Harris v. Dept. of Correction ( 2014 )

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PAUL HARRIS v. DEPARTMENT OF CORRECTION
(AC 35971)
Gruendel, Sheldon, and Sullivan, Js.
Argued October 23—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Hartford, Peck, J.)
Paul Harris, self-represented, the appellant
(plaintiff).
Jennifer P. Bennett, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Ann E. Lynch, assistant attorney general, for
the appellee (defendant).
Opinion
PER CURIAM. The self-represented plaintiff, Paul
Harris, appeals from the trial court’s summary judgment
in favor of the defendant, the Department of Correction.
On appeal, the plaintiff claims that the court improperly
concluded that the evidence he presented did not raise
a genuine issue of material fact with respect to his
allegations that the defendant subjected him to discrimi-
nation on the basis of his race and color in violation
of the Fair Employment Practices Act,1 General Statutes
§ 46a–60 (a) (1).2 We affirm the judgment of the trial
court.
The following facts and procedural events from the
twelve year history of this case are relevant to this
appeal. The plaintiff, an African-American male, began
his employment as a correction officer with the defen-
dant in October, 1994. On June 27, 2000, two lieutenants
employed by the defendant observed the plaintiff
watching television during his work shift.3 Upon being
questioned by the lieutenants, the plaintiff denied hav-
ing watched television. As part of a subsequent adminis-
trative investigation, the defendant reviewed
surveillance camera footage from the prison that
showed the plaintiff watching television for approxi-
mately twenty-two minutes. The plaintiff has reviewed
this videotape footage, but does not possess a copy of
it. On December 28, 2000, after a hearing on this matter,
the plaintiff received a thirty day suspension for neglect-
ing his duties and for ‘‘being less than truthful during
an Administrative Inquiry.’’ The letter advising the plain-
tiff of his suspension informed him that the defendant
takes its employees’ past disciplinary history into
account when issuing reprimands.
In July, 2001, the plaintiff filed administrative com-
plaints with the Equal Employment Opportunity Com-
mission (EEOC) and the Connecticut Commission on
Human Rights and Opportunities (CHRO), alleging that
the defendant discriminated against him on the basis
of his race and color. The CHRO reviewed the merits
of the plaintiff’s complaint and dismissed it on the basis
that there was no reasonable possibility that further
investigation would have resulted in a finding of reason-
able cause. In May, 2002, the CHRO denied the plaintiff’s
request for reconsideration of his case. After the CHRO
signed a release of jurisdiction, the plaintiff commenced
a civil action in the Superior Court, alleging that he had
been subjected to discrimination based upon his race
and color in violation of § 46a-60 (a) (1).
On February 3, 2009, the plaintiff filed a second
amended complaint, which included an additional alle-
gation that his rights under Title VII of the Civil Rights
Act of 1964 (Title VII); 42 U.S.C. § 2000e et seq., had
been violated. The plaintiff then removed the case to
the United States District Court for the District of Con-
necticut. In April, 2009, the District Court granted the
defendant’s motion to remand the case back to the
Superior Court, reasoning that the plaintiff had not
obtained a right-to-sue letter from the EEOC, and, that
even if he had done so, ‘‘an amendment adding a Title
VII claim [to the plaintiff’s complaint] would be barred
as untimely.’’ Harris v. Connecticut Dept. of Correction,
United States District Court, Docket No. 3:09CV00265
(AWT) (D. Conn. April 7, 2009). The plaintiff did not
amend the complaint that he had filed in state court
to remove the Title VII allegations. In May, 2009, the
defendant filed an ‘‘Amended Answer and Special
Defense.’’ On February 24, 2012, the court issued a
scheduling order and ordered the parties to participate
in a trial management conference to be held on August
21, 2013.4 Trial was scheduled for August 28, 2013.
On December 13, 2012, the defendant timely filed a
motion for summary judgment and an accompanying
memorandum of law. On August 1, 2013, the court,
Peck, J., granted the defendant’s motion pursuant to
Practice Book § 17-49. In ruling on the summary judg-
ment motion, the court considered the affidavit of Tracy
Butler, the defendant’s human resources director. But-
ler stated in her affidavit that the plaintiff had received
a suspension of thirty days ‘‘[a]s a result of [his] conduct
on June 27, 2000 and for his subsequent untruthfulness
during the investigation that followed . . . .’’ During
the subsequent investigation of the plaintiff’s conduct,
he ‘‘denied having watched television’’ when questioned
on two separate occasions. Butler also stated that ‘‘[i]n
disciplining employees [pursuant to its progressive dis-
cipline guidelines], their past discipline is taken into
account.’’ The plaintiff’s disciplinary history during the
course of his employment with the defendant included
the following incidents: (1) in 1995, leaving his post
prior to the end of his shift; (2) in 1997, failing to report
an arrest and the suspension of his driver’s license; and
(3) in 2000, bringing contraband into the defendant’s
facility. Further, Butler stated that, in the past, employ-
ees similarly situated to the defendant ‘‘have received
the same, and harsher punishment, including termina-
tion,’’ for engaging in the same misconduct. The court
found that the plaintiff failed (1) to ‘‘present properly
authenticated evidence to refute the defendant’s claim
that its decision to suspend [the] plaintiff for thirty days
was anything other than a legitimate business decision,’’
or (2) to ‘‘come forward with evidence of disparate
treatment of similarly situated employees or . . . oth-
erwise [demonstrate] that the defendant is not entitled
to summary judgment in its favor on his claim of race
discrimination.’’ On August 20, 2013, the plaintiff filed
the present appeal.
On appeal, the plaintiff argues that he was subjected
to a punishment that was more severe than those
received by similarly situated white coworkers who
have previously been accused of the same misconduct.
The plaintiff specifically argues that the court improp-
erly (1) violated the terms of its scheduling order by
granting summary judgment in favor of the defendant
before the parties had participated in the trial manage-
ment conference, and (2) declined to consider whether
the defendant’s refusal to produce an allegedly ‘‘doc-
tored’’ videotape of the incident pursuant to his sub-
poena request, filed after the parties had briefed and
argued the defendant’s motion for summary judgment,
violated his constitutional rights. We disagree with the
plaintiff’s contentions and conclude that the court prop-
erly granted the defendant’s motion for summary
judgment.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . As the burden of proof is on the movant, the evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) Bonington v. Westport, 297 Conn.
297, 305, 999 A.2d 700 (2010).
In granting the defendant’s motion for summary judg-
ment, the court identified the proper framework for the
burden of production of evidence and the burden of
persuasion in an employment discrimination case.
‘‘First, the [plaintiff] must establish a prima facie case
of discrimination. . . . In order to establish a prima
facie case, the [plaintiff] must prove that: (1) he is in
the protected class; (2) he was qualified for the position;
(3) he suffered an adverse employment action; and (4)
. . . the adverse action occurred under circumstances
giving rise to an inference of discrimination. . . . Once
the [plaintiff] establishes a prima facie case, the [defen-
dant] then must produce legitimate, nondiscriminatory
reasons for its adverse employment action. . . . This
burden is one of production, not persuasion; it can
involve no credibility assessment. . . .
‘‘After the plaintiff has established a prima facie case,
and the defendant has produced evidence of a legiti-
mate, nondiscriminatory reason for the employment
action, [t]he plaintiff retains the burden of persuasion.
[The plaintiff] now must have the opportunity to demon-
strate that the [defendant’s] proffered reason was not
the true reason for the employment decision. This bur-
den now merges with the ultimate burden of persuading
the court that [the plaintiff] has been the victim of
intentional discrimination. [The plaintiff] may succeed
in this either directly by persuading the court that a
discriminatory reason more likely motivated the [defen-
dant] or indirectly by showing that the [defendant’s]
proffered explanation is unworthy of credence. . . .
Employment discrimination therefore can be proven
either directly, with evidence that the [defendant] was
motivated by a discriminatory reason, or indirectly, by
proving that the reason given by the [defendant] was
pretextual.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Jacobs v. General
Electric Co., 275 Conn. 395, 400–401, 880 A.2d 151(2005); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). With
this background in mind, we turn to the plaintiff’s claim
in the present case.
Our examination of the record and the briefs of the
parties persuades us that the judgment of the court
should be affirmed. Viewing the evidence in the light
most favorable to the plaintiff; see Bonington v. West-
port, supra, 297 Conn. 305; we conclude that the court
properly granted the defendant’s motion for summary
judgment because the plaintiff did not establish a prima
facie case of discrimination in violation of § 46a-60 (a)
(1). Specifically, there is no genuine issue of material
fact as to the fourth prong required for a prima facie
claim of discrimination. The plaintiff did not offer evi-
dence adequate to support his allegation that his sus-
pension occurred under circumstances giving rise to
an inference of discrimination. See Jacobs v. General
Electric Co., supra, 275 Conn. 400. The plaintiff failed to
demonstrate that George Anderson, a white correction
officer who received a five day suspension for watching
television while on duty, was ‘‘similarly situated’’ to
him.5 Unlike the plaintiff, Anderson admitted to commit-
ting the offense in question. The plaintiff did not proffer
any evidence to attempt to demonstrate that Anderson
had a disciplinary history that was comparable to his
own. The plaintiff, accordingly, fails to raise a genuine
issue of material fact as to the existence of circum-
stances surrounding his suspension that give rise to an
inference of discrimination. We conclude that the court
properly rendered summary judgment in favor of the
defendant.
The judgment is affirmed.
1
In his second amended complaint, the plaintiff claimed that the defendant
discriminated against him based on his race and color in violation of General
Statutes § 46a-60 (a) (1) and Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. § 2000e et seq. The court’s summary judgment stated that
‘‘the plaintiff has failed to produce evidence that supports a prima facie
case of race discrimination’’ under § 46a-60 (a) (1) or Title VII. ‘‘[I]t is . . .
well established that [w]e look to federal law for guidance on interpreting
state employment discrimination law, and the analysis is the same under
both [the Fair Employment Practices Act and Title VII].’’ (Internal quotation
marks omitted.) Lyon v. Jones, 291 Conn. 384, 407, 968 A.2d 416 (2009).
The plaintiff, however, did not advance any arguments in his appellate brief
or during oral argument that his rights under Title VII were violated. ‘‘Where
the parties cite no law and provide no analysis of their claims, we do not
review such claims.’’ (Internal quotation marks omitted.) Jackson v. Water
Pollution Control Authority, 278 Conn. 692, 711, 900 A.2d 498 (2006).
‘‘Although we allow pro se litigants some latitude, the right of self-representa-
tion provides no attendant license not to comply with relevant rules of
procedural and substantive law.’’ (Internal quotation marks omitted.) Oli-
phant v. Commissioner of Correction, 274 Conn. 563, 570, 877 A.2d 761(2005). This court, accordingly, declines to review the plaintiff’s Title VII
claim.
2
General Statutes § 46a-60 (a) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section: (1) For an employer, by
the employer or the employer’s agent, except in the case of a bona fide
occupational qualification or need, to refuse to hire or employ or to bar or
to discharge from employment any individual or to discriminate against
such individual in compensation or in terms, conditions or privileges of
employment because of the individual’s race, color, religious creed, age,
sex, gender identity or expression, marital status, national origin, ancestry,
present or past history of mental disability, intellectual disability, learning
disability or physical disability, including, but not limited to, blindness. . . .’’
3
Department of Correction Administrative Directive 2.17, effective March
15, 2000, strictly prohibits ‘‘[u]nauthorized distractions while on duty,’’
including the use of televisions.
4
At oral argument before this court, the plaintiff stated that ‘‘on August
13, 2013, there would be a hearing [to be held before Judge Domnarski]
where [he] would decide what evidence would be admissible and would
not be admissible; that never happened.’’ The plaintiff also stated that the
hearing would be held at ‘‘2:30 [p.m.] that day.’’ Our review of the record
does not reveal an evidentiary hearing that was scheduled to be held on
August 13, 2013. It appears that the plaintiff is referring to the trial manage-
ment conference scheduled for August 21, 2013, which never occurred
because the court granted summary judgment in favor of the defendant on
August 1, 2013.
5
Anderson’s five day suspension was later reduced to a one day suspension
pursuant to a stipulated agreement. The terms of this agreement also pro-
vided for the subsequent removal of all information pertaining to Anderson’s
suspension from his personnel file.