice voted down the budget in referendums (Tr. 202-203). The final budget approved by the residents was $9,292,791, or $291,075 less then the Board of Finance’s initial proposal (id).
  29. The Town of Brookfield’s 1996-1997 budget was $62,153 less than the 1995-1996 budget (Exhibit Comm.-2), notwithstanding annual salary increments and cost of living increases. It is very unusual for a budget to be less than a prior year’s budget (Tr. 191-192, 261).
  30. As of June 29, 1996, Complainant’s last day of employment, the Town had 131 employees, 74 male and 57 female (Exhibit R-23). Of that total, 88 or 67% of the workforce were over 40 years of age (id), and 41 or 31% of the workforce over the age of 50 (id).
  31. The Respondent town did not replace Complainant with another full-time employee following the elimination of her position (Tr. 199). Rather, it hired an independent contractor, Russ Reynaga, who was considered a vendor and assigned Vendor No. 22256. (Tr. 197-199; Exhibit Comm.-32.) Mr. Reynaga's date of birth is July 12, 1944.
  32. The savings attributable to contracting out Complainant’s position in the 1996-1997 budget were $16,044. (Exhibit Comm.-32.) In the 1997-1998 budget the savings projected to be $24,466, for a two year total of $40,510 (Exhibit Comm.-32).
  33. On May 19, 1996, while still employed with Respondent, Complainant filed an Affidavit of Illegal Discriminatory Practice with the Commission on Human Rights and Opportunities (hereinafter "Commission"), alleging that she had been "demoted" and "harassed" on the basis of her age (Record Exhibit-1). No mention was made of the termination of her position, notwithstanding that she had known at least three months earlier that her position had been eliminated in the budget (Finding No. 25, supra).
  34. On April 24, 1997, Complainant filed an affidavit with CHRO claiming she had been terminated due to her age and gender (Record Exhibit-2).
  35. Complainant was not qualified for any of the 21 non-union positions remaining with the Town after June 30, 1996 (Tr. 231).

IV. PARTIES' POSITIONS:

Complainant contends that she has met the burden of establishing that she was wrongfully terminated from her position of employment on June 29, 1996, on account of her age and gender, as alleged in her April 24, 1997, amended complaint. She seeks $117,490.00 in back and front pay (Brief C-13), and an order awarding her with 100% vesting in her pension plan.

Complainant all but abandoned her claims of employment discrimination due to her alleged "demotion" and "harassment" on the job, as they were mentioned in only the most cursory fashion in her brief. Nonetheless these claims, the genesis of her original complaint of May 19, 1996, will be dealt with in the Analysis and Discussion section below.

The Respondent contends that: (A) the Commission lacks jurisdiction over the claim of wrongful termination (April 24, 1997) because it was not filed within 180 days of the alleged discriminatory action; (B) the Complainant failed to establish a prima facie case; (C) it had a legitimate non-discriminatory basis for its action (in eliminating the position); (D) the Complainant failed to establish that she was discriminated against on either age or gender grounds with respect to the termination of her employment; and, (E) that the Complainant failed to establish that she was demoted, threatened or harassed on the bases of her age or gender.

For the reasons hereinafter set forth, I find merit in all of the Respondent’s contentions, which individually and/or collectively require the same result, namely the dismissal of the complaints.

IV. ANALYSIS AND DISCUSSION:

The April 24, 1997 Complaint Alleging Wrongful Termination:

A. Jurisdiction:

C.G.S. § 46a-82(e) is unambiguously clear in providing that "any complaint filed pursuant to this section must be filed within one hundred eighty days (180) days after the alleged act of discrimination." That this statutory requirement is jurisdictional has been reaffirmed just recently by the Connecticut Appellate Court in Williams v. Commission on Human Rights and Opportunities, 54 Conn. App. 251 (1999). There it held that "when time limits or constraints relate to the essence of the purpose of legislation, which legislation is unknown to the common law, and effectuate the legislative intent, the time limits mandate compliance and are jurisdictional." Id at 257.

Consequently, the Court held in Williams that because the plaintiff did not file her complaint within 180 days after the alleged act of discrimination the Commission had no jurisdiction to entertain the plaintiff’s complaint. The Commission itself has ruled in a similar vein in D’Angelo, Edward, et al. v. University of Bridgeport (CHRO Nos. 9520184, 9520185, 9520186 – June 29, 1999), a case in which the undersigned Presiding Referee granted Respondent’s Motion to Dismiss on account of a similar failure by the three Complainants involved.

It is well understood that the Connecticut Legislature intended to make the Fair Employment Practices Act (C.G.S. § 46a-51 et seq.) coextensive with the Federal Law. State of Connecticut v. Commission on Human Rights and Opportunities 211 Conn 464, 469-470 (1989); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96 106-105(1996). In the leading federal case on this issue, Delaware State College v. Ricks, 449 U.S. 250 (1980), the U.S. Supreme Court held that the actual notice of a termination begins the running of the applicable limitations period, even in instances where the actual termination would not take effect until later. Therefore, under the facts found in this case, the 180 day period started to run in February 1996, when Mr. Smith advised Complainant that her position would be eliminated (Finding No. 25). However, even under the most liberal construction possible, taking her actual termination date (June 29, 1996) as the date the limitation period started to run, December 27, 1996 would have been the last possible date for filing her complaint. Self-evidently April 24, 1997 falls well outside that time frame.

There are several exceptions recognized to a strict application of the statutory limitation period. For instance, the Courts have recognized the "continuing violation" theory as one which might allow a "plaintiff to circumvent this bar" Lloyd v. WABC-TV 879 F.Supp 394 at 399 (S.D.N.Y. 1995). However, as no claimed act of discrimination occurred after July 1, 1996, this theory, even if otherwise applicable, is of no assistance to the Complainant. Equally unavailing to Complainant are the exceptions which fall under the heading of equitable tolling and equitable estoppel. Equitable tolling is applicable in situations where bad faith actions on the part of the employer result in the employee’s ignorance of her cause of action. Dillman v. Combustion Engineering, Inc. 784 F.2d 57, 660 (2nd Cir.1986). In such cases, the statute is tolled until that point in time when the employee should have perceived the discriminatory act. However, the record is clear here that the Complainant knew prior to June 29, 1996 that her position was being eliminated, and that the Respondent would be engaging a male, Russ Reynaga, as an independent contractor to replace her position (See Tr. 61-62). Therefore, this doctrine does not avail the Complainant.

Equitable estoppel lies in situations where the Complainant was aware of her cause of action but was misled by the Respondent employer into delaying the filing of her complaint. Dillman, ibid. 784 F.2d at 61. This doctrine requires a showing of bad faith on the part of the employer, Wingfield v. United Technologies Corp., 678 F.Supp. 973 (D. Conn. 1988), a showing of which there is absolutely no evidence in this record to support.

The only arguable basis for considering Complainant’s April 24, 1997, affidavit as being permissible under the 180 day limitation period would be as an amended complaint that could be deemed relating back to the original complaint (of May 1996). It must be noted however, as the Respondent does in its brief, that the Complainant made no attempt to incorporate her May 19, 1996 allegations into the April 24, 1997, affidavit, as one would expect in an amended affidavit (i.e., Complaint). The former affidavit made allegations of demotion, threats, and harassment on the job based on Complainant’s age. The latter references only her "termination", or the elimination of her position. Additionally, the latter complaint (April 24, 1997) asserts a different protected class, namely gender, wholly absent from her May 19, 1996 complaint. As previously noted the record shows that Complaint knew her position was being terminated when she executed her May 19, 1996 affidavit, and how she was being replaced.

In Wallace v. Town of Stratford Board of Education, 674 F.Supp. 67, 69 (D. Conn. 1986), the Court held that "federal claims in the amended complaint based on discrimination due to a (asserted) handicap cannot relate back to allegations of Title VII sex discrimination." "No allegations of sex discrimination are made in the amended complaint and, conversely, the original complaint contained no allegations of discrimination due to plaintiff’s handicap" Id. Similarly, the Second Circuit has held that "later amendments to a complaint related back to the initial filing only "where the claim … asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth … in the original pleading." Gomez v. Avco Corp, 964 F.2d at 1334 (1992).

In this case, the alleged misconduct was totally different (i.e. "termination" as opposed to "harassment") as between the complaints, as was the protected class basis itself. Therefore, I concur with Respondent’s arguments and am forced to conclude that the Complainant’s April 24, 1997 complaint fell outside the scope of the mandatory 180 days filing period set forth in C.G.S. § 46a-82(e). As such, the Commission is deprived of subject matter jurisdiction over these claims and they therefore must be dismissed.

Even assuming this jurisdictional barrier could be overcome, for the reasons hereinafter set forth, Complainant has also failed to satisfy her burden of proof with respect to the substantive claims of discrimination alleged.

B. Prima Facie Case:

In order to successfully prosecute her claim of unlawful employment discrimination, namely her termination on account of her age and gender, Complainant must first establish a prima facie case under the well known McDonnell Douglas v. Green, 411 U.S. 792, 793 S.Ct. 1817 (1973) burden allocation doctrine. In the circumstances of this case, and these particular claims, she must therefore prove each of the following elements:

  1. she was a member of a protected class;
  2. she was qualified for the position at issue;
  3. she was discharged from that position; and
  4. The discharge or termination occurred under circumstances giving rise to an inference that age and gender were factors in the action complained of.

The Respondent stipulated as to the first two elements (Respondent’s Brief pg. 17), but vigorously contests the establishment of the latter two conditions. I agree with the Respondent.

In her complaint, the Complainant asserts that she was terminated from her position and she has identified Bonnie Smith, the First Selectman at the time, as the only individual responsible for the discriminatory act (i.e., her termination). However, as I believe the Respondent correctly points out, Complainants use of the word termination manifestly implies that her previous position continued to exist even though her employment in it did not. However, the Record and my resultant Findings of Fact make clear that her "position" was in fact abolished in the FY 96-97 Town of Brookfield Budget as part of a reduction in force necessitated by extreme financial pressure. Equally as clear is the fact that Ms. Smith fought hard for several years to save Complainant’s position as a full time one in the face of cost reduction/privatization pressures from the Board of Finance, and ultimately from the Town’s voters.

The undersigned is not blind to the reality that employers with discriminatory intent can, and have, achieved their illegal purposes through "re-labeling" positions or job descriptions. However, in this case the facts as I found them to be clearly indicate that Complainant’s position, as filled by a full time employee, was indeed extinguished effective June 29, 1996. Its functions were assumed on an outsourced, independent contractor basis by Russ Reynaga Enterprises, and real savings were realized as a result. Whether such privatization or outsourcing is good public policy, or "fair" to a conscientious employee like the Complainant, is not for me as a Human Rights Referee to say. What can be said is that Complainant failed to establish the fact of her termination by the alleged perpetrator of the alleged discriminatory act, Ms. Smith. Her position vanished by virtue of the decisions made by the Board of Finance and the town’s voters in three (3) referenda.

Similarly, the fourth prong of the prima facie test was not met. To do so required her to demonstrate that similarly situated Town employees who were either male or younger, or both, were treated more favorably. See Norville v. Staten Island University Hospital, 196 F.3d89, 95 (2nd Cir.1999); Cunliffe v. Sikorsky Aircraft Corp., 9F.Supp.Id 125, 131 (D. Conn.1998). This Complainant was singularly unable to do. First, she was a one-person department (Finding No. 12) in a department which was abolished effective with the commencement of the FY 96-97 Budget. Therefore, Complainant could not, and did not, produce any evidence of other employees within the Town with similar qualifications against whom she could compare herself. The remaining statistical evidence produced (Findings 27 and 30, for example) also is not indicative or supportive of any discriminatory inference.

Further undermining any claimed inference of discriminatory circumstances is the fact that the alleged agent of discrimination, namely Ms. Smith, was herself female and actually older than the Complainant. Mr. Bolek, the Complainant’s "supervisor" in the last year of her employment, was 53. The independent contractor, Russ Reynaga was 52.

In short, Complainant did not establish that she was discharged or terminated from an existing position, and produced no evidence of any circumstances surrounding the reduction in force that in any material way could be inferential of discrimination.

As a result, Complainant failed to establish a prima facie case related to her alleged termination from employment, a conclusion sufficient in and of itself to support the dismissal of her claim.

C.  Respondent’s Legitimate, Non-Discriminatory Basis:

Notwithstanding the foregoing determinations, either of which suffices to support dismissal of the Complainant’s amended complaint of April 24, 1997, the evidence produced clearly establishes the validity of the Town of Brookfield’s articulated non-discriminatory reasons for the alleged discriminatory act. The articulation of such reason(s) is required under the previously referred to burden shifting analysis doctrine. VanDine v. Robert Bosch Corp., 62F.Supp.2d 644 (1992); See also, St. Mary’s Honor Center v. Hicks, 509 U.S. at 506-507 (1993).

The record in this proceeding clearly established that there had been doubts as far back as 1991 as to whether the functions performed by Complainant justified a full-time employee. These doubts, first enunciated by Bonnie Smith in her performance appraisal that year, soon were superseded by continuous pressure over 3-4 years from the Board of Finance to "privatize" Complainant’s position by eliminating it and hiring an outside, independent contractor in its place. The evidence also indicates that it was primarily Ms. Smith’s opposition to this move that kept it from happening during that period; even the Complainant admitted that in her own testimony. There was no evidence presented whatsoever to indicate that the Board of Finance’s desires in this connection were in any way discriminatorily based.

Ultimately, however, the pressure from the Board of Finance became too great to resist, particularly in the context of the FY 96-97 budget, which eventually saw, after two referendum rejections, a budget adopted which was $291,075 less than originally proposed by the Board of Selectmen. In fact, the budget finally passed was $62,153 less than the net appropriated in the previous fiscal year, a highly unusual circumstance. In addition to other reductions, the Record establishes that a total of six positions were eliminated from the Town’s roster of positions. The evidence also showed that the Complainant was not qualified or eligible for any of the remaining positions, filled or unfilled.

It is easy four years later to forget how difficult Connecticut’s economic recovery was from the deep recession experienced in the earlier part of this decade. This recession and the slow recovery dramatically reduced real estate values and resulted in large numbers of foreclosures. As local town government is largely supported in Connecticut by property taxes, many towns found themselves in stringent financial circumstances in the mid-90’s. The Town of Brookfield appears to have been one of them, judging by the record in this case, in particular the negative growth in the 96-97 fiscal year budget and the strong voter opposition to spending reflected in the adverse budget referendums.

The Respondent certainly met its burden of providing legitimate non-discriminatory bases for its actions as reflected in this case.

It is well settled "that the ultimate burden of persuading the finder of fact that the Defendant (the Town) discriminated against the Complainant remains at all times with the latter" Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). There was no direct evidence of intentional discrimination, and the Respondent articulated, as noted above, a persuasive, legitimate non-discriminatory reason for its actions in this case. My findings and conclusions are that the Respondent’s rationale was not pre-textual, but fully credible and supported by the evidence offered.

With respect to the age issue, the only reason offered by Complainant as to why she felt the Town discriminated against her on the basis of her age was "that they didn’t want to pay my pension" (Tr. 30). Yet under cross-examination the Complainant was forced to admit (Tr. 76-77) that vesting in the Town’s pension plan had nothing to do with age, but rather with years of service. In a similar case, in Hazen Paper Company v. Biggins, 507 U.S. 604, 113 S.Ct. 1701 (1993), the employee claimed that the Respondent employer discharged him to prevent him from vesting in the company’s pension plan. Like Respondent in this case, in Hazen the employer’s pension plan had a ten-year vesting period. The Complainant was terminated weeks shy of reaching the ten-year mark, and sued under the ADEA. The Supreme Court rejected the plaintiff’s claim, holding "that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age" Id. at 609. It went on to state, pertinent to this case, that "a decision to fire an older employee solely because [he] has nine-plus years of service and therefore is ‘close to vesting’ would not constitute discriminatory treatment on the bases of age." Id. at 612.

As the Complainant herself during her testimony twice identified the curtailment of her pension as the foundation for her belief that she was discriminated against on the basis of her age, it is readily apparent that she has failed to establish her claim in this regard. This is so even if it were the case that the Respondent terminated her position in part to save the cost associated with Complainant’s full vesting.

Similarly, the Complainant offered no evidence of gender discrimination, which she belatedly asserted nearly ten months after her position was eliminated. As noted in the Findings of Fact such statistical information as was submitted did not support any inference of gender discrimination (See Findings 27 and 30). The Complainant did make some generalized assertions as to the "male advisers" (Tr. 41-42) who allegedly influenced Ms. Smith, but that is all. Nothing was offered that even partially explained away the fact that Ms. Smith was female herself, and that in reality she had tried hard to keep the Complainant as a full-time employee for years.

The Complainant, therefore, failed to produce evidence of any gender and/or age discrimination by the Respondent. Further, the Respondent’s reasons for its actions were fully established by the evidence to be both legitimate and valid. These conclusions also require the dismissal of Ms. Clements’ amended complaint of April 24, 1997.

D. The May 19, 1996 Complaint Alleging Harassment and Demotion:

The Complainant all but abandoned this claim in her Brief of May 19, 2000. The only "evidence" offered as to her demotion was the assignment of Raymond Bolek as her Supervisor in 1995 and the request to assist with the accounts payable invoices of the Board of Education. In fact, this assignment was made in order to buttress the Town’s argument in favor of retaining Complainant as a full-time employee in the face of growing pressure from the Board of Finance to eliminate it (Findings No. 9, 10, 21-23). Complainant’s salary and benefits were unaffected by this action (Finding No. 20), and she herself acknowledged that her job duties and responsibilities essentially remained the same right up to the date of her leaving Town service (Id).

The harassment and threats referred to the attempts by the Board of Finance over a number of years to eliminate Complainant’s position. There was no evidence at all that the above were motivated by age or gender, but rather were policy preferences of the Board. They were resisted by Ms. Smith for a considerable period. The Complainant attempted to describe her last few months on the job as being harassed by being "shunned" (Tr. 29). Actually, the testimony indicated that the Complainant would sit at her desk and do little or nothing (Tr. 224), probably as a result of the anxiety and distress she herself admitted, through her attorney, as having (Respondent Exhibit 19).

This claim has no basis and, as such, should be dismissed as well.

Although the Complainant served as a conscientious employee for a number of years, and undoubtedly felt victimized when her employment with the Respondent ended, there was no basis shown for her belief that this "victimization" was the product of illegal sex and age discrimination. She unfortunately was caught up in a severe budget squeeze and a philosophical debate among government officials over the value and need for privatizing some town functions. This determination in no way mitigates the hurt that was felt and experienced by the Complainant.

It does however dictate the result here.

VI.  CONCLUSIONS OF LAW:

  1. The complaint dated April 24, 1997, alleging wrongful termination based on age and gender was filed after the 180 day period mandated by C.G.S. 46a-82(e).
  2. The Complainant failed to meet her burden of establishing a prima facie case with respect to her claim of wrongful termination.
  3. The Respondent articulated legitimate, non-discriminatory reasons for abolishing Complainant’s position and the evidence establishes that they were valid.
  4. Complainant failed to produce evidence that could reasonably infer age and/or gender as the basis of the Respondent’s abolition of her position.
  5. Complainant failed to produce any evidence that she was demoted, threatened, or harassed in any way, let alone on the basis of her age as asserted in her May 19, 1996 affidavit.

VI.  ORDER:

This complaint is dismissed for all of the foregoing reasons.

Dated this 6th day of July, 2000 at the Office of Public Hearings in Hartford, CT.

Hon. Gordon T. Allen
Presiding Human Rights Referee

c: Joyce Clements
Attorney Jose Vivaldi Martinez
Ms. Bonnie Smith, Town of Brookfield/First Selectman
Attorney Michael P. McKeon
Attorney Catherine M. Thompson
Attorney Nicole A. Bernabo
Attorney Cheryl A. Sharp, Assistant Commission Counsel II
Attorney Raymond Pech, Deputy Commission Counsel





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