MATOS v. BRISTOL BOARD OF EDUCATION

3:00cv1587(AHN)

204 F. Supp.2d 375 (2002) | Cited 0 times | D. Connecticut | June 4, 2002

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff William Matos ("Matos"), a Hispanic male employed as acustodian by the Bristol Board of Education ("the Board"), brings thisaction pursuant to Title VII for money damages and other relief, claimingthat the Board discriminated against him on the basis of his race and inretaliation for his filing charges of discrimination with the ConnecticutCommission on Human Rights and Opportunities ("CHRO").

Specifically, Matos claims that he applied for a promotion to headcustodian at the Jennings School in Bristol, Connecticut, and that hisrace was a motivating factor behind the decision not to offer him thatposition. Matos also claims that the defendant retaliated against himafter he filed claims of illegal discriminatory employment practices withthe CHRO.1

The defendant has moved for summary judgment on all of the plaintiff'sclaims. For the following reasons, the defendant's motion (doc. #18) isGRANTED.

BACKGROUND

Matos is a janitor employed by the Bristol Board of Education and hasheld that position since 1995. In May 1999, Matos and nine othercandidates applied for a head custodian position at the Jennings Schoolin Bristol.

Matos is a member of the Collective Bargaining Agreement between theUnion and the Board of Education. Pursuant to the terms of the CollectiveBargaining Agreement in effect in May 1999, the Board was required topromote the "most senior, qualified applicant." See Collective BargainingAgreement at 7, attached to Def.'s Memo. of Law in Support of Mot. forSummary Judgment as Exh. B; see also Pl.'s Depo. at 36, attached toDef.'s Memo. of Law in Support of Mot. for Summary Judgment as Exh. A.

To fill the head custodian position, the Board held an oral examinationto determine whether an applicant was qualified,and then awarded the position to the senior-most applicant who remained inthe eligible pool. The Board defined "eligible" as anyone scoring overseventy percent (at least a 56 out of 80) during the interview.

The Board assembled a panel of two administrators to conduct theinterviews: Elementary School Principal, Gale Gilmore ("Gilmore"), andthe Building Superintendent, Vincent Bartucca ("Bartucca").2 Matosreceived a score of 34 out of 80 from Bartucca and 37 out of 80 fromGilmore. Because he scored less than seventy percent, Matos was notconsidered eligible for the promotion.

Instead, the Board hired Scott Hall ("Hall"), a Caucasian, for theposition. Matos conceded during his deposition that Hall had moreseniority than him and was at least as qualified for the position:

Q: As of '99, how much seniority did you have?

A: Five years, I think. Four and a half.

Q: And Scott Hall?

A: He had six years.

Q: So as far as you're concerned, Scott Hall was senior over you?

A: Over me, yes.

Q: And with respect to qualifications, do you believe you had more qualifications than Scott Hall?

A: I wouldn't say more, but equal.

See Pl.'s Depo. at 37-38, attached to Def.'s Memo. of Law in Support ofMot. for Summary Judgment as Exh. A; see also id. at 89:

Q: Well, let me ask you this. The bargaining agreement says that the senior qualified person gets the position.

A: Right. Yeah.

Q: So if there's no testing at all, and all the board did was went on who's senior, you wouldn't have gotten the job; correct?

A: Right.

Hall scored an eighty-two percent on the oral examination.

Matos claims that the oral examination was entirely subjective innature and, in support of his claims, relies upon certain comments madeby Bartucca. For example, Matos claims that in 1996, during aconversation including Matos, Bartucca and another co-worker, JamesSalvatore, Matos commented that there were no Hispanics in supervisorypositions. According to Matos, Bartucca responded that Hispanics wouldnever make it because "their kind couldn't pass the test." Matos claimsthat Bartucca also used the name "Julio" in reference to him on severaloccasions. Moreover, Matos alleges that when he once asked Bartuccawhether he had a chance of becoming a head custodian, Bartucca replied,"not for another 75 years." Matos further claims that Bartucca told him,during a conversation regarding Matos' application for the position ofhead custodian at the Jennings School, that Bartucca would "make sure[Matos] w[ould] rot in this building."3

In June 1999, Matos filed an affidavit of illegal discriminatorypractice with theCHRO, claiming that the Board discriminated against himwhen it failed to promote him to the position of head custodian at theJennings School.

On or about May 13, 2000, Matos was suspended for getting into anargument and swearing at a fellow employee. As a result of the incident,Matos was suspended from work without pay for one day. Matos furtherclaims that he has applied for head custodian positions on at least twooccasions since the filing of his CHRO charge and that he has been deniedthose promotions. Matos has never filed a charge of retaliation with theCHRO.

STANDARD

Summary judgment is appropriate when the evidence demonstrates that"there is no genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); seealso Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

When ruling on a summary judgment motion, the court must construe thefacts in the light most favorable to the non-moving party and mustresolve all ambiguities and draw all reasonable inferences against themoving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co.,Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. RandolphCent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (court is required to"resolve all ambiguities and draw all inferences in favor of thenonmoving party"), cert. denied, 506 U.S. 965 (1992). When a motion forsummary judgment is properly supported by documentary and testimonialevidence, however, the nonmoving party may not rest upon the mereallegations or denials of his pleadings, but rather must presentsignificant probative evidence to establish a genuine issue of materialfact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

The Second Circuit has stated that a district court should exerciseparticular caution when deciding whether summary judgment should issue inan employment discrimination case. Carlton v. Mystic Transportation,Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261 (2000);Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219,1223 (2d Cir. 1994). In particular, at the summary judgment stage whenintent is at issue, the court must carefully scrutinize the depositionsand affidavits for circumstantial evidence that if believed, would showdiscrimination. Gallo, 22 F.3d at 1223. Even in these cases, however, "aplaintiff must provide more than conclusory allegations of discriminationto defeat a motion for summary judgement." Schwapp v. Town of Avon,118 F.3d 106, 110 (2d Cir. 1997). Instead, the plaintiff "must comeforward with evidence that would be sufficient to support a jury verdictin his favor." Goenaga v. March of Dimes Birth Defects Foundation,51 F.3d 14 (2d Cir. 1995).

DISCUSSION

A. Title VII — Discrimination Claim

The Board argues that Matos has failed to establish a prima facie caseof discriminationbecause he was not qualified for the head custodian position. The courtagrees.

A Title VII claim for discrimination is evaluated under the familiarburden-shifting rules established by the Supreme Court in McDonnellDouglas v. Green, 411 U.S. 792 (1973).

First, the plaintiff must establish a prima facie case ofdiscrimination by showing that: (1) he is a member of a protected class;(2) he was qualified for the position; (3) he suffered an adverseemployment action; and (4) the circumstances give rise to an inference ofdiscrimination. Weinstock, v. Columbia University, 224 F.3d 33, 42 (2dCir.)(citing McDonnell Douglas, 411 U.S. at 802)). This is a minimalburden. See, e.g., James v. New York Racing Assoc., 233 F.3d 149, 153 (2dCir. 2000).

Second, once the plaintiff has established a prima facie case, theburden of production is then on the employer to proffer a legitimate,non-discriminatory reason for its action. See, e.g., James, 233 F.3d at153. If the employer does not come forward with a legitimatenon-discriminatory reason then the plaintiff who proves the minimal primafacie case is entitled to prevail as a matter of law. Id. at 154 (citingSt. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-10 (1993)).

Third, once the employer has articulated a legitimate,non-discriminatory reason, it would be entitled to summary judgmentunless the plaintiff can point to evidence that reasonably supports afinding of prohibited discrimination — in other words, that thedefendant's proffered non-discriminatory reason is a pretext for unlawfuldiscrimination. See, e.g., James 233 F.3d at 154 (citing St. Mary's, at510-11).

The United States Supreme Court has further held that under the laststep of the three-step McDonnell-Douglas burden-shifting analysis, theplaintiff does not always need to "introduce additional, independentevidence of discrimination." Reeves v. Sanderson Plumbing Products,Inc., 530 U.S. 133, 149 (2000). The plaintiff may attempt to showdiscrimination by "showing that the employer's proffered explanation isunworthy of credence." Id. at 143. "In appropriate circumstances, thetrier of fact can reasonably infer from the falsity of the explanationthat the employer is dissembling to cover up a discriminatory purpose."Id. at 147. "Thus, a plaintiff's prima facie case, combined withsufficient evidence to find that the employer's asserted justification isfalse, may permit the trier of fact to conclude that the employerunlawfully discriminated." Id.

Applying these principles here, Matos cannot establish a prima faciecase of discrimination because he cannot establish that he was"qualified" for the head custodian position for which he applied.

As set forth above, it is undisputed that the collective bargainingagreement required that the Board hire the most senior, qualifiedcandidate. It is further undisputed that Hall, the individual who wasawarded the position, had more seniority than the plaintiff: Matostestified that he had between four and a half and five years ofexperience while Hall had six. See Pl.'s Depo. at 37-38, attached toDef.'s Memo. of Law in Support of Mot. for Summary Judgment as Exh. A.Because the collective bargaining agreement required the Board to hirethe most senior, qualified applicant, the Board could not have givenMatos the promotion over Hall. To that degree, and on this record, theoral examination is somewhat irrelevant — even ifMatos had received a score of seventy percent or higher, it is undisputedthat Hall had more seniority than Matos and would still have received theposition over the plaintiff. In other words, under the terms of thecollective bargaining agreement, even if Matos had outscored Hall on theoral examination, the plaintiff would not have received the positionbecause Hall was the more senior candidate.

Indeed, under the terms of the collective bargaining agreement, theonly way Matos could have conceivably received the position over Hall wasif Hall was unqualified for the position or was somehow improperlydeemed qualified for consideration.4 There is nothing in the record,however, to support this contention. The plaintiff admittedly did notdepose Bartucca or Gilmore, nor did he depose Hall to inquire about hisqualifications. Indeed, there is nothing in the record to even indicatewhat questions were asked of the candidates during the oralexamination.5

Perhaps more importantly, the only evidence in the record belies theplaintiff's claim that Hall was not qualified and, indeed, that evidencecomes from the plaintiff himself. Matos testified during his depositionthat Hall not only had more seniority than him, but was at least asqualified for the position:

Q: And with respect to qualifications, do you believe you had more qualifications than Scott Hall?

A: I wouldn't say more, but equal.

See Pl.'s Depo. at 37-38, attached to Def.'s Memo. of Law in Support ofMot. for Summary Judgment as Exh. A; see also id. at 89:

Q: Well, let me ask you this. The bargaining agreement says that the senior qualified person gets the position.

A: Right. Yeah.

Q: So if there's no testing at all, and all the board did was went on who's senior, you wouldn't have gotten the job; correct?

A: Right.

Because it is undisputed that: (1) the collective bargaining agreementrequired the Board to hire the senior, most qualified applicant; and (2)that Hall was senior to Matos and "equally" qualified, Matos cannotestablish that he was qualified for the position and the Board isentitled to summary judgment on that claim.6

B. Title VII — Retaliation

The Board argues that it is also entitled to summary judgment on Matos'claim that the Board retaliated against him after hefiled charges of discrimination with the CHRO.

Title VII provides that it "shall be an unlawful employment practicefor an employer to discriminate against any of his employees . . .because [such employee] has opposed any practice made an unlawfulpractice by this subchapter." 42 U.S.C. § 2000e-3(a). In essence,Matos's Title VII retaliation claim is that the Board violated thisprovision by retaliating against him after he filed charges ofdiscrimination with the CHRO for the alleged failure to promote him tothe head custodian position.

1. Exhaustion

The Board argues that, because Matos has never filed a charge ofretaliation with the CHRO, it is entitled to summary judgment because hehas failed to exhaust his administrative remedies. The court disagrees.

The Second Circuit has repeatedly recognized that "claims that were notasserted before the EEOC may be pursued in a subsequent federal courtaction if they are `reasonably related' to those that were filed with theagency." Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 613 (2dCir. 1999); see also Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,274 F.3d 683, 686 (2d Cir. 2001); Malarkey v. Texaco, Inc., 983 F.2d 1204,1208 (2d Cir. 1993); Butts v. N.Y. Dep't of Hous. Pres. & Dev.,990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on othergrounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2dCir. 1998); Joseph v. America Works, Inc., No. 01 Civ. 8287(DC), 2002 WL1033833 at *5 (S.D.N.Y. May 21, 2002); Skeete v. IVF America, Inc.,972 F. Supp. 206, 210 (S.D.N.Y. 1997). A claim alleging retaliation by anemployer against an employee for filing a discrimination charge is onetype of claim the Second Circuit has recognized as "reasonably related"to the underlying discrimination charge. See Legnani, 274 F.3d at 686;Shah, 168 F.3d at 614 (quoting Butts, 990 F.2d at 1402); accordMalarkey, 983 F.2d at 1208-09; see also Joseph, 2002 WL 1033833 at *5("In describing the types of claims that are generally considered to be`reasonably related' to a previous EEOC filing, the Second Circuit haslisted claims `alleging retaliation by an employer against an employeefor filing an EEOC charge."); Nonnenmann v. City of New York,174 F. Supp.2d 121, 130 (S.D.N.Y. 2001).

In the present case, Matos' complaint alleges that the Board retaliatedagainst him for his filing the underlying charges of discrimination withthe CHRO. Because Matos' retaliation claim is reasonably related to hisinitial discrimination charge, he was not required to file a secondcharge with the CHRO for that claim. See, e.g., Legnani, 274 F.3d at686-87.

2. The Merits

A Title VII retaliation claim is also evaluated under the familiarburden-shifting rules established by the Supreme Court in McDonnellDouglas v. Green, 411 U.S. 792 (1973). In the context of a motion forsummary judgment, the plaintiff must first demonstrate a prima faciecase of retaliation, after which the defendant has the burden of pointingto evidence that there was a legitimate, non-retaliatory reason for theaction of which the plaintiff complains. If the defendant meets itsburden of production, the plaintiff must then demonstrate that there issufficient potential proof for a reasonable jury to find that theproffered legitimate reason is merely a pretext for impermissibleretaliation. See, e.g., Richardson v. New York State Department ofCorrectional Service, 180 F.3d 426, 443 (2d Cir. 1999). The defendantclaims that Matos has failed to establish a prima facie case ofretaliation.

To establish a prima facie case of retaliation, Matos must show that:(1) he was engaged in a protected activity; (2) his employer was aware ofhis participation in the protected activity; (3) the employer tookadverse action against him; and (4) there was a causal connection betweenthe protected activity and the adverse employment action. Id.; see alsoDistasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998); Van Zantv. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Tomka v.Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995); Ericson v. City ofMeriden, 113 F. Supp.2d 276, 288 (D.Conn. 2000). The plaintiff's burdento establish a prima facie case is de minimis. See Donato v.Plainview-Old Bethpage Central School District, 96 F.3d 623, 633 (2dCir. 1996); Tomka, 66 F.3d at 1308.

Matos identifies his May 2000 suspension and the Board's failure topromote him to a head custodian position on two occasions after the filingof his CHRO charge as evidence of the Board's retaliatory conduct.Viewing the evidence submitted in the light most favorable to theplaintiff, however, the court finds that Matos has failed to make ashowing sufficient to establish the required nexus between theseincidents and his past protected activity.

"A causal connection may be established either `indirectly by showingthat the protected activity was followed closely by discriminatorytreatment, or through other evidence such as disparate treatment offellow employees who engaged in similar conduct, or directly throughevidence of retaliatory animus directed against a plaintiff by thedefendant.'" Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (quotingDeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2dCir.), cert. denied, 484 U.S. 965 (1987); see also Sumner v. UnitedStates Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Here, theplaintiff's evidence of retaliation fails to demonstrate, in any of theseways, the required causal connection.

First, Matos has failed to establish a causal connection throughcircumstantial evidence that the filing of his CHRO charges was followedclosely by discriminatory treatment. Such circumstantial evidencecommonly takes the form of a "showing that the protected activity wasclosely followed in time by the adverse action." Manoharan v. ColumbiaU. Col. of Phys. & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). If thetime that elapses between the protected activity and the adverse actionis short enough, nothing more is necessary to satisfy the causationprong. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2dCir. 1998) (finding that an employee discharged less than two monthsafter filing a complaint with employer and ten days after filingcomplaint with commission had established a causal connection); Reed v.A. W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) finding aninference of causation where twelve days elapsed between complaint anddischarge).

There is no evidence to suggest that the incidents on which Matos,relies, however, were proximate in time to the filing of his CHROcomplaint. It is undisputed that Matos filed his affidavit of illegaldiscriminatory practice with the CHRO in June 1999. It was not until May13, 2000 — approximately one year later — that Matos wassuspended without pay for one day after getting into an argument andswearing at a fellow employee. Similarly, there is no evidence to suggestthat the Board's failure to promote Matos on subsequent applications forhead custodian positions followed closely on the heels of his CHROfiling. Indeed, Matos' letter to the Board stating that he would not testfor the head custodian position at Green Hills Elementary School is datedJune 5, 2000 — also almost one year after his CHRO filing.

Second, Matos has failed to establish a causal connection directlythrough evidence of retaliatory animus directed against him by thedefendant. For example, Matos' evidence of alleged statements made byBartucca all pre-date the filing of his CHRO charge. Although thealleged statements by Bartucca that Matos would never make it because"their kind couldn't pass the test;" that Matos would not be a headcustodian "for another 75 years;" and that Bartucca would "make sure[Matos] w[ould] rot in this building" could arguably establishretaliatory animus, it is undisputed that all of these comments were madeprior to Matos' CHRO filing in June 1999. See, e.g., Pl.'s Memo of Law inSupport of Pl., William Matos', Obj. to Def., Bristol Board ofEducation's, Mot. for Summary Judgment at 2 (" Prior to the oralexamination . . . Mr. Bartucca responded that Hispanics will never makeit `because you guys can't pass the test.'" . . . . "On another occasionand prior to June [], 1999, Mr. Bartucca told Mr. Matos that he would`make sure you will rot in this building.") (emphasis added); see id. at8 (Comment that Matos would not become head custodian "for another 75years" made during the same conversation in which Bartucca told Matosthat "his kind would never make it;"); see also Affid. of William Matos,attached to Pl., William Matos', Obj. to Def., Bristol Board ofEducation's, Mot. for Summary Judgment as Exh. D (statements that "yourkind will never make it;" that Hispanics could not pass the test; thatMatos would "rot in the building" and references to Julio all made "priorto June [], 1999."). As a matter of law, these statements cannot serve asevidence of retaliation against Matos for his filing a CHRO complaint,because, according to the plaintiff, they were all made prior to thefiling of that complaint.

In short, Matos has failed to establish sufficient evidence from whicha reasonable jury could find that the Board took any specific actionagainst him as a result of his filing his charge with the CHRO.Accordingly, Matos has failed to establish the causal connection elementof his prima facie case and the Board is entitled to summary judgment onhis Title VII claim of retaliation.

CONCLUSION

For the reasons set forth above, the Board's Motion for SummaryJudgment (doc. #18) is GRANTED and the clerk is instructed to close thefile.

1. Matos also asserted two causes of action under state law, namely:intentional infliction of emotional distress and negligent infliction ofemotional distress. At oral argument, counsel for the plaintiffconceded: (1) that Matos' claim for intentional infliction of emotionaldistress could not be maintained against the Board in light of Conn.Gen. Stat. § 52-557n; and (2) that Matos, who is still employed bythe Board and has not been terminated, could not bring a claim fornegligent infliction of emotional distress in connection with the Board'sfailure to promote him, in light of Perodeau v. City of Hartford,259 Conn. 729, 792 A.2d 752 (2002) (barring claim for negligentinfliction of emotional distress arising out of conduct occurring in thecontext of a continuing employment relationship, as distinguished fromconduct occurring in the context of the termination of employment).Accordingly, those claims are deemed withdrawn and dismissed.

2. Bartucca was involved in the interview process for the vacantcustodian position in 1995 and recommended hiring Matos for thatposition.

3. Matos ascribes the alleged discriminatory animus to Bartuccaalone. Matos claims that the reason he received the same or similar testscore from Gilmore, however, was because Bartucca gave Gilmore marchingorders about who the Board wanted to hire. See, e.g., Pl.'s Depo. at37-38, attached to Def.'s Memo. of Law in Support of Mot. for SummaryJudgment as Exhibit A ("I don't believe that Gail was racial towards me,but I believe that she was told what to do. She did tell me that Vinniedid call her and Vinnie did say `I want you to look into a certainindividual for this job.' And she did tell me that she liked ScottHall. So it — I don't believe there was any racism on her part. ButI believe that she was — I believe that somehow Vinnie and theBoard, or the Board, you know, wanted this for him, for Scott Hall, andhe got the job.").

4. Because Hall would have had more seniority than Matos even if Matoshad passed the oral examination, counsel for the plaintiff conceded atoral argument that the plaintiff's position was, in fact, that Hall wasunqualified for the position.

5. Accordingly, there is nothing to support the plaintiff's barecontention that the oral examination was subjective in nature. Becausethere is nothing in the record about the questions that the candidateswere asked, it is entirely possible that the questions were objective innature. (e.g., "What is the sum of two plus two?"). Had the plaintifftaken discovery on that issue, it is entirely possible that he could haveestablished a genuine issue of material fact — for example, whetherthe candidates were in fact asked different questions or whetherdifferent decision makers asked different questions, etc. Had theplaintiff deposed certain individuals, it is also possible that he couldhave raised genuine issues of material fact about Hall's qualificationsas well. In short, had discovery been taken on these topics, theplaintiff may have created a genuine issue of material fact sufficient tosurvive summary judgment.

6. Even assuming Matos could establish his prima facie case, the Boardhas set forth a legitimate, non-discriminatory reason for promoting Hallover Matos — namely, compliance with the collective bargainingagreement.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff William Matos ("Matos"), a Hispanic male employed as acustodian by the Bristol Board of Education ("the Board"), brings thisaction pursuant to Title VII for money damages and other relief, claimingthat the Board discriminated against him on the basis of his race and inretaliation for his filing charges of discrimination with the ConnecticutCommission on Human Rights and Opportunities ("CHRO").

Specifically, Matos claims that he applied for a promotion to headcustodian at the Jennings School in Bristol, Connecticut, and that hisrace was a motivating factor behind the decision not to offer him thatposition. Matos also claims that the defendant retaliated against himafter he filed claims of illegal discriminatory employment practices withthe CHRO.1

The defendant has moved for summary judgment on all of the plaintiff'sclaims. For the following reasons, the defendant's motion (doc. #18) isGRANTED.

BACKGROUND

Matos is a janitor employed by the Bristol Board of Education and hasheld that position since 1995. In May 1999, Matos and nine othercandidates applied for a head custodian position at the Jennings Schoolin Bristol.

Matos is a member of the Collective Bargaining Agreement between theUnion and the Board of Education. Pursuant to the terms of the CollectiveBargaining Agreement in effect in May 1999, the Board was required topromote the "most senior, qualified applicant." See Collective BargainingAgreement at 7, attached to Def.'s Memo. of Law in Support of Mot. forSummary Judgment as Exh. B; see also Pl.'s Depo. at 36, attached toDef.'s Memo. of Law in Support of Mot. for Summary Judgment as Exh. A.

To fill the head custodian position, the Board held an oral examinationto determine whether an applicant was qualified,and then awarded the position to the senior-most applicant who remained inthe eligible pool. The Board defined "eligible" as anyone scoring overseventy percent (at least a 56 out of 80) during the interview.

The Board assembled a panel of two administrators to conduct theinterviews: Elementary School Principal, Gale Gilmore ("Gilmore"), andthe Building Superintendent, Vincent Bartucca ("Bartucca").2 Matosreceived a score of 34 out of 80 from Bartucca and 37 out of 80 fromGilmore. Because he scored less than seventy percent, Matos was notconsidered eligible for the promotion.

Instead, the Board hired Scott Hall ("Hall"), a Caucasian, for theposition. Matos conceded during his deposition that Hall had moreseniority than him and was at least as qualified for the position:

Q: As of '99, how much seniority did you have?

A: Five years, I think. Four and a half.

Q: And Scott Hall?

A: He had six years.

Q: So as far as you're concerned, Scott Hall was senior over you?

A: Over me, yes.

Q: And with respect to qualifications, do you believe you had more qualifications than Scott Hall?

A: I wouldn't say more, but equal.

See Pl.'s Depo. at 37-38, attached to Def.'s Memo. of Law in Support ofMot. for Summary Judgment as Exh. A; see also id. at 89:

Q: Well, let me ask you this. The bargaining agreement says that the senior qualified person gets the position.

A: Right. Yeah.

Q: So if there's no testing at all, and all the board did was went on who's senior, you wouldn't have gotten the job; correct?

A: Right.

Hall scored an eighty-two percent on the oral examination.

Matos claims that the oral examination was entirely subjective innature and, in support of his claims, relies upon certain comments madeby Bartucca. For example, Matos claims that in 1996, during aconversation including Matos, Bartucca and another co-worker, JamesSalvatore, Matos commented that there were no Hispanics in supervisorypositions. According to Matos, Bartucca responded that Hispanics wouldnever make it because "their kind couldn't pass the test." Matos claimsthat Bartucca also used the name "Julio" in reference to him on severaloccasions. Moreover, Matos alleges that when he once asked Bartuccawhether he had a chance of becoming a head custodian, Bartucca replied,"not for another 75 years." Matos further claims that Bartucca told him,during a conversation regarding Matos' application for the position ofhead custodian at the Jennings School, that Bartucca would "make sure[Matos] w[ould] rot in this building."3

In June 1999, Matos filed an affidavit of illegal discriminatorypractice with theCHRO, claiming that the Board discriminated against himwhen it failed to promote him to the position of head custodian at theJennings School.

On or about May 13, 2000, Matos was suspended for getting into anargument and swearing at a fellow employee. As a result of the incident,Matos was suspended from work without pay for one day. Matos furtherclaims that he has applied for head custodian positions on at least twooccasions since the filing of his CHRO charge and that he has been deniedthose promotions. Matos has never filed a charge of retaliation with theCHRO.

STANDARD

Summary judgment is appropriate when the evidence demonstrates that"there is no genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); seealso Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

When ruling on a summary judgment motion, the court must construe thefacts in the light most favorable to the non-moving party and mustresolve all ambiguities and draw all reasonable inferences against themoving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co.,Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. RandolphCent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (court is required to"resolve all ambiguities and draw all inferences in favor of thenonmoving party"), cert. denied, 506 U.S. 965 (1992). When a motion forsummary judgment is properly supported by documentary and testimonialevidence, however, the nonmoving party may not rest upon the mereallegations or denials of his pleadings, but rather must presentsignificant probative evidence to establish a genuine issue of materialfact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

The Second Circuit has stated that a district court should exerciseparticular caution when deciding whether summary judgment should issue inan employment discrimination case. Carlton v. Mystic Transportation,Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261 (2000);Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219,1223 (2d Cir. 1994). In particular, at the summary judgment stage whenintent is at issue, the court must carefully scrutinize the depositionsand affidavits for circumstantial evidence that if believed, would showdiscrimination. Gallo, 22 F.3d at 1223. Even in these cases, however, "aplaintiff must provide more than conclusory allegations of discriminationto defeat a motion for summary judgement." Schwapp v. Town of Avon,118 F.3d 106, 110 (2d Cir. 1997). Instead, the plaintiff "must comeforward with evidence that would be sufficient to support a jury verdictin his favor." Goenaga v. March of Dimes Birth Defects Foundation,51 F.3d 14 (2d Cir. 1995).

DISCUSSION

A. Title VII — Discrimination Claim

The Board argues that Matos has failed to establish a prima facie caseof discriminationbecause he was not qualified for the head custodian position. The courtagrees.

A Title VII claim for discrimination is evaluated under the familiarburden-shifting rules established by the Supreme Court in McDonnellDouglas v. Green, 411 U.S. 792 (1973).

First, the plaintiff must establish a prima facie case ofdiscrimination by showing that: (1) he is a member of a protected class;(2) he was qualified for the position; (3) he suffered an adverseemployment action; and (4) the circumstances give rise to an inference ofdiscrimination. Weinstock, v. Columbia University, 224 F.3d 33, 42 (2dCir.)(citing McDonnell Douglas, 411 U.S. at 802)). This is a minimalburden. See, e.g., James v. New York Racing Assoc., 233 F.3d 149, 153 (2dCir. 2000).

Second, once the plaintiff has established a prima facie case, theburden of production is then on the employer to proffer a legitimate,non-discriminatory reason for its action. See, e.g., James, 233 F.3d at153. If the employer does not come forward with a legitimatenon-discriminatory reason then the plaintiff who proves the minimal primafacie case is entitled to prevail as a matter of law. Id. at 154 (citingSt. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-10 (1993)).

Third, once the employer has articulated a legitimate,non-discriminatory reason, it would be entitled to summary judgmentunless the plaintiff can point to evidence that reasonably supports afinding of prohibited discrimination — in other words, that thedefendant's proffered non-discriminatory reason is a pretext for unlawfuldiscrimination. See, e.g., James 233 F.3d at 154 (citing St. Mary's, at510-11).

The United States Supreme Court has further held that under the laststep of the three-step McDonnell-Douglas burden-shifting analysis, theplaintiff does not always need to "introduce additional, independentevidence of discrimination." Reeves v. Sanderson Plumbing Products,Inc., 530 U.S. 133, 149 (2000). The plaintiff may attempt to showdiscrimination by "showing that the employer's proffered explanation isunworthy of credence." Id. at 143. "In appropriate circumstances, thetrier of fact can reasonably infer from the falsity of the explanationthat the employer is dissembling to cover up a discriminatory purpose."Id. at 147. "Thus, a plaintiff's prima facie case, combined withsufficient evidence to find that the employer's asserted justification isfalse, may permit the trier of fact to conclude that the employerunlawfully discriminated." Id.

Applying these principles here, Matos cannot establish a prima faciecase of discrimination because he cannot establish that he was"qualified" for the head custodian position for which he applied.

As set forth above, it is undisputed that the collective bargainingagreement required that the Board hire the most senior, qualifiedcandidate. It is further undisputed that Hall, the individual who wasawarded the position, had more seniority than the plaintiff: Matostestified that he had between four and a half and five years ofexperience while Hall had six. See Pl.'s Depo. at 37-38, attached toDef.'s Memo. of Law in Support of Mot. for Summary Judgment as Exh. A.Because the collective bargaining agreement required the Board to hirethe most senior, qualified applicant, the Board could not have givenMatos the promotion over Hall. To that degree, and on this record, theoral examination is somewhat irrelevant — even ifMatos had received a score of seventy percent or higher, it is undisputedthat Hall had more seniority than Matos and would still have received theposition over the plaintiff. In other words, under the terms of thecollective bargaining agreement, even if Matos had outscored Hall on theoral examination, the plaintiff would not have received the positionbecause Hall was the more senior candidate.

Indeed, under the terms of the collective bargaining agreement, theonly way Matos could have conceivably received the position over Hall wasif Hall was unqualified for the position or was somehow improperlydeemed qualified for consideration.4 There is nothing in the record,however, to support this contention. The plaintiff admittedly did notdepose Bartucca or Gilmore, nor did he depose Hall to inquire about hisqualifications. Indeed, there is nothing in the record to even indicatewhat questions were asked of the candidates during the oralexamination.5

Perhaps more importantly, the only evidence in the record belies theplaintiff's claim that Hall was not qualified and, indeed, that evidencecomes from the plaintiff himself. Matos testified during his depositionthat Hall not only had more seniority than him, but was at least asqualified for the position:

Q: And with respect to qualifications, do you believe you had more qualifications than Scott Hall?

A: I wouldn't say more, but equal.

See Pl.'s Depo. at 37-38, attached to Def.'s Memo. of Law in Support ofMot. for Summary Judgment as Exh. A; see also id. at 89:

Q: Well, let me ask you this. The bargaining agreement says that the senior qualified person gets the position.

A: Right. Yeah.

Q: So if there's no testing at all, and all the board did was went on who's senior, you wouldn't have gotten the job; correct?

A: Right.

Because it is undisputed that: (1) the collective bargaining agreementrequired the Board to hire the senior, most qualified applicant; and (2)that Hall was senior to Matos and "equally" qualified, Matos cannotestablish that he was qualified for the position and the Board isentitled to summary judgment on that claim.6

B. Title VII — Retaliation

The Board argues that it is also entitled to summary judgment on Matos'claim that the Board retaliated against him after hefiled charges of discrimination with the CHRO.

Title VII provides that it "shall be an unlawful employment practicefor an employer to discriminate against any of his employees . . .because [such employee] has opposed any practice made an unlawfulpractice by this subchapter." 42 U.S.C. § 2000e-3(a). In essence,Matos's Title VII retaliation claim is that the Board violated thisprovision by retaliating against him after he filed charges ofdiscrimination with the CHRO for the alleged failure to promote him tothe head custodian position.

1. Exhaustion

The Board argues that, because Matos has never filed a charge ofretaliation with the CHRO, it is entitled to summary judgment because hehas failed to exhaust his administrative remedies. The court disagrees.

The Second Circuit has repeatedly recognized that "claims that were notasserted before the EEOC may be pursued in a subsequent federal courtaction if they are `reasonably related' to those that were filed with theagency." Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 613 (2dCir. 1999); see also Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,274 F.3d 683, 686 (2d Cir. 2001); Malarkey v. Texaco, Inc., 983 F.2d 1204,1208 (2d Cir. 1993); Butts v. N.Y. Dep't of Hous. Pres. & Dev.,990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on othergrounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2dCir. 1998); Joseph v. America Works, Inc., No. 01 Civ. 8287(DC), 2002 WL1033833 at *5 (S.D.N.Y. May 21, 2002); Skeete v. IVF America, Inc.,972 F. Supp. 206, 210 (S.D.N.Y. 1997). A claim alleging retaliation by anemployer against an employee for filing a discrimination charge is onetype of claim the Second Circuit has recognized as "reasonably related"to the underlying discrimination charge. See Legnani, 274 F.3d at 686;Shah, 168 F.3d at 614 (quoting Butts, 990 F.2d at 1402); accordMalarkey, 983 F.2d at 1208-09; see also Joseph, 2002 WL 1033833 at *5("In describing the types of claims that are generally considered to be`reasonably related' to a previous EEOC filing, the Second Circuit haslisted claims `alleging retaliation by an employer against an employeefor filing an EEOC charge."); Nonnenmann v. City of New York,174 F. Supp.2d 121, 130 (S.D.N.Y. 2001).

In the present case, Matos' complaint alleges that the Board retaliatedagainst him for his filing the underlying charges of discrimination withthe CHRO. Because Matos' retaliation claim is reasonably related to hisinitial discrimination charge, he was not required to file a secondcharge with the CHRO for that claim. See, e.g., Legnani, 274 F.3d at686-87.

2. The Merits

A Title VII retaliation claim is also evaluated under the familiarburden-shifting rules established by the Supreme Court in McDonnellDouglas v. Green, 411 U.S. 792 (1973). In the context of a motion forsummary judgment, the plaintiff must first demonstrate a prima faciecase of retaliation, after which the defendant has the burden of pointingto evidence that there was a legitimate, non-retaliatory reason for theaction of which the plaintiff complains. If the defendant meets itsburden of production, the plaintiff must then demonstrate that there issufficient potential proof for a reasonable jury to find that theproffered legitimate reason is merely a pretext for impermissibleretaliation. See, e.g., Richardson v. New York State Department ofCorrectional Service, 180 F.3d 426, 443 (2d Cir. 1999). The defendantclaims that Matos has failed to establish a prima facie case ofretaliation.

To establish a prima facie case of retaliation, Matos must show that:(1) he was engaged in a protected activity; (2) his employer was aware ofhis participation in the protected activity; (3) the employer tookadverse action against him; and (4) there was a causal connection betweenthe protected activity and the adverse employment action. Id.; see alsoDistasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998); Van Zantv. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Tomka v.Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995); Ericson v. City ofMeriden, 113 F. Supp.2d 276, 288 (D.Conn. 2000). The plaintiff's burdento establish a prima facie case is de minimis. See Donato v.Plainview-Old Bethpage Central School District, 96 F.3d 623, 633 (2dCir. 1996); Tomka, 66 F.3d at 1308.

Matos identifies his May 2000 suspension and the Board's failure topromote him to a head custodian position on two occasions after the filingof his CHRO charge as evidence of the Board's retaliatory conduct.Viewing the evidence submitted in the light most favorable to theplaintiff, however, the court finds that Matos has failed to make ashowing sufficient to establish the required nexus between theseincidents and his past protected activity.

"A causal connection may be established either `indirectly by showingthat the protected activity was followed closely by discriminatorytreatment, or through other evidence such as disparate treatment offellow employees who engaged in similar conduct, or directly throughevidence of retaliatory animus directed against a plaintiff by thedefendant.'" Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (quotingDeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2dCir.), cert. denied, 484 U.S. 965 (1987); see also Sumner v. UnitedStates Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Here, theplaintiff's evidence of retaliation fails to demonstrate, in any of theseways, the required causal connection.

First, Matos has failed to establish a causal connection throughcircumstantial evidence that the filing of his CHRO charges was followedclosely by discriminatory treatment. Such circumstantial evidencecommonly takes the form of a "showing that the protected activity wasclosely followed in time by the adverse action." Manoharan v. ColumbiaU. Col. of Phys. & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). If thetime that elapses between the protected activity and the adverse actionis short enough, nothing more is necessary to satisfy the causationprong. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2dCir. 1998) (finding that an employee discharged less than two monthsafter filing a complaint with employer and ten days after filingcomplaint with commission had established a causal connection); Reed v.A. W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) finding aninference of causation where twelve days elapsed between complaint anddischarge).

There is no evidence to suggest that the incidents on which Matos,relies, however, were proximate in time to the filing of his CHROcomplaint. It is undisputed that Matos filed his affidavit of illegaldiscriminatory practice with the CHRO in June 1999. It was not until May13, 2000 — approximately one year later — that Matos wassuspended without pay for one day after getting into an argument andswearing at a fellow employee. Similarly, there is no evidence to suggestthat the Board's failure to promote Matos on subsequent applications forhead custodian positions followed closely on the heels of his CHROfiling. Indeed, Matos' letter to the Board stating that he would not testfor the head custodian position at Green Hills Elementary School is datedJune 5, 2000 — also almost one year after his CHRO filing.

Second, Matos has failed to establish a causal connection directlythrough evidence of retaliatory animus directed against him by thedefendant. For example, Matos' evidence of alleged statements made byBartucca all pre-date the filing of his CHRO charge. Although thealleged statements by Bartucca that Matos would never make it because"their kind couldn't pass the test;" that Matos would not be a headcustodian "for another 75 years;" and that Bartucca would "make sure[Matos] w[ould] rot in this building" could arguably establishretaliatory animus, it is undisputed that all of these comments were madeprior to Matos' CHRO filing in June 1999. See, e.g., Pl.'s Memo of Law inSupport of Pl., William Matos', Obj. to Def., Bristol Board ofEducation's, Mot. for Summary Judgment at 2 (" Prior to the oralexamination . . . Mr. Bartucca responded that Hispanics will never makeit `because you guys can't pass the test.'" . . . . "On another occasionand prior to June [], 1999, Mr. Bartucca told Mr. Matos that he would`make sure you will rot in this building.") (emphasis added); see id. at8 (Comment that Matos would not become head custodian "for another 75years" made during the same conversation in which Bartucca told Matosthat "his kind would never make it;"); see also Affid. of William Matos,attached to Pl., William Matos', Obj. to Def., Bristol Board ofEducation's, Mot. for Summary Judgment as Exh. D (statements that "yourkind will never make it;" that Hispanics could not pass the test; thatMatos would "rot in the building" and references to Julio all made "priorto June [], 1999."). As a matter of law, these statements cannot serve asevidence of retaliation against Matos for his filing a CHRO complaint,because, according to the plaintiff, they were all made prior to thefiling of that complaint.

In short, Matos has failed to establish sufficient evidence from whicha reasonable jury could find that the Board took any specific actionagainst him as a result of his filing his charge with the CHRO.Accordingly, Matos has failed to establish the causal connection elementof his prima facie case and the Board is entitled to summary judgment onhis Title VII claim of retaliation.

CONCLUSION

For the reasons set forth above, the Board's Motion for SummaryJudgment (doc. #18) is GRANTED and the clerk is instructed to close thefile.

1. Matos also asserted two causes of action under state law, namely:intentional infliction of emotional distress and negligent infliction ofemotional distress. At oral argument, counsel for the plaintiffconceded: (1) that Matos' claim for intentional infliction of emotionaldistress could not be maintained against the Board in light of Conn.Gen. Stat. § 52-557n; and (2) that Matos, who is still employed bythe Board and has not been terminated, could not bring a claim fornegligent infliction of emotional distress in connection with the Board'sfailure to promote him, in light of Perodeau v. City of Hartford,259 Conn. 729, 792 A.2d 752 (2002) (barring claim for negligentinfliction of emotional distress arising out of conduct occurring in thecontext of a continuing employment relationship, as distinguished fromconduct occurring in the context of the termination of employment).Accordingly, those claims are deemed withdrawn and dismissed.

2. Bartucca was involved in the interview process for the vacantcustodian position in 1995 and recommended hiring Matos for thatposition.

3. Matos ascribes the alleged discriminatory animus to Bartuccaalone. Matos claims that the reason he received the same or similar testscore from Gilmore, however, was because Bartucca gave Gilmore marchingorders about who the Board wanted to hire. See, e.g., Pl.'s Depo. at37-38, attached to Def.'s Memo. of Law in Support of Mot. for SummaryJudgment as Exhibit A ("I don't believe that Gail was racial towards me,but I believe that she was told what to do. She did tell me that Vinniedid call her and Vinnie did say `I want you to look into a certainindividual for this job.' And she did tell me that she liked ScottHall. So it — I don't believe there was any racism on her part. ButI believe that she was — I believe that somehow Vinnie and theBoard, or the Board, you know, wanted this for him, for Scott Hall, andhe got the job.").

4. Because Hall would have had more seniority than Matos even if Matoshad passed the oral examination, counsel for the plaintiff conceded atoral argument that the plaintiff's position was, in fact, that Hall wasunqualified for the position.

5. Accordingly, there is nothing to support the plaintiff's barecontention that the oral examination was subjective in nature. Becausethere is nothing in the record about the questions that the candidateswere asked, it is entirely possible that the questions were objective innature. (e.g., "What is the sum of two plus two?"). Had the plaintifftaken discovery on that issue, it is entirely possible that he could haveestablished a genuine issue of material fact — for example, whetherthe candidates were in fact asked different questions or whetherdifferent decision makers asked different questions, etc. Had theplaintiff deposed certain individuals, it is also possible that he couldhave raised genuine issues of material fact about Hall's qualificationsas well. In short, had discovery been taken on these topics, theplaintiff may have created a genuine issue of material fact sufficient tosurvive summary judgment.

6. Even assuming Matos could establish his prima facie case, the Boardhas set forth a legitimate, non-discriminatory reason for promoting Hallover Matos — namely, compliance with the collective bargainingagreement.

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