CHRO: 9320024, Maier v. City of Norwalk, Final Decision

9320024, Maier v. City of Norwalk, Final Decision
9320024, Maier v. City of Norwalk, Final Decision

Commission on Human Rights and : CHRO 9320024 Opportunities, ex rel. Martin H. Maier, Complainant
v.
City of Norwalk, Human Relations Department, et al. and

Commission on Human Rights and : CHRO 9320026 Opportunities, ex rel. Martin H. Maier, Complainant
v
Norwalk Municipal Employees Association, et al. : September 29, 1999

FINAL DECISION

By complaint dated July 17, 1992 and filed with the Commission on Human Rights and Opportunities ("commission"), Martin H. Maier ("complainant") alleges that he was illegally discriminated against by the respondents City of Norwalk, Human Relations Department, ("city") and its agent Molly Goodchild ("Goodchild"), Human Relations Representative. The complainant alleges that these respondents illegally discharged him from employment on the basis of his age in violation of General Statute §§ 46a-60(a)(1) and 46a-60(a)(5) and the federal Age Discrimination in Employment Act. This complaint has the docket number CHRO 9320024.

By complaint also dated July 17, 1992 and filed with the commission, the complainant alleges that he was illegally discriminated against by the respondents Norwalk Municipal Employees Association ("NMEA"), and its agents Anthony Capuano ("Capuano"), union president, and Goodchild, again, as co-chairperson of NMEA’s personnel committee. The complainant alleges he was denied his full membership rights on the basis of his age in violation of General Statutes §§ 46a-60(a)(3) and 46a-60(a)(5) and the federal Age Discrimination in Employment Act. This complaint has the docket number CHRO 9320026.

For the reasons discussed herein, both complaints are dismissed.

I PARTIES

The complainant in both cases is Martin H. Maier. At the time of the filing of the complaint, he resided at 34-49 79th Street, Jackson Heights, New York 11372. The

Commission on Human Rights and Opportunities is located at 21 Grand Street, Hartford, CT 06106. The respondents in CHRO #9320024 are the City of Norwalk, Human Resources Department, and its agent, Molly Goodchild, as Human Resources Representative. Their business address at the time of the complaint was 125 East Avenue, Norwalk, CT 06856.

The respondents in CHRO #9320026 are the Norwalk Municipal Employees Association and its agents Anthony Capuano, president, whose business address at the time of the complaint was 131 East Avenue, Norwalk, CT 06856, and Molly Goodchild, again, as co-chairperson of the Norwalk Municipal Employees Association’s personnel committee, whose business address was 125 East Avenue, Norwalk, CT 06856.

II PROCEDURAL HISTORY

The complaints were filed with the commission and assigned to an investigator. CHRO # 9320026 was amended on August 4, 1992. The investigator found reasonable cause for believing that discriminatory practices were committed as alleged in the complaints. On December 23, 1993, the investigator certified complaint #9320024 and the results of the investigation to the executive director of the commission and to the Attorney General. On December 28, 1993, the investigator certified complaint #9320026 and the results of the investigation to the executive director of the commission and to the Attorney General.

Upon certification of the complaints, John F. Daly, III was appointed as the presiding officer to hear the complaints. On or about January 6, 1994, the two cases were consolidated. On October 30, 1996, Hearing Officer Daly voluntarily recused himself and Ruben Acosta was designated as presiding officer. On July 22, 23, and 24, 1997, public hearings were held at which Hearing Officer Acosta presided. Subsequently the parties filed briefs. Pursuant to P.A. 98-245 and by the agreement of the parties, the undersigned human rights referee was appointed on September 8, 1999 as presiding officer in substitution for Hearing Officer Acosta.

III PARTIES’ POSITIONS

The complainant alleges that all the respondents had a bias against him because of his age, consistent with their overall policy for handling the defunding and bumping process. He alleges that the respondents slotted him for retirement and deprived him of his right to bump an employee of lesser seniority. As a result of the respondents’ denying him the right to bump granted under the collective bargaining agreement, the complainant argues that he was involuntarily terminated by the respondents.

All the respondents maintain that there was no intentional age discrimination toward the complainant. The respondents claim that their actions were a result of the citywide reduction in force program underway at the time and that the complainant voluntarily resigned from municipal employment.

The city and its agent also argue that their actions were legally permissible under General Statutes § 46a-60(b)(1)(E) in that they were respecting a bona fide seniority plan. They further argue that no action was taken by the city with respect to bumping, other than approving the proposed replacement’s qualifications, because the bumping process was controlled by NMEA.

NMEA and its agents also argue that the complainant was not adversely affected by their actions because he voluntarily retired and failed to bid on available job positions. Further, the complainant was treated the same as every other union member throughout the defunding/bumping process.

IV FINDINGS OF FACT

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

All procedural, notice, and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to hear the complaint and render a decision.

The complainant is a member of a protected class as his date of birth is December 13, 1926.

The city employs at least twenty people.

NMEA is a labor organization representing some of the city’s municipal employees.

Respondent Anthony Capuano was president of NMEA at all relevant times.

Respondent Molly Goodchild was personnel records supervisor for the city and co-chairperson of NMEA’s personnel committee at relevant times.

The complainant began working for the city in 1982 as the city’s zoning inspector. At all relevant times, the complainant was employed by the city as a zoning inspector and was a member of NMEA.

In late 1991, the city, as a result of its fiscal situation, decided to eliminate ("defund") municipal job positions through a citywide reduction in force.

The collective bargaining agreement between NMEA and the city provided bumping rights. These rights entitled NMEA members who would be laid off because their positions were being eliminated by defunding to move into another job position held by an employee of lesser seniority, thereby "bumping" that person out of his/her position. The holder of the eliminated position must be qualified for the position she/he would be seeking. Although the language providing for bumping had been in the contract for approximately 15-20 years, the process had never been used.

In the beginning of 1992, the city announced its plan to reassign the complainant from the Code Enforcement Department to the Planning and Zoning Department under the supervision of the Planning and Zoning Director.

In late January or early February, the complainant telephoned Dianne Campbell, ("Campbell"), a pension board representative for NMEA. He expressed concern that he would be bumped and asked what his pension and medical benefits would be if he retired.

On February 12, 1992, Frederic (Rick) Quittell ("Quittell"), the personnel director of the city, notified Capuano that the city intended to defund approximately twenty job positions held by NMEA members for the fiscal year 1992-93. The notice identified the job positions to be eliminated and the specific employees who would be impacted.

The complainant was not listed on the February 12 notice that listed employees whose jobs were being defunded.

The defunding process was unprecedented and there was a lot of confusion.

In an effort to minimize the negative impact of the reduction in force, the city offered a "separation incentive" that had an application deadline of February 18, 1992. An incentive of $5000 would be paid by the city to any employee who resigned or retired by June 30, 1992.

In February 1992, the complainant requested various job descriptions from the city.

Effective March 2, 1992, the complainant was reassigned to the Planning and Zoning Department under the supervision of the Planning and Zoning Director.

Following his transfer, the complainant received a series of negative evaluations from his new supervisor, commencing on or about March 17, 1992 with a verbal warning that his performance was unacceptable. His supervisor subsequently initiated a disciplinary proceeding against him. The complainant continued to receive complaints regarding his performance from his supervisor until the end of his employment with the city. In March, the complainant hired an attorney to represent him in connection with these job performance issues.

On March 13 or 17, 1992, the complainant met with Capuano for information on the bumping process.

By memo dated April 7, 1992, James Bradley ("Bradley"), a city employee and NMEA vice-president, began his efforts to bump into the complainant’s job by informing Quittell of his background and job experience.

During the beginning of April 1992, the complainant met with at least twice with Goodchild and also with Quittell to obtain copies of job descriptions.

On April 8, 1992, the complainant met with Quittell for an in-depth conversation about how the bumping process would work, how decisions would be made on the qualifications of transfer applicants, and whether the successful transferors would have probationary periods. The complainant also requested additional job descriptions.

In mid-April 1992, Marian McPherson, a fellow city employee, asked the complainant if he knew that Bradley was going to bump him.

On April 22, 1992, Bradley notified Goodchild that he was formally requesting to bump into the complainant’s job. Bradley was within his contractual rights in exercising his option to bump.

Goodchild contacted the complainant on either April 23 or 25, 1992. She advised him that Bradley had submitted a written request to bump his position and asked the complainant what he wanted to do. The complainant informed Goodchild that he would not tell her until he had spoken with an attorney.

On or about April 29, 1992, Quittell informed Goodchild that Bradley’s request for bumping into the complainant’s job position had been approved. Goodchild promptly telephoned both Bradley and the complainant with the information.

During the first week in May 1992, Goodchild called the complainant twice to tell him he needed to decide whether he would retire or bump into another position. She also informed him that May 8, 1992 would be the cut-off date to apply to bump. The complainant responded that he would do whatever his lawyer advised.

On May 8, 1992, Quittell and NMEA officials met. Quittell inquired into the complainant’s position. NMEA said they had told the complainant what was available but they did not know what his plans were. Quittell informed NMEA that the complainant would be laid off as of July 1, 1992.

On May 22 or 26, 1992, the complainant met with Goodchild to determine his pension rights. Goodchild calculated the complainant’s pension. Also on that date, the complainant filed a request to bump to one of three proposed positions. Goodchild informed him that he no longer had the right to bump. She also informed him that if he decided to retire he would have to act quickly because the retirement board was meeting on June 2 and would not meet during July and August.

On May 27, 1992, the complainant attended his disciplinary hearing that had been initiated by his supervisor. After the hearing the complainant informed Capuano that since the complainant was afraid he was going to be fired, the complainant was going to retire to avoid losing his retirement benefits.

On May 28, 1992, the complainant met with Quittell. The complainant explained that he was concerned he was going to be fired due to his job performance and was concerned what his retirement benefits would be if he were fired. Neither party raised the issue of bumping.

The complainant met again with Quittell on May 29, 1992. The complainant negotiated an enhanced retirement package and voluntarily signed a retirement declaration dated May 29, 1992, effective July 1, 1992.

The complainant notified Quittell by memo dated June 3, 1992 that he had invoked his bumping rights in a timely manner and had filed his retirement request involuntarily.

By memo dated June 9, 1992, Quittell responded to the complainant’s June 3, 1992 memo. Quittell set forth the city’s position that the complainant had voluntarily filed a retirement declaration, and that he had not exercised his bumping rights in a timely fashion.

Two job positions within NMEA were posted and available for bid in June 1992. The complainant did not bid for either job position although he appeared qualified.

V ANALYSIS

A Standard

Although the language of the federal and state statutes differ slightly, it is clear that the intent of the legislature in adopting the Fair Employment Practices Act to prohibit

discrimination was to make the Connecticut statute coextensive with the federal law. State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 469-470 (1989). Connecticut courts in state employment discrimination cases have adopted federal standards. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53 (1982.) "Although we are not bound by federal interpretation of Title VII provisions, we have often looked to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute. Nevertheless, we have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." (Internal citations and quotation marks omitted.) State, supra, 211 Conn. 470.

"Under federal law, there are four general theories of employment discrimination: disparate treatment, adverse or disparate impact, perpetuation into the present of the effects of past discrimination, and failure to make reasonable accommodation. To date, in Connecticut, we have recognized the disparate treatment and adverse impact theories of employment discrimination. … Used in this general sense, ‘disparate treatment’ simply refers to those cases where certain individuals are treated differently than others. The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status. Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate burdens of proof: (1) the mixed-motive/Price Waterhouse model; Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 775, 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, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Levy v. Commission On Human Rights and Opportunities, 236 Conn. 96, 103-105 (1996).

B Pretext/McDonnell Douglas-Burdine Model

Where a complainant alleges discharge from employment in violation of the Age Discrimination in Employment Act (ADEA), the three-step burden-shifting test of McDonnell Douglas supplies the appropriate analytical framework. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). Under the McDonnell Douglas-Burdine model, the complainant has the initial burden of demonstrating a prima facie case of discrimination. Once a prima facie case has been made, the employer must present 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., 804. "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. 248. The complainant must show that he "has been the victim of intentional discrimination." Id., 256.

1 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. To establish a prima facie case, a complainant may make the following four-part showing: (1) that he belongs to a protected class; (2) that he was qualified and applied for a job for which the employer was seeking candidates; (3) that the employer denied him the position despite his qualifications; and (4) that after this denial, the employer continued to solicit applicants for the position who had comparable qualifications to the complainant. McDonnell Douglas Corp., supra, 411 U.S. 802; Levy, supra, 236 Conn. 107-108. "These four elements will not apply identically to all factual scenarios, and therefore represent only a flexible guideline for how a plaintiff may choose to establish a prima facie case." Lloyd v. WABC-TV, 879 F.Sup. 394, 401 (S.D.N.Y. 1995) (citing McDonnell Douglas, supra, 802 n. 13); Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350, 361 (1986). "[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." (Internal citations omitted.) Miko, supra, 220 Conn. 204. "[T]he McDonnell Douglas elements constitute only a flexible guideline, and no element is ‘essential’". Lloyd, supra, F. Sup. 401.

2 Burden shift to the respondent

Once the complainant has established its 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." Burdine, supra, 450 U.S. 254; Miko, supra, 220 Conn. 204 (1991). However, the proffered explanation "must be clear and fairly specific." Burdine, supra, 258.

3 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 demonstrate 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; Miko, supra, 220 Conn. 204. "This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination." Burdine, supra, 256. The complainant must provide evidence from his own case and through cross-examination from which a trier of fact could reasonably infer that the respondents engaged in discriminatory conduct against him. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507-508, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).

4 Application

The complainant has failed to establish his prima facie case. Even if the evidence can be construed as sufficient for the complainant to meet his burden of establishing a prima facie case, he has still failed to prove intentional discrimination on the basis of age.

To establish his prima facie case, the complainant must show that (1) he is a member of a protected class, (2) he is qualified for the job or performing satisfactorily, (3) he was the subject of adverse action by the respondents, and (4) the adverse actions occurred under circumstances giving rise to an inference of discrimination.

The complainant satisfies the first element in that, on the basis of age, he was within a protected class at the time the positions were defunded and the bumping occurred.

The second prong is not strictly applicable, as the issue here is not specifically job performance but rather the complainant’s exercise of his bumping rights. However, during this time the complainant was undergoing disciplinary proceedings due to claims by his supervisor of poor job performance. (CP Exs. 2C, 2D, and 2F.) The complainant repeatedly expressed concerns that he would be terminated and would lose all his benefits as a result of these proceedings. (Complainant, Tr. 90; Capuano, Tr. 270; Quittell, Tr. 427.)

The complainant fails to establish the third prong that he was the subject of adverse action by the respondents. He voluntarily resigned on May 29, 1992 (Respondent’s Ex A; CP Ex. 1G; Complainant, 94; Quittell, Tr. 433) and failed to bid on two job positions for which he was likely qualified within the union that were posted and available in June 1992. (Quittell, Tr. 419, 446, 449, and 457.)

The complainant alleges he was terminated involuntarily because the respondents denied him the right to bump by imposing an arbitrary deadline to exercise that right. However, throughout the period in question it is clear that the complainant was vacillating between two mutually exclusive options: retirement or bumping. He himself raised the issue of retirement with several employees over several months. (Capuano, Tr. 259-260, 270; Quittell, Tr. 433; Campbell, Tr. 465-469.) He also requested pension calculations. (Goodchild, Tr. 320; Exs. 15 and 15A.) Indeed, as late as May 25, 1992, in correspondence to Goodchild requesting to bump to another position, the complainant also asked for a meeting with the personnel director to obtain more information about his retirement. (CP Ex. 1C.) Meanwhile, during this time period, he was also discussing bumping with city and union personnel who urged him to exercise his bumping rights, gave him job descriptions, answered his questions about retirement, and met and talked with him many times regarding his options. (Complainant, Tr. 53, 59, 64, 72-75, 78, 137, 138, 148-149, and 200; Goodchild, Tr. 289, 290, 303, and 304; Bradley, Tr. 365; Quittell, 414, 427; CP Ex. 17.)

The complainant also fails to establish the fourth element of his prima facie case that the bumping occurred under circumstances giving rise to an inference of discrimination on the basis of age. The complainant failed to support his allegations that the respondents targeted older workers, had a negative stereotype of the complainant, and forced him to retire. Instead, the separation incentive cited by the complainant as being age-targeted was actually offered to all employees regardless of age who agreed to resign by June 30, 1992. It was not a retirement incentive. (Quittell, 386.) Nor was there a negative age stereotype of the complainant. He "always conducted himself in a manner where you would never associate age with his persona. He was a[n] articulate individual in his job. He was knowledgeable of a number of different things, he had a number of special interests. He was always a very good dresser in the office. He missed, very, very, very little sick time." (Bradley, 365.) As previously discussed in connection with the third element, infra, the complainant was not forced to retire.

To the extent that the complainant establishes his prima facie case, the respondents have met their burden of producing a legitimate, non-discriminatory reason for their actions. There was "a very great concern of both the union’s and the city’s that there be a minimum amount of disruption" in city services. (Capuano, Tr. 246.) They "wanted to make a transition as smooth as possible … to minimize [the] major upheaval within the organization and to ensure that the city could continue to operate as an effective and efficient business." (Quittell, Tr. 383.) The respondents needed a cut-off date for bumping requests because they wanted to provide the transferors/bumpers with thirty days of training in their new positions prior to the commencement of the new fiscal year on July 1, 1992. (Goodchild, Tr. 304-305; Quittell, Tr. 390.) The complainant still had not submitted a bumping request by May 8, 1992 despite having been advised by Goodchild on or about April 29, 1992 that he was going to be bumped (Goodchild, Tr. 316-317) and been told twice by her the first week of May of the bumping deadline of May 8, 1992. (Goodchild, Tr. 303-304.)

The complainant "does not contend that the initial decision by the City to defund certain positions was discriminatory". Rather, complainant contends that the "discriminatory conduct occurred when respondents attempted to limit the disruption caused by the defunding/bumping process by targeting the older employees to create job openings and/or to limit the need for bumping." (Complainant’s reply brief, 7-8.) The respondents, however, did not target older employees. The separation incentive offered in February 1992 was offered to all employees regardless of age or seniority. (Quittell, Tr. 386.) The respondents diligently worked for all the employees to prevent unemployment, including informing bumped employees of positions available (Goodchild, Tr. 328-329) and providing enhanced retirement packages for those who were able and willing to retire. (George Michaels, Tr. 475.) To any extent the respondents assumed the complainant would retire, it was not because they targeted him because of his age but because his own statements and actions could reasonably have led them to believe he was going to retire.

With the respondents meeting their burden of producing a legitimate, nondiscriminatory reason for their actions, the burden now shifts back to the complainant to prove intentional discrimination. The complainant has not done so. The deadline of May 8, 1992 was established because of the respondents’ need to bring closure to a turbulent time and because of the need to train the transferors/bumpers in their new position. (Infra.) Discussions with the complainant regarding his age and retirement were either a continuation of discussions initiated by him or stray comments not rising to the level of discrimination.

The spring of 1992 was clearly a confusing and trying time for both NMEA and city personnel. "The rumors and discussions were approaching what I would call a critical mass, where virtually every day there was talk about it. … And because the talk was so prevalent and because so many of the employees were upset because they had heard that there were going to be a number of defundings, I was getting a number of phone calls in my capacity as a vice chairman [of NMEA]". (Bradley, Tr. 347.) "I [personnel director] can speak for myself, which I believe spoke for the city. I, quite frankly, was frightened at the time." (Quittell, Tr. 383.) The complainant’s confusion over his options was a natural result of a confusing time for everyone, but was not a result of proven intentional age discrimination by the respondents.

VI CONCLUSIONS OF LAW

As the commission and complainant have not met their burden of proving intentional discrimination based on age, both cases are dismissed.

______________________

Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C: Martin Maier
Atty. Kathryn Emmett
Atty. C. Joan Parker
Atty. Sara Oley
Atty. Stephen Horner
Anthony Capunao
Molly Goodchild





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