CHRO: 9910114, Pingle v. Dept. of Environmental Protection, Final Decision

9910114, Pingle v. Dept. of Environmental Protection, Final Decision
9910114, Pingle v. Dept. of Environmental Protection, Final Decision

Commission on Human Rights and Opportunities ex rel. V. R. Reddi Pingle, Complainant CHRO No. 9910114
v.
State of Connecticut, Department of Environmental Protection, Respondent

February 1, 2001

Final Decision

I. Parties

The complainant is V.R. Reddi Pingle ("complainant"), of 20 Deer Run Drive, West Hartford, Connecticut. The complainant appeared pro se. The Commission on Human Rights and Opportunities ("commission") is located at 21 Grand Street, Hartford, Connecticut and was represented by Attorney Joanne V. Yandow of the Office of Commission Counsel. The State of Connecticut, Department of Environmental Protection, ("respondent"), located at 79 Elm Street, Hartford, Connecticut, was represented by Assistant Attorney General Kelly A. Flint of the Office of the Attorney General.

II. Summary of Complaint and Decision

By complaint dated September 15, 1998, the complainant alleges that the respondent illegally discriminated against him in violation of General Statutes § 46a-60(a)(1) ("CFEPA") and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e and the Civil Rights Act of 1991 ("Title VII"). The complainant alleges that on or about March 19, 1998 the respondent terminated his employment and that the complainant’s national origin (India), color (brown), alienage (Asian) and ancestry (Asian) were in part factors in his termination.

For the reasons stated herein, the complaint is dismissed.

III. Procedural History

Upon the filing of the complaint, it was assigned to an investigator. After a preliminary investigation, the investigator found reasonable cause to believe that an unfair practice was committed as alleged in the complaint. On August 4, 1999, the investigator certified the complaint and the results of his investigation to the executive director of the commission and to the attorney general of the State of Connecticut.

Upon certification of the complaint, the Honorable Lara L. Manzione was assigned as presiding referee to hear the complaint. On September 20, 1999, a public hearing was scheduled to commence October 3, 2000. On September 13, 2000, the complaint was subsequently reassigned to the undersigned as presiding referee in substitution of Referee Manzione.

On September 19, 2000, the commission filed a motion to continue the public hearing. The motion was granted on September 21, 2000. On September 21, 2000, the commission filed a second motion to continue the public hearing. For the reasons set forth in the ruling, that motion was denied on September 22, 2000. On October 30, 2000, the respondent, on behalf of the commission and the complainant, filed another motion to continue the public hearing. That motion was granted and the public hearing was continued to January 9 – 12, 2001.

On January 4, 2001, the commission filed yet another motion for continuance of the public hearing. As the basis for the continuance request was found to be without merit and lacking in credibility, the motion was denied on January 5, 2001 for the reasons set forth in the ruling.

The complainant filed another motion for continuance on January 5, 2001 that was denied.

The public hearing was held on January 9, 2001, and January 10, 2001. The complainant did not appear. The commission articulated its repeated attempts to contact the complainant in both Connecticut and India. (Atty. Yandow, Tr. 11 – 19.)

On January 30, 2001, the complainant filed a motion for postponement of the briefing schedule. As the bases for the request were found to be without merit and lacking in credibility, that motion was denied for the reasons more fully set forth in the ruling.

Optional briefs were due to be filed on or before January 31, 2001, at which time the record was closed.

IV. Findings of Fact

Based upon a review of the pleadings, exhibits, testimony, transcripts, and an assessment of the credibility of the witnesses, the following facts relevant to this decision are found:

  1. The complainant is a member of one or more protected classes, based on his national origin (India), color (brown), and ancestry (Asian). (Fuller, Transcript page ("Tr. ") 60-61; Bhura, Tr. 110.)
  2. The respondent is the State of Connecticut, an employer covered by CFEPA and Title VII. (General Statutes § 46a-51(10); 42 U.S.C. 2000e(a))
  3. In the summer of 1997, the respondent sought to fill a vacancy for the position of programmer. For that position, the respondent was looking primarily for an individual who had experience as an Oracle developer. (Holmes, Tr. 143.)
  4. The complainant interviewed for the position. (Holmes, Tr. 142).
  5. Dave Holmes ("Holmes") and Gary Frechette ("Frechette") interviewed the complainant. (Holmes, Tr. 143, 171-78; Lirot, Tr. 325.) The complainant’s skin color would have been evident at the in-person interview; and his national origin and ancestry could have been inferred from his schooling in India, as reported on his resume. (Lirot, Tr. 295, 296, 325; Commission Exhibit ("Ex.") 12.)
  6. The complainant’s resume listed over 2 years of Oracle program experience. (Holmes, Tr. 144; Commission Ex. 12.)
  7. The complainant ranked first in the interview process and Holmes subsequently offered the position to the complainant. (Holmes, Tr. 145, 171-72.)
  8. The complainant accepted the offer and began work on September 22, 1997. (Commission Ex. 50.)
  9. The respondent also hired John Smey ("Smey") as a programmer. He began work on October 6, 1997. (Commission Ex. 50.)
  10. The complainant was subject to a six-month probationary period, known as a working test period. (Commission Ex. 2; General Statutes § 5-230.)
  11. During this probationary period, the complainant was, as was any person in a working test period, subject to rejection. (Commission Ex. 2; General Statutes § 5-230.)
  12. As his probationary period progressed, the complainant’s attendance and tardiness, in the morning and when returning from lunch, were always an issue. (Holmes, Tr. 150, 152, 154, 162, 261; Commission Ex. 2, pages 4 and 7; Commission Ex. 3) Within a six-month period, the complainant was late 25 times. (Holmes, Tr. 166.) There was an over abundance of evidence of attendance and tardiness problems. (Lirot, Tr. 295.) His tardiness was chronic and severe. (Holmes, Tr. 161.) The working test period is looked at closely because tardiness and attendance patterns develop early and suggest trends and patterns that will probably become even greater after the working test period. (Holmes, Tr. 148, 162-63.)
  13. As a result of his tardiness, the complainant received several informal verbal warnings, a formal verbal counseling in December 1997, and three written warnings. (Holmes, Tr. 153, 155, 157, 159, 254, 255, 260; Commission Ex. 2, pages 4 and 12; Commission Exs. 3, 14, 15, 16.)
  14. Despite these warnings, the complainant’s tardiness continued. (Holmes, Tr. 154, 156, 161, 261; Lirot, Tr. 295, 299, 300; Commission Ex. 2, page 4.) Indeed, he continued being tardy in the weeks and days prior to his termination, including the day of his termination. (Holmes, Tr. 226; Lirot, Tr. 299-300.)
  15. The respondent was also concerned with the complainant’s veracity. The complainant falsified a travel reimbursement voucher and often changed the excuses he gave for his tardiness when challenged. (Holmes, Tr. 168 - 70.)
  16. The respondent also questioned the complainant’s alleged experience in Oracle. The respondent had paired the complainant with another new employee, John Smey. Smey had no Oracle experience and the respondent anticipated that the complainant would be able to "mentor" Smey. Instead, however, Smey taught the complainant. (Holmes, Tr. 170, 237.)
  17. The respondent terminated the complainant on March 19, 1998, within the six-month probationary period. (Commission Ex. 17.)

V. Analysis

A. Applicable federal and state statutes

Employment discrimination based on national origin is prohibited under federal lawunder Section 703(a)(1) of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a) which provides in relevant part that "[i]t shall be an unlawful employment practice for an employer (1) … to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin."

Likewise, employment discrimination based on national origin is also prohibitedunder state law. General Statutes § 46a-60(a) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need … to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, … national origin, ancestry …."

B. Applicable federal and state case law

The complainant alleges that he was subjected to different treatment because ofhis protected status. "Under the analysis of disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive/Price Waterhouse model; Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); and (2) the pretext/McDonnell Douglas-Burdine model. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 65 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 92 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Levy v. Commission on Human Rights and Opportunities, et al., 236 Conn. 96, 104-105 (1996). Connecticut courts in state employment discrimination cases have adopted federal standards. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53 (1982).

1. Mixed-motive/Price Waterhouse

"A ‘mixed-motive’ case exists when an employment decision is motivated by both legitimate and illegitimate reasons. … In such instances, a plaintiff must demonstrate that the employer’s decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow a (fact finder) to conclude that the adverse employment consequences resulted because of an impermissible factor." (Internal citations and quotation marks omitted.) Levy, supra, 236 Conn. 105. "Direct evidence of discriminatory intent may include evidence of actions or remarks of the employer that reflect a discriminatory attitude … or comments that demonstrate a discriminatory animus in the decisional process …." (Internal quotation marks omitted; citations omitted.) Id. at 109.

a. Prima facie criteria

Under the mixed-motive model, "the plaintiff’s prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a ‘motivating’ or ‘substantial’ role in the employment decision." Levy, supra, 236 Conn. 106 (citing Price Waterhouse, supra, 480 U.S 258). "The critical inquiry is whether the discriminatory motive was a factor in the decision ‘at the moment it was made.’" Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 205 (1991) (citing Price Waterhouse, supra, 490 U.S. 241). The complainant "has the burden of persuading the fact finder that the defendant’s employment decision was motivated at least in part by an impermissible factor, while the defendant bears the burden of persuading the fact finder that the same decision would have been reached absent the impermissible factor." Levy, supra, 236 Conn. 106, n. 18. The complainant "must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment decision." (Internal citations omitted; quotation marks omitted.) Id. at 106. The complainant retains "the burden of persuasion on the issue of whether a discriminatory motive played a part in the decision." Miko, supra, 220 Conn. 205 (citing Price Waterhouse, supra, 490 U.S. 246).

b. Burden shift to respondent

"Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. ‘The defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken (the impermissible factor) into account.’" Levy, supra, 236 Conn. 106 (citing Price Waterhouse, supra, 490 U.S. 258). "An alleged discriminator ‘may not prevail in a mixed motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.’" Miko, supra, 220 Conn. 205 (citing Price Waterhouse, supra, 490 U.S. 252). "The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision." Price Waterhouse, supra, 490 U.S. 252; Miko, supra, 220 Conn. 207.

2. Pretext/McDonnell Douglas-Burdine

The second method of allocating the burdens of proof is the McDonnell Douglas-Burdine model. Under this model, the complainant "must first establish, by a preponderance of the evidence, a prima facie case" of discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). At the prima facie stage, the burden of proof for a complainant in an employment discrimination case is minimal. Levy, supra, 236 Conn 107 (citing Burdine, 450 U.S. 253.) Once a prima facie case has been made, the employer must articulate some legitimate, non-discriminatory reason for its decision. McDonnell Douglas Corp., supra, 411 U.S. 802. Should the employer succeed in this presentation, the complainant must be afforded an opportunity to show that the respondent’s stated reason for its decision was in fact a pretext for prohibited discrimination. Id. at 804; St. Mary’s Honor Center, supra, 509 U.S. 507-508.

Despite the shifting burdens, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, supra, 450 U.S. 253. The complainant must show that he "has been the victim of intentional discrimination." Id. at 256; St. Mary’s Honor Center, supra, 509 U.S. 508.

a. Prima facie criteria

"Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts that are sufficient to remove the most likely bona fide reasons for an employment action …." (Internal citations and quotation marks omitted.) Levy, supra, 236 Conn. 107. "[T]he prima facie case set forth in McDonnell Douglas Corporation was not intended to be an ‘inflexible formulation.’ Rather, the requirements of proof must be tailored to the specific facts of each case." (Citations omitted.) Miko, supra, 220 Conn. 204.

To establish a prima facie case of employment discrimination under the McDonnell Douglas-Burdine model, the complainant must show (1) membership in a protected class, (2) qualification for the position, (3) termination from employment or other adverse employment action, and (4) circumstances giving rise to an inference of discrimination. Cruz v. Coach Stores, 202 F.3d 560, 567 (2d Cir. 2000). "To satisfy the second element of the test, [the complainant] need not demonstrate that his performance was flawless or superior. Rather, he need only demonstrate that he possesses the basic skills necessary for performance of [the] job." (Citations and internal quotations omitted.) de la Cruz v. New York City Human Resources Admin. DSS, 82 F.3d 16, 20 (2d Cir. 1996).

b. Burden shift to the respondent

Once the complainant has established a prima facie case, ‘[t]he burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. … It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." (Internal citations omitted.) Burdine, supra, 450 U.S. 254; Levy, supra, 236 Conn. 108. However, the proffered explanation "must be clear and reasonably specific." Burdine, supra, 450 U.S. 258.

c. Burden shift to the complainant

If the respondent carries this burden of production, the presumption raised by the prima facie case is rebutted. The complainant, because he retains the burden of persuasion, must have the opportunity to prove by a preponderance of the evidence that the proffered reason was not the true reason for the employment decision but a pretext for intentional discrimination. Burdine, supra, 450 U.S. 253; Levy, supra, 236 Conn. 108. "This burden now merges with the ultimate burden of persuading the court that [the complainant] has been the victim of intentional discrimination." Burdine, supra, 450 U.S. 256. "Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2108 (2000).

C. Application

1. Mixed-motive/Price Waterhouse

The commission and the complainant have not met their burden under the mixed motive/Price Waterhouse model. The only arguably direct evidence offered by the complainant and the commission are documents containing statements allegedly overheard by the complainant and a co-worker, Dan Fuller ("Fuller"). (Complaint, paragraph 14; Commission Ex. 40.) Likewise, the only monetary damage offered was also only in the form of documents. (Commission Exs. 18, 21, 41, 49.) Because such testimony and assessing the complainant’s credibility would be vital to the issues of liability, damages, and mitigation, the respondent is entitled to cross-examine the complainant. Ann Howard’s Apricots Restaurant, Inc., supra, 237 Conn. 218. Since the complainant was not available for the respondent to cross-examine "and because no other witnesses were presented who were competent to testify" as to those issues, the comments allegedly overheard by the complainant and the exhibits relating to those comments and to damages are stricken. Id. at 224. The alleged comments that Fuller heard also do not constitute direct evidence of discriminatory animus in the decisional process to terminate the complainant’s employment because they were not directed toward the complainant and are not attributed to Holmes, Frechette, or any other decision-maker.

Further, even if these comments constituted direct evidence, the respondent has offered credible evidence by a preponderance of the evidence that it was in fact motivated by concerns regarding the complainant’s attendance and tardiness, veracity, and job performance and that such reasons standing alone would have induced it to terminate the complainant’s employment. (Findings of Fact ("FF") 12-16.)

2. Pretext/McDonnell Douglas-Burdine

The commission and the complainant did not meet their burden under the pretext/McDonnell Douglas-Burdine model. They established the first and third prong of the prima facie test, as the complainant is a member of a protected class and was terminated from the position. (FF 1, 17.) However, the commission and the complainant did not established that the complainant was performing the job satisfactorily. They proffered no testimony that he was satisfactorily performing the duties set forth in his job description (Commission Ex. 19) or even that he possessed the skills or qualifications to at least meet a base level of competence. On the other hand, the respondent offers evidence that the complainant did not possess the level of qualifications sought. (FF 16.)

The commission and the complainant also did not establish an inference of discrimination, the fourth prong of his prima facie case, for several reasons. First, Holmes and Frechette, who interviewed the complainant for the position, are the same two people whom the complainant accuses of discriminating against him and the same two people intricately involved in the decision to terminate the complainant’s employment. They would have observed his color at the interview session and could have inferred his national origin and ancestry from his schooling in India as referenced in his resume. (FF 5; Holmes, Tr. 143, 171-72; Lirot, Tr. 295-96, 325; Commission Ex. 12.) That the same individuals hired as fired the complainant undermines the complainant’s argument of discriminatory animus. ("Although each case must involve an examination of all the circumstances, some factors strongly suggest that invidious discrimination was unlikely. For example, when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. This is especially so when the firing has occurred only a short time after the hiring." (Citations omitted.) Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2nd Cir. 1997), cert denied, 525 U.S. 936 (1998).)

Second, the commission’s anecdotal accounts of Smey’s tardiness are based on the testimony of Fuller. According to Fuller, Smey was often late for work, on an average of twice per week. Fuller says he knows this because he himself was late an average of twice per week and he and Smey would walk in together. (Fuller, Tr. 72.) However, Fuller’s account of his own tardiness, and by implication Smey’s tardiness, is contradicted by the credible testimony of his supervisor (Traynor, Tr. 130-33) and Commission Exhibits 35 and 36.

Third, unlike with the complainant, there is no evidence of problems with Smey’s veracity or job performance.

Also militating against an inference of discrimination is that, of the four other probationary employees dismissed during their working test period during the past two years, three were white males and one an Hispanic female. (Commission Ex. 2, page 11.)

In summary, the commission and the complainant "point to no evidence to support a reasonable inference that any party took any action that was based in any way on the [complainant’s] race or national origin." Collazo v. The City of New York, 208 F.3d 202, 2000 WL 340398 *3 (2d Cir. 2000).

However, the complainant’s prima facie case is a minimal one. If we assume that the complainant and the commission have met their prima facie case, the burden then shifts to the respondent to produce a legitimate business reason for its decision. The respondent’s burden is one of production, not persuasion. The respondent’s reasons for terminating the complainant but not Smey are clear and specific: its concerns regarding the complainant’s tardiness that did not improve despite repeated counseling, his veracity, and his ability to do the work (FF. 12-14; Holmes, Tr. 154-57, 161, 254-55, 260, 261; Lirot, Tr. 295, 299, 300; Commission Exs. 2, 3, 14, 15, 16, and 17); concerns the respondent did not have regarding Smey. (Holmes, Tr. 257-58; Commission Exs. 2 and 3.) The burden now shifts to the complainant to establish that the respondent’s reasons were a pretext for discrimination or otherwise lacking in credibility.

Assuming that the commission and the complainant established a prima facie case of impermissible discrimination, they failed to demonstrate by a preponderance of the evidence that the reasons proffered for the termination were pretextual or were influenced by the complainant’s national original, ancestry, or color. The commission and the complainant proffered no evidence that he was not tardy, or that his attendance improved, or that the counseling did not occur. The commission and the complainant offered no evidence rebutting the respondent’s allegation that the complainant falsified his travel vouchers or gave shifting stories about his tardiness. The commission and the complainant offered no evidence that his job performance was satisfactory.

The complainant’s allegation that the respondent harbored animus toward Asian Indians is unsupported, not credible, and contradicted by the unrebutted testimony of Rafik Bhura ("Bhura"). Bhura, employed by the respondent between November 1995 and May 1997, is similarly situated to the complainant. Both Bhura and the complainant share the same national origin, India; color, brown; alienage, Asian; and ancestry, Asian. (Bhura, Tr. 107, 110.) Bhura, like the complainant, worked with Holmes and Frechette; indeed, the complainant told Bhura that he did the same job and worked with the same people as Bhura had. (Bhura, Tr. 111-12.) Unlike the complainant, however, Bhura successfully completed his working test period. (Bhura, Tr. 111.) He never heard Holmes and Frechette make discriminatory comments about minority groups, warn him about being tardy, or raise concerns regarding his job performance. He received an excellent rating at the conclusion of his work test period. (Bhura, Tr. 114-15.) He had a professional and friendly relationship with Holmes and Frechette. (Bhura, Tr.114; Respondent’s Ex. 57.) Bhura had contacts with them after he left his employment with the respondent, and Frechette even visited Bhura at Bhura’s home. (Bhura, Tr. 118.)

Bhura also met the complainant when the complainant was employed by the respondent. (Bhura, Tr. 112, 117.) During those meetings, the complainant did not relate that he was experiencing any problems at work regarding his skin color or national origin. (Bhura, Tr. 112-13.)

The complainant alleges that he was treated differently than Smey (white male; Holmes, Tr. 235), McCaffrey (white female; Holmes, Tr. 209), and Marin (white male; Holmes, Tr. 209). However, the complainant must compare himself to those with whom he is similarly situated. But, "to be similarly situated, the individuals with whom [a complainant] attempts to compare [himself] must be similarly situated in all material respects. … Employees are not ‘similarly situated’ merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff’s, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it." (Citations and internal quotation marks omitted.) Ortiz v. Prudential Insurance Co., 94 F. Sup.2d 225, 238 (D. Conn. 2000.) The complainant is not similarly situated to Smey, McCaffrey, or Marin.

The complainant’s allegations that Smey, a white male, was treated differently than the complainant are not supported by any credible evidence. The complainant and the commission offered no evidence that Smey’s veracity was in question or that Smey’s job performance was inadequate. The complainant alleges disparate treatment between himself and Smey in that Smey was also tardy numerous times but was not terminated. As previously discussed, the complainant apparently bases this claim on the testimony of co-employee, Fuller, who claims that Smey was tardy an average of twice per week. Fuller says he knows Smey was late because Fuller himself was late an average of twice per week and they would walk in together. (Fuller, Tr. 72.)

However, Fuller’s account of his own tardiness, and by implication Smey’s tardiness, is contradicted by the credible testimony of his supervisor, Traynor. Traynor confirmed that Fuller had problems with tardiness, attendance, and attention at meetings through part of 1997 that resulted in verbal and written counseling. (Traynor, Tr. 127-28.) However, between October 1997 and April 1998 (the time period at issue with the complainant and Smey), Fuller’s tardiness and attendance had improved considerably. (Traynor, Tr. 130-33, 137-38; Commission Exs. 35 and 36; Respondent Ex. 59.) Also, the complainant proffered no personnel documentation regarding Smey’s attendance and tardiness. On the contrary, according to Holmes, other than one possible incident when Smey was late due to a snow storm, no issue regarding Smey’s attendance was ever brought to his attention. (Holmes, Tr. 257-58.)

The complainant also suggests that by his termination he was treated differently than employees Lorraine McCaffrey and John Marin, who received written warnings for their attendance issues. (Commission Exs. 10 and 11.) However, McCaffrey and Morin are not similarly situated to the complainant. These employees were written up for their use of sick days, not tardiness. (Holmes, Tr. 252-53; Commission Ex. 10 and 11.) They were also permanent employees, not on working test periods. (Holmes, Tr. 252-53.) As permanent employees they were subject to different disciplinary procedures than employees in a working test period. (Lirot, Tr. 313; Commission Ex. 2, page 12; Commission Ex. 42, page 6; General Statutes §§ 5-230 and 5-240.)

In his complaint, the complainant also alleged denial of benefits. (Complaint, paragraph 7.) The only benefit that appears to be at issue was training. However, the complainant received training on October 16-17, 1997. (Commission Ex. 50.) Smey also received training, on November 6 –7, 1997 and again on December 18-19, 1997. (Commission Ex. 50.) However, the December training was as a last minute replacement for another employee who had been scheduled to attend but was unable to. (Holmes, Tr. 240-41.) The complainant would have been unable to attend the December training, even if he had been asked, as he had a five-hour medical appointment on December 18, 1997. (Commission Ex. 6.)

Incorporated in the complaint, the complainant included correspondence from himself to the commissioner of the department of environmental protection requesting an investigation into the complainant’s termination and also an opportunity to meet with the commissioner. (Commission Ex. 1.) The complainant also corresponded to Betty Lirot ("Lirot"), respondent’s affirmative action administrator, requesting an investigation. (Commission Ex. 37.) In response, Lirot met with the complainant and his wife. Lirot explained to the complainant and his wife the complaint process, remedies available, and the information and documentation she would need from the complainant. Lirot also had two telephone conversations with the complainant. (Lirot, Tr. 280-82, 287; Commission Ex. 1.) However, the complainant never supplied the information or documentation. (Lirot, Tr. 285, 287.) Notwithstanding the complainant’s failure to provide the requested documentation, Lirot immediately undertook an investigation into the allegations as the complainant had explained them to her. (Lirot, Tr. 291-301, 307-09.) She ultimately concluded that she was unable to substantiate the complainant’s allegation that he was treated differently than other people because of his race, color, sex, or alienage. (Lirot, Tr. 300-01.)

After speaking with the commissioner, Lirot informed the complainant that the commissioner would be willing to meet with him. Although two meetings were scheduled, the complainant did not attend either of them. (Lirot, Tr. 287-90; 316.) He did not attend or cancel the first meeting (Lirot, Tr. 287-88, 316) and cancelled the second one. (Lirot, Tr. 290.)

VI. Conclusions of Law

Failing to proffer credible direct evidence of discrimination, the commission and the complainant failed to meet their burden under the mixed-motive/Price Waterhouse model. Even if direct evidence can be assumed, the respondent, by a preponderance of the evidence, demonstrated with credible evidence that it would have made the same decision even if the complainant’s origin, color, alienage, and ancestry had not been taken into account.

Further, the commission and the complainant failed to meet their burden under the pretext/McDonnell Douglas-Burdine model. They did not establish a prima facie case. Even if they established a prima facie case, the respondent produced a credible, legitimate business reason for its decision to terminate the complainant. The commission and the complainant failed to show by a preponderance of the evidence that the respondent’s proffered legitimate business reason is either a pretext for discrimination or otherwise lacking in credibility.

VII. Order

The complaint is dismissed.

Hon. Jon P. FitzGerald
Presiding Human Rights Referee

c:
Mr. V. R. Pingle
Atty. J. Yandow
Ms. B. Lirot
Atty. K. Flint





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