Fratturo v. Gartner, Inc
ORDER: Defendant's Motion 39 for Summary Judgment is DENIED. Signed by Judge Janet Bond Arterton on 1/15/2013. (Bonneau, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civil No. 3:11cv113 (JBA)
January 15, 2013
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On January 20, 2011, Plaintiff Joanne Fratturo filed a complaint [Doc. # 1] against
her former employer, Defendant Gartner, Inc., alleging violations of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60(a)(1),1 arising out of
Defendant’s decision to eliminate Plaintiff’s position and terminate her in January 2010.
Defendant now moves [Doc. # 39] for summary judgment on all of Plaintiff’s claims,
arguing that Plaintiff has failed to establish a prima facie case of discrimination under the
ADEA, the ADA, or the CFEPA, and has failed to establish that Defendant’s legitimate
nondiscriminatory reason for eliminating her position was pretextual. For the following
reasons, Defendant’s motion is denied.
At oral argument, counsel for the parties agreed that Plaintiff’s state–law claims
are coextensive with her federal claims, and thus the Court will consider Plaintiff’s federal
and state claims under the same analysis. See Craine v. Trinity College, 259 Conn. 625,
637 n.6 (2002) (“We look to federal law for guidance on interpreting state employment
discrimination law and the analysis is the same under both.” (citing State v. Comm’n on
Human Rights & Opportunities, 211 Conn. 464, 469–70 (1989)).
A. Plaintiff’s Employment History at Gartner
Plaintiff was hired by Defendant in August 2000, as a Coordinator, which is an
administrative role. (Fratturo Dep. at 189.) In 2005, she was promoted to Senior
Coordinator, and reported to Marisa Kopec, a Vice President in the Corporate Marketing
Group. (Id. at 189–90).2 In 2006, Kopec was transferred to the newly formed High
Technology and Telecommunications Programs Group (“HTTP”). (Fratturo Dep. at
133.) Plaintiff applied for and received a position as a Senior Coordinator in the HTTP
Group, continuing to support Kopec. (Id. at 133–34.) However, the head of Corporate
Marketing would not transfer Plaintiff until her prior position was filed, and she
performed the duties of both positions for several months before Victoria Romanchuk, a
younger individual, was hired for the HTTP role.3 (Id. at 134–39; Bedell Dep. at 66.) In
late 2007, the Corporate Marketing and Sales Operations Groups were combined under
Marta Armida. (Fratturo Dep. at 134–39.)
At that time, Plaintiff was encouraged to
transfer to a role overseen by Maria Cute supporting the Local Briefings Program in the
Sales and Marketing Group, and was eventually moved to that position in April 2008.
(Id. 145–46.) The Local Briefings Program consisted of “live presentations by Gartner
Ms. Fratturo states that she supported several vice presidents in Corporate
Marketing in her role as Senior Coordinator. (See Fratturo CHRO Aff., Ex. 7 to Pl.’s Loc.
R. 56(a)2 Stmt [Doc. # 49] ¶ 6 (“In 2005 I began a new position as a Senior Coordinator
with Corporate Marketing. It was my job to support assigned Directors, Vice Presidents,
Senior Vice Presidents and Group Vice Presidents. These assignments varied over time,
but were always in the Marketing Department.”).)
Defendant disputes this version of events, claiming that Plaintiff voluntarily
requested that a new employee be hired to fill her role in HTTP. Plaintiff admits that she
made the decision to stay in marketing and move Victoria Romanchuk, a younger
woman, to HTTP. (See Fratturo Dep. at 139–40.) However, Plaintiff did complain to the
Human Resources Department that it was unfair to “hold [her] back” from the position
in HTTP and require her to perform the duties of both positions. (Id. at 140–41.)
analysts to hundreds of clients and non–clients on relevant topics facing IT users and
vendors.” (Cute Decl. [Doc. # 42] ¶ 2.)4 Also incident to this restructuring, the new role
of “Local Briefing Specialist” was created, and Cheryl Graham, Zelda Strong, and Monica
Artega—all of whom are younger than Plaintiff—were transferred into that role. (Cute
Dep. at 28–32, 36, 111–12.)
As a Senior Coordinator in Local Briefings, Plaintiff’s duties included5 assembling
and photocopying marketing materials, filling out Xerox tickets, inserting attendee
badges into folders, packing boxes, creating check–in lists for events, arranging for hotels
for local briefings, processing Cute’s travel expenses, and ordering supplies. (See Fratturo
Dep. at 211–13.) On several occasions during 2008, Ms. Fratturo informed Cute that she
felt she was best as the “setup person” and would prefer to remain behind the scenes
rather than interfacing with clients. (See id. at 102–04; Cute Dep. at 115–16.)6
Beginning in mid–2007, Gartner increased its focus on conducting webinars as a
part of a strategic marketing initiative.
(Cute Dep. at 18.)
These webinars are
Defendant claims that Plaintiff transferred voluntarily and enthusiastically into
Cute’s group and that she told Cute that “she really felt good about the opportunity.” (Ex.
3 to Lubochinski Decl. [Doc. # 45].) However, Plaintiff alleges that the transfer was not
one of increased opportunity, but instead Armida brought in a much younger woman,
Cindy Gillan, to take over Plaintiff’s role in Marketing and sent Plaintiff to do Gillan’s old
job in Local Briefings. (See Fratturo Dep. at 150–54.)
Defendant contends that Plaintiff’s duties consisted entirely of providing
administrative support of the type described above. (See id. at 211–13.) Plaintiff contests
this characterization of her role, and asserts that she managed various other tasks as
Senior Coordinator and made it known that she would like to expand her responsibilities.
(See id. at 70–76, 145–47, 158–68.)
Plaintiff contests Defendant’s representation of these conversations with Cute,
and claims that at the height of her illness in 2008, she was uncomfortable with face–to–
face client contact due to the toll she felt her illness had taken on her appearance. (See id.
at 98–99.) Ms. Fratturo contends that her conversations about remaining behind the
scenes were based on her illness and that she was not refusing increased responsibility in
her job. (See id.)
“presentations on IT developments conducted by Gartner analysts over the phone and
internet to hundreds of clients and non–clients, including senior executives.” (Cute Decl.
¶ 3.) In 2008 or 2009, Cute asked Ms. Fratturo if she would like to learn how to conduct
webinars, and Plaintiff declined. 7 (Fratturo Dep. at 112.) In order to accommodate the
increased focus on webinars, Defendant hired several new, younger, employees to
conduct webinars in 2009. For example, Beatriz Nieves, a former independent contractor
for Gartner, was hired as a Webinar Specialist (Cute Decl. ¶ 7), and Kim Small and
Victoria Romanchuk were transferred to Cute’s team from other departments as a
Webinar Coordinator and a Project Manager, respectively (Armida Dep. at 26, 72; Cute
Decl. ¶¶ 6–7). Plaintiff did not apply for, and was not considered for, any of these
positions. (Fratturo Dep. at 15–26; Cute Dep. at 48–49.)8 Cute stated that she did not
consider Ms. Fratturo for either of these roles because she “didn’t feel [Plaintiff] could
handle it,” and she “didn’t have time to give [Plaintiff] another role.” (Cute Dep. at 48.)
Plaintiff took disability leave from June 6, 2008 through July 31, 2008, and took
additional sick leave to receive medical treatment at the end of 2008 and in 2009. (Cute
Dep. 86–88; Fratturo CHRO Aff., Ex. 7 to Pl.’s 56(a)2 Stmt ¶ 10; Exs. 14, 15 to Pl.’s 56(a)2
Stmt.) In December 2008, Plaintiff was diagnosed with Chronic Obstructive Pulmonary
Plaintiff states that she declined this opportunity based on her ill health in 2008,
but that in 2009 she expressly asked to increase her involvement in webinars. (See id. at
Plaintiff claims that Small’s role was never posted, but that around the time
Small was transferred to Cute’s team, Ms. Fratturo had a conversation with Cute about
working on webinars in a role similar to the one that was created for Small. (See id.)
Plaintiff admitted that she was not applying for a particular position in Webinars during
her conversation with Cute. (See id. at 76.) Cute denies that this conversation took place.
(See Cute Dep. at 47–48.)
Disease (“COPD”). (Fratturo Dep. at 43–44.) Cute was not aware of Ms. Fratturo’s
actual diagnosis, but she knew that Plaintiff had breathing problems. Cute and Ms.
Fratturo discussed Plaintiff’s health, and Cute mentioned her father–in–law’s breathing
problems resulting from emphysema during these discussions. (Cute Dep. at 90–93.)
Armida also was not aware that Plaintiff had been diagnosed with COPD. (Armida Dep.
at 39–40.) However, Plaintiff’s difficult breathing was readily visible at work: 9
Well, when I would—if I did have to go to a meeting, there would be
walking involved and when I got there I may have been a little out of
breath and needed to pause and breathe and pace myself and bring myself
down to normal to be able to hold a conversation. When you’re out of
breath, your words are choppy, so I had kind of lost weight and was very
pale. So in looking at me, I didn’t look like the Joanne maybe in 2008. I
had lost some weight and I was a little bit paler, and my eyes seemed to be
a little bit redder, reaction to medications and stuff.
(Fratturo Dep. at 45.) Co–workers commented to Ms. Fratturo about her breathing
difficulty (id. at 64–65), and Cute instructed the younger members of her team to ask if
Plaintiff needed assistance, which Plaintiff thought was because of her health problems
(id. at 61–64).
When Ms. Fratturo returned to work from her disability leave, she asked Cute for
permission to leave early on certain days for medical appointments and therapy, and
occasionally when she was not feeling well; Cute always granted her requests. (Id. at 50–
Plaintiff claims that because her breathing problems were readily apparent,
Armida could have observed the effects of her illness. (See Fratturo Dep. at 39–40, 45–
46.) Plaintiff also believed that Armida was aware of her health condition based on a
specific interaction with Armida in which Armida looked at her in a certain way. (Id. at
46–49 (“Q: Are you saying that there was some time that she looked at you in a way that
you thought was a—looked a certain way because of your health condition? A: Yes. . . .
Q: Okay. And was there a look that you can describe that she gave that you thought was
because of your medical condition? . . . A: Just as I was talking with her, I could just
perceive in her eyes, but then that’s my interpretation of her face.”).)
53.) Other than these requests for leave, and occasional requests for help with heavy
packages, which Cute accommodated, Plaintiff did not ask to be moved to a job with
different physical requirements because of her illness. (Id. at 50–52, 57–58, 73–75.)10
During Plaintiff’s absence, other members of Cute’s team “chip[ed] in” to cover Plaintiff’s
role (Cute Dep. at 77), and Plaintiff “would come in after hours and weekends to meet
[her] deadlines” (Ex. 20 to Pl.’s 56(a)2 Stmt; see also Cute Dep. at 93).
The Elimination of Plaintiff’s Position and Plaintiff’s Termination
In late 2009, Armida received her 2010 management objectives, which included
hiring an E–mail Producer to assist in the transition to a new customer relationship
management software, and a Vice President of Webinars. 11 (Armida Decl. [Doc. # 43] at
¶¶ 2, 4.)
Armida determined that she would need to eliminate a position in her
department in order to hire a new employee. 12 (Armida Decl. ¶ 3.) Thus, Armida met
with Michele Gaeta–Stolz, a human resources representative, to discuss strategies for
locating room in Armida’s budget for the new roles. (Gaeta–Stolz Dep. at 39–41.)
Plaintiff argues that she asked to become more involved in webinars in the fall
of 2009, and “it was clear that this would have alleviated the physical shipping tasks she
was performing.” (Pl.’s 56(a)2 Stmt at 11.) However, she admits that she did not
mention her COPD as a reason for requesting the transfer. (Fratturo Dep. at 73–75.)
Plaintiff points out that there is no written document evidence, aside from
Armida’s testimony, of these objectives. Furthermore, Cute testified that she was not
aware of the desire to hire an E–mail Producer, and that she had intended for Plaintiff to
implement the new customer relationship management software. (Cute Dep. at 137–38,
Plaintiff disputes Armida’s contention that she was required to eliminate a
position in order to fill the E–mail Producer role because she needed to keep the
headcount in her department flat. Armida’s headcount actually increased by one in 2010,
and the proposed 2010 budget documents she prepared in 2009 note her intention to
increase headcount. (Ex. 34 to Pl.’s 56(a)2 Stmt at G00875.) Plaintiff points to the fact
that when Cute hired Nieves as a Webinar Specialist, she was able to make a business case
for additional budget and head count in order to fill the position. (Cute Dep. at 58.)
Armida quickly focused on Local Briefings when attempting to identify a role to eliminate
without looking “in a lot of details” at any other departments because Local Briefings
“wasn’t popular with top management.” (Armida Dep. at 34.) Armida said she chose to
eliminate Ms. Fratturo’s role in Local Briefings because “her role was the only role in the
organization that was supporting a department, rather than managing a project” (id. at
39), and in identifying which position to eliminate, she “didn’t look at people’s abilities
and skills,” but instead considered “the role they were performing” (id. at 35). However,
Armida never read Plaintiff’s formal “role profile” before deciding to eliminate her
position (id. at 36), and only after Armida made the decision to eliminate Ms. Fratturo’s
position, did Armida get a description of Plaintiff’s responsibilities from Cute (see Ex. 20
to Pl.’s 56(a)2 Stmt at G00438), which Suzanne Bedell, a Senior Director of Marketing,
said confirmed the logic of the choice to her (see Bedell Dep. at 35 (“[After reading this
description] it made complete business sense as to why the role was being eliminated.”)).
Armida did not consult with Ms. Fratturo’s direct supervisor, Maria Cute, in reaching this
decision. (Cute Dep. at 120–21.) When Cute was informed that Plaintiff’s role was being
eliminated she told Armida and Bedell: “I need someone for the role there is no doubt
about it and the thought of losing this headcount is very scary.” (Ex. 8 to Lubochinski
Decl. [Doc. # 45] at G00644.)
On December 1, 2009, Christine Furano informed Armida and Bedell that “the
urgency of having [the E–mail Producer] resource ha[d] recently intensified due to
staffing shortages on [her] team.” (Id.) On December 3, 2009, Armida advised Cute and
Bedell that “we now have all approvals we need to execute on the plan of eliminating
[Plaintiff’s] role.” (Ex. 9 to Lubochinski Decl. at G00647.) Cute suggested that they “offer
[Plaintiff] less money or part–time—30 hours per week,” rather than eliminating her
position entirely. (Id.) Cute cautioned Armida that “[Plaintiff] is having health issues
and is over 55. Will we have any discrimination issues with HR on eliminating her role?”
(Id.) Armida did not respond to Cute’s concerns regarding Plaintiff’s membership in
these protected classes (Armida Dep. at 60–61), and never contacted the legal
department13 to consider whether there were legal problems with her decision to
eliminate Plaintiff’s position (id. at 42–43).
In response to Cute’s statements that
someone would then be needed someone to replace Ms. Fratturo in her department,
Bedell stated that “[Plaintiff’s] responsibilities appear to be heavily administrative, which
I have to say, can and will have to be moved to individuals across the team. The role is
being eliminated, which means hiring a new person to train is not going to be an option.”
(Ex. 20 to Pl.’s 56(a)2 Stmt at G00439–40.)
In discussing the procedure for informing Plaintiff of her termination, Gaeta–
Stolz recommended that “the meeting be held with [Armida] and I [sic] informing the
affected associate. I think this will serve to reinforce that this was a business decision
based strictly on headcount vs [sic] anything to do with this associate’s performance.”
(Id. at G00437.) Later that day, Cute again warned Armida, Bedell, and Gaeta–Stolz
about the possible appearance of discrimination:
One last thing and I am sure this has been discussed with Legal etc. Do we
have any liability because of her age? She also has been ill over the past
year. It hasn’t affected her work performance; however I wanted to make
sure you were aware so we do not have any issues. She is a smoker and she
goes to the Tully Center for therapy twice a week. She also has stomach
problems and her doctors haven’t been able to figure out what is wrong.
It does appear that Gaeta–Stolz ran “all appropriate checks with legal” in
preparation for eliminating Plaintiff’s position. (See Ex. 7 to Lubochinski Decl. at
(Ex. 29 to Pl.’s 56(a)2 Stmt at G00395.) Armida’s response was: “And you are saying that
this isn’t affecting her performance? How can it be . . .” (Id.) Upon reading this
exchange, Gaeta–Stolz admonished Armida, Cute, and Bedell to “refrain from
corresponding via e–mail re:
the sensitive items below.
If we need to have a
conversation, please let me know.” (Id.) Subsequently, Bedell, Gaeta–Stolz, Armida, and
Cute met to discuss the elimination of Plaintiff’s role, but none of the individuals at the
meeting can recall exactly when the meeting was held or what was discussed. (Cute Dep.
at 149–53; Gaeta–Stolz Dep. at 92–93; Armida Dep. at 40–41.)
On January 14, 2010, Gaeta–Stolz, Cute, and Armida met with Plaintiff to
inform her that her position was being eliminated. (Fratturo Dep. at 9.) Gaeta–Stolz
informed Plaintiff that her role had been eliminated as part of a reduction in force. (See
Ex. 22 to Pl.’s 56(a)2 Stmt at G00563.) However, Gaeta–Stolz later admitted that there
was no reduction in force in January 2010. (See Gaeta–Stolz Dep. at 82). Plaintiff was
told that she could reapply for any open positions at Gartner within three months and she
would be reinstated. (Id.) Ms. Fratturo asked if there were any open positions she could
be transferred to, and even offered to work cleaning the bathrooms, but was told that
there was nothing available. (Id. at 10–11.) Plaintiff checked the Gartner website in
January and February of 2010 and saw no suitable open positions. (Id. at 11–12.) Gaeta–
Stolz also checked if there were any positions available, but determined that there were no
open positions that would “be a fit” for Plaintiff, and advised Armida and Cute not to get
Plaintiff’s “hopes up” regarding future employment at Gartner. (Ex. 23 to Pl.’s 56(a)2
Stmt at G00516.) Armida spoke with the head of Gartner’s Research Department about
open administrative postings for Plaintiff, but there were none available. (Armida Dep. at
71.) Sometime after February 2010 Plaintiff did see an open position listed at Gartner,
but did not apply because “it hurt too much. It was emotional.” (Fratturo Dep. at 12–13.)
After Plaintiff was terminated, the majority of her responsibilities were outsourced to
Xerox, and the remaining duties were assumed by other members of the Marketing
Department, all of whom were younger than Plaintiff. (Ex. 11 to Lubochinski Decl. at 9.)
At the time of Plaintiff’s termination, Gartner was self–insured and was looking for ways
to reduce insurance costs, noting that “chronic conditions account for 65% of our overall
claims.” (Ex. 32 to Pl.’s 56(a)2 Stmt at G01538.) Fratturo was fifty–eight years old and
had a chronic health condition when she was terminated. (Fratturo CHRO Aff., Ex. 7 to
Pl.’s 56(a)2 Stmt ¶ 3.)
On the same day that Plaintiff was terminated, Carolyn Shuler, a Briefing
Specialist in the Marketing Department, was also told that her position had been
eliminated in order to create a Vice President of Webinars position. (Shuler Decl. [Doc.
# 44] ¶ 2.) She and Plaintiff were the only Gartner associates whose positions were
eliminated. Shuler, who is younger than Plaintiff, was also given the opportunity to apply
for a new position at her termination meeting. (Id.) Shuler applied for an open position
as a Vendor Briefing Specialist in February 2010, and was rehired into the Research
Department in April 2010. (Id. ¶ 3.)
Plaintiff claims that Defendant discriminated against her based on her age and
disability by eliminating her position and thus her employment with Gartner. Defendant
seeks summary judgment on all of Plaintiff’s claims because they “are based entirely on
speculation and unsupported subjective impressions.” (Def.’s Mem. Supp. [Doc. # 40]. at
1.) Plaintiff counters that there are sufficient facts for a jury to find in her favor on each
of her claims.
As a preliminary matter, Defendant argues that Plaintiff may not rely on evidence
of events, conduct, or knowledge occurring more than 300 days before she filed her
charges with the EEOC and the CHRO. (See id. at 2 n.2; Def.’s Reply [Doc. #50] at 7.)
Plaintiff correctly maintains that she may rely on background evidence from before the
300–day administrative statute of limitations period to support her claim, which was
timely filed. (See Pl.’s Opp’n [Doc. # 46] at 10.)
The existence of past acts and the employee’s prior knowledge of their
occurrence, however, does not bar employees from filing charges about
related discrete acts so long as the acts are independently discriminatory
and charges addressing those acts are themselves timely filed. Nor does
“Summary judgment is appropriate where, “resolv[ing] all ambiguities and
draw[ing] all permissible factual inferences in favor of the party against whom summary
judgment is sought,” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), “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). “A dispute regarding a material fact
is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.
2006) (quotation marks omitted). “The substantive law governing the case will identify
those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary
judgment.’” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a
motion for summary judgment, the Court may consider depositions, documents,
affidavits, interrogatory answers, and other exhibits in the record. Fed. R. Civ. P. 56(c).
the statute bar an employee from using the prior acts as background
evidence in support of a timely claim.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also Coger v.
Connecticut Dept. of Public Safety, 143 F. App’x 372, 374 (2d Cir. 2005) (“Plaintiff argues,
and we agree, that National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), requires
the consideration of facts, related to claims now untimely, as background to timely
claims.”); Kitchens v. U.S. Postal Service, 3:05-cv-195 (JCH), 2007 WL 1186077, at * 3 (D.
Conn. Apr. 19, 2007) (“[T]ime–barred conduct may still be offered as evidence of
discriminatory intent to support timely claims.” (internal citations omitted)).
Defendant’s one authority, decided fifteen years before Morgan and addressing equitable
tolling of the 300–day statute of limitations, is unpersuasive. See Wingfield v. United
Technologies Corp., 678 F. Supp. 973, 983 (D. Conn. 1988). Therefore, the Court will
consider Plaintiff’s proffered evidence relating to the time period before Plaintiff’s
timely–filed claims as background evidence if reasonably probative of timely,
independent discrimination claims.
Age Discrimination Claims15
“In order to establish a prima facie case of age discrimination, [a plaintiff] must
show (1) that she was within the protected age group, (2) that she was qualified for the
position, (3) that she experienced adverse employment action, and (4) that such action
occurred under circumstances giving rise to an inference of discrimination.” Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). Once the plaintiff has established
a prima facie case, “the burden shifts to the defendant to articulate ‘some legitimate,
At oral argument, Plaintiff’s counsel clarified that Plaintiff’s ADEA claims
related only to her termination, and not to Defendant’s failure to hire her for positions in
the webinar group.
nondiscriminatory reason’ for its action.” Id. at 106 (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). “Once such a reason is provided, the plaintiff can no longer
rely on the prima facie case, but may still prevail if she can show that the employer’s
determination was in fact the result of discrimination.” Id. “‘A plaintiff bringing a
disparate–treatment claim pursuant to the ADEA must prove, by a preponderance of the
evidence, that age was the “but–for” cause of the challenged adverse employment action’
and not just a contributing or motivating factor.” Id. (quoting Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009)). However, a plaintiff is permitted to advance an “age–
plus” argument, to claim that she was discriminated against based on her membership in
two protected classes. Id. at 109 (“[W]e have recognized that a plaintiff’s discrimination
claims may not be defeated on a motion for summary judgment based merely on the fact
that certain members of a protected class are not subject to discrimination, while another
subset is discriminated against based on a protected characteristic shared by both subsets.
And, as other courts have explained, where two bases of discrimination exist, the two
grounds cannot be neatly reduced to distinct components.” (internal citations omitted)).
Prima Facie Case
Defendant argues that Plaintiff fails to establish a prima facie of age
discrimination based on her termination in that she cannot establish the fourth prong—
i.e., that her termination took place under circumstances giving rise to an inference of
discrimination. 16 (See Def.’s Mem. Supp. at 21.) Defendant claims that Plaintiff cannot
prove that Armida knew Plaintiff’s age when she made the decision to eliminate her
position, and that the sole basis for Plaintiff’s discrimination claim is that she thought she
At oral argument, Defendant advised that it does not dispute the first three
prongs of Plaintiff’s prima facie case of age discrimination.
looked old. (See Fratturo Dep. at 77, 86 (“[D]ifferent people look different at different
ages. There are some very young 60–year–olds looking [sic], and there are some people
who at 60 look 80. And in that past year the health took its toll in my—I looked older . . .
. [W]hen I looked in the mirror, I looked old and thin and pale. I did not look like
Joanne who extruded [sic] confidence and—so if that’s what I was seeing, it’s possible that
that’s what they might have been seeing. So I don’t know because it’s thoughts and
feelings. It’s not fact.”).)
As Defendant points out, “beliefs or feelings, however sincerely held, cannot
support an employee’s claim of discrimination if there is no proof or insufficient proof
that the employer actually engaged in illegal discrimination; and unsupported subjective
impressions are not probative on that issue.” See Jackson v. Post Univ., Inc., 836 F. Supp.
2d 65, 98 (D. Conn. 2011) (finding that the plaintiff’s “gut feeling” that he was terminated
based on racial animus was insufficient evidence to establish discrimination). While
Plaintiff proffers no evidence that Armida knew her exact age when she informed Cute
that Plaintiff’s role was being eliminated, the evidence shows that Armida had reason to
believe that Plaintiff was an older employee because Plaintiff’s observation she had aged
and lost weight as a result of her illness is objectively discernable, not just an
“unsupported subjective impression.” The combined physical toll of her age and illness
was apparent to her co–workers, and would have been to Armida, whom she occasionally
passed in the hallways. (See, e.g., Romanchuk Dep. at 15 (“Q: And it was pretty apparent
from seeing her that she was having a rough time physically, right? She lost a lot of
weight? A: Yeah, [s]he did.”); Fratturo Dep. at 66 (“Q: What is your understanding of
why Gartner terminated your employment? What was the reason? A: I believe it was age
discrimination and because of my health I wasn’t a model cutting edge IT person
anymore, or— Q: Any other reasons? Sorry. A: I guess the age. I looked my age, and the
health had taken a toll and I looked my age.”).) It is undisputed that when Armida
informed Cute of her decision to eliminate Plaintiff’s role, Cute twice expressed her
concerns that the termination could appear discriminatory because Plaintiff was over 55.
(See Ex. 9 to Lubochinski Decl. at G00647; Ex. 29 to Pl.’s 56(a)2 Stmt at G00395.) As an
alternative to termination, Cute requested that Plaintiff’s salary be reduced or that she be
asked to work part time because Plaintiff performed tasks “we don’t know how to do.”
(Cute Dep. at 130–31.) However, Armida rejected these alternatives and confirmed her
decision to terminate Plaintiff knowing that Plaintiff was in a protected age group and
without responding to Cute’s concerns about the appearance of discrimination. In fact,
after reading Cute’s description of Plaintiff’s age and health issues, Armida commented:
“And you are saying that this isn’t affecting her performance? How can it be . . .” (Ex. 29
to Pl.’s 56(a)2 Stmt at G00395.)
Plaintiff has also presented evidence that some of her duties were reassigned to
younger co–workers when she was terminated. (See Fratturo Dep. at 91–92; Ex. 11 to
Lubochinski Decl. at 8–9.) In some cases, such evidence may be sufficient to establish a
prima facie case of age discrimination. See, e.g., Burger v. New York Inst. of Technology,
94 F.3d 830, 834–35 (2d Cir. 1996) (evidence that a substantial portion of the plaintiff’s
duties were transferred to younger employees was sufficient to survive a motion for
judgment as a matter of law in an ADEA action). However, in each of the cases cited by
Plaintiff, the majority of an individual’s responsibilities had been transferred to a younger
employee. Here, the majority of Plaintiff’s responsibilities were outsourced to Xerox, and
her remaining duties were spread across the rest of Cute’s team.
(See Ex. 11 to
Lubochinski Decl. at 8–9.) Nevertheless, the employees who took over the remaining
portion of Plaintiff’s job duties were all at least ten years younger than Plaintiff (see id.),
and thus while this evidence is weak, it hints of age bias. See Carlton v. Mystic Transp.,
Inc., 202 F.3d 129, 135 (2d Cir. 2000) (“Generally, a plaintiff’s replacement by a
significantly younger person is evidence of age discrimination.”).
Plaintiff also claims that she was treated differently than Shuler, the younger
employee laid off at the same time to make room for a new position in Armida’s
department, but rehired three months later.
When Plaintiff was first told of her
termination, she made clear her willingness to transfer anywhere and do anything to
avoid termination, but was told there were no available positions.
distinguishes Shuler’s circumstances because, unlike Plaintiff, she applied for an open
position that was posted, and consequently was rehired.17 Plaintiff does not dispute that
she never applied for a position at Gartner after she was terminated. Therefore, in the
absence of evidence of deferential re–hiring treatment or process used with Shuler, this
evidence does not support an inference of discrimination. However, considering together
all the circumstances, including Shuler’s re–hire after the elimination of her position, the
fact that younger employees took over Plaintiff’s remaining duties, Armida’s disregard of
Plaintiff’s responsibilities and performance in selecting her role for elimination, and
Armida’s response regarding the effect of Plaintiff’s age and illness on her job
Plaintiff claims, without any record support, that, unlike herself, Shuler was
encouraged to reapply and had been reassigned at Gartner by virtue of job elimination
several times. (See Pl.’s 56(a)2 Stmt at 23.) However, Plaintiff does present evidence
which she argues could support a jury conclusion that Gartner had a history of
marginalizing her for younger employees, first when she was not moved into her new
position supporting Kopec and second when she was transferred to Cute’s team to take
over the position of a younger employee who had replaced her in her role supporting
Armida. (See Fratturo Dep. at 139–40, 150–54.) The weight to be given to this evidence
depends on consideration of the totality of the circumstances.
performance, a jury could infer that her termination was based on her age plus her
Legitimate Non–Discriminatory Reason
Defendant articulates a legitimate business reason for eliminating Plaintiff’s role.
Armida was tasked with filling the role of E–mail Producer in her department, and
determined that to do so she would need to eliminate a position to keep headcount flat.
Plaintiff does not dispute that such a budgetary justification meets Defendant’s burden to
state a legitimate, nondiscriminatory reason for its decision. Therefore, the burden shifts
back to Plaintiff to show that Defendant’s proffered reason for her termination was
Defendant claims that Plaintiff cannot establish that its headcount justification is
false because Plaintiff’s role was not the only position eliminated in order to create a new
opening in Armida’s department. In rebuttal to Armida’s claim that she needed to
eliminate headcount, and Plaintiff, in order to fill the E–mail Producer and Vice
President of Webinar roles, Plaintiff points to evidence that Cute was able to make a
business case for increasing the headcount in the webinar group when she hired Nieves.
(See Def.’s Reply at 2; Def.’s Mem. Supp. at 5–6.)
In addition, Armida’s budget
presentations for her department in 2010 indicated a projected increase in headcount.
(See Ex. 34 to Pl.’s 56(a)2 Stmt at G00875.) Further, when Plaintiff was terminated,
Gaeta–Stolz informed her that her role had been eliminated as part of a reduction in force
(see Ex. 22 to Pl.’s 56(a)2 Stmt at G00563), but later admitted that there was no reduction
in force in January 2010 (see Gaeta–Stolz Dep. at 82). Thus, a reasonable juror could infer
that because Armida could have made a business case for increasing headcount for the E–
mail Producer position, and there was no reduction in force, Defendant’s stated reason
for terminating Plaintiff was false.
Plaintiff also contends that the manner in which Armida selected her position for
elimination evidences discriminatory intent. Plaintiff was the second oldest employee in
Armida’s group and the only one who was permanently terminated. (See Ex. 30 to Pl.’s
56(a)2 Stmt at 0069.) Other members of the Human Resources team confirmed that
there was no discussion of eliminating any other employee’s role in order to fill the E–
mail Producer position. (See Gaeta–Stolz Dep. at 49–50.) Though Armida claimed that
she selected Plaintiff’s role for elimination because of the unpopularity of Local Briefings
with upper management and because Plaintiff was the only employee in that department
who performed a solely support role, she admitted that she never read Plaintiff’s formal
role profile to compare her position to that of other employees (see Armida Dep. at 36),
and did not consult with Plaintiff’s direct supervisor Cute to evaluate Plaintiff’s role until
after she made the decision to eliminate Plaintiff’s position (see Cute Dep. at 120–21).
Armida also admitted that she did not consult employee rankings and did not compare
Plaintiff’s role with similar roles when deciding which position to eliminate. (See Armida
Dep. at 32, 37–38.)
At oral argument, counsel for Defendant argued that Armida had sufficient
familiarity with Plaintiff’s role to be able to evaluate the business case for eliminating
Plaintiff’s position based on her frequent discussions with Cute regarding personnel
issues. Plaintiff contends that she had been moved out of her old role and into this
disfavored group by Armida and replaced by a younger employee, and that once placed in
the disfavored local briefings group, she was further marginalized by being excluded from
webinar programming while younger employees were selected for these growth roles. In
sum, Plaintiff argues that she was first selected for a disfavored role, while younger
employees were selected for advancement, and then was identified for termination.
Because Armida was the sole decision–maker in Plaintiff’s termination, the
credibility of her explanation as to the reasons and process she used for selecting
Plaintiff’s role for elimination is necessarily central to the issue of pretext. The evidence
of inconsistencies in her headcount restructuring and the arbitrary nature of her
decision–making raise credibility issues which should be considered by a jury at trial,
rather than weighed by the Court at summary judgment, as it is at least minimally
sufficient to permit a jury to infer that Defendant’s proffered reasons for the elimination
of Plaintiff’s position were not true, and that age was the but–for cause of her
Defendant’s motion for summary judgment is therefore denied as to
Plaintiff’s claims under the ADEA and the CFEPA.
Disability Discrimination Claims18
Plaintiff’s disability discrimination claims are subject to the same McDonnell
Douglas burden–shifting analysis as her age discrimination claims, but she must show
only that her disability was a factor that made a difference in the decision to eliminate her
See Heyman v. Queens Village Committee for Mental Health for Jamaica
Community Adolescent Program, Inc. 198 F.3d 68, 72 (2d Cir. 1998) (“In analyzing a
discriminatory discharge claim under the ADA, we apply the burden–shifting analysis
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).”). To establish a prima facie case of disability discrimination under the ADA,
Plaintiff must establish that: (1) her employer is subject to the ADA; (2) she was disabled
At oral argument Plaintiff withdrew her failure to accommodate claims related
to Defendant’s failure to hire her for a position in the webinar group.
within the meaning of the ADA; (3) she was “otherwise qualified to perform the essential
functions of her job, with or without reasonable accommodation;” and (4) she suffered an
adverse employment action as a result of her disability. See Jacques v. DiMarzio, 386 F.3d
192, 198 (2d Cir. 2004). Once Plaintiff has established a prima facie case, the burden
shifts to Defendant to “articulate some legitimate, nondiscriminatory reason” for
Plaintiff’s termination. McDonnell Douglas, 411 U.S. at 802. Once such a reason has been
established, the burden shifts back to Plaintiff to show that Defendant’s proffered reason
was a pretext for prohibited disability discrimination. Id. at 804.
1. Prima Facie Case
Defendant claims that Plaintiff has failed to meet her burden to establish a prima
facie case of disability discrimination as a result of her termination because she “cannot
establish any inference of discrimination in connection with the alleged employment
actions.”19 (See Def.’s Mem. Supp. at 26.) Defendant argues that Armida was not aware
of Plaintiff’s illness when she made the decision to eliminate Plaintiff’s position.
However, as discussed above, there is evidence that Plaintiff’s illness had taken an
observable physical toll, and Plaintiff was frequently out of breath after walking to the
team meetings that Armida attended. (See Fratturo Dep. at 39–43, 45.) Thus reasonable
jurors could conclude that Armida was in a position to observe the deterioration in
Plaintiff’s physical appearance and the effects of Plaintiff’s breathing disorder at the time
of her decision to eliminate Plaintiff’s position.
Further, it is undisputed that Armida was advised of Plaintiff’s health issues after
she told Cute of her decision to terminate Plaintiff, and Cute twice expressed concern to
Defendant confirmed at oral argument that it did not contest the first three
prongs of Plaintiff’s prima facie case of disability discrimination.
Armida that given Plaintiff’s age and medical condition, the termination might appear
discriminatory. As noted above, Armida’s reaction to Cute’s explanation that Plaintiff’s
illness was not affecting her job performance was incredulous (see Ex. 20 to Pl.’s 56(a)2
Stmt at G00436), and at trial, jurors could consider this comment as part of the totality of
the circumstances to reject Defendant’s proffered reason for termination and could
conclude that this comment was significant in light of Gaeta–Stolz’s subsequent
admonishment to Armida: “I need to ask that we refrain from corresponding via e–mail
re: the sensitive items below,” and instead meet in person to discuss the termination.
(Ex. 29 to Pl.’s 56(a)2 Stmt at G00395.)
Defendant tries to innoculate this as a “statement [that] alluded to plaintiff’s
absences, not her health condition” (see Def.’s Mem. Supp. at 27). While this difference
may be successful with a jury, distinguishing between the effects of disability leave versus
the effects of a disability is not the only reasonable inference to be drawn from the
statement of the sole decision maker. As the Second Circuit has recognized: “[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 that remark will be.” Tomassi
v. Insignia Financial Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007). Here, the comment
suggesting a relationship between Plaintiff’s illness and her performance, made by the
sole decision–maker during a discussion of the decision to eliminate Plaintiff’s role could
be sufficient to permit a jury to infer that Plaintiff’s health condition played a role in her
Defendant argues that Plaintiff has not presented sufficient evidence to overcome
its proffered legitimate nondiscriminatory reason for the elimination of her position.
Defendant cites to Buotote v. Illinois Tool Works, Inc., 815 F. Supp. 2d 549 (D. Conn.
2011), in support of its argument that Armida’s comment is insufficient evidence of
pretext for Plaintiff’s disability discrimination claims to survive summary judgment. In
Butote, the manager’s comments that the plaintiff was “‘out of work more often than [he
was] in work’ such that ‘his luck should change,’” were insufficient to show that his
employer’s proffered reason for his termination was pretextual. Butote, 815 F. Supp. 2d at
559. This Court stated that “even if those statements evince discriminatory animus, a
reason cannot be proved to be a pretext for discrimination unless it is shown both that the
reason was false and that discrimination was the real reason.” Id. (quoting Sanchez v.
Connecticut Natural Gas Co., 421 F. App’x 33 (2d Cir. 2011)) (internal quotation marks
Mr. Buotote was found to have not proffered evidence that the employer’s
stated reasons for the plaintiff’s termination were false such that the comment could show
discriminatory animus to be the real reason for the termination, where the defendant had
undisputedly undergone two major rounds of layoffs in compliance with its policy to
make termination decisions based on seniority and the plaintiff was terminated in lieu of
laying off a more senior employee. See id.
In this case, however, Plaintiff has produced sufficient evidence for a jury to infer
both that Defendant’s stated reason for Plaintiff’s termination was not to be credited, and
that her disability was a motivating factor in the decision to eliminate her position.
Although Defendant’s managers could and did make a business case to increase
headcount when filling a position, Armida never did so when adding the E–mail
Producer position (see Cute Dep. at 158), and had prepared budget presentations with
increased headcount in her department for 2010, the year Plaintiff was terminated (see
Ex. 34 to Pl.’s 56(a)2 Stmt at G00875). While not overwhelming, when considered with
evidence of Armida’s arbitrary decision–making process, her claim, or her reason for her
claim, that she could not fill the E–mail Producer position without eliminating another
position and maintaining a neutral headcount, is put in genuine dispute. As with
Plaintiff’s ADEA claim, Armida’s credibility as the sole decision maker is central to
Plaintiff’s ADA discrimination claims, and questions of credibility are appropriately the
province of the jury.
Finally, the jury will consider the evidence that Gartner was self–insured, and at
the time of the decision to eliminate Plaintiff’s position, Gartner was looking for methods
to reduce insurance costs, knowing that “chronic conditions [like Plaintiff’s COPD]
account for 65% of our overall claims.” (Ex. 32 to Pl.’s 56(a)2 Stmt at G01538.) Based on
the lack of a defined decision making process for eliminating Plaintiff’s role, Armida’s
negative comments regarding Plaintiff’s health and age, and Gartner’s admitted desire to
reduce health insurance costs arising from chronic illnesses, there is sufficient evidence
from which a jury could infer that anti–disability animus was a motivating factor in the
decision to terminate Plaintiff.
For the reasons discussed above, Defendant’s Motion for Summary Judgment
[Doc. # 39] is DENIED.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 15th day of January, 2013.
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