Case 3:19-cv-01063-MPS Document 87 Filed 06/08/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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` No. 3:19-CV-01063 (MPS)
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`CARLA MOORE,
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`STATE OF CONNECTICUT DEPARTMENT OF
`CORRECTION,
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`Plaintiff,
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`v.
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`Defendant.
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`MEMORANDUM OF DECISION
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`Plaintiff Carla Moore, a former employee of the Connecticut Department of Correction
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`(the “DOC”), alleges that the DOC violated her rights under Title VII of the Civil Rights Act of
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`1964 by subjecting her to a hostile work environment based on her race.1 Moore claims that a
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`fellow DOC employee’s display of a Confederate flag license plate in the window of his truck
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`while it was parked at the entrance to the facility where she worked created a hostile work
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`environment, and that the DOC is liable because it was aware of the plate but failed to take
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`appropriate remedial action. The Court held a bench trial on May 23, 2022, and now sets forth
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`its findings of fact and conclusions of law, Fed. R. Civ. P. 52(a)(1), which can be summarized as
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`follows: without deciding whether the display of the plate created a hostile work environment,
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`the Court concludes that Moore failed to meet her burden of proving by a preponderance of the
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`evidence that the DOC failed to take appropriate remedial action. Accordingly, the Court enters
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`judgment in favor of the DOC.
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`I.
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`FINDINGS OF FACT
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`1 Moore earlier asserted a Title VII retaliation claim and various state law claims, but those claims have all been
`dismissed in earlier rulings. See ECF Nos. 26 and 32.
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`The Court makes the following findings of fact based on witness testimony, trial exhibits,
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`and proposed findings of fact submitted with the parties’ joint trial memorandum (ECF No. 64).2
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`Moore is an African-American woman who was employed by the DOC from
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`approximately 1993 until March 31, 2022. (Moore Test.; ECF No. 64 at 8 (Plaintiff’s proposed
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`findings) and 11 (Defendant’s proposed findings).) At the time of the events at issue in this suit,
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`she worked as a records specialist at the Corrigan-Radgowski Correctional Center, in the
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`Radgowski building. (Id.)
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`At some point, perhaps as early as the beginning of 2017,3 Moore saw a Confederate flag
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`vanity plate displayed in the rear window of a pick-up truck that was parked next to the entrance
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`of the Radgowski building with the back of the truck facing the building, such that a person
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`exiting the building could see the plate. (Moore Test.; see also Exs 1-4 (photos of truck with
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`plate).) Moore found the plate’s presence “horrifying,” but she did not make a complaint about it
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`at the time she first saw it. (Moore Test.)
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`Moore first complained about the plate on November 13, 2018, when she made a verbal
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`complaint to her supervisor, Justin Oles. (Ex. 502 at 2; see also Oles Test.) Oles had seen the
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`plate before, but he had not reported it because he didn’t know enough about the First
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`Amendment to know whether the truck owner had the right to display it. (Id.) Once Moore
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`raised the issue, however, Oles felt it was right to report the plate to his superiors, and he did so.
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`(Id.) The DOC had received no other complaints regarding the plate before Moore’s, nor had it
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`2 To the extent that any Finding of Fact reflects a legal conclusion, it shall to that extent be deemed a Conclusion of
`Law, and vice-versa.
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` Moore testified that she first saw the plate in the beginning of 2017. (Moore Test.) Her incident report indicates
`that she had been seeing the flag for “approximately 1 year” as of November 13, 2018. (See, e.g., Ex. 504.)
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`previously received any complaints about displays of any sort in personal vehicles parked in
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`DOC parking lots. (Darin Test. at 65-66.)
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`On November 30, Moore submitted a written complaint stating:
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`On 11/27/2018 and dozens of times during this year, I was offended by a staff
`member[’]s pickup truck backed in the parking space right next to the flag pole in
`the front of the Radgowski building. When exiting the building both staff and the
`public have a direct view of a confederate flag vanity plate in the back window of
`the pickup truck which is highly offensive to people of color.
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`Ex. 5. The captain to whom Moore emailed the written complaint informed her on December 3
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`that Oles had already filed a written incident report and asked Moore to transfer what she had
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`written to a supplemental incident report, which Moore did on December 6. (Id.; Ex. 504.)
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`On December 5, Deputy Warden Ronald Cotta reviewed the incident report prepared by
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`Oles and forwarded it to the Warden, Stephen Faucher, for “further review.” (Ex. 501 at 3.) A
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`staff attorney within the DOC’s Legal Affairs Unit recommended to Faucher that the complaint
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`be referred to the DOC’s Affirmative Action Unit (“Affirmative Action”). (Ex. 506.) She also
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`noted that she had “consulted with Lori Kolakowski regarding removing the flag from view
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`while on state property” and that Kolakowski was “going to run the question by OLR [the Office
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`of Labor Relations] and advise.” (Id.)
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`On December 7, Faucher forwarded the “incident report” containing all paperwork
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`regarding Moore’s complaint (including Oles’s report and Moore’s supplemental report) to
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`District Administrator Edward Maldonado, recommending that the matter be reviewed by
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`Affirmative Action. (Ex. 505.) “[A]round December 7th,” Holly Darin, who supervises
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`Affirmative Action, “heard from Legal or HR that there was an incident report coming up.”
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`(Darin Test. at 57.) Darin began discussing the complaint with HR and Legal Affairs because it
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`was a “case of first impression” and “[t]here w[ere] some First Amendment rights at play.” (Id.)
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`On December 13, Cotta spoke to the owner of the vehicle with the Confederate flag plate,
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`Correctional Officer Eric Walls. (Ex. 503; see also Darin Test. at 60.) Cotta told Walls that
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`another staff member found the plate offensive and asked if he would voluntarily remove the
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`plate while his car was on state property. (Id.) Walls refused to do so. (Id.) Walls stated that he
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`had displayed the plate in his vehicle for years and that “it was not meant to be offensive, but
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`part of his heritage . . . .” (Id.)
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`On December 20, Maldonado referred Moore’s complaint to Deputy Commissioner
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`Monica Rinaldi, recommending that the incident be reviewed by Human Resources and
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`Affirmative Action. (Ex. 508.) Affirmative Action formally received the referral on that date,
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`and it reached out to both Legal Affairs and the OLR for guidance on how to handle the
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`complaint. (Darin Test. at 59-60; Ex. 507 at 2.) Affirmative Action decided to reach out to the
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`OLR because that office handles all employee grievances and disciplinary issues and so could
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`advise on whether DOC could discipline Walls for the plate and on whether it could order him to
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`remove it. (Darin Test. at 59.)
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`A few weeks later, on January 9, 2019 Darin reported to the Deputy Commissioner’s
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`office that she had not yet made a determination regarding Moore’s complaint because she had
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`had to reach out to Legal Affairs and the Attorney General’s Office. (Ex. 507 at 1-2; see also
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`Darin Test. at 61.) Darin also indicated that she “hope[d] to have a better idea on how best to
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`proceed shortly.” (Id.)
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`On January 15, the Deputy Commissioner’s office sent an email checking on the status of
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`the investigation, and Nicole Anker, the director of Legal Affairs, responded, “[s]till waiting on
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`AGs office to chime in. They’re working on it.” (Ex. 507 at 1.) As of that date, Affirmative
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`Action had not taken any action regarding the complaint “because [the unit] was still waiting to
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`hear back from the AG’s office and legal.” (Darin Test. at 62.)
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`On February 19, the Deputy Commissioner’s office followed up again regarding the
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`status of the investigation. (Ex. 509 at 2.) Darin responded: “I heard back from legal last week
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`and need to write a memo.” (Id.) Although Darin indicated in her response that she hoped to get
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`the Deputy Commissioner an answer regarding the complaint by the end of the week (id.), she
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`realized, upon further review of Moore’s complaint, that “it wasn’t exactly clear whether
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`[Moore] was alleging a hostile work environment or harassment based upon protected class”
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`because Moore indicated in her complaint that “she was offended by the [C]onfederate flag and
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`that the [DOC] had a duty to do something when someone was offended.” (Darin Test. at 63).
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`While Darin “d[idn’t] disagree” that the DOC has “an obligation to take a serious proactive
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`stance against issues that offend all state employees,” the Affirmative Action Unit has
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`“jurisdiction . . . [only] over complaints of harassment or discrimination based upon a protected
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`class.” (Id. at 64.) Darin decided to have one of the investigators working under her supervision
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`take a statement from Moore to clarify the basis for her complaint to ensure that it fell within
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`Affirmative Action’s jurisdiction. (Id. at 64-65; see also Ex. 509 at 1 (March 6, 2019 email from
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`Darin to the Deputy Commissioner’s office stating that Darin “ha[d] determined . . . that
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`Affirmative Action w[ould] retain [Moore’s complaint] for the purposes of taking the statement
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`of . . . Moore” and that Affirmative Action would “be in a better position to decide how best to
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`move forward” after doing so).)
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`The investigator interviewed Moore on March 15. (See Ex. 510 (email from investigator
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`stating that he would be interviewing Moore on March 15 in the Radgowski building); Ex. 511
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`(documentation of interview).) During that interview, in response to questions from the
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`investigator, Moore stated that she had complained because the flag plate “represent[ed] the
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`unfairness toward people of color,” “symboliz[ed] racism,” and “ma[de] [her] feel like [she was]
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`being singled out, not being treated like other people are.” (Ex. 511 at 4-5)
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`On March 29, the investigator emailed Moore to find a time for her to review and sign
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`her interview statement. (Ex. 512.) The statement was not immediately ready for Moore’s
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`review following her interview because the investigator had to prepare it by transcribing a
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`recording of the interview and also because the investigator would have been busy handling
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`other investigations. (Darin Test. at 69.) Moore ultimately signed the statement on April 2. (Ex.
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`511 at 3.)
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`Darin then prepared an investigation report stating that the display of the Confederate
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`flag plate in the Radgowski parking lot constituted a violation of DOC Administrative Directive
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`2.1(J)(2) (ex. 514; see also Darin Test. At 70-72), which prohibits “harassment,” defined as
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`“unwelcome verbal or physical conduct based on a legally protected class when such conduct has
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`the effect of creating an intimidating, hostile or offensive working environment,” including
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`“[d]emonstrations of a racial or ethnic nature such as use of gestures, pictures or drawings which
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`would offend a particular racial or ethnic group” (ex. 518 at 3). She recommended that the
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`Correctional Officer displaying the plate be required to remove or cover it while his vehicle was
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`parked in a DOC parking lot. (Ex. 514; see also Darin Test. at 70-72.) The report made no
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`recommendation regarding whether the Correctional Officer should be disciplined, as HR—
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`rather than Affirmative Action—handles issues related to discipline. (Darin Test. at 72.) The
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`report was dated May 15, 2019, and it was addressed to then-Deputy Commissioner Angel
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`Quiros and then-Commissioner Rollin Cook. (Ex. 514.)
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`HR received and reviewed Darin’s report on May 15, returning it to her the same day
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`with a concurrence in Darin’s findings and recommendation but no recommendation that Walls
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`be disciplined. (Ex. 513; Darin Test. at 73-74.) Darin then forwarded the report to the Deputy
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`Commissioner of Operations, who received it on May 16, reviewed and concurred with Darin’s
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`findings and recommendation, and forwarded the report to Cook on May 20. (Id.) Cook
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`received the report on May 20, reviewed and signed it, with a statement that the “[e]mployee
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`should be ordered to remove the vanity plate or otherwise cover it when it is on any DOC
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`property,” and returned it to Affirmative Action on May 23. (Id.)
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`At 2:01pm on May 23, Darin emailed Warden Anthony Corcella, directing that “the
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`facility . . . issue an order to CO Walls” requiring him “to remove the vanity plate or otherwise
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`cover it when it is on DOC property.” (Exs. 515, 517; Darin Test. at 74-75.) Upon receipt of
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`Darin’s email, Corcella and Cotta spoke to Walls and ordered him to cover or remove the plate.
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`(Ex. 516; see also Cotta Test.) Corcella responded to Darin’s email at 2:47pm informing her that
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`he and Cotta had observed Walls removing the plate from the window of the truck. (Id.)
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`Moore did not see the Confederate flag plate again after Walls was ordered to remove it,
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`and she testified that removal of the flag plate made a difference in how she felt about her work
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`environment. (Moore Test.)4 The DOC received no other complaints about the flag plate after
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`May 23, 2019. (Darin Test. at 78.) Moore continued to work for the DOC until March 31, 2022.
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`(Moore Test.) Walls never supervised Moore during her employment with the DOC. (Cotta
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`Test.)
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`Affirmative Action’s investigation of Moore’s complaint took longer than a typical
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`investigation because her complaint raised an issue the DOC had not previously confronted—
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`4 Moore nonetheless testified that the removal of the flag did not eliminate her emotional distress. (Moore Test.)
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`whether the DOC could order employees to remove or cover displays within their personal
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`vehicles while those vehicles were on DOC property. (Darin Test. at 76-77.) It had no policies
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`or directives in place that provided guidance on how to handle the issue, which raised First
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`Amendment questions on which the DOC needed outside advice from the Attorney General’s
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`Office and from the OLR. (Id. at 77.) Darin knew that her office’s handling of this complaint
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`would set a precedent for how the DOC would handle similar complaints in the future, and she
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`therefore wanted to make sure that the office handled it correctly. (Id.) In addition, Darin
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`worried that Walls might file a grievance if he was ordered to remove the plate, so she wanted to
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`ensure that she “dotted [her] Is and crossed [her] Ts” and that her investigation report was
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`“airtight.” (Id. at 72.) Finally, Darin estimated that she had “30 other [investigation] files going
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`on at the same time,” and that while Moore’s complaint was “very important,” Darin was still
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`responsible for “oversee[ing] the entire unit” and could not devote all of her time to Moore’s
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`complaint. (Id.)
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`The DOC received a complaint regarding another display of a Confederate flag in a
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`personal vehicle in a DOC parking lot at some point after it completed its investigation of
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`Moore’s complaint. (Darin Test. at 78.) In that case, the DOC “followed the exact same
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`procedure” it followed in Moore’s case, requiring the employee to remove or cover the flag
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`while on DOC property. (Id.) Unlike in Moore’s case, Affirmative Action resolved this second
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`complaint “within a day or two of receiving it” because Moore’s case gave it a “precedent [for
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`how] to deal with it.” (Id.)
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`II.
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`CONCLUSIONS OF LAW
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`To prevail on her hostile work environment claim, Moore had to prove (1) that her
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`Case 3:19-cv-01063-MPS Document 87 Filed 06/08/22 Page 9 of 14
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`“workplace was permeated with discriminatory intimidation that was sufficiently severe or
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`pervasive to alter the conditions of her work environment” and (2) that “a specific basis exists for
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`imputing the conduct that created the hostile work environment to the [DOC].” MacCluskey v.
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`Univ. of Conn. Health Ctr., 707 F. App’x 44, 46 (2d Cir. 2017) (quoting Murray v. New York
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`Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995)). Because I conclude that Moore failed
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`to carry her burden to show a basis for imputing liability to the DOC, I do not address whether
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`she met her burden of proving that the display of the Confederate flag plate created a hostile
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`work environment.
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`When harassment is perpetrated by a coworker (as opposed to a supervisor), “the
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`employer will be held liable only for its own negligence.” Duch v. Jakubek, 588 F.3d 757, 762
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`(2d Cir. 2009) (quoting Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998)). To
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`show negligence on the part of her employer, an employee “must demonstrate that her employer
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`failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of
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`reasonable care should have known, about the harassment yet failed to take appropriate remedial
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`action.” Id. (internal citations and quotation marks omitted); see also Feingold v. New York, 366
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`F.3d 128, 152 (2d Cir. 2004) (“When harassment is perpetrated by the plaintiff’s coworkers, an
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`employer will be liable if the plaintiff demonstrates that the employer either provided no
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`reasonable avenue for complaint or knew of the harassment but did nothing about it.”) (internal
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`quotation marks omitted). Moore does not allege that the DOC failed to provide a reasonable
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`avenue for complaint; rather, she claims that the DOC knew or should have known that she was
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`suffering from harassment but failed to respond appropriately or reasonably. “Whether [the
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`employer’s] response was reasonable has to be assessed from the totality of the circumstances.”
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`Duch at 766 (quoting Distasio, 157 F.3d at 65) (internal alteration omitted). “Factors to be
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`considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the
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`nature of the employer’s response in light of the employer’s resources, and the nature of the
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`work environment.” Id. Remedial action that is insufficiently prompt may constitute negligence
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`on the part of the employer. Id. (holding that summary judgment is inappropriate if “the
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`evidence creates an issue of fact as to whether an employer’s action is sufficiently remedial and
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`prompt”) (emphasis in original; internal quotation marks and citation omitted).
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`At trial, Moore did not argue that the DOC’s ultimate remedial action—requiring Walls
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`to remove or cover the flag plate while on state property—failed to adequately address her
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`complaint. Rather, she argued that the delay between her initial complaint on November 13,
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`20185 and the removal of the flag on May 23, 2019 made the response insufficiently prompt.
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`But the DOC has offered reasonable explanations for the approximately six months that elapsed
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`between Moore’s initial complaint and its resolution, and, as a result, I cannot conclude that the
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`time the DOC took to resolve Moore’s complaint rendered its response negligent.
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`Initially, it took Moore’s complaint a little over a month to wend its way through the
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`DOC chain of command and reach Affirmative Action, but this delay does not suggest
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`negligence on the part of the DOC. Upon receipt of Moore’s complaint, Oles promptly filed an
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`incident report. Oles and others who reviewed the complaint used the DOC’s established
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`5 To the extent Moore suggested that the DOC should have acted to remove the plate even before Moore complained
`about it, that argument is unpersuasive. The only supervisor who acknowledged having seen the flag before Moore
`complained about it was Oles, and there was no evidence at trial regarding when Oles first saw it, i.e., whether it
`was a day, month, or year before Moore complained. Nor was there any evidence that Oles, at the time he saw the
`plate, was “at a sufficiently high level in the . . . management hierarchy to qualify as a proxy for the [DOC],” was
`“charged with a duty to act on the knowledge and stop the harassment,” or was “charged with a duty to inform the
`[DOC] of the harassment.” Duch, 588 F.3d at 763 (quoting Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir. 1997)).
`Further, while Moore testified that it would have been “nearly impossible” to exit the Radgowski building without
`seeing the flag plate (Moore Test.), two of her supervisors maintained that they did not observe the plate before
`Moore made her complaint (Cotta Test.; Richardson Test.). Accordingly, I conclude that Moore failed to prove by a
`preponderance of the evidence that any of her supervisors were aware of the plate showing the Confederate flag for
`any significant period before she made her complaint. Nor do I find that the plate was so conspicuous that the DOC
`should have known of it before Moore complained about it.
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`channels for handling such complaints by forwarding it up the chain of command and
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`recommending that it be referred to Affirmative Action for investigation. As noted, that process
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`took a little over a month, as each DOC official in the chain reviewed the complaint and then
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`decided to forward it along. As this process unfolded, the DOC tried to resolve the issue
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`temporarily: one month after Moore complained to Oles, and while her complaint was still being
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`passed up the chain of command, Deputy Warden Cotta asked Walls to remove the plate
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`voluntarily, but Walls refused to do so. I cannot conclude that this process of forwarding the
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`complaint along established channels until it reached Affirmative Action was unreasonable,
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`especially in light of the DOC’s efforts to resolve the issue temporarily pending its investigation
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`of the complaint.
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`Next, Affirmative Action, confronted with an issue it had not previously encountered
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`(how to handle a display in an employee’s personal vehicle parked on DOC property) and
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`concerned that the employee might file a grievance through the union or make a First
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`Amendment claim if ordered to remove the plate, sought advice from Legal Affairs, the OLR,
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`and the Attorney General’s Office. Approximately two months of the time that elapsed between
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`Moore’s complaint and its resolution was spent awaiting legal advice from other state agencies.
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`Darin began discussing the matter with Legal Affairs around December 7, 2018, before her
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`office had even formally received the complaint. (Darin Test. at 57.) As of January 9, 2019, she
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`had reached out to the Attorney General’s Office for guidance (ex. 507 at 2), but she did not
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`receive a response until mid-February (ex. 509 at 2). The First Amendment question raised by
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`Moore’s complaint was not frivolous because the vanity plate was inside Walls’s personal
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`vehicle and not within the workplace itself. See, e.g., Erickson v. City of Topeka, Kan., 209 F.
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`Supp. 2d 1131 (D. Kan. 2002) (granting summary judgment on First Amendment claim to
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`plaintiff city employee who displayed Confederate flag vanity plates in vehicle while parked in
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`employer’s parking lot). Under the circumstances, I cannot conclude that it was unreasonable for
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`the DOC to seek legal advice on the issue from its internal counsel and from the Attorney
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`General’s Office.
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`Darin’s decision to send one of her investigators to interview Moore regarding the basis
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`for her complaint in order to ensure that Affirmative Action had “jurisdiction” over the
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`complaint also delayed its ultimate resolution by approximately one month. Given Darin’s
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`concern that her investigation would face scrutiny if Walls, who had already refused to remove
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`the plate voluntarily, complained to the union or filed a lawsuit about an order to remove it, I
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`cannot conclude that her decision to develop a clear factual record establishing her office’s
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`jurisdiction over the matter was unreasonable.
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`It then took Darin about a month and a half to complete her investigation report
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`recommending that Walls be required to remove or cover the flag. In light of both Darin’s desire
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`for her report to be “airtight” (Darin Test. at 72)—due to her concern that Walls might lodge a
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`complaint and her belief that the report would likely serve as a “precedent” (id. at 78) for
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`handling future complaints—and the fact that her office had about 30 other investigations
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`running at time (id. at 72), completing the report within this time frame did not amount to
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`unreasonable delay.
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`In sum, while the DOC’s investigation of Moore’s complaint did not move quickly, I
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`cannot conclude that it moved so unreasonably slowly that it failed to constitute appropriate
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`remedial action. Oles reported Moore’s complaint to his superior the same day that Moore
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`complained to him. (Ex. 502; Oles Test.) The report then worked its way steadily through
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`DOC’s established channels for addressing such complaints until it reached Affirmative Action.
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`Much of the delay in resolving the complaint after that point was attributable to Darin’s efforts to
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`address potential First Amendment issues and to ensure that her investigation and report were
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`supported by a clear factual record, and Moore presented no evidence suggesting that Darin’s
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`belief that she required outside legal advice and that her report had to be “airtight” was not
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`genuine or was unreasonable. DOC’s quick response to the next complaint regarding a display
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`of a Confederate flag in a car supports Darin’s testimony that the investigation of Moore’s
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`complaint took more time than was typical because it presented an issue of first impression, the
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`resolution of which would establish a precedent for the DOC to follow in future cases. In
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`addition, the fact that the DOC asked Walls to remove the plate voluntarily pending its
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`investigation, and that it acted quickly in requiring Walls to remove the plate once the
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`Commissioner approved Darin’s report and recommendation, suggests that it took Moore’s
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`complaint seriously and resolved it as soon as it was assured that there was a solid legal and
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`factual basis supporting its action. Accordingly, I conclude that Moore failed to meet her
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`burden of proving that the DOC was negligent in its handling of her complaint. Because I
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`conclude that Moore failed to prove negligence, I do not address the issue of whether the display
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`of the flag plate created a hostile work environment based on race.
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`13
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`Case 3:19-cv-01063-MPS Document 87 Filed 06/08/22 Page 14 of 14
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`III. CONCLUSION
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`On the basis of all the evidence and the arguments of the parties, the Court finds for the
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`defendant on the plaintiff’s hostile work environment claim and so directs the entry of judgment
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`for the defendant. The Clerk is directed to enter judgment and close this case.
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`IT IS SO ORDERED.
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`Dated:
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`Hartford, Connecticut
`June 8, 2022
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`/s/
`Michael P. Shea, U.S.D.J.
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