RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. NO. 38]
Plaintiff Patricia Grey asserts claims of unlawful discriminationbased on Title VII (42 U.S.C. § 2000e et seq.) theConnecticut Fair Employment Practices Act, Conn. Gen. Stat. §46a-60(a)(1) ("CFEPA"), and 42 U.S.C. § 1983, and common lawnegligent infliction of emotional distress. Defendants City of NorwalkBoard of Education ("Board"), Superintendent Victor Herbert, andnow-former Deputy Superintendent Greg Riccio (hereinafter referred to as"defendants") move for summary judgment. For the following reasons, themotion is granted in part and denied in part.
I. BACKGROUND
Plaintiff Patricia Grey, PhD, an African-American female, served as theNorwalk Public Schools' Director of Curriculum and Assessment from July1994 until September 1999. She contends that she suffered in a hostilework environment and was ultimately constructively discharged from herposition with the District because of a series of incidentsPage 2between July 1998 and her resignation in September 1999. Greydescribes the series of incidents detailed below.1
Herbert became the District Superintendent in July 1998. Soon after,the position of Deputy Superintendent became available. Grey approachedHerbert about the job, but Herbert told her "she should not apply for theposition." Aff. of Patricia Grey, PL's Rule 56(a)(2) Statement, Ex. B,("Grey Affidavit") at ¶ 5 [Dkt. No. 39]. Herbert placed her onprobation for not meeting her job responsibilities. Id. at¶ 22. Caucasians with fewer responsibilities, which were not beingmet, were not put in any type of a probationary process. Id.
Herbert hired Riccio during the fall of 1998. Shortly after Riccio tookover the Deputy Superintendent position, he approached Dr. Grey and toldher that she should "look out for yourself" and start trying to find aSuperintendent position at another school district or with a privatecorporation. Id. at ¶ 13. In January 1999, Riccio told Greythat her position was being eliminated at the end of the 1998-99 schoolyear. Id. at ¶ 28.
On or about January 25, 1999, Grey learned that Herbert had asked hissecretary to type a letter notifying Grey that she was being terminated.When Grey confronted Herbert, he denied the charge. Id. at¶ 30.
Grey claims that the administration also gave her the responsibilitiesof threePage 3supervisors who were eliminated or had assignments removed fromthem, but did not give her extra secretarial support even though two ofthose supervisors had worked with full-time secretaries. Id. at1; Grey Aff. at ¶ 2.
In a meeting on January 26, 1999, Herbert eliminated all of Grey'sresponsibilities except oversight for elementary education. Id.at ¶ 20. Herbert said that "perhaps [Grey] could do that one thingwell." Aff. at ¶ 21. He said in a January 27, 1999 memo that he didthis in response to her concerns that she had too much to do. 1/27/99Memo from Herbert to Grey, PL's Rule 56(a)(2) Statement, Ex. D [Dkt.No. 39]. Grey responded on January 29, asserting that she "nevercomplained about and never asked to be relieved of any of my 16responsibilities or other initiatives, projects, and partnership.Although I have said that I have a lot to do and need sufficient staffsupport to accomplish everything to the degree the district expects."1/29/99 Memo. from Grey to Herbert, PL's Rule 56(a)(2) Statement, Ex. Aat 2 [Dkt. No. 39].
In March, Riccio interrupted a meeting of district principals chairedby Grey and demanded to discuss an item not on the agenda. Grey saw thisas a usurpation of her authority in front of her subordinates.Id. at ¶ 31. These actions never occurred with white maleadministrators in the district. Id. at ¶ 31.
During the time from January to June 1999, Herbert also sent Grey pettyreprimands that were not sent to white male employees. Id. at¶ 34. Grey received a positive evaluation in June 1999, with a fewnoted areas for improvement. Riccio, "CabinetPage 4Self-Evaluation," Defs' Local Rule 9(c)(1) Statement [Dkt. No. 36],Ex. E.
Many people, including Board of Education President Rosa Murray,advised Grey to contact an attorney, suspecting that she was the victimof racial discrimination. When a special Board meeting was scheduled inJune 1999, about 50 community members fearing termination of Greyappeared at the meeting to support her. Herbert cancelled the meeting.Grey Aff. at ¶ 35.
Grey further alleges that she was the only one of her colleagues notallowed to "cross-train secretaries" for different responsibilities andthat she was not compensated for extra technology-relatedresponsibilities, though a white, male colleague was. Id. at¶ 11.
Herbert informed Grey on July 15, 1999, that he wanted to buy out hercontract. Id. at ¶ 42. Herbert said to consider herself"finished" and not to come to work. Grey insisted on remaining at workuntil a separation agreement was reached. Id. at ¶ 42, 46.
Herbert suggested on July 28, 1999, that she prepare a letter ofresignation and outline proposed separation terms for the Board.Id. at ¶ 44. Grey refused to prepare the letter,id., but did compose a memo setting forth proposed separationterms. Defs.' Local Rule 9(c)(1) Statement, Ex. K [Dkt. No. 36].
The Board refused to accept a separation proposal at its August 31,1999 meeting, in which the Board met with Herbert while Grey remainedoutside. Grey Aff. at ¶ 45. Afterwards, Board President Murray toldGrey that the Superintendent had told the Board that Grey had approachedhim and proposed the buyback, and had also not shared hisPage 5memos of July 15 and July 28 with the Board. Id. at ¶45.
In September, Grey contends that the aggregation of these events pushedher to the point of being physically and emotionally unable to return towork at Norwalk. She provided the Board with notice on September 16,1999. Id. at ¶ 46.
Grey filed an EEOC claim on March 8, 2000, alleging discriminationbased on race, color, sex, and age. PL's Mem. and Rule 56(a)(2)Statement, Ex. M [Dkt. No. 39]. She also filed claims with the CHRO.Id. 14 at 15; Defs.' Local Rule 9(c)(1) Statement, Ex. N [Dkt.No. 36].
Grey filed this action on October 20, 2000, alleging race, nationalorigin, sex, and age discrimination in violation of Title VII; race,national origin, sex, and age discrimination in violation of theConnecticut Fair Employment Practices Act; violation of her fourteenthamendment right to equal protection of the laws, brought under42 U.S.C. § 1983; and negligent infliction of emotional distress.
II. DISCUSSION
A. Standard
The role of the court on summary judgment is "not to try issues offact, but only to determine whether there are issues of fact to betried." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). In a motion for summary judgment, the burden is on the movingparty to establish that there are no genuine issues of material fact indispute and that it is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c); Anderson v. LibertyPage 6Lobby, Inc., 477 U.S. 242, 256 (1986); MarvelCharacters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). Oncethe moving party has met its burden, in order to defeat the motion, thenonmoving party must "set forth specific facts showing that there is agenuine issue for trial," Anderson, 477 U.S. at 256, andpresent such evidence that would allow a jury to find in his favor.Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Inassessing the record, the trial court must resolve all ambiguities anddraw all inferences in favor of the party against whom summary judgmentis sought. Anderson, 477 U.S. at 255. "Summary judgment isimproper if there is any evidence in the record that could reasonablysupport a jury's verdict for the non-moving party." Lucente v. Int'lBus. Mach. Corp., 310 F.3d 243, 253 (2d Cir. 2002).
The plaintiffs, however, cannot escape summary judgment merely byasserting that unspecified disputed material facts exist or throughconjecture or speculation. Harlen Assocs. v. Inc. Vill. ofMineola, 273 F.3d 494, 499 (2d Cir. 2001). If little or no evidencesupports the non-moving party's case, there is no genuine issue ofmaterial fact and summary judgment may be appropriate. Gallo v.Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24(2d Cir. 1994). Disputed facts that are not material to the issues in thecase may not defeat summary judgment. Hemphill v. Schott,141 F.3d 412, 416 (2d Cir. 1998). See also Anderson, 477 U.S. at247-48 (the "mere existence of some alleged factual dispute between theparties will not defeat an otherwise properly supported motion forsummary judgment; the requirement is that there be no genuine issue ofmaterial fact").Page 7
B. Title VII Claims
Grey claims that the defendants discriminated against her based on herrace, sex, age, and national origin, in violation of Title VII. Thedefendants argue that (1) age discrimination is not cognizable underTitle VII; (2) that the actions complained of do not support an inferenceof constructive discharge; (3) that the harassment alleged by Grey isinsufficient to support a hostile work environment claim; and (4) thatGrey did not exhaust her national origin claim.
Under Title VII, a claim for employment discrimination is governed bythe burden shifting analysis of McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973). This analysis requires the plaintiff tofirst establish a prima facie case of discrimination. To do so, theplaintiff must show that: (1) she is a member of a protected class; (2)she was qualified for the position; (3) she experienced an adverseemployment action; and (4) the adverse action occurred undercircumstances giving rise to an inference of discrimination.Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)(citing McDonnell Douglas, 411 U.S. at 802). This prima faciecase creates a presumption that the employer unlawfully discriminatedagainst the plaintiff, and the burden then shifts to the employer to"articulate a legitimate, clear, specific and nondiscriminatory reason"for its actions. Ouaratino v. Tiffany & Co., 71 F.3d 58, 64(2d Cir. 1995): see also Texas Dep't of Cmty. Affairs v.Burdine, 450 U.S. 248, 254 (1981). If the employer does so, theplaintiff then has the burden to establishPage 8by a preponderance of the evidence that the employer's statedreason was merely a pretext for discrimination. Reeves v. SandersonPlumbing Products, Inc., 530 U.S. 133, 143 (2000).
1. Proper Title VII Parties (Individual Defendants)
As an initial matter, the court notes that a Title VII claim cannot bebrought against individual supervisory employees, but only against theemployer itself. See, e.g., Looby v. City of Hartford,152 F. Supp.2d 181, 184 (D. Conn. 2001) (citing Tomka v. SeilerCorp., 66 F.3d 1295, 1314-17 (2d Cir. 1995), abrogated on othergrounds, Burlington Indus, v. Ellerth, 524 U.S. 742 (1998)). Asa result, summary judgment is granted on the Title VII claims againstHerbert and Riccio.
2. Age Discrimination/Title VII (Board)
Next, the court agrees with the defendants that age discrimination isnot within the scope of Title VII. That statute makes it "an unlawfulemployment practice" for an employer to "discharge or otherwisediscriminate against any individual . . . because of such individual'srace, color, religion, sex, or national origin."42 U.S.C. § 4000e-2(a)(1). See also Barbara Lindemann and Paul Grossman,Employment Discrimination Law 5 (3rd ed. 1996). The Age Discrimination inEmployment Act, 29 U.S.C. § 621-34 ("ADEA"), prohibits agediscrimination, but Grey does not reference the ADEA in her complaint orpapers. Thus, summary judgment is granted on Grey's Title VII agediscrimination claim.Page 9
3. National Origin Discrimination/Title VII (Board)
a. Exhaustion
The Board argues that Grey's claim of discrimination on the basis ofnational origin is barred because she failed to raise it before the EEOC.A plaintiff must raise claims of discrimination at the applicableadministrative agency before pursuing those claims in federal court. Aclaim is exhausted if it was actually raised or is "reasonably related"to a claim raised. Butts v. City of New York Dep't of HousingPreserv. and Dev., 990 F.2d 1397, 1402 (2d Cir. 1992), superseded onother grounds by statute as stated in Hawkins v. 1115 Legal Serv.Care, 163 F.3d 684 (2d Cir. 1998).
The Second Circuit has recognized three situations in which a claim is"reasonably related." First, a non-exhausted claim is "reasonablyrelated" when its omission is essentially due to "loose pleading," andwhen the claim is within the scope of the investigation which wouldreasonably be expected to grow out of the agency claim. Butts,990 F.2d at 1402. The second type of allowed, related claim is onealleging retaliation for filing a claim before the agency itself.Id. The third is where the unexhausted claim is a post-agencyincident of discrimination carried out in precisely the same manner asthe action complained of to the agency. Id.
Because Grey's unexhausted national origin claim arises out of the sameincidents as those alleged, suggesting a different basis for those sameevents, only the first type ofPage 10"related" claim could be at issue here. Grey raised discriminationon the basis of sex, race, age, and color with the EEOC. PL's Mem. andRule 56(a)(2) Statement, Ex. M [Dkt No. 39]. In her complaint in thisaction, Grey states that she is "of African descent" and that thedefendants also discriminated against her on that ground.
While "race" and "color" are somewhat related to "national origin,"they are distinct bases for discrimination. While the investigation intoher claim would have encompassed the way she was treated versus non-blackemployees, male employees, or younger employees, a national origin claimwould in theory entail an investigation into how other employees ofnon-African descent were treated.
The content of Grey's Title VII allegations in the complaint, however,seems to treat discrimination against her because of her national originas identical to discrimination against her because of her race.See Compl. at ¶ 38 ("The City of Norwalk Board of Educationtreated the Plaintiff differently than other similarly situated whitemale administrators and younger administrators"). Fact-wise, this wouldmake the claims related. See Forbes v. State Univ. Of New York atStony Brook, 259 F. Supp.2d 227, 233-34 (E.D.N.Y. 2003)(plaintiff's ethnicity claim was reasonably related to her EEOCallegations of race, color, and sex discrimination because they were"essentially the same claim"). For purposes of this motion, the courtconcludes there was exhaustion of the national origin claim.Page 11
b. Prima Facie Case
However, Grey does not present any evidence to support a prima faciecase of national origin discrimination. All Grey alleges is that she isof "African descent"; she then presents evidence that she wasdiscriminated against because of her race. See, e.g., Grey Aff.at ¶ 10, 11, 22, 31, 34 ("Caucasian male," "white male"). Even if thecourt assumes that her statement that she is "African-American,"id. at ¶ 22, establishes her membership in a protected"national origin" class, and even if it does set forth a prima facie caseof race discrimination, it does not set forth circumstances giving riseto an inference of discrimination on the basis of "national origin."Without any evidence to support that basis, summary judgment on theplaintiff's Title VII national origin claim is granted.
4. Constructive Discharge/Title VII (Board)
The defendants also argue that the actions of which Grey complains didnot rise to the level of intolerability necessary to establishconstructive discharge. The court disagrees and denies summary judgmenton this claim.
To present a prima facie case of discriminatory discharge action underTitle VII, Grey must show that she was either actually or constructivelydischarged, and that "the discharge occurred in circumstances giving riseto an inference of discrimination on the basis of herPage 12membership in a protected class." Terry v. Ashcroft,336 F.3d 128, 152 (2d Cir. 2003).2
a. Constructive Discharge Showing
Constructive discharge occurs when an employer "intentionally createsan intolerable work atmosphere that forces an employee to quitinvoluntarily." Id. at 151-152 (citing Kirsch v. FleetSt., Ltd., 148 F.3d 149, 161 (2d Cir. 1998). Chertkova v. Conn.Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)). "The effect ofadverse conditions is cumulative." Id. at 90.
Grey presents a variety of circumstances that, combined, she arguesmade her situation "intolerable," including: the repeated threat that herposition would be eliminated; a rumored letter announcing hertermination; Riccio's public usurpation of her authority in front of hersubordinates; the administration's manipulation of her curricularresponsibilities; petty reprimands; and Herbert's suggestion that theDistrict buyback her contract and his subsequent comment that she shouldconsider herself "finished." Together, these circumstances support areasonable inference of constructive discharge. On Grey's version of thefacts, the fact-finder could determine that it was reasonable for her toassume that she was "compelled to leave." Id.
Moreover, threats of termination alone are sometimes sufficient to showconstructivePage 13discharge. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184,1188 (2d Cir. 1987). Here, Riccio told Grey to "watch out for herself,"and warned her that her job would be eliminated at the end of the year.This also supports an inference of constructive discharge, especiallywhen combined with the other actions that Grey alleges. SeeChertkova, 92 F.3d at 90 (supervisor's comment to plaintiff that shewould not "be around" supported finding of constructive discharge);Terry, 336 F.3d at 153 (supervisor's comments to plaintiff that"your days are numbered" and that his "life's over with" and "you'regoing to be brought up on more charges" would allow a reasonable personto infer that he was not wanted as an employee and that he was going tobe forced out).3
Grey's version of the facts, if believed, would also establish that theBoard deliberately sought to compel her to leave her position. SeeStetson v. Nynex Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993). Forinstance, Grey alleges that Herbert approached her about a contractbuyback, then lied to the Board when he presented her proposal,representing instead that she had initiated the buyback. This occurredafter she had been told several times that her position would beeliminated and warned to watch out for herself.Page 14
b. Inference of Discrimination
1. Race. Grey presents a variety of facts to support herracial discrimination claim. She alleges, and attests in her affidavit,that Riccio usurped her authority at a meeting with her subordinates, andthat she discussed the issue of racial discrimination with him then. Shefurther contends that the Board of Education treated her differently thanother similarly situated white male administrators. She alleges thatduring the period January through June 1999, she received support fromBoard of Education members and employees, who expressed their belief thatDr. Grey was the victim of discrimination and advised her to contact andattorney, including Board of Education President Rosa Murray. Greyfurther draws the court's attention to a September 2000 CHRO decisionfinding the City of Norwalk Board of Education liable for race, color,and age discrimination in its decision to deny a Norwalk teacher, JohnSaunders, promotion to assistant principal in 1997. PL's Rule 56(a)(2)Statement, Ex. K [Dkt. No. 39]. Grey also claims that she was not givenextra compensation for her technology-related duties, though a white,male colleague was. Grey Aff. at ¶ 11. Finally, Grey's affidavitrecounts numerous conversations with Norwalk officials, acknowledging thediscrimination that she was suffering, including one Board Member, RickFuller, who commented that "he predicted that all minorities would beeliminated from the Central Office by Victor Herbert." Id. at¶ 39.
"[D]irect evidence of discrimination is not necessary." Lizardo v.Penny's, Inc.,Page 15270 F.3d 94, 104 (2d Cir. 2001) (citing Norton v. Sam's Club,145 F.3d 114, 119 (2d Cir. 1998)). "If there is sufficient circumstantialevidence on which to build a case, it is for the jury to determine whatinferences can be drawn from that evidence." Id. Indeed,circumstantial evidence is common in discrimination suits, because "[a]nemployer who discriminates is unlikely to leave a `smoking gun,' such asa notation in an employee's personnel file, attesting to a discriminatoryintent." Norton, 145 F.3d at 119 (quoting Rosen v.Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991)). Grey has thuspresented evidence that satisfies her prima facie burden. The Board doesnot appear to offer an alternative, legitimate reason to explain theevents she describes; as a result, especially given the fact-intensiveinquiry that questions of employer intent involve, Grey has presentedample evidence to proceed to trial on her Title VII race discriminationconstructive discharge claim.
2. Sex. Grey's sex discrimination claim presents moredifficulty. As with race discrimination, the initial burden in a sexdiscrimination claim is on the plaintiff to establish a prima facie caseof discrimination. Weinstock, 224 F.3d at 42.
Grey has not come forward with evidence to support a prima facie caseof sex discrimination. She repeatedly alleges that "white males" weretreated differently and points out that a white male colleague wascompensated for his technology responsibilities while she was not. Shegives no additional evidence to support her case and provides noPage 16comments based on sex. "[A] plaintiff must proffer some admissibleevidence of circumstances that would be sufficient to permit an inferenceof discriminatory motive." See Bennett v. Watson Wyatt &Co., 136 F. Supp.2d 236, 246 (S.D.N.Y. 2001). The evidence thatGrey presents regarding one male colleague, who is white, without furtherinformation regarding those circumstances or any other evidence regardingsex discrimination, is insufficient for a jury to draw the inference ofsex discrimination. Thus she has not met even the "de minimus" burdenrequired of her at this stage. See Cronin v. Aetna Life Ins.Co., 46 F.3d 196, 203-04 (2d Cir. 1995).
c. Board's Liability
As the discussion above suggests, there is also a sufficient basis forholding the Board liable under Title VII for the discrimination, thoughthe defendants have not raised this issue. Under Title VII, an "employer"is defined as "a person engaged in an industry affecting commerce . . .,and any agent of such person." 42 U.S.C. § 2000e(b)(emphasis added): see also Levendos v. Stern Entm't. Inc.,909 F.2d 747, 751 (3rd Cir. 1990) (the action of supervisors is imputed tothe employing entity through agency principles). "The term `agent' is notdefined by Title VII, but has been interpreted by courts as an individualwho serves in a supervisory position and exercises significant controlover the plaintiff's hiring, firing or conditions of employment."Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6thCir. 1994) (internal citations omitted).Page 17
Here, Grey alleges discriminatory conduct by the District's topofficials, the Superintendent and Deputy Superintendent. She furtheralleges that Board members, including the Board President, told her thatthey thought she was a victim of discrimination and that she should get alawyer, and that they were aware that Herbert had lied to them about thecircumstances of the buyback. By Grey's facts, then, the Board wasexplicitly aware of the discrimination and allowed it to continue, thenratified her constructive discharge. See also infra at 27-28(discussing Board's liability under § 1983).
For all these reasons, summary judgment on Grey's Title VIIconstructive discharge claim against the Board is denied with regard torace discrimination; granted with regard to sex, age, and national origindiscrimination.
4. Title VII Hostile Work Environment Claim (Board)
The Board also seeks summary judgment on Grey's hostile workenvironment claim. "A hostile work environment claim requires a showing[1] that the harassment was sufficiently severe or pervasive to alter theconditions of the victim's employment and create an abusive workingenvironment, and [2] that a specific basis exists for imputing theobjectionable conduct to the employer." Alfano v. Costello,294 F.3d 365, 373 (2d. Cir. 2002).
a. Hostile Work Environment Showing
Demonstrating that conduct was sufficiently severe to alter the termsof the plaintiffsPage 18employment has "objective and subjective elements: the misconductmust be severe or pervasive enough to create an objectively hostile orabusive work environment, and the victim must also subjectively perceivethat environment to be abusive." Terry, 336 F.3d at 128(internal quotations omitted). The court must consider "the frequency ofthe discriminatory conduct; its severity; whether it is physicallythreatening or humiliating, or a mere offensive utterance; and whether itunreasonably interferes with an employee's work performance."Id. (quoting Harris v. Forklift Sys., Inc.,510 U.S. 17, 23 (1993)).
As with constructive discharge, the court examines the totality of thecircumstances. Id. (quoting Richardson v. New York StateDep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999)). While thisis a case-by-case analysis, "a plaintiff alleging a hostile workenvironment must demonstrate either that a single incident wasextraordinarily severe, or that a series of incidents were sufficientlycontinuous and concerted to have altered the conditions of her workingenvironment." Alfano, 294 F.3d at 373 (quoting Cruz v.Coach Stores. Inc., 202 F.3d 560, 570 (2d Cir. 2000)) (internalquotation marks omitted). "When the workplace is permeated withdiscriminatory intimidation, ridicule, and insult, that is sufficientlysevere or pervasive to alter the conditions of the victim's employmentand create an abusive working environment, Title VII is violated."Harris, 510 U.S. at 21 (internal quotations omitted).
The Second Circuit recently clarified the showing necessary forestablishing a hostilePage 19work environment claim in Terry v. Ashcroft, 336 F.3d 128(2d Cir. 2003). The Circuit cautioned, "While the standard forestablishing a hostile work environment is high, we have repeatedlycautioned against setting the bar too high, noting that while a mild,isolated incident does not make a work environment hostile, the test iswhether the harassment is of such quality or quantity that a reasonableemployee would find the conditions of her employment altered for theworse." Id. at 148 (quoting Whidbee v. GarzarelliFood Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000)) (internalquotation marks omitted) (emphasis in original).
Grey alleges that her supervisors harassed her in several ways thataltered her job for the worse. She claims, among other things, thatHerbert and Riccio manipulated her responsibilities, undermined her infront of her subordinates, sent her petty reprimands, and did not allowher the customary secretarial support for her duties, trying to set herup to fail. While this type of harassment may be different than, forinstance, that alleged in Richardson, 180 F.3d at 438-40, wherethe plaintiff claimed, among other things, that co-workers had put hairin her food and shot rubberbands at her, it nonetheless createdcircumstances in which the conditions of Grey's employment were alteredfor the worse. See Terry, 336 F.3d at 148.
Grey's claims also differ from many hostile work environment claimsbecause she does not allege any explicitly racial or sexist remarks aspart of her evidence. Instead, shePage 20Grey merely alleges that she was treated differently from white,male supervisors. Though hostile environment claims often involve racialor sexual remarks, see, e.g., Richardson, 180 F.3d at 434, thealleged harassment need not be explicitly sexual or racial, though abasis must exist for inferring that the conduct occurred becauseof the defendant's membership in the protected class. SeeAndrews v. City of Philadelphia, 895 F.2d 1469, 1485 n.6 (3d Cir.1990): Ricks v. Conde Nast Publ'n, Inc., 92 F. Supp.2d 338,349 (S.D.N.Y. 2000), aff'd, 6 Fed. Appx. 74 (2d Cir. 2001). TheSupreme Court has explicitly held that these inferences can beestablished by direct comparative evidence. Oncale v. SundownerOffshore Servs., Inc., 523 U.S. 75, 81 (1998) ("A same-sexharassment plaintiff may also, of course, offer direct comparativeevidence about how the alleged harasser treated members of both sexes ina mixed-sex workplace, [but]. . . must always prove that the conductat issue . . . actually constituted "discrimina[tion]. . . becauseof . . . sex."); see also Ricks, 92 F. Supp.2d at 349 (itis an "open question" whether plaintiff's sole proof of intent that shewas treated differently from the non-African-American account managerswas sufficient to support hostile work environment claim).
b. Inference of Discrimination
1. Sex. As discussed above, Grey's bare allegation that shewas treated differently from males and her identification of one whitemale whom she alleges was compensated for technology responsibilitieswhile she was not is insufficient support for her case to go to thePage 21jury on sex discrimination. See supra, 15-16. Sheprovides no additional evidence to support her case, provides no commentsbased on sex, and does not even identify the other similarly situated"males" who were treated differently. As a result, she has not created anissue of fact on this claim.
2. Race. Also as discussed above, Grey does presentsufficient support for her case that the workplace hardships she enduredwere because of her race. See supra, 14-15. The courtrecognizes that questions of employer intent, like those in this case,involve "an assessment of individuals' motivations and state of mind,"Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001), anassessment better left to the trier of fact than to the court on summaryjudgment. Moreover, Grey presents evidence that others commented on thediscrimination, and attributed mistreatment of her to her race. See,e.g., Grey Aff. at ¶¶ 38-41.
As a result, the defendants' motion for summary judgment on Grey'sTitle VII hostile work environment claim against the Board is denied asto race discrimination, and granted as to sex, age, and national origindiscrimination.4Page 22
C. Connecticut Fair Employment Practices Act
1. Individual Claims
As with Title VII, Grey cannot assert claims against individualsupervisors under CFEPA. See Perodeau v. City of Hartford,259 Conn. 729 (2002). As a result, Grey's individual CFEPA claims againstHerbert and Riccio are dismissed.
2. Claims Against the Board
The defendants argue that summary judgment should also be granted onGrey's CFEPA claims against the Board. They content that, as with Grey'sTitle VII claims, she has failed to show constructive discharge, and hasalso "failed to establish that she suffered from discriminatoryharassment sufficient to alter the conditions of her workplace." Defs.'Mem. In Supp. Of Summ. J. at 2.
The court looks to federal employment anti-discrimination law forguidance in enforcing Connecticut's anti-discrimination statute. SeeBrittell v. Dept. of Corr., 247 Conn. 148 (1998) (relying on SecondCircuit's opinion in Chertkova); Levy v. Comm'n on Human Rights andOpportunities, 35 Conn. App. 474 (1994). As discussed above, Grey haspresented sufficient evidence from which a reasonable trier of fact couldinfer that she was constructively discharged. See supra 12-13.Summary judgment on Grey's constructivePage 23discharge race discrimination claim against the Board is thusdenied.
Grey has also, for the reasons discussed above in relation to her TitleVII claims, produce sufficient evidence to proceed to trial on her racediscrimination hostile work environment claim. Thus the defendants'motion for summary judgment on that CFEPA hostile work environment racediscrimination claim is also denied.
Grey has not presented sufficient evidence to create a prima facie caseon her sex discrimination claim. As discussed above in relation to TitleVII, Grey must come forward with sufficient evidence to support a jury'sreasonable inference that she was discriminated against because of hersex. She has not done so. See supra at 15-16. The court thusgrants summary judgment on Grey's CFEPA sex discrimination claim.
Unlike under Title VII, age discrimination is actionable under CFEPA.See Conn. Gen. Stat. § 46a-59. However, the plaintiff haspresented absolutely no evidence on that claim: no evidence from which ajury could infer that any action of the defendants was based even in parton age, and only one repeated bare allegation that younger employees weretreated differently. Compl. at ¶ 38. As a result, summary judgment onGrey's CFEPA age discrimination claims is granted.
Finally, for the reasons discussed above in relation to Title VII, Greyhas not made the required prima facie showing as to national origindiscrimination. See supra at 10-11. (discussing national originshowing required by Title VII to state a prima facie case).Page 24Summary judgment is granted on that claim.
D. Section 1983 Claims
The defendants also move for summary judgment on Grey's § 1983claims in Count 3 of the Complaint, arguing that she has failed to allegethat the defendants intentionally sought to discriminate against theclass of plaintiffs of which she is a part. The defendants further arguethat, in any case, Grey has not demonstrated that the Board was involvedin the discrimination such as to be held liable under § 1983, andthat Herbert and Riccio are entitled to qualified immunity.
1. Pleading Requirements
The defendants claim that Grey has not properly pled her § 1983equal protection violation claim, and that as a result it must fail. Thisargument is without merit.
A plaintiff may plead concurrent violations of Title VII and § 1983(or, indeed, only § 1983 claims) against a municipal government bodyas long as the constitutional claims allege the violation of aconstitutional right. See Annis v. County of Westchester,36 F.3d 251, 255 (2d Cir. 1998): Gierlinger v. New York StatePolice, 15 F.3d 32, 34 (2d Cir. 1994). There is a long-recognizedconstitutional right to be free from sex discrimination in publicemployment. See Annis, 36 F.3d at 254 (citing Davis v.Passman, 442 U.S. 228 (1979)). Similarly, Grey also has aconstitutional right to be free from discrimination based on her race ornational origin. See, e.g., Hazelwood School Dist. v. UnitedStates,Page 25433 U.S. 299, 316 n. 3 (1977).
The defendants argue that Grey has failed to allege an "intent todisadvantage all members of a class that includes plaintiff," as requiredto state an equal protection claim. Weixel v. Board of Educ. of Cityof New York, 287 F.3d 138, 151 (2d Cir. 2002). However, theplaintiff in Weixel did not allege that the school haddiscriminated against her because of an intent to disadvantage a class ofwhich she was a member, or allege anything else that would state an equalprotection claim. Instead, the complaint, as described by the districtcourt, alleged only that the "[d]efendant . . . failed to afford [theplaintiff child] `equal treatment under the law as other children wereevaluated academically before deciding on class placement.'" Weixelv. Board of Educ. of City of New York, 2000 WL 1100395 at * 7(S.D.N.Y. August 7, 2000). The district court concluded that the equalprotection claim had to be dismissed because, among other things, theplaintiff did not "allege that the school discriminated against aparticular class of students when it failed to test [plaintiff] or place[plaintiff] in her eighth grade class." Id. The Second Circuitaffirmed this portion of the opinion. Weixel, 287 F.3d at 151.
Here, however, Grey does allege an intent to disadvantage thegroups of which she is a member. She alleges at the beginning of hercomplaint that she was "discharged after several months of race, sex, ageand national origin discrimination," Compl. at ¶ 1, and in hersupport of her equal protection claim, alleges that the "three DefendantsdiscriminatedPage 26against Plaintiff on the basis of her race, national origin, andsex by harassing her and ultimately causing her constructive dischargefrom the school district in September 1999." Compl. at ¶ 49. This andthe rest of Grey's § 1983 pleading is sufficient.
2. § 1983 Race Discrimination Claim
Grey claims that the defendants discriminated against her because ofher race, in violation of the fourteenth amendment to the Constitution."A state and its instrumentalities may not deny `any person within itsjurisdiction the equal protection of the laws.'" Sound AircraftServs., Inc. v. Town of East Hampton, 192 F.3d 329, 335 (2d Cir.1999) (quoting U.S. Const. Amend. XIV). "At its core, equal protectionprohibits the government from treating similarly situated personsdifferently." Id.
Employment discrimination claims brought under § 1983 are analyzedaccording to the same standards as used to evaluate Title VII claims.See Tessamy v. City of New Rochelle, New York, 292 F. Supp.2d 498,511 n.15 (S.D.N.Y. 2003) (citing Whidbee v. Garzarelli FoodSpecialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); Sorlucco v.N.Y. City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989)). This analysisrequires the plaintiff to first establish a prima facie case ofdiscrimination. See, e.g., Weinstock, 224 F.3d at 42.
As the court concluded with regard to the Title VII claims, Greypresents sufficient facts in support of her racial discrimination claimto state a prima facie case. See supra at 14-15. Grey has thuspresented ample evidence to proceed to trial on her equal protectionPage 27claim of race-based discrimination.
a. § 1983/Race (Board)
The Board may not be held liable under § 1983 for the actions ofindividuals solely on a theory or respondeat superior. Jeffes v.Barnes, 208 F.3d 49, 56-57 (2d Cir. 2000) (citing Monell v.Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). The Second Circuithas found that a municipality may be held liable under § 1983 whenthe injury was inflicted by its "lawmakers or by those whose edicts oracts may fairly be said to represent official policy." Jeffes,208 F.3d at 57. Additionally, a supervisor's acquiescence to the actionsof his subordinates may amount to a policy or custom, if thesubordinate's "discriminatory practice [is] so manifest as to imply theconstructive acquiescence of senior policy-making officials." Wimmerv. Suffolk County Police Dep't, 176 F.3d 125, 137 (2d Cir. 1999)(citing Sorlucco v. New York City Police Dep't, 971 F.2d 864,870 (2d Cir. 1992). When a subordinate's decision is subject to review bythe municipality's authorized policy makers, "their ratification would bechargeable to the municipality because their decision is final."City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Greymay thus hold the Board liable under § 1983 for discriminatorytreatment by Herbert and Riccio, if she can demonstrate that the Board"knew of and ratified the discrimination." Looby, 152 F. Supp.2dat 187 (citing Monell, 436 U.S. at 690-91).
Here, Grey alleges that Board members advised her to get a lawyerbecause she was aPage 28victim of racial discrimination, and that one member commented that"he predicted that all minorities would be eliminated from the CentralOffice by Victor Herbert." Grey Aff. at ¶ 39. The Board failed to actto remedy the discrimination, and eventually ratified what Grey claimswas her constructive discharge. These facts, if proven to the jury, are asufficient basis to find the Board liable for Herbert's and Riccio'sconduct under § 1983.
b. Qualified Immunity/§ 1983/Race (Riccio andHerbert)
Finally, the defendants argue that Riccio and Herbert are entitled toqualified immunity on Grey's § 1983 race discrimination claim.5 Agovernment official sued in his individual capacity is entitled toqualified immunity for a constitutional violation if, considering therecord as construed in the plaintiff's favor, the constitutional right inquestion was not "clearly established" at the time of the conduct, or ifthe official's action was objectively reasonable. See Saucier,533 U.S. at 201; X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66(2d Cir. 1999). The question is "what a reasonable person in thedefendant's position should know about the constitutionality of theconduct." McCullough v. Wyandanch Union Free Sch. Dist.,187 F.3d 272, 278 (2d Cir. 1999) (citation omitted).
Grey's right to be free from discrimination because of her race waswell-established at the time of the events that gave rise to this suit.See, e.g., Hazelwood Sch. Dist. v. United States, 433 U.S. 299,316 n. 3 (1977) (fourteenth amendment forbids racial discriminationPage 29even before enactment of Title VII). Nor would a "reasonable"official, especially in light of the long-established and well-known lawon the subject, have thought that it was acceptable to treat Greydifferently because of her race. Looby, 152 F. Supp.2d at 189.Rather, the essence of what the defendants raise is a dispute of factabout whether Grey was in fact treated differently. This is properly leftto the jury.
3. § 1983 Sex and National Origin Discrimination (AllDefendants)
As discussed above, the plaintiff has not put forward sufficientevidence to support a prima facie case of sex discrimination or nationalorigin discrimination. See supra at 9-11, 15-16. Summaryjudgment is thus granted on Grey's § 1983 national origin and sexdiscrimination claims.
E. Negligent Infliction of Emotional Distress (AllDefendants)
The defendants also move for summary judgment on Grey's negligentinfliction of emotional distress claim in Count Four of the Complaint,arguing that the Connecticut Supreme Court's decision in Perodeau v.City of Hartford, 259 Conn. 729, 764-773 (2002), bars claims fornegligent infliction of emotional distress arising out of conductoccurring in the context of a continuing employment relationship, asopposed to conduct that occurs in the process of a termination ofemployment.
The defendants argue that Grey's Count Four allegations do notreference her claim of constructive discharge. However, paragraphfifty-four, the first paragraph in CountPage 30Four, incorporates "the allegations contained in paragraphs 1through 53 of the Complaint as though restated herein word for word,"thus incorporating Grey's constructive discharge claim into Count Four.The question presented, then, is whether constructive discharge qualifiesas termination of employment for purposes of a negligent infliction ofemotional distress claim.
The application of constructive discharge to a claim of negligentinfliction of emotional distress presents a novel issue in light ofPerodeau. By limiting the scope of the negligent infliction ofemotional distress tort to conduct occurring in the process oftermination, the Perodeau court aimed to limit the reach of thetort. Perodeau, 259 Conn, at 756 (" [t]he problem for the lawis to limit the legal consequences of wrongs to a controllable degree").The court explained that its combination of the termination requirementwith its prior decisions to allow a negligent infliction of emotionaldistress claim made sense because, "[i]mplicit in this conclusion is arecognition that emotional distress that might result in illness orbodily harm is a foreseeable consequence of particularly egregiousconduct involving a termination, which would, in turn, give rise to aduty to avoid such conduct." Id. at 755. The court furtheracknowledged that "individuals in the workplace reasonably should expectto experience some level of emotional distress, even significantemotional distress, as a result of conduct in the workplace."Id. at 757. The court noted that making such distressactionable in the context of continuing employmentPage 31would have several negative consequences: [E]mployees who fear lawsuits by fellow employees may be less competitive with each other, may promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions such as demotions, promotions and transfers on the basis of fear of suit rather than business needs and desires. All of this conduct would contribute to a less vigorous and less productive workplace.Id. at 758.
Allowing an employee alleging constructive discharge to assert anegligent infliction of emotional distress claim does not implicate theseconcerns. In a constructive discharge case such as the one alleged byGrey, the employment relationship is already terminated, allegedlyinvoluntarily. As a result, the effect of allowing the claim is nodifferent than if the plaintiff had been actually discharged: there isnone of the additional "chilling," or "fear" that motivated theConnecticut Supreme Court to preclude the tort from being asserted inongoing employment relationships. Moreover, in Connecticut, a"constructive discharge is effectively the legal equivalent of adischarge." Kilduff v. Cosential, Inc., 289 F. Supp.2d 12, 18(D. Conn. 2003) (quoting Seery v. Yale-New Haven Hosp.,554 A.2d 757 (Conn. App. 1989)). Thus allowing a constructive discharge toform the basis of a negligent infliction of emotional distress claim isconsistent with Connecticut constructive discharge law. Accord Guptav. City of Norwalk, 221 F. Supp.2d 282, 295 n.6 (D. Conn. 2002)(Thompson, J.) (noting without deciding that a constructive dischargeclaim wouldPage 32support a negligent infliction of emotional distress claim).
However, the alleged conduct is not sufficiently unreasonable orwrongful to support the negligent infliction of emotional distress claim.Indeed, wrongful motivation is not enough to sustain the claim: "[t]hemere act of firing an employee, even if wrongfully motivated, does nottransgress the bounds of socially tolerable behavior." Parsons v.United Technologies Corp., 243 Conn. 66, 88-89. Instead, "negligentinfliction of emotional distress in the employment context arises onlywhere it is based upon unreasonable conduct of the defendant in thetermination process." Id. at 88 (internal quotation marksomitted); Perodeau, 259 Conn. at 750.
Here, Grey alleges that Herbert lied to the Board about Grey's buyback,telling them that it had been her proposal; that he had his secretarytype her termination letter and then denied its existence; that Herberttold her she was "finished" and not to report to work, even though thebuyback was not yet approved and completed. Moreover, Grey claims thatthese and other actions were based on her race. The allegations againstRiccio involve warnings that her job would be eliminated, an accusationthat he usurped her authority in front of her subordinates, and that hemanipulated her curricular responsibilities and the associated funds soas to impede her job. The Board allegedly knew of the wrongfulness oftheir actions and ratified them. These activities, while wrongful, arenot "sufficiently wrongful that the defendant should have realized thatits conduct involved an unreasonablePage 33risk of emotional distress." Perodeau, 259 Conn. at 571;see also Morris v. Hartford Courant Co., 200 Conn. 676, 680(Conn. 1986) (false accusations were not outrageous where plaintiff didnot allege that employer knew they were false or made the accusationswith reckless disregard) (emphasis added). Summary judgment is granted onCount 4.
III. CONCLUSION
For the reasons discussed above, the defendants' motion is GRANTED: onthe First Cause of Action as to all claims against Herbert and Riccio,individually; on the age discrimination claim, national origindiscrimination claim, and sex discrimination claim as to all defendants;on the Second Cause of Action, as to all claims against Herbert andRiccio individually, and as to Grey's sex discrimination claim, agediscrimination claim, and national origin discrimination claim as to alldefendants; on the Third Cause of Action as to the sex discriminationclaim and national origin discrimination claims against all defendants;and on the Fourth Count against all defendants. The remainder of themotion is DENIED. Claims remain against Riccio and Herbert for racediscrimination in violation of the fourteenth amendment, pursuant to§ 1983; and against the Board for constructive discharge and hostilework environment race discrimination in violation of Title VII and of thefourteenth amendment, pursuant to § 1983.
SO ORDERED.
1. On this motion for summary judgment, the court views the evidencein the light most favorable to the plaintiff.
2. Proof of such a causal connection can be established through"evidence such as disparate treatment of fellow employees who engaged insimilar conduct." Terry, 336 F.3d at 152.
3. The defendants argue that Grey's contentions are belied bylanguage in letters from Herbert to Grey and by the fact that he signedher contract for the 1999-2000 school year. Those differences create anissue of material fact, however, and go to the weight of the evidence,not its sufficiency. See Kirsch, 148 F.3d at 162.
4. The actions of Riccio and Herbert are also attributable to theBoard, though the defendants have not raised this issue with regards toGrey's Title VII hostile work environment claim. "An employer is subjectto vicarious liability to a victimized employee for an actionable hostileenvironment created by a supervisor with immediate (or successivelyhigher) authority over the employee." Burlington Indus., Inc., v.Ellerth, 524 U.S. 742, 745 (1998); Mack v. Otis ElevatorCo., 326 F.3d 116, 127-28 (2d Cir. 2003). Where there is no tangibleemployment action, the employer may impose certain affirmative defenses,including that the employer exercised reasonable care to prevent andpromptly correct the behavior. See id. at 127. Here, Greyalleges among other things that the Board President advised her that shewas being discriminated against and should get a lawyer, yet the Boardtook no action to remedy the situation.
5. The court only considers qualified immunity on the racediscrimination claim because it is the only remaining § 1983discrimination claim.