Vale v. City of New Haven Police Dept

Filing 147

ORDER (see attached) granting in part and denying in part Defendant's 116 Motion for Summary Judgment; and finding as moot Plaintiff's 143 Second Motion for Oral Argument. Signed by Judge Charles S. Haight, Jr. on July 19, 2016.(Overbey, C.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
KIMBERLY VALE,
Plaintiff,
v.

Case No. 3:11-cv-00632 (CSH)

CITY OF NEW HAVEN,
Defendant.

JULY 19, 2016

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HAIGHT, Senior District Judge:
Plaintiff Kimberly Vale filed this age discrimination case after she was denied a position with the
New Haven Police Department following training as a recruit. On March 2, 2015, Defendant City of New
Haven filed a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure [Doc.
116]. Plaintiff opposed that motion. The Court heard oral argument. Plaintiff has filed a Second Motion
for Oral Argument [Doc. 143]. This Ruling decides both motions.
I.
Vale applied to join the New Haven Police Department on two separate occasions. She was rejected
twice, and in this action complains about each rejection.
The operative pleading is the Second Amended Complaint [Doc. 113], which Plaintiff filed by
permission the Court granted in an order [Doc. 112]. There are three counts, each asserting claims under
a Connecticut statute.

Count One alleges age discrimination, in violation of the Connecticut Fair

Employment Practices Act ("CFEPA"), C.G.S. § 46a-60(a)(1). Count Two alleges retaliation, in violation
of a general state statute, C.G.S. § 31-51q. Count Three alleges retaliation, in violation of a separate CFEPA
provision, § 46a-60(a)(4).

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Vale filed her initial complaint, invoking these Connecticut statutes, in a Connecticut state court.
The Defendant City removed the action to this Court, invoking federal question subject matter jurisdiction.
Vale moved for a remand, on the ground that the complaint did not allege a cause of action arising under
federal law, and the parties' citizenship was not diverse. Judge Dorsey denied Vale's remand motion in an
unreported Ruling. Doc. 18. He noted that "Vale alleges that the New Haven Police Department violated
[Conn. Gen. Stat.] section 31-51q by retaliating against her for allegedly exercising her free speech rights
as guaranteed by the Connecticut Constitution by complaining about overtime to the union." Slip op. at 2-3.
Judge Dorsey held that "by pleading a section 31-51q cause of action in her Complaint, Vale raised a federal
question sufficiently substantial to confer federal question jurisdiction." Id. at 3. He considered himself
bound by the Second Circuit's holding in Bracey v. Board of Education, 368 F.3d 108, 114 (2d Cir. 2004)
that "[A] federal question is sufficiently substantial to support federal question jurisdiction if the vindication
of a right under state law necessarily turns on some construction of federal law" (citation and internal
quotation marks omitted), a principle that governed the case, in which (as here) the plaintiff asserted a claim
under C.G.S. section 31-51q, . A "section 31-51q cause of action," the Second Circuit reasoned in Bracey,
"requires that a court construe federal First Amendment law and evaluate its scope," so that the claim
"necessarily turns on some construction of federal law" and is sufficiently substantial to sustain federal
subject matter jurisdiction. 368 F.3d at 115-116.
Accordingly, federal jurisdiction over the case at bar is established. The following discussion
considers the Connecticut statutes upon which Vale's claims are based, together with the First Amendment,
and the federal Age Discrimination in Employment Act, 29 U.S.C. § 623(a) ("ADEA"), which is also
implicated in the action.
Vale's First Amendment claim vests this Court with original jurisdiction. As for her state law claims,
the Court in its discretion exercises supplemental jurisdiction over them.

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28 U.S.C. § 1367(a).

II.
Following discovery, the City of New Haven moved for summary judgment under Rule 56. The facts
recounted herein are derived from the parties' Local Rule 56(a)(1) and (a)(2) statements and the attached
exhibits. Throughout the following discussion, citations to Local Rule "56(a)(1)" refers to Defendant's
statement of the facts. Local Rule "56(a)(2)" refers to Plaintiff's statement. The facts recited in this Part and
are undisputed or indisputable, unless noted otherwise.
The case arises out of two unsuccessful attempts by the Plaintiff to become a member of the New
Haven Police Department. In 2009, Plaintiff was hired as a police recruit by the New Haven Police
Department. During her time as a recruit, she claims she was subjected to discrimination based on her age,
and was ultimately required to resign. She subsequently applied a second time to the Police Academy, but
was rejected based on subsequent physical and psychological examinations. Plaintiff now sues for
discrimination and retaliation in violation of the Connecticut Fair Employment Practices Act, C.G.S. § 46a60(a)(1), ("CFEPA") and retaliation in violation of C.G.S. § 31-51q.
In September of 2009, Plaintiff Kimberly Vale was hired as police recruit in training by the New
Haven Department of Police Service. Loc. R. 56(a)(1) Statement, ¶ 1. The standards and guidelines for the
Police Academy (the "Academy") are promulgated by the Connecticut Police Officers Standards and
Training Council ("P.O.S.T."). Id. at ¶ 2. P.O.S.T. requirements include a comprehensive curriculum of
physical training, practical training, and class work. Id. at ¶ 7. Upon completion, recruits receive certification
as a police officer. Id. During the time that the Plaintiff was at the Academy, the Academy was supervised
by Captain Redding and Senior Training Officer Robert Strickland, who worked alongside Officer Jason
Salgado to train the recruits. Id. at ¶ 3. Officer Strickland was a training instructor and makes no hiring or
firing decisions. Id. at ¶ 5.
While at the Academy, Plaintiff was forty-four years old. Loc. R. 56(a)(1) Statement, ¶ 1. Plaintiff

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was not the oldest recruit in her class. Id. at ¶ 41. According to the Defendant, Plaintiff, like all other recruits,
was subjected to stress inoculation by their training instructors. Id. at ¶ 6. This was meant to prepare the
recruits for the conditions of patrolling the streets and to "develop mental toughness." Id. Defendants assert
that comments about Plaintiff's age and whether or not she belonged at the Academy were part of the stress
inoculation. However, Plaintiff notes that no other recruit was subjected to statements about their
membership in a protected class. Loc. R. 56(a)(2) Statement, ¶ 6. During one lesson, Officer Strickland said
"grandma can shoot" in reference to the Plaintiff. Loc. R. 56(a)(1) Statement, ¶ 38. Plaintiff asserts that she
was called "grandma" and other references were made to her being old by Officer Strickland throughout the
course. Loc. R. 56(a)(2) Statement, p. 6, ¶ 5. She cannot recall specifically when the comments were made,
other than to note that they were made on four or five occasions. Id.
In addition, Plaintiff claims that during the first week of the academy, Officer Strickland instructed
her not to return to class until she had her husband, a member of the police department, speak with him. Loc.
R. 56(a)(2) Statement, p. 5 ¶ 1. Plaintiff alleges that when her husband, Armando Vale, called Officer
Strickland, Officer Strickland said that Plaintiff was having a hard time in class and that he did not think she
would make it. Id. at ¶ 2. Furthermore, Plaintiff asserts that Officer Strickland told her husband that Plaintiff
was "too motherly." Id.
As part of her physical training, Plaintiff was required to complete an obstacle course in a prescribed
time. Loc. R. 56(a)(1) Statement, ¶ 8. P.O.S.T. will not certify any recruit who fails to complete the obstacle
course in the prescribed time of one minute and forty six seconds. Id.; Id. at 16. Recruits are allowed two
attempts to complete the obstacle course. Id. at 9. Before the recruits attempted the obstacle course, Officer
Strickland demonstrated the best approaches to each obstacle. Id. at ¶ 10.
On March 9, 2010, Plaintiff attempted the test twice. Loc. R. 56(a)(1) Statement, ¶ 17. Plaintiff's time
for the first attempt was recorded by Officer Strickland as one minute and forty eight seconds. Id. at ¶ 18.
At the end of the first administration of the obstacle course, Plaintiff fell down and was not standing. Id. at

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19. Officer Strickland then informed Plaintiff and the other recruits that they must be standing at the end of
the course. Loc. R. 56(a)(2) Statement, p. 6, ¶ 9. Plaintiff contends that she would have completed the course
in the designated time if she had not been required to stand. Id. at ¶ 18. One other recruit also did not
complete the course on the first attempt in the allotted time. Loc. R. 56(a)(1) Statement, ¶ 20. Plaintiff alleges
that Officer Strickland gave preferential treatment to this recruit that he was having a sexual relationship
with, but does not provide any support for this allegation, such as what the preferential treatment was other
than "allowing her to complete the course." Loc. R. 56(a)(2) Statement, ¶ 11, ¶ 20. During training, Officer
Strickland also administered several tests that were judged on a more subjective basis than the obstacle
course, including an arms test and baton and handcuffing training. Loc. R. 56(a)(1) Statement, ¶ 13.
Plaintiff's second attempt at the obstacle course was recorded as one minute and fifty seconds. Loc.
R. 56(a)(1) Statement, ¶ 21. Officer Strickland was also responsible for timing the course the second time.
Id. at ¶ 23. However, he was not the only supervisor there. Id. Plaintiff further claims that Officer Strickland,
during her second attempt at the course, had her run at the same time as another recruit, Victor Rawlinson.
Loc. Rule. 56(a)(2) p. 6, ¶ 10. Plaintiff claims that having two recruits run the course at the same time could
have interfered with her time, especially because the two had to pass each other on narrow stairs. Id. at ¶ 11.
After Plaintiff failed the course a second time, Officer Strickland notified Captain Redding, who in
turn sought guidance from P.O.S.T. Loc. R. 56(a)(1) Statement, at ¶¶ 24–25. P.O.S.T. informed Captain
Redding that Plaintiff could not be certified as a municipal police officer under P.O.S.T. regulations. Id. at
¶ 26. Captain Redding handled Plaintiff's separation; Officer Strickland was not involved in the separation
process. Id. at ¶ 28.
During her training, Plaintiff was given a copy of the New Haven Police Academy student handbook,
which contained an anti-discrimination and harassment policy. Id. at ¶ 42. However, Plaintiff did not report
any age discrimination to Officer Strickland's superiors during her time at the Academy. Id. at ¶ 43.Plaintiff
asserts that she tried to talk to Sergeant Sydnor, the subsequently appointed head of the Academy, but he

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refused to listen to her complaint. Loc. R. 56(a)(2) Statement, ¶ 43 During her time as a recruit, Plaintiff kept
contemporaneous notes of daily events. Loc. R. 56(a)(1) Statement, ¶ 12. These notes do not contain any
references to comments about her age. Id.
Plaintiff claims that, in addition, Officer Strickland singled her out for harsh treatment because he
believed she had reported unpaid overtime hours of recruits to the Connecticut Department of Labor. Loc.
R. 56(a)(2) Statement, p. 7, ¶ 21. Officer Strickland, according to Plaintiff, blamed her for the "catastrophic
mess" that resulted. Id. However, Plaintiff never reported an overtime issue to anyone. Loc. R. 56(a)(1)
Statement, ¶ 44.
Approximately two years later, in October 2011, Plaintiff reapplied to become a police officer. Loc.
R. 56(a)(1) Statement, ¶ 29. On September 21, 2012, Plaintiff was informed that she still needed to pass a
physical agility and medical examination for her application to be considered. Id. at ¶ 30. During the
physical agility test, Plaintiff became ill and was unable to complete the course, but was told, in accordance
with the Academy's practice, that she would be given a chance to retake the test after recovering. Id. at ¶ 31.
Plaintiff was also required to undergo a pre-employment psychological examination. Id. at ¶ 32. Mark
Kirshner, Ph.D., completed the examination and determined that Plaintiff was "not qualified" for hire as a
police officer. Id. at ¶ 33. Plaintiff asserts that she was only deemed "not qualified" after it became known
that she would have reason to retake the fitness test. Loc. R. 56(a)(2) Statement, ¶ 33. Dr. Kirshner is the
same evaluator who performed Plaintiff's first psychological evaluation for admission into the Police
Academy in 2009. Loc. R. 56(a)(1) Statement, ¶ 34. In his first evaluation, Dr. Kirshner found her qualified
with reservations, though Plaintiff notes that she was never informed that there were any reservations. Loc.
R. 56(a)(1) Statement, ¶ 35; Loc. R. 56(a)(2) Statement, ¶ 35.
Plaintiff was notified on October 5, 2012 that she did not meet two of the requirements for admission
to the Academy, and that her application would not move forward. Loc. R. 56(a)(1) Statement, ¶ 36. Captain
Redding and Officer Strickland were not involved in the review of her 2011 application. Id. at ¶ 37.

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III.
Rule 56(a) of the Federal Rules of Civil Procedure provides that "[t]he court shall grant summary
judgment 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). Under this standard, "the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty
Lobby, 477 U.S. 242, 247–48 (1986). The burden of proof regarding the absence of any genuine issues of
material fact rests with the moving party. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010)
(citing Rodriguez v. City of New York, 72 F.3d 1051, 1060–61 (2d Cir. 1995)). Finally, summary judgment
is only proper where no reasonable inference could be drawn in favor of the nonmoving party from the
evidence in the record. Vivenzio, 611 F.3d at 106 (citing Howley v. Town of Stratford, 217 F.3d 141, 151 (2d
Cir. 2000)) ("It is not the province of the court itself to decide what inferences should be drawn.")
Additionally, a moving party "may obtain summary judgment by showing that little or no evidence may be
found in support of the nonmoving party's case." Gallo v. Prudential Residential Services, Ltd. Partnership,
22 F.3d 1219, 1223–24 (2d Cir. 1994). The Court is also confined to issue-finding at this stage of litigation,
rather than issue-resolution. Id. at 1224.
Summary judgment may be granted "even in the fact-intensive context of discrimination cases."
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). However, a trial court must be
cautious about granting summary judgment when, in a discrimination case, the intent of the employer is at
issue. Id. "Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found
among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination." Id.

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IV.
Count One of the Second Amended Complaint alleges violation of the Connecticut Fair Employment
Practices Act ("CFEPA"), C.G.S. § 46a-60(a)(1), a section which prohibits discriminating against an
employee on the basis of his or her age.
Connecticut age discrimination law, in relevant part, follows the federal Age Discrimination in
Employment Act, 29 U.S.C. § 623(a) ("ADEA"). See Fasoli v. City of Stamford, 64 F.Supp.3d 285, 313 (D.
Conn. 2014). However, though Connecticut has "often looked to federal employment discrimination law for
guidance in enforcing [Connecticut's] antidiscrimination statute, . . . under certain circumstances, federal law
defines 'the beginning and not the end of [Connecticut's] approach to the subject.'" State v. Commission on
Human Rights and Opportunities, 559 A.2d 1120, 1124 (Conn. 1989) (quoting Evening Sentinel v. National
Organization for Women, 357 A.2d 498, 504 n. 5 (Conn. 1975)).
Connecticut state discrimination law applies the burden shifting framework set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for CFEPA age discrimination claims.
The framework requires the Plaintiff to first make a prima facie case of discrimination, then, if the plaintiff
is successful, the burden of proof switches to the defendant to articulate "some legitimate, nondiscriminatory
reason" for its action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once this reason is
provided, the burden of proof returns to the plaintiff to show that the reason is pretextual. Holcomb v. Iona
College, 521 F.3d 130, 138 (2d Cir. 2008).
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, [and] (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) (citation omitted).
Furthermore, “[a] plaintiff's burden of establishing a prima facie case is de minimis. The requirement is
neither onerous, nor intended to be rigid, mechanized, or ritualistic.” Abdu-Brisson v. Delta Air Lines, Inc.,

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239 F.3d 456, 467 (2d Cir. 2001) (citations and internal quotation marks omitted).
Plaintiff and Defendant argue about how to apply the fourth element. Defendants cite to this Court's
opinion in Fasoli v. City of Stamford, 64 F.Supp.3d 285 (D. Conn. 2014), for the proposition that to establish
the fourth element, a plaintiff must show that her "age was the 'but-for' cause of the adverse employment
action." Fasoli v. City of Stamford, 64 F.Supp.3d 285, 313 (D. Conn. 2014) (quoting Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009)). This standard comes from a recent Supreme Court Case regarding
ADEA cases. In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that
in order to establish a violation of the ADEA, a plaintiff must show that age was the but-for cause of the
adverse employment action, not simply a contributing or motivating factor. Gross v. FBL Financial Services,
Inc., 557 U.S. 167, 180 (2009). Previously, the "mixed motive" or "motivating factor" standard applied. In
Fasoli, this Court noted that though neither the Connecticut Supreme Court nor the Appellate Court had
addressed whether Gross's "but-for" causation requirement impacted the CFEPA analysis, because the
Second Circuit has applied the "but-for" standard to such claims, "the Court continues to do so here until a
Connecticut appellate court rules otherwise." Fasoli, 64 F.Supp.3d at 313 n. 34; accord Irizarry v. United
Postal Service, Inc., 2014 WL 1246684, *11 (D. Conn. Mar. 24, 2014) (Judge Hall) (citing Gross in a
CFEPA case for the proposition that age discrimination was the "but for" causation of the adverse
employment action).
In several cases pre-dating Fasoli, Judge Bryant applied the "mixed motive" or "motivating factor"
standard after Gross. See Asante-Addae v. Sodexo, 2015 WL 1471927 (D. Conn. Mar. 31, 2015); Tremalio
v. Demand Shoes, LLC., 2013 WL 5445258, at *20–21 (D. Conn. Sept. 30, 2013); Hasemann v. United
Parcel Service of America, Inc., 2013 WL 696424, *12–13 (D. Conn. Feb. 26, 2013); Aiello v. Stamford
Hosp., 2011 WL 3439459 at *27 (D.Conn. Aug. 8, 2011); and Herbert v. National Amusements, Inc., 833
F.Supp.2d 192, 202–03 (D. Conn. 2011); see also Sagila v. Chemtura Corp., 2015 WL 5795000 (D. Conn.
Sept. 30, 2015) (Judge Bolden) (applying mixed-motive standard to CFEPA claim). In Tremalio, she noted

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that the court would "follow existing Connecticut Supreme Court pronouncements on the appropriate
standard to employ in applying Connecticut law and apply a contributing or motivating factor analysis to
CFEPA claims." Tremalio, 2013 WL 5445258, at *21. Judge Bryant also noted that though the Second
Circuit had recently applied the "but for" standard, see Rubinow v. Boehringer Ingelheim Pharms., Inc., 496
Fed. Appx. 117, 118 (2d Cir. 2012) (summary order); Timbie v. Eli Lilly & Co., 429 Fed. Appx. 20, 22 n. 1
(2d Cir. 2011) (summary order), "neither the Connecticut Supreme Court nor the Appellate Court have had
occasion to rule on the issue, and there is a split of authority at the Connecticut trial court level on this issue."
Id. at 20 (comparing Dwyer v. Waterfront Enters., CV126032894S, 2013 Conn.Super. LEXIS 1174, at
*26–27 (Conn.Super.Ct. May 24, 2013) (declining to apply the holding in Gross, and determining that under
CFEPA, a plaintiff is only required to prove that age discrimination was a contributing or motivating factor,
rather than a “but-for” reason for the adverse employment action); and Wagner v. Bd. of Tr. for Connecticut
State Univ. No. HHDCV085023775S, 2012 Conn.Super. LEXIS 316, at (Conn.Super.Ct. Jan. 30, 2012); with
Marasco v. Conn. Reg'l Vocational–Technical Sch., CV095014324, 2012 Conn.Super. LEXIS 2572, at
*15–18 (Conn.Super.Ct. Oct. 15, 2012) (applying the holding in Gross to plaintiff's CFEPA claim)).
Plaintiff points the Court to a recent decision by Judge Shea in the District of Connecticut,
Weisenbach v. LQ Management, 2015 WL 5680322 (D. Conn. Sept. 25. 2015). The court in Weisenbach
concluded that the "motivating factor" standard still applied to the CFEPA after Gross. The court looked to
the Connecticut trial courts for guidance, and concluded that the trial courts continued to apply the
"motivating factor" standard under the CFEPA, and that no Connecticut appellate court had spoken on the
question. Weisenbach v. LQ Mgmt., 2015 WL 5680322, at *7 (D. Conn. Sept. 25, 2015) (citing Frederick
v. Gladeview Health Care Ctr., Inc., No. CV116011350, 2014 WL 1876955, at *5 (Conn. Super. Ct. Apr.
10, 2014) (“Until our appellate courts say otherwise, this court will continue to apply the ‘mixed motive’ and
‘pretext’ models discussed by our state Supreme Court in Levy v. Commission on Human Rights &
Opportunities, [236 Conn. 96, 104-05 (1996)]”); Wagner v. Bd. of Trustees for Connecticut State Univ., 2012

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WL 669544, at *11 (Conn. Super. Ct. Jan. 30, 2012) (declining to require the “but for” test, and allowing the
“contributing or motivating factor” test for a CFEPA age discrimination claim); see also Dwyer v. Waterfront
Enterprises, Inc., No. CV126032894S, 2013 WL 2947907, at *8 (Conn. Super. Ct. May 24, 2013) (“in
accordance with the liberal construction afforded to CFEPA, [plaintiff] need only plead that his physical
disability was a motivating factor in his termination.”)). A survey of Connecticut cases since Weisenbach
confirms that the majority of Connecticut trial courts are still applying the "motivating factor" standard.
Judge Shea noted, as did Judge Bryant, that the Second Circuit has issued two summary orders
applying the more demanding Gross "but-for" standard to the CFEPA. See Rubinow v. Boehringer Ingelheim
Pharms., Inc., 496 Fed. Appx. 117, 118 (2d Cir. 2012) (summary order); Timbie v. Eli Lilly & Co., 429 Fed.
Appx. 20, 22 n. 1 (2d Cir. 2011) (summary order). Judge Shea articulated several reasons why he was not
bound by these precedents. Weisenbach, 2015 WL 5680322, at *8. First, he noted that "neither case, . . .
specifically discussed what standard the Connecticut Supreme Court would decide to apply to the CFEPA
after Gross." Id. Second, summary orders do not have precedential effect. Id. (citing Second Circuit L. R.
32.1.1(a); Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) ("a summary order is not citable
as precedent."). Furthermore, the Second Circuit has also affirmed the application of both the "but-for" test
and the "motivating factor" test where the district court found that even under the more lenient "motivating
factor" standard the plaintiff failed to show age discrimination. Id. (citing Aiello v. Stamford Hosp., 487
Fed.Appx. 677 (2d Cir. 2012). Judge Shea ended his analysis on this point in Weisenbach by concluding: "I
follow Connecticut trial courts in predicting that the Connecticut Supreme Court will continue to apply the
more lenient 'motivating factor' standard to CFEPA discrimination claims." Weisenbach., 2015 WL 5680322,
at *8.
While Second Circuit summary orders do not have precedential effect, this "does not mean that the
court considers itself free to rule differently in similar cases." Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir.
2011). As the court explained in Jackler v. Byrne, "the rationale underlying the Rule is that such orders,

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being summary, frequently do not set out the factual background of the case in enough detail to disclose
whether its facts are sufficiently similar to those of a subsequent unrelated case to make our summary ruling
applicable to the new case." Id. at 245. "Implicit in that rationale is that summary orders should be given
more weight, where, as here, they address a question of law." CSL Silicones Inc. v. Midsun Group Inc., 2016
WL 1060189, *7 n. 8 (D. Conn. Mar. 15, 2016). However, because the Second Circuit has explicitly
recognized the "potential instability in Connecticut law" and sanctioned the application of both tests, this
Court agrees with Judge Shea in Weisenbach, insofar as this Court is not bound by the Second Circuit's
application of the "but for" test in Rubinow or Timbie, given that the applicable standard does not appear to
have been at issue in the case or a decisive aspect of the Court of Appeals' rulings in those cases. This Court
adds only that it owes deference to the Second Circuit's summary orders, especially when a question of law
is at issue.
Since Judge Shea's Weisenbach opinion, several other judges have had the opportunity to consider
the question in the District of Connecticut. See Mendillo v. Prudential Insurance Co. of America, 2016 WL
146429 (D. Conn. Jan. 12, 2016) (Judge Bolden); Larocca v. Frontier Communications, Corp., 2016 WL
74393, at *3 (D. Conn. Jan. 6, 2016) (Judge Meyer); DeAngelo v. Yellowbook Inc., 105 F.Supp.3d 166
(D.Conn. 2015) (Judge Crawford); Delgado v. City of Stamford, 2015 WL 6675534 (D. Conn. Nov. 2, 2015)
(Judge Bolden); see also Anderson v. Eastern Connecticut Health Network, 2015 WL 4393552 (D. Conn.
Jul. 16, 2015) (Judge Chatigny) (applying "motivating factor" standard to CFEPA claim without discussion);
Gallagher v. Town of Fairfield, 2015 WL 3453342 (D. Conn. May 29, 2015) (holding plaintiff could not
meet either standard). Judge Meyer in Larocca v. Frontier Communications, Corp., 2016 WL 74393, at *3
(D. Conn. Jan. 6, 2016), Judge Crawford in DeAngelo v. Yellowbook Inc., 105 F.Supp.3d 166 (D.Conn.
2015), and Judge Bolden in Mendillo v. Prudential Insurance Co. of America, 2016 WL 146429 (D. Conn.
Jan. 12, 2016), note that there is uncertainty as to whether the motivating factor test still applies in CFEPA
age discrimination cases after Gross. Id.; see also Fetcho v. Hearst Connecticut Post, LLC, 103 F.Supp.3d

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207, 217 (D. Conn. 2015) (Judge Crawford) (noting the uncertainty without deciding which test to apply
given other deficiencies in plaintiff's complaint). Both Judge Meyer in Larocca and Judge Bolden in
Mendillo, Sagila v. Chemtura Corp., 2015 WL 5795000 (D. Conn. Sept. 30, 2015), and Delgado v. City of
Stamford, 2015 WL 6675534 (D. Conn. Nov. 2, 2015) applied the motivating factor test as the lessdemanding standard and concluded that the plaintiffs had not met even the motivating factor standard, let
alone the but-for standard. Hence, as both Judges noted, it would not have mattered which test they applied.
Id. Judge Crawford applied both tests and determined that the plaintiff had met even the more-demanding
"but for" standard. DeAngelo, 105 F.Supp.3d at 181. The Court undertakes this review to emphasize the lack
of clarity in Connecticut law as to this question.
The Court in this case need not determine on summary judgment which standard should apply
because there is a genuine issue of material fact as to whether Plaintiff was required to leave the Academy
on the basis of her age under either standard, including the more stringent but-for standard. "A 'but-for'
causation standard requires a plaintiff to show that, but for his [age], his employer would not have inflicted
the adverse employment action; however, a plaintiff need not establish that discrimination was the sole
reason for the employer's action." DeAngelo, 105 F.Supp.3d at 176. Plaintiff argues a "cat's paw" theory of
liability. Under that theory, a "nondecisionmaker with a discriminatory motive," in this case Officer
Strickland, "dupes an innocent decisionmaker into taking action against the plaintiff." Saviano v. Town of
Westport, 2011 WL 4561184, *7 (D. Conn. Sept. 30, 2011). To succeed on that scenario, Plaintiff must
establish that, but for the actions of her supervisor related to his age-based animus, she would not have been
required to resign from the Academy.
Defendant argues that because Plaintiff has also alleged that she was retaliated against because
Officer Strickland believed that she was responsible for reporting wage violations to the Connecticut
Department of Labor, it follows that her age was not and could not be the "but for" cause of Plaintiff losing
her position as a recruit. I do not agree. In a recent post-Gross ADEA decision, the Second Circuit held:

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"The condition that a plaintiff's age must be the 'but for' cause of the adverse employment action is not
equivalent to a requirement that age was the employer's only consideration, but rather that the adverse
employment action would not have occurred without it." Delaney v. Bank of America Corp., 766 F.3d 163,
169 (2d Cir. 2014) (citation and internal quotation marks omitted; emphases in original).
In the case at bar, a majority of the alleged discriminatory comments made by Officer Strickland
concerned the Plaintiff's age. Plaintiff alleges that Officer Strickland called her grandma on approximately
five occasions and that he told her husband that she was "too motherly." On the other hand, Plaintiff alleges
only one instance of harsh treatment directly referencing the wage issues. The repetitive age-related remarks
Vale alleges Strickland directed at her are sufficient, if believed by a jury, to support the inference that
whatever else might have been on Strickland's mind or disturbing his psyche at the time, Vale would not have
been terminated as a police recruit if she had been, say, twenty years younger. That conclusion would satisfy
the "but for" requirement as articulated by the Second Circuit in Delaney. In short, an issue of fact is
presented which requires trial and precludes summary disposition.
Defendants argue, in addition, that the comments made by Officer Strickland were "stray comments"
and thus not capable of sustaining a prima facie discrimination case. Stray comments are "isolated derogatory
remarks" that do not create a presumption of discrimination. Dixon v. International Federation of
Accountants, 416 Fed.Appx. 107, 110 (2d Cir. 2011). Generally, "remarks made by someone other than the
person who made the decision adversely affecting the plaintiff may have little tendency to show that the
decision-maker was motivated by discrimination." Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111,
115 (2d Cir. 2007).
First, the comments made by Officer Strickland, if they occurred as alleged, are hardly isolated.
Plaintiff alleges that he called her "grandma" on five or six occasions and called her husband to tell him that
she was "too motherly." Describing a woman as excessively "motherly" is directed both at her age and
gender, and as this case demonstrates, the adjective is not always welcomed as a saccharine Hallmark tribute.

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The gravamen of Vale's complaint is that Strickland used the term in conversation with Vale's husband (also
a New Haven police officer) in an effort to persuade the husband that Vale was not an appropriate police
recruit. In addition, Defendant's argument that Officer Strickland was not a "decision-maker," is
disingenuous. See Oral Argument Transcript, p. 17. Officer Strickland was responsible for reporting whether
or not Plaintiff passed various tests along the way, and thus had control, though indirect, over whether
Plaintiff stayed at the academy or left. Coupled with Officer Strickland's harsh treatment of Plaintiff, both
in the classroom and in the physical training portion of the course, the comments made by Officer Strickland
constitute a genuine issue of material fact as to whether or not they are stray. The Court cannot conclude
otherwise at the summary judgment stage.
Defendants also argue that Plaintiff cannot demonstrate the third prong of the McDonnell test: that
the reasons proffered by the Defendants for Plaintiff's termination are pretextual. Defendant's legitimate and
nondiscriminatory reason for Plaintiff's termination is that she failed the obstacle course required to become
a police officer on two separate occasions. However, Plaintiff has alleged sufficient facts to make it an
appropriate question for the jury whether or not these proffered reasons are pretextual. First, she alleges that
Officer Strickland imposed a new requirement that all recruits be standing at the end of the course after
Plaintiff ended the course in a sitting position. Though Defendant asserts that Plaintiff would still have been
over time, the Court cannot find any evidence in the record to suggest that Plaintiff would have been over
the time limit regardless of whether she was standing or sitting. Defendant's conclusory allegation to the
contrary cannot defeat Plaintiff's allegation at this stage of the case. Furthermore, Plaintiff alleges that on
her second try, Officer Strickland had her run the course at the same time as another recruit, which slowed
her as she approached a narrow stair obstacle.
Plaintiff alleges that Officer Strickland undertook to fail her on the obstacle course because of his
age-based animus toward her. That accusation poses the issue. The facts pleaded are sufficient, at the
summary judgment stage, to raise a genuine question of fact as to whether the reason the City proffers for

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Vale's termination as a police recruit is pretextual. Summary judgment will accordingly be denied to the
CFEPA claim.
V.
Count Two of the Second Amended Complaint alleges a claim for a violation of Conn. Gen. Stat.
§ 31-51Q. Section 31-51Q states that "[a]ny employer . . . who subjects any employee to discipline or
discharge on account of the exercise by such employee of rights guaranteed by the [F]irst [A]mendment to
the United States Constitution or [parallel provisions of the Connecticut Constitution], provided such activity
does not substantially or materially interfere with the employee's bona fide job performance or the working
relationship between the employee and employer . . .. " is subject to liability. Conn. Gen. Stat. § 31-51Q.
Plaintiff alleges that Defendant Strickland retaliated against her because he believed, wrongly, that she was
responsible for reporting wage violations to the Connecticut Department of Labor. Defendants argue that in
order to establish a violation of § 31-51Q, a plaintiff must show that he or she actually engaged in a protected
activity, a showing the City contends Vale cannot make. On Plaintiff's own account she did not engage in
the protected activity of reporting wage violations. Defendants further assert that "the record does not
contain any evidence to demonstrate that she was terminated for exercising free speech rights other than her
conclusory and conjectured theory." Doc. 116-2, p. 22.
“In order to demonstrate a violation of [Conn. Gen.Stat.] section 31–51Q, a plaintiff must prove that:
(1) he was exercising rights protected by the first amendment to the United States Constitution (or an
equivalent provision of the Connecticut Constitution); (2) he was fired on account of his exercise of such
rights; and (3) his exercise of his first amendment (or equivalent state constitutional rights) did not
substantially or materially interfere with his bona fide job performance or with his working relationship with
his employer.” Lopez v. Burris Logistics Co., 952 F. Supp. 2d 396, 406-07 (D. Conn. 2013) (citing Kennedy
v. Coca–Cola Bottling Co. of New York, Inc., 170 F.Supp.2d 294, 299 (D. Conn. 2001)). In construing § 3151Q, Courts are required to "construe federal First Amendment law and evaluate its scope." Bracey v. Board

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of Education, 368 F.3d 108, 116 (2d Cir. 2004) (quoting D'Alessio v. N.Y. Stock Exch., Inc., 258 F.3d 93, 101
(2d Cir.)).
Plaintiff urges the Court to take "a common sense approach" to the statute, given that it is a remedial
statute which should be interpreted liberally. Doc. 125, p. 19 (citing Larsen Chelsey Realty Co. v. Larsen,
232 Conn. 480, 492 (1995)). However, this issue can be resolved more directly. In a recent opinion, the
Supreme Court held that even where an employer takes an adverse employment action against an individual
on the mistaken belief that the individual has engaged in political activity that the First Amendment protects,
the employee can still challenge that unlawful action under the First Amendment. Heffernan v. City of
Paterson, New Jersey, 136 S.Ct. 1412 (2016). Similarly, Officer Strickland allegedly retaliated against
Plaintiff for believed or suspected activity that, if it were true, would be protected by the First Amendment.
Defendant argues, in supplemental briefing requested by this Court, that, in applying Heffernan v.
City of Paterson, 136 S.Ct. 1412 (2016) to 31-51Q, the Court would be ignoring the plain meaning of the
statute and violating Conn. Gen. Stat. § 1-2z. The Connecticut plain meaning rule states, "[t]he meaning of
a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to
other statutes. If, after examining such text and considering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning
of the statute shall not be considered." Conn. Genn. Stat. § 1-2z. Section 31-51q protects employees who are
disciplined or dismissed "on account of the exercise by such employee of rights guaranteed by the [F]irst
[A]mendment to the United States Constitution or [parallel provisions of the Connecticut Constitution]."
Conn. Gen. Stat. § 31-51Q. Defendant argues that, because 42 U.S.C. § 1983 protects against the
"deprivation of any rights", and the Connecticut statute protects against adverse action based on "the exercise
. . . of rights," that the interpretation of the broader language of § 1983 is not valuable in understanding § 3151Q.
However, the Supreme Court, in Heffernan, focused on the term "right," rather than the term

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"deprivation." Heffernan, 136 S.Ct. at 1417. The Heffernan court asked, "[i]s it a right that primarily
focuses upon (the employee's) actual activity or a right that primarily focuses upon (the supervisor's) motive,
insofar as that motive turns on what the supervisor believes that activity to be?" Id. The Court ultimately
concluded that the employer's motive was the relevant factor. Both § 1983 and §31-51Q speak to "rights."
The term rights, as used in both statutes, then, has an inherent ambiguity, according to the Supreme Court.
Hence, it does not violate the Connecticut plain meaning rule to look further into the question of whether
Plaintiff's claims are saved by Heffernan.
The Court is not hard-pressed to find examples of courts turning to § 1983 for guidance when
applying § 31-51q. See Bracey, 368 F.3d at 116 (collecting cases) ("See, e.g., Cotto v. United Techs. Corp.,
48 Conn.App. 618, 629, 711 A.2d 1180, 1186 (1998) ('In deciding whether the allegations of the plaintiff's
complaint [under section 31–51q] state a cause of action for the deprivation of a constitutionally protected
right, it is instructive to review federal and state cases arising under 42 U.S.C. § 1983 because § 31–51q is
analogous.'); Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 778–79, 734 A.2d 112, 121 (1999) (looking
to Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Luck v. Mazzone, 52 F.3d
475 (2d Cir.1995), to determine whether section 31–51Q applies to speech about private matters); Andersen
v. E & J Gallo Winery, No. H 85–295(JAC), 1985 WL 134, at *3, 1985 U.S. Dist. LEXIS 14063, at *15–*16
(D.Conn. Nov. 7, 1985) (interpreting section 31–51Q by 'turn[ing] for guidance to cases involving claims
brought by public employees alleging termination of employment in violation of their First Amendment
Rights,' looking, inter alia, to Connick, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)); D'Angelo v.
McGoldrick, 239 Conn. 356, 360 n. 5, 685 A.2d 319, 322 n. 5 (1996) (explaining that section 31–51Q
'encompasses rights guaranteed by the first amendment to the United States constitution')").
As the Court is instructed to turn to federal law when interpreting § 31-51q, the fact that the Plaintiff
did not in reality engage in the protected activity does not invalidate her claim. Applying Heffernan to the
case at hand, it is sufficient for the 31-51Q claim to survive summary judgment that there is a genuine issue

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of material fact as to whether Plaintiff was discriminated against because her supervisor believed that she
had engaged in activity protected by the First Amendment.
VI.
Plaintiff has also alleged retaliation under Connecticut General Statutes § 46a-60(a)(4). Defendant
asserts that Plaintiff has alleged two separate claims of retaliation: first, that she was retaliated against
because the Police Department believed that she reported unpaid overtime to the Connecticut Department
of Labor, and second, that she was retaliated against for filing a claim with the CHRO in 2010 concerning
her separation from the training program. The Court can only find reference to the second of these allegations
in the Amended Complaint, but will analyze both.
Under the CFEPA, "a plaintiff must establish a prima facie retaliation claim by showing: (1) the
plaintiff was engaged in protected activity; (2) the alleged retaliator knew that the plaintiff was involved in
such activity; (3) an adverse decision or action was taken against the plaintiff; and (4) a causal connection
exists between the protected activity and the adverse action." Adams v. Festival Fun Parks, LLC, 2013 WL
951710, at *14 (D. Conn. Mar. 12, 2013). Like a discrimination claim, after the plaintiff has established a
prima facie case of retaliation, the burden shifts to the Defendants to articulate a legitimate reason for the
action at issue. Hall v. Family Care Home Visiting Nurse and Home Care Agency, LLC, 696 F.Supp.2d 190,
202 (D. Conn. 2010). The burden then shifts back to Plaintiff to prove that the reason provided by the
Defendants was pretextual. Id.
A.
To the extent that Plaintiff asserts a retaliation claim based on the reporting of the overtime wage
violations to the Connecticut Department of Labor, that claim must fail. Connecticut General Statutes § 46a60(a)(4) protects against an employer discriminating against an individual "because such person has opposed
any discriminatory employment practice or because such person has filed a complaint [regarding
discriminatory practices]. . . ." C.G.S. § 46a-60(a)(4). A discriminatory practice is defined within the statute

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as discriminating agaisnt an individual because of their "race, color, religious creed, age, sex, gender identity
or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual
disability, learning disability or physical disability." This statute protects against retaliation based on
allegations of discrimination, rather than retaliation based on reporting wage violations.
B.
The Defendant challenges, with regards to the prima facie case of retaliation for the filing of the
2010 CHRO claim, that there is a causal connection between the protected activity and the adverse
employment action. The Defendant also argues that Plaintiff, even if she could establish a prima facie case
of retaliation, cannot prove that the reasons given for her rejection of her application for the police academy,
namely that she failed the agility test and the psychological evaluation, are pretextual. Plaintiff does not
respond in her brief to these arguments.1 The Court, finding no causal connection, declines to reach the
question of whether the reasons given by the Defendant are pretextual.
Defendant argues that the record does not support a causal connection between the filing of Plaintiff's
2010 CHRO claim and the dismissal of her second application to the police academy in 2012. Defendant
cites to several cases where no causal connection was found when there was nearly a year between a
plaintiff's protected activity and the adverse employment action taken against them. See White v. City of
Middletown, 45 F.Supp.3d 195 (D. Conn. 2014); Gorman-Bakos v. Cornell Co-op Extension of Schenectady
County, 252 F.3d 545 (2d Cir. 2001); O'Hazo v. Bristol-Burlington Health Dist., 599 F.Supp.2d 242, 261 (D.
Conn. 2009). Defendant asserts, given the two years between the filing of the CHRO claim and the dismissal
of Plaintiff's application, causation cannot be established.
A plaintiff may establish a causal connection between an adverse employment action and a protected

1

The Court notes that when a counseled party responds only in part to a motion for summary
judgment, the court "may . . . infer from a party's partial opposition that relevant claims or defenses that
are not defended have been abandoned." The Court, given counsel for Plaintiff's arguments on Count
Three at oral argument, declines to find that this count was abandoned.

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activity by showing that the adverse employment action occurred close in time to the adverse action. Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273–47 (2001). However, in the Second Circuit, courts have "not
drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to
establish a causal relationship between the exercise of a [protected activity] and an allegedly retaliatory
action." Gorman-Bakos, 252 F.3d at 554. "Where there are longer gaps in time between protected activity
and adverse employment action, the inference of causation may be inferred from the fact that the employer
was waiting for the opportune time to retaliate." White, 45 F.Supp.3d at 219. Courts may exercise their
judgment about the permissible inferences to be drawn from temporal proximity in the context of a particular
case. See Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009).
The considerable majority of cases in this circuit suggest that two years is too long to support a
causal connection between a protected activity and an adverse employment action. See Altieri v. Albany
Public Library, 172 Fed.App'x. 331, 333 (2d Cir. 2006) ("[A] causal connection cannot plausibly be inferred
in this case because . . . a twenty-one month interval separates plaintiff's protected activity and the first action
of alleged retaliation."); Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999) (holding two years between
discharge and protected action insufficient to demonstrate a causal connection); Cronin v. St. Lawrence, 2009
WL 2391861, *5 (S.D.N.Y. Aug. 5, 2009) ("The passage of eleven months is, to say the least, at the very
outer limit of the amount of time that is considered sufficient to establish causation."). "[I]n the absence of
direct evidence of retaliation, the fact that a significant period of time has lapsed between the speech and the
challenged action militates against an inference of a causal connection." Fisher v. Helt , 2006 WL 861006,
*4 (D. Conn. Mar. 30, 2006).
Here, there is no direct evidence of retaliation. No showing was made that the officers involved in
the review of Plaintiff's second application to the police academy were involved in the complaint to the
CHRO or were even aware of the complaint. However, the Court recognizes this would have been the first
opportunity for the police academy to retaliate against the Plaintiff after the complaint was filed with the

21

CHRO. But, given the extended period of time between the two events and the absence of evidence that the
officers who rejected Plaintiff's application had any involvement with or knowledge of the CHRO complaint,
the Court cannot find genuine issue of fact as to a causal connection between the 2010 CHRO complaint and
the denial of plaintiff's second application to the police academy. Summary judgment as to the CFEPA will
be granted.
VII.
For the foregoing reasons, the pending Motions are decided as follows:
1. Defendant's Motion [Doc. 23] for Summary Judgment dismissing the Plaintiff's Second Amended
Complaint is DENIED IN PART AND GRANTED IN PART. Specifically, the Motion is DENIED as to
Count One and Count TWO, and GRANTED as to Count Three.
2. Plaintiff's Second Motion [Doc. 143] for Oral Argument is DENIED AS MOOT.
This case will be marked Trial Ready when the parties have submitted and the Court has approved
a Joint Trial Memorandum in compliance with Local District Civil Rule 16, the District's Standing Order
Regarding Trial Memoranda in Civil Cases, and the Joint Trial Memorandum – Instructions promulgated by
this Court (rev. 09/2013). Counsel should make that joint submission not later than August 19, 2016.
It is SO ORDERED.
Dated: New Haven, Connecticut
July 19, 2016

/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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