Carlus v. Public Health et al
Filing
59
ORDER: The Motion for Summary Judgment (Doc. No. 53 ) is hereby GRANTED. The Clerk shall close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 03/14/2014. (Bowers, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
RICHEL CARLUS,
:
:
Plaintiff,
:
:
v.
:
:
CONNECTICUT DEPARTMENT OF
:
PUBLIC HEALTH, STEVE MESSER, :
PATRICIA BISACKY, LORI
:
MATHIEU, CINDY SEK, MARCIA
:
COSTA-RODRIGUEZ, AND ANNE
:
STRANT ESDEN,
:
:
Defendants.
:
:
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Case No. 3:11-CV-172(AWT)
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Richel Carlus, proceeding pro se, brings this
action against defendants Connecticut Department of Public
Health (“DPH”), Steve Messer (“Messer”), Patricia Bisacky
(“Bisacky”), Lori Mathieu (“Mathieu”), Cindy Sek (“Sek”), Marcia
Costa-Rodriguez1 (“Costa-Rodriguez”), and Anne Strant Esden
(“Esden”) alleging employment discrimination in violation of
Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §
2000e et seq., and the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. § 46a-51 et seq.
have moved for summary judgment.
The defendants
For the reasons set forth
1
The Complaint lists this defendant‟s last name as Costa-Rodriguez, but both
sides sometimes spell her name Costa-Rodrigues and sometimes spell her name
Costa-Rodriguez.
-1-
below, the defendants‟ motion for summary judgment is being
granted.
I.
FACTUAL BACKGROUND
The plaintiff was hired in May 2008 as an Engineer Intern
assigned to the Drinking Water Division of DPH, and he began his
position there on June 20, 2008.
The plaintiff was required to
complete a six-month working test period before he could become
a permanent employee of DPH.
If the plaintiff completed the
working test period satisfactorily, he was eligible for
permanent appointment to the position of Sanitary Engineer.
During the working test period, the plaintiff was
supervised by Messer, who is a Supervising Sanitary Engineer in
the Drinking Water Section.
As a Supervising Sanitary Engineer,
Messer‟s duties include, inter alia, overseeing employees
assigned to his unit for training, internships and other
projects.
While supervising the plaintiff and reviewing his
work, Messer observed that the plaintiff made numerous similar
repetitive technical errors and that such errors were not being
made by other new hires.
7).
(See 56(a)(1) Stmt. ¶ 72, Messer Aff. ¶
Also, several staff members made informal complaints and
expressed concerns to Messer regarding the plaintiff‟s demeanor
2
The plaintiff denies ¶ 7, but the evidence he cites does not create a
genuine issue as to the facts he denies.
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and inattentiveness.
(See 56(a)(1) Stmt. ¶ 93).
As a result of
the concerns, Messer met with Thomas Malecky (“Malecky”),
Department of Public Health Human Resources Manager, and
Mathieu, Public Health Services Manager, on July 24, 2008 to
discuss the plaintiff‟s work performance and interpersonal
relations.
On September 17, 2008, a draft Mid-Working Test Period
Evaluation (the “Midterm Evaluation”) was completed for
management‟s review by Messer.
(See 56(a)(1) Stmt. ¶ 114).
After he received feedback from management, Messer finalized the
Midterm Evaluation.
The Midterm Evaluation contained a written
performance appraisal and rated the plaintiff‟s abilities as
“below average” in seven out of nine categories.
Ex. A).
(Messer Aff.
The plaintiff received the Midterm Evaluation on
September 24, 2008, and after reviewing the Midterm Evaluation
and discussing it with Messer, he signed the bottom on September
26, 2008.
(See 56(a)(1) Stmt. ¶ 125, Messer Aff. ¶ 18-19).
Messer met with the plaintiff for one hour on each of
September 29, 2008, October 6, 2008 and October 16, 2008 to
review the plaintiff‟s projects and provide the plaintiff with
3
The plaintiff denies ¶ 9, but the evidence he cites does not create a
genuine issue as to the fact he denies.
4
The plaintiff denies ¶ 11, but the evidence he cites does not create a
genuine issue as to the fact he denies.
5
The plaintiff denies ¶ 12, but the evidence he cites does not create a
genuine issue as to the facts he denies.
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one-on-one technical assistance training.
(See 56(a)(1) Stmt. ¶
156).
On October 29, 2008, the plaintiff received a performance
appraisal (the “Final Appraisal”) in which he was rated as “less
than good” in each of the seven categories.
¶ 137, Carey Aff. Ex. E).
(See 56(a)(1) Stmt.
The Final Appraisal concluded,
Overall, Richel has not demonstrated that he has the
ability to use and apply basic engineering theories,
principles and methods required to satisfy the minimum
requirements of an Engineer Intern with DPH Drinking
Water Section and to subsequently advance to the
target class of Sanitary Engineer 1.
(Carey Aff. Ex. E; 56(a)(1) Stmt. ¶ 148).
By letter dated
October 30, 2008, the plaintiff was informed that he was being
dismissed during his working test period based on his
performance since the beginning of his employment with DPH on
June 20, 2008.
Although Messer drafted the Final Appraisal, he
did not have the authority to and did not make the determination
that the plaintiff should be dismissed during the working test
period.
(See 56(a)(1) Stmt. ¶ 189).
On November 4, 2008, the plaintiff requested an
administrative review, known as a Sperl Conference, concerning
his dismissal from DPH.
The Sperl Conference was convened on
6
The plaintiff denies ¶ 15, but the evidence
genuine issue as to the facts he denies.
7
The plaintiff denies ¶ 13, but the evidence
genuine issue as to the fact he denies.
8
The plaintiff denies ¶ 14, but the evidence
genuine issue as to the fact he denies.
9
The plaintiff denies ¶ 18, but the evidence
genuine issue as to the fact he denies.
-4-
he cites does not create a
he cites does not create a
he cites does not create a
he cites does not create a
December 5, 2008, and on December 12, 2008, the plaintiff was
sent a letter indicating that after a review of the information
provided at the Sperl Conference, the decision to dismiss him
during the working test period was being upheld.
During the time period relevant to this action, three other
individuals were dismissed during their working test periods.
Those individuals were a black female, a white female, and a
white male.
II.
(See 56(a)(1) Stmt. ¶ 2610).
LEGAL STANDARD
A motion for summary judgment may not be granted unless the
court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).
When ruling on a motion for
summary judgment, the court may not try issues of fact, but must
leave those issues to the jury.
See, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm‟rs, 834 F.2d 54, 58 (2d Cir. 1987).
Thus, the
trial court‟s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them.
Its duty, in short, is confined . . . to
10
The plaintiff denies ¶ 26, but the evidence he cites does not create a
genuine issue as to the fact he denies.
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issue-finding; it does not extend to issue-resolution.” Gallo,
22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.
An issue is “genuine
. . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S.
at 248 (internal quotation marks omitted).
A material fact is
one that would “affect the outcome of the suit under the
governing law.”
Anderson, 477 U.S. at 248.
Only those facts
that must be decided in order to resolve a claim or defense will
prevent summary judgment from being granted.
minor facts will not prevent summary judgment.
Immaterial or
See Howard v.
Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”
Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.
Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
However,
the inferences drawn in favor of the nonmovant must be supported
by evidence.
“[M]ere speculation and conjecture” is
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insufficient to defeat a motion for summary judgment. Stern v.
Trs. of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997)
(quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d
118, 121 (2d. Cir. 1990)).
Moreover, the “mere existence of a
scintilla of evidence in support of the [nonmovant‟s] position”
will be insufficient; there must be evidence on which a jury
could “reasonably find” for the nonmovant.
Anderson, 477 U.S.
at 252.
Because the plaintiff in this case is proceeding pro se,
the court must read the plaintiff‟s pleadings and other
documents submitted by him liberally and construe them in a
manner most favorable to the plaintiff.
14 F.3d 787, 790 (2d Cir. 1994).
See Burgos v. Hopkins,
Moreover, because the process
of summary judgment is “not obvious to a layman,” Vital v.
Interfaith Medical Ctr., 168 F.3d 615, 620 (2d Cir. 1999), the
district court must ensure that a pro se plaintiff understands
the nature, consequences, and obligations of summary judgment,
see id. at 620-621.
Thus, the district court may itself notify
the pro se plaintiff as to the nature of summary judgment; the
court may find that the opposing party‟s memorandum in support
of summary judgment provides adequate notice; or the court may
determine, based on thorough review of the record, that the pro
se plaintiff understands the nature, consequences, and
obligations of summary judgment.
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See id.
Here, the defendants served the plaintiff with the notice
required by Local Rule 56(b) (see Notice to Pro Se Litigant
Opposing Mot. for Summ. J. (Doc. No. 54)), and the defendants
clearly mapped out in their memorandum in support of their
motion for summary judgment the reasons why they contended the
plaintiff could not produce evidence that could establish
various elements of his claims.
In addition, a review of the
plaintiff‟s memorandum in opposition to the motion for summary
judgment leads the court to conclude that the plaintiff
understood what was at issue in the motion for summary judgment
and responded to specific points.
Also, although the plaintiff
produced evidence in support of his position (see Pl.‟s Mem.
Opp. Mot. Summ. J. (Doc. No. 55-1) Exs. A-P), he simply lacks
evidence that creates a genuine issue of material fact with
respect to the instant motion.
Therefore the court concludes
that the plaintiff understands the nature, consequences, and
obligations of summary judgment.
III. DISCUSSION
A.
Individual Defendants
In his complaint, the plaintiff named Messer, Bisacky,
Mathieu, Sek, Costa-Rodriguez and Esden as defendants.
The
defendants note that Bisacky, Mathieu, Sek, Costa-Rodriguez and
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Esden were never served in this action,11 and thus, the court
does not have personal jurisdiction over them.
See Omni Capital
Int‟l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)
(“Before a federal court may exercise personal jurisdiction over
a defendant, the procedural requirement of service of summons
must be satisfied.”).
However, even if the plaintiff had properly served those
individuals, his claims against the individual defendants fail.
“[I]ndividuals are not subject to liability under Title VII.”
Wrighten v. Glowski, 232 F.3d 119, 119 (2d Cir. 2000) (citing
Tomka v. Seiler Corp., 66 F.3d 1295, 1313–14 (2d Cir. 1995),
abrogated on other grounds by Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998)).
under Title VII.”
“[O]nly employer-entities have liability
Miner v. Town of Cheshire, 126 F. Supp. 2d
184, 200 (D. Conn. 2000).
liability under CFEPA.”
Likewise, “there is no individual
Anderson v. Derby Bd. of Educ., 718 F.
Supp. 2d 258, 267 (D. Conn. 2010) (citing Perodeau v. City of
Hartford, 259 Conn. 729, 743-44 (2002)).
Therefore, the
defendants‟ motion for summary judgment is being granted as to
the plaintiff‟s claims against Messer, Bisacky, Mathieu, Sek,
Costa-Rodriguez and Esden.
11
In his opposition memorandum, the plaintiff appears to state that these
individuals are not intended to be defendants, but are instead “witness[es]
to the case.” (Pl.‟s Mem. Opp. Mot. Summ. J. at 13).
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B.
Department of Public Health
The plaintiff claims that DPH dismissed him during the
working test period because of his race in violation of Title
VII and CFEPA.
Title VII and CFEPA discrimination claims are
analyzed under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
See Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012)
(Title VII); Rogers v. First Union Nat‟l Bank, 259 F. Supp. 2d
200, 204 (D. Conn. 2003) (CFEPA).
Under this framework, “[a]
plaintiff must establish a prima facie case; the employer must
offer through the introduction of admissible evidence a
legitimate non-discriminatory reason for the discharge; and the
plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext.”
McBride v.
BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.
2009).
“The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.”
Texas Dep‟t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
1.
Prima Facie Case
“To establish a claim of racial discrimination a claimant
must show: (1) he belonged to a protected class; (2) he was
qualified for the position he held; (3) he suffered an adverse
employment action; and (4) that the adverse employment action
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occurred under circumstances giving rise to an inference of
discriminatory intent.”
quotation marks omitted).
Brown, 673 F.3d at 150 (internal
The Second Circuit “ha[s]
characterized the evidence necessary to satisfy this initial
burden as „minimal‟ and „de minimis.‟” Zimmermann v. Assocs.
First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).
The defendants only argue that the plaintiff cannot
establish a prima facie case because he has not shown that his
dismissal during the working test period was done under
circumstances giving rise to an inference of discrimination.
However, the plaintiff identifies three white co-workers he
contends he was treated less favorably than: Casey Fleming
(“Fleming”), Costa-Rodriguez and Alex Tabatabai (“Tabatabai”).
The plaintiff has offered evidence in the form of his affidavit
that Messer spent less time working with and training him than
with Fleming, Costa-Rodriguez and Tabatabai.
The plaintiff
avers that Messer gave Fleming one-on-one training in his
cubicle and instructions on how to accomplish projects.
He also
avers that Messer held a job training session with CostaRodriguez and Tabatabai, but he was not invited to attend.
Additionally, the plaintiff avers that on August 12, 2008,
Messer assigned him four lengthy and difficult projects, while
Fleming was only assigned one.
The plaintiff also avers that he
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requested and was denied time off from work, but Costa-Rodriguez
was granted her request for time off.
The plaintiff has presented evidence that Messer treated
the plaintiff differently than his white co-workers.
Although
Messer did not make the ultimate determination that the
plaintiff should be dismissed during the working test period,
Messer was responsible for drafting the plaintiff‟s Midterm
Evaluation and Final Appraisal.
Therefore, the plaintiff has
satisfied his de minimus burden of showing circumstances that
“giv[e] rise to an inference of discriminatory intent” for
purposes of establishing a prima facie case.
Brown, 673 F.3d at
150.
2.
Legitimate Non-Discriminatory Reason
“If the plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to come
forward with a legitimate, nondiscriminatory reason for the
adverse employment action. If the employer does so, the burden
then returns to the plaintiff to demonstrate that race was the
real reason for the employer‟s adverse action.”
Reynolds v.
Barrett, 685 F.3d 193, 202 (2d Cir. 2012) (internal citation
omitted).
The defendant states that the plaintiff was dismissed
during the working test period “due to his lack of proven
knowledge, skills, and abilities to meet the requirements of the
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job description.”
at 12).
(Defs.‟ Mem. Supp. Summ. J. (Doc. No. 53-1)
While supervising the plaintiff‟s work, Messer noted
that the plaintiff was repeatedly making technical mistakes.
Messer detailed many of the issues with the plaintiff‟s work in
the attachment to the Midterm Evaluation and explained why he
rated the plaintiff as “below average” in quality of work,
quantity of work, cooperation, initiative, judgment, job
knowledge and interpersonal skills.
(Messer Aff. Ex. A).
The
plaintiff was rated “average” in the two remaining categories:
ability to learn new duties and dependability.
Id.
Additionally, the evidence presented by the defendants
shows that Messer met with the plaintiff individually on a
number of occasions to go over his work and help improve the
plaintiff‟s technical skills.
On each occasion, Messer took
notes on the projects and technical concepts that he reviewed
with the plaintiff, as well as the problems that he saw in the
plaintiff‟s work.
These notes, which have dates ranging from
September 26, 2008 to October 16, 2008, reflect that the
plaintiff continued to make many of the same errors that were
noted by Messer in the Midterm Evaluation.
With respect to the plaintiff‟s request for time off, the
defendant states that the plaintiff‟s request was denied because
at the time he made the request the decision had already been
made that he would be dismissed and the time that he had
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requested to take off was after October 30, 2008, i.e. the date
of dismissal.
In addition, the plaintiff had not accrued the
amount of time off that he requested (fourteen days), whereas
Costa-Rodriguez had transferred to DPH from another department
where she had accrued sufficient time for her request to take
one day off to be granted.
Because the defendant has proffered a legitimate nondiscriminatory reason for termination of the plaintiff‟s
employment, the burden shifts to the plaintiff to demonstrate
that the given reason is a pretext for discrimination and that
race was the real reason for his dismissal.
3.
Pretext
In order to meet his burden of establishing pretext, “[t]he
plaintiff must produce „sufficient evidence to support a
rational finding that the legitimate, non-discriminatory
reasons‟ presented by the defendant were false, and that „more
likely than not discrimination was the real reason for the
employment action.‟”
Mavrommatis v. Carey Limousine
Westchester, Inc., 476 Fed. App‟x 462, 465 (2d Cir. 2011)
(quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (internal quotation marks and alterations omitted)). “In
short, the question becomes whether the evidence, taken as a
whole, supports a sufficient rational inference of
discrimination.”
Weinstock, 224 F.3d at 42.
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“It is not enough
. . . to disbelieve the employer; the factfinder must [also]
believe the plaintiff‟s explanation of intentional
discrimination.”
St. Mary‟s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993).
The plaintiff argues that the defendant‟s reason for
terminating his employment is pretextual because when he was
originally interviewed by DPH staff, they found him to have
“excellent communication skill[s] and good technical knowledge.”
(Pl.‟s Mem. Opp. Mot. Summ. J. at 10).
However, the working
test period is considered “an extension of the examination
process.”
(Carey Aff. Ex. B).
Pursuant to Article 11 of the
Engineering, Scientific & Technical Union (P-4) Contract, “a
determination of unsatisfactory performance during a Working
Test Period shall be tantamount to a failure of the competitive
exam.”
(Carey Aff. Ex. B).
Thus, the purpose behind the
working test period is to provide for additional assessment of
an employment candidate prior to offering him or her a permanent
position.
Use of such a system contemplates that an employee‟s
actual on-the-job performance may vary from his or her
performance during an interview.
Therefore, the fact that the
plaintiff performed well during his interview does not create a
genuine issue of material fact as to whether he performed
adequately during the actual working test period.
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The plaintiff also argues that “Messer terminated the
plaintiff[‟s] employment without regard to the Agency training
policy of [requiring a] minimum of six months [for the working
test period].”
(Pl.‟s Mem. Opp. Mot. Summ. J. at 10).
However,
the statute which provides that state employees shall complete
working test periods before becoming eligible for permanent
employment also provides that:
At any time during the working test period, after fair
trial, the appointing authority may remove any
employee if, in the opinion of such appointing
authority, the working test indicates that such
employee is unable or unwilling to perform his or her
duties so as to merit continuance in such position and
shall report such removal to the commissioner.
Conn. Gen. Stat. § 5-230.
Thus, terminating the plaintiff‟s
employment prior to the completion of the working test period
was permissible if DPH determined that the plaintiff was unable
to meet the job requirements.
Finally, the plaintiff argues that the fact that he
completed projects while at DPH refutes “the baseless claim of
poor performance during the working test period.”
Opp. Mot. Summ. J. at 11).
(Pl.‟s Mem.
However, the plaintiff does not
offer evidence as to the length or complexity of the projects,
or how good a job he did on them.
The plaintiff provides a copy
of the “Windsor Locks Source Abandonment” project as evidence
that he completed projects.
The document that he submitted is
five pages and the plaintiff‟s name appears on one page.
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However, the plaintiff does not state how much or which work on
the project he was actually responsible for completing.
Pl.‟s Mem. Opp. Mot. Summ. J. Ex. A).
(See
Additionally, the
plaintiff states that the claim of poor performance is
controverted by his academic record, the fact that he has since
worked as a field Engineer II with another company and the fact
that he has received a Master‟s Degree in Chemical Engineering.
However, the plaintiff has not produced any evidence to support
these facts or to show how they are an indication of his
abilities during the period from June 2008 to October 2008.
Thus, the plaintiff has failed to proffer evidence that could
show that the reason given by DPH for terminating his employment
is pretextual.
In addition to showing that the employer‟s proffered reason
is a pretext for discrimination, the plaintiff is required to
show that the actual reason for terminating his employment was
his race.
In the present case, the plaintiff has not produced
any evidence that Messer or DPH acted with a discriminatory
animus.
While the plaintiff alleges that Messer treated him
unequally because of his race, the plaintiff‟s mere allegations
are insufficient create a genuine issue of material fact.
See
Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)
(“[M]ere conclusory allegations or denials in legal memoranda
. . . are not evidence and cannot by themselves create a genuine
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issue of material fact where none would otherwise exist.”
(internal quotation marks omitted)).
The plaintiff points to no
conduct on the part of Messer which could show that he harbored
a discriminatory animus.
Additionally, the evidence submitted by the plaintiff shows
that one of the white co-workers the plaintiff claims received
more favorable treatment resigned at the end of her working test
period to “avoid termination.”
Ex. L).
(Pl.‟s Mem. Opp. Mot. Summ. J.
The fact that the white co-worker was going to be
terminated undermines the plaintiff‟s speculative allegation
that his employment was terminated because of his race.
Because the plaintiff has not proffered evidence that could
show that the reason given for his termination was pretextual,
and even if he could, he has not proffered evidence that could
show that the real reason for termination of his employment was
his race, the motion for summary judgment is being granted as to
the plaintiff‟s claims for violation of Title VII and CEFPA by
defendant DPH.
IV.
CONCLUSION
For the reasons set forth above, the defendants‟ Motion for
Summary Judgment (Doc. No. 53) is hereby GRANTED.
Judgment
shall enter in favor of the defendants on all the claims in the
plaintiff‟s complaint.
The Clerk shall close this case.
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It is so ordered.
Dated this 14th day of March, 2014, at Hartford,
Connecticut.
/s/
Alvin W. Thompson
United States District Judge
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