Davis v. State, Department of Correction

Latisha DAVIS v. STATE of Connecticut, DEPARTMENT OF CORRECTION

No. NNHCV156058372

Superior Court of Connecticut, Judicial District of New Haven, New Haven

November 21, 2017

UNPUBLISHED OPINION

OPINION

Frechette, J.

The defendant, the Department of Correction, has moved for summary judgment on the employment discrimination claim brought against it by the plaintiff, Latisha Davis, under the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. In the operative, revised complaint, the plaintiff alleges, generally, that the defendant discriminated against her on the basis of her race (African American) and sex (female) and her prior complaint of and opposition to employment discrimination when, after being involved in two workplace altercations with a coworker and filing an internal affirmative action complaint, she was temporarily transferred out of the New Haven Correctional Center to the Correctional Center in Bridgeport, which increased the length of her commute. In its memorandum of law in support of its motion for summary judgment, the defendant argues that the plaintiff’s claim must fail because she cannot establish, inter alia, a prima facie case of race-and sex-based discrimination or retaliation. The court agrees.

DISCUSSION

I Claim of Race- and Sex-Based Discrimination

To establish a prima facie case of employment discrimination under General Statutes § 46a-60(a)(1), ^[1] " the plaintiff must present evidence that: (1) she belongs to a protected class; (2) she was subject to an adverse employment action and (3) the adverse action took place under circumstances permitting an inference of discrimination." Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012). The plaintiff in the present case cannot make out a prima facie case of race- and sex-based discrimination because her temporary transfer to a different facility does not constitute an " adverse employment action" and her proof of discriminatory intent cannot, as a matter of law, support an inference of discrimination.

A Adverse Employment Action

" A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment ... An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities ... Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits significantly diminished material responsibilities, or other indices unique to a particular situation." (Internal quotation. marks omitted.) Vega v. Hempstead Union Free School District, 801 F.3d 72, 85 (2d Cir. 2015); see Amato v. Hearst Corp., 149 Conn.App. 774, 781-82, 89 A.3d 977 (2014) (holding that trial court’s decision to follow federal courts’ interpretation of term " adverse employment. action" was not improper because Connecticut case law clearly provides that our courts may look to federal court precedent for guidance in enforcing Connecticut’s antidiscrimination statute).

In view of this standard, " an overwhelming number of courts have determined that a lateral transfer that results in a longer commute does not rise to the level of an adverse employment action." Sibilia v. Snow, United States District Court, Docket No. 05-10096-PBS (D.Mass. October 20, 2006); accord Burnette v. Northside Hospital, 342 F.Supp.2d 1128, 1136-37 (N.D.Ga. 2004); see, e.g. Cooper v. United Parcel Service, Inc., 368 Fed.Appx 469, 474 (5th Cir. 2010) (holding that transfer from New Orleans to Harvey, Louisiana, did not constitute adverse employment action where employee retained same title and benefits, for, " [t]hough a longer commute may have been inconvenient for [the employee], [the court could not] say that the new position was objectively worse such that it was the equivalent of a demotion"); Hill v. American General Finance, Inc., 218 F.3d 639, 645 (7th Cir. 2000) (" An adverse action occurs when an employee is fired or demoted, suffers a decrease in benefits or pay, or is given a significantly lesser job. Not every unwelcome employment action qualifies as an adverse action. Negative reviews, a change in job title, an increased distance to travel to work, or a lateral transfer do not, by themselves qualify" [emphasis added]); Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir. 1998) (holding that reassignment that increased employee’s commute time from five or seven minutes to between thirty and forty minutes did not amount to adverse employment action); Montandon v. Farmland Industries, Inc., 116 F.3d 355, 359 (8th Cir. 1997) (holding that, " [h]owever unpalatable the prospect may have been to [the employee], " reassignment that required employee to move from Denison, Iowa, to Omaha, Nebraska, did not rise to level of adverse employment action); Ghaly v. Simsarian, United States District Court, Docket No. 3:04CV01779 (AWT) (D.Conn. March 26, 2009) (noting that, even if proposed transfer of employee had been implemented, twenty-eight-minute longer commute would not have constituted adverse employment action [citing Sanchez v. Denver Public Schools, supra ]); Baker v. Alabama Dept. of Public Safety, 296 F.Supp.2d 1299, 1308 (M.D.Ala. 2003) (" [w]here the changed work location does not even require one to change residences, these transfers generally merely create an inconvenience, which for purposes of Title VII is not actionable"); Johnson v. Eastchester Union Free School District, 211 F.Supp.2d 514, 517-18 (S.D.N.Y. 2002) plaintiff’s " mere dissatisfaction" with reassignment, based on " inconvenience of the change in location, " was not actionable as adverse employment decision); Grande v. State Farm Mutual Automobile Ins. Co., 83 F.Supp.2d 559, 563-64 (E.D.Pa. 2000) (holding that lateral reassignment of employee to another location did not rise to level of adverse employment action even if it increased employee’s commute; " [w]hile the court does not minimize the effect of a lengthened commute ... without some evidence of actual harm to plaintiff’s career or some indication that he could not perform the job, these factors do not create a prima facie case").

In the present case, the only aspect of the plaintiff’s transfer alleged to have constituted an adverse employment action is " the additional commuting time and distance involved." Pl.’s Rev. Compl. 8. It is undisputed that the temporary transfer did not involve a demotion, did not affect her compensation, benefits, accrued time, or seniority, and did not result in the loss of other opportunities with the defendant. Pl.’s Dep. 48; Kolakowski Aff. ¶ 17. As the preceding authority makes clear, such increase in commuting time, without any other employment-related repercussions, does not amount to an adverse employment action. The cases cited by the plaintiff are not at odds with this conclusion, as the increase in commuting time complained of in those cases was accompanied by a change in the terms or conditions of employment. See Terry v. Ashcroft, 336 F.3d 128, 145 (2d Cir. 2003) (restriction imposed on Immigration and Naturalization Service agent prohibiting him from continuing to hitch ride with other agents in government car could constitute adverse employment action where restriction not only would require him to undertake more taxing commute via public transportation but would also impair his ability to perform field work); Maglietti v. Nicholson, 517 F.Supp.2d 624, 628 (D.Conn. 2007) (transfer that resulted in two-hour increase in commute and significant reduction in job responsibilities constituted adverse employment action).

B Discriminatory Intent

Even if the plaintiff were able to point to an adverse employment action, her discrimination claim would still fail, as the evidence upon which she relies to establish discriminatory intent would be inadmissible at trial. Practice Book § 17-45(a) provides that " [a] motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents." " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675 678, 874 A.2d 849 (2005). Thus, any supporting or opposing evidence must comply with our hearsay rules; Bozelko v. Webster Bank, N.A., 159 Conn.App. 821, 826 n.4, 123 A.3d 1250, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015); and any documents submitted must be properly authenticated. New Haven v. Pantani, supra, 679.

In the present case, the plaintiff relies on her own deposition testimony and a chain of e-mails to establish discriminatory intent. The deposition testimony is hearsay, and the e-mail chain is unauthenticated. " Hearsay means a statement other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted ... Hearsay is generally inadmissible unless an exception in the Code of Evidence, the General Statutes or the rules of practice applies." (Internal quotation marks omitted.) State v. Johnson, 171 Conn.App. 328, 337, 157 A.3d 120, cert. denied, 325 Conn. 911, 158 A.3d 322 (2017). At her deposition, the plaintiff testified that certain Caucasian and male employees had been involved in workplace violence incidents at the New Haven facility but had nevertheless not been transferred out. When asked about the source of her knowledge, the plaintiff admitted that she had no personal knowledge related to the incidents but, rather, had learned of them...