319 F.Supp.2d 250 (2004) | Cited 16 times | D. Connecticut | May 5, 2004


Plaintiff Aurice Barlow, ("Barlow" or "plaintiff") brings thisemployment discrimination action against the State of Connecticut,Department of Public Health and Elizabeth Weinstein, an employee of theDepartment of Public Health, ("Defendants" or "DPH" or "Weinstein")pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"),42 U.S.C. § 1983, and Conn. Gen. Stat. § 31-51q. Defendants now movepursuant to Fed.R.Civ.P. 56 for summary judgment on all claims [Dkt. No.46] and move to strike certain exhibits and statements offered in supportof Plaintiff's Memorandum of Law in Opposition to Defendants' SummaryJudgment [Dkt. No 62]. For the reasons detailed below, defendants' motionfor summary judgment is granted.


The Court sets forth only those facts deemed necessary to anunderstanding of the issues raised in, and decision rendered on, thisMotion. The facts are culled from the parties' Local Rule 56(a)Statements, affidavits, and the exhibits attached to their respectivememoranda. The court notes that this case involves numerous instances ofalleged discriminatory conduct and retaliatory action over severalyears. In this background, the court provides a brief overview of thefacts taken in the light most favorable to the plaintiff, and morespecific circumstances are raised in the Ruling's substantive discussion.

Plaintiff began working for the State of Connecticut Department ofPublic Health ("DPH") in 1984 as a clerk-typist. In April of 1986, Barlowwas transferred to the Preventable Diseases Division, where she performedclerical and administrative duties in the AIDS Division. Her jobs withthe Aids Division included answering phones, typing, word processing,filing, and disseminating informational pamphlets. From 1986 to January1997 Anne McLendon ("McLendon") acted as Barlow's supervisor. While underMcLendon's supervision, McLendon prepared or reviewed Barlow's Performance Appraisals from1988 to 1995. While Barlow received an overall rating of good or verygood on each of these evaluations, they each also had negative commentsregarding Barlow's workplace performance. For example, on plaintiff's1988 review, while she received several good and very good ratings,McLendon noted in the comments section that plaintiff "when under stress,Aurice often loses her temper and uses language and behaviors that areinappropriate." In September of 1993, as a result of incidents at work,McLendon and Beth Weinstein, another supervisor, gave plaintiff amemorandum entitled "Workplace Behavior Expectations," which outlinedareas plaintiff needed improvement. The letter warned "if you do notachieve and maintain consistent compliance with the behavior expectationsdescribed in the attached document, an official letter will be put in youpermanent file. The next step will be formal progressive disciplinaryaction." (Def. Exh. 5). Barlow's 1994 evaluation included an overallrating of good, noting several significant accomplishments of plaintiff.However, it also included recommendations such as the need to decreasetyping areas, work on maintaining an even temper under stress, and todevelop better conflict negotiation skills. In the early to mid 1990's, the AIDS Division began to expand itsoperations and programs, prompting the Department to hire an independentcontractor, Dunne Kimmel, and Fein ("DKF") to take over many aspects ofthe operation of the AIDS Division. Many of Barlow's job duties changedat this time. On March 31, 1996, the DPH moved from 21 Grand Street to410 Capitol Avenue in Hartford.

In or around April or May of 1996, after the DPH moved to 410 CapitolAvenue, Barlow filed a "whistleblower"1 complaint alleging that hersupervisors had improperly given state owned furniture to DKF during themove. Plaintiff asserts that many of her job duties were taken away as aresult of her complaint. While Barlow originally testified in herdeposition that her job duties were taken away "all at once" when she"was working at 21 Grand Street." (Deposition of Barlow at 39-40), shelater stated in the same deposition, that "all" of her job duties werenot taken away until after she moved to 410 Capital Avenue. She explainedthat "some of my duties were taken away but they weren't taken away allat one time . . . They were taken away slowly but surely." (Id. At 50).

On April 18 1996, Barlow received a letter of warning as a result oftwo complaints by co-workers reporting incidents where Barlow becamedisruptive and inappropriate. One of Barlow's co-workers wrote a letterof complaint stating that after Barlow had trouble with the copymachine, she shouted "unprofessional remarks like `some people have a lotof nerve' and swearing. Not only was what she said inappropriate andunprofessional, but her loud voice and hostile manner were upsetting tome and the staff in the immediate area." (Def. Exh. 7). In herdeposition, plaintiff denied these incidents occurred in the mannerstated by her co-workers, and insisted they were "coerced" into lyingabout the incidents in order to harass plaintiff. (Plaintiff's Dep. at236-37).

On August 6, 1996, two of Barlow's co-workers complained aboutplaintiff's inappropriate use of the telephone, specifically regardingthe fact that plaintiff spoke in a loud and disruptive manner. Plaintiffdenies these incident's occurred as reported by her co-workers, but alsoasserts that she has hearing loss which causes her to speak loudly. Aftermeeting with the CHRO on August 8, 1996, Barlow filed a complaint withthe CHRO on August 12 alleging that she was "given poor evaluations,demoted, retaliated against, harassed and discriminated against" due to her race (black) religion (Catholic),marital status (single parent) and having previously opposeddiscriminatory practices. (Pl. Exh. 8). Plaintiff stated in her affidavitof illegal discriminatory practice that Mclendon had been harassing hersince 1988 by giving her religious literature, and plaintiff hadcomplaint about McLendon's conduct to her union representative,affirmative action, and the Personnel department, and limiting her jobduties. In plaintiff's affidavit, she stated that she in support of herBarlow's complaint was date stamped on August 26, 1996, indicating theCHRO received the complaint on that day. On August 9, 1996, Weinsteingave Barlow a "letter of counseling" regarding her behavior in theoffice. Barlow asserts that Weinstein knew she was about to file acomplaint, and reprimanded Barlow in retaliation. Barlow's CHRO complaintdid not make any allegations against Beth Weinstein regarding retaliationfor having filed the whistle-blower complaint.

On August 22, 1996, Barlow received another letter of counseling letterregarding her excessive absences and tardiness. On the same day, Barlowwas informed she was not allowed to play in a DPH charity basketballtournament that day. Barlow collapsed at work after receiving a memo thatshe was not allowed to play in the basketball game, and had a "psychological breakdown" as a result of these disciplinary actions.(Barlow Dep. at 174-6). After the incidents on August 22, 1996, Barlowtook a voluntary leave of absence while the CHRO Complaint was pending.

While on leave, plaintiff did not receive her paychecks. Barlow wasinformed by Barbara Schiffer that her paychecks were intentionallywithheld from her while she was on medical leave to force her to comeback to work. However, Barlow conceded in her deposition that Schifferhas "changed her story" and later told Barlow that her checks were leftin the office rather than sent to her home due to an "oversight". (Id.213-16). Plaintiff filed a complaint with the US Department of Laborregarding the DPH's failure to send her paychecks home on January 26,1998. Plaintiff also received phone calls from Tom Weirbonics, Tom Carsonand Beth Weinstein during her leave of absent. In her complaint,plaintiff alleges these phone calls were "harassing." However, in herdeposition, plaintiff explained that Weirbonics was "very nice" when hecalled, and that Carson called to inquire as to whether she wasinterested in a transfer out of the AIDS Department. Weinstein inquiredabout when Barlow intended to return to work from her leave. (BarlowDep. At 193-6).

On October 7, 1996, the CHRO dismissed plaintiff's complaint, finding no reasonable cause to believe that a discriminatorypractice had occurred. Barlow di d not file any subsequent civil actionupon the CHRO's dismissal of her complaint. Barlow returned to workJanuary 3, 1997. Upon her return, Barlow had several more confrontationalincidents with her supervisors and co-workers. On July 9, 1997, afterbeing told by a co-worker to lower her voice while on the phone, Barlowresponded by saying "fuck you". (Affidavit of T. Carr). Barlow deniesmany of the incidents, or asserts that they occurred because she waspicked on and harassed in retaliation for her whistle-blower and CHROcomplaints. Plaintiff's 1996, 1997, and 1998 performance evaluationsrated Barlow unsatisfactory. Pursuant to the Collective BargainingAgreement between Barlow's Union and the State, the DPH could haveterminated Barlow after she received her second unsatisfactoryappraisal. In 1998, the DPH informed plaintiff they were considering hertermination. Plaintiff was advised to meet with her Union representativein order to prepare a response to the charges underlying hertermination. However, Barlow informed the DPH staff on the day of thescheduled meeting that she would not attend. Barlow also rejected a "LastChance Agreement" that DPH proposed, which would have allowed her to keepher job with the condition that any further disruptive conduct would result in her immediate termination.

Barlow was terminated on October 26, 1998, upon which she grieved hertermination under the terms of her collective bargaining agreement. TheDPH and Barlow's Union selected an arbitrator, Mark Grossman, toarbitrate Barlow's case. Arbitrator Grossman rejected Barlow'sretaliation claim and ruled that the DPH had proven that Barlow wasterminated for just cause. Plaintiff subsequently filed the pendingclaims against defendants DPH and Beth Weinstein.


I. Motion to Strike

A. Plaintiff's Exhibits in Support of her Memorandum in Oppositionto Summary Judgment

As an initial matter, the defendants move to strike several exhibitsattached to the Plaintiff's Opposition to Defendants' Motion for SummaryJudgment [Dkt. Nos. 54, 55] as improper. The principles concerningadmissibility of evidence do not change on a motion for summaryjudgment. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997); NewportElecs. v. Newport Corp., 157 F. Supp.2d 202, 208 (D.Conn. 2001).Accordingly, a motion to strike is appropriate if documents submitted insupport of a motion for summary judgment contain inadmissible hearsay, conclusory statements, areincomplete, or have not been properly authenticated. See, e.g. Hollanderv. American Cyanamid Co., 999 F. Supp. 252, 255-56 (D.Conn. 1998); Dedyov. Baker Engineering New York. Inc., 1998 U.S. Dist. LEXIS 132, 1998 WL9376 at *4 (S.D.N.Y. 1998).

1. Exhibits Without Proper Authentication

The documents submitted in opposition to a summary judgment motion mustbe properly authenticated in order to be considered by the court atsummary judgment stage. Dedyo, 1998 U.S. Dist. LEXIS 132 at *12-13. Seealso, 11 James Wm. Moore et al., Moore's Federal Practice P 56.14[4] [a](3d ed. 1997). It is irrelevant that the documents can be properlyauthenticated if introduced at trial through a witness, if they have notbeen properly authenticated when submitted in support or opposition tosummary judgment. Accordingly, because plaintiff failed to authenticateExhibits 10, 12, 16, 30, 39, 45, and 46 submitted in opposition todefendants' motion for summary judgment, they are struck from therecord.2 2. Incomplete Exhibits

Plaintiff's Exhibit 1C, a job description, and Exhibit 49, the lastpage of a multiple page workplace survey are incomplete as plaintiffproduces only one page of these multiple page documents. Plaintiff hasalso failed to authenticate these documents. Accordingly, they are struckfrom the record.

3. Exhibit 6: Doctor's Report

Defendants next seek to strike Exhibit 6 from the record, a letter froma doctor regarding a hearing exam given to plaintiff, which states theresults of her examination and recommended treatment. Courts can considermedical reports on summary judgment on the assumption that the physicianswho originated the report will be available to testify at trial ifnecessary. Jones v. City of Hartford, 285 F. Supp.2d 174, 185 (D. Conn.2003). As a result, the motion to strike Plaintiff's Exhibit 6B isdenied.

4. Exhibit 8: CHRO's Reasonable Cause Investigation Report

The defendants also moved to strike plaintiff's Exhibit 8, the secondreasonable cause determination by the CHRO filed after plaintiff was terminated. Factual findings in public records, whichwould include "conclusions or opinions" based on those facts, made afteran investigation authorized by legal authority are presumptivelyadmissible absent "information or other circumstances [that] indicatelack of trustworthiness." Bridgeway Corp. v. Citibank, 201 F.3d 134, 143(2d Cir. 2001) (citing Fed.R.Evid. 803(8)(c). "Findings of the EEOC orequivalent state agencies" fall within the ambit of the public recordsexception to hearsay. Paolitto v. John Brown E. & C., Inc., 151 F.3d 60,64 (2d Cir. 1998).

The party seeking to strike public records has the burden to establishlack of trustworthiness. Bridgeway, 201 F.3d at 143 (citing Ariza v. Cityof New York, 139 F.3d 132, 134 (2d Cir. 1998)); see Fed.R.Evid. 803(8)(c)advisory committee's note ("Hence the rule . . . assumes admissibility inthe first instance but with ample provision for escape if sufficientnegative factors are present."). In assessing trustworthiness, the courtconsiders (1) the timeliness of the investigation; (2) the special skillor experience of the official; (3) whether a hearing was held and thelevel at which conducted; [and] (4) [any motive of the investigatorinconsistent with accuracy]. Fed.R.Evid. 803(8)(c) advisory committee'snote. The court may consider other factors, including the finality of the report or record as an official finding. Gentile v. County ofSuffolk, 129 F.R.D. 435, 458 (E.D.N.Y. 1990) (citing United Air Lines.Inc. v. Austin Travel Corp., 867 F.2d 737, 742-43 (2d Cir. 1989)).Ultimately, the court has the discretion to determine "whether thehearsay document offered in evidence has sufficient independent indiciaof reliability to justify its admission." City of New York v. PullmanInc., 662 F.2d 910, 914 (2d Cir. 1981), and ultimately whether to excludean agency's Reasonable Cause finding and any evidence underlying thatfinding. EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260,263 (D.Conn. 1995).

In this case, the CHRO document is a preliminary investigation intowhether discrimination or retaliatory conduct against plaintiff couldhave occurred. (Pl. Exh. 8). Upon review of the findings anddeterminations by the CHRO, the court finds this report unreliable. Whilethe investigator, Yvonne Duncan, found reasonable cause that plaintiffhad been subject to retaliation, her conclusions are based largely onunreliable hearsay, and what plaintiff stated. It is clear that Duncanlargely disregarded the testimony of the DPH officials, and significantevidence that provided support for the finding that plaintiff wasterminated for legitimate reasons having nothing to do with herwhistle-blower complaint. Because this court has all the same evidence before it thatinvestigator Duncan considered in making her reasonable causedetermination, this court finds there is little probative value inrelying on Duncan's conclusions and therefore strikes her reasonablecause finding from the record.

5. Exhibits 41, 50: Unsworn Statements of Co-workers

Defendants seek to strike two statements submitted in support ofplaintiff's opposition to the motion for summary judgment because thestatements were improperly certified and not based on personal knowledgein violation of the requirements of 28 U.S.C. § 1746 and Fed.R. Civ.P. 56(e).

Rule 56(e) provides that a motion for summary judgment may beaccompanied by sworn affidavits setting forth admissible facts based onpersonal knowledge. 28 U.S.C. § 1746 provides that, whenever a rulerequires a matter to be supported by sworn affidavit, the matter may besupported instead by an unsworn, written declaration or statementsubscribed as true under penalty of perjury, and dated. Here, however,plaintiff offers statements by co-workers that are in the form of aletter, neither sworn or dated, nor ending with an affirmation suggestingthe written statement is true. Further, neither of these letters assert that they are based on personalknowledge, as required to be admissible in support of this motion forsummary judgment. Adickes v. S.H. Kress & Co., 398 U.S. at 158, n.17.("Unsworn statements are not sufficient to defeat a motion for summaryjudgment."); Beyah v. Coughlin, 789 F.2d 986, 989-990 (2d Cir.1986)(reversing summary judgment which relied on sworn testimony that wasnot based on personal knowledge). Because Exhibits 49 and 50 do notqualify as evidentiary proof in admissible form, these exhibits will bestruck from the record and will not be considered by this court in itsruling on summary judgment.

B. Plaintiff's Local Rule 56(a)(2) Statement

Defendants have also moved to strike several statements in plaintiff'sLocal Rule 56(a)(2) Statement on the grounds that the statements areunsupported by the record, are legal conclusions, or are speculativestatements or improper generalizations. See Defendants' Motion to Strike[Doc. # 62-1]. This court agrees that plaintiff's 56(a)(2) Statementincludes conclusory allegations, many of which are not supported by therecord. In deciding a summary judgment motion, however, it is necessaryto look to the record evidence, and inappropriate to rely solely on the56(a)(2) statement. See Giannullo v. City of New York, 322 F.3d 139, 142 (2d Cir.2003). As the Court has relied only on the underlying evidence, notdefendants' 56(a)(2) statement, plaintiff's motion is denied as moot.

II. Summary Judgment

A. Standard for Summary Judgment

In a motion for summary judgment the burden is on the moving party toestablish that there are no genuine issues of material fact in disputeand that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).See also Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986)(plaintiffmust present affirmative evidence in order to defeat a properly supportedmotion for summary judgment). If the nonmoving party has failed to make asufficient showing on an essential element of his case with respect towhich he has the burden of proof at trial, then summary judgment isappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In sucha situation, there can be `no genuine issue as to any material fact,'since a complete failure of proof concerning an essential element of thenonmoving party's case necessarily renders all other facts immaterial."Id. at 322-23. Accord, Goenaga v. March of Dimes Birth DefectsFoundation, 51 F.3d 14, 18 (2d. Cir. 1995)(movant's burden satisfied if it can point toan absence of evidence to support an essential element of nonmovingparty's claim).

The court is mandated to "resolve all ambiguities and draw allinferences in favor of the nonmoving party. . . ." Aldrich v. RandolphCent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992), cert. denied,506 U.S. 965 (1992). "Only when reasonable minds could not differ as tothe import of the evidence is summary judgment proper." Bryant v.Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied,502 U.S. 849(1991). However, if the nonmoving party submits evidencewhich is "merely colorable", or is not "significantly probative," summaryjudgment may be granted. Anderson, 477 U.S. at 249-50. "The mereexistence of some alleged factual dispute between the parties will notdefeat an otherwise properly supported motion for summary judgment; therequirement is that there be no genuine issue of material fact. As tomateriality, the substantive law will identify which facts are material.Only disputes over facts that might affect the outcome of the suit underthe governing law will properly preclude the entry of summary judgment.Factual disputes that are irrelevant or unnecessary will not be counted."Id. at 247-48 (emphasis in original). In sum, summary judgment is proper where no reasonable jury "could find by apreponderance of the evidence" for the nonmoving party. See Anderson, 477U.S. at 248. In deciding a summary judgment motion, the Court must viewthe record as a whole and in the light most favorable to the nonmovingparty. See Matsushita Elec., 475 U.S. at 587; Adickes, 398 U.S. at158-59. Either party may submit as evidence "pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits" to support or rebut a summary judgment motion. Fed.R.Civ.P.56(e). Supporting and opposing affidavits must be based on personalknowledge and set forth facts that would be admissible in evidence. SeeId. Unsworn statements, letters addressed to litigants, and affidavitscomposed of hearsay and non-expert opinion evidence do not satisfy Rule56(e) and must be disregarded. See Adickes, 398 U.S. at 158 n.17. Inaddition, general averments or conclusory allegations of an affidavit donot create specific factual disputes. See Lujan v. National WildlifeFed'n, 497 U.S. 871, 888-89 (1990).

B. Standard Applied: Title VII Retaliation Claim

Title VII prohibits retaliation against employees who exercise rights protected by the statute. See 42 U.S.C. § 2000e-3(a). TheCourt analyzes retaliation claims under the three-step burden-shiftingframework established in McDonnell-Douglas Corp. v. Green, 411 U.S. 792(1973) and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). SeeTomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). Under the firsttier of the McDonnell Douglas test, the plaintiff must establish a primafacie case of retaliation by showing that: (1) she engaged in a protectedactivity under Title VII; (2) the employer was aware of the protectedactivity; (3) the employee suffered an adverse employment action; and (4)there was a causal connection between the protected activity and theadverse employment action. See Galdieri-Ambrosini v. National Realty &Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998); Tomka, 66 F.3d at 1308.Upon such a showing, the defendant must articulate a legitimatenondiscriminatory reason for its action. See Holt v. KMI-Continental,95 F.3d 123, 130 (2d Cir. 1996). If the defendant meets this burden, theplaintiff must demonstrate that the defendant's explanations are a pretextfor impermissible retaliation. See Gallagher v. Delaney, 139 F.3d 338,349 (2d Cir. 1998). In order to survive a motion for summary judgment,plaintiff must establish a genuine issue of material fact as to whetherthe employer's reason for discharging her is false pretext and as to whether it is more likely thata discriminatory reason motivated the employer to make the adverseemployment decision. DeMars v. O'Flynn, 287 F. Supp.2d 230, 243-44(W.D.N.Y. 2003)

Protected activities under Title VII fall into two categories:opposition and participation. An employee engages in a protected activitywhen she has (1) "opposed any practice made an unlawful employmentpractice" by Title VII, or (2) "made a charge, testified, assisted, orparticipated in any manner in an investigation, proceeding, or hearing"under Title VII. 42 U.S.C. § 2000e-3(a). In regard to the firstcategory, the plaintiff need not show that the conduct she opposed wasactually a violation of Title VII, but only that she possessed a goodfaith reasonable belief that the underlying employment practice wasunlawful under Title VII. Manoharan v. Columbia Univ. College ofPhysicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Thus, it ispossible for an employee reasonably to believe that specified conductamounts to discrimination, even if that conduct actually would notqualify as discrimination under the law. See Ouinn, 159 F.3d at 769. TheCourt must assess the reasonableness of the plaintiff's belief in lightof the totality of circumstances. See Reed v. A.W. Lawrence & Co.,95 F.3d 1170, 1178 (2d Cir. 1996).

Defendants impermissibly retaliate in violation of Title VII when aretaliatory motive plays a part in an adverse employment action, "whetheror not it was the sole cause [and] even if valid objective reasons forthe discharge exist." Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,1038 (2d Cir. 1993). Proof of a causal connection can be provenindirectly by showing that the protected activity was followed closely bydiscriminatory treatment, see Reed, 95 F.3d at 1178; Davis v. StateUniv. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986), through other evidencesuch as disparate treatment of fellow employees who engaged in similarconduct, see DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115(2d Cir. 1987); Simmons v. Camden County Bd. of Educ., 757 F.2d 1187,1188-89 (11th Cir. 1985), or directly through evidence of retaliatoryanimus directed against the plaintiff by the defendant. See Richardsonv. New York State Dep't of Correctional Serv., 180 F.3d 426, 1999 WL391551, at *14 (2d Cir. 1999).

Courts must be "particularly cautious about granting summary judgmentto an employer in a discrimination case when the employer's intent is inquestion. Because direct evidence of an employer's discriminatory intentwill rarely be found, affidavits and depositions must be carefullyscrutinized for circumstantial proof which, if believed, would show discrimination."Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)(internalquotations omitted). However, at the same time, a plaintiff may notdefeat a motion for summary judgment by relying on "purely conclusoryallegations of discrimination, absent any concrete particulars." Meiriv. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. den, 474 U.S. 829

1. Prima Facie Case

Plaintiff failed to establish a prima facie case of retaliation inviolation of Title VII of the Civil Rights Act of 1964. Plaintiff met thefirst three prongs of the McDonald-Douglas test, as she engaged inprotected activity by filing a CHRO complaint alleging religiousharassment by her supervisor. Plaintiff also suffered adverse employmentactions, including negative work performance evaluations, refusal ofpromotion, warning letters regarding her workplace behavior, anddisciplinary actions, all culminating with her discharge of employment onNovember 10, 1998. See Burlington Indus. v. Ellerth, 524 U.S. 742, 761(1998) ("[a] tangible employment action constitutes a significant changein employment status, such as hiring, firing, failing to promote,reassignment with significantly different responsibilities, or a decisioncausing a significant change in benefits.") However, plaintiff failed toshow that there was a causal connection between the protected activityand the adverse employment actions she suffered, and therefore did notsucceed in proving a prima facie case of discrimination. See Parmlee v.Conn. Dep't of Revenue Servs., 160 F. Supp.2d 294, 304-305 (D. Conn.2001)(granting summary judgment because plaintiff "provided no evidencethat the employment decision followed close in time to the protectedactivity,[or] that he was treated differently after the complaint . ..").

Barlow has failed to produce any direct evidence of retaliatory animusthat would support a finding of a causal nexus between her complaints tomanagement and the adverse employment actions. Without direct evidence, aplaintiff can prove causation indirectly "by showing that the protectedactivity was closely followed in time by the adverse action." Monaharanv. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593(2d Cir. 1988). In this case, the extensive time lapse betweenplaintiff's protected activity and her dismissal removes any inference ofretaliation in her termination. Plaintiff made a complaint to ThomasWeirbonics, one of the DPH's Personnel Officers regarding surplus furniture beingsent improperly to DKF, in or around April or May of 1996.3(Plaintiff's Deposition at 39, 78). Subsequently, Barlow filed a CHROcomplaint regarding McLendon's alleged harassment of her religiouspreferences on August 12, 1996, which was received by the CHRO on August29, 1996. (Pl. Exh. 8; Defs. Exh. 8). Plaintiff was not terminated untilOctober 1998, over two years after she made complaints. (Def.'s Exh. 39)

Plaintiff argues that she has met the burden of showing a causalconnection between the protected activity and adverse employment actionsbecause immediately after she complained, many of her job duties weretaken away, she was scrutinized closely, she received warnings regardingher behavior, and she was given poor work performance evaluations. Sheasserts that all of these adverse employment actions were in retaliationfor engaging in protected activity. (Plaintiff's Memorandum in Oppositionto Summary Judgment at 9). However, plaintiff's conclusory allegationsthat the adverse employment actions she suffered at work were retaliatoryin nature are not enough to withstand a summary judgment motion. Western World Ins. Co. v. StackOil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). ("Mere speculation andconjecture" is insufficient to defeat a motion for summary judgment.) Seealso, Hoyt v. Pep't of Children & Families, NO. 3:02-cv-1758, 2004 U.S.Dist. LEXIS 4345 (D. Conn. March 17, 2004)(conclusory statements thatcontradict evidence are insufficient to create a genuine issue ofmaterial fact).

Barlow's amended complaint and moving papers seem to focus herretaliation claim on events that occurred after she filed the 1996 CHROcomplaint. However, at the same time, plaintiff seems to assert that shewas already retaliated against and harassed prior to her 1996 complaintbecause she complained about her supervisor Ann McLendon's unwelcomereligious harassment against her. In plaintiffs 56(a)(2) statement ofundisputed facts, she states that: Plaintiff was the recipient of retaliation. `Plaintiff complained both internally and externally regarding Ms. McLendon's unwelcome religious harassment against her . . . These activities took the form of religious gifts, pamphlets, Christian literature, cards, audio taped meddages and other communications. The above mentioned actions took place from 1988 through 1991. After making a complaint to Affirmative Action and writing a letter to the Governor's office, Ms. Barlow received no relief. The religious harassment continued until 1996 (August) when Ms. Barlow filed a complaint with the CHRO alleging religious harassment and retaliation' . . . Plaintiff was the victim of retaliation from management as a result of her filing internal and external complaints of religious harassment. Plaintiff had filed numerous complaints relative to religious harassment. (Plaintiff's Exhibit 15A, 15B).Pl.'s Statement of Disputed Facts, ¶ 25 at 16.

Plaintiff produces no evidence that she made complaints regardingreligious harassment prior to her 1996 CHRO complaint. In the above paragraph, plaintiff sights to Exhibits15A and 15B attached to her Memorandum in Opposition to Defendant'sMotion to Dismiss. While these exhibits are letters plaintiff wrote tothe EEOC and the Governer's office regarding retaliation, they were bothwritten in 1998, and therefore cannot stand as evidence that she had madeinternal complaints prior to the 1996 CHRO complaint. However, even ifthis court was to assume that plaintiff had made complaints in and around1991 regarding McLendon's religious harassment, plaintiff has stillprovided this court with evidence that she was retaliated for making suchcomplaints. In fact, the record shows that from the period of 1990 to1993, Barlow recieved some of the highest marks on her employment reviewsin her entire history of employment, and was also promoted. In 1990,1991, and 1992, McLendon rated the plaintiff's overall work performance"very good." On plaintiff's 1992 evaluation, McLendon wrote "Aurice hastaken o several new responsibilities during this year, as a result ofreduced AIDS Education staff. She has shown herself very willing to learnthese new functions." In August 1994, Barlow was promoted to the positionof Office Assistance. Because plaintiff failed to produce any evidencethat she suffered any adverse employment action during this time, thiscourt focusses the remaining discussion on whether or not plaintiff wasretaliated against subsequent to filing her EEOC and "whistleblower"complaints.

Based on the exhibits that both plaintiff and defendants submitted withtheir moving papers, it is clear that many of the changes in Barlow's jobduties and the negative performance evaluations Barlow received occurredbefore she filed her CHRO complaint in 1996. First, the evidence before the court strongly suggests that any adjustments of plaintiff'sjob duties that occurred was a result of the structural changes in theAIDS Department at that time, and was not in retaliation for hercomplaints. During the early to mid 1990's, the Aids Department of theDPH expanded its programs extensively. (Affidavit of Tom Carson). The DPHhired a contractor, Dunne Kimmel and Fein ("DKF") to perform many of thetasks that Barlow had previously been involved in. (Barlow Dep. at57-64). When pressed about the reasons for which her job duties werereduced in her deposition, plaintiff herself was unable to clearlyattribute her change in job responsibilities to the fact that she filedthe CHRO complaint regarding the religious harassment or thewhistle-blower complaint on the furniture. Plaintiff admitted that someof her old job responsibilities were taken away because the Department ofHealth began to contract out many responsibilities of Barlow when theprogram expanded. Id. at 61-2. As she explained, "when I started, it wasmaybe no more than ten people. Then, as the years went by, it grew. Moremoney came in and it got to be a better program because we needed toeducate people and have people that would give us expertise." Id. At 63.Barlow also stated that many of her job duties were taken away while thedepartment was still at their old location, before plaintiff had filed her whistleblower orCHRO complaints. (Deposition of Barlow at 39-40) Accordingly, plaintifffailed to provide sufficient facts, supported by evidence, that her jobduties were changed as a result of her engaging in protected activity.

In addition, in contrast to plaintiff's allegations, there is noevidence on the record that the disciplinary actions and poor evaluationsshe received were a result of her whistle-blowing activity or wereretaliatory in nature. In fact, as early as September 1993, Barlow'ssupervisors gave her a memorandum entitled "Workplace BehaviorExpectations" which outlined specific areas Barlow needed to improve.(Id.) Plaintiff herself submitted seven exhibits, all of which werecomplaints, letters of warning, or documentation of inappropriateincidents of behavior regarding Barlow's workplace behavior fromco-workers and supervisors, all of which were written before plaintifffiled her CHRO complaint. (See, e.g. Pl. Exh.s 9, 17, 42, 30-B).

The record also reflects the fact that defendants gave plaintiffnumerous opportunities to improve her workplace performance, butplaintiff's behavior only worsened as time went on. Plaintiff cites herfailure to be promoted to position of the AIDS Pre-professional Trainee,as evidence of retaliation. Because plaintiff received a 98 (a passingscore) on the Decentralized Promotional Exam, she was given an interview for theposition Friday, April 4, 1997. (Pl.'s Exh.'s 3-F, 3-G). On June 13,1997, plaintiff was informed that she was not offered the PPT position(Pl. Exh. 3-G). Prior to this time, plaintiff had taken a several monthvoluntary leave of absence. Upon her return in January 1997, Barlow hadexcessive absences and repeated tardiness, and had numerous explosions atwork. (Def.'s Exh. 22, 25, 5). Defendant's therefore have submittedadequate evidence that they had legitimate reasons to choose anothercandidate for the promotion.

Although under the State of Connecticut's Collective BargainingAgreement defendants could have fired plaintiff after she received hersecond unsatisfactory evaluation, they did not. (Affidavit of Tom Carson)It was not until plaintiff received her third unsatisfactory evaluationin 1998, and there had been numerous incidents where plaintiff hadaltercations with employees and exhibited combative behavior thatdefendants informed Barlow they were considering her termination. Mosttelling that defendants did not have any improper motive in its actionstoward plaintiff is the fact that the DPH offered plaintiff a last chanceagreement that would have allowed her to keep her job, with the solecondition that she discontinue her disruptive conduct at work. (Affidavitof Tom Carson, Exhibit 38). Plaintiff denied this opportunity.

For all the above reasons, this court finds that there is insufficientevidence from which a reasonable jury could conclude that the adverseemployment actions plaintiff suffered were related to the protectedactivity she engaged in, and plaintiff has not demonstrated a prima faciecase of retaliation.

2. Legitimate Non-Discriminatory Reason

Even if this court were to find an inference of discrimination in thediscipline, failure to promote, and eventual termination of plaintiff,defendants have provided a legitimate, non-discriminatory reason fortheir actions. Plaintiff's workplace behavior had been in question foralmost ten years before she was eventually terminated. Documentssubmitted by both parties suggest that the DPH attempted multiple timesto counsel plaintiff as to how to improve her performance at work. Evenafter the series of conflicts plaintiff had with co-workers and afterreceiving several unsatisfactory work evaluations, defendants still gaveplaintiff an opportunity to keep her job, which she refused. Accordingly,plaintiff has failed to provide any evidence that her own behavior was not the true reason she received the treatment shedid at work, and therefore there is no basis for finding this explanationis pretext for any discriminatory actions. Reeves v. Sanderson PlumbingProducts, Inc., 530 U.S. 133, 143 (2000). See also Meiri v. Dacon,759 F.2d 989, 997 (2d Cir. 1985)(granting summary judgment at the pretextstage where the plaintiff has "provided no indication that any evidenceexists that would permit the trier of fact to draw a reasonable inferenceof pretext."). This court therefore grants summary judgment as toplaintiff's Title VII retaliation claim.

C. Wrongful Discharge in Violation of Conn. Gen. Stat. § 31-51q

Plaintiff's Amended Complaint also alleges that the defendantsdischarged plaintiff in retaliation for her exercise of her right to freespeech and freedom of association, in violation of Conn. Gen. Stat.31-51q. Conn Gen. Stat. § 31-51g, provides in pertinent part that: any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4, or 14 of article first of the constitution of the state . . . shall be liable to such employee for damages caused by such discipline or discharge. . . .Conn. Gen. Stat. Ann. § 31-51q (West 1987).

In order to demonstrate a violation of section 31-51q, Conn. Gen.Stat., plaintiff must prove that: (1) she was exercising rights protectedby the first amendment to the United States Constitution (or anequivalent provision of the Connecticut Constitution); (2) she was firedon account of her exercise of such rights; and (3) her exercise of herfirst amendment (or equivalent state constitutional) rights did notsubstantially or materially interfere with her bona fide job performanceor with her working relationship with her employer. Lowe v. Amerigas,Inc., 52 F. Supp.2d 349, 359 (D. Conn. 1999); Winik-Nystrup v.Manufacturers Life Ins. Co., 8 F. Supp.2d 157, 159 (D. Conn. 1998). To beprotected by the first amendment, plaintiff's speech must have been on amatter of public concern, and plaintiff's interest in expressing herselfon the particular matter must not have been outweighed by any injury thespeech could cause to the employment relationship. Waters v. Churchill,511 U.S. 661, 668, (1994) (brought under 42 U.S.C. § 1983); Cotto v.United Technologies Corp., 48 Conn. App. 618, 630, 711 A.2d 1180, cert.granted in part, 245 Conn. 915 (1998). n6 Primarily, plaintiff's whistleblower complaint regarding the statefurniture and her CHRO complaint alleging religious harassment did nottouch upon a matter of public concern. Speech on a purely privatematter, such as an employee's dissatisfaction with the conditions ofh[er] employment, does not pertain to a matter of public concern." Lewisv. Cohen, 165 F.3d 154, 161-62 (2d Cir. 1999). See also Saulpaugh v.Monroe Com. Hosp. 4 F.3d 134, 144-143 (2d Cir. 1993) (finding workplaceharassment complaints that related to plaintiff's individual situationcomplaints were personal in nature and therefore do not implicate thefirst amendment). But even if plaintiff's whistle-blower complaintregarding the furniture or the religious harassment were matters ofpublic concern, she would still be unable to satisfy the causation prongof the test for the same reasons that she cannot make out a Title VIIretaliation claim. See Menes v. Cuny Univ., 92 F. Supp.2d 294, 310 (D.Conn. 2000). This court has already determined that the defendant hadlegitimate reasons to terminate Barlow, and that plaintiff failed tocreate a genuine issue of material fact as to whether the DPH's actionstoward the plaintiff were retaliatory conduct in response to plaintiffmaking complaints against her supervisors. The Court concludes,therefore, that plaintiff's wrongful discharge claim fails on the merits for the same reasons, and summaryjudgment is granted as to Count II of plaintiff's amended complaint.

D. Right to Equal Protection under 42 U.S.C. § 1983 Against Beth Weinstein.

Count Three of plaintiff's amended complaint asserts that BethWeinstein deprived plaintiff of the right to equal protection under thelaw as guaranteed by the Fourteenth Amendment, in violation of42 U.S.C. § 1983. Plaintiff alleges this deprivation occurred because sheexercised her right to free speech, and because of "her status as aperson perceived as having an emotional or psychiatric disorder."(Complaint at 12.)

So much as plaintiff is attempting to make a First Amendmentretaliation claim under 42 U.S.C. § 1983, she would be required to make asimilar showing as mandated under her first amendment wrongful dischargeclaim pursuant to Conn. Gen. Stat. Ann. § 31-51q. Philips v. Bowen,278 F.3d 103, 109 (2d Cir. 2002). Because plaintiff has not established aclaim under Conn. Gen. Stat. § 31-51q, she cannot sustain a comparableclaim under the Equal Protection Clause.

With respect to plaintiff's claim that defendant Weinstein violated herright to equal protection on the basis of her status as someone "perceived as having a mental disorder," summaryjudgment is also appropriate. In plaintiff's memorandum in opposition tosummary judgment, she did not respond to defendants' argument that Barlowfailed to meet the burden of establishing an equal protection violationbased on her perceived status of having a mental disorder. On this basisalone, the Court could consider these claims abandoned. See, e.g., Taylorv. City of New York, 269 F. Supp.2d 68, 75 (E.D.N.Y. 2003)("Federalcourts may deem a claim abandoned when a party moves for summary judgmenton one ground and the party opposing summary judgment fails to addressthe argument in any way."); Bronx Chrysler Plymouth, Inc. v. ChryslerCorp., 212 F. Supp.2d 233, 249 (S.D.N.Y. 2002) (Where plaintiff's summaryjudgment opposition papers "made no argument in support of [one] claim atall," the court dismissed the claim as "abandoned.")

In any event, this court agrees with defendants that plaintiff failedto meet the burden required to prove a selective enforcement claim under§ 1983. As the Second Circuit Court of Appeals has made clear, "aselective-enforcement claim based on the Equal Protection Clause mustallege that: `(1) the person, compared with others similarly situated,was selectively treated; and (2) that such selective treatment was based on impermissible considerations such asrace, religion, intent to inhibit or punish the exercise ofconstitutional rights, or malicious or bad faith intent to injure aperson.'" Giordano v. City of New York, 274 F.3d 740, 750-751 (2d Cir.2001) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12,16 (2d Cir. 1999). First, plaintiff has failed to provide any evidencethat Weinstein treated her differently from other similarly situatedpersons. In fact, she never event attempted to identify any individualswho were similarly situated to her. There is absolutely no evidence onthe record that there were other DPH employees who engaged in similarconduct as plaintiff, or who were perceived as being disabled, yetescaped discipline. Further, plaintiff failed to produce any evidencethat Weinstein perceived her as having a disability. In support of herequal protection claim, Barlow asserts that the fact that Weinsteinreferred her to DPH's Employee Assistance Program (EAP) each time she wasdisciplined, requested Barlow undergo a fitness for duty exam, and madecomments about Barlow's tendency to explode, proves that Weinsteinperceived her as being mentally unstable. Yet even if Weinstein didperceive Barlow as being mentally unstable, this would not qualify as adisability as defined by the American with Disabilities Act, and therefore would not constitutean impermissible consideration necessary to prove a selective enforcementclaim under § 1983.4 Consequently, summary judgment is granted asto plaintiff's § 1983 claim as well.


For the foregoing reasons, the court grants the defendants' motion forsummary judgment [Dkt. No. 47] in its entirety. The defendants' motion tostrike certain exhibits is granted in part and denied in part [Dkt. No.62]. Defendants' motion to strike portions of the plaintiff's 56(a)(2)statement is DENIED as moot [Dkt. No. 62].

The Clerk is hereby directed to close this file.


1. Defendants' challenge plaintiff's characterization of her complaintregarding the furniture as a whistleblower action, because it was anafter-the-fact complaint about an incident unlikely to be repeated, butthis court will continue to refer to this incident as the whistleblowercomplaint, as defendants chose to do in their moving papers, for ease ofidentification.

2. Even considering these documents, however, this court still findsplaintiff has failed to produce any evidence of retaliatory conduct bythe DPH.

3. In plaintiff's deposition, she could not remember the exact dateshe notified Weirbonics about the furniture issue, but testified that itwas after the DPH moved to 410 Capitol Ave., which occurred on March 31,1996. (Affidavit of Tom Carson).

4. A disability is defined as (a) "a physical or mental impairmentthat substantially limits one or more of an individual's major lifeactivities . . ." 29 C.F.R. § 1602(j)(1). Ironically, while asserting shewas wrongfully perceived as having a mental disability, plaintiffseemingly is trying to convince this court that she has a hearingdisability, in order to account for all the complaints regardingplaintiff's inappropriately loud voice as disruptive and unprofessional.

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