Adams-Martin v. State of CT
ORDER granting 43 Motion for Summary Judgment. See attached Memorandum of Decision. The Clerk is directed to enter judgment for the Defendant and terminate the case file. Signed by Judge Vanessa L. Bryant on 3/14/12. (Hildebrand, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CONNECTICUT DEPARTMENT OF
CIVIL ACTION NO.
March 14, 2012
MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [Dkt. #43]
Plaintiff, Kenya Adams-Martin (“Plaintiff”) brings this suit against her
employer, the Connecticut Department of Developmental Services (“DDS” or
“Defendant”). In Count I, pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq, the Plaintiff alleges that the Defendant created
a hostile work environment by harassing and discriminating against her on the
basis of her race and color, and that the Defendant has created a hostile work
environment. In Count II, Plaintiff alleges a claim for intentional infliction of
emotional distress. Currently pending before the Court is Defendant DDS’s
motion for summary judgment as to Plaintiff’s complaint in its entirety.
The facts of this case are largely undisputed. The Plaintiff admits most of
the statements contained in Defendants Rule 56(a)(1) statement. [Dkt. #43, Ex. 1].
In those instances where she denies the statements asserted by the Defendants,
her denial is recited herein. The sole remaining question is whether or not these
facts constitute (1) a violation of Title VII, and (2) constitute the intentional
infliction of emotional distress. Accordingly, the following facts, unless otherwise
noted, are undisputed.
The Plaintiff is an African American female employed by Defendant DDS, an
agency of the State of Connecticut within the meaning of C.G.S. 17a-210 et seq.
[Dkt. #43-1, Def. Rule 56 Stmt. ¶¶ 1,8]. The Plaintiff was hired in 1987 as a
Developmental Services Worker 1 (“DSW1”), and was promoted in 1989 to her
current position as a Developmental Services Worker 2 (“DSW2”). [Id. at ¶ 8].
Except for a one-year period during which her employment was terminated, the
Plaintiff worked at the DDS facility located on Wintergreen Avenue in Hamden,
until the facility closed in 2009. [Id.]. Throughout her employment, Plaintiff has
been a member of the bargaining unit covered by the contract between the State
of Connecticut and the New England Health Care Employees Union, District 1199
(“Union”). [Id. at ¶ 12].
A. The “MD” Incidents
Prior to her termination in 2006, Plaintiff was involved in two incidents
concerning a client identified as “MD,” who had a condition requiring that his
food be ground or finely chopped. The first incident occurred in 2002. [Dkt. #43-1,
Def. Rule 56 Stmt. at ¶ 15]. The Plaintiff and another DDS employee, Granger, who
is an African American male, were responsible for preparing MD’s food. [Id. at ¶¶
13, 16]. MD consumed meat that contained a bone, which became lodged in his
throat, requiring him to be hospitalized for choking. [Id. at ¶ 16]. A subsequent
investigation found neglect on the part of the Plaintiff and Granger, and the two
were suspended for five days. [Id. at ¶ 16]. However, an arbitrator reviewed the
suspension and determined that it was not for cause, and ordered that the
discipline be expunged from the employees’ records. [Dkt. #56-1, Pl. 56 Stmt. ¶
16]. After the incident, the DDS Occupational Therapy staff changed the
requirements for MD’s food consistency, and the Plaintiff and Granger were
informed of this change. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 16].
The second incident occurred in 2006, when the Plaintiff, Granger, and
Greene (an African-American DDS employee) were responsible for preparing
MD’s food. [Id. at ¶¶ 14, 17]. During their shift, MD obtained and consumed a
portion of spaghetti with whole meatballs. [Id. at ¶ 17]. One of the meatballs
became lodged in his throat, and he ultimately choked to death. [Id.]. All three
employees were placed on administrative leave pending an investigation. The
investigation revealed neglect on their part and all three employees were
terminated on December 22, 2006. [Id.]. The three employees subsequently
grieved their termination, and on November 15, 2007, an arbitrator issued an
award directing DDS to reinstate them and make them whole except for a thirtyday disciplinary suspension. [Id. at ¶ 18].
B. The December 7th, 2007 In-Service Training
Following their reinstatement, the Plaintiff, Granger, and Greene returned
to their prior positions at the Wintergreen Avenue facility, and were sent to New
Employee Training. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 19]. DDS policy requires that
all new employees attend training, including dysphagia (choking) training, within
30 days of employment. [Id. at ¶ 20]. DDS policy also requires that employees
returning after approximately one-year absences undergo retraining, known as
“in-service” training. [Id.]. A dysphagia retraining for Plaintiff, Granger, and
Green related to dysphagia in general, and the specific needs of the DDS’ clients
residing at the Wintergreen Avenue facility for whom they were responsible was
scheduled for December 7, 2007. [Id. at ¶22].
Plaintiff denies that three employees were scheduled for an in-service
training on December 7, 2007, but asserts that she received a phone call on
December 7 asking her to come in at 1:00pm to read and go over paperwork, and
neither Granger nor Greene were present. [Dkt. #56-1, Pl. 56 Stmt. ¶22]. Defendant
DDS asserts that Plaintiff did in fact attend an in-service training on December 7,
2007 related to the specific needs of six DDS clients at the Wintergreen Avenue
facility along with two other DDS employees, Ms. Brown and Ms. Miles. [Dkt#43-1,
Def. Rule 56 Stmt. ¶23]. Plaintiff denies that Brown and Miles participated in the
in-service training on December 7, 2007. [Dkt. #56-1, Pl. 56 Stmt. ¶23]. She claims
that these two employees were present only because it was their shift to work,
and she was the only one required to participate in the training. [Id.].
Defendant DDS asserts that Granger and Green, although originally
scheduled to attend, were ultimately unable to attend as Granger was out on
worker’s compensation and Green had scheduling conflicts with his private
sector employer. [Id. at ¶26]. As a result of these conflicts, Defendant reports that
Granger and Green received the same in-service training on February 28, 2008.
[Id. at ¶27]. Plaintiff admits that she is not aware of whether Granger and Green
were treated similarly to her following their reinstatement. [Dkt. #47-1, Pl’s. Dep.,
C. The December 12th, 2007 Training
Defendants contend that a dysphagia training was scheduled for December
12, 2007, but, due to low registration, the training was cancelled. [Dkt. #43-1, Def.
Rule 56 Stmt.¶28]. Defendants further contend that because Plaintiff was a late
add-on to the training and was not included on the class roster, she was not
notified of the cancellation by the training center. [Id.]. Plaintiff denies that a
dysphagia training was scheduled for December 12, 2007, asserting that she was
instructed to attend a training session as a ruse to harass her.
When she arrived in New Haven, two of the Defendant’s employees
informed her that there was no training scheduled. [Dkt. #56-1, Pl. 56 Stmt. ¶28].
Plaintiff asserts that the usual way to inform employees of a change in training
programs was to inform the supervisor through email, who in turn would inform
the employees. Plaintiff asserts that her supervisor never informed her of the
cancellation. [Id.] Further, Plaintiff alleges that the Defendant initially claimed that
the training was cancelled due to inclement weather and has since altered its
explanation to suggest that the training was cancelled due to low registration.
[Id.]. Although Plaintiff admits that the program supervisor could tell her which
trainings to attend, Plaintiff contends that the program supervisor discriminated
against her based on her race and color by telling her to attend a training when
none was scheduled thus contributing to the creation of a hostile work
environment. [Dkt. #43-1, Def. Rule 56 Stmt. ¶29].
D. Policy Regarding Meat with Bones
In the summer of 2008, Plaintiff alleges that she was harassed by Carmen
Douglas, a Hispanic man and one of Plaintiff’s supervisors, who chastised her for
violating a non-existent policy by purchasing meat with bones. [Pl. Depo., Exh. A,
94:12–25, 96:3–25, 97:1-9]. Plaintiff claims that Bernard McNair, a Developmental
Services Residential Program Supervisor 1 (“DSRPS1”) and an African American
male, called Plaintiff later and told her that Douglas did not know that the home
doesn’t purchase meat with bones in it, and that he would inform her about it. Id.
at 97:3–18; [Dkt. #56-1, Pl. 56 Stmt. ¶ 49]; [Dkt. #60 Def.’s Supp. 56 Stmt. ¶¶ 92–93
(providing general information about McNair)].
There was no DDS policy regarding the purchase of boneless meat,
although many group homes, for safety reasons, preferred to purchase boneless
meat. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 49]. In its supplemental statement,
Defendant DDS claims that Plaintiff called McNair excited over the incident
involving Douglas, and that McNair explained that there was no policy regarding
boneless meat, but that he would speak to Douglas. [Dkt. #60 Def.’s Supp. 56
Stmt. ¶ 105]. At the time of the incident, Douglas was a relatively new supervisor.
[Pl. Depo., Exh. A, 97: 19–22].
E. The Timesheet Incident
Plaintiff claims she was falsely accused of timesheet fraud and that the
Defendant’s investigation of the incident was aberrant. As a union delegate,
Plaintiff was entitled to attend contract negotiations during regular work hours
while being paid by DDS. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 35]. Plaintiff submitted a
timesheet stating that she was at a contract negotiations meeting on November
13, 2008. [Id.]. However, the Defendant claimed that her name was not listed on
the sign-in sheet Union officials gave to Mr. Gerald Daley (“Daley”), the DDS
Agency Personnel Director. [Id.]. Plaintiff contends that her name was on the
sign-in sheet originally, and appears to infer that since her name was
subsequently not on the sheet, her name was somehow removed. [Dkt. #56-1, Pl.
56 Stmt. ¶ 35]; [Pl. Depo., Exh. A, 274: 19–23.]
On or about November 14, 2008, Carl Richetelle, DDS Regional Residential
Manager, became aware of the alleged discrepancy in Plaintiff’s timesheet, and
sent her letter on December 2, 2008 requesting she attend a “fact-finding
meeting” on December 8, 2008. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 33]; [Richetelle
Aff., Exh. B., Attach. 10 (letter from Richetelle dated 12-2-08)]. At the fact finding
conducted by Ms. Green, Plaintiff appeared with Union representation and
indicated she had attended the November 13 negotiations and had signed the
sign-in sheet. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 36]. After the December 8th
meeting, and on request, the Union sent DDS a new sign-in sheet that contained
Plaintiff’s signature as the last name on the sign-in sheet indicating that Plaintiff
signed in at 9:30 am, following two signatures of employees who signed in at
10:00 am. [Id. at ¶ 37]. DDS then sent Plaintiff a follow-up letter indicating the
allegation that the Plaintiff misrepresented her time sheets was unsubstantiated.
[Green Aff. Exh. D, Attach. 11]. Plaintiff’s payroll was adjusted accordingly and no
disciplinary action was instituted. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 37].
Plaintiff does not dispute these facts, however Plaintiff argues that the
facts constituted harassment and asserts that the incident should be
characterized as the Defendant having accused her of payroll fraud. [Dkt. #56-1,
Pl. 56 Stmt. ¶33]. Plaintiff contends that the Defendant acted in bad faith because
it treated another employee with a timesheet discrepancy differently from
Plaintiff, and because it departed from its past practice of calling Plaintiff first in
order to clarify any questions regarding her attendance at a meeting or in-service
before initiating a formal fact-finding hearing or disciplinary proceeding. [Dkt.
#56-1, Pl. 56 Stmt. ¶ 40]. Plaintiff has introduced no DSS policy or other evidence
prescribing the manner in which such matters were routinely handled nor does
she state which supervisors handled the incidents or any particulars of the
incidents or the alleged offenders.
Defendant admits that the other employee had a similar payroll issue to
that of Plaintiff. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 39]. However, Defendant asserts
that both discrepancies were investigated. [Id.]. Given that all timesheets must be
countersigned by supervisors and rechecked by payroll officers, the Defendant
asserts that its actions were necessary to clarify any discrepancies, and that it
pursued the payroll fraud allegations in good faith given the information available
to it at the time. [Id. at ¶ 40]. Defendant does not claim that every official (or
supervisor) handled discrepancies in the same manner.
F. The Alleged Work Rules Violation Incident
Plaintiff contends that she was falsely accused of a work rules violation.
This incident arose out of an alleged complaint from a client’s family member
regarding a violation of DDS work rules by Plaintiff. [Dkt. #43-1, Def. Rule 56 Stmt.
¶ 41]. Plaintiff asserts that she was accused violating the rule against contacting
a parent by contacting a parent of a client at the 508 Wintergreen Home “and
telling that parent that don’t get involved with the group home not closing.” [Dkt.
#47, Dep. of Kenya Adams Martin, 159:13-17]. The Defendant claims it became
aware of such complaint, and that it therefore had to investigate the allegation, as
it does for all DDS employees. [Id.].
On May 18, 2009, there was an “investigatory meeting” where Richetelle
and Green spoke to Plaintiff and determined the allegation was not substantiated,
and subsequently sent Plaintiff a letter confirming that finding. [Id.]; [Richetelle
Aff., Exh. B, Attach. 13]. The Plaintiff maintains that DDS was acting in bad faith in
accusing her of the violation given that, as she alleges in her deposition
testimony, Green was unable to identify any parent having reported such a
violation on behalf of the Plaintiff. [Pl. Depo., Exh. A 160: 13–23]. Plaintiff
therefore “guess[ed]” that no parent made such an allegation. [Id. at 160: 21–23].
G. Inspection Incidents
Plaintiff claims she was subjected to surveillance to which others were not
subject. Under Richetelle’s supervision, DDS employee Malcolm Brinton
(“Brinton”) conducted periodic inspections on various group homes to ensure
that programs and practices were being implemented properly. [Dkt. #43-1, Def.
Rule 56 Stmt. ¶¶ 46–47]. On each visit, Brinton used a check-off form that listed
the names of staff on duty during the inspection. [Id. at ¶ 47]. Of the seven reports
regarding the Wintergreen Avenue location, Plaintiff’s name only appears on
three. [Id.] Brinton contends that monitoring was not done on any particular
schedule, and that no specific staff person was the object of his observations.
[Id.] However, Defendant DDS notes that Brinton would generally make his visits
during the second shift since most clients were home from their day programs on
this shift. [Dkt. #60 Def.’s Supp. 56 Stmt. ¶ 89].
H. Alleged Harassing Comments
Plaintiff claims she was falsely accused of misconduct on February 28,
2008, when Worsley, an Occupational Therapist Supervisor at DDS, noticed a
client whom she knew required line-of-sight supervision enter the kitchen and
attempt to lift the lid to a boiling pot of food. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 48].
Plaintiff claims Worsley, in the presence of Plaintiff’s coworkers, asked Plaintiff
who was the charge person was and accused Plaintiff of leaving a pot of bones
on the stove. [Dkt. #56-1, Pl. 56 Stmt. ¶ 48]. Worsley alleges that she called out
asking who was responsible for the unattended client, and denies shouting at
anyone or making harassing comments regarding Plaintiff cooking the clients’
meals with bones. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 48].
I. Alleged Comments by D’Haiti
Plaintiff claims she was the target of harassment by McNair. In particular,
Plaintiff alleges that fellow employee Pierre D’Haiti (“D’Haiti), an African American
male of Haitian ancestry, informed her that McNair, Residential Program
Supervisor, told D’Haiti and other employees to make Plaintiff’s “life as miserable
and … as hard as possible, [and] to do anything [they] could to upset [her] shift,
to upset [her].” [Pl. Depo., Exh. A 123: 8–22]. However, D’Haiti denied that such
statements were made. [Dkt. #60 Def.’s Supp. 56 Stmt. ¶ 82]. Plaintiff has not
identified any other person who allegedly heard the remark.
J. Incidents At Other Homes
Although Plaintiff admits that there were no other DDS employees of other
colors and races whose clients choked to death while under their supervision,
she summarily claims that there were DDS employees of other races who were
nonetheless similarly situated to her, and yet treated more favorably. [Dkt. #43-1,
Def. Rule 56 Stmt. ¶¶ 51, 55–58].
Plaintiff asserts that Justin Baldino (“Baldino”), Keith Sylvester
(“Sylvester”), and Eric Finilli (“Finilli”) are Caucasian employees who worked at
DDS’s transitional unit on Undercliff Road in Meriden. [Dkt. #43-1, Def. Rule 56
Stmt. ¶¶ 51, 53]. On January 1, 2006, a client for whom these employees were
responsible died of a heart attack as a result of a certain medical condition. [Id. at
¶¶ 52, 53]. The death was investigated by an independent state agency known as
the Office of Protection and Advocacy for Individuals with Disabilities. [Id. at ¶
53].The agency found no evidence of abuse or neglect on the part of the
employees, and no disciplinary action was taken. [Id.]. Since the death occurred
at a state facility, the state police also conducted an investigation. [Id.].
According to Plaintiff, the Meriden employees were similarly situated to
her, yet unlike Plaintiff, they were not disciplined for their client’s death. [Id. at ¶
51]. Plaintiff appears to assert that these employees were similarly situated to her
because a client for whom they were responsible for died while under their
supervision and because their employment responsibilities were essentially the
same as hers. [Id. at ¶ 51; [Dkt. #56-1, Pl. 56 Stmt. ¶ 54]. Plaintiff notes that
Baldino, Sylvester, and Finilli were either DSW1 or DSW2 workers, and that the
only difference between the positions was that DSW2 workers take additional
phone calls and fill out additional paper work. [Dkt. #56-1, Pl. 56 Stmt. ¶ 54].
However, Plaintiff did not have firsthand knowledge of the circumstances
of the Meriden client’s death. [Dkt. #43-1 Def. Rule 56 Stmt. ¶52]. She did not
know if the allegations of neglect against the Meriden employees were found to
be unsubstantiated (though she admitted that she, Greene, and Granger were
found to have been neglectful), and she did not know that the client actually died
of a heart attack. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 52]. Plaintiff knew that the
client’s death was termed accidental, and that the client was restrained by staff
just prior to his death. [Dkt. #56-1, Pl. 56 Stmt. ¶ 52].
Plaintiff claims there was another incident where similarly situated
Caucasian employees were not disciplined. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 55].
According to Plaintiff, a DDS client at the group home on Totocket Road in North
Branford choked on bones and was then hospitalized, yet the employees
responsible for the client, unlike Plaintiff, were not disciplined. [Id.]. Other than
the client’s initials (“KG”), Plaintiff does not present any further information about
the incident. [Dkt. #56-1, Pl. 56 Stmt. ¶ 55]. The Defendant indicates the North
Branford facility was under Richetelle’s supervision at various times, but he is
unaware of the incident, and with Plaintiff being unable to identify the client
further, DDS is unable to investigate whether or not the incident occurred. [Dkt.
#43-1, Def. Rule 56 Stmt. ¶ 55]. Plaintiff failed to provide any additional evidence
to support this claim. [Id.].
Plaintiff also claims that an employee at the North High Street facility,
whom she identified as “Bill,” was not disciplined even though for an entire day,
on an unspecified date, he did not give medications to the clients for whom he
was responsible. [Id. at ¶ 57]. However, because the allegation is vague,
Richetelle is unaware of this incident and DDS is unable to investigate whether or
not this occurred. [Id.]. Plaintiff has failed to provide any additional evidence to
support this claim. [Id.].
Plaintiff identifies Victoria Hayes (“Hayes”) as another individual similarly
situated to Plaintiff. In support of this characterization Plaintiff states summarily
that they both worked at the Wintergreen Avenue location and had the same
supervisor, Mason, a Black female. [Dkt. #43-1, Def. Rule. 56 Stmt. ¶ 58]. However,
Plaintiff and Hayes work on different shifts. [Id.]. Plaintiff alleges that Hayes
received more favorable treatment after she was not disciplined for allegedly
giving out wrong medications to a client. [Id.] Richetelle is aware that Hayes is
Caucasian, and that she worked at Wintergreen Avenue, and reports, to the best
of his knowledge, that Hayes has undergone counseling for errors in giving out
medications, as reflected in her yearly performance reviews. [Id.]. Plaintiff has no
first-hand knowledge of whether Hayes was disciplined, and admits that she has
not reviewed Hayes’s file. [Id.].
In general, Defendant DDS claims it has no knowledge of anyone
harassing, discriminating, retaliating, or intimidating the Plaintiff or creating a
hostile work environment for her after her reinstatement or at any other time
during her employment. [Dkt. #43-1, Def. Rule 56 Stmt. ¶ 30]. DDS is not aware of
Plaintiff filing any internal complaints regarding harassment, hostile work
environment or discrimination prior to filing her CHRO complaint. [Id. at ¶ 60].
Further, Defendant points out that the Plaintiff had received “good” performance
on each of her Performance Appraisals from September 2007, 2008, and 2009,
and that based on her appraisals, and in accordance with the Collective
Bargaining Agreement (“CBA”) between the State and the Union, she received all
raises to which she was entitled. [Dkt. #60 Def.’s Supp. 56 Stmt. ¶¶ 85–86].
Plaintiff received raises in 2007, 2008, and 2011. [Id. at ¶ 87].
Additionally, Defendant DDS points out that DDS Human Resources is not
aware of any complaints by Plaintiff alleging such conduct by the Defendant. [Id.
at ¶ 50]. Green’s office usually receives such complaints, and the only complaint
by Plaintiff of which Green is aware is the November 3, 2008 complaint filed by
Plaintiff with the CHRO, which Plaintiff admits does not raise a claim based on
national origin, and the present suit. [Id. at ¶¶ 50, 69]. However, the Plaintiff
claims that she filed grievances with the state regarding the treatment she
received after her reinstatement related to the December 7th and December 12th
2007 trainings. [Dkt. #56-1, Pl. 56 Stmt. ¶ 30].
Although the Plaintiff cannot deny that no disciplinary actions were taken
against her since her reinstatement, [Id. at ¶¶ 42–44], she argues that the letters
accusing her of payroll fraud and the allegations of work rule violations have
become part of her employment file, and could therefore hinder her chances for
promotion although the payroll fraud investigation ended in her exoneration and
she did not introduce her employment file and thus there are no derogatory
employment file entries in the record. [Dkt. #56-1, Pl. 56 Stmt. ¶ 42]. However, the
Defendant does not deny that reports of some incidents are in her file.
Standard of Review
“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 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, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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)]. In addition, ‘[a] party opposing summary judgment
cannot defeat the motion by relying on the allegations in his pleading, or on
conclusory statements, or on mere assertions that affidavits supporting the
motion are not credible. At the summary judgment stage of the proceeding,
Plaintiffs are required to present admissible evidence in support of their
allegations; allegations alone, without evidence to back them up, are not
sufficient.’ [Welch–Rubin v. Sandals Corp., No.3:03cv481, 2004 WL 2472280, at *1
(D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez
v. State of Connecticut, No. 3:09civ1341(VLB), 2011 WL 4396704 at *6 (D. Conn.
Sept. 21, 2011)]. Where there is no evidence upon which a jury could properly
proceed to find a verdict for the party producing it and upon whom the onus of
proof is imposed, such as where the evidence offered consists of conclusory
assertions without further support in the record, summary judgment may lie.
Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
A. Title VII Disparate Treatment Claim
“Under Title VII, Plaintiff's claims of discriminatory treatment are analyzed
using the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). The McDonnell Douglas standard requires that
Plaintiff establish a prima facie case of discrimination by showing that (1) she is
part of a protected class; (2) that she was qualified for her position; (3) that she
suffered an adverse employment action and (4) that the circumstances
surrounding the employment action give rise to an inference of discrimination. Id.
The Second Circuit has noted that the burden to establish a prim facie case is
‘minimal’ or ‘de minimis.’ Woodman v. WWOR–TV, Inc., 411 F.3d 69, 76 (2d
“If Plaintiff can establish a prima facie case, the burden shifts to the
Defendant to proffer a legitimate, nondiscriminatory reason for the adverse
employment action. McDonnell, 411 U.S. at 802. As this stage, Defendants need
only proffer, not prove, the existence of a nondiscriminatory reason for their
employment decision. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
254–55, (1981). “This burden is one of production, not persuasion, it can involve
no credibility assessment.” Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 142, 120 S.Ct. 2097 (2000) (internal quotations omitted).
“If Defendant meets its burden of production, the burden shifts back to
Plaintiff to show that the legitimate, nondiscriminatory reason offered by the
Defendant is mere pretext for illegal employment discrimination. McDonnell, 411
U.S. at 804. “Although the intermediate evidentiary burdens shift back and forth
under this framework, the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Reeves, 530 U.S. at 143.
B. Membership in Protected Class and Qualification for Position
The parties agree that Plaintiff satisfies prongs (1) and (2) of her prima facie
case. The Plaintiff is African-American, and is therefore a member of a protected
class, and the Defendant does not claim Plaintiff was unqualified for her position.
[Dkt. # 46, Mem. in Support of Def.’s Motion for Summary Judgment at 16, 20];
[Dkt. # 57 Mem. in Support of Pl.’s Objection to Def.’s Motion for Summary
Judgment at 7–8].
C. Adverse Employment Action
The Plaintiff contends that her subjection to fact-finding meetings and the
placement of memos in her employment file accusing her of payroll fraud and
DDS rule violations constitute adverse employment actions as they may hinder
her chances for promotion. [Dkt. # 57 Memorandum of Law in Support of
Plaintiff’s Objection to Defendant’s Motion for Summary Judgment at 8]; [Dkt.
#56-1, Pl. 56 Stmt. ¶ 41–42]. Although Plaintiff admitted in her 26(a)(2) Statement
that only one document was in fact placed in her employment file, in her
deposition, Plaintiff states that she “was told that [the letters] were going into
[her personnel] file,” but that she did not know if they were in her permanent file.
[Dkt. #47-1, Pl. Dep. 311:1-12]. Defendant does not contest that the memos were
placed in Plaintiff’s file.
The Defendant contends that Plaintiff has not suffered an adverse
employment action, emphasizing that Plaintiff admits she has not been
disciplined since her reinstatement. Rather, the Defendant points out that the
Plaintiff has not applied for a promotion, that she has received “Good”
performance evaluations since her reinstatement, and that she has received all
raises to which she was entitled.
An adverse employment action is a “materially adverse change in the terms
and conditions of employment,” such as termination, demotion, material loss of
benefits, and significantly reduced job responsibilities. Gibson v. State of
Connecticut Judicial Dep't Court Support Services Div., No. 3:05-cv-1396 (JCH),
2007 WL 1238026 at *4 (D.Conn. April 25, 2007) (citing Demoret v. Zegarelli, 451
F.3d 140, 151 (2d Cir.2006)). “Reprimands, threats of disciplinary action and
excessive scrutiny do not constitute adverse employment actions in the absence
of other negative results such as a decrease in pay or being placed on
probation.” Abraham v. Potter, 494 F. Supp. 2d 141, 148 (D. Conn. 2007).
Therefore, allegedly unfair or excessive monitoring, even when accompanied by
verbal reprimands, is not an adverse employment action without accompanying
negative results. Bennet v. Watson Wyatt & Co., 136 F.Supp.2d 236, 248 (S.D.N.Y.
2001) (holding that no adverse employment action occurred where plaintiff was
unfairly scrutinized and reprimanded for tardiness, when monitoring and
reprimands did not result in decrease in pay, probation, or other negative
consequence). In addition, being required to attend disciplinary meetings with
supervisors, in the absence of any tangible consequence, does not constitute an
adverse employment action. Gear v. Department of Education, No. 07 Civ. 11102
(NRB), 2011 WL 1362093 at *3 (SDNY 2011) (holding that plaintiff’s being
summoned to disciplinary hearings with supervisors, being required to ask
permission to leave classroom, being laterally transferred to different
classrooms, and working with teachers with whom she had interpersonal
conflicts did not materially change the terms and conditions of her employment).
Negative evaluations, without tangible consequences on employment
conditions, such as demotion, suspension, or loss of wages, are not adverse
employment actions. See Valentine v. Standard & Poor's, 50 F.Supp.2d 262
(S.D.N.Y. 1999), aff’d 205 F.3d. 1327 (2d. Cir. 2000) (holding that negative
performance reviews, without evidence of negative consequences flowing from
such reviews, are not adverse employment actions); see also Bennet v. Watson
Wyatt & Co., 136 F.Supp.2d 236 (S.D.N.Y. 2001) (“Courts have held that negative
evaluations, standing alone without any accompanying adverse results, are not
cognizable.”). The court in Valentine described the necessary harmful
consequences as “immediate,” stating that since “plaintiff's negative reviews did
not lead to any immediate tangible harm or consequences, they do not constitute
adverse actions materially altering the conditions of his employment.” Valentine,
50 F.Supp.2d at 284 (emphasis added).
Additionally, the Second Circuit has held that disciplinary notices do not
constitute adverse employment actions without accompanying consequences to
the employee’s working conditions. In Weeks v. New York State (Div. of Parole),
273 F.3d 76, 86 (2d Cir.2001), the court held that a “notice of discipline” for
misconduct and incompetence did not create a material change in the plaintiff’s
employment conditions. The court emphasized that the plaintiff “[did] not
describe [the notice’s] effect or ramifications, how or why the effect would be
serious, whether it went into any file, or even whether it was in writing.” [Id.].
At first glance, the language in Weeks could be read to suggest that if the
plaintiff had shown the notice was in writing and placed in her file, it might have
constituted an adverse employment action. Yet, several district courts within the
Second Circuit have held that disciplinary letters or written reprimands, even
when placed in an employee’s personnel file, are not adverse employment
actions absent some present, tangible effect on the employee’s terms of
employment. See Cristofaro v. Lake Shore Central School District, No. 06-CV0487S, 2011 WL 635263 at *10 (W.D.N.Y. Feb. 11, 2011) (“[c]ourts have held that
disciplinary write-ups, whether placed in a personnel file or not, which are not
accompanied by any adverse change in the terms and conditions of her
employment do not amount to an adverse employment action”); Shabat v. Blue
Cross Blue Shield of Rochester, 925 F. Supp. 977, 989 (W.D.N.Y. 1996) (holding
that placement of reports in plaintiff’s personnel file was too inconsequential to
constitute an adverse employment action given that plaintiff was never demoted,
or denied pay or benefits because of the reports); O’Hazo v. Bristol-Burlington
Health District, 599 F.Supp.2d. 242, 248, 258 (D. Conn. 2009) (written reprimand
for failure to check shipment list regarding shellfish, which resulted in a patron
becoming sick after consuming shellfish, was not an adverse employment action
without a showing that the reprimand changed the terms or conditions of
In Henton v. City of New London, No. 3:06 CV 2035(EBB), 2008 WL 2185933
at *12 (D. Conn. May 23, 2008), the court held that even the combination of being
approached for tardiness, being subjected to a disciplinary hearing, and receiving
a written reprimand, all within the same month, was not enough to constitute
adverse employment action. The Plaintiff had not shown that these actions had
changed the terms of his employment. Although he alleged such actions “created
serious doubt as to his future with the defendant,” he had not presented evidence
supporting his claim that these actions put his position in jeopardy. [Id. (internal
There are, however, some district court cases that appear to hold that
disciplinary letters in an employee’s file may constitute adverse employment
actions in light of their effect on the employee’s future job prospects. In Punsal v.
Mount Sinai Services of Mount Sinai School of Medicine of New York, No.
01Civ.5410(CBM), 2004 WL 736892 at *9 (S.D.N.Y. Apr. 6, 2004), the court held that
two memoranda, one alleging that plaintiff failed to inform her superior that a
newly hired employee did not report to work, and another ordering her to
discontinue lunch overtime constituted adverse employment actions. The court
noted that the letters would likely become part of plaintiff’s employment file, and
because they could hurt her chances for future employment, they constituted
adverse employment actions. Id. at *9. Although the plaintiff alleged
discrimination claims under the Age Discrimination in Employment Act (“ADEA”),
ADEA claims are analyzed under the McDonnell Douglas framework used for Title
VII race discrimination claims and the cases the court cites as support for its
holding are Title VII retaliation cases. See id. at 7, 9; Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 464 (2d. Cir. 1997) (“We approach Wanamaker's agebased retaliatory discharge claim in the same way as retaliation claims under
Title VII of the Civil Rights Act of 1964”).
Although Title VII retaliation claims and disparate treatment claims both
require a plaintiff to suffer adverse employment action, the Supreme Court has
broadened the scope of what constitutes adverse employment action for
retaliation claims. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 2405 (2006); Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (holding that
suspension, investigation, reinstatement and post-disciplinary process
reassignment of employee could constitute deterrence to engage in protected
activity thus constituting an adverse employment action). Unlike plaintiffs in Title
VII discrimination claims, plaintiffs in retaliation claims need not show that such
action affected the terms or conditions of their employment. See Hicks, 593 F.3d
at 164. To prove adverse employment action for purposes of a retaliation claim,
plaintiff need only show that the “employer actions . . . would have been
materially adverse to a reasonable employee or job applicant.” White, 548 U.S. at
2405; Hicks, 593 F.3d at 164.
However, the Plaintiff has not asserted a retaliation claim. [Dkt. #25, Amended
Complaint, Ex. 1, CHRO Complaint] (Plaintiff did not check the box indicating the
intent to pursue a retaliation claim before the CHRO and she has therefore not
obtained a right to sue letter for a retaliation claim).
Based on the foregoing analysis, Plaintiff has failed to establish that she
sustained an adverse employment action under Title VII on the basis of race or
color discrimination. Plaintiff’s required attendance at a fact-finding meeting
does not constitute an adverse employment action. A disciplinary meeting,
without any further consequence, is not a material change in the terms and
conditions of employment. See Gear, 2011 WL 1362093 at *3. Moreover, even if
the disciplinary letters which Plaintiff believes were placed in her personnel file
were actually placed in her file, Plaintiff has not demonstrated that she has
suffered any tangible harm as a result. A disciplinary letter does not constitute
adverse employment action in a Title VII discrimination claim without some
tangible consequence, and Plaintiff admits she was never disciplined since her
reinstatement. See Cristofaro, WL 635263 at *10; Shabat, 925 F. Supp. At 989;
O’Hazo, 599 F.Supp.2d. at 248, 258.
Lastly, to the extent that Plaintiff argues that the alleged extra trainings and
special monitoring were adverse employment actions, they also fall short of the
standard for materially adverse employment actions. As Plaintiff admits,
retraining was a constant part of her employment, so extra training cannot be
said to effect a material change in the terms and circumstances of her
employment. [See Dkt. #43-1, Def. Rule 56 Stmt. ¶ 65]. Additionally, excessive
monitoring does not constitute adverse employment action. See Bennet, 136
F.Supp.2d at 248.
D. Inference of Discrimination
Even assuming Plaintiff suffered an adverse employment action, she has
failed to demonstrate that the circumstances surrounding the alleged adverse
employment action gave rise to an inference of racial discrimination. A plaintiff
may demonstrate such inference by showing that her employer treated her less
favorably than similarly situated employees who are outside the plaintiff’s
protected class. Desir v. City of New York, No. 10–3815–cv, 2011 WL 5176178 at *2
(2d Cir. November 02, 2011). “An employee is similarly situated to co-employees
if they were (1) subject to the same performance evaluation and discipline
standards and (2) engaged in comparable conduct.” Id. at *2 (quoting Ruiz v.
Cnty. of Rockland, 609 F.3d 486, 493–94 (2d Cir.2010)). Comparable conduct
requires “a reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases, rather than a showing that both cases are
identical.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000).
Plaintiff alleges several instances in which she contends that similarly
situated employees of different races who principally worked for different
supervisors at different locations and having different titles received more
favorable treatment. Although Defendant apparently does not contest that those
employees were subject to the same evaluation and disciplinary standards,
Defendant argues they were not engaged in comparable conduct.
Plaintiff alleges that three Caucasian employees at a DDS Transitional Unit
in Meriden were similarly situated, having essentially the same employment
responsibilities as Plaintiff, and received favorable treatment when they were not
subjected to disciplinary action after their client died while under their
supervision. [Dkt. #56-1, Pl. 56 Stmt. ¶¶ 51, 54; Dkt. #43-1, Def. Rule 56 Stmt. ¶ 51].
However, Plaintiff ignores several important distinctions. The Caucasian
employees’ client died of a heart attack as the result of a medical condition,
whereas the client for whom Plaintiff was responsible died from choking on
contraband. [Dkt. #43-1, Def. Rule 56 Stmt. ¶¶ 52, 53; Dkt. #43-1, Def. Rule 56 Stmt.
¶ 17]. Additionally, while Plaintiff, Granger, and Greene were terminated from
employment based on a finding of neglect, the Meriden employees were
investigated by an independent state agency that found no evidence of neglect.
[Dkt. #43-1, Def. Rule 56 Stmt. ¶¶ 17, 53]. Although the finding of neglect on the
part of Plaintiff and her colleagues was subsequently held unsubstantiated, the
finding of neglect, which Plaintiff does not claim was in bad faith, existed at the
time the employees were terminated. The finding of neglect and the
circumstances of the client’s death make the character of Plaintiff’s conduct
sufficiently different from the conduct of the Meriden employees. [See id. at ¶ 18].
The Meriden employees are therefore not similarly situated to Plaintiff as there
conduct was not of “comparable seriousness.” Graham, 230 F.3d at 40.
Moreover, Plaintiff claims she was harassed after she returned to work after her
suspension following the choking incident.
Plaintiff presents several speculative and unsubstantiated allegations of
similarly-situated employees receiving favorable treatment. Plaintiff argues that
Hayes, a Caucasian employee who worked at the Wintergreen home under the
same supervisor, was similarly situated to Plaintiff, yet treated more favorably
when he was not disciplined after allegedly dispensing the wrong medication to a
client. [Dkt. #43-1, Def. Rule 56 Stmt. ¶¶ 58–59]. However, Plaintiff does not have
first-hand knowledge of whether Hayes was disciplined, and she has testified that
she has not reviewed Hayes’s file. [Id. at 59]. Plaintiff also alleges that several
DDS employees at a group home in North Branford were not subjected to
discipline after a client choked on bones and was hospitalized. [Id. at ¶ 55]. Other
than the client’s initials (“KG”), however, Plaintiff offers no further information
about the incident. [Dkt. #56-1, Pl. 56 Stmt. ¶ 55]. Plaintiff further alleges that an
employee at the North High Street facility, whom she identified as “Bill,” was not
disciplined even though for an entire day he did not give medications to the
clients for whom he was responsible. [Id. at ¶ 57]. Plaintiff’s unsubstantiated
conclusory allegations regarding Hayes, “KG” and “Bill” fall far short of the
standard for establishing an inference of discrimination on the basis of favorable
treatment afforded to similarly-situated employees. See Shumway v. United
Parcel Service, 118 F.3d 60, 65 (2d Cir. 1997) (holding that plaintiffs “conclusory
statements of no probative value” regarding allegedly similarly situated
employees were “unsupported by admissible evidence” and therefore did not
raise a genuine issue of material fact).
The incidents that Plaintiff alleges occurred after her reinstatement also fail
to demonstrate an inference of racial discrimination. With respect to the
timesheet incident in which Plaintiff allegedly was subjected to harsher treatment
than another employee with a similar timesheet discrepancy, Plaintiff fails to
identify the race of this other employee. [Dkt. #56-1, Pl. 56 Stmt. ¶ 40]. Since
Plaintiff has failed to establish that this employee was not in Plaintiff’s protected
class, she has failed to establish that a finder of fact could conclude that the
employee is similarly situated and that Plaintiff was subjected to disparate
treatment with respect to the timesheet incident.
All remaining incidents cited by Plaintiff also fail to give rise to an inference
of racially-motivated mistreatment. With respect to these incidents, Plaintiff offers
no evidence demonstrating that similarly-situated workers of different races
received favorable treatment. In addition, such incidents lack any racial
overtones, and although Plaintiff had several African-American colleagues, she
offers no evidence that any of them were treated discriminatorily, and in fact,
strives to distinguish her situation from even her African-American coworkers.
[See Dkt. #43-1, Def. Rule 56 Stmt. ¶31 (admitting Brown, Miles, Granger, and
Greene are African-American without claiming they were treated discriminatorily);
¶4 (admitting Green is African American); ¶ 6 (admitting Worsley is AfricanAmerican); Dkt. #60 Def.’s Supp. 56 Stmt. ¶ 100 (admitting McNair is AfricanAmerican)]; See Dkt. #56-1, Pl. 56 Stmt. ¶¶ 22, 23 (arguing that African-American
coworkers not required to attend training Plaintiff was required to attend)]. This
further weakens her argument that her alleged disparate treatment was based on
Plaintiff alleges that Carmen Douglas, a Hispanic American and one of
Plaintiff’s supervisors, treated her discriminatorily when Douglas purchased meat
with bones and gave it to Plaintiff to prepare for the clients, allegedly knowing the
home only cooked boneless meat. [Pl. Depo., Exh. A, 94:12–25, 96:3–25, 97:1-9].
However this incident is wholly devoid of any racial overtones nor does Plaintiff
offer evidence that other African-American employees suffered similar treatment,
even though several of her colleagues were African-American. [See id.; Dkt. #431, Def. Rule 56 Stmt. ¶¶ 4, 6, 31; Dkt. #60 Def.’s Supp. 56 Stmt. ¶ 100]. This further
undermines an inference that Plaintiff’s treatment was racially motivated. See
Bernard v. JP Morgan Chase Bank NA, 408 Fed.Appx. 465, 468–69 (2d. Cir. 2011)
(holding that plaintiff failed prove inference of discrimination based on gender,
noting that although half of employees with plaintiff’s job title female, she offered
no evidence of discrimination involving any of those female employees).
Allegations that DDS employee Brinton was hired to scrutinize Plaintiff’s
work also fail to give rise to an inference of racial discrimination. Although
Brinton would generally make his visits on second shift, his Wintergreen Avenue
reports demonstrate that Plaintiff was present on only 3 of his 7 visits. [Dkt. #60
Def.’s Supp. 56 Stmt. ¶ 89 Dkt. #43-1; Def. Rule 56 Stmt. ¶¶ 46–47]. Additionally,
Brinton visited homes other than the Wintergreen home on various occasions.
[Dkt. #60 Def.’s Supp. 56 Stmt. ¶ 90; Exh. G, Attachment 17]. Plaintiff has offered
no evidence therefore suggesting that Brinton was monitoring her in particular.
Even if he was monitoring Plaintiff, there is no evidence demonstrating that the
extra monitoring was motivated by her color or race.
Plaintiff also argues that she was singled out to participate in the
December 7th in-service training, emphasizing that Granger and Greene, who are
also African American, did not attend. Moreover, she argues that Brown and Miles
were merely in attendance because it was their shift to work and they did not
participate in the in-service training. [See Dkt. #56-1, Pl. 56 Stmt. ¶¶ 22, 23].
Plaintiff’s efforts to distinguish her treatment from the treatment of other AfricanAmerican employees undermines rather than supports her argument that she was
treated differently on the basis of her race. Plaintiff’s claim is further undermined
by the fact that the in-training instructor was also African-American. [See Dkt.
#43-1, Def. Rule 56 Stmt. ¶ 6].
Plaintiff maintains that she was treated discriminatorily when she was
required to attend a fact-finding hearing for an alleged work rule violation.
However, Plaintiff presents no evidence indicating a racial motivation nor does
she identify any particular similarly-situated employees of other races who were
treated more favorably. Accordingly, there is insufficient evidence to give rise to
an inference of racial discrimination. See Shumway, 118 F.3d at 65.
Lastly, Plaintiff’s assertion that harassing comments were made towards
her contain no factual allegations to support an inference of racially-motivated
bias. Plaintiff’s allegation that Worsely accused Plaintiff in front of her coworkers
of leaving a pot of bones on the stove contained no reference to any racial
overtones or animus. [See Dkt. #43-1, Def. Rule 56 Stmt. ¶ 48; Dkt. #56-1, Pl. 56
Stmt. ¶ 48]. Plaintiff’s allegation that D’Haiti, an African American male of Haitian
ancestry, informed Plaintiff that McNair told him and others to make Plaintiff’s
“life as miserable and … as hard as possible, [and] to do anything [they] could to
upset [her] shift, to upset [her]) is similarly devoid of any factual basis from which
the Court could infer discriminatory intent. [Pl. Depo., Exh. A 123: 8–22]. Although
D’Haiti’s refutation of this allegation creates a factual dispute in the record, this
dispute does not preclude the Court from granting summary judgment where the
remarks, even when accepted as true, provide only “a ‘scintilla’ in light of their
offhand, conclusory nature and the lack of further support in the record,” for
Plaintiff’s assertion. Fincher v. Depository Trust & Clearing Co., 604 F.3d 712, 727
(2d Cir. 2010) (accepting plaintiff’s account of a conversation as true and holding
that the “remarks do not provide an adequate evidentiary basis for the denial of
the motion for summary judgment.”) Accordingly, these conclusory allegations
are insufficient to withstand summary judgment. See Shumway, 118 F.3d at 65.
E. Legitimate Non-Discriminatory Reason
Even if Plaintiff had successfully alleged her prima facie case, Defendant
has offered legitimate, nondiscriminatory reasons for it actions. Once Defendant
offers such reasons, the court may not engage in a credibility assessment.
Defendant’s burden at this stage is one of production, not of persuasion. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000).
Defendant has offered a legitimate non-discriminatory reason for requiring
Plaintiff to attend the December 7th in-service training. Defendant contends that
changes to clients’ seating and dining guidelines had recently been made,
requiring all staff to be retrained. Plaintiff admits that could not resume her duties
following reinstatement until she received all necessary training. [Dkt. #43-1, Def.
Rule 56 Stmt. ¶ 20, 24]. Therefore Plaintiff has conceded that as a necessary
training, the Defendant’s had a legitimate non-discriminatory reason for requiring
Defendant has also offered a legitimate non-discriminatory reason for
requiring Plaintiff to attend the training on December 12th which was ultimately
cancelled. Defendant explains that the training was cancelled due to low
registration and Plaintiff, as a late add-on to training, was not included on the
roster and thus was not notified of the cancellation. [Dkt. #43-1, Def. Rule 56 Stmt.
¶ 28]. Defendant further contends that Plaintiff was paid for the time of the
scheduled meeting. [Dkt. #60 Def.’s Supp. 56 Stmt. ¶ 100].
Regarding Plaintiff’s allegation that Douglas purchased meat with bones
for Plaintiff to prepare for the clients, allegedly knowing that the home served
only boneless meat, Defendant explains that although many homes preferred to
purchase boneless meat, there was no DDS policy requiring boneless meat. [Dkt.
#43-1, Def. Rule 56 Stmt. ¶ 49]. Defendants allege that McNair explained this to
Plaintiff, and told her that he would speak to Douglas about it. [Dkt. #60 Def.’s
Supp. 56 Stmt. ¶ 105].
Plaintiff also alleges that she was treated discriminatorily with respect to
the alleged timesheet discrepancy. [Dkt. #56-1, Pl. 56 Stmt. ¶ 40]. However,
Defendant indicates that the absence of Plaintiff’s name on the sign-in sheet
required clarification, and Defendant purports that it acted in good faith given the
information available. [Id.]. Further, Defendant reports that once Defendant
determined that there was no misrepresentation, Plaintiff’s payroll was adjusted
and no disciplinary action was instituted. [Green Aff. Exh. D, Attach. 11].
With respect to the investigatory meeting where Plaintiff was questioned
regarding an alleged work rules violation, Defendant maintains that when it
became aware of a complaint that Plaintiff violated a work rule, it had to
investigate the allegation, as it does for all DDS employees. [Dkt. #43-1, Def. Rule
56 Stmt. ¶ 41].
As discussed earlier, in response to Plaintiff’s claim that Brinton was hired
to monitor her, Defendant explains that Brinton conducted periodic inspections
on various group homes to ensure programs and practices were being
implemented properly. [Dkt. #43-1, Def. Rule 56 Stmt. ¶¶ 46–47]. Although he did
tend to visit the Wintergreen home on second shift, he did so only because this
was the time most clients were home from their day programs. [Dkt. #60 Def.’s
Supp. 56 Stmt. ¶ 89].
Plaintiff also claims that Worsley accused Plaintiff of leaving a pot of bones
on the stove. [Dkt. #56-1, Pl. 56 Stmt. ¶ 48]. However, Defendant explains that
Worsely noticed a client who required line-of-sight supervision enter the kitchen
and attempt to lift the lid of a boiling pot of food. She asked who was responsible
for the client, out of concern for the client’s safety. [Dkt. #43-1, Def. Rule 56 Stmt.
Assuming arguendo that Plaintiff was able to allege a materially adverse
employment action, because the Defendant has sustained its burden of offering
legitimate non-discriminatory reasons for the treatment, applying the burden
shifting test set forth in McDonnell Douglas, Plaintiff would be required to
demonstrate that the Defendant’s proffered reasons are pretextual. McDonnell,
411 U.S. at 804. Pretext can be established “either directly by showing ‘that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.’”
Johnson v. Conn., No. 3:10cv0175, 2011 WL 2947036, at *56 (D. Conn. July 20,
2011) (citing Weiss v. JP Morgan Chase & Co., 332 F. App’x. 659, 661 (2d Cir.
In order to rebut the Defendant’s purported legitimate non-discriminatory
reasons, it appears that Plaintiff relies on her prima facie evidence, arguing that
since other employees of different races were not disciplined or required to
attend fact-finding meetings, the real reason for Defendant’s actions must be
Based on the aforementioned reasoning, Plaintiff has failed to demonstrate
an inference of discrimination, and therefore cannot rely on the same evidence to
establish that the Defendant’s purported legitimate non-discriminatory reasons
are mere pretext.
Accordingly, Plaintiff’s disparate treatment claims fail to withstand
summary judgment, as Plaintiff’ allegations that she was singled-out to receive
extra trainings and had unfavorable letters placed in her employment file do not
constitute materially adverse employment actions. Further, Plaintiff has failed to
set forth evidence to allow an inference of discrimination, or to establish that the
Defendant’s proffered legitimate non-discriminatory reasons were merely
pretextual. Falling far short of the prima facie case required under McDonnell
Douglas, summary judgment is granted as to Plaintiff’s disparate treatment claim.
G. Hostile Work Environment Claim
The thrust of the Plaintiff’s complaint may well be a claim for hostile work
environment on the basis of her race and color. This claim is also unavailing.
Under Title VII, it is unlawful for an employer to subject an employee to a
discriminatorily hostile work environment. Harris v. Forklift Sys. Inc., 510 U.S. 17,
21 (1993). To prove her work environment was hostile, Plaintiff must show that
“(1) she subjectively perceive[d] the environment to be abusive, (2) the conduct
was so severe or pervasive that it created an objectively hostile or abusive work
environment, meaning an environment that a reasonable person would find
hostile or abusive, and (3) the conduct created an environment abusive to
employees because of their race, gender, religion, or national origin.” Plaintiff’s
work environment must be “permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment.” Harris, 510
U.S. at 21–22.
There is no precise test to determine whether Plaintiff’s workplace is
sufficiently hostile. Rather, the court must take into account the totality of the
circumstances, which may include “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's
work performance.” Id. at 23; Williams v. Westchester, 171 F.3d 98, 100 (2d Cir.
1999) (citing Harris, 510 U.S. at 23). The court must view all factors cumulatively,
evaluating the quantity, frequency, and severity of discriminatory incidents.
Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997).
Although Plaintiff may use incidents that are facially race-neutral, she must
demonstrate a basis from which a reasonable fact finder could infer that those
neutral incidents were in fact racially motivated. Alfano v. Costello, 294 F.3d 365,
375, 377 (2d. Cir. 2002). As the Second Circuit has cautioned, “[e]veryone can be
characterized by sex, race, ethnicity, or (real or perceived) disability; and many
bosses are harsh, unjust, and rude. It is therefore important in hostile work
environment cases to exclude from consideration personnel decisions that lack a
linkage or correlation to the claimed ground of discrimination. Otherwise, the
federal courts will become a court of personnel appeals.” Id. at 377.
Even assuming Plaintiff’s factual allegations to be true, Plaintiff has not
sustained her burden to establish a hostile work environment. Assuming Plaintiff
meets the subjective element of the test, she clearly has failed to demonstrate
that her workplace was sufficiently severe and that it created an environment that
was abusive on the basis of race.
Plaintiff has failed to demonstrate that her workplace was “permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive
working environment.” [Harris, 510 U.S. at 21–22]. According to the parties’ Local
Rule 56 statements, Plaintiff alleges eight incidents that she believes were racially
discriminatory, occurring over a period of approximately three and a half years.
[Dkt. #56-1, Pl. 56 Stmt. ¶ 22 (December 7th In-Service); ¶ 28 (December 12th
Training); ¶ 49 (Meat With Bones Incident); ¶ 40 (Timesheet Incident); Pl. Depo.,
Exh. A 160: 13–23 (Work Rules Incident); Dkt. #43-1, Def. Rule 56 Stmt. ¶¶ 46–47
(Inspection Incident); Dkt. #56-1, Pl. 56 Stmt. ¶ 48 (Comments by Worlsey); Pl.
Depo., Exh. A 123: 8–22 (Comments by D’Haiti)]. Other than the December 7th and
December 12th trainings, which occurred in the same month, the closest gap
between incidents was over five months. These incidents were not sufficiently
pervasive to create a hostile work environment. See Miller v. Praxair, Inc., 408
Fed.Appx. 408, 411 (2d Cir. 2010) (“for a hostile work environment to exist, the
offending ‘incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.’ ”) (citing Alfano, 294
F.3d at 374); see also Shabat v. Blue Cross Blue Shield of Rochester, 925 F. Supp.
977, 983 (W.D.N.Y. 1996) (holding that incidents could hardly “permeate”
plaintiff’s workplace where they were far from regular occurrences, most of them
separated by a month or more); Celestine v. Petroleos de Venezuella SA, 266 F.3d
343, 354 (5th Circuit 2001) (holding that eight incidents of racial harassment over
a twenty-five month period were not sufficiently severe or pervasive to create a
hostile work environment).
Moreover, Plaintiff has failed to prove that the alleged events occurring
since her reinstatement were sufficiently pervasive as to interfere with her work
performance. She admits that she has not been disciplined since her
reinstatement, and the evidence shows that Plaintiff received “good”
performance reviews on each of her Performance Appraisals from September
2007, 2008, and 2009. [Dkt. #43-1, Def. Rule 56 Stmt. ¶¶42–44; Dkt. #60 Def.’s
Supp. 56 Stmt. ¶¶ 85–86]. Evidence that the terms and conditions of her
employment remained the same, that she was not subject to discipline, and that
she in fact received favorable evaluations throughout the time period in question
further demonstrates that Plaintiff’s work environment was not sufficiently
abusive to support her hostile work environment claim. See Cristofaro v. Lake
Shore Central School District, No. 06-CV-0487S, 2011 WL 635263 at *7 (W.D.N.Y.
Feb. 11, 2011) (holding that plaintiff had not demonstrated that the alleged
harassment interfered with her work performance given that the terms and
conditions of her employment remained the same, given that she was never
disciplined, demoted, or terminated, and given that she received positive reviews
from her superior).
As to the third requirement, that the conduct created an environment
abusive to employees because of their race, since Plaintiff alleges incidents that
are facially race-neutral, she must offer additional evidence demonstrating those
actions actually were discriminatory. Alfano, 294 F.3d at 377; Chacko v.
Connecticut, No. 3:07cv1120(CFD), 2010 WL 1330861 at *10 (D. Conn. Mar. 30,
2010). She could demonstrate this, for instance, by showing that the neutral
incidents were part of a course of conduct that included both discriminatory and
nondiscriminatory conduct. See Alfano, 294 F.3d at 375. However, all incidents
cited by Plaintiff are facially race-neutral, and even when viewed together, they do
not give rise to an inference of racial discrimination. As discussed with respect to
her disparate treatment claim, Plaintiff has failed to demonstrate that similarly
situated employees of different races were treated more favorably than she was.
Even if Plaintiff has proven that Defendant indeed treated her unfavorably since
her reinstatement, absent a link to racial discrimination, Plaintiff has failed to
establish that she was subjected to a hostile work environment. See Chacko,
2010 WL 1330861 at *11; Alfano, 294 F.3d at 377, 378. While the Court is aware
that racism is often nuanced, here, the Plaintiff cites no indicia of racial animus
from which a reasonable finder of fact could find discrimination based on race or
color. Accordingly, the Plaintiff has failed to establish a material factual dispute
as to her hostile work environment claim.
H. Intentional Infliction of Emotional Distress
Lastly, Plaintiff alleges that Defendant DDS’s conduct was sufficiently
extreme and outrageous as to demonstrate the intentional infliction of emotional
distress. Under Connecticut law, a plaintiff seeking to establish intentional
infliction of emotional distress must show: “(1) that the actor intended to inflict
emotional distress or that he knew or should have known that the emotional
distress was a likely result of his conduct; (2) that the conduct was extreme and
outrageous; (3) that the defendant's conduct was the cause of the plaintiff's
distress; and (4) that the distress suffered by the plaintiff was severe.” Appleton
v. Bd. Of Ed. Of the Town of Stonington, 254 Conn. 205, 210 (2000)(citation
omitted). “Whether the defendant’s conduct is sufficient to satisfy the
requirement that it be extreme and outrageous is initially a question for the court
to determine. Only where reasonable minds disagree does it become an issue for
the jury.” Id. (citation omitted).
“In the employment context, it is the employer's conduct, not the motive
behind the conduct, that must be extreme or outrageous. An employer's adverse
yet routine employment action does not constitute extreme and outrageous
conduct even if based on race or other improper motives.” Robinson v. City of
New Haven, 578 F. Supp. 2d 385, 390 (D. Conn. 2008) (internal quotation marks
and citations omitted). “Routine employment action, even if undertaken with
improper motivations, does not constitute extreme or outrageous behavior when
the employer does not conduct that action in an egregious and oppressive
manner.” Conge v. Sikorsky Aircraft Corp., No.3:075-cv-1650, 2007 WL 4365676,
at *9 (D. Conn. Dec. 11, 2007). As previously discussed, the actions taken by
Defendant DDS towards Plaintiff were routine. Plaintiff admits that the trainings
she was required to attend were consistent with DDS policy regarding reinstated
employees. Further, all other allegations of disparate treatment, including a factfinding hearing regarding an alleged work rule violation, letters placed in
Plaintiff’s employment file, and disparaging comments made by fellow employees
fail to provide any facts to permit an inference of discrimination and thus fall far
short of let establishing discrimination of such a caliber as to constitute extreme
or outrageous conduct. See Lorenzi v. Connecticut Judicial Branch, 620
F.Supp.2d 348, 353 (D.Conn. 2009) (“Close supervision, the demeaning and
unprofessional speech alleged . . . unfair job appraisals, inferior office space,
denial of pay raises and promotions, orders to limit interactions with certain other
employees, insults about one’s lunch, discrimination on the basis of race and/or
national origin . . . do not meet the standard for finding that conduct was extreme
Accordingly, where no reasonable jury could find that DDS subjected
Plaintiff to extreme and outrageous conduct, summary judgment is granted as to
Plaintiff’s claim of intentional infliction of emotional distress.
Based upon the above reasoning, the Defendant’s [Doc. #46] motion for
summary judgment is GRANTED and all of Plaintiff’s claims have been
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 14, 2012
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