Smalls v. Corrections
ORDER granting 26 the defendant's Motion for Summary Judgment. See attached. Signed by Judge Donna F. Martinez on 3/8/12. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEPHEN A. SMALLS,
STATE OF CONNECTICUT
DEPARTMENT OF CORRECTION,
CASE NO. 3:10CV962(DFM)
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Stephen Smalls, alleges that the defendant, the
discriminated against him on the basis of race in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
§ 2000e et seq.
Pending before the court is the defendant's motion
for summary judgment.1
For the reasons that follow,
the defendant's motion is granted.
The parties consented to the jurisdiction of a magistrate
judge pursuant to 28 U.S.C. § 636(c). (Doc. #23.)
The facts are taken from the defendant's Local Rule 56(a)1
Statement filed May 25, 2011. (Doc. #26-2.) Local Rule 56(a)1
requires the party moving for summary judgment to file a statement
setting forth "each material fact as to which the moving party
contends there is no genuine issue to be tried." The opposing party
is to file a Local Rule 56(a)2 Statement indicating whether the
material facts set forth in the moving party's Local Rule 56(a)1
Statement are admitted or denied. Each admission or denial must
include a citation to an affidavit or other admissible evidence.
The court granted the plaintiff multiple extensions of time in
which to file a response to the defendant's summary judgment
(Doc. ##28, 30, 32, 34.) In January 2012, when the
plaintiff did not file an opposition to the defendant's motion, the
The following facts are undisputed.
corrections officer for DOC from 1994 until 2008.
56(a)1 Stmt. ¶1.)
(Def's Local R.
He was disciplined several times, then fired
(Def's Local R. 56(a)1 Stmt. ¶5.)
Each time he was fired,
the plaintiff was reinstated with a "Last Chance Agreement."
first time, on April 6, 2005, the DOC terminated the plaintiff for
violating the DOC's sick leave policy.
(Def's Local R. 56(a)1
plaintiff was fired because of his "chronic failure to follow
procedures" regarding sick leave and exhaustion of time.
#26-4, Pl's Dep. Ex. 11.)
The letter said that the plaintiff
previously had "been disciplined several times for failure to
follow procedures, [most recently] on March 11, 2004 [when he]
received a five day suspension.
Even after that . . . , [he] did
not conform [his] behavior and it can no longer be tolerated by the
On January 4, 2006, the plaintiff and his
union negotiated a Last Chance Agreement with the DOC.
Under this agreement, the plaintiff was reinstated and the period
court, in an abundance of caution, issued a "Notice" that set forth
the procedural background of the case and stated that the
defendant's motion was "ripe for decision."
Notwithstanding all this, the plaintiff did not file an opposition
to the defendant's motion or a Local Rule 56(a)2 Statement. As a
result, the material facts set forth in the defendant's Local Rule
56(a)1 Statement - to the extent they are supported by the evidence
in the record - are deemed admitted pursuant to D. Conn. L. Civ. R.
between his dismissal and reinstatement was treated as a suspension
(Doc. #26-4, Pl's Dep. Ex. 12.)
acknowledged in the agreement that the DOC had "just cause" to
He further acknowledged that any future
Two years later, the plaintiff was fired again.
breached the Last Chance Agreement by violating the DOC's sick
His termination was effective February 6, 2008.
(Pl's Dep. Ex. 9; Callahan Aff. ¶9.)
On April 29, 2008, the
plaintiff entered into a second stipulated agreement with the DOC
and again was reinstated.
Dep. at 75-76.)
Before he could return to work, however, he had to
take a drug test.
(Def's Local R. 56(a)1 Stmt. ¶15; Pl's
(Def's Local R. 56(a)1 Stmt. ¶17; Pl's Dep. at
On May 2, 2008, the plaintiff's urinalysis was positive for
marijuana. (Def's Local R. 56(a)1 Stmt. ¶¶19-20.) A positive drug
test violates the DOC's rules regarding employee conduct. (Def's
Local R. 56(a)1 Stmt. ¶23.) Administrative Directive 2.17 provides
in relevant part that each DOC employee shall "comply with all
federal and state laws, regulations and/or statutes, Department and
Unit Directives and lawful instructions/orders." It also prohibits
"unprofessional or illegal behavior, both on and off duty that
negatively on the
The DOC terminated the plaintiff for the third and
final time after he failed the drug test.
(Def's Local R. 56(a)1
Stmt. ¶27; Pl's Dep. Ex. 10; Compl. ¶15.)
II. Standard of Review
Summary judgment is appropriate "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).
An issue of fact is "material" if it "might affect the outcome of
reasonable jury could return a verdict for the nonmoving party"
based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "The moving party bears the burden of showing that [it] is
entitled to summary judgment."
Huminski v. Corsones, 396 F.3d 53,
69 (2d Cir. 2005). The nonmoving party, in order to defeat summary
judgment, must come forward with evidence that would be sufficient
to support a jury verdict in his favor.
Anderson, 477 U.S. at 249.
In moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant "need not prove a
plaintiff's part, and, at that point, plaintiff must 'designate
specific facts showing that there is a genuine issue for trial.'"
Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100, 111 (2d Cir.
2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
The court "construe[s] the evidence in the light most favorable to
the nonmoving party and draw[s] all reasonable inferences in that
Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir.
"Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is
no 'genuine issue for trial'" and summary judgment should follow.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Title VII Claim
Title VII makes it unlawful for an employer "to discharge any
individual . . . because of . . . race . . . ."
violation of this provision are evaluated under the McDonnell
Douglas burden-shifting framework.
See McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this burden-shifting framework,
a plaintiff asserting racial discrimination bears the initial
burden of establishing a prima facie case of discrimination. See
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000). In
order to establish a prima facie case of employment discrimination,
a plaintiff must demonstrate that: (1) he belonged to a protected
class; (2) he was qualified for the position he held; (3) he
employment action occurred under circumstances giving rise to an
inference of discriminatory intent.
Mario v. P & C Food Markets,
Inc., 313 F.3d 758, 767 (2d Cir. 2002) (citing McDonnell Douglas,
411 U.S. at 803).
A plaintiff may raise an inference of discrimination for
purposes of the prima facie case by "showing that the employer
treated plaintiff less favorably than a similarly situated employee
outside his protected group."
Mandell v. County of Suffolk, 316
F.3d 368, 379 (2d Cir. 2003) (internal quotation marks omitted).
A plaintiff must be similarly situated "in all material respects to
the individuals with whom [he] seeks to compare [him]self with."
Id. (quoting Graham v. LIRR, 230 F.3d 34, 39 (2d Cir. 2000)).
"Ordinarily, the question whether two employees are similarly
situated is a question of fact for the jury," id., but "a court can
reasonable jury could find the similarly situated prong met."
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d
"If a plaintiff establishes a prima facie case, a presumption
of discrimination is created and the burden of production shifts to
the defendant to articulate some legitimate, nondiscriminatory
reason for the adverse employment action or termination."
v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001).
"If the defendant bears its burden of production, the presumption
drops out of the analysis . . . ."
The burden shifts back to
the plaintiff to "come forward with evidence that the defendant's
proffered, non-discriminatory reason is a mere pretext for actual
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
"A reason cannot be proved to be 'a pretext for
discrimination' unless it is shown both that the reason was false,
and that the discrimination was the real reason." St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993); see also Leibowitz v.
Cornell Univ., 584 F.3d 487, 504 (2d Cir. 2009) ("[P]laintiff
carries the ultimate burden of persuasion and must produce evidence
such that a rational finder of fact could conclude that the adverse
action taken against [him] was more likely than not a product of
Therefore, at the summary judgment
stage, a plaintiff "must produce not simply some evidence, but
legitimate, non-discriminatory reasons proffered by the [defendant]
were false, and that more likely than not [discrimination] was the
real reason for the [employment action]."
Weinstock v. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotations marks
and citations omitted).
The defendant contends that the plaintiff has failed to
establish a prima facie case because the circumstances surrounding
The plaintiff seeks to raise an inference of
discrimination by showing that he was treated differently than a
similarly situated individual outside his protected class.
similarly situated, the individuals with whom [the plaintiff]
attempts to compare [himself] must be similarly situated in all
material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d
60, 64 (2d Cir. 1997).
The circumstances of the plaintiff and the
comparators need not be identical, but they must be reasonably
close. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000).
The plaintiff points to Corrections Officer Yaskolka,3 who is
white, as a comparator. (Compl. ¶17.) According to the plaintiff,
Yaskolka had a positive drug test but was not terminated.
defendant argues that the plaintiff has not adequately established
employee is materially distinct from the plaintiff.
Unlike the plaintiff, Yaskolka did not have a last chance
agreement, much less two of them.
(Def's Local R. 56(a)1 Stmt.
Moreover, Yaskolka claimed to be drug dependent and was
under a physician's care.
(Def's Local R. 56(a)1 Stmt. ¶80.)
same cannot be said of the plaintiff, who makes no such claims.
(Callahan Aff. ¶24.)
The court concludes that Yaskolka is not
similarly situated to the plaintiff and that the plaintiff has not
met the fourth element of the prima facie case.
Even assuming the plaintiff has satisfied his burden of
presenting a prima facie case, he fails to carry his burden of
proving that the defendant's proffered rationale for discharging
him was pretextual.
According to the defendant, the plaintiff was
The name appears as "Yascosca" in the plaintiff's complaint.
fired because he failed a drug test after he had been terminated
twice and reinstated twice. (Def's Local R. 56(a)1 Stmt. ¶27;
Callahan Aff. ¶23.)
Under these circumstances, the DOC did not
consider giving him back his job a third time.
56(a)1 Stmt. ¶79.)
(Def's Local R.
"A plaintiff may show pretext by demonstrating
weaknesses and inconsistencies in the employer's stated reason for
Fusaro v. Murphy, No. 3:08CV1234(RNC), 2011 WL
4572028, at *4 (D. Conn. Sept. 30, 2011).
Here, the plaintiff has
not offered any evidence "to permit a rational finder of fact to
infer that the employer's proffered reason is pretext for an
Howley v. Town of Stratford, 217 F.3d
141, 150 (2d Cir. 2000).
Because the plaintiff has failed to
"carry the burden of persuasion that the proffered reason is a
pretext," Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d
Cir. 2006), the court grants the defendant's motion for summary
For these reasons, the defendant's motion for summary judgment
(doc. #26) is granted.
SO ORDERED at Hartford, Connecticut this 8th day of March,
Donna F. Martinez
United States Magistrate Judge
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