CHRO: 9810116, Mather - Decision

9810116, Mather - Decision

Commission on Human Rights and Opportunities : ex rel. Jayantha Mather, Complainant
v.
State of Connecticut, Department of Transportation, Respondent
CHRO # 9810116

April 19, 2001

FINAL DECISION & ORDER

I.    Parties

Complainant:

Jayantha Mather
3 Bartholomew Lane
Wallingford, CT 06492

By:

Thomas S. Luby, Esq.
Luby, Olson, Mango, Gaffney and DeFrances, P.C.
405 Broad Street, P.O. Box 2695
Meriden, CT 06450-1695

Commission by:

Cheryl A. Sharp, Esq.
Office of the Commission Counsel
Commission on Human Rights and Opportunities
21 Grand Street, 4th Floor
Hartford, CT 06106

Respondent:

James F. Sullivan, Commissioner
State of Connecticut Department of Transportation
2800 Berlin Turnpike
Newington, CT 06131-7546

By:

Clare E. Kindall, Esq.
Office of the Attorney General
55 Elm Street, P.O. Box 120
Hartford, CT 06141-0120

II.    Procedural Background

On September 4, 1997, Jayantha Mather ("complainant" or "Mather") filed an Affidavit of Illegal Discriminatory Practice ("complaint") with the Commission on Human Rights and Opportunities ("commission") against the State of Connecticut, Department of Transportation ("respondent" or "DOT") alleging he was not promoted to the position of Transportation Principal Engineer ("TPE") on a temporary basis because of his race (Asian) and national origin (Sri Lanka) in violation of Connecticut General Statutes § 46a-60(a)(1) and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000e and the Civil Rights Act of 1991 (collectively, "Title VII") as enforced through General Statutes § 46a-58(a). He also claimed that he was illegally retaliated against in violation of General Statutes § 46a-60(a)(4) for filing a complaint with the commission in 1992 and for his work as Chairperson of the respondent’s internal Affirmative Action Advisory Committee ("AA Committee").

The respondent alleged that the complainant was not promoted because he did not possess the required Professional Engineer ("PE") license. Furthermore, he was determined not to be the best candidate for the position by a neutral interview panel even absent the PE license requirement. On December 5, 1997, the complainant filed an amended complaint and supplemental reply requesting that the respondent be enjoined from filling the TPE position on a "permanent" basis and that it be prevented from using the PE license as a prerequisite for the TPE position. The respondent filled the TPE position on a "permanent" basis with a white candidate from the United States, Leo Fontaine, who possessed a valid PE license.

The commission investigated the allegations in the complaint and amended complaint and issued a finding of reasonable cause. Following unsuccessful attempts at conciliation, the complaint and amended complaint were certified on January 22, 1999 and proper notices for public hearing were issued to all parties. The matter was reassigned to the undersigned presiding human rights referee on May 12, 2000. The public hearing was held on twenty days during September, October and November 2000.

The complainant moved to amend the complaint on the first day of trial, September 11, 2000, to reflect the date Leo Fontaine was promoted to the TPE position on a "permanent" basis in September of 1998.1 The amendment was ruled reasonable and therefore granted. The respondent answered the amended complaint2 on the record. The parties filed simultaneous post-hearing briefs and proposed findings of fact on January 23, 2001 and simultaneous replies thereto on February 20, 2001, on which date the record closed.

The complainant proved that his failure to be promoted to the TPE position was discriminatory, based on his race and national origin, and that the respondent’s alleged legitimate business reasons were pretextual. The complainant failed, however, to meet his burden of proving that the respondent did not promote him in retaliation for engaging in lawful, protected activities. For these reasons, relief shall be awarded as set forth herein.

III.    Findings of Fact

From the testimony and other evidence adduced at public hearing, the complaint, the answer and other pleadings, the undersigned human rights referee finds the following facts to be relevant to the present decision:

  1. All statutory and procedural prerequisites to the public hearing were satisfied and the complaint is properly before the undersigned presiding human rights referee. (Record.)
  2. The complainant, Jayantha Mather, is a native of Sri Lanka. English is the primary language of Sri Lanka. The complainant is dark-skinned and speaks English with a foreign accent. Mather grew up in Sri Lanka, lived for nearly ten years in England, then emigrated to the United States. He is a U.S. citizen and deemed to be Asian. Trial Testimony of Jayantha Mather at pages 83-84, 453 (hereinafter referred to as "Mather #").3
  3. The respondent, the Department of Transportation for the State of Connecticut, employs more than 15 people, including the complainant. (Complaint ¶¶ 2-3 and Answer ¶¶ 2-3.)
  4. The DOT is organized into five Bureaus, each supervised by a Bureau Chief. Each Bureau Chief reports directly or indirectly to the Commissioner of Transportation. (R-51.)
  5. The five Bureaus are: Bureau of Finance and Administration, Bureau of Aviation and Ports, Bureau of Engineering and Highway Operations, Bureau of Policy and Planning, and Bureau of Public Transportation. (R-51.)
  6. The Bureau of Engineering and Highway Operations is supervised by James Byrnes. (Byrnes 2037; R-51.)
  7. The Bureau of Engineering and Highway Operations is divided into three Offices: the Office of Engineering; the Office of Maintenance; and the Office of Construction. Each office is run by an "Administrator". (R-51.) Prior to July 1997, the Administrator for the Office of Engineering (also known as the "Engineering Administrator") was Earle Munroe, who retired on July 31, 1997. (Munroe 3274-79; Coughlin 2536.) In early to mid-September 1997, Walter Coughlin became the Engineering Administrator. (Coughlin 2528; R-51.)
  8. The Office of Engineering has five divisions: Design Services Division, supervised by Joseph Obara; Traffic Division, led by Richard Howard; State Design Division, led by Bradley Smith; Consultant Design Division, led by Stephen Barton; and Environmental Compliance. (R-51.)
  9. After July 1997, the Design Services Division is comprised of five units: Bridge Design; Utilities; Contracts; Hydraulics and Drainage; and Soils and Foundations. Bridge Design is supervised by a manager, the remaining four units are supervised by TPEs. (R-51.)
  10. Within the Soils and Foundations Unit in the Design Services Division, the engineering positions from highest to lowest are Transportation Principal Engineer ("TPE"), Transportation Supervising Engineer ("TSE"), Transportation Engineer 3, Transportation Engineer 2, Transportation Engineer 1, and Transportation Engineer Intern. (Mather 83, 184; C-9; R-51.)
  11. The Soils and Foundations Unit provides geo-technical expertise for projects of all types, and is the only such unit at DOT, and for other state agencies. (Fontaine 3804-08; Mather 778-89; Munroe 3303-04, 3478-79.)
  12. The Soils and Foundations Unit is responsible for ensuring that the ground upon which highways, bridges or buildings are built is capable of supporting whatever is built upon it. (Coughlin 2537-38.)
  13. The Soils and Foundations Unit performs highly technical and extremely critical engineering work. (Coughlin 2540.) A mistake in soils and foundations engineering work is usually hidden, and the consequences can be catastrophic, such as a bridge footing being washed out, or a road sliding into the ocean. (Coughlin 2540-43; Mather 788-790.)
  14. Mather is currently employed as a TSE, a high level technical engineering position, in the Soils and Foundations Unit, Design Services Division, Office of Engineering, Bureau of Engineering and Highway Operations, State of Connecticut, Department of Transportation. (Mather 83; R-51.)
  15. Mather has a long and diverse academic and professional engineering background. (J-3; J-9.) In 1971, Mather obtained his degree in Mechanical Engineering from the University of Sri Lanka. (Mather 85.) The degree is the equivalent of a Bachelor of Science (B.S.) degree. (Mather 86.) The complainant worked for two years in Sri Lanka as an assistant mechanical engineer in the construction of a hotel and then moved to England. (Mather 85.)
  16. While in England, Mather entered a four year program and earned a B.S. degree in Civil Engineering from the Polytechnic of Central London (now University of Westminster). (Mather 85, 87.) The B.S. degree in Civil Engineering is equivalent to a Masters of Science degree (M.S.) in the United States. (Mather 87.)
  17. Similar to an M.S. program in the United States, the B.S. course of study in England consisted of only engineering related topics, including soils, hydraulics, structures and engineering related law and economics. (Mather 88.) Mather also started work on a Master's Degree while in England, but never finished. (Mather 87.)
  18. While studying in England, the complainant worked as a mechanical engineer. Upon graduation, he obtained employment as a civil engineer. (Mather 88.) He worked at Kerryreed Ltd. for six months, and then joined John Mowlem, an international firm constructing roads and pipelines for a Shell refinery in England. (Mather 89.) This work included foundation related activity. (Mather 90.) Mather then worked on the River Thames Barrier Project for the firm of Christiani & Nielson. This project involved the construction of an enormous sea wall. The complainant was a civil engineer in charge of a section of the wall. All of his work was foundation related and he supervised approximately twenty drafters and engineers. (Mather 91-92; J-7.)
  19. In 1982, Mather began working in the United States. Before joining the DOT, he worked briefly as an office engineer in charge of the Eleventh Avenue Viaduct, a roadway built along a waterway in New Jersey. (Mather 94.)
  20. In September 1982, the complainant began to work for the DOT. (Mather 95; J-4; J-7.) His first position was as an Engineer Intern/Inspector for the bridges along I-91. (Mather 96.) Within six months, Mather scored well enough on the written exam for the Engineer 1 position. (Mather 97, 276.) He then became Chief Inspector in the DOT’s Construction District 3, and began to run his own projects, such as the new Milford plaza, the North Frontage Road project in New Haven and the construction of I-691 in Cheshire. Mather's duties included the negotiation of claims for payment to outside contractors. (Mather 96-101.)
  21. In 1985, the complainant took the Engineer 3 written exam, a four-hour test administered by the DOT specifically on soil-related issues. He scored highly (second) and was promoted to Engineer 3 in the Soils and Foundations Unit. Because of his substantial experience outside the DOT, he was allowed to skip the Engineer 2 position. (Mather 102, 277.) The complainant was in charge of the soils aspects of the Charter Oak Bridge I-91 Project, an I-84 interchange project, and the Mianus River Bridge. He also worked on I-91 in Windsor. Among his charges were all load testing, laboratory soils testing, and geological studies. He wrote reports, and gave recommendations to the bridge, hydraulics, and other construction support groups within the DOT. He supervised 11 employees. (Mather 103-04; J-7.)
  22. Robert Isabelle supervised the Soils and Foundations Unit from December 1984 to March 1991. (Mather 679-80; Obara 2900-2902; R-3; R-58.) Isabelle held three different titles during his tenure. In reverse chronological order, those positions were Transportation Assistant Director of Soils and Foundations, Transportation Chief of Soils and Foundations, Transportation Engineer of Soils and Foundations. All three positions required the incumbent to have a PE license. Isabelle had his PE license. (Mather 679-80; Gonzalez 1966; Fontaine 3820; R-2A; R-2B; R-2C.)
  23. Isabelle accepted early retirement in March 1991 to avoid being laid off. Isabelle's job title of Transportation Assistant Director of Soils and Foundations was eliminated. (Batko 4022, 4024, 4028-29.)
  24. After Isabelle’s retirement Clem Zawodniak temporarily supervised the Soils and Foundations Unit in addition to his own, higher-level managerial duties for the next year. (Batko 4024-25.)
  25. A year later, two of the three TSEs in the Soils and Foundations Unit accepted the 1992 Early Retirement Incentive Program, leaving Theodore Batko the sole remaining TSE in that Unit. (Batko 4024–25.)
  26. When Batko applied for the position as Head of Soils and Foundations in 1992, the job announcement solicited applications "in anticipation of establishing a position for Transportation Engineer of Soils and Foundations." (R-47.) Applicants were expressly required to have a PE license. (Batko 4019-20, 4028-30, 4036-37, 4045-48.)
  27. Batko was interviewed for the Soils and Foundations position by Munroe and Zawodniak. (Batko 4019-21.) Munroe and Zawodniak told Batko during the interview that he was required to have and maintain a PE license as part of his job requirements. (Batko 4019-21, 4045-48; Munroe 3301-06.) Munroe informed Obara of the requirement and Obara sent a request to the Personnel Office to reimburse Batko for his PE license fees. (Obara 2833, 2910-11; R-26; C-52.)
  28. Although the job announcement indicated that the respondent intended to create a new position of "Transportation Engineer of Soils and Foundations," the DAS job classification for Transportation Engineer of Soils and Foundations was eliminated in May 1987, with the creation of the Transportation Chief of Soils and Foundations job classification. (Compare R-47 with R-2B.)
  29. While the job classification issue was pending, Batko was provisionally appointed as an "Engineer of Design". (R-47; R-26.) Although the Engineer of Design official job classification does not require a PE license, Batko was provisionally appointed with a special requirement to maintain a valid Connecticut PE license. (Batko 4028-30; Obara 2907-13, 2924; R-26.) Batko possessed and maintained a valid PE license. (Batko 4019; C-52.)
  30. Batko performed the duties of the "Transportation Engineer of Soils and Foundations" even though the position was never officially established. (Munroe 3405.) Batko performed the same functions and had the same engineering responsibilities as Isabelle. (Munroe 3301; Fontaine 3807-08, 3812; Obara 2924-25.)
  31. As a provisional appointment, Batko retained the position as long as he passed the Merit Promotional Examination. (R-31; R-3; R-26; C-52.) Effective September 1994, the TPE job classification was established, and shortly thereafter, a Merit Promotional Examination was held for the position. (Mather 279; J-5.)
  32. In March 1992, Mather assumed the responsibilities of TSE. The complainant held the position on a temporary basis, known in personnel jargon as temporary service in a higher class ("TSHC"). (Mather 110, 119.)
  33. TSHC is defined as "the temporary assignment by an appointing authority to perform the duties of a higher classification when there is a vacancy management has decided to fill . . . ." (R-31, p.1.) The person serving on this basis "does not attain any status in the higher class, and except for bi-weekly pay, is not entitled to any other fringe benefits or privileges associated with the higher class." (R-31, p.5.)
  34. The TSE position is described in a DOT job classification issued in 1995. (Mather 121; C-1.) The job classification reflects numerous subcategories or "parentheticals", including the Soils and Foundations position held by Mather. (Mather 125.) According to the job classification, a TSE "supervises engineers, technical and clerical employees." One of the criteria for eligibility was that the applicants have experience exercising "lead responsibility for complex engineering projects." As part of the minimum requirements for the TSE position, the applicant had to have "considerable oral and written communication skills." (C-1.)
  35. While serving as a TSE, Mather, along with two other TSEs, George Gonzalez, an Hispanic male, and Leo Fontaine, a white male, was supervised by Theodore Batko. Batko delegated substantial responsibility to all three TSEs. (Mather 148-49.) When Batko was on vacation, Mather often acted in his stead. (Mather 329.)
  36. While serving as an Engineer 1, Engineer 3 and TSE, Mather was never responsible for drafting plans. The drafting of plans throughout Mather's tenure at DOT was performed by either the State Design Division of DOT or by outside consultants. Over the years, the respondent has increasingly delegated large projects to outside consultants, reserving only small jobs for in-house DOT drafters. (Mather 106-107.)
  37. The complainant has overseen the soils and foundations aspect of projects costing up to $500 million dollars. He supervises not only in-house staff, but also outside consultants. By 1992, Mather had held the position of Engineer 3 for over seven years. Mather's performance as an engineer at DOT was reviewed annually. While serving as a TSE, he has always been rated highly - receiving excellent ratings. (Mather 128-31; C-39; J-7.) He handled a broad range of projects. (C-3.)
  38. When the "permanent" position of TSE was formally advertised within the DOT, the complainant, as well as Gonzalez and Fontaine, applied for the promotion. The advertised job classification included a detailed summary of the responsibilities of the position. (Mather 120; C-2.)
  39. At the time, Mather had been working as an engineer for nearly twenty years and had served as an Engineer 3 for over seven years. (Mather 85-94, 129; J-3.) Fontaine had been working as an engineer for only six years and had been an Engineer 3 for only two years. (J-12; J-13.)
  40. Joseph Obara, manager of the Design Services Division, participated in the interview to fill the TSE position. (Obara 2931.) The decision makers included Obara, Batko and James Byrnes, Bureau Chief of Engineering. (Mather 456, 1202; Obara 2933-34.) In September 1992, Fontaine received the promotion to the TSE permanent position. Mather was rejected.
  41. As a result of this rejection, Mather filed a complaint with the Commission alleging discriminatory conduct. Specifically, Mather complained that Obara and others denied him a promotion because of his color, race, and national origin, the same issues raised in this case. (Mather 1444.)
  42. In March 1993, as a result of the settlement of his complaint, Mather was appointed a TSE on a permanent basis, along with Fontaine. (Mather 455-57; Obara 2938; J-4.)
  43. After his promotion to TSE, Mather began to notice that major project responsibilities were being directed towards Fontaine. (Mather 1357-58.)
  44. Mather testified that his supervisors attempted to place an inaccurate disciplinary comment concerning abuse of sick leave in his personnel file. Mather challenged the evaluation and successfully had the negative record removed from his file. (Mather 1209-13.)
  45. The trend within the DOT in the last decade has been to reduce reliance on written competitive exams. In the upper levels, written promotional exams have been eliminated. (Coughlin 2571.) There was a reduction in the use of competitive written exams and an increase in promotions made without a written exam, and often without interviews. There was an increased emphasis on experience. (Mather 278.)
  46. Effective September 1994, Batko's official job title changed from Engineer of Design to Transportation Principal Engineer and he was permanently appointed to the TPE position. (Batko 4030; J-5; J-15; R-3.) Although his title changed, his job duties and responsibilities did not change. (Gonzalez 1885-86.)
  47. After he filed a grievance, DOT reimbursed Batko for his annual license fees to maintain his PE license. (Obara. 2833-34, 2841-43; Batko 4030-31; C-52; R-26; R-29.)
  48. Despite the fact that the explicit language of the Engineer of Design job description did not require a PE license, Batko sought reimbursement for his license fees while holding that position. (J-16.) None of the DOT witnesses could explain why it was necessary for Batko to file a grievance in order for the DOT to reimburse his fees. (Munroe 3408; Obara 2837, 3507.) Further, none of the DOT witnesses could explain why the reimbursement, once approved, had to be reviewed on an annual basis. (Obara 2851, 3513.) Although Batko became an Engineer of Design on March 1, 1992, and submitted a memo in support of his request for reimbursement in July 1992, he was denied reimbursement for several years. (Munroe 3409; Obara 3508, 3512.)
  49. The first effective date for the TPE job specification was September 16, 1994. (J-5.)
  50. The TPE job specification was developed, in part, to provide a more generic job classification for a level of supervisors; to eliminate the disparities in salary grades for the "Engineer of" series of job specifications; and to alleviate the "silo" effect in engineering career paths caused by the "Engineer of" job specifications. (Byrnes 2057-60, 2062-64.)
  51. The "Engineer of" series of job specifications required some positions to have a PE license, and did not impose licensing requirements on other positions. (R-2C; R-2D; C-44; J-16.)
  52. The "Engineer of" series of job specifications was eliminated by the creation of the TPE job specification. (J-5, p.2.)
  53. The TPE job specification (J-5) was approved by the Department of Administrative Services with the following special requirement:

    "The appointing authority may require that incumbents in this class possess and retain a license in the State of Connecticut as a Professional Engineer in a field appropriate to the scope of the assigned duties, or as a Registered Land Surveyor." (J-5, p.2.)

  54. The TPE job specification gives DOT the discretion to impose the listed licensure requirements on none, all or some of the TPE positions. (Mather 581-82, 646-47; Byrnes 2162-63; J-5.)
  55. In late 1994, Mather first applied for the TPE position. The job classification was the same as the one applicable to the later events in 1997. He scored a 90 in the competitive process. Fontaine received an 85. Mather met the minimum requirements of the position. The complainant was not told that a PE license was a prerequisite to be eligible for the position. In fact, Mather was told that he would be placed on the approved candidate list as a result of his score on the exam. Batko, the man only serving in the position on a "provisional" basis was selected to fill the TPE position. (Mather 264-68.)
  56. In September 1994, the respondent created the new position of TPE by consolidating many similar engineering positions into a single classification or "parenthetical." The predecessor positions were mostly "Engineer of" positions, e.g., "Engineer of Design." The new job classification applied to numerous engineering positions throughout the Office of Engineering. (Mather 309; J-5.) Prior to the creation of the position, career paths within the DOT were more restrictive and advancement was more limited to an engineer’s particular technical specialty. (Mather 802.)
  57. The main goal of the new TPE position was to broaden the career tracks available within the Bureau of Engineering at DOT and eliminate the "siloing effect" by promoting movement between different functional areas, e.g., a TSE in Utilities could become a TPE in Soils and Foundations. (Byrnes 2058-59, 2267.) In order to do so, the eligibility criteria for all TPE positions would have to be uniform. When consolidating the positions, there was no intent to expand the positions to which a PE license requirement would apply, to increase the complexity of the engineering tasks the TPE would perform, to require the exercise of more professional judgment, or to increase the responsibility of supervising other engineers. (Byrnes 2276, 2307.) Walter Coughlin, the Engineering Administrator, explained, "the TPE positions are suppose[d] to be interchangeable." The new TPE position "allows us to move TPEs from position to position as the need arises without being concerned - does this one have an engineering's license or not?" (Coughlin 2572.) "[I]t’s important that the requirement be the same across the board." (Coughlin 2664.)
  58. Furthermore, the TPE job classification made clear which positions were being consolidated. These positions included the predecessor Soils and Foundations position, Engineer of Design, which had no PE license requirement. (J-5; J-16.)
  59. Finally, the union contract covering TPEs demonstrated the interchangeability of the TPE classification. In the case of a layoff, a TPE is entitled to assume the position of any TPE with less seniority pursuant to "bumping" rules. Thus, a more senior engineer without a PE license is entitled to assume any other TPE position. (Doody 1821-26; C-18.)
  60. On or about March 15, 1995, the Engineering Administrator at the time, Earle Munroe, informed the Office of Personnel in a memorandum that a PE license would be required for three TPE positions within the Office of Engineering: the two positions where it was historically applied, Soils and Foundations and State Forces: Bridge Design and, as a new requirement, the Hydraulics and Drainage TPE position. (Byrnes 2077-79; Munroe 3315-17; J-15.)
  61. Munroe's memorandum (written by Obara) established his practice on the issue, but that did not bind his successor. (Munroe 3459.) Coughlin understood that he had the discretion to change the practice, in consultation with the Chief Engineer, and that the practice would continue unless he took action to change it. (Coughlin 2694-96.)
  62. Munroe testified that this internal memo was not part of any job classification or policy that governed anyone in the DOT after he retired in the summer of 1997. Munroe testified that his successor, Coughlin, was free to do what ever he wished regarding the imposition of the PE license requirement. (Munroe 3459.) Obara admitted that he could not say that the Munroe memo bound his successor. (Obara 3647.) Coughlin testified that the memo did not represent departmental policy but rather the personal preference of Munroe. (Coughlin 2694, 2722, 2731.) Coughlin also noted that the memo did not represent personnel practice of the DOT. (Coughlin 2732.) There never was a policy of the Commissioner reflecting the contents of the memo. (Coughlin 2734.)
  63. The issue of where a PE license should be required has come up repeatedly during the past ten years. (Barton 4117-18; Smith 4205; Obara 3137-47.)
  64. There has been no serious consideration of eliminating the PE license requirement. (Byrnes 2182-83, 2204-05; Barton 4113-14, 4179-80.)
  65. Mather first applied to take the PE examination in November 1991. (R-71, p.1.)
  66. Mather then sat for, and failed, both sections of the PE examination in October 1993 and October 1994. (R-72.)
  67. On or about November 10, 1994, the complainant wrote to the DOT’s Personnel Office, complaining about the newly-issued TPE job description, in particular, the application of the PE license requirement. (Mather 737-41, 748; R-53.)
  68. On or about December 5, 1994, Michelle Pancallo, of Personnel, provided a written response to Mather's inquiry. In her response, she informed Mather that the PE license "traditionally" had been imposed in the Bridge Design, Soils and Foundations, and Hydraulics and Drainage Units, "although others may exist." (R-28.) She further indicated that the PE requirement would be applied when the position required the signing of plans to reports. The Soils and Foundations and Hydraulics and Drainage positions were mentioned, even though no one working in these Units ever signed plans. (Byrnes 2458, 2491; Gonzalez 1887; Mather 739, 1228-29, 1232.)
  69. The letter also indicated that the PE license would be required for those who reviewed the plans of outside consultants. No TPE in the Consultant Design Section, however, whose duties are largely devoted to the review of the plans of outside consultants, were required to have a PE license. (R-28.)
  70. Shortly after the Pancallo letter was issued, the DOT appointed Daniel Buchavich, a white male, as a TPE in Hydraulics and Drainage. In direct contradiction of the explicit representation in the letter, Buchavich did not have a Connecticut PE license. (Mather 740.)
  71. In 1995, Obara drafted an internal memorandum for his supervisor, Earl Munroe, who at the time held the position of Engineering Administrator. (Munroe 3437; J-15.) Byrnes and Munroe could only recall that the memorandum was prompted by a request from Personnel. (Munroe 3434; Byrnes 2450.) Obara testified that the memorandum was written "so that we wouldn't have to go through this exercise on an annual basis." (Obara 2853.) Obara testified that the memo, which he authored, was not produced to put people on notice of a licensing requirement. (Obara 3669.)
  72. Pancallo conferred with Munroe when drafting her response. (Munroe 3318-19, 3440-41.) Obara had no role in the exchange, though as a courtesy, he was sent a copy of Pancallo's response. (Obara 2967-68.)
  73. Mather had more seniority within the DOT and also within the Soils and Foundations Unit than Fontaine. (Mather 334, 873; J-3; J-4; J-7; J-12; J-13.)
  74. Mather also had more supervisory experience than Fontaine. (Mather 336-43, 894.) Indeed, Mather had directly supervised Fontaine early in the latter's tenure at the DOT. (Mather 346.)
  75. The complainant’s engineering experience was twice as long (21 v. 11 years) as Fontaine’s and more diverse in ways directly relevant to the TPE position. (Mather 348, 894, 1147.) Mather had extensive private sector engineering experience. while Fontaine had never worked as an engineer outside of the Soils and Foundations Unit at the DOT. (Mather 349, 1151; Obara 3532-33.) Mather worked in private design and construction roles prior to joining the DOT, as well as for a private consultant. (Mather 351-52, 899.) Fontaine did neither. The complainant worked at the DOT outside the Soils and Foundations Unit; Fontaine did not. (Mather 1151-61.) As Obara testified, "Mather's experience in terms of his resume is much more extensive and much more varied than many other candidates." (Obara 3032.) In contrast, Fontaine's experience was the shortest and least diverse of the candidates for TPE positions in the Design Services Division. (Compare J-12 with J-6 through J-18.)
  76. At no time did any of the witnesses for the DOT indicate that the selection of Fontaine instead of Mather was motivated by job performance issues. Mather’s service ratings from 1992 on were mostly "excellent" and were at least the equal of Fontaine’s. (Compare C-39 with C-14.)
  77. A " professional engineer" is:

    a person who is qualified by reason of his knowledge of mathematics, the physical sciences and the principles of engineering, acquired by professional education and practical experience, to engage in engineering practice, including rendering or offering to render to clients any professional service such as consultation, investigation, evaluation, planning, design or responsible supervision of construction, in connection with any public or privately-owned structures, buildings, machines, equipment, processes, works or projects in which the public welfare or the safeguarding of life, public health or property is concerned or involved. General Statutes § 20-299(1).

  78. In order to practice as a "professional engineer", a person must pass a two-part examination, administered by the State Board of Examiners for Professional Engineers and Land Surveyors in the Department of Consumer Protection. After the Board approves an applicant for a PE license, the applicant is issued a license. General Statutes §§ 20-300 et seq. (Syp.4464-65.)
  79. Although DOT believes it is desirable for all of its engineers to obtain their licenses, DOT does not reimburse the annual license fee unless the license is specifically required for the employee's position. (Coughlin 2562-2563; Munroe 3432; Smith 4204.)
  80. The DOT is among those state agencies across the United States with the least emphasis on licensing its employees, limiting the requirement to the upper levels of management. (Byrnes 2085.)
  81. The PE license exam is given twice a year, in October and April. At no time does any eligible person have to wait more than six months to take the exam. Out of approximately 20 questions, only two or three usually relate to soil and foundation issues. (Mather 331.)
  82. Mather sat for and again failed both sections of the PE examination in April 1995. (R-72.)
  83. Individuals with and without PE licenses are found at all levels of the DOT. Often, engineers without PE licenses supervise others who have such licenses. (Mather 403.) Mather has frequently supervised others who possessed a PE license. (Mather 905.) Many TPEs do not have a PE license. (Mather 404.) A DOT employee cannot determine, by working with another DOT employee, whether that other person has a PE license. (Lamotey 1616.) Conversely, the fact that a TPE has a PE license does not mean that the license is a requirement of the job. (Mather 905; Byrnes 2463.)
  84. The 1994 TPE job classification did not require a license for any particular TPE position. Of the predecessor positions that were combined to form the TPE position, only one - Engineer of Bridge Design - required a PE license. (C-44.) None of the job classifications for the other positions which had been merged into the TPE position made any mention of a PE license requirement. Most importantly, the job classification for the Engineer of Design position held by Batko, who headed the Soils and Foundations Unit from 1992 to 1994, made no mention of a PE license requirement. (Mather 315; J-16.) The DOT does not have authority to unilaterally change a job classification. (R-60, p. 36.) In fact, a license requirement for a particular TPE position was not inserted into the TPE job classification until 1998, and then only with regard to TPEs required to possess a building official license. (Mather 310; J-6.)
  85. Batko, while working as a TPE, never needed a PE license to do the job. (Mather 329; Gonzalez 1889.) A PE license is required by law in order to stamp an engineering plan. (Mather 330.) There was nothing that Batko did as a TPE that required a PE license. Batko never stamped a plan. (Mather 329; Gonzalez 1887.) Similarly, there was nothing that Fontaine, the successor to Batko, did as a TPE that required a PE license. (Mather 332.)
  86. In the spring of 1997, another Early Retirement Incentive Program ("ERIP") was announced for all state employees, with a closing date of July 31, 1997. (Byrnes 2091-95.)
  87. Approximately one-third of all TPE positions at DOT were left vacant as a result of the ERIP, including all four TPE positions in the Design Services Division. (Byrnes 2092 - 95; Obara 2978-80.)
  88. In both the Utilities Unit and the Contract Administration Unit of the Design Services Division, only one TSE remained in each unit after the 1997 ERIP. (Raiola 1783; Obara 2985-86.)
  89. After the 1997 ERIP, Obara appointed the sole TSE in the Utilities Unit, Robert Ritsick, to temporarily supervise the Unit on a TSHC basis. (Obara 2985-86.)
  90. After the 1997 ERIP, Obara appointed the sole TSE in the Contract Administration Unit, Robert Raiola, to supervise the Unit on a TSHC basis. (Raiola 768-69, 1783; Obara 2985-86.)
  91. In the Hydraulics and Drainage Unit, Obara met with both of the remaining TSEs to ascertain their interest in running the Unit on a temporary basis. (Obara 2984-85.) Neither TSE had a PE license. (Obara 2989-90; Levesque 1534.) Dennis Levesque expressed interest, and the other TSE informed Obara that he had no interest in the position, so Obara appointed Levesque to oversee the Hydraulics and Drainage Unit on a TSHC basis. (Obara 2984-85; Levesque 1498, 1534.)
  92. In the summer of 1997, Batko announced that he was planning to retire from his position as TPE in the Soils and Foundations Unit. (Mather 281.) After Batko left, the three TSEs in the section, Gonzalez, Mather and Fontaine, took turns performing the duties of TPE. (Mather 285-87.) Obara met with all three in a single meeting and all three expressed interest in supervising the Unit on a TSHC basis. (Gonzalez 1890; Fontaine 3836-37, 4073-74; Obara 2983-84.) In July of 1997, Obara called the three men into his office. Obara advised them that Batko was retiring, and that he was going to appoint the replacement TPE on a TSHC basis. (Mather 281.) Obara specifically inquired as to who was interested in the job. He indicated all three men were eligible for the position; all were "excellent" candidates. All three men indicated their interest. He did not make any mention of a PE license requirement at that time. (Mather 282-84.) Obara knew at this first meeting that neither Mather nor Gonzalez had a PE license. (Mather 963.) Fontaine had a PE license. (Mather 285.)
  93. At this meeting, Mather asked Obara about Colleen Kissane, another TSE, whom he thought would also be eligible for and interested in the position. Obara indicated that she would not be considered. Obara indicated that he would select one of the three for the position, and that it would be a "tough" decision. (Mather 281-82.)
  94. Prior to Obara's decision on the TSHC appointment, there were internal discussions as to whether or not to apply the PE license requirement to the TPE positions in the Soils and Foundation Unit as well as the Hydraulics and Drainage Unit. (Obara 3637.) A decision had not yet been made on the application of the PE license. (Obara 3638.)
  95. In the summer of 1997, Mather had a "very cordial conversation" with Earle Munroe, who was Engineering Administrator at the time, with no intentions at the time of accepting the ERIP. (Munroe 3443, 3446.) Munroe testified that Mather came to Munroe's office to indicate his interest in the TPE Soils position. (Munroe 3319-20, 3441-46.) At the end of the conversation, Munroe informed Mather that a PE license would be required for the position, because he knew Mather "did not have the PE and I wanted him to try and get his PE." (Munroe 3319-20, 3445-46.)
  96. On July 10, 1997, Mather wrote to the PE Licensing Board, inquiring about the status of his pending request to waive the first half of the PE examination. (R-70.)
  97. On August 27, 1997, Mather spoke with James Byrnes, the Chief Engineer. (Byrnes 2117-26; R-33; R-34.) While the two witnesses have different recollections of the meeting, both agree that at that meeting, Byrnes told Mather that the TPE Soils position would require a PE license. (Mather 294; Byrnes 2118-19, 2128; R-33; R-34.)
  98. As reflected in Byrnes' contemporaneous notes of the meeting, Mather told Byrnes that Mather thought the PE was a legitimate requirement for the position, and simply wanted six months to obtain the license. (Byrnes 2118-21, 2125-26; R-33.) It was a "unique experience" and "just incomprehensible" to Byrnes that someone would request that "a clear cut requirement for a job" be waived. (Byrnes 2121.) Byrnes encouraged Mather to get his PE license. (Byrnes 2121-22.) Byrnes declined Mather's request to replace Fontaine with Mather for the temporary service in a higher class position, and waive the PE requirement. (Byrnes 2117-28.)
  99. After the PE Board granted his long-standing request to waive the first half of the PE examination, Mather then sat for and failed the second half of the PE examination in October 1997, October 1998 and April 1999. (R-67; R-68; R-70; R-72.)
  100. Mather unsuccessfully attempted to have the second half of the PE examination waived, by inquiries both to the PE license Board and to the Governor's Office. (Syp 4511-14; R-70.)
  101. As of the date of hearing, Mather still does not have his PE license. (Mather 730-33; R-65 through R-72.)
  102. According to Obara, a meeting was held in mid-August 1997. The purpose of the meeting was to discuss the PE license issue. Although Obara could not remember who called the meeting, or who attended the meeting, he recalled that every division within the Office of Engineering was represented. The participants included, in addition to Obara, Bradley Smith, a manager, Stephen Barton, a manager, Lonergan, a manager, and Coughlin, Engineering Administrator, or their representatives. (Obara 3645-49.) The purpose of the meeting was to discuss whether the PE license requirement should be eliminated, applied to everyone, or something in the middle. (Obara 3765.) No one corroborated Obara's testimony regarding this meeting, although several of the alleged attendees were witnesses in this case. Coughlin explicitly testified that he had nothing to do with the TSHC appointment process for the TPE in the Soils and Foundations Unit. (Coughlin 2536.)
  103. According to Obara, a decision was made at the meeting to maintain the status quo as described in the memorandum he authored in 1995 for Earl Munroe’s signature. (J-15.) It was decided not to expand the PE license requirement because the people impacted by the decision would have had no notice. Knowing there would be applicants for permanent appointments in the fall, the group at the mid-August 1997 meeting felt that imposing a PE license requirement would be an unfair surprise. The fact that the TPE job classification contained a PE license reference since 1994 was not considered by the group to constitute adequate notice. (Obara 3665-67.)
  104. Although the lack of notice was used as the basis to exempt other TPE positions from the PE license requirement, Obara testified that Soils and Foundations, Hydraulics and Drainage and Bridge Design applicants had not received any notice either. (Obara 3648, 3672-73.) He could not recall if the decision was made by unanimous consent. (Obara 3649.) One main reason people were discussing the PE license requirement at all was that people with PE licenses were interested in having their license fees reimbursed. (Obara 3652, 3763.) Among the TPE positions considered for application of the license requirement were the Highway Design Unit of the State Design Division, and also the Facilities section. At the conclusion of the meeting, according to Obara, Byrnes stopped in. Byrnes did not express his opinion that the PE license requirement should be applied more broadly at this time. (Obara 3654.) Rather, Byrnes was informed as to what the group had concluded - no changes in "midstream." (Obara 3766.) According to Obara, he did not recommend that the Hydraulics and Drainage license requirement be adjusted and the group decided to apply the PE license requirement to Hydraulics and Drainage. (Obara 3655, 3663.)
  105. At the final meeting with the three TSEs in the Soils and Foundations Unit, Obara asked Mather and Gonzalez their intentions with respect to obtaining their PE licenses. (Gonzalez 1893-96.) Mather indicated he intended to pursue a PE license. (Obara 2986-88.) Gonzalez indicated that he had no interest in obtaining his PE license or the TPE Soils and Foundation position. (Gonzalez 1895-96.)
  106. Neither Mather, Gonzalez nor Fontaine met with Obara privately to petition to serve as TSHC. (Mather 879; Fontaine 3839-40; Obara 2983.)
  107. Fontaine and Obara do not socialize together, have not been to each other's homes and have not met outside the office. (Fontaine 3840, 4087.)
  108. In late August 1997, Obara called Gonzalez, Mather and Fontaine together to announce his decision regarding the TPE position in Soils and Foundations. He promoted Fontaine on a TSHC basis. Mather asked Obara why Fontaine, the most junior of the three, was selected. Obara explained that he had applied the PE license as a mandatory requirement, which meant that Fontaine was the only eligible candidate. (Mather 285-86, 1162; Obara 2988.)
  109. Fontaine's TSHC appointment to TPE was effective August 29, 1997 and he assumed the TPE duties. (Mather 286; J-8.). At the same time as Fontaine’s appointment, three other white men were appointed to TPE positions on a TSHC basis in the other three sections of Design Services under Obara: Hydraulics and Drainage (Dennis Levesque), Utilities (Robert Ritsick) and Contract Development (Robert Raiola). None of these other candidates had a PE license. (Levesque 1502; Ritsick 1735; Raiola 1779.)
  110. When Fontaine was assigned on a TSHC basis, he was instructed that he was a caretaker only, and required to perform both his job and overall supervision of the Unit. He did not have any discretion to implement new policies, and was instructed to maintain the status quo. (Fontaine 3838.)
  111. Fontaine was also told that his TSHC had no role or impact on any permanent appointment to the position. (Fontaine 3842.)
  112. After the 1997 ERIP, Commissioner James Sullivan set forth explicit instructions as to how the positions vacated by the ERIP would be filled. He required posting for all positions; interview of all eligible candidates; no credit for any time spent in TSHC when considering a candidate; and awareness of DOT's affirmative action goals. (R-36.)
  113. Mather reacted to the promotional decision in Soils and Foundations with great disappointment. (Mather 292, 734, 737; Obara 3155.) He knew that the TSHC appointment was a harbinger of the final decision. Dennis Levesque, another TSE, testified that during his 31 years of experience at the DOT he was not aware of anyone who was appointed TSHC but was not subsequently named to the permanent position. (Levesque 1528.) Similarly, Coughlin, who had worked at the DOT for 40 years testified that he could not recall anyone in the DOT who had been selected on a TSHC basis and had not been awarded the permanent position. (Coughlin 2527.) Obara also could not name others at the DOT holding a TSHC position who did not obtain the permanent position. (Obara 3526.)
  114. With regard to the permanent appointment in Soils and Foundations, Obara stated that it had not yet been determined whether a PE license would be a requirement. He indicated that he personally had the authority to make it so. (Gonzalez 1896, 1902.)
  115. The morning after Fontaine's TSHC appointment was announced, Mather met with Obara. Obara claimed that the roadblock to Mather's promotion was the Chief Engineer, James Byrnes. (Mather 293, 1162.) Obara recommended that Mather speak with Byrnes and Fred Sanders, Director of Personnel, directly. Mather spoke with both men concerning the PE license. Sanders agreed to look into the issue and reported back to Mather a few days later that "they" wanted to use the PE license requirement and that he would stand by "them." (Mather 293.) Byrnes indicated that the PE license would be required in the future. Mather responded that they were not talking about the future, they were discussing the present. Mather indicated that he was not asking at the moment for the PE license requirement to be waived. Rather, he suggested that the DOT provide the same six month grace period after obtaining the position which is provided to managers. (Byrnes 2265.)
  116. Mather filed a complaint with the commission in early September 1997. (Mather 295; Complaint.) Mather challenged the application of the PE license requirement, referred to the inconsistent treatment of successful white applicants for TPE positions, expressed his belief that he had been retaliated against and asked for relief. (Complaint.)
  117. After the TSHC appointments had been made, discussions continued to be held within the DOT as to whether the PE license requirement should be applied to either the Hydraulics and Drainage or Soils and Foundations TPE positions. (Obara 3639-41.)
  118. In November 1997, the DOT issued a job posting for the four "permanent" TPE positions in the Design Services Division, including the Soils and Foundations position sought by Mather. All interested applicants were directed to submit written applications and service ratings for two years, and to make arrangements for interviews. (J-9.)
  119. The job posting explicitly made the PE license a prerequisite to the position in Soils and Foundations. (Mather 321-22; J-9.) This was the first notice ever issued to employees announcing that a PE license would be required.4
  120. None of the other job postings for the permanent TPE positions in Design Services (Hydraulics and Drainage, Utilities and Contracts) included a PE license requirement. (J-9.) In deciding not to include a PE license requirement in the permanent Hydraulics and Drainage posting, Obara consulted with Coughlin. (Obara 3663; Coughlin 2575.) When it came time to post the Hydraulics and Drainage permanent position, Obara was concerned that Levesque, a white male TSE, would not be eligible because he did not have a PE license, although he had substantial hydraulics experience. Normally, engineers are promoted from within the Unit. (Obara 3681.) Levesque was the only applicant from within the Hydraulics and Drainage Unit. Coughlin testified that the reason the PE license requirement was not imposed on the Hydraulics and Drainage position was that "we had no way of knowing who might be outside the Hydraulics unit that might meet our needs and might have a license." (Coughlin 2575.) Coughlin indicated that he had discussed the issue with Byrnes, then admitted Byrnes had little to do with the decision. In fact, Byrnes testified that he was not involved at all in the decision to "waive" the license requirement. (Byrnes 2206-8, 2213, 2243.) Coughlin also testified that they would take a look at all the applicants after the job was posted. If a person who they liked the most had a license, they could pick him. If he were not "the person for the job," then "we would have to make a determination as to what we would do next." (Coughlin 2600.) None of the other already selected TSHC appointees, all of whom were white, had a PE license.
  121. Obara advised both Mather and Gonzalez that they could apply and be interviewed for the permanent appointment to the Soils and Foundations position, but the successful candidate would still have to have the PE license at the time of appointment. (Obara 3157-59, 3622; Gonzalez 1906-07.)
  122. Obara informed Mather that if he applied for the TPE Soils and Foundations position, he would be considered, and that before a permanent appointment could be made, Mather would need a PE license. (Obara 3157-59; R-38.)
  123. Fifteen DOT employees applied for the four TPE positions in the Design Services Division. Six of the fifteen employees applied for the TPE Soils and Foundations position. Only half of the six applicants for the vacant TPE Soils and Foundations position had PE licenses. (Obara 3098-99.) The panel deliberately evaluated the candidates without consideration of who did or did not have a PE license. (Obara 3098-3100, 3106-07; R-19A; R-19B.)
  124. The interview panel did not exclude any applicants and all six applicants were interviewed for the TPE Soils position. (Obara 3018, 3731, 3752-58.)
  125. Mather filed a formal application for the permanent TPE position in the Soils and Foundations Unit. (J-7.) Included in his application package were his two most recent personnel service ratings, which were "excellent." After consulting with the staff of the DOT’s affirmative action office Mather applied for the position even though he did not have a PE license. (Mather 1165.) Gonzalez, the most senior TSE in the Soils and Foundations Unit, did not submit an application. Therefore, Mather was the most senior person from the Soils and Foundations Unit of all the applicants for the Soils and Foundations TPE position. (Mather 761.)
  126. In December 1997, Obara coordinated and conducted interviews for the permanent Soils and Foundations position. Obara selected the interviewers and personally structured the interview process. (Coughlin 2603; Obara 3023.) Only Obara asked any questions during the interview. (Mather 961.) The other interviewers, Stephen Barton, Manager of Consultant Design Division, and Bradley Smith, Manager of State Design Division, (both white) were silent throughout. (Mather 358.) The panel selected Fontaine over Mather, who came in second. (J-10.) Obara summarized the results of the interview, writing that Mather was "substantially" lower than Fontaine in "technical skills, supervisory skills, and oral communication." (R-20.)
  127. The interview itself counted for 65 of the 100 total points in evaluating the candidates. (Obara 3531; R-5.) The candidate's prior engineering career counted for only 25 points. (Obara 3531.) The weighted criteria used by Obara contrasted dramatically to the criteria used by the DOT in 1995 to evaluate TPE candidates. In 1995, the DOT assigned 90 points for experience out of a total possible score of 110. (R-52.) Despite the fact that Mather's career was substantially longer than Fontaine's, his engineering background more diverse than Fontaine's, his supervisory experience more extensive, and his tenure in the Soils and Foundations Unit longer than Fontaine's, the interviewers scored their experience as nearly identical.
  128. Each applicant for the four vacant TPE positions in the Design Services Division was asked the same set list of questions. (Obara 3018-24; Smith 4215 - 26; Barton 4124-25, 4128; R-5.) Because some applicants applied for more than one position, they were provided one interview for up to four positions. (Obara 3024-27; Smith 4286-87; Barton 4125.)
  129. The interview questions included ones of general applicability, such as background and DOT policy, and then specific questions for the four separate TPE positions in Design Services. (Obara 3061-64; R-5.)
  130. No applicant had access to the questions prior to his interview. (Barton 4126; Fontaine 3847.)
  131. No applicant was given any credit for service in a position on a TSHC basis. (Obara 2990-91; Fontaine 3842, 3847-49; R-36.)
  132. The interview panel discussed the questions among themselves before the interviews started, but did not discuss any of the candidates. (Barton 4182-84.)
  133. The three interviewers attended each interview. (Obara 3064-65.) Each interviewer on the panel gave a numerical rating for the applicant's responses to each question, either during the interview itself, or immediately thereafter. (Smith 4222, 4234-39, 4394, 4245; Barton 4128-32, 4134-37; Obara 3047-49.)
  134. Each interviewer independently evaluated the applications, and independently ranked the applicants. (Smith 4217, 4234-39, 4394, 4245; Barton 4128-32, 4134-37, 4184; Obara 3047-49, 3053-54.) Obara and Smith used a 1-10 scoring range and Barton used a 1-5 scoring range. (R-19A; R-19B; R-21 to R-23.) The panel did not compare notes before rating the applicants' answers. (Barton 4184.)
  135. The panel ranked the applicants for the four vacant TPE positions without consideration as to whether or not the particular applicant had a PE license. (Obara 3098-3100, 3102; Smith 4238, 4249-54, 4329, 4394; Barton 4141-42, 4147.)
  136. All applicants applying for a single TPE position, including Fontaine, were allotted forty-five minutes to interview. Applicants for up to four different TPE positions were allotted 60 minutes. Mather answered 25 substantive engineering and supervisory questions during his interview. (Mather 970; R-5.) In contrast, Fontaine answered 11 questions during his interview. (Mather 975.)
  137. Immediately before the interview began, Obara instructed Mather that, because he was being interviewed for four positions, he should keep all of his answers short. (Mather 356, 968; Obara 3079.) Mather did so. (Mather 357.) A total of six candidates applied for the Soils and Foundations TPE position. (J-15.) None of the interviewees or interviewers corroborated Obara's claim that he instructed the other applicants similarly.
  138. Much of the early portion of Mather's interview, about 15-20 minutes, was taken up by a discussion of Mather's resume, including his engineering and educational experience in England, in Sri Lanka and at the DOT. (Mather 359, 963; Obara 3072, 3531.) Obara prepared ahead of time for the discussion of Mather's prior career, making detailed notes on two separate occasions. (Obara 3533; R-20.) He did not prepare, make notes or conduct such a background review for any other applicant. (Obara 3032, 3532-33.)
  139. Obara had worked with Mather since 1992. (Mather 360.) At no time during the five years leading up to the 1997 denial of promotion in this case had Obara indicated to Mather that he had a problem orally expressing himself. (Mather 360-61.) While working as a TSE, or as the chair or member on many committees, Mather never had a problem with verbal communication. (Gonzalez 1958.) No evidence was introduced of any job performance problem relating to verbal communication skills during Mather's preceding 15 years at the DOT. Coughlin confirmed that Mather had no verbal communication problems. (Coughlin 2595.) Furthermore, the contemporaneous interview notes of interviewers do not include any comments with regard to specific oral communication problems. Mather was evaluated negatively with regard to his verbal communication skills. Obara, in his brief summary submitted to the affirmative action office, highlighted Mather's poor verbal skills, but no other candidate’s. (Obara 3612.)
  140. Both technically "ineligible" people and "eligible" candidates were included in the TPE interview process conducted by Obara in 1997. The interviewing of candidates deemed ineligible by the job posting was contrary to the DOT practice. (Obara 3622-33.)
  141. Three people with a PE license and three people without a license applied for the Soils and Foundations TPE position. (Mather 840-41, 1189.) Although the Commissioner of the DOT had issued a memorandum requiring that all "eligible" candidates be interviewed, Obara chose not to eliminate any of the Soils applicants on eligibility grounds, even though only half the applicants had a license. (Obara 2994; R-36; R-37.) Although Obara claimed at trial that he intended to wait for the results of Mather's exam results (and possibly others’), which were expected to arrive in Spring 1998, he, in fact, attempted to fill the position in early January 1998. (Mather 968; Obara 2997, 3582.)
  142. Obara testified that the interviews for the Soils and Foundations position were conducted without regard to whether a candidate had a PE license. (Obara 3633.) He explained this was done to help avoid a battle with the DOT’s affirmative action office as to how much weight to give the PE license. (Obara 3635.)
  143. Certain documents created by Obara had never been created for any other interviews. (Obara 3593-94.) The interview records prepared by Obara were significantly more detailed and comprehensive than normal for the DOT. As Obara admitted, he "went crazy" to make sure everything was "correct" because he didn't want there to be "any dispute." (Obara 3602.)
  144. For the TPE Soils and Foundation position, all three interviewers agreed that Fontaine was the best candidate for the position, with or without a PE license. (Obara 3102; Smith 4226, 4238, 4329, 4249-54, 4394; Barton 4137, 4141-42, 4177.)
  145. Leo Fontaine had and has a valid Connecticut PE license. (Fontaine 3800-01.)
  146. All three interviewers ranked Mather second for the TPE Soils and Foundations position. (Obara 3102-05; Smith 4250; R-22; R-19A; R-19B.)
  147. All three agreed Mather looked strong on paper, but were surprised by Mather's performance during the interview. (Barton 4137-41; Smith 4223-25; Obara 3065-92.) In the words of one interviewer, he expected Mather to know "substantially more than he displayed in his own area of expertise." (Smith 4224-25.)
  148. In early January 1998, following completion of the interviews, Obara promptly announced his selection of Fontaine as the permanent appointment for TPE in the Soils and Foundations Unit. (Mather 968.) Obara immediately offered the position to Fontaine, who accepted it. (Obara 2997, 3582; R-19A.) Obara informed Mather that he had come in second. (Mather 363; Obara 2997.) It was Obara's intention that the permanent appointments become effective as soon as possible. (Obara 3583.)
  149. Mather was surprised as to the sudden announcement, and asked Obara whether he had followed the proper procedures of review by the Affirmative Action and Personnel Departments. The selections had not been properly cleared. (Mather 365.) The next day, Obara issued a memorandum indicating that the final decision as to the permanent appointment for the TPE in Soils and Foundations would be announced later. Nine months later, in September 1998, Fontaine was appointed to the permanent position of TPE. (Mather 378; Answer; Transcript 39.)
  150. In January 1998, Levesque was informed that he was the choice for the permanent TPE position in Hydraulics and Drainage. (Mather 1186-87; J-10.) Levesque, although he did not have a PE license, was the first choice of the interview panel. Candidates holding PE licenses who applied for the Hydraulics and Drainage TPE position were rejected. Despite the rationale asserted by Obara and Coughlin - not imposing the PE license requirement, seeing who applied, and then deciding whom to pick, Obara and the other interviewers confirmed Levesque as the final choice. (Coughlin 2575.) Because of Mather's intervention concerning the appropriate review, however, that appointment, too, was delayed.
  151. In March 1998, Gonzalez filed a complaint with the commission also challenging the selection of Fontaine by Obara and others as discriminatory. (Gonzalez 1909, 1953.) His claims were the same as those Mather had filed six months earlier: that the PE license requirement had been imposed discriminatorily and minority applicants for TPE positions were the subjects of disparate treatment. The DOT responded in May 1998. (Gonzalez 1953.)
  152. Later in June 1998, Obara met with the head of Personnel and the staff of the Affirmative Action Office to discuss how to handle the TPE promotions. (Obara 3135, 3675, 3686, 3690.) The meeting did not involve Obara’s supervisors, Coughlin and Byrnes. (Obara 3688.) According to Obara, the final decision whether to impose the PE requirement had not yet been made. (Obara 3674.) By this time, Obara had already filed two written statements defending against the Mather complaint. (Obara 3690.) No one had filed a challenge to the Hydraulics and Drainage decision. (Obara 3680.) They discussed both the Soils and Foundations and Hydraulics and Drainage appointments at the meeting. (Obara 3674, 3692.)
  153. Obara was asked specifically "whether or not the PE license requirement should be imposed for Soils as well as for Hydraulics and Drainage." (Obara 3692.) Obara explained that he wanted the PE license requirement for Soils and Foundations, but he also wanted to appoint Levesque, who did not have a PE license for Hydraulics and Drainage. Obara indicated he wanted to implement the interview panel's choice. (Obara 3694.) They advised him he needed to be more "consistent." They told him "you can't have it both ways - You can't waive the PE here and require it there." (Obara 3135.) No evidence was introduced indicating that the personnel or the affirmative action staff advised him to maintain the PE license requirement for the Soils and Foundations TPE position.
  154. Sanders, the Personnel Director, declared that Obara needed to "Fish or cut bait." Sanders then asked, "Is the PE required or not?" (Obara 3692; 3697.) Obara responded in the affirmative. (Obara 3692.) The testimony continued at trial:

    ATTORNEY: So then you made a decision?
    OBARA: Yes I did.
    ATTORNEY: And your decision was to change one of your decisions?
    OBARA: That's correct. (Obara 3697.)

  155. On July 6, 1998, Obara selected Michael Maysada, who holds a PE license, to be appointed the TPE in the Hydraulics and Drainage Unit. (Obara 3136; J-11.) He did so despite the fact that the interview panel had identified a "large gap" between Levesque's qualifications and those of Maysada. (Obara 3109, 3746.) Maysada, who is white, was the panel’s second choice for the TPE position in Hydraulics and Drainage. (Mather 379; Obara 3699.)
  156. Since 1995, Mather served as the Chairperson of the DOT’s internal AA Committee. (Mather 852.) The AA Committee annually reviews the affirmative action performance of the DOT. (Mather 465-470.) In his role as Chairperson, the complainant regularly criticized the DOT's lack of minority advancement and promotion. The respondent repeatedly failed to make progress on appointing minorities to management and other high ranking positions, and in particular to the TPE positions. (C-40; C-41; C-42; C-43.) In January 1997, as Chairperson, Mather issued a memorandum critical of the DOT's affirmative action performance. (Mather 469-70; C-7.) In an informal role, the complainant also referred DOT employees to the Commission to file complaints. (Mather 487.)
  157. Mather testified that after he filed his complaint in 1997, Obara attempted to reduce Mather's duties. The 1997 complaint challenged the DOT's justification for applying the PE license. The respondent claimed that a TPE’s PE license was necessary to enable engineers to sign plans and reports. Mather pointed out that he had been signing documents regularly in his role as TSE, even though he did not have a PE license. Obara tried to stop Mather from signing such documents in order to eliminate the obvious inconsistency. Mather challenged Obara's decision prohibiting him from signing plans and reports and the decision was immediately reversed. (Mather 1203-05.)
  158. Coughlin recently became aware that Mather is the Chairman of the Affirmative Action Advisory Committee. (Coughlin 2612-13.) Coughlin has heard of the Committee but does not know what it does, and has never seen any advisories or recommendations from the Committee. (Coughlin 2612-13.) Coughlin had no knowledge of Mather performing any other role with respect to Affirmative Action at DOT. (Coughlin 2613.)
  159. Obara did not know either Mather or Fontaine before 1992. Obara had a vague understanding that the Affirmative Action Advisory Committee advised the Commissioner, and at some point was told Mather was head of the AA Committee. Obara had never seen any of the AA Committee's recommendations, and only had a general sense for their proposals. (Obara 2974-78.)
  160. In 1992, Obara deferred to Batko's judgment as to who should be promoted to TSE, as he did not know any of the candidates, including Fontaine, Gonzalez and Mather. (Obara 2932-38.)
  161. Coughlin did not know Mather had filed a CHRO complaint in 1992. (Coughlin 2544-45.)
  162. The complainant, a member of the P-4 Bargaining Unit, earned a salary commensurate with the amounts in the contracts negotiated by his union. This salary was increased at specified times in accordance with the contract. (C-11.)
  163. The TPE of Soils and Foundations is also a member of the P-4 Bargaining Unit and earns a salary negotiated by his union, specified in the contract. (C-11.)
  164. The complainant earns a specified number of vacation and personal days per year and once these are exhausted he is considered to be on unpaid leave for each day he does not go to work. (C-11.)

IV.    Legal Standards and Discussion

A.    Discrimination

Under Title VII, "it shall be an unlawful employment practice for an employer: (1) to fail or refuse to hire or 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 . . . ." 42 U.S.C. § 2000e-2(a). The Connecticut statute similarly makes it a discriminatory employment practice for an employer ". . . to refuse to hire or employ or bar or 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 . . . ." General Statutes § 46a-60(a)(1). The United States Supreme Court has stated "[t]he term ‘national origin’ on its face refers to the country where a person was born, or more broadly, the country from which his or her ancestors came." Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88, 94 S.Ct. 334, 336 (1973). The Equal Employment Opportunity Commission (EEOC) further provides in its guidelines that national origin discrimination includes, but is not limited to, "the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1 (2000).

Although the federal and state statutes differ, Connecticut courts look to the federal standards in interpreting our anti-discrimination statutes. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 4, 53 (1982). "Although we are not bound by federal interpretation of Title VII provisions, [w]e have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute." State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989), citing, Department of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 489 (1986).

To prevail in a discrimination claim, a complaining party must prove discriminatory intent by direct or circumstantial evidence. In most cases, a complainant must rely on circumstantial evidence and prove discrimination indirectly by inference. In the present case, the claim of discrimination based on race and national origin must rely heavily on circumstantial evidence because there was no overt or direct evidence described as motivating the respondent’s actions. To prove disparate treatment, "liability depends on whether the protected trait actually motivated the employer’s decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (emphasis in original).

The traditional allocation of proof for discrimination cases was first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981), St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993) and most recently in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). The typical requirements in the burden-shifting analysis described in this line of cases are as follows: (1) if the complainant establishes a prima facie case of discrimination, (2) the employer must articulate, but not prove, a legitimate, non-discriminatory reason for its actions and (3) the complainant must then prove that the employer’s reason is in fact a pretext for discrimination. McDonnell Douglas, supra. The burden of persuasion remains at all times with the complainant. The Connecticut Supreme Court has adopted this burden of proof and production for cases under the Connecticut Fair Employment Practices Act ("CFEPA"). See Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 107-08 (1996).

1.    Prima Facie Case

The U.S. Supreme Court outlined the traditional requirements for proving a prima facie case in McDonnell Douglas,5 supra. Under this basic scheme, a complainant must establish that (1) he belongs to a protected class; (2) he was qualified for the position; (3) that, despite his qualifications, he applied for a position and was not selected; and (4) the position remained open and the employer continued to seek other applicants, or it was filled by an individual not of the complainant’s protected class(es). Id.

Proving a prima facie case is a de minimis burden. McClee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). In the matter at hand, there is no dispute that the complainant is a member of a protected group since his race is classified as Asian and his country of origin is Sri Lanka. He shares at least the physical and linguistic characteristics of the Sri Lanka national origin group as required by the EEOC guidelines in that his skin is a dark brown and he speaks with the accent similar to the English spoken in India. 29 C.F.R. § 1606.1 (2000). Similarly, there is no dispute that the complainant applied to be promoted to the position of TPE, on both the "temporary6" and "permanent" bases, but was not promoted. Instead, a man who is not of the complainant’s protected classes, Leo Fontaine (a white individual from the United States) was selected for promotion in both instances. The sole dispute is whether the complainant was qualified for the promotion.

The respondent argues that only candidates with a PE license are qualified to hold the TPE position in its Soils and Foundation Unit. It further contends that since the complainant did not hold such a license he was not qualified and the case should be dismissed in its entirety. This dispute, however, is exactly the crux of the matter. Contrary to the cases cited by the respondent,7 the complainant argues that the PE license requirement itself is applied inconsistently as a job requirement impermissibly based on applicants’ races or national origins. The complainant argues an objective review of his educational and work history as provided in his resume and personnel evaluations reveals that he has the requisite amount of supervisory and technical experience to warrant consideration for the position of TPE, the PE license notwithstanding.

Based on this analysis, I find that the complainant met his burden of proving a prima facie case of discrimination.

2. Legitimate, Non-Discriminatory Reason

Once a prima facie case is proven, the burden shifts to the respondent to articulate a legitimate, non-discriminatory reason why the complainant was not promoted. This burden is one of production, not persuasion, and "can involve no credibility assessment." St. Mary’s Honor Center at 509.

The respondent provides two reasons for its employment decision. As stated above, it argues that a PE license is required for holding the TPE position and since the Complainant did not possess said license, he was not qualified to be promoted to TPE. In fact, the respondent points out that the complainant failed the PE examination more than once and was unsuccessful at having certain portions of the PE examination waived based on his experience. Additionally, the respondent asserts that even without taking the PE license into consideration, an exemplary three-member interview panel determined that Leo Fontaine was the best candidate to be promoted to the TPE and that the complainant was a distant second.

I find that both of these reasons are legitimate and non-discriminatory. "It is not the function of a fact-finder to second-guess business decisions or to question a[n agency’s] means to achieve a legitimate business goal." Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). Accordingly, the respondent has met its burden of production.

3.    Pretext

After the respondent articulates a legitimate, non-discriminatory reason, the burden shifts back to the complainant who retains "the ultimate burden of persuading the trier of fact that the [respondent] intentionally discriminated against [him] . . . ." Burdine, 450 U.S. at 253. The complainant must prove his burden by a preponderance of the evidence and show that "the employer’s proffered explanation[s are] unworthy of credence." Id. at 256. A mere

rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason . . . is correct.’ In other words, ‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.’ In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.

Reeves, 530 U.S. at 145. (Emphasis in original; internal citations omitted.) Both reasons offered by the respondent must thus be analyzed under this standard.

a. PE License

At hearing, there was a great deal of testimony concerning whether the PE license had traditionally been required for the "functional head" of the respondent’s Soils and Foundations Unit. Various witnesses agreed that the requirements have differed over the years, depending on the job specification in effect and whether the position was management level or part of a bargaining unit. Many employees, past and present, believe that a PE requirement should be expanded to encompass more positions, including those positions held by employees with a PE license who are not currently reimbursed for the annual fees.8 At the time of the promotional decision, PE license requirements appeared to be murky; it is disputed whether they were required for all the TPE positions listed in the 1995 Munroe memo (J-15). It is surprising to find this level of ambiguity in a state agency because of the standardized administrative regulations regarding all personnel matters. The job classification at issue, the 1994 TPE, ambiguously allows the "appointing authority" to require that certain individuals hold specific professional licenses.9 This non-mandatory requirement affords the respondent a great deal of flexibility in its application. The application of the requirement to the case of the complainant’s failure to be promoted matters most.

The respondent argues that whoever held the functional position of "head of" the Soils and Foundations Unit was required to possess a PE license from at least 1962 to 1991. First, the historical precedent is irrelevant to the determination of whether the PE license was legally imposed in the context of the 1997/8 promotional opportunities at issue in this matter. Second, as stated earlier, there has been a great deal of confusion over the years and during changes in administration and an ongoing debate as to which positions should require a PE license.

What is obvious, however, is that out of all the individuals involved in the filling of the TPE positions in 1997/8 timeframe, Joseph Obara, Manager of the Design Services Division, had the most knowledge concerning the relationship of the PE license to the TPE positions. Obara authored the memo for Munroe’s signature in 1995 ostensibly summarizing the status quo of PE license requirements at that time. The only research he completed in drafting this memo was direct inquiry of Theodore Batko, the most recent "functional head" of the Soils and Foundations Unit. Similarly, Obara was the person whom Michele Pancallo10 called to research the question concerning the open-ended nature of the application of the PE license requirement in the newly-issued TPE job classification. This question was posed by the complainant in a formal inquiry to Personnel in November 1994. Obara was also the final arbiter of whether the PE license would be applied to the TPE position in the respondent’s Soils and Foundations Unit in 1998.

During the time period when Obara was trying to fill the four vacant TPE positions in the Design Services Division11, I find that he was the "appointing authority" referred to in the TPE job specification. At first, Obara decided to apply the PE license requirement to the Soils and Foundations TPE position and not to the Hydraulics and Drainage TPE position. This decision and application is evidenced by Obara’s selection of Fontaine and Dennis Levesque as TPEs on a TSHC basis in Soils and Foundations and Hydraulics and Drainage, respectively. This appointment directly contradicted the memo he authored under Munroe’s signature because Levesque did not possess a PE license and the Hydraulics and Drainage TPE required one in the Munroe memo.

When it was brought to Obara’s attention that his "permanent" promotional selections violated the 1995 Munroe memo, the personnel director suggested Obara be more consistent in the application of the memo, but did not instruct him on how to decide.12 Obara was told that he could not "have it both ways," meaning he could not impose the PE license requirement on the Soils and Foundation TPE position and not on the Hydraulics and Drainage TPE position. It was only at that point that Obara conceded and required the PE license for all the TPE positions in the Design Services Division specified in the 1995 Munroe memo. Accordingly, he replaced the interview-panel-selected candidate in the Hydraulics and Drainage Unit without a PE license, Levesque, with the panel’s distant second choice who held a PE license, Mike Maysada.

These actions indicate that Obara applied the PE license requirement in a way that had a discriminatory impact on the complainant. I do not comment in this decision on whether Obara had any animus towards the complainant specifically, or members of his or other protected classes generally, but do find his actions to be highly suspicious. Obara, a managerial level employee, was at the center of the key decisions involved in the complainant’s promotion and had to be instructed by the personnel director that his initial decision concerning the PE license for TPEs in his Division would not be allowed as inconsistent.

b.    Interview Process

Besides determining the PE license requirement application, Obara was also responsible for designing an interview process and convening an interview panel to try to fill the four open TPE positions within his division. The complainant contends that the respondent developed an examination system over the years which affords its supervisors great flexibility in hiring and promotional decisions. Since the early 1990s, the trend at the DOT has been for standardized merit evaluations consisting of a written examination asking substantive technical questions to be replaced with more reliance on resumes, followed by personal interviews.

This anecdotal description is borne out by the complainant’s own experience. When he first applied for the TPE position in late 1994, he competed in a Merit Promotional Examination13 where he received 90 points and Fontaine earned 85 points. In 1997, however, the job posting for the promotional opportunity to TPE only required him to submit his resume and call Obara’s secretary to schedule an interview. While this institutional change, in and of itself, is not inherently discriminatory, the greater latitude granted to the decision-makers increases the opportunity and potential for abuse.

Obara, as manager of the Design Services Division, was the person to whom the TPE of the Soils and Foundations Unit, as well as the TPEs of the other three units within his division would report. On its face, his interview process cannot be faulted; the same three interviewers14 conducted the interviews and all candidates were asked the same standard questions. The process, however, appears to have been stacked against the complainant from the outset.

Out of the fifteen candidates applying for the four open TPE positions, Obara made notes in advance of the interview only with regards to the complainant. He also spent a significant amount of time, fifteen to twenty minutes, discussing the complainant’s foreign education and work experience at the beginning of his interview. The complainant was the only candidate for a TPE position with foreign credentials and work history. Singling out a candidate’s foreign education or experience can be a form of national origin discrimination. 29 C.F.R. § 1606.6(b) (2000)15. Also, at the time of the interview process, the complainant had been working for Obara for a number of years. It is curious that at this interview Obara suddenly wanted to understand the work the complainant completed fifteen years earlier, especially, when Obara designed the interviews to be of a limited duration.

Similarly, while on the surface it seems equal that all candidates for one TPE position were slotted for forty-five minutes and candidates for two, three or four TPE positions were allocated sixty minutes, this structure caused the complainant to be treated differently. Since the complainant’s resume was discussed for approximately 1/4 to 1/3 of the allocated interview time at the outset of the interview, it unfairly cut into the complainant’s remaining time for answering substantive questions. Furthermore, Obara instructed the complainant to keep his answers "short" before the interview began. The rationale for this admonition and whether a similar warning was given to other candidates is unclear, but the complainant followed Obara’s directive and knew that he had a limited amount of time for the interview and many topics to cover. He also knew that after the lengthy questioning on his early educational and work experiences abroad that his time was shortened even further. Accordingly, when asked an introductory background question about the role of the Soils and Foundations Unit, the complainant gave a succinct, direct answer. Since he was not asked to elaborate, he did not flesh out the details, details which he surely knew, as evidenced by his testimony at hearing.

In reviewing the interview summary reports I find it truly remarkable that the complainant is the only candidate out of any of the fifteen applicants for TPE positions in the pool whose "oral skills" were mentioned, and in the negative. Once again, singling out of an individual’s verbal communication skills triggers the possibility of national origin discrimination, especially when the individual has a foreign accent.16

Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person’s national origin that caused the employment or promotion problem, but the candidate’s inability to measure up to the communications skills demanded by the job.

Fragante v. City and County of Honolulu, 888 F.2d 591 (9th Cir. 1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811 (1990). This is not to say that an employer may never base a business decision on an individual’s accent, but the decision must be "an honest assessment of the oral communication skills of a candidate for a job when such skills are reasonably related to job performance." Id.

In the present case, while the complainant clearly has a foreign accent, there is no mention in any of his personnel records of the difficulty anyone had understanding him at any point in his career at the respondent. Having heard his testimony at trial, I find that his accent, while noticeable, clearly does not impede his ability to make himself understood and therefore is not a legitimate reason on which to make an adverse employment decision. See Carino v. University of Oklahoma, 750 F.2d 815, 819 (10th Cir. 1984) (Filipino dental laboratory supervisor improperly demoted based on his "noticeable" accent even though it did not affect his ability to supervise); Berke v. Ohio Department of Public Welfare, 628 F.2d 980, 981 (6th Cir. 1980) (plaintiff was improperly denied two positions because, her "pronounced" Polish accent notwithstanding, her command of English was "well above that of the average adult American"); and Xieng v. Peoples National Bank of Washington, 63 Wash.App. 572, 576, 821 P.2d 520, 522 (1991), aff’d, 120 Wash.2d 512, 844 P.2d 389 (1993) (employer’s failure to promote plaintiff was discrimination based on national origin even though employer noted that plaintiff’s English "communication skills were an area for future improvement . . . but did not suggest [his] Cambodian accent interfered materially with his job performance). But see Mejia v. New York Sheraton Hotel, 459 F.Supp. 375, 377 (S.D.N.Y. 1978) (Dominican housekeeper not discriminated against when denied promotion to front desk due to her inability to communicate "clearly or coherently" in English); Meng v. Ipanema Shoe Corp., 73 F.Supp.2d 392, 399 (S.D.N.Y. 1999) (since Chinese plaintiff’s job functions included communicating with customers, the employer permissibly terminated her due to her communication problems). The mention of the complainant’s poor "oral skills" is further evidence of the pretextual nature of the respondent’s reason for not promoting the complainant.

It is also problematic that Obara failed to follow all appropriate steps in the interview and appointment process in his desire to promote Fontaine, not of the complainant’s protected class(es), to the TPE position in the Soils and Foundations Unit. The initial announcement of Fontaine’s promotion was made prior to review of the interview report by the offices of personnel and affirmative action to check for conformance with affirmative action and other requirements. Obara’s failure to meet this standard either emphasizes his lack of familiarity with the process of filling a vacancy or his disregard and undervaluing of the importance of such reviews. The only time Obara evidenced a thorough understanding of the state personnel rules was when he created the comprehensive "paper trail" of documents substantiating his decision to promote Fontaine over the complainant.

Once again, it is odd that Obara created explanatory documents in advance of a challenge to his selection of Fontaine. Maybe Obara sensed that he would have to prove why he chose the candidate he did; maybe it was because the complainant challenged Obara’s promotional decision in 1992 and Obara knew that the complainant was not afraid of using the legal system. Perhaps, however, Obara had a more sinister motive and knew that he was not selecting the best candidate and needed to "document" reasons that would withstand a challenge or review. Whatever the reason, Obara clearly treated the complainant differently and the respondent is responsible for his actions.

As a society, we may be more comfortable working with people who are more familiar to us; however, it is against the law to choose an employee on this basis. The inference I must draw from the sum of Obara’s actions and the totality of the circumstances surrounding the promotion process is that the interview was used as a mechanism to not select the complainant.

Based on the above analysis, I find that both reasons given by the respondent were pretextual and masked discriminatory intent to not promote the complainant based on his race and national origin.

B.    Retaliation - Prima Facie Case

Under Title VII, "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . . ." 42 U.S.C. § 2000e-3(a). "The protection afforded by Title VII against retaliation . . . is not limited to individuals who have filed formal complaints, but may also extend to informal protests." Graham v. Texasgulf, Inc., 662 F.Supp. 1451 (D.Conn. 1987), aff’d, 842 F.2d 1287 (2d Cir. 1988). Similarly, under CFEPA, it is a discriminatory practice for an employer "to discharge, expel or otherwise discriminate against any person because he has opposed any discriminatory employment practice or because he has filed a complaint . . . ." General Statutes § 46a-60(a)(4). The same burden-shifting paradigm as described in McDonnell Douglas and its progeny also applies in cases of retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998).

The requirements of a prima facie case, however, are somewhat different. In order to prove a prima facie case of retaliation, the complainant must show "[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). See also Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d Cir. 1996); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991).

  1. Participation in Protected Activity

The complainant submits that he engaged in an activity protected under both the state and federal retaliation statutes when he filed an Affidavit of Illegal Discriminatory Practice ("1992 complaint") with the commission on September 25, 1992 for the respondent’s alleged discriminatory failure to promote him to the position of TSE. Certainly, as a participant in the resolution of the 1992 complaint17, the respondent, at least through Obara, knew of the complainant’s protected activity.

The complainant also cites his work as volunteer Chairperson of the AA Committee since 1995 as a protected activity. In this capacity, the complainant often counseled minority employees on their legal rights and the affirmative action process. Under his leadership, the AA Committee issued a report in January of 1997 to the Commissioner of the Department of Transportation highly critical of the respondent’s failure to meet its goals in hiring and promoting women and minorities.18 Based on the testimony of several of the respondent’s employees, a few of them were at least "vaguely aware" of the complainant’s participation on the AA Committee. The Commissioner certainly was aware of the 1997 report, as he was the named recipient. These activities are therefore protected from retaliation under state and federal law.

    2.    Employment Action Disadvantaging Complainant

The complainant suggests that in retaliation for these activities he received an unjustified service rating for sick leave usage. Once he challenged the rating, however, the allegation was proved to be false, and was corrected. The complainant also contends that he was assigned small, insignificant and less challenging jobs with less visibility, less recognition of his experience and training from 1992 to 1997. This characterization reflects the complainant’s highly subjective view, however, and the list of job assignments reveals that all three TSEs in the Soils and Foundations Unit were assigned the same mix of projects. Additionally during this time period, the complainant alleged he was not provided the same training opportunities as Fontaine. Specifically, he claims he was not allowed to go to courses most relevant to his career advancement. Once again, a closer review of the training records of the complainant and the successful Fontaine demonstrates that they both had roughly the same course opportunities. Furthermore, he alleges that his failure to be promoted to TPE in 1997/98 was an act of retaliation for either or both of his protected activities. This allegation clearly meets the standard of an adverse employment action.

    3.    Causal Connection

"As to the third element of a retaliation claim, a causal connection between plaintiff’s [protected activity] and her [adverse employment action] may be established either ‘indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by defendants.’" DuBois v. State of New York, 966 F.Supp. 144, 147 (N.D.N.Y. 1997) (Internal citations omitted; emphasis in original). The question of causal connection in this matter must be shown indirectly, as there is "no direct evidence of statements or conduct explicitly or unquestionably reflective of a retaliatory motive." Truskoski v. ESPN, Inc., 823 F.Supp. 1007, 1013 (D. Conn. 1993).

"Courts have noted that temporal proximity can give rise to a reasonable inference of a causal connection between the protected activity and the adverse employment action." Newtown v, Shell Oil Co., 52 F.Supp.2d 366, 374 (D. Conn. 1999) (one month between plaintiff’s complaint of sexual harassment and a poor performance rating established causal connection). See also Harper v. Metropolitan District Commission, 2001 WL 261872 (D.Conn.) (claim of discriminatory treatment made almost concurrent with letter of reprimand and suspension one day after responding to plaintiff’s discrimination complaint demonstrated casual connection); Quinn v. Green Tree Credit Corporation, 159 F.3d 759 (2d Cir. 1998) (plaintiff discharged less than two months after filing an internal complaint and ten days after filing complaint with state human rights agency); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (causal connection shown by, among other things, evidence of a twelve day span between initial complaint and discharge); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995) (plaintiff terminated a few weeks after mentioning that she was considering legal action); DuBois v. State of New York, 966 F.Supp. 144, 147 (N.D.N.Y. 1997) (reporting that plaintiff had broken law three months after filing an EEOC complaint is sufficient causal connection); Delgado v. Achieve Global f/k/a Learning International, Inc., 2000 WL 1861853 (Conn.Super.) (five days between plaintiff’s complaining that a negative performance rating and no raise was motivated by discrimination and termination of employment was sufficient to give rise to an inference of retaliation); Rodriguez v. Host International, Inc., 2000 WL 1995589 (Conn.Super.) (termination of employee three months after her return to work following a leave to collect workers’ compensation benefits sufficient for prima facie case of retaliation).

But see Gallo v. Eaton Corporation, 122 F.Supp.2d 293 (D.Conn. 2000) (twenty-three month gap between plaintiff’s filing of charge and notice of imminent layoff not sufficient to show causal link); Hollander v. American Cyanamid Co., 895 F.2d 80 (2d Cir. 1990) (three month separation between complaint and adverse action not enough to show causal connection); D’Agata v. Sears, Superior Court, judicial district of New Britain, Docket No. 483475 (August 11, 1999) (Robinson, J.) (termination of employee more than a year after beginning to receive workers’ compensation benefits not sufficient to show causal connection); Figgous v. Allied/Bendix Corp., 906 F.2d 360, 362 (8th Cir. 1990) (discharge two years after charges were filed was not close enough in time to infer a retaliatory motive); Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1982) (two year time lapse negated any inference of causal connection); Equal Employment Opportunity Commission v. MCI Telecommunications Corp., 820 F.Supp. 300, 310 (S.D. Texas 1993) (no causal connection where challenged conduct occurred six months before the plaintiff’s discharge); Maldonado v. Metra, 743 F.Supp. 563, 568 (N.D. Ill. 1990) (five month gap between protected activity and discharge too lengthy to establish causal connection).

The complainant in the present case failed to link the 1992 filing of the complaint or his work on the AA Committee in any recognizable way to the allegations of misuse of sick time19 or the vague accusations of the assignment of less significant engineering projects or the difference in training opportunities. Furthermore, the complainant did not prove that the distance in time between the protected activities and the alleged adverse employment actions were close enough to be actionable. The complainant filed his first commission complaint in 1992; the adverse actions of job and training assignments occurred between 1994 and 1996, at least two years later. Similarly, the AA Committee’s report was issued in January 1997 and the complainant was not chosen for the TPE promotion on a TSHC basis in September of 1997 (8 months later) and on a permanent basis in September of 1998 (20 months later), too remote in time following existing precedent.

For the reasons discussed above, the complainant failed to meet his burden of proving a prima facie case with respect to retaliation and therefore no further burden-shifting analysis need be undertaken.

V.    Damages

When a human rights referee determines that unlawful discrimination has occurred, she is authorized to award relief to make the complainant whole and place him in the position he would have been absent the respondent’s discrimination. See General Statutes § 46a-86. See also Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 145 (2d Cir. 1993), cert. denied, 510 U.S. 1164 (1994). Back pay relief is specifically authorized by statute. General Statutes § 46a-86(b). Back pay awards may include merit increases and fringe benefits. Saulpaugh, supra at 145. The complainant must be able to prove, however, rather than merely speculate, that he would have earned these benefits absent the discrimination, so as not to result in "highly speculative awards." Equal Employment Opportunity Commission v. Joint Apprenticeship Committee of the Joint Industry Board of the Electrical Industry, 186 F.3d 110, 124 (2d Cir. 1999), citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900, 104 S.Ct. 2803, 2821 (1984). In the case at hand, the complainant proved that he would have been earning specific amounts as a TPE pursuant to the union contract, had he been promoted in August of 1997. Due to the finding of liability, I order that the respondent pay the complainant back pay in the amount of the difference between his current salary and what he would have been making if he had been promoted to TPE.

Both Title VII and CFEPA clearly provide for reinstatement. 42 U.S.C. § 2000e-5(g); General Statutes § 46a-86(b). Neither statute, however, explicitly provides for an award of front pay. Nevertheless, the courts and the commission have recognized that front pay may be appropriate, especially when reinstatement is not an available remedy.

The victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is, he has a right to be restored to the position he would have attained absent the unlawful discrimination . . . . Such an order [for relief] may include retroactive and prospective monetary relief . . . . ‘Where prohibited discrimination is involved, the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future.’

Silhouette Optical Ltd. v. Commission on Human Rights and Opportunities, Superior Court at Hartford, CV-92520590, p.15-16 (January 27, 1994, Maloney, J.), citing, State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989) (Citations omitted; emphasis added.) Under federal law, the award of front pay is discretionary. See Saulpaugh v. Monroe Community Hospital, supra, at 145. "[F]ront pay is an award of future lost earnings to make a victim of discrimination whole." Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), cert.denied, 484 U.S. 1047, 108 S.Ct. 785 (1988). (Citations omitted.)

As a result of my finding of discrimination above, I order that the complainant be promoted to the next available TPE or similar position acceptable to him. Until such time as the promotion occurs, however, I order an adjustment between what the complainant currently earns as a TSE and what he would earn as a TPE absent the discrimination as front pay. The adjustment awarded to the complainant shall be the actual difference in pay according to the union contracts20 to be paid on a bi-weekly basis until such time as the complainant is promoted as described herein or retires, whichever comes first. Furthermore, I find that had the unlawful discrimination not occurred, the complainant would not have used up his available personal and vacation time nor would he have taken unpaid leave by attending hearings at the commission. I therefore order that these amounts be credited to him along with any corresponding adjustments to his health insurance, retirement or pension benefits affected by these leaves.

Awarding pre-judgment interest is also within the discretion of this tribunal. Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998). In fact, according to the Second Circuit, it is "ordinarily an abuse of discretion not to include pre-judgment interest in a back pay award." Saulpaugh v. Monroe Community Hospital, supra, at 145. (Internal citation omitted; emphasis in original.) I select ten per cent (10%) as an appropriate rate of interest in line with other courts and commission decisions. See Silhouette Optical Ltd. v. Commission on Human Rights and Opportunities, supra; Commission on Human Rights and Opportunities ex rel. Rose v. Payless Shoe Source, Inc., CHRO No. 9920353 (November 1, 1999, FitzGerald); and CHRO ex rel. Malizia v. Thames Talent, Ltd., CHRO No. 9820039 (June 30, 2000, Knishkowy). See also General Statutes § 37-3a. I also order that the interest be compounded. Saulpaugh v. Monroe Community Hospital, supra, at 145.

The complainant proved that he should have been hired as a TPE on TSHC as well as on a permanent basis. I conclude that the complaint is entitled to the following damages:

As of August 29, 1997
(date Leo Fontaine was appointed to serve as a TPE on a TSHC basis)
According to P-4 Bargaining Unit Contract, effective 7/1/96

TSE (ES 29, Step 8)             TPE (ES 32, Step 5)
Annual = $61,891.00            Annual = $63,509.00
Bi-weekly = $ 2,371.31        Bi -weekly = $ 2,433.30
Daily = $ 237.14                   Daily = $ 243.33

As of January 2, 1998
(wage increase per union contract)

TSE (ES 29, Step 8)             TPE (ES 32, Step 5)
Annual = $63,129.00            Annual = $64,780.00
Bi-weekly = $ 2,418.74        Bi -weekly = $ 2,482.00
Daily = $ 241.88                   Daily = $ 248.20

As of April 1, 1998
(wage increase per union contract)

TSE (ES 29, Step 9)             TPE (ES 32, Step 6)
Annual = $64,706.00            Annual = $66,832.00
Bi-weekly = $ 2,479.16        Bi -weekly = $ 2,560.62
Daily = $ 247.92                   Daily = $ 256.07

As of January 15, 1999
(wage increase per union contract)

TSE (ES 29, Step 9)             TPE (ES 32, Step 6)
Annual = $66,001.00            Annual = $68,169.00
Bi-weekly = $ 2,528.78        Bi -weekly = $ 2,611.84
Daily = $ 252.88                   Daily = $ 261.19

As of April 1, 1999
(wage increase per union contract)

TSE (ES 29, Step 10)           TPE (ES 32, Step 7)
Annual = $67,652.00            Annual = $70,269.00
Bi-weekly = $ 2,592.04        Bi -weekly = $ 2,692.30
Daily = $ 259.21                   Daily = $ 269.23

As of January 14, 2000
(wage increase per union contract)

TSE (ES 29, Step 10)           TPE (ES 32, Step 8)
Annual = $69,006.00            Annual = $73,468.00
Bi-weekly = $ 2,643.91        Bi -weekly = $ 2,814.87
Daily = $ 264.40                   Daily = $ 281.49

As of July 14, 2000
(wage increase per union contract)

TSE (ES 29, Step 10)           TPE (ES 32, Step 8)
Annual = $71,422.00            Annual = $76,040.00
Bi-weekly = $ 2,736.48        Bi -weekly = $ 2,913.41
Daily = $ 273.65                   Daily = $ 291.35

Difference in salary between TSE and TPE positions from 8/29/97 forward:

TPE             TSE

8/29/97 to
12/31/97: 2433.30     -    2371.31 =     61.99 (x 10 pay periods) =     619.90

1/2/98
to 3/31/98: 2482.00   -   2418.74 =      63.26 (x 7 pay periods)   =     442.82

4/1/98 to
12/31/98: 2560.62     -    2479.16 =     81.46 (x 20 pay periods) =  1,629.20

1/1/99 to
1/14/99: 2560.62       -    2479.16 =     81.46 (x 1 pay period)     =      81.46

1/15/99 to
3/31/99: 2611.84       -    2528.78 =     83.06 (x 6 pay periods)   =     498.36

4/1/99 to
12/31/99: 2692.30     -    2592.04 =   100.26 (x 19 pay periods) =  1,904.94

1/1/00 to
1/13/00: 269.23         -      259.21 =     10.02 (x 9 days)              =      90.18

1/14/00 to
7/13/00: 2692.30       -    2592.04 =   100.26 (x 14 pay periods)  =  1,403.64
                281.49       -      264.40 =     17.09 (x 5 days)              =       85.45

7/14/00 to
12/31/00: 291.35       -      273.65 =     17.70 (x 6 days)              =     106.20
              2913.41       -    2736.48 =   176.93 (x 12 pay periods) =  2,123.16

1/1/01 to
4/19/01: 291.35         -      273.65 =     17.70 (x 9 days)              =     159.30
            2913.41         -    2736.48 =   176.93 (x 7 pay periods)   =  1,238.51

         Total    =        $9,268.12

VI.    Summary and Order

The complainant proved by a preponderance of the evidence that he was unlawfully discriminated against on the basis of his race and national origin in violation of Title VII and CFEPA. He failed, however, to meet his prima facie burden with respect to his claim of retaliation.

Accordingly, the respondent shall:

  1. pay the complainant $9,268.12 as compensation for his lost salary or back pay, plus interest compounded at a rate of 10% from August 27, 1997 to the issuance date of this decision;
  2. appoint the complainant the next available TPE position or to an analogous position created in the future and acceptable to him, whichever is earlier;
  3. pay the complainant the difference between the salary of the TSE position and the TPE position as an adjustment in his bi-weekly salary ($176.93 bi-weekly or $17.70 daily under the current contract) from the issuance date of this decision until such time as he is promoted pursuant to B. above or retires, whichever comes first; and
  4. credit the complainant with the vacation and personal days used to attend the public hearing, pay him for each day during which he was on unpaid leave for purposes of the hearing and adjust any corresponding health insurance, retirement or pension benefits affected by this usage; and
  5. not engage in any conduct against the complainant or any participant in these proceedings in violation of General Statutes § 46a-60(a)(4).

It is so ordered.

Dated and entered at Hartford, this 19th day of April, 2001.

Lara L. Manzione
Presiding Human Rights Referee

C:

Mr. Jayantha Mather
Attorney Thomas S. Luby
Commissioner James Byrnes
Attorney Clare E. Kindall
Attorney Cheryl A. Sharp

END NOTES

  1. Although the commission requested in its written motion to amend the complaint dated August 31, 2000 and the complainant requested in his written notice of amendment dated August 30, 2000 and both parties orally argued for inclusion of this date at hearing, (Transcript –pps. 29-38), the actual date in September of 1998 on which Fontaine was promoted to TPE on a "permanent" basis was never articulated. According to joint exhibit 8, Fontaine was appointed to serve on a "temporary" basis, effective 8/29/97, but it is not clear from the record the date of his "permanent" appointment.
  2. From this point in the decision on, "complaint" shall refer to the complaint, as amended on 12/2/97 and 9/11/00.
  3. Testimony is referred to by witness name and page number. Exhibits are referred to by letter and number (e.g., Joint Exhibit 5 is "J-5", Complainant Exhibit 9 is "C-9") with page number of the exhibit, if appropriate.
  4. In 1992, a posting for "Transportation Engineer of Soils and Foundations" was issued indicating a mandatory license requirement. However, the position was never created, and no one was ever appointed to it. (R-47.)
  5. "McDonnell Douglas concerned a failure to rehire issue. Nevertheless, the case has been cited for identifying elements of a prima facie claim for failure to promote. See, e.g. Raskin v. Wyatt Co., 125 F.3d 55, 64 (2d Cir. 1997)(ADEA claim)." Brown v. Coach Stores, Inc., 163 F.3d 706, 710, n.1 (2d Cir. 1998).
  6. The technical personnel term is temporary service in a higher class ("TSHC"). In this category of employment, an employee acts in the capacity of the higher class, receives the pay of the higher class, but does not attain any other status of the higher class.
  7. Davis v. State Dept. of Health, 744 F. Supp. 756 (S.D.Miss. 1990) (no claim or evidence that the state certification process was applied in a discriminatory fashion); Peden v. Suwannee County School Board, 837 F.Supp. 1188 (M.D.Fla. 1993), affirmed without opinion, 51 F.3d 1049 (11th Cir. 1995) (no claim or evidence that plaintiff’s failure to assure the hiring committee that she would obtain her vocational education certification in a timely manner was handled in a discriminatory manner).
  8. The respondent only reimburses or pays the license fees of its employees if the license is required for the position.
  9. The following "special requirement" is included in the job specification for the TPE position. "The appointing authority may require that incumbents in this class possess and retain a license in the State of Connecticut as a Professional Engineer in a field appropriate to the scope of the assigned duties or as a Registered Land Surveyor."
  10. Michele Pancallo signed the letter as DPEP Chairperson. It is not entirely clear from the record what her position or job duties are, but it appears she works in the personnel office in some capacity.
  11. The four vacant TPE positions in the Design Services Division headed the following Units: Soils and Foundations, Contract Administration, Utilities and Hydraulics and Drainage.
  12. At public hearing, Obara testified that the Personnel Director declared that Obara needed to "fish or cut bait" meaning "is the PE required or not?" [for all the TPE positions listed in the 1995 Munroe memo.] Obara responded in the affirmative. (Obara, Tr. 3692, 3697)
  13. While the 1994 examination was largely moot for purposes of the TPE position in Soils and Foundations, since Theodore Batko had already been in the TPE on a "provisional" basis (subject to passing such a merit examination), the examination tested other applicants’ capabilities for purposes of inclusion on an "eligibility list."
  14. The three members of the interview panel were Obara, Stephen Barton, manager of the Consultant Design Division and Bradley Smith, manager of the State Design Division.
  15. The EEOC Guidelines state, "(b) The Commission has found that the use of the following selection procedures may be discriminatory on the basis of national origin. Therefore, it will carefully investigate charges involving these selection procedures for both disparate treatment and adverse impact on the basis of national origin. However, the Commission does not consider these to be exceptions to the ‘bottom line’ concept: (1) Fluency-in-English requirements, such as denying employment opportunities because of an individual’s foreign accent, or inability to communicate well in English. (2) Training or education requirements which deny employment opportunities to an individual because of his or her foreign training or education, or which require an individual to be foreign trained or educated." 29 C.F.R. § 1606.6 (b)(1) (2000).
  16. 29 C.F.R. § 1606.6(b)(1) (2000). See note 15 for the text.
  17. The 1992 complaint was resolved through a stipulated agreement which promoted the complainant to the position of TSE in Soils and Foundations.
  18. The record and briefs contradict whether the complainant also claims the filing of his 1997 complaint as a protected activity. Assuming, arguendo, he does so claim, it rises to the level of a protected activity. The adverse employment action is his failure to be promoted on a "permanent" basis to TPE and the respondent certainly knew of the filing of the 1997 complaint.
  19. Interestingly, Fontaine was also accused of misuse of sick time. Fontaine challenged the accusations and they, too, were corrected.
  20. The respondent argues that the union pay scales admitted into evidence as C-11 are not valid because the contract has expired. Since all the provisions of the contract are not in evidence, as long as state employees work and are compensated under said contract, the front pay award remains as outlined herein. The award shall be adjusted when the next contract is negotiated, if necessary.




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