Herbert v. National Amusements Inc
Filing
50
ORDER granting in part and denying in part Defendant's 36 Motion for Summary Judgment. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 6/16/2011. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL J. HERBERT
PLAINTIFF,
v.
NATIONAL AMUSEMENTS, INC.,
DEFENDANT
:
:
: CIVIL ACTION NO. 3:08cv1945
(VLB)
:
: June 16, 2011
:
:
:
MEMORANDUM OF DECISION DENYING IN PART AND GRANTING IN
PART DEFENDANT’S [DOC. #36] MOTION FOR SUMMARY JUDGMENT
Before the Court is a motion for summary judgment filed by the
Defendant, National Amusements, Inc. (“National Amusements”). The
Plaintiff, David J. Herbert (“Herbert”), brought this suit claiming National
Amusement’s termination of his employment violated the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the
Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen. Stat.
§ 46a-60(a) et seq., and Connecticut common law for termination in
violation of public policy. National Amusements argues that Herbert has
failed to set forth sufficient evidence for a reasonable jury to find that 1)
National Amusements fired Herbert because of his age, or 2) National
Amusements fired Herbert in violation of public policy. For the reasons
stated hereafter, the Defendant’s motion for summary judgment should be
denied as to Plaintiff’s ADEA and CFEPA claims and granted with respect
to Plaintiff’s claim for termination in violation of public policy.
1
Facts
The following facts relevant to the Defendant’s motion for summary
judgment are undisputed, unless otherwise indicated. Herbert was born on
October 20, 1954. He was employed by National Amusements, which
operates movie theatres, as a Manager from December 16, 1996 until
February 27, 2007. Herbert was hired to be a Manager at the Showcase
Cinemas in East Hartford, Connecticut. He was age 42 at the time of hire,
and was an at-will employee. [Doc. #13].
Herbert’s duties as a Manager were broad, and included running
projectors, preparing sales and administrative reports, overseeing staff,
dealing with safety issues, and addressing the needs of the theatre’s
patrons, among other tasks. During his employment with National
Amusements, Herbert was transferred to West Springfield, Massachusetts
in 1997, and back to East Hartford in 2000. In 2002, he was promoted to the
position of District Safety Representative (“DSR”), where he traveled to
theatres in Southern Connecticut 2-3 days per week, while still maintaining
his duties as a Manager in East Hartford. In 2004, National Amusements
restructured their safety program, the DSR position was dissolved, and
Herbert returned to being a full-time manager in East Hartford. When the
East Hartford theatre closed in August 2006, Herbert was transferred to a
Manager position in Berlin for a month, then to a Manager position in
Southington, which he retained until he was terminated. [Doc. # 36-2,
Defendant’s Rule 56(a)(1) Statement].
2
During Herbert’s employ at National Amusements, Managers were
supervised by Managing Directors, who conducted written performance
evaluations twice yearly. Managing Directors also issued written Employee
Development Alerts (“EDAs”) to Managers to apprise them of problems
with their work, including issues with attendance, performance, policy
violations, or other concerns. Employees were free to indicate their
agreement or disagreement with any EDA, and to provide comments if they
chose to do so. Although Managing Directors typically had some
discretion in the disciplinary process, generally once a Manager received
three or four EDAs, they would be given a “Decision Making Day” (“DMD”)
to decide whether they would commit to improving their performance, or
would prefer to resign. The Manager would then indicate their decision on
a form, and if they committed to improving, they were required to write
down specific steps or actions to improve their performance. [Doc. # 36-2,
Defendant’s Rule 56(a)(1) Statement].
Herbert received his first evaluation in June 1997, and was regularly
evaluated until his termination in 2007. He received an EDA dated May 10,
2002 for punctuality, which he signed indicating his agreement. He
received an EDA dated January 13, 2004 for closing a theatre early on
Christmas Eve, to which Herbert indicated his disagreement and wrote a
rebuttal memo. He received an EDA dated December 19, 2005 for failure to
properly schedule ushers, to which Herbert indicated his disagreement and
3
wrote a rebuttal memo. He received an EDA on February 21, 2007, citing
unsatisfactory work performance during his shift on February 13, 2007, by
Jeff Brainard who was Herber’s Managing Director at the time, to which
Herbert indicated his disagreement and wrote a rebuttal memo. He was
given a DMD form on February 23, 2007. Herbert signed the form indicating
that he sincerely and fully committed to an acceptable level of
performance, but rather than listing the actions he would take to improve,
he attached a written memo noting his disagreement with the Company’s
actions and requesting that his most recent performance evaluation be redone. [Doc. # 36-2, Defendant’s Rule 56(a)(1) Statement].
Following Herbert’s response to the DMD form, he was terminated on
February 27, 2007. Herbert was 52 years old at the time of his termination.
Subsequent to Herbert’s termination, the part-time Assistant Manager at
the Southington theatre, Jonathan Williams, indicated his interest in
becoming a full-time Manager and was promoted to the position. Williams
was 20 years old at the time of his promotion. [Doc. # 36-2, Defendant’s
Rule 56(a)(1) Statement].
Standard
Summary judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of proving that no factual issues exist. Vivenzio v.
City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether
4
that burden has been met, the court is required to resolve all ambiguities
and credit all factual inferences that could be drawn in favor of the party
against whom summary judgment is sought.” Id., (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any evidence in
the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance
Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir.
2006) (internal quotation marks and citation omitted).
Analysis of Plaintiff’s ADEA Claim
Herbert’s ADEA discrimination claim is governed by the McDonnell
Douglas standard:
To withstand a motion for summary judgment, a discrimination
plaintiff must withstand the three-part burden-shifting [test]
laid out by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973). . . . In a nutshell, a plaintiff
first bears the ‘minimal’ burden of setting out a prima facie
discrimination case, and is then aided by a presumption of
discrimination unless the defendant proffers a ‘legitimate,
nondiscriminatory reason’ for the adverse employment action,
in which event, the presumption evaporates and the plaintiff
must prove that the employer's proffered reason was a pretext
for discrimination.
McPherson v. N.Y.C. Dep’t. of Educ., 457 F.3d 211, 215 (2d Cir. 2006)
(internal citation omitted). While the Supreme Court recently noted that it
“had not definitively decided whether the evidentiary framework of
McDonnell Douglas … is appropriate in the ADEA context,” Gross v. FBL
Fin. Servs., Inc., 129 S. Ct. 2343, 2349 n. 2 (2009), the Second Circuit has
5
held that post-Gross the McDonnell Douglas framework is still applicable to
ADEA claims however the latter part of the McDonnell Douglas formulation
has been altered by “eliminating the mixed-motive analysis that circuit
courts had brought into the ADEA from Title VII cases.” Gorzynski v.
Jetblue Airways Corp., 596 F.3d 92, 106 (2d Cir. 2010) (finding post-Gross
that “we remain bound by, and indeed see no reason to jettison, the
burden-shifting framework for ADEA cases that has been consistently
employed in our Circuit”); Hrisinko v. N.Y.C. Dep’t of Educ., 369 F.App’x.
232, 234 (2d Cir. 2010) (finding that employees must now prove that “age
was the ‘but-for’ cause behind the employer’s adverse decision, and not
merely one of the motivating factors.”)
Under McDonnell Douglas, “The plaintiff must first establish a prima
facie case by demonstrating that: (1) [he] is a member of a protected class;
(2) [his] job performance was satisfactory; (3) [he] suffered adverse
employment action; and (4) the action occurred under conditions giving
rise to an inference of discrimination.” Demoret v. Zegarelli, 451 F.3d 140,
151 (2d Cir. 2006). “A plaintiff's burden of establishing a prima facie case is
de minimis.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d
Cir. 2001). The parties agree that Herbert has established the first and third
prongs of this analysis, by virtue of his age and the fact that he was
disciplined and subsequently terminated. However, the parties disagree as
to whether Herbert can establish the second and fourth prongs of the
analysis.
6
When considering whether job performance is satisfactory, the court
should focus on whether the plaintiff had the necessary skills for
performing the job, and whether the job was performed in accordance with
the employer’s criteria for satisfactory performance. See Ruiz v. Cnty. of
Rockland, 609 F.3d 486, 492 (2d Cir. 2010). Furthermore, “[a]lthough
misconduct indicates a high likelihood that an employee's performance is
not satisfactory, this is not necessarily the case. Depending on the
employer's standards, it is at least theoretically possible that an employee
committed some misconduct and yet, in the aggregate, performed
satisfactorily.” Thornley v. Penton Pub., Inc., 104 F.3d 26, 29-30 (2d Cir.
1997).
National Amusements’ evaluation forms permitted the Managing
Directors to review a Manager’s performance in several areas as
“Outstanding”, “Superior”, “Good”, “Fair”, or “Unsatisfactory”. [Doc. #412, Exhibit B]. In 2000, the review scheme was changed to “Superior”,
“Outstanding”, “Good”, “Fair”, or “Poor”. [Doc. #41-8, Exhibit H].1 Each
evaluation sheet provided space for comments and suggestions for
improvement. Although the Managing Directors always provided written
comments as to what areas needed improvement, and suggestions for
improving performance, Herbert never received an Unsatisfactory or Poor
review in any area of any evaluation. [Docs. ##41-2 to 41-20, Ex. B-T; Doc.
1
The evaluation sheets described the review classifications as follows. “Superior. Has
mastered this skill. Either knows or completes these tasks thoroughly.” “Outstanding.
Accomplished and thoroughly knowledgeable in this area.” “Good. Meets all company
standards.” “Fair. Further improvement possible with time and effort.” “Poor. Needs
substantial improvement (unacceptable).”
7
#26-8, Ex. 21]. In his final evaluation, dated January 3, 2007, Herbert’s
performance was evaluated as follows: Superior Plus in two areas,
Outstanding Plus in one area, Outstanding Minus in four areas, Good Plus
in thirty seven areas, Good Minus in twenty three areas, Fair Plus in eleven
areas, and Fair Minus in one area. [Doc. #26-8, Ex. 21].
National Amusements argues that Herbert’s job performance was
“seriously deficient” and worsened over time, and point to his EDA’s as
well as his last performance evaluation as proof of his deficiencies.
National Amusement also notes that Herbert throughout his employment
received poor marks in his evaluations for leadership ability, selfconfidence and initiative and such attributes are key to good management
performance. While Herbert’s evaluations indicated that he did not perform
well in connection with certain key leadership skills, he maintains that
overall his performance was satisfactory and points to the fact that he also
received many outstanding ratings in other skills throughout his
employment. Herbert further highlights that his continued employment
over ten years accompanied by regular pay increases speaks to his
satisfactory job performance. Despite Herbert’s “Fair” reviews in certain
areas of his job performance, and his receipt of four EDAs, viewing the
facts in the light most favorable to the Plaintiff, a reasonable jury could
possibly find Herbert’s job performance satisfactory in the aggregate,
based on a lack of “Poor” reviews and his continued employment with
8
National Amusement. Therefore, a genuine issue of material fact exists as
to whether Herbert’s job performance could be considered satisfactory.
In regard to the fourth prong of the analysis, Herbert argues that an
inference of discrimination arises from the promotion of Williams, who was
20 years old when he was promoted, to replace Herbert, who was 52 years
old when he was terminated. [Doc. # 36-2]. Although an inference of
discrimination does not arise when a plaintiff is replaced by another person
who is only slightly younger, the courts have held that an age difference of
eight years is “not insignificant”. Tarshis v. Riese Org., 211 F.3d 30, 38 (2d
Cir. 2000), abrogated by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)
on other grounds. Furthermore, this court has noted that a “twelve year
age difference certainly suffices as a substantial discrepancy in age to
raise an inference of discrimination.” Pleau v. Centrix, Inc., No.
06cv01626(DJS), 2008 WL 4380515, at *5 (D. Conn. Sept. 24, 2008). Here, a
thirty-two year age difference between Herbert and his replacement goes
above and beyond the substantial discrepancy in age to give rise to an
inference of age discrimination.
Viewing the facts in the light most favorable to the Plaintiff, a
reasonable jury could find that Herbert has established a case of prima
facie discrimination based on age. National Amusements proffers a
legitimate, non-discriminatory reason for its adverse employment
discrimination to rebut the presumption of discrimination established by
the Plaintiff’s prima facie case. The Defendant asserts that Herbert was
9
terminated due to his long-standing performance issues and because he
was insubordinate in refusing to submit a specific plan for improving his
performance as required by National Amusements on his DMD form. In
support of this assertion, National Amusements states that Herbert’s EDA
issued in February 2007 indicates his failure to accomplish tasks as
expected, that Herbert’s deficiencies had been noted by Managing
Directors throughout his employment, and that Herbert refused to properly
complete the DMD form as instructed. [Doc. # 36-2]. National Amusements
also notes that Managers who worked with Herbert attested to his
deficiencies and stated that, given the length of his experience, his skills
were poor. The totality of these circumstances does give rise to a genuine
issue of material fact as to whether the asserted performance deficiencies
are pretextual.
To survive summary judgment, Herbert must show that National
Amusements’ proffered reasons for termination are not only a pretext for
discrimination, but that his age was the “but-for” cause for his termination.
See McPherson, 457 F.3d at 215. “[A] plaintiff's prima facie case, combined
with sufficient evidence to find that the employer's asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000). “[T]he Supreme Court's decision in Reeves clearly mandates a
case-by-case approach, with a court examining the entire record to
determine whether the plaintiff could satisfy his ultimate burden of
10
persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff.” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000);
Gross, 129 S.Ct. at 2351; see also Gorzynski, 596 F.3d at 106.
In stating that National Amusements’ proffered reason for
termination is a pretext for discrimination, Herbert contends that the
Managing Director at the Southington theatre, Jeff Brainard, was biased
against Herbert on the basis of his age. In support of this contention,
Herbert asserts that Brainard typically promoted Managers to their
positions when they were in their 20’s and 30’s, that Brainard commented
on the Plaintiff’s age during the course of his last performance evaluation,
and that Brainard decided to replace Herbert with the much-younger
Williams. See Diello v. Potter, No. 10-1776-cv, 2011 WL 802323, at *2 (2d
Cir. March 2, 2011) (noting that plaintiff’s pretext allegations might have
been plausible had plaintiff “provided compelling evidence of a pattern of
promotions of younger employees over older employees”). Herbert also
questions whether his performance was so poor that it would have led to
negative evaluations, written warnings, and ultimately termination in the
absence of Brainard’s bias against Herbert on the basis of age.
When Herbert began working at the Southington theatre on October
9, 2006, he was reporting to Managing Director Brainard. The other fulltime Managers in Southington at that time were Bethany Fissette, Bill
Despins, and Larry McBreairty, as well as part-time Assistant Manager
Williams, and Manager of Concession Operations (“MCO”) Kim Pienkowski.
11
Based on the parties’ uncontested statements of fact, the only person
whom it is clear Brainard had a hand in promoting was Williams, who was
indeed promoted to the position of full-time Manager at age 20. This
information can be supplemented by Brainard’s deposition and the
Managers’ employee files. Brainard recalls that he hired Kim Pienkowski
as a Manager when she was in her late twenties, and that she was later
promoted to MCO. [Doc. #41-48, Ex. WW, Brainard Depo. 38, 42].
Pienkowski was born in 1970, and was about 26 years old when Brainard
hired her. [Doc. #41-22, Ex. V]. Brainard hired Larry McBreairty in the late
1990s as a Customer Service Manager; that position was dissolved and he
became a Manager shortly after his hire. [Doc. #41-48, Ex. WW, Brainard
Depo. 42-43]. McBreairty was born in 1965, and was about 33 years old
when Brainard hired him. [Doc. #41-23, Ex. W]. Brainard promoted Bill
Despins from a cashier to a Manager in the late 1990s. [Doc. #41-48, Ex.
WW, Brainard Depo. 43-45]. Despins was born in 1965, and was about 30
years old when he was promoted from cashier to Manager. [Doc. #41-24,
Ex. X]. Bethany Fissette was originally hired as a staff person, and
Brainard had a hand (with other managers) in promoting her to Assistant
Manager, then Manager. [Doc. #41-48, Ex. WW, Brainard Depo. 45-46].
Fissette was born in 1979 [Doc. #41-25, Ex. Y], but evidence of her age at
promotion to Manager does not appear to be in the record, however she
was younger than her present age of 32.
12
It is therefore true that the Managers working at the Southington
theatre around the time of Herbert’s termination were either hired as
Manager or promoted to a Manager position by Brainard, the youngest at
20 years of age and the oldest at 33 years of age. In comparison, Herbert,
who was not hired or promoted by Brainard, was 42 years old when hired
as a Manager. It is difficult to say with certainty whether this trend would
persuade a jury that Brainard discriminated against Herbert because of his
age, however such evidence could support a finding that there is a genuine
issue as to the material fact of whether Brainard, who was a central figure
in Herbert’s termination, was biased against Herbert on the basis of his
age. [Doc. #41-48, Ex. WW, Brainard Depo. 34].
Herbert also contends that Brainard made a negative age-based
comment while the two parties were reviewing Herbert’s latest performance
review. According to Herbert, Brainard remarked that Herbert was the
oldest Manager in the theatre, older even than Brainard himself. [Doc. #4147, Ex. VV, Herbert Depo. 182]. Brainard made other comments during this
interaction that were focused on Herbert’s experience but could also
potentially be construed as related to his age. Brainard stated that Herbert
could no longer do things “the old way”. [Doc. #41-47, Ex. VV, Herbert
Depo. 183]. According to Brainard, his message to Herbert was that he
wasn’t a new Manager, that he expected more from a Manager of 10-11
years, and that his level of performance was unacceptable for a Manager
with that level of experience. [Doc. #36-16, Ex. 52-2, Brainard Depo. 201-
13
03]. Brainard said that Herbert should be bringing new ways of doing
things to the table, to see if the management could improve the operation.
[Doc. #36-16, Ex. 52-2, Brainard Depo. 201-03]. Herbert only cites this one
age-based remark, whereas all of the other remarks were experience-based
remarks. [Doc. #36-14, Ex. 51, Herbert Depo. 263-64].
Although the parties contest the precise phrasing of any statements
that were made, barring any evidence that such statements were not made,
this court will not draw any conclusion as to what was or was not said. The
Defendant contends that, even if the statements were made, they would be
characterized as “stray remarks” insufficient to support an inference of age
discrimination. “Stray remarks by an employer do not prove discriminatory
animus unless there is a causal connection to plaintiff's alleged adverse
employment action.” Trojanowski v. Blakeslee Prestress, Inc., No.
3:08cv548 (WWE), 2009 WL 3340426, at *4 (D. Conn. Oct. 15, 2009). The
decision to terminate Herbert was ultimately made by Ken Ditta, the District
Manager, and Jeff Aldrich, in Operations. [Doc. # 36-17, Ex. 53, Ditto Depo.
119-120]. Although according to Defendant, the discussion leading up to
the decision to terminate focused on performance rather than age, it was
the EDA which Brainard had submitted that prompted the submission of
the DMD form and the resulting decision to terminate Herbert. It is
therefore plausible that Brainard’s age-based comment as well as his other
comments reflected his discriminatory animus which caused him to
inappropriately issue the 2007 EDA leading to Herbert’s termination.
14
In addition, the Second Circuit has noted that “the more remote and
oblique the remarks are in relation to the employer’s adverse action, the
less they prove that the action was motivated by discrimination,” while
“[t]he more a remark evinces a discriminatory state of mind, and the closer
the remark’s relation to the allegedly discriminatory behavior, the more
probative the remark will be.” Tomassi v. Insignia Fin. Group, Inc., 478 F.3d
111, 115 (2d Cir. 2007)(citations omitted). The comments made by Brainard
that Herbert could no longer do things “the old way” but instead should be
bringing new ways of doing things shortly before the issuance of the 2007
EDA can be considered closely related to the alleged discriminatory
behavior – that of terminating Herbert and replacing him with a much
younger individual who would presumably do things in the desired “new
ways.” [Doc. #36-16, Ex. 52, Brainard Depo. 201-03].
Moreover, it is hard to see how Brainard’s age-related comment
could be considered a stray remark in the first place when it was made
during Herbert’s performance evaluation. This is not the case of watercooler chatter but instead a comment made directly to Herbert as a part of
a performance evaluation that Defendant is relying on as justification for
terminating Herbert. Williams v. City of New York, No. 04 CIV 1993, 2005
WL 839103, at *9 (S.D.N.Y. April 12, 2005) (noting that a stray remark
unrelated to an evaluation does not constitute evidence of discrimination).
Here there can be no dispute that the remark was related to his evaluation.
Accordingly, a reasonable juror could find that Brainard’s comments were
15
not simply “stray remarks,” but instead provide probative evidence of
discriminatory animus.
Finally, Herbert questions whether his performance was so poor that
it would have led Brainard to give him a negative evaluation and an EDA in
the absence of a bias against Herbert’s age. The only evaluation Brainard
conducted was Herbert’s final evaluation. In his final evaluation, dated
January 3, 2007, Herbert’s performance was evaluated as follows: Superior
Plus in two areas, Outstanding Plus in one area, Outstanding Minus in four
areas, Good Plus in thirty seven areas, Good Minus in twenty three areas,
Fair Plus in eleven areas, and Fair Minus in one area. [Doc. #36-8, Ex. 21].
In the preceding evaluation, dated June 30, 2006 and performed by Bob
Moch, the Managing Director in East Hartford, Herbert’s performance was
evaluated as follows: Outstanding Plus in five areas, Outstanding Minus in
twelve areas, Good Plus in thirty two areas, Good Minus in twenty six
areas, and Fair Plus in nine areas. [Doc. #36-7, Ex. 20]. Many of the lower
marks within both reviews were with regard to Herbert’s leadership skills.
Moch’s evaluation of Herbert is more satisfactory than Brainard’s in that it
contains no Fair Minus reviews, but it also notably contained no Superior
reviews, which Brainard did award. Although Moch did appear to give
more Outstanding reviews than Brainard did, the evaluations appear to be,
in large part, very similar. The Plaintiff asserts that Brainard was the
specific Managing Director who gave a negative performance evaluation,
but in light of the similarity to Moch’s evaluation six months prior, it
16
appears that Brainard’s evaluation of Herbert’s performance was not
significantly more negative than his previous evaluation. As Defendant
points out, there were similarities and consistencies between the previous
evaluations that Herbert received from his prior supervisors and Brainard.
Moreover throughout these prior reviews, Herbert had performed poorly in
connection with leadership ability and initiative which are skills crucial to a
manager’s position. Accordingly, Brainard’s evaluation alone is likely not
probative of a discriminatory animus.
However, Brainard provided feedback regarding Herbert’s
experience in the performance evaluation that could potentially be
construed as age-related: “[f]or an individual with 11 years of management
experience, David’s skill set is unacceptably poor “ and “[h]e has more
‘experience’ than any of my managers, yet he brings very little to the table.”
[Doc. # 36-8, Ex. 21]. Moreover, Managing Director Moch, who evaluated
Herbert’s performance in a manner similar to Brainard, never issued
Herbert an EDA. The fact that Brainard issued Herbert an EDA citing poor
performance on February 21, 2007, less than two months after the
performance evaluation by Brainard which indicated that Herbert was
performing on the whole satisfactorily could potentially be seen as
discriminatory. A reasonable juror could find on the basis of the
experience-based comments by Brainard in Herbert’s evaluation and
review coupled with the one explicit age-related comment Brainard made,
17
and the fact that Brainard and not Moch issued an EDA to Herbert that
Brainard’s actions were caused by his discriminatory animus.
In assessing whether, age-related bias was the “but-for” cause of
Herbert’s termination, it is important to examine the chain of events that led
to the actual termination and what role Brainard, who Plaintiff contends
was biased against his age, played in those events. The 2007 EDA issued
was the disciplinary action that sparked the issuance of the DMD forms,
which led to Herbert’s termination. National Amusement’s company policy
was to issue a DMD form after the third or fourth EDA, and yet no DMD
form was issued after Herbert’s third EDA in 2005. [Doc. # 36-2]. This court
therefore looks to the 2007 EDA to determine Brainard’s role in Herbert’s
termination, and whether the allegations in the EDA are reasonable. As
stated previously, it was Ken Ditta and Jeff Aldrich, not Brainard, who
ultimately decided to terminate Herbert following his response to the DMD
form. [Id.]. However, if Brainard manipulated or influenced their decision
by discriminatorily issuing the 2007 EDA, “but-for” causation could be
found. Shortly after Herbert’s transfer to the Southington theatre, Brainard
mentioned concerns to Ditta, who passed these concerns along to Aldrich,
that Brainard was disappointed in Herbert’s performance given all the
years he had worked with the company and reflected that disappointment
in Herbert’s January 2007 evaluation. [Doc. # 36-2]. After Herbert refused
to sign his evaluation indicating that he disagreed with Brainard’s
comments, Ditta requested more information regarding Herbert’s work
18
performance. Brainard wrote a detailed memo expressing his concerns
about Herbert’s performance. Ditta also sought input from Herbert’s past
two managers, Tim Hevrin at Berlin and Bob Moch at East Hartford, who
also provided written memos indicating concerns similar to Ditta’s. [id.]
It is clear that the three most recent Managing Directors who
supervised Herbert had concerns about his performance, which could
justify Herbert’s termination. However, this court finds it problematic that,
despite the long-term nature of these concerns, no action was taken until
Brainard shared the results of his January 2007 evaluation with Ditta and
Aldrich. Bob Moch, who had actually been Herbert’s first supervisor in
1996, was transferred to the Managing Director position in East Hartford in
2005, where he again became Herbert’s supervisor. National Amusements
asserts that Moch expressed concerns about Herbert’s performance at that
time to Ditta and Aldrich. [Doc. #36-20, Ex. 59, Moch Aff. ¶ 12]. However,
Herbert responds that Ditta was allegedly “surprised” when Brainard raised
similar concerns in 2007. [Doc. #41-49, Ex. XX, 74]. Likewise, Hevrin
contacted Ditta to raise concerns about Herbert’s performance during his
short employ at the Berlin theatre. [Doc. #36-17, Ex. 53, Ditta Depo. 65-71].
Despite his concerns, Hevrin allegedly told Ditta that he did not want to
take action with respect to these issues. [Doc. #36-17-49, Ex. 53, Ditta
Depo. 67]. The concerns regarding Herbert’s work performance therefore
appear consistent amongst these managers, and they were shared with
Ditta and Aldrich, yet no adverse employment action was contemplated
19
until Brainard issued the fourth EDA. If these concerns regarding Herbert’s
performance were known and shared over at least a two-year period, it is
troublesome that they were not acted upon until Brainard issued the EDA.
There is no dispute between the parties that it was Brainard’s
issuance of the 2007 EDA which prompted the issuance of the DMD form
leading to Herbert’s termination. The parties only dispute Brainard’s
motivation in issuing the EDA. Plaintiff contends that Brainard’s
motivation was discriminatory whereas Defendant contends Brainard
properly issued the EDA in response to Herbert’s poor performance. The
EDA was issued following an allegation that Herbert had not performed all
his required tasks during his shift on February 13, 2007. Brainard
discussed the situation with Ditta, who advised Brainard to issue the EDA.
Since this was Herbert’s fourth EDA, and company policy recommended
issuing DMD forms following three or four EDAs, Herbert received his DMD
forms on or about the same day. The EDA states several tasks that Herbert
failed to accomplish on February 13th, including failure to build and break
down films, failure to make changes on a print, and leaving the theatre at 2
AM after not having done work for the last two hours. Herbert replied in his
rebuttal memo that another Manager had voluntarily built the film he was
responsible for, that the print changes were not done because they were
not needed until the 16th, and that he left late because he was completing
tasks in the box office and the booth. According to Herbert, he
accomplished all the necessary tasks, even staying late to ensure their
20
completion. Viewing the facts in the light most favorable to the plaintiff, it
seems as though the allegations contained in the EDA dated February 21,
2007, are insufficient under the totality of the circumstances to warrant his
termination. A trier of fact could find that, since the allegations in the EDA
appear unreasonable, they are more likely the result of Brainard’s agerelated bias and consequently the decision to terminate Herbert was
premised upon the discriminatorily issued EDA.
When taken individually, Herbert’s assertions that National
Amusement’s proffered reason for termination as false may not be seen by
a trier of fact as proving a discriminatory animus. However, when taken
together, the facts indicate that the other Managers hired or promoted by
Brainard were younger than Herbert, that Brainard promoted a much
younger employee to fill Herbert’s position, that one statement made by
Brainard was directly related to his age while others were potentially
related to Herbert’s age, and that Brainard’s complaints regarding Herbert’s
performance led to the issuance of an EDA and DMD forms for what might
seem to be minor transgressions on a single day where other Managing
Directors’ complaints and evaluations did not. When considering these
facts as a whole, a reasonable trier of fact could find that National
Amusement’s proffered reason for termination was a pretext for
discrimination. Moreover, a reasonable juror could find that “but-for”
Brainard’s bias, Herbert would have never have received an EDA which
prompted the issuance of the DMD and occasioned his termination.
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Therefore, Defendant’s motion for summary judgment is denied as to
Plaintiff’s ADEA claim.
CFEPA Analysis
It is well established that CFEPA claims proceed under the same
analysis as ADEA claims. Craine v. Trinity Coll., 259 Conn. 625, 637 n.6
(2002) (holding that the Connecticut Supreme Court looks to federal
precedent when interpreting and enforcing the CFEPA); McInnis v. Town of
Weston, 375 F. Supp. 2d 70,85 (D.Conn. 2005). Plaintiff raises the issue of
whether the recent Supreme Court’s decision in Gross also impacts the
CFEPA analysis and argues that Gross’s “but-for” causation standard
shouldn’t apply and that the traditional mixed-motive analysis still governs
claims under the CFEPA. The Court notes that no Connecticut state courts
nor any Federal courts applying Connecticut state law have yet addressed
if and how Gross impacts the CFEPA analysis at this stage in the
proceedings. However this Court would not assume slavish deference to a
new standard adopted by another court. Until such time as the
Connecticut courts adopt the new standard, it will follow existing
Connecticut court pronouncements on the appropriate standard to employ
in applying Connecticut law, nevertheless, since Plaintiff has met the more
stringent “but-for” standard the Court need not address whether the mixedmotive analysis is still applicable to CFEPA claims. Since the foregoing
22
ADEA analysis applies to Plaintiff’s CFEPA claims, Defendant’s motion for
summary judgment is also denied as to Plaintiff’s CFEPA claims.
Termination in Violation of Public Policy Analysis
Defendant moves to dismiss Plaintiff’s common law claim for
termination in violation of public policy. Herbert argues that his
termination was based, in part, on the fact that he submitted a written
response to the DMD form indicating his disagreement with the EDA which
provoked the issuance of the DMD. Herbert points to a Connecticut law
which provides employees with the right to submit a written statement
disagreeing with any information contained in that employee’s personnel
or medical records. Conn. Gen. Stat. § 31-128e. Herbert essentially argues
that he cannot be terminated based on the exercise of his rights under
Conn. Gen. Stat. § 31-128e without violating the public policy embodied
within that statute.
The cause of action for termination in violation of public policy
provides a limited exception to the general rule permitting at-will
employment in Connecticut. Storm v. ITW Insert Molded Prods., a Div. of
Illinois Tool Works, Inc., 400 F. Supp. 2d 443, 446-447 (D.Conn. 2005) (“This
exception is a ‘narrow one’ and ‘courts should not lightly intervene to
impair the exercise of managerial discretion or to foment unwarranted
litigation’... this exception is not intended to subsume all unfair dismissals,
only those which have the purpose or effect of subverting some
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unprotected public policy, otherwise the at-will doctrine would become
meaningless.”)(quoting Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 165,
(2000)).
The Court further notes that “not every statute will give rise to a
cause of action for wrongful discharge in violation of public policy.
‘Absent unusual circumstance, we will interfere with a personnel decision
only if it implicates an explicit statutory or constitutional provision or
judicially conceived notion of public policy.’” Campbell v. Windham Cmty.
Mem’l Hosp., Inc., 389 F. Supp. 2d 370, 380-381 (D. Conn. 2005)(quoting
Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 803 (1999)). Defendant
argues that Herbert has failed to articulate an important public policy and
that Conn. Gen. Stat. § 31-128e does not reflect a general public policy
concern warranting an exception to the at-will employment rule.
However in a recent case, another Judge from this District found
that “[a] discharge premised on the simple fact that an employee disagrees
with any of information contained in her personnel file and brings this
disagreement to the attention of her employer violates the public policy
expressed by Conn. Gen. Stat. § 31-128e.” Campbell, 389 F. Supp. 2d at
381.
The Campbell court concluded that the “public policy expressed by
the statute does not create an unlimited right for an employee to submit a
written statement to her employer” and suggested that there would be
violation of public policy only if the termination was based solely on the
fact that Plaintiff submitted a reply as opposed to the content of that reply.
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Id. (finding that “Campbell has, however, created a question of material fact
regarding the role her response played in Windham's decision to terminate
her. Windham does not point to any inflammatory comments in Campbell's
evaluation reply that might reasonably support a decision to terminate her.
It is a question for the finder of fact whether Windham's decision to
terminate Campbell was based on the fact that she submitted a reply or the
content of that reply.”). The Court is therefore mindful not to take an overly
broad approach in evaluating such causes of action as poorly-performing
employees should not be able to insulate themselves from discipline or
termination by simply filing a disagreement to negative evaluations.
In the instant case, Defendant argues that Herbert was terminated as
a result of his long history of poor performance and his refusal to complete
the DMD form by failing to list the steps and actions he would take to
improve his performance. Defendant further argues that in accordance
with Conn. Gen. Stat. § 31-128e Herbert was given the opportunity to file a
written response which was properly filed in his personnel records. There
is no dispute between the parties that Herbert failed to properly complete
the DMD form and that his termination was occasioned by his response to
the DMD form. In addition as Defendant’s note, there is no dispute that the
decision to terminate Herbert did in part stem from Herbert’s failure to
complete the DMD form and therefore was not solely based on the fact that
he submitted a reply memo in conjunction with the DMD form.
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Further, Herbert had throughout his employment at National
Amusements exercised his rights under Conn. Gen. Stat. § 31-128e without
suffering any adverse employment actions by submitting reply or rebuttal
memos indicating his disagreement with prior evaluations and EDAs. For
example, Herbert wrote a rebuttal memo indicating his disagreement with a
January 2004 EDA and did so again in connection with a December 2005
EDA. [Doc. # 36-10, Exs. 34, 35]. In addition, Herbert submitted a written
rebuttal to his January 2007 performance evaluation by Brainard and again
in connection with his DMD form. [Doc. # 36-13, Exs. Ex. 48 and Doc. # 3613, Ex. 49]. A reasonable juror could conclude that since Herbert routinely
submitted rebuttal and reply memos and was not disciplined or terminated
on the basis of those memos that his termination was not solely based on
his DMD reply memo. More importantly though Herbert, himself, argues
that principally his termination was the result of age discrimination and
therefore by his own admission Herbert acknowledges that his termination
did not result from the “simple fact” that he disagreed with the 2007 EDA
and DMD. See Campbell, 389 F. Supp. 2d at 381. Accordingly, Defendant’s
motion for summary judgment as to Plaintiff’s claims for termination in
violation of public policy is therefore granted.
Conclusion
26
The Defendant’s motion for summary judgment [Doc. #36] is DENIED
as to the Plaintiff’s claims under the ADEA and the CFEPA, and GRANTED
as to the Plaintiff’s claims for termination in violation of public policy.
IT IS SO ORDERED.
________/s/________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: June 16, 2011
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