Saviano v. Westport
ORDER denying 93 Motion for Summary Judgment on Remand. Please read the attached ruling and order. Signed by Judge Robert N. Chatigny on 9/30/2011. (Macare, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSEPH SAVIANO, JR.,
TOWN OF WESTPORT,
CASE NO. 3:04-CV-522(RNC)
RULING AND ORDER
Plaintiff Joseph Saviano, Jr. brings this action against his
employer, the Town of Westport, claiming principally that the
Town took retaliatory actions against him in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, et
This Court previously granted the defendant’s motion for
The Court of Appeals remanded for
reconsideration upon further development of the record.
then, an amended complaint has been filed and answered and the
parties have engaged in more discovery.
The case is now before
me on a new motion for summary judgment by the Town.
current record fully and most favorably to the plaintiff, I
conclude that the evidence is marginally sufficient to enable him
to avoid summary judgment.
Accordingly, the motion for summary
judgment on remand is denied.
I. Summary Judgment
Summary judgment may be granted when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
summary judgment, a defendant has the initial burden of showing
that there is an absence of evidence to support an essential
element of the plaintiff’s claim.
477 U.S. 317, 325 (1986).
See Celotex Corp. v. Catrett,
To overcome this showing, a plaintiff
must point to evidence that would permit a jury to return a
verdict in his favor.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
If he cannot do so, summary judgment is
proper, even in a discrimination case.
See Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000)(salutary purposes of
summary judgment apply no less to discrimination cases than to
other areas of litigation).
In determining whether summary
judgment is proper, the record must be viewed in the light most
favorable to the plaintiff.
351, 354 (2d Cir. 2003).
See Sheppard v. Beerman, 317 F.3d
This requires the court to resolve all
ambiguities and draw all permissible inferences in favor of the
See Stern v. Trustees of Columbia University, 131
F.3d 305, 312 (2d Cir. 1997).
However, conclusory allegations,
conjecture, and speculation are insufficient to create a genuine
issue of fact for trial.
Shannon v. N.Y.C. Transit Auth., 332
F.3d 95, 99 (2d Cir. 2003).
The following facts are either undisputed, or, where
disputed, taken in the light most favorable to the plaintiff.
Plaintiff’s employment with the Town began in 1977.
At all times
relevant to this motion, he was the Assistant Superintendent of
Greens at the Town’s municipal golf course.
He was also the
president of Local 1303-194, Council 4, AFSCME.
reported to Dan Rackliffe, Superintendent of Greens.
in turn reported to Stuart McCarthy, Director of the Town’s Parks
and Recreation Department.
Beginning in 1997, McCarthy reported
to First Selectwoman Diane Farrell.
One of plaintiff’s subordinates, Steven Welch, had a mental
Rackliffe and McCarthy viewed Welch as an
undesirable employee and sought to have him removed.
Welch was terminated for excessive absenteeism.
In 1998, after
the State of Connecticut and an outside support group became
involved, Welch was re-hired on a “last chance” basis.
subsequently disciplined for failing to complete an assigned task
(emptying trash cans) and for stealing small items from coworkers.1
In July 1999, Welch was suspended and subsequently
terminated for accumulating unauthorized absences.
Plaintiff stated in his deposition that he believes McCarthy
was looking for reasons to discipline Welch and did not
discipline other employees for similar deficiencies.
Selectwoman Farrell became involved and directed her subordinates
to work to accommodate Welch’s disability.
Farrell supervised an
agreement under which Welch was reinstated with special
He was also provided with a job coach by the Kennedy
Center, a non-profit organization.
Despite these steps, Welch’s conduct on the job continued to
In July 2000, he directed a racial slur at a co-
worker and was suspended as a result.2
Farrell informed the
plaintiff that she viewed the use of racial slurs as a serious
offense and would have terminated Welch were it not for his
Later that year, Farrell sought and received
additional aid for Welch from the State.
Welch’s conduct on the job continued to decline.
workers grew increasingly impatient and even hostile.
voluntarily took disability retirement on November 3, 2003.
Plaintiff frequently stood up for Welch.
When Welch was
disciplined, plaintiff filed a grievance on his behalf.
Plaintiff chastised his subordinates when they made fun of Welch.
He complained about their conduct to Rackliffe and McCarthy, but
they took no action.
He also complained that Welch was held to a
Plaintiff alleges in his deposition that Rackliffe never
reprimanded Welch’s co-workers for using inappropriate slurs
directed at his mental disability.
stricter standard than other employees.
He testified on Welch’s
behalf at an unemployment benefits appeal hearing.
points, he spoke with Farrell on Welch’s behalf and was involved
in her attempts to accommodate him.
He sent Farrell an article
that dealt with workplace harassment in retaliation for antidiscrimination complaints.
In 2001, he filed a complaint with
the Connecticut Commission on Human Rights and Opportunities
(“CHRO”) alleging that he was being harassed in part because of
his efforts on behalf of a person protected by the ADA.
Starting in about 1998, plaintiff and Rackliffe had an
extremely contentious relationship.3
Plaintiff asserts that
Rackliffe treated him differently than other employees, required
him to do undesirable and menial work that he had not previously
done, and undermined his position as a supervisor by sowing
unrest among his subordinates.
Rackliffe submitted negative
reports regarding the plaintiff and continually stated his wish
that plaintiff be fired.
He frequently reported his fear that
plaintiff might turn violent.
He eventually stopped writing
performance evaluations of plaintiff, stating that they would be
of no use.
The record indicates that plaintiff did not have any serious
employment issues or any problems with Rackliffe or McCarthy
prior to 1997.
In August 2002, Rackliffe returned from vacation to find the
golf course in poor condition.
Farrell appointed a neutral, three-member
committee to investigate.
evidence of sabotage.
He accused plaintiff of
The committee found insufficient
However, it found that plaintiff was no
longer adequately performing his duties and was ineffective as a
supervisor because he had alienated his co-workers and Rackliffe.
It recommended that he be demoted to a non-supervisory position
and transferred to another post.
On September 17, 2002, the day the committee’s report was
received, the plaintiff stated to Rackliffe that he would only
respect him when Rackliffe “stopped treating [plaintiff] like
[his] little nigger.”4
Plaintiff repeated this statement three
more times during a subsequent meeting with a Union
representative despite Rackliffe’s admonitions to stop.
October 7, McCarthy sent Farrell a letter recommending that
plaintiff be terminated for his use of racial slurs and
On October 17, 2002, Farrell wrote a letter informing
plaintiff of his termination.
The letter provided seven reasons:
Plaintiff maintains that Rackliffe was the first to use the
“n-word.” Plaintiff made this claim for the first time in an
affidavit submitted with his opposition to the motion for summary
judgment and did not mention it in his deposition.
(1) he failed to conduct himself in a professional and
cooperative manner, which was disruptive and resulted in an
unproductive work environment, (2) he had been cautioned about
his conduct repeatedly, (3) he was no longer effective in
performing supervisory duties required of his position, (4) he
had demonstrated his unwillingness to perform tasks assigned to
him, (5) he had been insubordinate to his supervisor, (6) he had
repeatedly made racial slurs after being told such language would
not be tolerated, and (7) he no longer had the confidence of the
Department Director that his work would be productive and in the
best interests of the Town.
On December 2, 2002, a termination hearing was held.
Plaintiff presented evidence to the Board of Selectmen (“the
Board”), and the Town’s attorney informed them of the 2001 CHRO
The Board voted unanimously to uphold the
On December 5, 2002, the Union filed a grievance on
plaintiff’s behalf challenging his termination.
The State Board
of Mediation and Arbitration (“SBMA”) stayed the grievance
proceeding on April 14, 2004, as a result of this lawsuit.
April 29, 2004, plaintiff filed a CHRO complaint alleging that
the SBMA had stayed his grievance in retaliation for his previous
On June 23, 2004, James Castelot, the Union
representative, wrote a letter to the SBMA requesting that the
stay be lifted.
The Town did not object.
The SBMA subsequently appointed a different panel and heard
On March 15, 2006, it issued its award.
that plaintiff had not been terminated for just cause because he
had not been progressively warned about his conduct.
It did not
view his repeated use of the “n-word” as sufficient in itself to
end his long career.
It converted his termination into a
suspension without pay, and ordered him reinstated but demoted to
a non-supervisory position.
The panel noted that, “in light of
the fact that he was the architect of a considerable portion of
his difficulty, and has been receiving pension benefits as a
result of his retirement, no award of back pay or other make
whole provisions are warranted.”
Believing he was entitled to additional back benefits,
plaintiff moved unsuccessfully to vacate this award.
filed a new grievance seeking to force the Town to comply with
On March 25, 2008, a different SBMA panel found that
the award did not require the payment of any additional benefits,
and that the Town had therefore fully complied with it.
res judicata barred the new grievance.
Rachel M. Baird, then sent a letter to Town Personnel Director
Thomas Hamilton stating that the payments received after
plaintiff’s termination should be treated as wages rather than
pension benefits because plaintiff had never submitted a valid
request for benefits (his only submission having been deficient).
The Pension Boarded voted 4-1 to deny this request, with one
The ADA makes it unlawful for an employer to "discriminate
against any individual because such individual has opposed any
act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this
42 U.S.C. 12203(a).
The McDonnell Douglas burden
shifting framework applies to retaliation claims brought pursuant
to this section of the ADA.
713, 719 (2d Cir. 2002).5
Treglia v. Town of Manlius, 313 F.3d
In order to establish a prima facie
case of retaliation, the plaintiff must show that (1) he engaged
in ADA-protected activity; (2) his employer was aware of this
The Supreme Court’s recent decision in Gross v. FBL Fin.
Servs., Inc., 129 S. Ct. 2343 (2009), discussed further infra,
could portend the application of a different framework to ADA
cases. However, the Second Circuit has indicated that the
McDonnell Douglas analysis should be applied until the Supreme
Court determines otherwise. See Gorzynski v. Jetblue Airways
Corp., 596 F.3d 93, 106 (2d Cir. 2010) (despite Gross, McDonnell
Douglas framework still applies to ADEA case with caveat that
demonstrating pretext now requires plaintiff to show that
discrimination was a but-for cause of the adverse action).
activity; (3) the employer took adverse employment action against
him; and (4) a causal connection exists between the adverse
action and the protected activity.
If the plaintiff meets
this burden, the defendant must provide a legitimate rationale
for the adverse action.
The burden then shifts back to the
plaintiff to demonstrate that the proffered rationale is a
Id. at 721.6
The plaintiff has submitted sufficient evidence to allow a
reasonable jury to conclude that he engaged in protected activity
and that Rackliffe and McCarthy were aware of it.
engages in protected activity when he opposes an action outlawed
by the ADA.
Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170,
1178 (2d Cir. 1996).
He need not establish that the employer’s
conduct actually violated the ADA, but must demonstrate a good
faith, reasonable belief that it did.
Treglia, 313 F.3d at 719.
Protected complaints need not be formal.
Sumner v. United States
Postal Service, 899 F.2d 203, 209 (2d Cir. 1990).
have to be direct or specific.
Nor do they
See Hubbard v. Total
Communications, 347 Fed. Appx. 679, 681 (2d Cir. 2009) (email to
supervisor sarcastically noting that “10-12 guys/technicians”
received raises was sufficient to constitute complaint of
The parties agree that plaintiff’s other claims - brought
pursuant to the Rehabilitation Act and the Connecticut Fair
Employment Practices Act - are analyzed using this same
differential treatment based on gender).
Taking the record in the light most favorable to the
plaintiff, Rackliffe and McCarthy sought to fire Welch from at
The evidence creates a genuine issue of fact as to
whether they sought Welch’s termination because of his
A genuine issue of fact also exists with regard to
whether they viewed the plaintiff as an obstacle to Welch’s
because of his formal and informal protests on
Plaintiff states in his affidavit that Welch was
harassed by his co-workers, that he complained of this conduct to
Rackliffe and McCarthy, and that they did nothing.
Aff. ¶¶ 15, 20.
He further alleges that Rackliffe made unusual
efforts to find deficiencies in Welch’s performance.
Id. ¶¶ 22-
In a memo to McCarthy, Rackliffe wrote of Welch: “It isn’t
bad enough that we are saddled with a sub-par performer, but does
the Town really need to have its face rubbed in it as well?”
jury could conclude that Rackliffe’s description of Welch as a
sub-par performer was a veiled reference to his disability and
that his complaint of having the Town’s face “rubbed in it” was a
reference to Saviano’s grievances and other efforts.7
There are weaknesses in the plaintiff’s evidence.
He does not
Rackliffe made other disparaging comments about Welch, such as
referring to him as an “albatross around the Town’s neck.” A
reasonable jury could infer that these comments also were
references to Welch’s mental disability.
allege that he ever specifically stated to his supervisors that
they were unlawfully discriminating against Welch because of his
The grievances he filed on Welch’s behalf alleged
violations of the Union’s collective bargaining agreement and did
not specifically mention discrimination.8
He submitted an
article about the ADA to Farrell, but did not provide any
explanation or context.9
And his CHRO complaint alleges
Grievances are not generally considered protected activity
when they fail to mention discrimination. See Melie v. EVCI/TCI
College Admin., 374 Fed. Appx. 150, 153 n.* (2d Cir. 2010); Lewis
v. Conn. Dep’t of Corr., 355 F. Supp. 2d 607, 617-18 (D. Conn.
2005). Plaintiff argues that, due to the context of these
grievances, the Town was aware that they constituted protests of
discrimination against Welch. He further points out that Welch’s
mental disability led to many of the actions for which he was
disciplined (such as failure to report for work and delinquency
in completing tasks). By alleging that the discipline lacked
just cause, he may have been implicitly arguing that they were
inconsistent with reasonable accommodations necessary for Welch’s
disability. Taken alone, these grievances would not be
sufficient to constitute protected activity. Given the overall
context, however, a reasonable jury could infer that they were
complaints of discrimination.
A handwritten note at the top of the first page says “FYI” and
“Sent from Joe S.” The article states that it is unlawful for
employers to retaliate against employees who protest
discrimination. It discusses the need to establish adequate
complaint procedures. This evidence is also problematic because
plaintiff has not alleged that Farrell had any discriminatory
motive in terminating him. Instead, he bases his claim on a
“cat’s paw” theory, in which Rackliffe and McCarthy manipulated
Farrell. Plaintiff has not cited any evidence that McCarthy or
Rackliffe was aware of the ADA article submitted to Farrell. As
such, it is not sufficient to constitute an instance of protected
activity and is only relevant insofar as it shows the
understanding on the part of plaintiff and of the Town generally
that Welch was protected by the ADA and required special
retaliation for previous efforts on behalf of Welch rather than
specific discrimination against him.10
Each of these actions
would likely be insufficient on its own to constitute protected
However, taken together in the broader context of the
relationship between plaintiff, Welch, and the Town, a reasonable
jury could infer that plaintiff had a good faith, reasonable
belief that he was protesting illegal discrimination against
Welch and that Rackliffe and McCarthy shared this
The record is also sufficient to establish an adverse
In the employment context, an action is
adverse if it is harmful to the point that it could dissuade a
reasonable worker from making or supporting a charge of
Platt v. Incorporated Village of Southampton,
It is also dubious whether the CHRO complaint on its own
would be sufficient to establish a prima facie case. It was
filed in 2001. According to plaintiff’s theory of the case,
Rackliffe and McCarthy began a campaign to terminate him starting
Defendant also argues that none of the actions taken against
Welch violated the ADA but plaintiff has submitted enough
evidence to allow a jury to conclude that he reasonably believed
Welch was the victim of unlawful discrimination. Plaintiff
alleges that Rackliffe and McCarthy applied inconsistent
standards to Welch and disciplined him when they would not have
disciplined a non-disabled employee. He claims that they sought
to terminate him on the basis of his disability and took unusual
actions toward that goal.
391 Fed. Appx. 62, 64 (2d Cir. 2010) (citing Hicks v. Baines, 593
F.3d 159, 165 (2d Cir. 2010)).
Minor inconveniences are not
Hicks, 593 F.3d at 165.
Plaintiff was terminated in
He was subsequently reinstated by the SBMA, but
demoted to a non-supervisory position and transferred to another
area within the Department.
A demotion is sufficiently harmful
to dissuade a reasonable worker from protesting discrimination.12
The record also contains sufficient evidence of a causal
connection between plaintiff’s protection of Welch and his
Causation is generally established by temporal
proximity between the protected activity and the adverse
If a substantial amount of time elapses
between the two actions, temporal proximity is not sufficient on
In his opposition to summary judgment, plaintiff suggests two
other adverse actions. He alleges that the Town improperly
refused to treat his post-termination benefits as wages rather
than retirement benefits once he was reinstated, and that the
SBMA stayed his grievance proceeding at the request of the Town
in retaliation for having filed this lawsuit. Plaintiff mentions
these actions in his statement of facts, but does not mention
them in his argument. Neither of these actions was materially
adverse. The SBMA did not issue any award that would convert the
benefits to wages. Its decision specifically stated that the
plaintiff should not receive back pay or other “make whole”
provisions. With regard to the stay of plaintiff’s grievance
proceeding, the record indicates that it was stayed for only two
months. At that point, the plaintiff requested that the stay be
lifted and the Town consented. There is no evidence that the
Town actively pursued the stay in the first place.
its own to establish causation.
Clark County School Dist. v.
Breeden, 532 U.S. 268, 274 (2001) (lapse of 20 months does not
However, corroborating evidence can support
an inference of causation even when there is a substantial lapse.
Neron v. Cossette, 419 Fed. Appx. 123, 124 (2d Cir. 2011).
According to plaintiff’s theory of the case, his termination
was not a spontaneous action, but rather the culmination of a
long campaign by Rackliffe and McCarthy.
He alleges that he took
numerous actions from 1997 to 2001 to protest discrimination
Rackliffe sought to have him terminated as early
as 1997, and continued to take actions toward this goal until
plaintiff was eventually fired.
There is thus sufficient
evidence for a reasonable jury to conclude that Rackliffe’s
actions were caused by plaintiff’s protected activity.
The plaintiff having established a prima facie case, the
burden shifts to the defendant to provide a legitimate, nondiscriminatory explanation for his demotion and transfer.
Defendant cites the reasons listed by Farrell in her letter:
plaintiff was ineffective as a supervisor, insubordinate, did not
get along with his co-workers, and repeatedly used a racial slur.
Defendant points out that an independent committee determined
that plaintiff was ineffective and insubordinate, and that
Farrell’s decision was upheld by the neutral board of selectmen.
Though the defendant’s proffered reason has substantial
support in the record, the plaintiff has provided sufficient
evidence to allow a reasonable jury to conclude that the
explanation is pretextual.
As a threshold matter, there is some
ambiguity as to the plaintiff’s burden of persuasion.
v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), the Supreme
Court held that the Age Discrimination in Employment Act (“ADEA”)
requires a plaintiff to prove that age discrimination was the
“but-for” cause of the adverse action.13
The Court noted that
whereas the language of Title VII outlaws adverse action when
discrimination is a “motivating factor,” the ADEA’s text
prohibits adverse action “because of” age discrimination.
2350, 2352 n.5.
Though it construed the ADEA, Gross has implications for ADA
retaliation claims as well.
The Seventh Circuit has read Gross
Prior to Gross, the Second Circuit analyzed ADA claims under
the framework established in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989). See Serwatka v. Rockwell Automation, 591 F.3d
957, 959-61 (7th Cir. 2010) (describing history of ADA mixedmotive claims); Parker v. Columbia Pictures, 204 F.3d 326, 336-37
(2d Cir. 2000) (holding that Price Waterhouse principles extend
to ADA claims).
Under Price Waterhouse, once the plaintiff had
presented substantial evidence of discrimination, the burden
shifted to the defendant to show that it would have made the same
decision in the absence of the discriminatory motive. This
allowed for a “mixed-motive” claim, in which a plaintiff showed
that discrimination was one cause of adverse action without
providing evidence that it was determinative. In Gross, the
Court foreclosed such claims, holding that the plaintiff must
prove by a preponderance of the evidence that he would not have
suffered the adverse action but for unlawful discrimination.
broadly to mean that any antidiscrimination statute with the
“because of” construction used in the ADEA requires a plaintiff
to establish but-for causation.
See Serwatka v. Rockwell
Automation, 591 F.3d 957, 961 (7th Cir. 2010) (“Although the
Gross decision construed the ADEA, the importance that the court
attached to the express incorporation of the mixed-motive
framework into Title VII suggests that when another antidiscrimination statute lacks comparable language, a mixed-motive
claim will not be viable under that statute.”).
Circuit has not addressed whether Gross controls ADA claims.
Bolmer v. Oliveira, 594 F.3d 134, 148-49 (2d Cir. 2010) (noting
without deciding that Gross may require but-for causation in
Title II context).
However, several district courts have applied
Gross in the ADA context.
See Warshaw v. Concentra Health
Servs., 719 F. Supp. 2d 484, 503 (E.D. Pa. 2010); Ross v.
Independent Living Resource of Contra Costa County, No. C08-00854
TEH, 2010 WL 2898773, at *6 (N.D. Cal. July 21, 2010).
Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324, 343
n.40 (S.D.N.Y. 2010) (stating that because the Supreme Court did
not specifically find the but-for standard required under the
ADA, Second Circuit mixed-motive caselaw still governs, while
noting that the plaintiff had also satisfied the but-for
The retaliation provision of the ADA contains essentially
the same relevant language as the ADEA.14
Accordingly, I find
that the but-for causation standard enunciated by the Supreme
Court in Gross applies in the ADA retaliation context.
therefore bears the burden of proving by a preponderance of the
evidence that were it not for his protests of discrimination
against Welch, he would not have been demoted and transferred.
This does not mean, however, that he is required to establish
retaliation was the sole reason for his termination.
Everson v. Leis, No. 09-4355, 2011 WL 463231, at *13 n.8 (6th
Cir. Feb. 10, 2011).
Plaintiff seeks to demonstrate pretext by relying on a
“cat’s paw” theory of liability.
In a cat’s paw scenario, a non-
decisionmaker with a discriminatory motive dupes an innocent
decisionmaker into taking action against the plaintiff.
Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011); see also
It states that an employer cannot "discriminate against any
individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual
made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this chapter."
42 U.S.C. 12203(a) (emphasis added). Plaintiff’s argument that
there is a material grammatical difference between the use of
“because of” in the ADEA and “because” in the ADA is unavailing.
The language is essentially the same and conveys the same
meaning. See Warshaw, 719 F. Supp. 2d at 503 (“Thus, just as
‘because of’-which is defined as ‘by reason of,’ . . . calls for
‘but-for’ causation, so too does the unadorned ‘because’ in §
Brown v. Connecticut, No. 3:08-cv-1478, 2010 WL 2220580, at *12
(D. Conn. May 27, 2010).15
Here, plaintiff alleges that his
discriminatory supervisors, Rackliffe and McCarthy, made false
and damaging reports to Farrell, leading her to believe he was
unstable and insubordinate.
He further claims that Rackliffe
sowed unrest among his subordinates, rendering him ineffective as
Applying the Gross standard, plaintiff must
establish that but for the actions of his supervisors, he would
not have been terminated.17
The evidence is sufficient for a reasonable fact finder to
conclude that the actions of Rackliffe and McCarthy were the butfor cause of plaintiff’s termination.
Six of the seven reasons
The Second Circuit has never formally recognized this theory.
See Hogan v. J.P. Morgan Chase Bank, 402 Fed. Appx. 590, 593 n.3
(2d Cir. 2010). But it has held that bias at any stage of a
decision process can taint the ultimate decision in violation of
Title VII. Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d
Plaintiff does not allege that Farrell or the Board of
Selectmen had any discriminatory motive in deciding to terminate
In Staub, the Supreme Court held that a cat’s paw liability
claim under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) requires only that the conduct of the
discriminatory supervisor be a proximate cause of the adverse
action. The Court suggested that this holding also applies to
Title VII claims. Id. at 1191. However, the decision was based
on the inclusion of the “motivating factor” language contained in
the USERRA and Title VII. As previously noted, the ADA does not
contain such language. Accordingly, this case is more
appropriately governed by the Gross standard.
provided by Farrell related to plaintiff’s ineffectiveness as a
supervisor, inadequate performance, and insubordination.18
reasonable jury could conclude that, were it not for the actions
of Rackliffe and McCarthy, Farrell would not have believed that
plaintiff was ineffective or insubordinate, and would not have
Plaintiff has also submitted sufficient evidence to
establish that Rackliffe and McCarthy had a discriminatory motive
and their legitimate reasons for seeking his termination were
It is abundantly clear from the record that
Rackliffe and McCarthy disliked plaintiff.
A reasonable jury
could conclude that this dislike stemmed from his protection of
Plaintiff has established disputed issues of material fact
as to (1) whether Rackliffe and McCarthy sought to have him
terminated because he protested their discriminatory activities,
and (2) whether their actions were a but for cause of his
Because a reasonable jury could find for the
The seventh stated reason dealt with plaintiff’s use of the
“n-word” on September 17, 2002. The Town argues that this
incident alone justified plaintiff’s termination. Farrell told
the plaintiff prior to that date that she considered racial slurs
grounds for immediate dismissal. But a jury could find that this
incident alone would not have led to plaintiff’s dismissal. The
SBMA found that plaintiff’s use of racial slurs, standing alone,
would not have justified his dismissal.
plaintiff on these issues, the motion for summary judgment on
remand (doc. 93) is hereby denied.
So ordered this 30th day of September 2011.
Robert N. Chatigny
United States District Judge
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