Murray v. Town of Stratford (996 F. Supp. 2d 90, 2014)

United States District Court for the District of Connecticut 2014-02-11

Citations

Full opinion text

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND ON PLAINTIFF’S MOTIONS TO STRIKE

JOAN GLAZER MARGOLIS, United States Magistrate Judge.

On April 20, 2011, plaintiff Ellen Murray, a now-retired Assistant Fire Chief in the Stratford Fire Department, commenced this gender discrimination action against defendants Town of Stratford [“defendant Town” or Town of Stratford], and James Miron, individually and in his official capacity as the Mayor of the Town of Stratford. (Dkt. # 1). On September 19, 2011, plaintiff filed an Amended Complaint (Dkt. # 29), in which she alleges that the defendant Town discriminated against her because of her gender, in their refusal to promote her, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, and Conn. Gen.Stat. § 46a-60(a)(l)(Counts One & Three); the defendant Town has discriminated against her based on gender plus race in violation of Title VII (Count Two); the defendant Town has taken affirmative disciplinary actions in violation of Conn. Gen.Stat. § 31-51q in punishing plaintiff for the exercise of her right to free speech and free association under the First Amendment to the United States Constitution and/or by exercising her rights under Sections 3, 4, or 14 of Article first of the Connecticut Constitution (Count Four); defendant Mi-ron has retaliated against plaintiff under 42 U.S.C. § 1983 for her exercise of right of association pursuant to the First Amendment (Counts Five & Six); and defendant Miron deprived her equal protection, in violation of 42 U.S.C. § 1983, through his illegal conduct, in his official and individual capacities (Counts Seven & Eight).

On August 29, 2011, the defendant Town filed its First Motion to Dismiss Count Four of Plaintiffs Complaint. (Dkt. # 30; see Dkts. ##21, 24-27, 31-32). On February 8, 2012, the parties consented to trial before this Magistrate Judge and the case was transferred from U.S. District Judge Janet Bond Arterton to this Magistrate Judge. (Dkt. # 37). On May 3, 2012, this Magistrate Judge filed a Ruling on Defendant Town of Stratford’s Motion to Dismiss the Fourth Cause of Action, granting defendant Town’s Motion on grounds that plaintiff failed to allege that she was subjected to “discipline” within the meaning of Conn. Gen.Stat. § 31-51q. (Dkt. #51). Thereafter, on July 10, 2012, defendants filed their Answers and Affirmative Defense. (Dkts. ## 56-57).

On June 21, 2013, the defendant Town filed its Motion for Summary Judgment, with brief and exhibits in support (Dkt. # 75), and defendant Town’s Local Rule 56(a)l Statement [“Defendants’ 56(a)l Stmt”]. (Dkt. #76). The same day, defendant Miron filed his Motion for Summary Judgment, with brief and exhibits in support (Dkt. # 77), and defendant Mi-ron’s Local Rule 56(a)l Statement. (Dkt. # 78). Also, on that same day, plaintiff filed her Motion for Partial Summary Judgment, with brief, Local Rule 56(a)l Statement [“Plaintiffs 56(a)l Stmt”], and exhibits in support. (Dkt. # 79).

On August 22, 2013, defendants filed their joint brief in opposition to plaintiffs Motion (Dkt. # 83), and Local Rule 56(a)2 Statement [“Defendants’ 56(a)2 Stmt”].-(Dkt. #84). On the same day, plaintiff filed her brief in opposition to defendant Miron’s .Motion for Summary Judgment with exhibits and Plaintiff’s Local Rule 56(a)2 Statement in Response to Defendant Miron’s Local Rule 56(a)l Statement [“Plaintiffs 56(a)2 Stmt”](Dkt. #88), as well as her brief in opposition to defendant Town’s Motion for Summary Judgment and plaintiff’s Local Rule 56(a)2 Statement in Response to Defendant Town’s Local Rule 56(a)l Statement. (Dkt. # 89).

On that same day, plaintiff also filed her Motion to Strike four exhibits attached to defendant Miron’s Motion, with brief in support (Dkt. #86), and her Motion to Strike four exhibits attached to the defendant Town’s motion, with brief in support (Dkt. # 87) on grounds that these exhibits are not in admissible form. On September 19, 2013, plaintiff filed her Motion to Strike defendants’ brief in opposition to plaintiffs Motion for Partial Summary Judgment on grounds that four exhibits were filed in inadmissible form. (Dkt. #97).

Also on September 19, 2013, plaintiff filed her reply brief in further support of her Motion for Partial Summary Judgment. (Dkt. #98). On the same day, defendants filed their response to plaintiff’s Motions to Strike and affidavit in support (Dkts. # 99-100), and defendants filed a joint reply brief in further support of their Motions for Summary Judgment. (Dkt. # 101).

For the reasons stated below, defendant Town of Stratford’s Motion for Summary Judgment (Dkt. # 75) is granted, in part and denied in part; defendant Miron’s Motion for Summary Judgment (Dkt. # 77) is granted in part and denied in part; plaintiffs Motion for Partial Summary Judgment (Dkt. # 79) is denied; and plaintiffs Motions to Strike (Dkts. ## 86, 87, 97) are denied.

I. FACTUAL BACKGROUND

Plaintiff was employed by the Town of Stratford in the Stratford Fire Department [“SFD”] for twenty-seven years and nine months from 1982 to 2010, and she was one of four Assistant Fire Chiefs from January 2007 to 2010. (Plaintiffs Local Rule 56(a)l Statement ¶¶ 1, 4; Defendants’ Local Rule 56(a)2 Statement ¶¶ 1, 4; Defendants’ 56(a)l Stmt ¶¶ 1, 3; Plaintiffs 56(a)2 Stmt ¶¶ 1, 4; Undisputed Facts ¶¶ 5-6, 11-12, 15, 25, 34). The position of assistant chief is below only those of fire chief and deputy fire chief. (Defendant Town’s 56(a)l Stmt ¶ 2; Defendant Mi-ron’s 56(a)l Stmt ¶ 2; Plaintiffs 56(a)2 Stmt ¶ 2). Plaintiff is a white female. (Undisputed Facts ¶ 10). Defendant Mi-ron was the Mayor of Stratford from December 2005 to December 2009. (Plaintiffs 56(a)l Stmt ¶2; Defendants’ 56(a)2 Stmt ¶ 2; Undisputed Facts ¶ 7).

A. UNION INVOLVEMENT

Plaintiff was a member of the firefighter’s union, Local 998, from 1982 until she was promoted to Assistant Chief in January 2007. (Plaintiffs 56(a)l Stmt ¶ 5; Defendants’ 56(a)2 Stmt ¶ 5; Miron’s Resp. 10/5/12 ¶ 6; Town’s Resp. 10/5/12 ¶6). Plaintiffs husband, Thomas Murray, was an Assistant Chief in the SFD and was an active participant in the union, serving on numerous boards and committees. (Plaintiffs 56(a)l Stmt ¶ 6; Defendants’ 56(a)2 Stmt ¶ 6; Undisputed Facts, ¶ 10; Miron’s Resp. 10/5/12 ¶¶ 10-16, 50-52; Town’s Resp. 10/5/12 ¶¶ 10-16, 50-52). In his work with the firefighter’s union, Assistant Chief Thomas Murray was particularly involved in matters related to municipal pensions, and he was regarded as the “go-to” person for firefighters with department issues, union issues, and legal issues. (Plaintiffs 56(a)l Stmt ¶ 7; Defendants’ 56(a)2 Stmt ¶ 7; Cavanaugh Depo. at 107-OS). His active involvement in the firefighter’s union and advocacy for members of the SFD resulted in him not being well-liked within Stratford Town Hall. (Plaintiffs 56(a)l Stmt ¶ 8; Defendants’ 56(a)2 Stmt ¶ 8; Cavanaugh Depo. at 110). Plaintiff was as enthusiastic, interested, and dedicated to the firefighter’s union as her husband. (Plaintiffs 56(a)l Stmt ¶ 9; Defendants’ 56(a)2 Stmt ¶ 9; Cavanaugh Depo. at 108). The Assistant Chiefs of the SFD rejoined the firefighter’s union in September 2008 after extensive, contentious negotiations with the Town. (Plaintiffs 56(a)l Stmt ¶ 10; Defendants’ 56(a)2 Stmt ¶ 10; Undisputed Facts ¶¶ 16-17; Cavanaugh Depo. at 106; Miron Depo. at 109). During these negotiations, defendant Miron had discussions with several Assistant Chiefs, including Assistant Chief Thomas Murray, who were supportive of the Assistant Chiefs rejoining the union. (Plaintiffs 56(a)l Stmt ¶ 13; Defendants’ 56(a)2 Stmt ¶ 13; Miron Depo. at 196). Plaintiff rejoined the firefighter’s union in 2008 and continued to be a union member until she left the SFD. (Plaintiffs 56(a)l Stmt ¶ 14; Defendants’ 56(a)2 Stmt ¶ 14; Miron’s Resp. 10/5/12 ¶ 7; Town’s Resp. 10/5/12 ¶ 7).

James Cavanaugh [“Chief Cavanaugh”] was Fire Chief from June 2009 to January 2013. (Plaintiffs 56(a)l Stmt ¶ 3; P; Defendants’ 56(a)2 Stmt ¶ 3; Undisputed Facts ¶ 19). When Chief Cavanaugh interviewed for the position of Interim Fire Chief, defendant Miron told Cavanaugh that cost containment was needed in the SFD. (Plaintiffs 56(a)l Stmt ¶ 16; Defendants’ 56(a)2 Stmt ¶ 16; Cavanaugh Depo. at 41). The first opportunity to cut costs associated with the SFD occurred when the firefighter’s collective bargaining agreement came up for negotiation, at which time the Town focused exclusively on the salary and benefits of the firefighters, and was not willing to consider reducing costs by other means. (Plaintiffs 56(a)l Stmt ¶ 17; Defendants’ 56(a)2 Stmt ¶ 17; Cavanaugh Depo. at 42-43). According to Chief Cavanaugh, the SFD had a “tremendous” union contract and the Town was going to “attack” the firefighter’s union in the negotiation process. (Plaintiffs 56(a)l Stmt ¶ 18; Defendants’ 56(a)2 Stmt ¶ 18; Cavanaugh Depo. at 38).

When defendant Miron decided to run for Mayor, he sought to address several issues affecting the Town, including the reduction of Town costs, which defendant Miron identified as a major issue. (Plaintiffs 56(a)l Stmt ¶ 19; Defendants’ 56(a)2 Stmt ¶ 19; Miron Depo. at 51, 55). Defendant Miron admitted that he took all factors into consideration when hiring someone, that he did not look at matters in a vacuum when making employment decisions, and that he looked at “how the real world affects decisions.” (Plaintiffs 56(a)l Stmt ¶ 20; Defendants’ 56(a)2 Stmt ¶ 20; Miron Depo. at 87). During his administration, defendant Miron was involved in negotiating several collective bargaining agreements and would try to keep raises as small as possible. (Plaintiffs 56(a)l Stmt ¶ 21; Defendants’ 56(a)2 Stmt ¶ 21; Miron Depo. at 97,101).

Defendant Miron admitted that overtime costs and pension costs were big concerns for him; specifically, he was concerned with the fact that the SFD would routinely exceed its overtime budget. (Plaintiffs 56(a)l Stmt ¶ 27; Defendants’ 56(a)2 Stmt ¶ 27; Miron Depo. at 172, 175). The firefighter’s union was the only bargaining unit in the Town that had overtime included in the compensation used to calculate a firefighter’s pension benefit, as set forth in the pension agreement negotiated between the firefighter’s union and the Town. (Plaintiffs 56(a)l Stmt ¶¶ 28-29; Defendants’ 56(a)2 Stmt ¶¶ 28-29; Miron Depo. at 175, 177). Defendant Miron saw the inclusion of overtime in the pension calculation as a problem because it increased the Town’s liability for prospective pension benefits. (Plaintiffs 56(a)l Stmt ¶ 30; Defendants’ 56(a)2 Stmt ¶ 30; Miron Depo. at 175). Thus, in accord with the Town’s position to try to control costs by various means, defendant Miron sought to limit the scope of the term “compensation” in the pension agreement to exclude overtime pay in the calculation of firefighters’ pension benefits, but the firefighter’s union would not agree to that change. (Plaintiffs 56(a)l Stmt ¶¶ 31, 36; Defendants’ 56(a)2 Stmt ¶¶ 31, 36; Miron Depo. at 177; Cavanaugh Depo. at 37). Defendant Mi-ron admitted that the Mayor and a member of a collective bargaining unit have different roles, and while both aim to ensure that the public gets a “good value” for their public officials, members of a collective bargaining unit have a different take on how that looks. (Plaintiffs 56(a)l Stmt ¶ 37; Defendants’ 56(a)2 Stmt ¶ 37; Miron Depo. at 187). Chief Cavanaugh admitted that the Town was “always at odds with the union[,]” and that “Civil Service, Human Resources and unions don’t mix.” (Plaintiffs 56(a)l Stmt ¶¶ 43-44; Defendants’ 56(a)2 Stmt ¶¶ 43-44; Cavanaugh Depo. at 106).

B. HIRING OF THE DEPUTY FIRE CHIEF

In February 2009, two management positions within the SFD became available-fire chief and deputy fire chief. (Defendants’ 56(a)l Stmt ¶ 4; Plaintiffs 56(a)2 Stmt ¶ 4; Undisputed Facts ¶ 20). In order to perform a nationwide search for candidates to fill the positions of fire chief and deputy fire chief, along with the deputy police chief, the Town retained Randi Frank Consultants and Slavin Management Consultants [collectively “Randi Frank”]. (Defendants’ 56(a)l Stmt ¶ 5; Plaintiffs 56(a)2 Stmt ¶ 5; Undisputed Facts ¶¶ 21, 31). Randi Frank created job descriptions and qualifications for the positions, advertised the positions, developed an interview syllabus and job-specific questionnaires, and designed a grading rubric. (Defendants’ 56(a)l Stmt ¶ 6; Plaintiffs 56(a)2 Stmt ¶ 5; Undisputed Facts ¶ 32).

The job announcement for the position of deputy fire chief advised:

The Town of Stratford, CT is seeking a Deputy Fire Chief for its 97-member department with a 10.2 million dollar operating budget. The position is the second-in-command and is responsible for fire suppression and the day-to-day direction of the department. Candidates should have a [b]achelor’s degree in fire service management or a related area, and at least ten (10) years of progressively responsible fire service experience, including at least two (2) years at the shift supervisor level, or higher, in a municipal fire department comparable in size to Stratford or larger. Candidates should also possess, or be able to obtain, certifications as Fire Officer I and Fire Instructor I issued by the State of Connecticut. At least three years previous experience as a Deputy Chief in a comparably, or larger, sized fire department may be substituted for a [b]achelor’s degree. Fire Officer II or III certification or a [mjaster’s degree in fire service management or a related field or graduation from the Executive Officer Program at the National Fire Academy is preferred. A valid driver’s license is required.

(Defendants’ 56(a)l Stmt ¶ 7; Plaintiffs 56(a)2 Stmt ¶ 7; Undisputed Facts ¶ 33).

At the time she applied for this position, plaintiff possessed a bachelor’s degree in physical education, and she represented that she was working towards a master’s degree in public safety. (Defendants’ 56(a)l Stmt ¶¶ 8, 10; Plaintiffs 56(a)2 Stmt ¶¶ 8, 10; Plaintiffs Depo. at 14-15; Plaintiffs Resume). The master’s degree in public safety was from an on-line university, and to date, plaintiff has only taken one class towards that degree. (Defendants’ 56(a)l Stmt ¶ 11; Plaintiffs 56(a)2 Stmt ¶ 11; Plaintiffs Depo. at 15-16). Plaintiff applied for the position of deputy chief, advanced to a stage in the application process at which she could fill out a job-related questionnaire, and then advanced to an interview stage with three other finalists for the position. (Plaintiffs 56(a)l Stmt ¶ 23, n. 2; Defendants’ 56(a)2 Stmt ¶ 23; Defendants’ 56(a)l Stmt ¶ 12; Plaintiffs 56(a)2 Stmt ¶ 12; Undisputed Facts ¶¶ 35, 37). The other three finalists were Thomas Connor, a white male from Bridgeport Fire Department, Robert Kep-char, a white male from the Westport Fire Department, and Curtis Maffett, a black male who was a retired assistant to the chief from the Columbia, South Carolina Fire Department. (Plaintiffs 56(a)l Stmt ¶ 23, n. 2; Defendants’ 56(a)2 Stmt ¶ 28; Defendants’ 56(a)l Stmt ¶ 13; Plaintiffs 56(a)2 Stmt ¶ 13; Undisputed Facts, ¶¶ 38-40; Cavanaugh Afft ¶ 7; Miron Afft ¶ 7). On his resume, Kepchar represented that he had thirty years of experience as a member of the Westport Fire Department, including five years as an assistant chief, and had overseen the hiring process of sixteen firefighters. (Defendants’ 56(a)l Stmt ¶ 15; Kepchar Resume). Maffett represented that he had thirty-four years of experience as a member of the Columbia, South Carolina Fire Department, including nine years as an assistant chief of operations/human resources and five years experience overseeing recruiting, hiring, and promotions. (Defendants’ 56(a)l Stmt ¶ 16; Maffett Resume). Plaintiff represented that she had twenty-six years of experience as a member of the SFD, including two years as an assistant chief. (Defendants’ 56(a)l Stmt ¶ 17; Plaintiffs 56(a)2 Stmt ¶ 17; Plaintiffs Resume). After the interview process, O’Connor’s application did not receive any further consideration. (Defendants’ 56(a)l Stmt ¶ 14; P’s 56(a)2 Stmt ¶ 14; Miron Afft ¶¶ 7-8; Cavanaugh Depo. at 73).

Cost containment was, again, a major issue facing the Town when defendant Mi-ron considered plaintiffs candidacy for the deputy chief position. (Plaintiffs 56(a)l Stmt ¶ 22; Defendants’ 56(a)2 Stmt ¶ 22; Miron Depo. at 156). Defendant Miron admitted that the exact purpose of interviewing the three finalists for the position of deputy chief was to find the right fit for his administration, to determine how he would work together with each candidate, and to determine whether he and the candidate had the same goals and objectives moving forward. (Plaintiffs 56(a)l Stmt ¶¶ 23-24; Defendants’ 56(a)2 Stmt ¶¶ 23-24; Miron Depo. at 166-67). Defendant Miron admitted that he would disqualify a candidate for the position of Deputy Chief if that candidate did not support his viewpoint that overtime expenses in the SFD needed to be reduced, and he admitted that grievances filed by the firefighter’s union against the Town, related to allegations that the Town bargained in bad faith regarding the Assistant Chiefs rejoining the firefighter’s union, were expensive for the Town. (Plaintiffs 56(a)l Stmt ¶¶ 25-26; Defendants’ 56(a)2 Stmt ¶¶ 25-26; Miron Depo. at 167-68,170-71).

The panel that interviewed the final three candidates for the position of deputy chief [“Panel”] included Edmund Winter-bottom, the Director of Human Resources, Susan McCauley, the Director of Finance, a representative from Randi Frank, and Chief Cavanaugh. (Plaintiffs 56(a)l Stmt ¶ 38; Defendants’ 56(a)2 Stmt ¶ 38; Cavanaugh Depo. at 67, Miron Depo. at 148; see also Plaintiffs 56(a) 1 Stmt ¶ 11 (explaining Winterbottom’s position; Defendants 56(a)l Stmt ¶ 14 (same)). The Panel asked Kepchar if he had any experience negotiating with unions. (Plaintiffs 56(a)l Stmt ¶ 39; Defendants’ 56(a)2 Stmt ¶ 39; Cavanaugh Dep. at 72). The Panel was particularly impressed with Kepchar because he created a program to reduce overtime costs in the Westport Fire Department. (Plaintiffs 56(a)l Stmt ¶ 40; Defendants’ 56(a)2 Stmt ¶ 40; Defendants’ 56(a)l Stmt ¶ 20; Plaintiffs 56(a)2 Stmt ¶ 20; Cavanaugh Depo. at 73-74). Kep-char also had experience “organizing other sections, other areas of the department ... [and] came up with two or three programs that he had just completed that impressed” the Panel, including Chief Ca-vanaugh, because Kepchar’s experience covered “a lot of the things that we needed to do.” (Defendants’ 56(a)l Stmt ¶ 21; Plaintiffs 56(a)2 Stmt ¶ 21; Cavanaugh Depo. at 73-74; Cavanaugh Afft ¶ 10).

In addition to having worked in a much larger fibre department than the SFD (Defendants’ 56(a)l Stmt ¶ 22; Plaintiffs 56(a)2 Stmt ¶ 22; Cavanaugh Depo. at 87; Cavanaugh Afft ¶¶ 12-13), Maffett had experience operating in a “right to work” state, which does not require employees to join a union even if one exists, and this experience “perked quite an interest in the [T]own” as the Panel thought that Maf-fett’s background “could bring something new to the table.” (Plaintiffs 56(a)l Stmt ¶ 41; Defendants’ 56(a)2 Stmt ¶ 41; Cava-naugh Depo. at 88). Chief Cavanaugh admitted that he viewed Maffett’s experience in a right to work state as a positive because it could have provided insight into how those municipalities operate and “get around the union[.]” (Plaintiffs 56(a)l Stmt ¶ 42; Defendants’ 56(a)2 Stmt ¶ 42; Cavanaugh Depo. at 88).

During the Panel’s discussion of plaintiffs candidacy, Winterbottom and McCau-ley initially raised a concern that plaintiffs union activity and Assistant Chief Thomas Murray’s union activity might make plaintiff a less effective deputy chief. (Plaintiffs 56(a)l Stmt ¶ 45; Defendants’ 56(a)2 Stmt ¶ 45; Cavanaugh Depo. at 109). Defendant Miron, as Mayor, conducted the final interview of the remaining three candidates. (Defendants’ 56(a)l Stmt ¶ 23; Plaintiffs 56(a)2 Stmt ¶23; Miron Depo. at 167-68; Miron Afft ¶¶ 8-9).

Despite her qualifications, plaintiff was not promoted to the position of deputy chief. (Plaintiffs 56(a)l Stmt ¶¶ 46-47; Defendants’ 56(a)2 Stmt ¶¶ 46-47). Following the final interviews by defendant Miron, the position of deputy was offered to Kepchar, who then attempted to negotiate the salary offered for the position, which led the defendant Town to withdraw its offer to Kepchar. (Plaintiffs 56(a)l Stmt ¶ 57, n. 7; Defendants’ 56(a)2 Stmt ¶ 57; Defendant’s 56(a)l Stmt ¶ 24; Plaintiffs 56(a)2 Stmt ¶ 24; Miron Afft ¶ 10; Cavanaugh Afft ¶ 19; Miron Depo. at 182-83; Cavanaugh Depo. at 92-93). Following the withdrawal of the offer to Kepchar, the defendant Town offered the position to Maffett, who was hired as Deputy Chief in August 2009. (Defendants’ 56(a)l Stmt ¶ 25; Plaintiffs 56(a)2 Stmt ¶ 25; Plaintiffs 56(a)l Stmt ¶ 57; Defendants’ 56(a)2 Stmt ¶ 57; Undisputed Facts ¶ 42; Miron Afft ¶ 11; Cavanaugh Afft ¶ 20).

Plaintiff thereafter filed a charge of discrimination against defendants with the State of Connecticut Commission on Human Rights and Opportunities [“CCHRO”] and with the Equal Employment Opportunity Commission, received a right-to-sue letter from the United States Department of Justice and a release of jurisdiction letter from the CCHRO, and commenced this instant lawsuit. (Defendants’ 56(a)l Stmt ¶ 26; Plaintiffs 56(a)2 Stmt ¶ 26; Undisputed Facts, ¶¶ 1-4).

Plaintiff previously had engaged in litigation against the Town, alleging that she was denied a promotion to assistant chief on the basis of her gender and that the Town permitted the existence of a hostile work environment. (Defendants’ 56(a)l Stmt ¶ 27; Plaintiffs 56(a)2 Stmt ¶ 27; Howley v. Town of Stratford, 217 F.3d 141 (2d Cir.2000)). In that case, the District Court granted summary judgment in favor of the Town and the Second Circuit reversed, remanding the case for trial on the hostile work environment claim and for farther proceedings consistent with its statement that it did “not foreclose the possibility that summary judgment dismissing the failure-to-promote claim may be appropriate if [the plaintiff] fails to come forward with legally sufficient evidence to support” an inference that the selected candidate “was chosen in preference to her because of her gender.” (Defendants’ 56(a)l Stmt ¶ 28; Plaintiffs 56(a)2 Stmt ¶28; Howley, 217 F.3d at 153). A settlement was reached in that case prior to trial. (Defendants’ 56(a)l Stmt ¶ 29; Plaintiffs 56(a)2 Stmt ¶ 29; Plaintiffs Depo. at 9).

C. OTHER HIRES WITHIN THE SFD

Brian Lampart was promoted from Lieutenant to Assistant Chief Fire Marshal after Assistant Chief Velky retired. (Plaintiffs 56(a)l Stmt ¶ 48; Defendants’ 56(a)2 Stmt ¶ 48; Plaintiffs Depo. at 160-61). The Town did not post a job announcement to accept applications for the position of Assistant Chief Fire Marshal. (Plaintiffs 56(a)l Stmt ¶ 49; Defendants’ 56(a)2 Stmt ¶ 49; Plaintiffs Depo. at 161). Assistant Chief Lampart did not have to take an examination before being promoted, as was customary with the positions of Fire Marshal and Assistant Chief, and he had the option to petition to become part of the firefighter’s union, but chose not to. (Plaintiffs 56(a)l Stmt ¶¶ 50-51; Defendants’ 56(a)2 Stmt ¶¶ 50-51; Plaintiffs Depo. at 161). Defendant Miron later promoted Assistant Chief Lampart to Deputy Chief and approved a pay raise. (Plaintiffs 56(a)l Stmt ¶ 52; Defendants’ 56(a)2 Stmt ¶ 52; Plaintiffs Depo. at 161).

In 1990, Roger Macy was promoted from Assistant Chief to Deputy Chief and later went on to become Fire Chief. (Plaintiffs 56(a)l Stmt ¶ 53; Defendants’ 56(a)2 Stmt ¶ 53). In 1994, Ron Nattrass, from West Haven, was hired as Deputy Chief at a time where there were no internal candidates interested in the Deputy Chief position. (Plaintiffs 56(a)l Stmt ¶ 54; Defendants’ 56(a)2 Stmt ¶ 54). In March 2000, Assistant Chief Jay Cybart was promoted to Deputy Chief and later went on to become Fire Chief, at which time Michael Hostetter was promoted from Assistant Chief to Deputy Chief. (Plaintiffs 56(a)l Stmt ¶¶ 55-56; Defendants’ 56(a)2 Stmt ¶¶ 55-56).

II. DISCUSSION

A PENDING MOTIONS

1. DEFENDANT TOWN OF STRAT-FORD’S AND DEFENDANT MI-RON’S MOTION FOR SUMMARY JUDGMENT

Defendant Town of Stratford moves for summary judgment on all counts of plaintiffs Amended Complaint. (Dkt. # 75). Specifically, defendant Town asserts that summary judgment is appropriate with respect to: plaintiffs Title VII claims asserted in Counts One and Two because defendant’s hiring decisions with respect to the position for which plaintiff applied were made for legitimate, non-discriminatory reasons; plaintiffs claim in Count Three for violation of Conn. Gen.Stat. § 46a-60(a)(1), as such claim is analyzed under the same framework as the Title VII claims and defendant’s hiring decisions were made for legitimate, non-diserimina-tory reasons; plaintiffs claim in Count Five alleging First Amendment retaliation for union activity against defendant Miron in his official capacity as directed against defendant Town, because even if union membership touched upon a matter of public concern, plaintiff can point to no evidence that supports a causal connection between plaintiffs conduct and defendant’s actions, and to the extent that plaintiff alleges retaliation for filing her prior lawsuit, the prior lawsuit did not touch upon a matter of public concern and plaintiff can point to no evidence that supports a causal connection between her conduct and defendant’s actions; and plaintiffs Fourteenth Amendment equal protection clause claim in Count Seven because defendant’s hiring decisions with respect to the position for which plaintiff applied were made for legitimate, non-discriminatory reasons. (Dkt. # 75, Brief at 8-31).

Similarly, defendant Miron moves for summary judgment with respect to plaintiffs § 1983 claim against him individually, as alleged in Count Eight, because the decision not to hire plaintiff was made for legitimate, non-discriminatory reasons, and plaintiffs claim against Miron is barred by the doctrine of qualified immunity (Dkt. # 77, Brief at 8-24); and defendant Miron asserts that he is entitled to summary judgment on the First Amendment retaliation claims against him in Count Six because plaintiff cannot establish a causal connection between her conduct and defendant’s actions. (Id. at 24-29).

In response, as to her First Amendment retaliation and equal protection claims alleged in Counts Six and Eight against defendant Miron individually, plaintiff contends that defendant Miron is not entitled to qualified immunity. (Dkt. # 88, at 17-21). Plaintiff also posits that defendant Town concedes that plaintiff established her prima facie case for both gender and gender plus race discrimination under Title VII; defendants have not met their burden as plaintiff possessed more of the qualifications in the job posting, and plaintiffs background and experience made her a better fit for the job; and defendants’ reasons for hiring Maffett are “merely a pretext for discrimination.” (Id. at 21-39; see also Dkt. # 89).

In their reply brief, defendants assert that there is no evidence that plaintiff was not hired because of a discriminatory motive, but rather, that she was “simply the least qualified of the three finalists.” (Dkt. # 101, at 3-5). Additionally, defendants reiterate that plaintiff fails to establish a causal connection between her purported protected speech or her prior lawsuit to her alleged retaliation, and plaintiffs reference to other firefighters has little relevance to this case as they rely on beliefs or opinions, and do not demonstrate facts relative to this particular case. (Id. at 6-8). Defendants also contend that defendant Miron is entitled to qualified immunity under these circumstances, there is no binding, mandatory authority on the issue of whether mere participation in a union satisfied the public concern requirement, and plaintiffs claim regarding the telephone interview and questions about her husband lack substance. (Id. at 8-10).

A PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff cross moves for summary judgment on Counts Five and Six of her Amended Complaint on grounds that plaintiff satisfies a prima facie case of First Amendment retaliation; defendants cannot justify their failure to promote plaintiff on other grounds; and defendants failure to promote was motivated by retaliatory animus and not fear of disruption. (Dkt. #79, Brief at 11-31).

In response, defendants contend that plaintiff cannot make a claim against defendant Miron in his individual capacity; that plaintiffs claim that the decision not to promote plaintiff because of her membership in the union is barred by qualified immunity because at the time the decision was made, mere membership in a union was not a protected activity clearly defined by law; and, as to both Counts Five and Six, plaintiff cannot establish a casual connection between her union membership and defendants’ decision not to promote her, and defendants would have taken the same action regardless of plaintiffs union membership. (Dkt. # 83, at 2, 7-16).

In her reply brief, plaintiff contends that defendants’ objection fails to set forth admissible evidence to create a material factual dispute as to whether defendants would have taken the same adverse employment action in the absence of plaintiffs union activity. (Dkt. # 98, at 2). She also reiterates that defendant Miron is not entitled to qualified immunity, and defendants’ objection as to causation is baseless. {Id. at 3-8).

S. PLAINTIFF’S MOTION TO STRIKE DEFENDANT MIRON’S AND DEFENDANT TOWN OF STRAT-FORD’S EXHIBITS

Plaintiff moves to strike four exhibits attached to each defendant’s Motion for Summary Judgment: the Maffett Reference Summary; the Kepchar Resume; the Maffett Resume; and Plaintiffs Resume (Exhs. B, D, E, & F, respectively), on grounds that these exhibits were appended without any proof of authenticity, and therefore should be stricken from the record. (Dkts. # # 86-87, 97). In response, defendants submit an affidavit of the Ronald Ing, the Human Resources Director for the Town of Stratford, who attests to the admissibility and authenticity of these documents. (Dkts. ## 99-100).

Rule 901(a) of the Federal Rules of Evidence provides that the authentication requirement “is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Fed. R. Evid. 901(a). “[T]o authenticate a document, a witness with personal knowledge to that effect need only testify that the document is what it purports to be.” Lachira v. Sutton, No. 3:05 CV 1585(PCD), 2007 WL 1346913, at *2 (D.Conn. May 7, 2007) (citations & internal quotations omitted). Notably, “the witness need not have personal knowledge of the underlying events described in the document, the substance[,] or the accuracy of the document[.]” Id. (citation & internal quotations omitted). In this case, Ing sets forth in his affidavit that as part of his duties and in the normal course of business as Human Resources Director for defendant Town, he maintains and has access to the Town’s employment records, and thus he is familiar with the contents of the personnel files of Kepchar, Maffett and plaintiff, and is familiar with the circumstances and facts involved in this pending litigation (Ing Afft ¶¶ 3-4); these documents are accurate and identical copies of the records contained in the personnel files, and are “routinely made in the regular course” of the Town’s business {id. ¶ 6); and the documents were made at or around the time of the circumstances that are described within. (Id.).

In addition, the Federal Rules of Evidence allow for the “business records exception” to the hearsay rule for records of regularly conducted activity, such as the records at issue. See Fed.R.Evid. 803(6). Ing has laid the foundation for that exception as the records were made at or near the time by someone with knowledge, the records were kept in the regular course of business, making the records was a regular practice of that activity, these conditions are shown by the testimony of the custodian, Ing, who serves as the Human Resources Director for defendant Town, and neither Ing, nor the method or circumstances of preparation, indicate a lack of trustworthiness. Fed.R.Evid. 803(6); see Tavares v. Sam’s Club, 178 F.Supp.2d 96, 101, n. 2 (D.Conn.2001) (personnel manager averred that he maintains and is familiar with defendants’ personnel records, which are admissible under the business records exception). Accordingly, plaintiffs Motions to Strike (Dkts. ## 86-87, 97) are denied.

B. STANDARD OF REVIEW

The standard for summary judgment is well established. The moving party is entitled to summary judgment if it demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). This showing may be made by depositions, affidavits, interrogatory answers, admissions, or other exhibits in the record. Fed.R.Civ.P. 56(c). “[0]n summary judgment the inferences to be drawn from the underlying facts contained in the [the moving party’s] materials must be viewed in the light most favorable to the party opposing the motion.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). “The substantive law governing the case will identify those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome of the suit under the govern-' ing law will properly preclude entry of summary judgment.’ ” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir.2006), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

1. COUNT ONE — GENDER DISCRIMINATION

In Count One, plaintiff asserts a claim against defendant Town under Title VII for discrimination based upon gender. (Amended Compl. ¶¶ 55-60). Specifically, plaintiff alleges in her Amended Complaint that the Town knowingly and willfully discriminated against her on the basis of her gender in denying her a promotion to Deputy Fire Chief, for which position she was qualified. (Id.). Defendant Town moves for summary judgment on this claim on grounds that its hiring decision was made for legitimate, non-discriminatory reasons, and plaintiff can point to no evidence that reasonably supports a finding that the Town’s reasons were pretextual. (Dkt. # 75, Brief at 8-19).

Title VII of the Civil Rights Act makes it unlawful “for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (2013).

In failure-to-promote cases brought under Title VII, courts follow the Title VII burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-07, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)[“Hicks’’]; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)[“Bur- dine”]. Plaintiff can establish a prima facie case of intentional discrimination by showing: (1) that she is a member of a protected class; (2) she applied and was qualified for the position; (3) she was subject to an adverse employment decision; and (4) the decision occurred under circumstances giving rise to an inference of discrimination. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010), citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

A plaintiffs burden of establishing a prima facie case is not an “onerous” one, see Burdine, 450 U.S. at 253-56, 101 S.Ct. 1089, but rather has been described as “de minimis.” Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir.1998) (multiple citations omitted). If plaintiff satisfies her prima facie case, the burden then shifts to defendant to rebut the presumption of discrimination by producing evidence of a legitimate, non-discriminatory reason for the adverse employment action taken. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If defendant carries this burden of production, the presumption raised by the prima facie case is rebutted and the burden shifts back to plaintiff to prove that she was discriminated against. Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089. Plaintiff must prove that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817; accord Vivenzio, 611 F.3d at 106. At all times, the ultimate burden of persuasion remains with the plaintiff to show that the defendant intentionally discriminated against the plaintiff. Hicks, 509 U.S. at 507, 113 S.Ct. 2742, citing Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

Defendant Town’s briefs do not appear to dispute that plaintiff has satisfied her prima facie case. (See, e.g., Dkt. #75, at 11 (beginning the analysis with establishing legitimate, non-discriminatory reasons for not promoting plaintiff); Dkt. # 101, at 3 (addressing same)). To meet its burden of articulating a non-discriminatory reason for taking an adverse employment action, “an employer’s explanation for its reasons must be clear and specific in order to afford the employee a full and fair opportunity to demonstrate pretext.” Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 105 (2d Cir.2001) (citation & internal quotations omitted). Defendant acknowledges that plaintiff was “qualified for the position,” but it explains that she was not offered the position because she “lacked the substantive leadership experience offered by both Kepchar and Maf-fett[.]” (Dkt. # 75, Brief at 16). Defendant, relying on the testimony of Chief Cavanaugh, explains that the reason that Kepchar and Maffett were ranked ahead of plaintiff, and that Maffett was ultimately hired, is that they were more qualified than plaintiff in that “each had experience as a chief officer of a fire department and demonstrated experience in administrative and organizational aspect of fire department management[,]” which experience is “directly referenced in the respective resumes of Kepchar and Maffett.” (Dkt. # 75, Brief at 15, citing Cavanaugh Depo. at 73; Cavanaugh Afft ¶¶ 9-17; Kepchar Resume; Maffett Resume).

Relying on the resumes of each of these candidates, defendant defeats the rebuttable presumption of discrimination by offering, through admissible evidence, that its decision to hire Maffett over plaintiff was justified based on Maffett’s experience, and not based on unlawful discrimination against plaintiff due to her gender. This Court has the duty of “examining] 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 the employer.” Byrnie, 243 F.3d at 102, citing Rowley, 217 F.3d at 151 (additional citations omitted). Plaintiff, in a case such as this, where “direct evidence of an improper discriminatory bias” is lacking, “must defeat summary judgment on the strength of [her] prima facie case combined with circumstantial evidence that [defendant’s] stated reasons for failing to hire [her] is pretext” for “impermissible discrimination.” Id., citing Reeves, 530 U.S. at 143, 120 S.Ct. 2097. “A prima facie case coupled with ‘sufficient evidence’ to reject the defendant’s explanation may permit a finding of liability.” Johnson v. Conn. Dept. of Admin. Svs., No. 3:11 CV U06(VLB), 972 F.Supp.2d 223, 253, 2013 WL 5187147, at *25 (D.Conn. Sept. 13, 2013), quoting Reeves, 530 U.S. at 149, 120 S.Ct. 2097.

In addressing its burden, defendant Town contends that “[a]side from her own subjective beliefs regarding the resumes and her being ‘better qualified,’ ... [p]laintiff points to no evidence in support of her contention that the Town’s decision not to hire her was based upon her gender.” (Dkt. # 75, at 13; see Plaintiffs Depo. at 58 (other than comparing resumes, plaintiff has no knowledge of any statements or explicit decisions by the Town not to hire plaintiff because of her gender or race)). Plaintiff, however, alleges that she “met or exceeded all of the qualifications for Deputy Chief[,]” she had twenty-seven years experience, twenty of which as an officer with the SFD, and she had a “spotlessf ]” personnel record. (Plaintiffs Afft ¶¶ 24-25). Plaintiff also alleges that Maffett is less qualified than she, and defendants knew that Maffett was less qualified, yet hired him because of his race and gender, and in retaliation against plaintiff for her “prior lawsuit against the Town and [for her] union activity.” (Id. ¶¶ 42-43). Plaintiff also testified that because her resume and job performance were superior to the resumes of Kepchar and Maffett, the only reason she was not hired is her gender. (Plaintiffs Depo. at 88 (“I can’t come up with another reason why I wasn’t chosen. The deciding factor if you put everything equal is I was a female.”)).

“A plaintiff seeking to prove that a discrepancy in qualifications supports an inference of pretext faces a formidable burden.” Johnson, 972 F.Supp.2d at 253, 2013 WL 5187147, at *25. As the Second Circuit has explained:

When a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the entire burden of allowing a reasonable trier of fact to not only conclude the employer’s explanation was pretextual, but that the pretext served to mask unlawful discrimination.

Byrnie, 243 F.3d at 103. “The law is well-established that federal courts hearing discrimination claims do not sit as a super-personnel department to reexamine ... business decisions about how to evaluate the relative merits of education and experience in filling job positions.” Newsom-Lang v. Warren Int’l, Inc., 80 Fed.Appx. 124, 126 (2d Cir.2003) (citation & internal quotations omitted). Thus, to satisfy her burden, plaintiffs “credentials would have to be so superior” to those of Kepchar and Maffett that “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Byrnie, 243 F.3d at 103 (citations & internal quotations omitted). This a is “weighty bur-dent ]” that plaintiff cannot satisfy in this case. Id.

The job announcement for the position of deputy fire chief reads: (1) “[c]andidates should have a bachelor’s degree in fire service management or a related area”; (2) “at least ten (10) years of progressively responsible fire service experience,” including, (3) “at least (2) two years at the shift supervisor level, or higher, in a fire department the size of Stratford’s or larger[ ]”; and (4) “[cjandidates should ... possess, or be able to obtain, certifications as Fire Officer I and Fire Instructor I issued by the State of Connecticut.” (Defendants’ 56(a)l Stmt ¶ 7; Plaintiffs 56(a)2 Stmt ¶7; Undisputed Facts ¶33). Additionally, as stated in the posting, the SFD candidates with “[a]t least three years previous experience as a Deputy Chief in a comparably, or larger, sized fire department may be substituted for a [bjachelor’s degree[,]” and “Fire Officer II or III certification or a master’s degree in fire service management or a related field or graduation from the Executive Officer Program at the National Fire Academy [was] preferred.” (Id.).

Plaintiff contends that she possessed all of the required qualifications for the job. (Dkt. #88, at 24-25). Plaintiff has a bachelor’s degree in physical education from Southern Connecticut State University (Plaintiffs Depo. at 14), which degree she explained is related to fire service management as it taught her “how to teach motor skills, physical activity to people. It’s a teaching degree and a huge part of an officer’s job is to teach people.” (Id. at 60). Yet, upon further questioning at her deposition, plaintiff acknowledged that her degree in physical education is not related to fire services management. (Id.). Maffett’s resume reveals that in 1999 he obtained a “Dillard University Special Diplomat,]” (Maffett Resume, at 2), which plaintiff, relying on her “Google” search of Dillard University, contends is not a real diploma. (Plaintiffs Depo. at 80-81). Plaintiff acknowledged, however, that this search did not reveal what diplomas or courses were offered by Dillard University in 1999 when Maffett was in attendance there. (Id. at 81). Defendants, however, have offered no evidence that Maffett, in fact, possessed a bachelor’s degree, which is a listed requirement for the position. Kepchar has a bachelor’s degree in marketing. (Kepchar Resume, at 6; Plaintiffs Depo. at 72-73). Thus, while plaintiff contends that she satisfied the first requirement of the job posting, her own concession undermines her contention and places her in the same category as Kepchar and Maffett in that they all lack a bachelor’s degree in fire services management or a related area. Additionally, plaintiffs concession minimizes her argument that the job requirements were lessened for Kepchar and Maffett, but increased for her, since she lacked a relevant bachelor’s degree, and she lacked the substitute qualification, as discussed further below, but yet, in Chief Cava-naugh’s opinion, she was still considered “qualified[.]” (Cavanaugh Aff’t ¶ 14). Additionally, defendant Miron also acknowledged that plaintiff was “very qualified,” and “was respected and had immense qualifications.” (Miron Depo. at 221).

The job listing provides that a relevant bachelor’s degree may be substituted by at least three years previous experience as a Deputy Chief in a comparably, or larger, sized fire department. None of the three candidates’ resumes reveals previous experience as a “Deputy Chief[.]” (See Plaintiffs Resume; Maffett Resume; Kepchar Resume). At the time of their applications all three applicants held the position of Assistant Chief: Kepchar was an Assistant Chief in the Westport Fire Department, Maffett was an Assistant Chief in the City of Columbia Fire Department, and plaintiff was an Assistant Chief in the SFD. (Id). Plaintiff contends that according to the Town’s own advertisement, Maffett, the ultimate hiree, would be required to serve as a “Deputy Chief” and not just a “chief officer” in order for his experience to substitute for a bachelor’s degree. (Dkt. # 88, at 26). The job posting allowed for the substituted qualification of service as a “Deputy Chief’ in a “comparably, or larger sized department.” It does not say service as a “Deputy Chief’ or comparable position, nor is there an explanation of the description of assistant chief positions, referred to as chief officer positions, as they relate to the description of a deputy chief position. Maffett’s resume lists his last two positions in the Columbia, South Carolina Fire Department as “Assistant Chief’ positions, and in his application, he states that his most recent position was “Assistant Chief of Human Resources[,]” where he reported to “Deputy Chief Jenkins[.]” (Maffett Resume at 1, 6). Thus, at least in his former department, his position was inferior to a deputy chief position.

As Chief Cavanaugh explained, Maffett came from a much larger fire department, consisting of over four hundred firefighters. (Cavanaugh Afft ¶ 12; Cavanaugh Depo. at 87). As Cavanaugh continued, “[gjiven the size of the Columbia Fire Department, the titles and descriptions of the positions within that department do not align with those of the [SFD],” as the Columbia Fire Department has district chiefs, assistant district chiefs, and battalion chiefs. (Id ¶ 13). From 1997 to his retirement in 2006, Maffett held the positions of Assistant Chief of Support Services, Assistant Chief of Operations, and Assistant Chief of Human Resources, and prior to holding these assistant chief positions, Maffett served as the Fire Battalion Chief and as the Fire Captain of his department. (Maffett Resume, at l). As plaintiff acknowledged, SFD does not have these positions because it is a much smaller department. (Plaintiffs Depo. at 151).

Chief Cavanaugh explained that Maf-fett’s experience impressed the interview panel as Maffett “supposedly served as the chief officer in every aspect of the department, ... [a]nd he knew all kinds of people in the National Fire Organizations ..., and ... he was coming from a right to work state which [the interview panel] thought could bring something new to the table.” (Cavanaugh Depo. at 87-88). It is undisputed that Maffett had thirty-four years of fire service experience compared to plaintiffs twenty-seven years experience, although plaintiffs progressive fire service and shift supervisor experience was within the very department that the Deputy Chief would manage, while Maf-fett’s progressive experience was in another state with different labor laws. However, defendants argue that Maffetfs and Kepchar’s experience was rated as more valuable because they “each had experience as a chief officer of a fire department and demonstrated experience in administrative and organizational aspects of fire department management.” (Dkt. # 75, Brief at 15).

Plaintiff testified at her deposition that the entirety of her claim that she was discriminated on the basis of her gender and/or race stems from her comparison of resumes and information obtained in the application process. (Plaintiffs Depo. at 72, 92). She testified that her review of the resumes and qualifications of these two applicants reveal that Kepchar did “not have the number of college courses that [plaintiff] had towards a degree[,]” but plaintiff also acknowledged that at that time, she had only taken one course towards her master’s degree (Plaintiffs Depo. at 73, 76, 125); Kepchar does not have an EMT certification, although she acknowledged that such a certification is not required for the job (id. at 73); she opined that she has a “much better medical background[ ]” than Kepchar, although that too was not a requirement for the job, and she had more citations and awards (id. at 76); and while acknowledging that Maf-fett has a medical background, and attended the National Fire Academy “on a couple of occasions[,]” she opined that Maffett did not have a sufficient level of interest in his community, and, as discussed above, she contends that his diploma from Dillard University is not a real diploma, (id. at 79-81). Defendants note that a comparison of the resumes reveals more overall experience by both Kepchar and Maffett than plaintiff, and, as Cavanaugh averred, plaintiffs resume was “more in public service than in fire service.” (Cavanaugh Afft ¶ 14). Chief Cavanaugh acknowledged that he initially preferred to hire internally, and to hire plaintiff specifically, but that his opinion changed based on what he learned during the interviews. (Cava-naugh Depo. at 91). Specifically, he was impressed with Kepchar’s experience as a “chief officer” and that Kepchar designed apparatus replacement, and he was impressed with Maffett’s experience in a department with more than four hundred firefighters where “he supposedly served as the chief officer in every aspect of the department....” (Cavanaugh Depo. at 71, 87-88). Similarly, Kepchar represented that he had thirty years of experience, including five years as assistant chief, and had overseen the hiring process of sixteen firefighters. (Kepchar Resume, at 4-7). Maffett was “responsible for overseeing the process of recruiting, hiring, and promotions[ ]” and he operated the cadet firefighter training program and safety program. (Maffett Resume, at 1). The Panel was particularly impressed with Kepchar because he created a program to reduce overtime costs in the Westport Fire Department, and Kepchar had experience “organizing other sections, other areas of the department....” (Cavanaugh Depo. at 73-74; Cavanaugh Afft ¶ 10).

Plaintiff also contends that defendants knew Maffett was less qualified in that the Human Resources Department Reference Summary prepared by Randi Frank states: “Mr. Maffett’s references were asked if they could recommend him for this position. They all responded in the positive and added that they’d recommend him with hesitation.” (Maffett Reference SummaryXemphasis added). John Slavin of Slavin Management Consultants was responsible for conducting reference checks for Randi Frank to assist in the executive search of the Fire Chief and Deputy Fire Chief positions. (Slavin Afft ¶¶ 4-5). Sla-vin avers that this statement on which plaintiff relies contains a typographical error in that Maffett’s references “in fact stated that they would recommend him ‘without hesitation.’ ” (Id. ¶¶ 8-10). This explanation is in accord with the first portion of the sentence, “They all responded in the positive.... ” (Maffett Reference Summary). Notably, this explanation is also in accord with the entire Reference Summary which only includes positive feedback about Maffett. (Id.). Specifically, the references described Maffett as professional, moral and ethical, straightforward, and honest, and the references articulated eight positive professional strengths. (Id.). The references noted that Maffett “[t]akes direction very well[,]” “[i]s responsive!,]” and is a “clear and effective” communicator. (Id.). Additionally, his “military” leadership style was described as “participatory!,]” and he is “well respected by all his commands.” (Id.). None of the forgoing suggests that “all” of the recommenders who “responded in the positive” when asked if they would recommend Maffett for the SFD position, would have responded that they would have recommend him with hesitation. (Id.). Thus, reading the Maffett Reference Summary in conjunction with the explanation averred to by its author, John Slavin, the Reference Summary contains a typographical error and there is no evidence, as plaintiff contends, that defendants knew that Maffett was less qualified.

As for the remaining job qualifications, plaintiff was a twenty-seven year employee of the SFD (Plaintiffs Depo. at 88), with two ’ years experience as an Assistant Chief, as compared to Kepchar’s five years as an Assistant Chief, and Maffett’s nine years as an Assistant Chief. Like Kep-char, plaintiff has Fire Officer I and Fire Instructor I certifications (Plaintiffs Depo. at 60; Kepchar Resume, at 3, 6-7), but neither she nor Maffett have the preferred qualifications of Fire Officer II or III certifications, or hold a master’s degree in fire service management or a related field or graduation from the Executive Officer Program at the National Fire Academy. (Kepchar Resume, at 3, 6-7). While plaintiff alleges that at the time she applied for the position of Deputy Chief, her qualifications were superior to Kepchar and Maf-fett as she was “working towards” a masters in Public Safety (Plaintiffs Depo. at 15-16, 125), she testified that the degree was from an on-line university, in her words, she “believe[d]” the degree is in fire administration, or “along those lines, public safetyf,]” she never obtained that degree, and she had only taken one course “at some point between 2008 and 2009.” (Plaintiffs Depo. at 15-16, 125). Pursuant to the job listing’s requirements, Maffett, whose resume reflects substantial management experience and “[thirty-four] years of progressive experience in fire services[,]” (Maffett Resume, at 1), needed only to “be able to obtain[ ] certifications for Fire Officer I and Fire Instructor I issued by the State of Connecticut[,]” (Defendants’ 56(a)l Stmt ¶ 7; Plaintiffs 56(a)2 Stmt ¶ 7; Undisputed Facts ¶ 33), and thus it is of no moment that he did not have those certifications at the time of hire. Hence, despite plaintiffs contentions to the contrary, she cannot establish that her credentials are “so superior to the credentials of the person selected for the job that ‘no reasonable person, in the exercise of impartial judgment, could have chosen the candidate over the plaintiff for the job in question.’ ” Bymie, 243 F.3d at 103 (citations omitted). Plaintiffs subjective belief is not supported by the underlying record.

This Court is mindful of the fact that it “must respect the employer’s unfettered discretion to choose among qualified candidates.” Id. (citations & internal quotations omitted). In this case, plaintiffs subjective belief that her resume and job performance are superior to that of Kep-char and Maffett is not “sufficient evidence to find that the employer’s asserted justification is false[.]” Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Rather, the record evidence, taken in the light most favorable to plaintiff, supports a conclusion that defendant, at best, assessed the three final applicants’ respective experiences against the stated requirements for the job, which weighed in favor of each of the three candidates at various stages in the selection process, but with that, defendant chose its hirees among candidates with experience and qualifications that exceeded those held by plaintiff. Plaintiff cannot demonstrate that the Town’s explanation for not hiring plaintiff was “pretextual, [and] that pretext served to mask unlawful discrimination” based on plaintiffs gender. Byrnie, 243 F.3d at 103 (citations omitted). Accordingly, summary judgment is granted in defendant Town’s favor on Count One.

2. COUNT TWO — GENDER PLUS RACE DISCRIMINATION

In Count Two, plaintiff asserts a claim against defendant Town under Title VII for discrimination based upon gender plus race in denying plaintiff a promotion to Deputy Fire Chief. (Amended Compl. ¶¶ 61-62). “The term ‘sex plus’ or ‘gender plus’ is simply a heuristic. It is, in other words, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir.2004) (footnote omitted). Defendant Town contends that plaintiff fails to establish a prima facie case of gender plus race discrimination with respect to the Town’s decision to initially offer the position for which she applied to Kepchar, given that Kepchar and plaintiff are both white. (Dkt. #75, Brief at 19, 20) (citation omitted). The term “gender plus” “refers to a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic.” Back, 365 F.3d at 118, n. 7 (citation & internal quotations omitted). In “gender plus” cases, “the employer does not discriminate against the class of men or women as a whole but rather treats differently a subclass of men or women.” Id. (citation & internal quotation omitted). Even assuming that plaintiffs satisfied her prima facie case regarding Maffett, plaintiffs gender plus race claim fails for the same reason her gender discrimination claim fails. Just as with her gender discrimination claim, plaintiffs contention that she was not hired solely because of her gender plus race is premised upon her subjective belief that her resume and job performance were superior to Maffett and Kepchar. (Plaintiffs Depo. at 88). As discussed thoroughly in Section II.B.l. supra, the record evidence supports defendant’s legitimate, non-discriminatory reasons for hiring Maffett as a comparison of the resumes reveals more substantive, and more overall, experience by Maffett.

3. COUNT THREE

In Coun