Rivera v. Thurston Foods, Inc.

Filing 89

ORDER: Defendant's motion 69 for summary judgment is GRANTED and Plaintiff's motion 64 for summary judgment is DENIED. The Clerk is directed to close the case. Signed by Judge Janet Bond Arterton on 03/19/2013. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Joseph Rivera,
Plaintiff,

Civil No. 3:11cv893 (JBA)

v.
Thurston Foods, Inc.,
Defendant.

March 19, 2013

RULING ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
Pending before the Court are the parties’ cross–motions [Doc. ## 64, 69] for
summary judgment on Plaintiff’s claims of race discrimination under 42 U.S.C. § 1981
(Count One), unlawful retaliation under § 1981 (Count Two), intentional infliction of
emotional distress (Count Three), race discrimination under Title VII, 42 U.S.C. § 2000e
et seq. (Count Four), retaliation under the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq. (Count Five), retaliation under Title VII
(Count Six), and race discrimination under the CFEPA (Count Seven). These claims arise
from the circumstances of Plaintiff’s employment as a commercial truck driver and his
termination by Defendant.
For the reasons discussed below, because Defendant has demonstrated that there
are no material facts in dispute from which a jury could find in Plaintiff’s favor,
Defendant’s motion [Doc. # 69] is granted and Plaintiff’s motion [Doc. # 64] must be
denied.

I.

Factual Background
Plaintiff was hired to work at Thurston Foods as a truck driver in June 2007.

Plaintiff’s assertion that he was hired as a “Class A” driver because he had a Class A
Commercial Driver’s License (see Pl.’s Dep., Ex. A to Pl.’s Loc. R. 56(a)1 Stmt [Doc.
# 65]), is disputed by Defendant, who contends that notwithstanding his class A license,
he was hired as a “Class B” driver.1 (See Ex. A to Affidavit of Patrick Thurston (“P.
Thurston Aff.”), Ex. 2 to Def.’s Loc. R. 56(a)1 Stmt [Doc. # 70].) The base rate of pay for
Class B drivers is $140.00 per day, and $150.00 per day for Class A drivers. (See P.
Thurston Aff., ¶ 9; see also Ex. B to P. Thurston Aff.) Employees who are Class A drivers
are paid higher base rates because they drive trailer trucks—which are “more difficult to
drive than a straight truck,” which are driven by Class B drivers. (See P. Thurston Aff. ¶
8.) When Class B drivers drive Class A tractor trailers, they are paid at the higher Class A
base rate. (See id. ¶ 9.)
Patrick Thurston, the Director of Human Resources at Thurston Foods attests
that “[t]he opening for which Plaintiff applied was that of a Class ‘B’ Driver and, at the
time of his hiring, Defendant did not have any need for a Class ‘A’ Tractor Trailer
Driver.” (Id. ¶ 10.) Plaintiff offers his deposition testimony to dispute Defendant’s
assertion that he was hired as a Class B driver, as reflected in Defendant’s business record
from his personnel file that he was hired a Class B driver. Absent any showing that
Plaintiff had contrary documentation, or was in a position to have contrary information
1

At oral argument, Plaintiff’s counsel bemoaned Defendant’s use of attorney–
drafted affidavits to establish the summary judgment record. These affidavits are proper
as statements made under oath about subjects of which the affiants have personal
knowledge and are proper under Rule 56(c)(4) to show an absence of disputed material
facts in the record. Here, Plaintiff has failed to put forward any rebuttal evidence, and has
taken no depositions of these affiants.
2

as to which class driver he was actually hired as, his personal testimony is insufficient
rebuttal.
A. Alleged Discrepancies in Pay Rate
On certain occasions when Plaintiff drove tractor trailer Class A trucks, and was
to be compensated at the higher daily pay rate of $150.00, Plaintiff states that he was paid
the lower rate and that he had to complain. (Pl.’s Dep. at 13.) Greg Kastukevich, Plaintiff’s
direct supervisor starting sometime in 2010, states that
[t]here were times when the Plaintiff came to me and complained that,
although he had driven a tractor trailer on a particular occasion, he had
been paid the daily base rate of pay for driving a straight truck. On some
occasions, we found that Plaintiff was right and these inadvertent errors in
the Plaintiff’s pay . . . were corrected. More often than not, I would adjust
for the discrepancy in his pay by adding the $10.00 daily differential in pay
to another day when he drove a straight truck and pay him at $150.00
instead of $140.00. I would give Payroll a copy of the Week End report . . .
and then Payroll would process this Report.2
(Affidavit of Greg Kastukevich (“Kastukevich Aff.”), Ex. 3 to Def.’s 56(a)1 Stmt
¶ 8.)
Meg Jakiela, Director of Personnel for Defendant, worked on payroll, and
confirms that there were occasional “errors” with respect to Plaintiff’s pay rate, stating:
There were times when the Plaintiff came to me and complained that,
although he had driven a tractor trailer on a particular occasion, he had
been paid the daily base rate of pay for driving a straight truck. On some
occasions we found that Plaintiff was right and this inadvertent error was
corrected. . . . [I]t is my recollection that in many cases the correction was
made with an upwards adjustment to the Plaintiff’s incentive pay. . . . In
other cases, the Plaintiff’s supervisor would fix the discrepancy in the
2

Later in 2010, Plaintiff asked his supervisors for more opportunities to drive the
Class A trucks, which Kastukevich says he gave to him and Plaintiff agrees. (See Pl.’s Dep.
at 17:12–15 (“[I]n June or July 2010, Greg “start[ed] to give me more runs with a class A
vehicle.”); see also Kastukevich Aff. ¶ 9.)
3

Plaintiff’s pay on a day when the Plaintiff drove a tractor trailer by adding
this $10.00 daily differential in pay to another day when the Plaintiff drove
a straight truck.
(Jakiela Aff. ¶ 10.)
On July 21, 2010, Plaintiff sent a letter to Thurston Foods’ CEO Peter Malone
addressing his “base pay” issue. (See July 21, 2010 Letter to Peter Malone, Ex. E to Pl.’s
56(a)1 Stmt.) In the letter, Plaintiff wrote:
I was hired in July 2007 as a Class “A” driver with a Class A License by
Andy Kastonhuber when I first started working here. . . . Several times I’ve
asked for different runs and to be placed permently [sic] in a tractor
trailer, and have always been given the run around, being put back and
forth told I have to wait until a run opens up. Then Andy left his position
as driver supervisor and Greg K was hired. I brought this matter to Greg’s
attention several times already, the Greg placed me in a tractor trailer
almost every day now, but has not changed my base pay rate. I have
requested my base pay rate be changed to that of a Class A driver with a
Class A base rate pay, just like every other driver here at Thurston Foods
who holds a Class A License as the rule book states.
(Id. (emphasis in original).)
After receipt of Plaintiff’s letter, CEO Peter Malone and Patrick Thurston
discussed Plaintiff’s position. (See P. Thurston Aff. ¶ 14; see also Affidavit of Peter Malone
(“Malone Aff.”), Ex. 6 to Def.’s 56(a)1 Stmt ¶¶ 5–7.) Peter Malone states that
Greg explained that, contrary to the assertion in the Memorandum, the
Plaintiff had been hired as a Class “B” Straight Truck Driver, not as a Class
“A” Tractor Trailer Driver and had been compensated at the correct and
appropriate rate for this position. . . . During my conversation with Greg
regarding the Plaintiff’s Memorandum, Greg also confirmed, however,
that the Plaintiff, most recently, had been driving a Class “A” Tractor
Trailer with more frequency. I asked Greg if there was any reason, given
the fact that the Plaintiff was now driving a Class “A” Tractor Trailer most
of the time, why the Plaintiff should not be bumped up to the position of a
Class A Tractor Trailer Driver. Greg thought this could be done and told
me he would make the necessary arrangements and notify the Plaintiff.
4

(Malone Aff. ¶¶ 7–8.) Greg Kastukevich states that he met with Plaintiff and “told him he
would be bumped up to the position of a Class “A” driver and [he] was pleased. We then
adjusted his pay accordingly.” (Kastukevich Aff. ¶ 15.)
Plaintiff testified at his deposition that at this time he “felt [he] was being treated
differently. . . . maybe due [to his] race, [he] was being treated differently.” (Pl.’s Dep. at
176.) Plaintiff also testified that
other drivers told me that they get paid $150 a day regardless of what truck
they drive, regardless of what run they’re doing, whether it be a class B
truck or in—what they call in the house, staying at the warehouse all day. .
. They still get A rate of pay because they hold a class A license. So they
don’t even have to touch a truck a still receive their class A base pay.
(Id. at 206.) Plaintiff also noted that these “other drivers” were all white. (Id. at 206.)
Defendant offers unrebutted evidence that two of these employees were not paid
the A rate of pay simply because they hold class A licenses. For example, Mitch Lukonis
states:
During the two year period of time when I was employed as a Class B
Straight Truck Driver, I was paid the daily base pay rate for a Class B
driver. When I drove a Class A truck unaccompanied, I would receive the
higher daily base pay rate for a Class A driver. Upon being promoted to
the position of a Class A Tractor Trailer Driver, I received the higher daily
base pay rate of a Class A driver regardless of what vehicle I drove
(although I rarely drove any vehicle other than a tractor trailer after
assuming the position of a Class A Tractor Trailer driver).

(Affidavit of Mitchell Lukonis (“Lukonis Aff.”), Ex. 8 to Def.’s 56(a)1 Stmt ¶¶ 3, 7.)
Lukonis further attests that he was transferred to an “inside position” of Assistance
Supervisor of Transportation in 2009, after a “work related injury.” (Id. ¶¶ 5–6.)
Mr. Craig Fenton states that he was hired by Defendant in 1991 as a Class A
Tractor Trailer Driver, and that “at the time [he] held a Class A license and had eight
5

years of experience driving a Class A Tractor Trailer.” (Affidavit of Craig Fenton
(“Fenton Aff.”), Ex. 9 to Def.’s 56(a)1 Stmt ¶ 3.) As with Lukonis, Fenton states that he
was paid $150.00 regardless of what vehicle he drove, though he “rarely drove any vehicle
other than a tractor trailer.” (Id. ¶ 5.) In 1995, Fenton was transferred to the position of
Dispatcher, an office position, after he injured his back. (Id. ¶ 4.)
B. Plaintiff’s Driving Record
Defendant has the discretion, under its Employee Handbook, to terminate an
employee for “careless operation of a vehicle” without prior oral or written warning. (See
P. Thurston Aff. ¶ 22.) The Employee Handbook provides that “[a]ny driver found at
fault while driving a company vehicle is subject to termination of employment.” (See
Employee Handbook, Ex. D to P. Thurston Aff. at 36.) Plaintiff was aware that careless
operation of a vehicle could result in discipline. (Pl.’s Dep. at 28.)
On December 31, 2007, during his first time delivering to Defendant’s customer
Isaiah House, Plaintiff backed into a fence pole. (See Pl.’s Dep. at 26; see also Jan. 4, 2008
Notice of Disciplinary Action, Ex. E to P. Thurston Aff.) Andy Kastenhuber, Plaintiff’s
supervisor at that time, issued him a written warning, noting on the Disciplinary Action
form that “[a]ny future preventable accidents will result in suspension and or
termination.” (Ex. E.) Defendant reported this accident to its insurance carrier and made
a claim. (see P. Thurston Aff. ¶ 26; see also Ex. G to id.) Kastenhuber told Plaintiff that
other drivers had also hit the fence pole while delivering to Isaiah House (see Pl.’s Dep. at
28), and not to worry, as he had previously hit the pole himself. (See id. at 30.)
On May 23, 2008, when making a customer delivery, Plaintiff hit the “dock
bumper” and railing at West Rock Health Care. (See Ex. H to P. Thurston Aff.) Defendant
reported this incident to its insurance carrier. (P. Thurston Aff. ¶ 48.) Plaintiff denies that
6

he backed his vehicle into this loading dock, and maintains that the railing was already
broken, but acknowledged that the incident caused a “small dent” to his truck. (Id. at
32:13–14.)
On July 29, 2009, Plaintiff “collided with a window” as he was backing down an
alley toward a delivery dock, causing damage to the window. (P. Thurston Aff. ¶¶ 27–28.)
Plaintiff describes the incident as follows:
This is a nursing home with an underground parking lot that has a loading
area that goes down a slope and a hill to reach the loading area, so the
truck has to be parked underneath the building. On the date I did the
delivery there, completed my delivery, secured my truck, did a walk–
around of the vehicle before I got in. . . Got into my cab, started my truck,
proceeded with my paperwork. Pulled off and heard a noise, got out of the
vehicle and I noticed that a patient from the building opened the window,
which my truck caught.
(Pl.’s Dep. at 34–35.) This incident, too, was reported to Defendant’s insurance carrier.
(See P. Thurston Aff. ¶ 28; Ex. H to id.) Plaintiff received a “verbal warning” from
Kastenhuber (see Kastenhuber Aff. ¶ 15), though he notes that he was not given any
written warning after this incident. (See Pl.’s 56(a)2 Stmt [Doc. # 82] ¶ 52.)
On August 14, 2009, the rear door of the truck Plaintiff was driving swung open
and hit the windshield of a parked car. (P. Thurston Aff. ¶¶ 27–29; Ex. J to id.; Pl.’s Dep.
at 36–37.) As before, Defendant reported this incident to its insurance carrier. (P.
Thurston Aff. ¶ 29; Ex. J to id.) Plaintiff testified that he complained to Defendant “about
my truck not having proper hinges on it to secure the door” (Pl.’s Dep. at 36:19–20), and
that “the door opened up and hit the windshield of a parked vehicle” (id. at 21–25.)
Plaintiff received a verbal warning for this incident. (Kastenhuber Aff. ¶ 15.)
During the week of January 24, 2010, Plaintiff’s truck got stuck in the mud which
Plaintiff attributed to weather conditions. (Pl.’s Dep. at 38.) A “wrecker” pulled Plaintiff’s
7

truck out of the mud (Ex. K to P. Thurston Aff.), and Plaintiff received a written warning
for “careless operation of equipment,” and was warned that he “has preventable incidents
previously,” and “[a]nother preventable accident may result in termination.” (Ex. K to P.
Thurston Aff.)
On February 15, 2011, a “woman claim[ed] [Plaintiff] scratched her car and did
some damage to her vehicle” while making a delivery to Fowler Nursing Home. (Pl.’s
Dep. at 43.) Plaintiff states that the woman’s car should not have been parked in a
“loading zone,” and that consequently, it was in his blind spot. (Id. at 44.) Defendant
reported this incident to its insurance carrier and made a claim (P. Thurston Aff. ¶ 37;
Exs. M and N to id), and Kastukevich “investigate[d] this and sat with the Plaintiff and
gave him an opportunity to tell me what happened.” (Kastukevich Aff. ¶ 46.)
C. Alleged Racial Incidents
On January 14, 2011, Plaintiff went to Jim Thurston, the Morning Transportation
Manager, and reported an eye injury and inability to do his run that day. (Pl.’s Dep. at
205.) Plaintiff testifies that Jim Thurston responded that he “did not have a spare nigger
or spic to send with [Plaintiff].” (id.) Though Jim Thurston recalls a conversation about
Plaintiff’s eye injury took place, he denies that Plaintiff asked to be excused, and states
only that Plaintiff “asked me if I had a helper who could accompany him in the passenger
seat.” (See Affidavit of James Thurston (“J. Thurston Aff.”), Ex. 4 to Def.’s 56(a)1 Stmt
¶¶ 5–6.) Jim Thurston states that “I told Plaintiff that I did not have a spare person from
my 4:00 a.m. crew that morning who could accompany Plaintiff” (id.), and denies ever
using any racial slurs. (Id. ¶ 10.)
Plaintiff claims that he left a note for Jim Thurston and Greg Kastukevich about
this conversation. He left one copy of his note that stated:
8

I scratched my right eye and got something[,] a piece of metal or wood,
dirt, in it. I woke up with it red, itchy, and full of puss! I did not want to
call out. But my vision is blurry not very safe for me to drive with one eye
told Jim T was told to Tuff [sic] it out. Still have to do my run with no
help. In case of accident, all personal supervisors notified.
(Ex. G to Pl.’s 56(a)1 Stmt.) He left a photocopy for Kastukevich with the following at the
very bottom: “Jim Thurston also made a racial comment to me.” (Ex. H to Pl’s 56(a)1
Stmt.) Plaintiff explains that “I placed it on Greg’s desk. . . I gave him a carbon copy of
this note with the additional handwriting on the bottom.” (Pl.’s Dep. at 77–78.)
Both Jim Thurston and Greg Kastukevich deny seeing the copy with the
allegations of a racial comment. Jim Thurston states,
[a]fter Plaintiff had left on this January 14, 2011 run, we discovered that he
had written a note to Greg about his eye on Thurston Foods letterhead and
left it on Greg’s desk. . . . Greg gave me a copy of this note. Plaintiff does
not complain or claim in the note that I made any racial slur or epithet to
Plaintiff.
(J. Thurston Aff. ¶¶ 8–9.) Kastukevich states that “I do recall seeing a note from Plaintiff
on my desk on Friday January 14, 2011 about his eye. . . . There is no claim or allegation
in this note that Jim Thurston made a racial slur or epithet to Plaintiff.” (Kastukevich Aff.
¶ 18.)
After he left his notes, Plaintiff claims in his deposition that he discovered a note
on Kastukevich’s desk saying “Change Joe’s run” (Pl.’s Dep. at 80; 233), and thereafter his
“run changed” and his “normal run” of the Boston, Massachusetts area was changed to a
more local, Connecticut–based run. (Pl.’s Dep. at 81.) Defendant contends Plaintiff never
had a “normal” or “set” run, and that “[a]t no time did any other driver have a ‘normal’ or
set ‘run’ to any specific geographic area. No runs are guaranteed.” (Kastukevich Aff. ¶ 37.)
Kastukevich states that Plaintiff “continued on runs to the Boston, Massachusetts area
9

during the time period between January 14, 2011 and his termination on February 16,
2011. In fact Plaintiff’s run the week of February 14th included two runs to the Boston
area” (id. ¶ 38) and that “there was no change in Plaintiff’s compensation from January
14, 2011 through his last date of employment.” (Id. ¶ 42.)
On February 7, 2011, Plaintiff switched cellular phones with another employee,
Bill Indorf, who had broken his cell phone. “Greg [Kastukevich] was getting a new cell
phone and gave Bill [Indorf] the base of his old cell phone where Bill tried to use it but
cannot because it’s metal and it interferes with his hearing aids. Therefore, he asked to
trade the phone with me, I had a plastic phone, which didn’t interfere with his hearing
aids. And I did so.” (Pl.’s Dep. at 148–49.) On this cell phone, Plaintiff found a racist text
message sent from CEO Peter Malone to Greg Kastukevich. The text said, “found this
picture of our grandfathers riding their quads in the day!” and was accompanied by a
photograph of two young white boys, straddling the backs of young black boys of similar
age, as if riding a horse. (Ex. O to Pl.’s 56(a)1 Stmt.)
Kastukevich and Malone acknowledge the text message, though Kastukevich
states that “I thought I had . . . removed this information by taking the SIM card out of
my cellular phone.” (Kastukevich Aff. ¶ 44.) In a notable understatement, Malone states
that “in retrospect, [the text] marked an error in [his] judgment,” and said it was meant
only for Kastukevich and not for sharing. (Malone Aff. ¶¶ 11–12.) Ironically, it is Malone
who states that “[w]e have a zero tolerance policy at Thurston Foods for discrimination
and retaliation” (id. ¶ 14), and he is “very proud of the diverse employee base we have at
Thurston” (id. ¶ 13). Plaintiff never told anyone about the text message when he found it.

10

D. Plaintiff’s Termination
Plaintiff was terminated on February 16, 2011 by Patrick Thurston (see P.
Thurston Aff. ¶ 39), one day after the Fowler Nursing Home incident because he was a
careless driver and was no longer “insurable.” (Pl.’s Dep. at 52, 54.) Plaintiff claims that he
was terminated in retaliation for complaining about the racist slurs by Jim Thurston, and
for complaining about his runs on January 25, 2011 and February 5, 2011 which exceeded
the legal limits on hours driven.
Discussion3

II.

Plaintiff asserts that he has been subjected to unlawful discrimination, a hostile
work environment, and retaliation on the basis of his race, in violation of 42 U.S.C.
§ 1981, Title VII, and the CFEPA, and that he has suffered intentional infliction of
emotional distress. Plaintiff moves for summary judgment on all counts, and Defendant
cross–moves, arguing that because Patrick Thurston was the only decisionmaker with
respect to his employment, Plaintiff cannot succeed as a matter of law on any of his
claims.

3

“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).
11

A. Employment Discrimination Claims
Employment discrimination claims under the CFEPA, § 1981, or Title VII are all
analyzed using the same substantive standards. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010) (“The substantive standards applicable to claims of employment
discrimination under Title VII . . . are also generally applicable to claims of employment
discrimination brought under § 1981.”); Levy v. Comm’n on Human Rights &
Opportunities, 236 Conn. 96, 107–08 (1996) (using the McDonnell Douglas standard for
Conn. Gen. Stat. § 46a-60); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d
Cir. 2004); Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310, 316 n.2 (2d Cir.
1999).
1. Intentional Race–Based Termination (Counts One, Four, and Five)
A plaintiff’s prima facie claim of unlawful employment discrimination requires
showing that (1) he is a member of a protected class, (2) he was qualified for the job, (3)
he suffered an adverse employment action, and (4) the action occurred under
circumstances that give rise to an inference of invidious discrimination. McDonnell
Douglas Corp. v. Green. See 411 U.S. 792, 802–04 (1973).
a. Prima Facie Case
It is undisputed that Plaintiff makes out the first three elements of his prima facie
case: (1) he is Hispanic, and thus a member of a protected class, (2) he was qualified for
the class A or class B driver position, and (3) he suffered an adverse employment action in
that he was terminated.4

4

Plaintiff also maintains that he suffered another adverse employment action,
“unequal pay.” (See Pl.’s Mem. Supp. [Doc. # 67] at 14.) However, the record contains no
evidence that he was paid differently than other Class B drivers, and once he was switched
to a Class A driver position, he was paid the same daily rate as all Class A drivers.
12

For the fourth element, Plaintiff points to the “direct evidence” of the January 14,
2011 “racist comment” from Jim Thurston, and the racist text message from CEO Peter
Malone to Greg Kastukevich.
With respect to Jim Thurston’s racist comment, Defendant hotly disputes that the
comment was ever made, and thus it is not an undisputed fact for either party’s summary
judgment record. Defendant also insists that the racist comment made by Jim Thurston
should be given no weight, arguing that it is merely a “stray” remark. The Court
disagrees. Though the existence of the remark is disputed, if credited, it shows race–based
disrespect made by a supervisor to Plaintiff in the workplace about which Plaintiff
complained. The Court considers it along with the other facts in the record in evaluating
Plaintiff’s discrimination claims.
However, “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 the discriminatory sentiment expressed in the remark.”
Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007); cf. Rose v. New York
City Bd. Of Educ., 257 F.3d 156, 162 (“Young’s alleged statements to [plaintiff] were not
the stray remarks of a colleague but rather were comments made directly to her on more
than one occasion by her immediate supervisor, who had enormous influence in the
decision–making process.”). Here, the summary judgment record shows no causal
relationship between Jim Thurston’s remark and Patrick Thurston’s decision to terminate
Plaintiff because he was “no longer insurable.” See Tomassi, 478 F.3d at 116 (“The
relevance of discrimination–related remarks does not depend on their offensiveness, but
rather on their tendency to show that the decision–maker was motivated by assumptions
or attitudes relating to the protected class.”). Thus, Jim Thurston’s remarks provide no
13

support for an inference that Patrick Thurston was motivated by Plaintiff’s race when he
decided to terminate Plaintiff. Similarly, the racially offensive text is not shown to have
any relation to Patrick Thurston and his decision to terminate Plaintiff.5
Plaintiff’s surmise, raised at oral argument, that in this small, family–owned
company, every one of the family member–managers had a say in an employee’s
termination, is just that—a surmise without any evidentiary support. It is insufficient to
rebut the evidence presented in the record that Patrick Thurston made the decision to
terminate Plaintiff, and thus, Plaintiff has failed to offer any evidence that his termination
occurred under circumstances giving rise to an inference of invidious discrimination and
his prima facie case fails on his termination claim.
b. Legitimate Non–Discriminatory Reason and Pretext
Even if Plaintiff could make out a prima facie case, Defendant’s summary
judgment record states a legitimate, non–discriminatory reason for Plaintiff’s discharge:
his driving record while at Thurston foods which made him “no longer insurable.” The
record shows multiple incidents of damage to Plaintiff’s vehicle and the property of
others, memorialized in four written and oral warnings. Despite Plaintiff’s explanations of
the circumstances leading to these incidents, he has not shown that Defendant’s business
reasons for terminating him were pretextual such that reasonable jurors could conclude
that he was terminated because of his race. Defendant’s motion for summary judgment as

5

Referring to the racist text message, Plaintiff notes in his opposition that a
reasonable jury could “infer that any supervisor who implemented policies on behalf of
the employer were based on this expressed discriminatory animus.” (Pl.’s Mem. Opp’n
[Doc. # 83] at 18.) However, as discussed above, Plaintiff concedes that he did not report
the receipt of the discriminatory text message to anyone at work, and thus, Plaintiff
cannot show how the text message—a private text message that was not directed at him—
played any role in his termination.
14

to Plaintiff’s intentional discrimination claims is therefore granted and Plaintiff’s is
denied.
2. Hostile Work Environment (Counts One, Four, and Five)
Plaintiff also asserts that he was subjected to a hostile work environment at
Thurston Foods. A hostile work environment exists “[w]hen the workplace is permeated
with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citation and internal quotation marks omitted). Conduct that is
“merely offensive,” and “not severe or pervasive enough to create an objectively hostile or
abusive work environment [meaning] an environment that a reasonable person would
find hostile or abusive [ ] is beyond Title VII’s purview.” Id. Relevant considerations for a
hostile work environment claim include “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.” Harris,
510 U.S. at 23 (cited in Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112,
119 (2d Cir. 2010)). As evidence of a racially hostile work environment that he claims
“occurred over a period of time stretching back to the day he was hired in 2007” (see Pl.’s
Mem. Supp. at 16), Plaintiff points to the same two pieces of “direct evidence” discussed
supra.
Frequent racial slurs can certainly constitute evidence that renders a work
environment both subjectively and objectively racially hostile. See Torres v. Pisano, 116
F.3d 625, 632–33 (2d Cir. 1997) (“[A] reasonable Puerto Rican would find a workplace in
which her boss repeatedly called her a “dumb spic” and told her that she should stay
home, go on welfare, and collect food stamps like the rest of the “spics” to be hostile.
15

Torres has therefore established a strong prima facie case of sexual harassment.”)
(emphasis added); Petrosino v. Bell Atlantic, 385 F.3d 210, 222 (2d Cir. 2004) (finding that
the district court had erred in granting summary judgment to employer where “[s]uch
workplace disparagement of women, repeated day after day over the course of several years
without supervisory intervention, stands as a serious impediment to any woman's efforts
to deal professionally with her male colleagues.”) (emphasis added); Terry v. Ashcroft, 336
F.3d 128, 149 (2d Cir. 2003) (“[P]laintiff is not complaining merely about sporadic and
isolated events, but rather about his daily working conditions.”); Pucino, 618 F.3d at 119
(concluding that plaintiff presented issues of disputed fact sufficient to withstand
summary judgment where her affidavit stated that the alleged abuse concerning “most of
the major aspects of Pucino’s employment,” including “[w]ork assignments, the provision
of tools, the use of a bucket truck, the issues as to use of restrooms, and the verbal abuse”
occurred “constantly” or “frequently”). Here, the racist comment by Jim Thurston and
the racist text message, while offensive, constitute two isolated incidents insufficient to
support a hostile work environment claim. No reasonable juror could find that these
incidents constituted “pervasive harassment” or resulted in a workplace “permeated with
discriminatory intimidation . . . sufficiently severe or pervasive to alter the conditions” of
Plaintiff’s employment. Thus, Defendant’s motion for summary judgment as to the
hostile work environment claim is granted and Plaintiff’s is denied.
3. Retaliation (Counts Two, Six, and Seven)
Plaintiff claims retaliation based on his protected complaint activities. To establish
a prima facie case of retaliation, Plaintiff must show that (1) he participated in protected
activity, (2) he suffered an adverse employment action, and (3) a causal connection exists
between his protected activity and his adverse employment action. Dixon v. Int’l Fed’n of
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Accountants, 416 F. App’x 107, 110 (2d Cir. 2011). “Even if a plaintiff sets forth a prima
facie case, however, this establishes only a rebuttable presumption of retaliation, and
where the defendant identifies a legitimate, non–retaliatory reason for the adverse
employment action, the burden shifts back to the plaintiff to show that the defendant’s
articulated reason is a pretext for retaliation.” Id. Although the presumption of
discrimination “drops out of the picture” if the Defendant articulates a legitimate, non–
discriminatory reason, “the trier of fact may still consider the evidence establishing the
plaintiff's prima facie case “and inferences properly drawn therefrom . . . on the issue of
whether the defendant’s explanation is pretextual,” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).
a. Protected Activity6
Plaintiff claims two specific protected activities: when he complained to CEO
Peter Malone about his pay rate (Pl.’s Mem. Supp. at 23), and when he left the written
complaint for Greg Kastukevich reporting Jim Thurston’s comment (id. at 25; see also Ex.
G to Pl.’s 56(a)1 Stmt).
As an initial matter, Plaintiff’s July 2010 memo to Peter Malone about his pay rate
made no mention of discriminatory treatment on the basis of race. Further, Plaintiff
himself testified that he does not think that his July 2010 complaint had anything to do

6

There is some evidence from Plaintiff’s deposition that Fenton and Lukonis told
Plaintiff to “falsify his logbooks,” and also Plaintiff was terminated for complaining about
driving over the legal time limits for truck drivers. Though this evidence is disputed by
Defendant, even viewing the record in Plaintiff’s favor, it is not probative of Plaintiff’s
claims of disparate treatment based on race or of Plaintiff’s race–based retaliation claims.
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with his termination. (See Pl.’s Dep. at 171–72.) Thus, this activity cannot serve as
“protected activity” for his Title VII, § 1981, and CFEPA retaliation claims. However,
Plaintiff’s complaint to Greg Kastukevich about Jim Thurston’s racist comment obviously
constitutes a protected activity.
b. Adverse Employment Action
Plaintiff claims that his compensation change due to the change in his run and his
termination constitute adverse employment actions. 7 Plaintiff’s termination is clearly an
adverse employment action, and satisfies this prong.
However, as to Plaintiff’s claim of lowered compensation due to his changed
route, Plaintiff offers his own deposition testimony that after he complained about Jim
Thurston’s racist comment, he saw a note on Kastukevich’s desk to “change Joe’s route.”
However, Plaintiff has presented no evidence to rebut Defendant’s record that he suffered
no loss in wages, and that he, like all other Thurston drivers, was not entitled to any
particular “run.” Thus, only his termination remains for consideration as retaliatory
adverse action.

7

Plaintiff also claims that Patrick Thurston’s disclosure of his driving incidents to
a potential future employer in March 2011, upon being contacted as a reference, and
Patrick Thurston’s refusal to reinstate him, also in March 2011, should be considered
adverse actions in retaliation for his protected activity of filing a charge of discrimination
with the EEOC and the CHRO. However, both of these claimed adverse actions predate
plaintiff’s April 11, 2011 filings with the EEOC and the CHRO, and thus, cannot provide
the basis for a retaliation claim.
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c. Causal Connection
Viewing the record in the light most favorable to Plaintiff as the non–moving
party, Plaintiff’s complaint about Jim Thurston’s remark occurred a month prior to his
termination. While this relatively close temporal proximity between the protected activity
and the adverse action could support an inference of causal relationship, particularly
where Plaintiff’s record of prior driving incidents and discharge warnings never
generated any adverse action by Defendant, there is a significant intervening event—the
February 15, 2011 Fowler Nursing Home incident. As that incident alone gave Defendant
grounds to terminate Plaintiff, this intervening event dispels an inference of a causal
relationship between the protected activity and Plaintiff’s termination, thus defeating
Plaintiff’s prima facie case of unlawful retaliation. See Yarde v. Good Samaritan Hosp.,
360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) (“In this Circuit, an inference of causation is
defeated . . . if . . . there was an intervening causal event.”). Plaintiff’s motion is therefore
denied, and Defendant’s motion is granted.
B. IIED (Count Three)
In order to prevail on a claim for the intentional infliction of emotional distress in
Connecticut, a plaintiff has the burden of establishing four elements:
It must be shown: (1) that the actor intended to inflict emotional distress;
or that he knew or should have known that emotional distress was a likely
result of his conduct; (2) that the conduct was extreme and outrageous; (3)
that the defendant's conduct was the cause of the plaintiff's distress and (4)
that the emotional distress sustained by the plaintiff was severe.
Petyan v. Ellis, 200 Conn. 243, 253 (2006). “Liability for intentional infliction of
emotional distress requires conduct exceeding all bounds usually tolerated by decent
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society, of a nature which is especially calculated to cause, and does cause, mental distress
of a very serious kind.” Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 712 (2000).
“Conduct on the part of the defendant that is merely insulting or displays bad manners or
results in hurt feelings is insufficient to form the basis for an action based upon
intentional infliction of emotional distress.” Carrol v. Allstate Insurance Co., 262 Conn.
433, 443 (2003).
Of the conduct alleged by Plaintiff—being “forced” to drive over the legal driving
hours limit (but then being allowed to catch up on sleep the next day); Jim Thurston’s
racial slur; two non–managerial employees telling Plaintiff to “falsify” his logbooks; and
the racist text message—there is no evidence in the record that would permit a reasonable
juror to conclude that the actors intended to inflict emotional distress on Plaintiff, or that
they “knew or should have known” that emotional distress was likely as a result of their
conduct. Even the tasteless, racially tainted text message was meant exclusively for private
consumption. The fact that it was accidentally “leaked” to Plaintiff, who was undisputedly
not the intended audience, means that the first prong, requiring intentional or reckless
action, cannot be satisfied, and thus, Defendant is entitled to summary judgment on the
IIED claim.

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III.

Conclusion
For the reasons discussed above, Defendant’s motion [Doc. # 69] for summary

judgment is GRANTED and Plaintiff’s motion [Doc. # 64] for summary judgment is
DENIED. The Clerk is directed to close the case.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 19th day of March, 2013.

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