MEMORANDUM OF DECISION
Erik Brown asserts that the Waterbury Board of Education (“Board”) and its superintendent, Dr. Kathleen Ouellette, demoted him from his position as principal of Walsh Elementary School because he is African American. His amended complaint alleges race discrimination, including discriminatory demotion and a hostile work environment, against the Board (Count One, under Title VII of the Civil Rights Act of 1964) and against Ouellette (Count Two, under 42 U.S.C. §§ 1981 and 1983), retaliation in violation of the First Amendment, the Connecticut Constitution, and Title VII against the Board (Count Three), and a violation of his right to procedural due process under the Fourteenth Amendment against Ouellette (Count Three (A) under 42 U.S.C. § 1983).
I. Background
The following facts are taken from the parties’ Local Rule 56(a) Statements and the documents cited therein. See Defendants’ Local Rule 56(a)(1) Statement, ECF No. 40 (“Defi’s LRS”); Plaintiffs Local Rule 56(a)(2) Statement, ECF No. 44-1 (“Pl.’s LRS”). The facts are undisputed unless otherwise stated..
A. Brown’s Placement on Administrative Leave and Demotion
On August 18, 2005, the Board hired Brown—an African American—as principal of Walsh Elementary School (“Walsh”). (Def.’s LRS ¶ 2; Pl.’s LRS ¶ 2.) Though Walsh was “deteriorating,” in a blighted neighborhood, and one of the lowest-performing schools academically in the state, Brown was “motivated” to accept the challenge. (ECF No. 44-4 at 43.) Over the next eight years, Brown served as principal of Walsh, but Walsh struggled to improve on standardized performance tests. (Def.’s LRS ¶ 3; Pl.’s LRS ¶ 3.)
Walsh’s stagnant academic performance made Walsh eligible for designation as a “Commissioner’s Network School,” which is also referred to as; a “Turnaround School:” (Def.’s LRS ¶4; PL’s LRS ¶4.) The Commissioner’s Network “provide[s] resources and flexibilities to improve student achievement in the state’s lowest performance schools. The [program] is designed as a partnership between local stakeholders and the state.” (ECF No. 41-1 at 4.) Brown and Ouellette submitted an application to the Connectiсut Department of Education to designate Walsh a Turnaround School. (Def.’s LRS ¶ 5; PL’s LRS ¶ 5.) As part of the application process, the Connecticut Department of Education required an audit of Walsh by state officials. (Defl’s LRS ¶ 6; PL’s LRS ¶ 6.) On February 27 and 28, 2013, state officials audited Walsh, (Def.’s LRS ¶ 7; PL’s LRS ¶7.) In March 2013, the state officials issued a report of their audit entitled “The Commissioner’s Network Operations and Instructional Audit Report, Walsh School” (the “Audit Report”). (Defl’s LRS ¶ 7; PL’s LRS ¶ 7.) The Audit Report identified concerns relating to Walsh’s administration. (Defi’s LRS ¶ 8; PL’s LRS ¶8.) Specifically, the Audit Report found that there was an “atmosphere of fear and intimidation” at Walsh. (ECF No. 41-1 at 7.) It noted “staff reports that school leadership ha[d] threatened retribution if [staff] do not support its decisions.” (Id.) But it mentioned no specific incidents' of bullying or intimidation by Walsh’s administrative team, which included Brown and the vice principal, Maria Zillo. (Id.)
After her meeting with Walsh staff, Ouellette took two steps. First, on March 22, 2013, Ouellette placed Brown and Zillo (a white woman) on administrative leave, a status in which they continued to receive their full salaries and benefits. (Def.’s LRS ¶ 14; Pl.’s LRS ¶ 14.) According to Ouel-lete, she decided to place Brown and Zillo on administrative leave pending an independent investigation into the allegations set forth in the Audit Report. (ECF No. 41-7 at ¶¶ 13-15.) She decided that a more “fair[ ] and impartial ]” investigation could be conducted with Brown and Zillo on administrative leave. (Id. at ¶ 13.) Ouellette did not provide Brown any opportunity before he was placed on administrative leave to address or correct any of the alleged deficiencies raised in the Audit Report. (ECF No. 44-4 at 161); see also (ECF No. 41-6 at 22)(“Mr. Brown was given no opportunity to correct any deficiencies.”) Second, on March 25, 2013, Ouellette hired Attorney Frederick L. Dorsey to conduct an independent investigation into the issues raised in the Audit Report. (Def.’s LRS ¶ 11; PL’s LRS ¶ 11.)
While on administrative leave, Brown received a copy of the Audit Report. (Def.’s LRS ¶ 21; PL’s LRS ¶ 21.) On April 15, 2013, he filed complaints with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) and the United States Equal Employment Opportunities Commission (“EEOC”) alleging discrimination by the Defendants on account of his race. (Def.’s LRS- ¶ 21; PL’s LRS ¶ 21.)
On June 7, 2013, Dorsey 'issued his report-entitled “Investigative Report for the Waterbury Board of Educatiоn, Allegations Regarding Administrative Improprieties at Walsh Elementary School” (the “Dorsey Report”)—detailing the findings of his investigation. (Def.’s LRS ¶ 15; PL’s LRS ¶ 15.) The Dorsey Report concluded that “during the time Mr. Brown has been Principal of Walsh, educational leadership has been poof, decision-making suspect and the staff demoralized. It is highly unlikely that returning the current administrative staff to Walsh will result in a successful turnaround of that school.” (ECF No. 41-2 at 18.) The Dorsey Report, like the Audit Report, did not recount specific instances of bullying and intimidation by Brown.
On July 23, 2013, following a review of the Dorsey .Report, Ouellette advised Brown that she was “considering reassigning [him] to a position other than elementary school principal.” (ECF No. 41-3 at 2.) She' indicated that she was contemplating the change based on the Audit Report’s conclusion “that there were significant problems with administrative leadership at Walsh” and the Dorsey Report’s conclusion “that there were substantial problems with [Brown’s] leadership at Walsh.” (Id.) Ouellette invited him to a meeting to discuss the change. (Def.’s LRS ¶ 17; PL’s LRS ¶ 17.) After the meeting, Ouellette demoted Brown to vice principal and transferred him to Kings-bury Elementary School. (ECF No. 41-7
B. The Arbitration Award
On August 19, 2013, Brown filed a grievance concerning his demotion and transfer under the collective bargaining agreement with the Board. (ECF No. 41-6 at 10.) On October 8, 2015, following a lengthy arbitration process, the arbitration panel issued an award in favor of Brown, finding that the Board had “violated the [collective bargaining] [a]greement when it reassigned Mr. Brown to the position of Supervising Vice Principal.” (Id. at 25.) Specifically, the arbitration panel concluded that the Board did not have “just cause” to demote Brown, because it relied on anonymous reports by staff (Id. at 23)(citing the “lack of direct testimony that served as the basis for the demotion”) and “made no efforts ... to indicate what corrective actions were necessary ...” (Id.) The panel also concluded that “[t]he Board failed to follow an important procedural aspect of the evaluation protocol” by failing to give Brown an opportunity to address “perceived deficiencies.” (Id. at 30.) The panel ordered that Brown “be reinstated to the rank of Elementary School Principal,” and “receive back pay as an Elementaiy School Principal for the period of his demotion together with all contractually agreed upon benefits to which he is entitled.” (Id, at 31.) The arbitration award did not “require[] or direct[] the Waterbury Board of Education to assign Mr. Brown to Walsh Elementary School.” (Id.) Following the arbitration award, Brown was reinstated as a principal at another school in the. Waterbury School system. (Def.’s LRS ¶ 22; Pl.’s LRS ¶ 22.)
C. Brown’s Comparators
Brown claims his treatment by the Defendants was discriminatory because white elementary school administrators alleged to have engaged in similar conduct (intimidation and bullying) were treated differently than he. (ECF No. 44 at 16-20.) He identities five comparators: Anne Begley, Noreen Buckley, Buerkle, Maria Moul-throp, and Maria Zillo. (Id.) The alleged conduct concerning Begley, Buerkle, and Moulthrop occurred during the tenure of Dr. David Snead (an African-American), who preceded Ouellette as superintendent of Waterbury Schools.
1. Anne Begley
In January or February 2008, Bucks Hill Elementary staff and teachers claimed Anne Begley—the white principal at the school—was ignoring teacher requests and engaging in threatening and verbally abusive conduct. (Def.’s LRS ¶ 38; PL’s LRS ¶ 38.) Following an investigation, Dr. Snead assigned Begley a mentorship team to work with her weekly and advise her how to improve her management style. (Def.’s LRS ¶ 40; PL’s LRS ¶ 40.) She was never placed on administrative leave. (Defi’s LRS ¶ 40; PL’s LRS ¶ 40.)
2. Noreen Buckley
In 2014, Buckley—the white principal of Regan Elementary School—had an anonymous complaint filed against her by teach
3.Buerkle
Buerkle, who is white, served as principal at the State Street School during Dr. Snead’s tenure. (ECF No. 44-5 at 117.) While she was principal at State Street, staff made allegations that she had intimidated and bullied them. (Id.) The Board provided her professional development resources, including mentoring. (Id.) She was never demoted or placed on administrative leave on account of those allegations. (Id.)
4.Maria Moulthrop
When Dr. Snead was superintendent, Maria Moulthrop (who is white) was principal of Hopeville Elementary School. (Def.’s LRS ¶ 28, 32; PL’s LRS ¶28, 32.) She was accused of engaging in improper testing procedures when administering a standardized test. (Def.’s LRS ¶ 29; PL’s LRS ¶ 29.) Attorney Dorsey was hired to conduct the investigation into Moulthrop’s alleged misconduct. (Def.’s LRS ¶ 30; PL’s LRS ¶ 30.) Moulthrop was placed on paid administrative leave during Dorsey’s investigation. (Def.’s LRS ¶ 33; PL’s LRS ¶ 33.) During Dorsey’s investigation, Moulthrop was provided the identity of her accusers. (ECF No. 44-4 at 143-46). She subsequently resigned her position. (Defi’s LRS ¶ 34; PL’s LRS ¶ 34.)
5.Maria Zillo
Zillo was accused of intimidation and bullying by Walsh staff, as reflected in the Dorsey and Audit Reports. (ECF No 41-2 at 5); see also (ECF No. 41-1 at 10.) She was placed on administrative leave but never demoted.
II. Legal Standard
Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The “party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists.” Goenaga v. Mar. of Dimes Birth Defects Found.,
On summary judgment, I must “construe the facts in the light most favorable
III. Discussion
A. Brown’s Claims Are Not Moot
Defendants argue .that all of Brown’s claims are moot because the arbitration award provides him with all the relief he seeks. (ECF No. 41 at 5-6.) “It is well еstablished that the Case or Controversy Clause of Article III, Section 2 of the United States Constitution limits the subject matter jurisdiction of the federal courts such that the parties must continue to have a personal stake in the outcome of the lawsuit. That is, when the issues in dispute between the parties are no longer live, a case becomes moot.” Tanasi v. New All. Bank,
1. Title VII Claims
Under Title VII, attorneys’ fees and punitive damages are available. The amended complaint seeks “[ajttorney’s fees and the reimbursement of costs of the instant action” and “[pjunitive damages in an amount th[e] Court shall consider just and fair.” (EOF No. 17 at 18.) The arbitration award does not provide for punitive damages or legal fees incurred by Brown. (ECF No. 41-6 at 31.) If Brown is successful on his Title VII claims, he could be awarded such damages. Therefore, because the arbitration award does not pro-, vide for all the relief to which Brown is legally entitled under Title VII, Brown’s Title VII claims are not moot. See e.g., Schooler v. Allied Tube & Conduit Corp., No. 98 C 7962,
2. Sections 1981 and 1983 Claims
Similarly, Brown’s sections -1981 and 1983 claims are not moot because he may—if he prevails—recover punitive damages and/or attorneys’ fees. The arbitration award does not encompass such relief. Therefore, Brown’s claims are not moot. See 62-61 Kenyon St. Hartford, LLC v. City of Hartford, No. 3:16-CV-00617,
B. Counts One and Two: Title VII and Sections 1981 and 1983 Claims
Brown asserts claims under Title VII and sections 1981 and 1983 based on theories of discriminatory demotion and Hostile work environment. In this case, Title VII and Sections 1981 and 1983 impose the same legal standards and the claims will thus be analyzed together.
1. Discriminatory Demotion
Under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green,
a. Prima Facie Case
To establish a prima facie discriminatory treatment case, á plaintiff must show “1) that he belonged to a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Feingold,
In this case, the parties agree Brown can establish both the first and third elements of a prima facie case, but Defendants dispute thе remaining elements. As to the second element, however, the evidence suggests that Brown was qualified for the position he held because he was hired for it. See id. (“[Plaintiff] undisputedly was qualified for the ALJ position, as he had in fact been hired for that position.”). Further, and contrary to Defendants’ assertion, the evidence does
As for the fourth element, Brown offers two reasons why his placement on administrative leave and demotion occurred under circumstances giving rise to an inference of racial discrimination: (i) he was replaced as principal of Walsh by a member outside his racial group and (ii) similarly situated white administrators were treated differently than he following allegations of intimidation and bullying. First, Brown has raised an inference of discriminatory intent because, after his demotion, he was replaced as principal of Walsh by Ellen Paolino, who is white. (ECF No. 44-5 at 97.) See, e.g., Carlton v. Mystic Transp., Inc.,
Second, there is evidence that Brown was treated less favorably than similarly situated employees outside his protected group, which also may be a basis for drawing an inference of discriminatory intent. To be similarly situated the individuals with whom the plaintiff attempts to compare himself must be similarly situated “in all material respects.” Shumway v. United Parcel Serv., Inc.,
Brown identifies five comparators: Begley, Buckley, Buerkle, Moulthrop, and Zillo. (ECF No. 44 at 16-20.) According to Brown, each of these administrators—all white administrators in the Waterbury public school system—faced bullying and intimidation allegations by staff, but unlike him, none were demoted. Further, in contrast to the anonymous complaints against Brown, in the only other case in which an independent investigation was undertaken, the'accused was provided with, the identity of the accuser. (Id.)
i. Begley, Buerkle, and Moulthrop
Presumably, because Brown and the comparators all worked for the Board, they were all subject to the same general workplace standards. However, Begley, Buerkle, and Moulthrop had a different supervisor than Brown. Indeed, Ouellette was not even an employee of the Waterbury School system during the investigations into Begley’s, Buerkle’s, and Moul-throp’s alleged intimidation and bullying. (ECF No. 41-7 at ¶¶1, 2, 27.) “In the Second Circuit, whether or not co-employees report to the same supervisor is an important factor in determining whether two employees are subject to the same workplace standards for purposes of finding them similarly situated.” Diggs v. Niagara Mohawk Power Corp., No. 114CV244GLSCFH,
ii. Buckley and Zillo
As for Buckley and Zillo, there is evidence that they are similarly situated be
Both Zillo and Buckley were also accused of engaging in “comparable conduct” to Brown. Compare (EOF No. 41-11 at 2 (The complaint filed against Buckley indicated she had “created an atmosphere of bullying and intimidation in the school; there [was] a lack of collaboration between the administration and' staff; that [Buckley] excessively micro-manage[d] the school; that there [was] weak instructional guidance or leadership from the administrator; and that there [was] mismanagement of staff.”); with (EOF No. 41-1 at ll)(The Audit Report observed that “there is an atmosphere of fear and intimidation in the school, with the principal repeatedly chastising members of the staff publicly,” that “[Brown] has total control over all aspects of the school’s program and culture”, and that “[s]taff ha[ve] no say in the process and believe[ ] they must do what they are told”)); see also (EOF No. 41-2 at 5)(The Dorsey Report noting “the morale at Walsh was depressingly low, that there was little to no confidence in the administration, that teachers felt belittled and afraid of Mr. Brown, and that there was a lack of support from [the] administration, especially Mr. Brown”). The Audit and Dorsey reports leveled the same allegations of intimidation and bullying against Zijlo. (EOF No 41-2 at 3)(The Dorsey Report noting “in March of 2013, the Waterbury Teachers Association, through its union leadership, formally complained to District administrators that the building administrators at Walsh (Principal Érik Brown and Assistant Principal Maria Zillo) had created an.atmosphere of intimidation in the school; that there was a lack of collaboration between the administration and staff; that the .building administrators excessively micromanaged the school; that there was weak instructional guidance or leadership from administrators; and there was mismanagement of staff and instructional time”); see'also (EOF No. 41-1 at 10)(The Audit Report describing “[t]he administration is the focus of all decisions and the staff is reluctant to offer suggestions or challenge the decisions that are handed down for fear of retribution.”) Viewing the evidence in the light most favorable to Brown, I find'that there is sufficient evidence for a' reasonable juror to conclude that Buckley and Zillo were “similarly situated” to Brown.
Defendants contend that Buckley is not “similarly situated” because the collective bargaining agreement between the Board and Waterbury principals in effect at the time of her alleged misconduct prohibited anonymous complaints (like the one filed against her) from being pursued under the agreement’s grievance provisions. (Def.’s LRS ¶ 50; Pl.’s LRS ¶50.) Defendants also argue the Board conducted an investigation into the allegations about Buckley and determined that the “complaints were
b. Legitimate, Non-Discriminatory Reasons
Because Brown has established a prima facie case, the burden shifts to the Defendants to offer legitimate, non-discriminatory reasons for the adverse employment action, i.e., Brown’s demotion. “The employer need not persuade the court that it was motivated by the reason it provides; rather it must simply articulate an explanation that, if true, would connote lawful behavior.” Greenway v. Buffalo Hilton Hotel,
c, Pretext
In evaluating whether Brown has met his burden with respect to pretext, I must “examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer.” Walsh v. N.Y. City Hous. Auth.,
A jury reviewing the evidence in the record as a whole could reasonably find that racial discrimination by the Defendants was a motivating factor in Brown’s demotion. First, “[w]ere a jury to find on these facts that there was disparate treatment in the [Board’s] disciplining of [Brown] when compared to [Buckley and Zillo], it could also find that [the Board’s] proffer of a non-discriminatory reason for [Brown’s demotion] was pretex-tual.” Graham,
Brown has offered evidence from which a reasonable juror could find that the Defendants’ proffered reasons were not the only reasons for his demotion, and that race played a role. Therefore, Brown’s discriminatory demotion claim survives summary judgment.
2. Hostile Work Environment Claim
To establish a hostile work environment claim a plaintiff must show that (1) “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” and (2) “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Howley v. Town of Stratford,
The required showing that “the workplace is permeated” with harassment that “is sufficiently severe” has objective and subjective elements: “the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Rogers v. City of New Britain,
Brown has failed to raise a genuine issue of material fact as to whether his workplace was permeated with discriminatory harassment that was severe or pervasive enough to alter the conditions of his work environment. Brown primarily relies on a 2007 incident to support this claim. In 2007, after Brown refused to display a Christmas tree at Walsh, a Board member, Paul D’Angelo, publicly accused Brown in the media of “declaring war on Christians.” (ECF No. 44-4 at 192-93.) Brown testified that D’Angelo’s comment implicated his race in that it communicated to “white folks throughout the country” that “[he] was a Muslim, which was the popular way of saying ‘nigger.’ ” (Id. at 193.) As a result of D’Angelo’s comment, Brown received “death threats, Christmas cards that said ‘Merry Fucking Christmas’ on [them], [and] endless phone calls from all over the country.” (Id.) Brown further testified, that when he met -with “Pat Hayes, who at the time, was the chief of the Board” to discuss D’Angelo’s actions, Hayes informed. Brown that “there was nothing he [could] do” because D’Angelo was a “rogue Board member.” (Id. at 198.)
The 2007 incident does not raise a genuine issue of material fact as to whether Brown’s work environment was racially hostile.' Brown concedes that no Board member—including D’Angelo—ever made a racially derogatory comment. (ECF No. 44 at 23.) Brown was called a “Muslim” by anonymous members of the public as a result of D’Angelo’s report to the media, but the word “Muslim” is not a racial epithet, even if Brown interpreted it as such. And Brown points to no evidence suggesting that the death threats received from members of the public were racially motivated. Furthermore, there is no evidence in the record suggesting the comments and threats received from members of the public could be attributed to the Board. Boakye-Yiadom v. Laria, No. 09-
Brown also cites other acts that he claims were motivated by race. Specifically, he testified that the Board ignored his challenge to Ouellette’s decision to demote him and did not invite him to attend the meeting at which it voted on his demotion. (EOF No. 44-4 at 209-10.) This is partly just a refashioning of his discriminatory demotion claim, and while it may be considered as part of the totality of circumstances, it falls far short of raising a genuine issue about whether his workplace was “permeated with discriminatory intimidation, ridicule, and insult.” See Hughes v. Xerox Corp.,
Brown also cites evidence that the Board struggles to retain black and Hispanic administrators, that it has only two black and three Hispanic principals (one of whom is Brown), and that fewer than.5% of recent hires by the Board were racial minorities. (EOF No. 44-5 at 3-13, id. at 110-13.) He also cites a newspaper article referring to an investigation of the Board’s hiring and retention practices by the Connecticut Commission on. Human Rights. (ECF No. 44-3 at 135-36.) None of this evidence raises a genuine-issue-about a hostile work environment, however, because, by themselves, an investigation and weaknesses in hiring and retaining black and Hispanic employees do no.t suggest that Brown faced “discriminatory intimidation, ridicule, and insult” or. other racially motivated harassment. Nor does this evidence suggest “unreasonable] interfere[nce] with ... [Brown’s] work' performance.” Howley,
Finally, with respect to his hostile work environment claim against Ouellette in Count Two, Brown offers virtually no evidence. Ouellette did not work for the Board at the time of the 2007 “Christmas tree” incident, and Brown offers no evidence that she made race-based or other discriminatory comments or innuendo. Brown argues that at times she and the Board did not provide adequate support for him or for programs at Walsh, but he offers no evidence that any such lack of support was discriminatory or motivated by his race.
Because there is no evidence in the record from which a reasonable juror could conclude that Brown’s “workplace [was] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment”, Howley,
C. Count Three; Retaliation Claims
In Count Three of his amended complaint, Brown asserts thаt the Board engaged in “selective discriminatory employment practices ... against the plaintiff,
Brown claims that the Board retaliated against him by placing him on administrative leave and demoting him following two events. The first, in the summer of 2012, involved Brown’s convening “an open meeting with the Walsh community in Waterbury to discuss the proposed changes that could occur at Walsh,” including curriculum changes and the possibility he could be transferred to another school. (Id. at ¶ 35) Brown alleges his activities in connection with the meeting constituted “protected activity of free speech of public concern under the Connecticut Constitution and United States Constitution.” (Id. at ¶ 38.) Brown hosted the meeting after he had “attended a meeting near the summer of 2012 with the defendants where the defendants decided to make changes to [ ] Walsh’s educational mission and/or educational system.” (Id. at ¶33.) After the summer 2012 meeting, Brown claims, Ouellette and the Board “accused Brown of attempting to turn the Walsh community against them.” (Id. at ¶ 37.) The second event involved Brown’s filing of complaints with the EEOC and the CHRO alleging discriminatory conduct by the Defendants after he was placed on administrative leave. (Id. at ¶ 42.) The Board argues that Brown has not adduced sufficient evidence to satisfy the causation elements of his Title VTI and First Amendment retaliation claims.
1. Title VTI Retaliation Claim
a. Prima Facie Case
“In order to show a prima fa-cie ease of retaliation in response to a motion for summary judgment, a plaintiff must submit sufficient admissible evidence to allow a trier of fact to find: (i) conduct by the plaintiff that is protected activity under Title VII; (ii) of which the employer was aware; (iii) followed by an adverse employment action of a nature that would deter a reasonable employee from making or supporting a discrimination claim; (iv) that was causally connected to the protected activity.” Cox v. Onondaga Cnty. Sheriffs Dep’t,
“Once an employee establishes a prima facie case, the burden shifts to the employer to put forth evidence of a non-retaliatory rationale.” Cox,
b. Legitimate Non-Discriminatory Reason
The Board argues that it demoted Brown for legitimate, nondiscriminatory reasons, namely, what it learned from “the Audit Report, the Dorsey Report, the information given to [Ouellette] at [the] meeting with members of the Waterbury Teachers Union and Mr, Brown’s unwillingness to accept any responsibility for the issues raised in the Audit and Dorsey Reports.” (ECF No. 41-7 at ¶ 19.) This statement is adequate to shift the burden back to Brown.
c. Pretext
To establish pretext—that “the retaliation was a but-for cause of ah adverse employment action”—a plaintiff can “demonstrate weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretali-atory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.... Temporal proximity alone is insufficient to defeat summary judgment at the pretext stage.... However, a plaintiff may rely on evidence comprising her prima facie case, including tеmporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at that stage.” Zann Kwan v. Andalex Grp. LLC,
There is evidence in the record from which a reasonable juror could conclude that but for Brown’s filing of the CHRO and EE.OC complaints on April 15, 2013, he would not have been demoted to vice principal. First, as discussed above, Brown offers evidence that the Board treated similarly situated employees (i.e., Buckley and Zillo) who were alleged to have engaged in intimidation and bullying, but who did not file complaints or engage in other protected activity, differently than Brown. Second, Brown asserts—and the arbitration award concludes—that the Board failed to follow required procedures, including relying on anonymous reports and failing to give Brown an opportunity
2. First Amendment Retaliation Claim
“[T]he First Amendment protects a [government] employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos,
I agree with the Board that he has not. First, Brown cites no evidence to support his First Amendment retaliation claim. His Local Rule 56(a)(2) statement makes no mention of the summer 2012 meeting (EOF No. 44-1), and the argument on this issue in his -brief cites only the complaint. (EOF No. 44 at 37.) A party opposing summary judgment must point to evidence; he may not rest on the allegations of his complaint. Fed. R. Civ. P. 56(c)(1).
Second, even if the allegations in the complaint were credited, they would not, in light of the sequence of events shown in the record, raise a triable issue on causation. Brown does not specify the timing of the community meeting at which he discussed curriculum changes beyond alleging it occurred in the “Summer of 2012,” but even construing this allegation in the light most favorable to him, it occurred no later than September 2012— some six months before he was placed on administrative leave. (In his brief, Brown refers to this period as seven months. (ECF No. 44 at 37.)) Although the Second Circuit “has not drawn a bright line” beyond which the temporal relationship between protected activity and adverse action is too weak to support an inference of causation, Gorzynski,
More striking-than the attenuation of the causal chain, however, is the fact that it was broken—twice—by intervening events. See Tasadfoy v. Ruggiero,
The second break in the causal chain was the release of the Dorsey Report, which preceded by only six weeks Brown’s July 2013 demotion and was cited in Ouel-lette’s letter announcing that she was considering the demotion. (EOF No. 41-3 at 2.) The Dorsey Report largely echoed the findings in the Audit Report and concluded that during Brown’s tenure, “educational leadership has been poor, decision-making suspect and the staff demoralized.” (EOF No. 41-2 at 18.) Again, there is no evidence that the Dorsey Report, which Ouel-lette commissioned after release of the Audit Report, had anything to do with.the summer 2012 meeting. And while there are, as noted above, genuine issues of material fact about the reasons for the Defendants’ response to the Dorsey Report, there is no evidence in the record suggesting that the summer 2012 meeting—the basis for Brown’s First Amendment claim—contributed to that response. To the contrary, all the evidence in the record concerning Ouellette’s and the Board’s decisions' to demote Brown -focuses on the Dorsey Report, the fairness of the investigatory process that led to that report, whether or not Brown received an opportunity to address the deficiencies identified in the report, and whether similarly situated principals received more-lenient discipline based on similar reports. In short, because Brown points to no evidence suggesting he was demoted due to the exercise of First Amendment rights in the summer of 2012, the Board is entitled to summary judgment on the First Amende ment retaliation claim.
3. Free Speech Claim under the Connecticut Constitution
Brown also claims the Board violated his rights under the Connecticut Constitution’s freedom of speech clause. Article First, Section 4, of the Connecticut constitution provides “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that • liberty.” The Connecticut Supreme Court has recognized a private right of action under Article First, Séction Four for declaratory or injunctive relief. See Lopez v. Smiley,
At their discretion, district courts “may decline to exercise supplemental jurisdiction over a claim ... if [ ] the claim raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c)(1); Seabrook v. Jacobson,
D. Count Three (A): Due Process Claim Against the Superintendent in Her Individual Capacity
Brown’s amended complaint includes a § 1983 claim against Ouellette in her individual capacity, alleging that she deprived him of a “protected property interest in his employment as a Principal at Walsh” under the Fourteenth Amendment. (ECF No. 17 at 12.) Brown claims Ouellettе violated his right to procedural due process by (i) “placing] [him] on administrative leave without a prior formal or informal hearing or mechanism to challenge his placement on administrative leave,” and (ii) “demoting] him to [v]ice [principal ... without a prior formal or informal hearing.” (Id,) Ouellette contends (i) that Brown’s placement on administrative leave did not deprive him of a property interest because he received full compensation while on leave, and (ii) that Brown’s demotion to vice principal did not violate his due process right because he invoked, the collective bargaining agreement’s grievance procedures, which provided him all the process that was due. (ECF No. 41 at 8, 11.)
1. Brown’s Placement On Administrative Leave Did Not Implicate A Property Interest
“Property interests protected by due process are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. To establish such an interest, a plaintiff must show that he or she had a legitimate claim of entitlement to the interest, as opposed to a mere unilateral expectation.” MacFall v. City of Rochester,
2. Brown Received Due Process In Connection with His Demotion
Ouellette makes no argument that the demotion did not implicate a property interest, and the caselaw would foreclose any such argument. Ciambriello v. Cty. of Nassau,
The record shows that Brown’s employment with the Board was governed by a collective bargaining agreement. (Def.’s LRS ¶¶ 23-25; Pl.’s LRS ¶¶ 23-25.) Under that agreement, Brown filed a grievance challenging his demotion to vice principal and transfer to Kingsbury Elementary School. (Def.’s LRS ¶24; PL’s LRS ¶ 24.) Brown completed all the grievance procedures set forth in the collective bargaining agreement, including participating in an arbitration hearing. (Def.’s LRS ¶ 25; PL’s LRS ¶ 25.) After the hearing, the arbitration panel issued an award ordering that Brown be reinstated to the rank of elementary school principal and receive back pay for the period of his demotion. (ECF No. 41-6 at 31.)
The fact that the collective bargaining agreement “established grievance and arbitration procedure, and [Brown] took advantage of these procedures by filing [a] grievance!] that [was] considered by the Board by pursuing arbitration” is sufficient to satisfy due process. Harhay,
3. Brown’s Liberty Interest Claim Fails
Brown asserts—for the first time—that “[i]n addition to his property interest being implicated, ... his being placed on administrative leave, and then subsequently demoted in the wake of the very public disclosure of the Audit Report and Dorsey Report, implicate his liberty interests.” (ECF No. 44 at 28-29.) This is known as a “stigma-plus” theory. Patterson v. City of Utica,
Count Three of Brown’s amended complaint pleads that .he was deprived of his “protected property interest as a Principal; at Walsh Elementary” but makes no reference to a liberty interest. (EOF No. 17 at 12.) A party is barred from raising new theories or claims when responding to a motion for summary judgment. See e.g., Thomas v. Egan,
Even if Brown had properly alleged a “stigma plus” claim, such a claim would fail because there is no evidence in the record that Ouellette made any false statement. O’Connor v. Pierson,
IV. Conclusion
For the reasons set forth above, I GRANT IN PART AND DENY IN PART Defendants’ motion for summary judgment. Defendants are entitled to summary judgment on' Brown’s Title VII • hostile work environment claim in Counts One and Two, his procedural due process claim in Count Three (A), and his retaliation claim under the First Amendment in Count Three. Brown’s retaliation claim under the Connecticut Constitution in Count Three is dismissed without prejudice under '28 U.S.C. § 1367(c)(1). The following claims remain: the Title VII discriminatory demotion claim in Counts One and Count Two, and the Title VII retaliation claim in Count Three.
Jury selection is set for November 8, ‘ 2017. The parties shall file their joint trial memorandum within 90 days of this order in accordance with my instructions for such a memorandum (available on the undersigned’s website).
Should the parties wish to proceed to mеdiation, they shall jointly file a statement within 14 days, certifying that (1) counsel have conferred with their clients and- each' other, (2) the parties wish to proceed to mediation, (3)'the parties are willing to participate in settlement efforts in good faith, and (4) counsel believe that a mediation stands at least a reasonable chance of resolving the cáse without trial. If they file such a statement, I will postpone the deadline for the filing of the joint trial memorandum until 45 days after the parties’ mediation (but no later than 30 days before trial).
IT IS SO ORDERED.
Notes
. Brown did not change the numbering of the claims in his amended complaint when he added his procedural due process claim. Therefore, I refer to the retaliation claim as "Count Three” and the due process claim as "Count Three (A).”
. Dr. David Snead was the Superintendent of Waterbury Schools from August 1, 2000 through October 31, 2011. (ECF No. 41-7 at ¶ 2.) Ouellette succeeded him as Superintendent of Waterbury schools on November 1, 2011, (Id. at ¶ 1.)
. I was unable to locate Buerkle’s first name in the record.
. See, e.g., Men of Color Helping All Soc., Inc. v. City of Buffalo,
. The fact that Zillo was an assistant principal does not by itself disqualify her as a comparator. Gorzynski v. JetBlue Airways Corp.,
. Some courts have questioned whether Nassar,
. I found no case in which the Second Circuit has addressed whether placement on paid administrative leave pending an investigation, by itself, constitutes an adverse employment action for a First Amendment retaliation claim. The Second Circuit has held that it does not for a Title VII discrimination claim. Joseph v. Leavitt,