Gorham v. Trumbull

Filing 64

ORDER: Motion for Summary Judgment (Doc. No. 38 ) is hereby GRANTED. Judgment shall enter in favor of defendant Town of Trumbull Board of Education on all the claims in the Amended Complaint. The Clerk shall close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 3/26/2014. (Wang, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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LESTER GORHAM,
:
:
Plaintiff,
:
:
v.
:
:
TOWN OF TRUMBULL BOARD OF
:
EDUCATION,
:
:
Defendant.
:
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Civil No. 12cv58 (AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Lester Gorham (“Gorham”), brings this action
against the defendant, Town of Trumbull Board of Education (the
“BOE”), alleging that the BOE discriminated against him by
terminating his employment based on his race (African American),
color (black), and age (46), in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended
by the Civil Rights Act of 1991 (“Title VII”), the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
§ 621 et seq. (“ADEA”), and the Connecticut Fair Employment
Practices Act, Conn. Gen. Stat. § 46a-60 et seq. (“CFEPA”). The
plaintiff further alleges that the defendant retaliated against
him by not reinstating him after he filed a charge of
discrimination with the Commission on Human Rights and
Opportunities (“CHRO”). The defendant moves for summary judgment
with respect to all claims. For the reasons set forth below, the

1

motion is being granted.
I.

Factual Background
In August 2003, Gorham was interviewed by Stephen Kennedy

(“Kennedy”), who is the BOE‟s plant administrator. Kennedy
recommended to the BOE‟s superintendent, Ralph M. Iassogna
(“Iassogna”), that Gorham be hired for the position of custodial
floater. The defendant contends that the terms and conditions of
the plaintiff‟s employment were governed by a collective
bargaining agreement between the BOE and the plaintiff's union.
The agreement provides a four-step procedure in the event an
employee is disciplined or terminated. The first step provides
that the employee “shall present to the employee‟s
supervisor . . . all facts available pertaining to the problem
or incident . . . .” (Mem. of Law in Supp. of Def.‟s Mot. for
Summ. J. (“Def.‟s Mem.”), Ex. N, Doc. No. 38-16, at 19.) The
second step provides that “[i]f either party feels there should
be further review, the facts pertaining to the problem shall [be]
represented to the Plant Administrator . . . .” (Id.) The third
step provides that “[i]f either party still feels further review
is necessary, it must request a hearing from the Superintendent
of Schools . . . .” (Id.) Finally, the fourth step provides that
if either the union or the BOE “feels that further review is
justified, such party must submit the matter to
arbitration . . . .” (Id. at 20.) The plaintiff denies that the

2

terms and conditions of his employment were governed by a
collective bargaining agreement as it relates to his termination
in or about November 2010.
Gorham began his employment with the BOE on August 25, 2003.
New hires, such as Gorham, are placed on a 180-day probationary
period, but the BOE extended Gorham's probationary period for 30
days on the basis of some performance issues.1 Subsequently, the
BOE determined that Gorham was performing his duties
satisfactorily, and his probationary period ended on March 22,
2004. In March 2007, Gorham was promoted to the position of
night custodian at Trumbull High School. Gorham was supervised
by Craig Schneider (“Schneider”), who is the BOE‟s night
custodial supervisor. Gorham's performance showed improvement
after the initial probationary period, and he received raises
and promotions. Gorham continued to be employed by the BOE until
November 19, 2010, when he resigned. The plaintiff denies he
voluntarily resigned and maintains that he was constructively
discharged.
There is an established understanding among the employees
in the custodial department that they may take items found in

1

The defendant states that in February 2004 the plaintiff “was disciplined
and placed on probation for borrowing money from staff and co-workers and
inadequate performance.” (Def.‟s Local Rule 56(a)1, Doc. No. 38-1, ¶ 6.)
However, the evidence shows that Gorham‟s performance issues occurred during
his initial 180-day probationary period. Consequently, the BOE “decided to
extend [his] probation for 30 days.” (Def.‟s Mem., Ex. F, Doc. No. 38-8.)
Therefore, the plaintiff was not “placed on probation.”

3

the trash.2 With respect to items in the Lost and Found, the
custodial staff is directed by their supervisors not to take any
items from the Lost and Found until the accumulation of the
items has become such that it overflows into the hallway. The
custodial staff is then directed by a school administrator to
place the items in a plastic bag to be donated to Goodwill.
A.

The Incident

On or about November 4, 2010, Felix Dausilio (“Dausilio”),
a night custodian, found a case for a musical instrument while
cleaning the band room. The instrument case was in the garbage,
and it looked like garbage. Dausilio did not open the case to
see what was inside. He put the case on top of a barrel that he
was wheeling to the loading dock. Dausilio called Schneider and
asked Schneider what he should do with the instrument case.
Schneider asked Dausilio to bring the instrument case to him
because he wanted to look at it. Dausilio and Schneider met “in
the custodial hall.” (Def.‟s Mem., Ex. G, Affidavit of Craig
Schneider, Doc. No. 38-9, ¶ 5.) Schneider observed that the
instrument case looked old and worn, but he did not open it to
look inside. Schneider asked Dausilio to put the instrument case
on the loading dock, which was where custodians typically put
2

The defendant states that this understanding applies only to items that are
clearly of no value whereas items of questionable value may not be taken
unless authorized by a supervisor. The plaintiff agrees that the unwritten
policy allows custodians to take items from the trash, sometimes without
approval, but disagrees as to the conditions under which custodians would
need prior approval to take items from the trash.

4

items that required a determination as to their value. Schneider
planned to speak to Peter Horton, the music director at Trumbull
High School, about the instrument case.
After leaving Schneider, Dausilio saw Gorham in the
hallway.3 Gorham looked at the instrument case, and Dausilio
asked him whether he wanted it. Gorham opened the instrument
case and looked inside. Gorham then took the instrument case and
walked away. Dausilio did not see the inside of the case because
he was standing at the back of the barrel.
Gorham testifies that he was bringing garbage to the
dumpster on the loading dock and saw a brown case in the
dumpster. The case was clearly worn out. He opened the case and
saw a saxophone.4 Gorham considered it garbage because it was in
the dumpster and so he took it home with him thinking maybe the
church could use it, in accordance with the established
understanding that custodians may take items in the trash.
On the following day, November 5, 2010, Horton approached
Schneider and asked about a missing musical instrument that

3

The defendant states that, “After the case was placed on the loading dock,
Mr. Dausilio saw Plaintiff opening the instrument case (although did not see
what was inside), and saw Plaintiff walking away with it.” (Def.‟s Local Rule
56(a)1, Doc. No. 38-1, ¶ 23.) Dausilio‟s affidavit states, “[A]s I walked
away [from Schneider], I saw Lester Gorham in the hallway. Lester looked at
the instrument case and I asked Lester if he wanted the instrument case.”
(Def.‟s Mem, Ex. H, Affidavit of Felix Dausilio (“Dausilio Aff.”), Doc. No.
38-10, ¶ 9.)
4
The record contains inconsistencies concerning whether the instrument is a
trumpet, horn, or saxophone. The parties seem to agree that it is a saxophone
so for purposes of this motion, the court assumes the instrument is a
saxophone.

5

belonged to a student. Schneider was told that the musical
instrument was a family heirloom. Schneider and Horton
approached Dausilio to ask about the instrument case. Dausilio
told them that Gorham had it. Schneider also questioned other
custodians, including Ed Bike (“Bike”), the head custodian at
Trumbull High School, about whether they knew anything about a
missing musical instrument.
Schneider questioned Gorham. At first, Gorham denied having
knowledge of the matter. Later, Gorham told Schneider that he
had given the instrument to someone at his church; then Gorham
claimed that he had sold the instrument; and finally, Gorham
told Schneider that he sold the instrument to a pawn shop.
Schneider asked Gorham to bring the instrument back to the
school.
Bike also asked Gorham about the missing instrument. Gorham
told Bike that he had taken the instrument case, and that it
looked like trash. Bike asked Gorham to bring back the
instrument case, which Gorham did. When Gorham returned the
instrument case, Bike observed that the case appeared old and
worn but the instrument inside the case was polished. Bike then
contacted Kennedy to inform him about what had happened.
Gorham states that he never denied having knowledge of the
matter, and he brought the instrument case back once he became
aware that people were looking for it. Gorham states that he

6

never told Schneider that he sold the instrument to a pawn shop.
B.

The Investigation

After being informed of the incident, Kennedy conducted an
investigation, which included speaking with Gorham directly.
Kennedy states that Gorham told him the following:
a) [Gorham] took home a musical instrument in its
case on November 4, 2010;
b) [Gorham] knew Craig Schneider had asked Felix
Dausilio to separate the item from the trash and
set it aside;
c) [Gorham] opened the case and saw the instrument
before he took it, and he admitted that he
believed the instrument would have value;
d) [Gorham] took the instrument home . . . and said
he gave it to someone else; and
e) [Gorham] sold the instrument . . . .
(Def.‟s Mem., Ex. B, Affidavit of Stephen Kennedy (“Kennedy
Aff."), Doc. No. 38-4, ¶ 13.)
Gorham denies that Kennedy “conducted an investigation.”
(Affidavit of Lester Gorham (“Gorham Aff.”), Doc. No. 42-2,
¶ 31.) Instead, Gorham states that Kennedy “engineered a pretext
to terminate [his] employment.” (Id.)
Kennedy states that, as a part of his investigation, he
also watched a surveillance camera recording from November 5,
2010 that shows Gorham taking home a coat5 from the school's Lost
5

The court notes that the parties sometimes refer to the item from the Lost
and Found as a jacket and other times refer to the item as a coat. For
purposes of the instant motion, the court assumes that the item is a coat.

7

and Found and a dry mop from the custodial women‟s lavatory that
was used as a storage area. The video shows that after the
custodial staff left the loading dock at approximately 11:00
p.m., Gorham appeared to check outside several times. He then
went into the custodial storage room, came out with a large
garbage bag, and went into the custodial break room. The video
shows that Gorham went to the Lost and Found shelves in the hall,
looked over the shelves, picked up a coat, examined it, and took
it into the custodial break room. The video also shows that
Gorham went into the custodial women's lavatory that was used as
a storage area for custodial equipment, took a small dry mop
belonging to another custodian, Elaine Schwab (“Schwab”), and
went back to the custodial break room. Gorham then left the
break room with a garbage bag that was “puffy” at the bottom and
had a dry mop handle sticking out of it. The video shows that
Gorham went to the loading dock and placed the bag in an empty
garbage barrel.
When Kennedy questioned Gorham about the events in the
November 5, 2010 video, Gorham stated that he had placed the
coat in the bag along with the dry mop and took these items.
When Kennedy asked Gorham to explain his conduct, Gorham stated,
“I guess I got too comfortable.” (Kennedy Aff., Doc. No. 38-4,
¶ 18.) Gorham explained that he took the coat from the Lost and
Found because it had been there several weeks. When Kennedy

8

asked Gorham whether video surveillance would support his
explanation, Gorham then said that many times items sit in the
Lost and Found for weeks.
Gorham testifies that he had permission from Schneider to
borrow the dry mop because he was doing some work at home, and
he brought the mop back. As to the coat, Gorham testifies that
Schneider had asked whether anybody wanted anything from the
Lost and Found rack since the items had been there for a while.
Gorham further states that the video is not proof of theft
because as a custodian, he had permission to put items into
and/or remove them from the Lost and Found.
Kennedy and Schneider also learned that Gorham approached
Schwab, and asked to borrow money to get a violin out of a pawn
shop. Schwab states that Gorham asked to borrow $500;6 that she
was told the violin had been thrown away; and that he had taken
it to a pawn shop. Gorham denies that he approached Schwab to
borrow money to get a violin out of a pawn shop.
In a letter dated November 16, 2010, Kennedy notified
Gorham that a disciplinary hearing was scheduled for November 19,
2010; that Gorham was charged with, inter alia, “theft of items
belonging to a public entity,” “dishonesty and lying to [his]
supervisors,” and “violation of the trust inherent in [his]
6

The record contains a discrepancy as to whether Gorham asked to borrow $500
or $150. However, this is not a material fact for purposes of the instant
motion.

9

position,” (Def.‟s Mem., Ex. C (the “November 16 Letter"), Doc.
No. 38-5, at 1); that Gorham would have an opportunity to
present evidence, testimony, or other information at the
disciplinary hearing; that he should have a union representative
or any representation of his choice present; and that possible
disciplinary measures included suspension or termination of his
employment. In addition, Kennedy detailed the information he
collected during his investigation as follows:
1.

You took home a musical instrument in its case on
November 4, 2010.

2.

You knew Craig had asked Felix to separate the item
from the trash and set it aside.

3.

You opened the case and saw the instrument before
you took it. By your own testimony, you admitted
you thought it would have value.

4.

I inspected the instrument and it is apparent that
this instrument was clearly of high quality and
workmanship.

5.

You took the instrument home (by your own admission)
and said you gave it to somebody else.

6.

You sold the instrument (since you asked a coworker
for $150.00 to “buy the instrument back.”).

7.

You lied repeatedly to your supervisors including
myself, changing your story at least 3 times when
additional evidence was presented to you.

8.

You portrayed this incident as an isolated incident
and an error in judgment until I informed you of
the video evidence of you stealing a coat from [the]
Lost and Found and a dry mop from your co-worker‟s
storeroom on November 5, 2010.

9.

Based on video evidence, I saw you remove the dry

10

mop and coat, and place them in a garbage bag. You
then placed the bag in a garbage barrel and rolled
it out of the door before you left for the night.
You subsequently admitted to taking these items.
10. I am concerned that you have taken other items.
When I told you I was concerned about what I would
find if I checked the video for each time you
worked by yourself, you did not deny I would find
additional incidents.
11. I am very concerned about your rationale for your
actions. When I asked you why you did this, you
stated, “I guess I got too comfortable.”
12. You said you took the [coat] from [the] Lost and
Found because it had been there for several weeks.
When I asked you if you were sure that, when I
reviewed the video, I would not find it had been
brought to the Lost and Found that day or the day
before, you amended your remarks and said many
times stuff sits in the Lost and Found for weeks.
th

13. On November 5 , during the 45 minutes on the video,
you appeared to check outside several times to see
if there was anyone around before you took the
items in question.
(November 16 Letter, Doc. No. 38-5, at 1-2.)
Gorham states that the letter, containing allegations
sounding of criminality, demonstrates that the defendant
was creating a pretext for firing him.
C.

The Disciplinary Hearing

On November 19, 2010, the BOE held a disciplinary hearing.
In attendance were Gorham, Thomas Hughes (a union
representative),7 Kennedy, Schneider, Bike, and Rita McDougald-

7

The defendant states that a union representative, Thomas Hughes, was present.
The plaintiff states that a union steward, Pat (last name unknown), was

11

Campbell (“McDougald-Campbell”), who is a Trumbull High School
principal.
Gorham's union representative proposed the possibility of a
demotion and transfer to another facility as a lesser form of
discipline. McDougald-Campbell expressed concerns about Gorham's
lack of honesty and theft of items from the school building.
McDougald-Campbell found Gorham‟s conduct to be disturbing given
the unfettered access that Gorham had to the school facilities
and property within the school buildings. Based on those
concerns, Kennedy determined that a transfer was not possible.
After consulting with Iassogna and McDougald-Campbell, Kennedy
recommended that Gorham should be offered the opportunity to
resign in lieu of termination. Iassogna and Kennedy then made
the final decision8 to offer Gorham the option of resignation in
lieu of termination.
The union and the BOE then entered into a memorandum of
agreement, erroneously dated August 23, 2010 (the “Memorandum of
Agreement”). The Memorandum of Agreement states that after

present. This discrepancy does not concern a material fact for purposes of
the instant motion.
8
The defendant states in its memorandum of law that Iassogna “made the
ultimate decision.” (Def.‟s Mem., Doc. 38-2, at 16.) However, in the
defendant‟s CHRO interrogatory answer, the defendant states that “Mr. Kennedy
and the Superintendent [Iassogna] made the final decision . . . .” (Def.‟s
Mem., Ex. L, Doc. No. 38-14, at 4.) In addition, Kennedy‟s affidavit states
that the decision to offer Gorham the opportunity to resign in lieu of
termination was made “[i]n consultation with Ralph Iassogna . . . and Rita
McDougald-Campbell . . . .” (Kennedy Aff., Doc. No. 38-4, ¶ 23.) Therefore,
the court assumes, for purposes of this motion, that the final decisionmakers were Iassogna and Kennedy.

12

meeting with Gorham and after reviewing the charges in the
November 16 Letter, it was agreed that it would be in the best
interests of Gorham and the BOE to allow him to resign. In
return, the union would not file a grievance or unfair labor
practice against the BOE. Thereafter, Gorham resigned from the
BOE in a letter dated November 19, 2010.
Gorham testifies that McDougald-Campbell stated at the
disciplinary hearing that he should be used as an example, and
that Kennedy gave him a choice to either resign or the BOE would
pursue criminal charges against him. Gorham states that he was
forced to resign under duress and the treat of criminal
prosecution. Gorham also states that McDougald-Campbell
deliberately eavesdropped on conversations between him and his
union representative, and that this demonstrates that the
disciplinary hearing took place in an environment of
intimidation.
Gorham further testifies that a few months after his
termination, he ran into Schneider, and Schneider informed him
that the instrument case ended up in the dumpster again.9 Gorham
states that other similarly situated custodians have taken items
from the trash, including Craig Schneider,10 Allan Rajensen, and
others (names unknown). The plaintiff states that Schneider and
9

The BOE states that Schneider was referring to the instrument case being
placed on top of the trash as a practical joke by the owner‟s bandmates.
10
The plaintiff spells Craig Schneider‟s name as Craig Snyder.

13

Rajensen are both Caucasian, and the BOE did not terminate their
employment because they salvaged items from the trash.
Furthermore, Gorham states that he was replaced by a younger
white person.
The BOE states that it previously had disciplined three
other custodians, two of whom were terminated, for dishonesty
with respect to their workplace duties and conduct. One was a 27
year-old Caucasian male who resigned on or about November 23,
2010, after it was determined based on evidence that he had
falsified his time cards; another was a 46 year-old Caucasian
male who was terminated for dishonesty on or about January 21,
2010, after it was determined based on evidence that he had been
texting a personal acquaintance and engaging in harassing
behavior while at work; and the third was a 56 year-old Hispanic
male who was suspended without pay after it was determined based
on evidence that he brought a staff member to work who was not
authorized to work and made misrepresentations regarding the
same.
The BOE further states that Kennedy was 47 years old at the
time of the conduct at issue and Caucasian; Iassogna was 65
years old and Caucasian; and McDougald-Campbell was 57 years old
and African American. In addition, following Gorham's departure,
there were two custodial vacancies; one was filled by a 56 yearold Hispanic male and the other by a 64 year-old Caucasian male.

14

II.

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.
See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994). Rule 56(a) “mandates the entry
of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party‟s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at
322.
When ruling on a motion for summary judgment, the court
must respect the province of the jury. The court, therefore, may
not try issues of fact. 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); Heyman v. Commerce
& Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is
well-established that “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . . . .” Anderson, 477 U.S. at 255. Thus, the trial
court‟s task is “carefully limited to discerning whether there

15

are any genuine issues of material fact to be tried, not to
deciding them. Its duty, in short, is confined . . . to issuefinding; 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 . . . .” Anderson, 477 U.S.
at 247-48. 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.” Id. As the Court observed
in Anderson: “[T]he materiality determination rests on the
substantive law, [and] it is the substantive law‟s
identification of which facts are critical and which facts are
irrelevant that governs.” Id. Thus, only those facts that must
be decided in order to resolve a claim or defense will prevent
summary judgment from being granted. When confronted with an
asserted factual dispute, the court must examine the elements of
the claims and defenses at issue on the motion to determine
whether a resolution of that dispute could affect the
disposition of any of those claims or defenses. Immaterial or

16

minor facts will not prevent summary judgment. 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)). Because
credibility is not an issue on summary judgment, the nonmovant‟s
evidence must be accepted as true for purposes of the motion.
Nonetheless, the inferences drawn in favor of the nonmovant must
be supported by the evidence. “[M]ere speculation and conjecture
is insufficient to defeat a motion for summary judgment.” Stern
v. Trustees of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997)
(internal quotation marks omitted) (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.
Finally, the nonmoving party cannot simply rest on the
allegations in its pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine
issue of material fact exists. See Celotex Corp., 477 U.S. at

17

324. “Although the moving party bears the initial burden of
establishing that there are no genuine issues of material fact,”
Weinstock, 224 F.3d at 41, if the movant demonstrates an absence
of such issues, a limited burden of production shifts to the
nonmovant, who must “demonstrate more than some metaphysical
doubt as to the material facts, . . . [and] must come forward
with specific facts showing that there is a genuine issue for
trial.” Aslanidis v. United States Lines, Inc., 7 F.3d 1067,
1072 (2d Cir. 1993) (quotation marks, citations and emphasis
omitted). Furthermore, “unsupported allegations do not create a
material issue of fact.” Weinstock, 224 F.3d at 41. If the
nonmovant fails to meet this burden, summary judgment should be
granted.
III. Discussion
The plaintiff claims in his Amended Complaint that he was
discriminated against when his employment was terminated because
of his race, color, and age.
Title VII makes it an “unlawful employment practice for an
employer . . . to discharge . . . or discriminate against any
individual . . . because of such individual‟s race, color,
religion, sex, or national origin . . . .” 42 U.S.C. § 2000e2(a)(1). Under the ADEA, it is “unlawful for an employer . . .
to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms,

18

conditions, or privileges of employment, because of such
individual‟s age . . . .” 29 U.S.C. § 623(a)(1). The protections
of the ADEA reach individuals who are at least 40 years old. See
29 U.S.C. § 631(a). Under CFEPA “[i]t shall be a discriminatory
practice in violation of this section . . . [f]or an
employer . . . to refuse to hire . . . or to discharge from
employment any individual or to discriminate against such
individual . . . because of the individual‟s race, color,
religious creed, age . . . .” Conn. Gen. Stat. § 46a-60(a)(1).
Title VII claims are analyzed under the burden shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Claims of age discrimination under the ADEA are
analyzed “under the same burden shifting framework as claims
brought pursuant to Title VII . . . .” Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). “The analysis of
discrimination . . . under CFEPA is the same as under Title
VII.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 556 (2d Cir.
2010) (citing Craine v. Trinity College, 259 Conn. 625, 637 n.6
(2002)). Accordingly, the court analyzes the plaintiff‟s Title
VII, ADEA, and CFEPA claims together.
Under the McDonnell Douglas burden shifting framework, a
plaintiff must first make out a prima facie case by
demonstrating the following: “(1) [he] was within the protected
class; (2) [he] was qualified for the position; (3) [he] was

19

subject to an adverse employment action; and (4) the adverse
action occurred under circumstances giving rise to an inference
of discrimination.” United States v. Brennan, 650 F.3d 65, 93
(2d Cir. 2011). “[The] plaintiff‟s prima facie burden [i]s
minimal and de minimis.” Woodman v. WWOR-TV, Inc., 411 F.3d 69,
76 (2d Cir. 2005) (internal quotation marks omitted). Once the
plaintiff establishes the elements of a prima facie case, “the
burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse employment action.”
Brennan, 650 F.3d at 93. If the employer satisfies its burden of
articulating a legitimate reason, “the presumption of
discrimination drops out, and the plaintiff must prove that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Woodman, 411
F.3d at 76 (internal citation and quotation marks omitted). “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).
A. Prima Facie Case
The court concludes that the plaintiff has failed to meet
his de minimis burden of establishing a prima facie case. While
the plaintiff has established the first three elements of a
prima facie case, he has failed to demonstrate that the

20

circumstances under which his employment was terminated give
rise to an inference of discrimination. The BOE concedes that
Gorham has established the first element of a prima facie case
in that he is a member of a protected class, i.e., he is African
American, black, and was 46 years old at the time of the
termination of his employment. Thus, the second, third and
fourth elements are discussed below.
1. Qualified for the Position
The BOE argues that Gorham cannot establish that he was
qualified for the position of night custodian because Kennedy‟s
investigation revealed, inter alia, that Gorham took the musical
instrument from the school to a pawn shop; that Gorham asked
another employee for money to get the instrument out of the pawn
shop; that he took a coat from the school‟s Lost and Found; and
that he took a dry mop from the custodial closet. Gorham argues
that the defendant admitted that he is qualified because Kennedy
stated in his affidavit that Gorham had “received raises,
promotions, and transfers as requested.” (Kennedy Aff., Doc. No.
38-4, ¶ 11.)
It is “[the] plaintiff‟s burden of demonstrating
satisfactory job performance, in accordance with the particular
employer‟s criteria for satisfactory performance.” Ruiz v.
County of Rockland, 609 F.3d 486, 492 (2d Cir. 2010) (quoting
Thornley v. Penton Publishing, Inc., 104 F.3d 26, 30 (2d Cir.

21

1997)) (internal quotation marks omitted). “[The] plaintiff must
show only that he „possesses the basic skills necessary for
performance of [the] job.‟” Slattery v. Swiss Reinsurance
America Corp., 248 F.3d 87, 92 (2d Cir. 2001) (quoting Owens v.
New York City Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991)).
Where misconduct is involved, the Second Circuit has
explained that there is a distinction between unsatisfactory job
performance and misconduct. While “misconduct may certainly
provide a legitimate and non-discriminatory reason to terminate
an employee, . . . that issue is distinct from the issue of
minimal qualification to perform a job.” Ruiz, 609 F.3d at 492
(quoting Owens, 934 F.2d at 409) (internal quotation marks
omitted). “The qualification prong must not, however, be
interpreted in such a way as to shift onto the plaintiff an
obligation to anticipate and disprove, in his prima facie case,
the employer‟s proffer of a legitimate, non-discriminatory basis
for its decision.” Slattery, 248 F.3d at 92. Thus, “if an
otherwise qualified employee is alleged to have engaged in
misconduct or otherwise to have created circumstances justifying
[his] termination, that conduct is appropriately evaluated, not
in the prima facie „qualifications‟ analysis, but rather in
assessing the employer‟s stated neutral reason for the adverse
action and the employee‟s pretext case.” Calabro v. Westchester
BMW, Inc., 398 F. Supp. 2d 281, 289 (S.D.N.Y. 2005).

22

Here, Gorham has met his burden with respect to the second
element. Gorham‟s personnel file shows that he was employed by
the BOE for at least ten years from August 25, 2003 to November
19, 2010; during his period of employment, he had received
raises and promotions; two supervisors had stated that Gorham‟s
job performance was satisfactory; and the BOE had admitted that
“his performance was generally good and on par with his
colleagues” (Def.‟s Mem., Ex. O (“CHRO Answer”), Doc. No. 38-17,
at 3). Based on these undisputed facts, Gorham has shown that he
possessed the basic skills necessary for performance of the
position of night custodian.
2. Adverse Employment Action
With respect to the third element, the BOE argues that
Gorham did not suffer an adverse employment action because the
BOE did not terminate his employment, rather he resigned. The
defendant similarly argues that Gorham cannot prevail on an
argument that he was constructively discharged because Gorham
chose to resign. In addition, the defendant argues that Gorham
had the right to post-termination grievance remedies through his
union‟s collective bargaining agreement. Gorham argues that
there was a constructive discharge because he resigned under the
threat of criminal prosecution and termination was inevitable.
“Constructive discharge of an employee occurs when an
employer, rather than directly discharging an individual,

23

intentionally creates an intolerable work atmosphere that forces
an employee to quit involuntarily.” Chertkova v. Connecticut Gen.
Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). An employee is
constructively discharged where he resigns in the face of
inevitable termination. See id., 92 F.3d at 85-89 (finding that
the plaintiff had been constructively discharged where, inter
alia, she was told that “she would be fired immediately if, over
the course of two years, she did not maintain satisfactory
performance levels”); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184,
1188 (2d Cir. 1987) (finding that supervisor‟s statement to
plaintiff that he “would be fired at the end of the 90-day
probationary period no matter what” was sufficient evidence to
support a finding of constructive discharge); Grey v. City of
Norwalk Bd. of Ed., 304 F. Supp. 2d 314, 324 (D. Conn. 2004)
(finding that supervisor‟s statement to plaintiff to “watch out
for herself” and warning that her job would be eliminated at the
end of the year was sufficient to support an inference of
constructive discharge); Silverman v. City of New York, 216 F.
Supp. 2d 108, 115-16 (E.D.N.Y. 2002) (“[A] number of courts in
this circuit have held that threats of termination may be
sufficient to establish constructive discharge.”), aff‟d, 64 F.
App‟x 799 (2d Cir. 2003).
Gorham has established that there was a constructive
discharge, i.e., he resigned in the face of inevitable

24

termination, and therefore, he was subject to an adverse
employment action. The November 16 Letter informed Gorham that
“[a]s a result of the findings of my investigation thus far,
appropriate disciplinary measures include possible suspension or
termination of your employment with the [BOE].” (Pl.‟s Mem. of
Law in Opp‟n to Def.‟s Mot. for Summ. J. (“Pl.‟s Mem.”), Ex. F,
Doc. No. 42-9, at 2.) Gorham testified that during the
disciplinary hearing, Kennedy said “Lester, you‟re better off
resigning right now; if not, we‟ll have you charged.” (Pl.‟s
Mem., Ex. B (“Gorham Dep.”), Doc. No. 42-3, at 46:9-11.) The
BOE‟s CHRO Answer states, “[A]fter a disciplinary hearing . . .
the Complainant resigned in lieu of termination and arrest.”
(CHRO Answer, Doc. No. 38-17, at 2.) Gorham further testified
that:
[Kennedy] said, you either resign for personal reasons
or we‟ll have you charged. . . . The Union guy took me
in the hall three times. Lester, this is tough. If you
don‟t sign -- resign, they‟ll not only have you
charged; even if you feel like you‟re right, you‟re
making the right -- you feel you‟re right, you‟ll
still be messed up. The word, I think they call it the
loss when you can‟t find the work.
(Gorham Dep., Doc. No. 42-3, at 47:21-48:4.) Following the
November 19, 2010 disciplinary hearing, Gorham resigned that day.
In addition, the Memorandum of Agreement shows that the
Union, on behalf of Gorham, bargained for the BOE‟s promise not
to pursue Gorham‟s termination. “In return for the Board of

25

Education‟s not pursuing Mr. Gorham‟s termination, the Union has
agreed not to pursue this matter in any way . . . .” (Pl.‟s Mem.,
Ex. G, Doc. No. 42-10.) This is corroborated by Kennedy, who
states that “Mr. Gorham and his union decided that it was in Mr.
Gorham‟s best interest to resign in lieu of the Town of Trumbull
Board of Education pursuing Mr. Gorham‟s termination.” (Kennedy
Aff., Doc. No. 38-4, ¶ 24.) Therefore, the court finds that the
record demonstrates a constructive discharge, since a reasonable
person in Gorham‟s shoes would have felt compelled to resign.
The defendant‟s reliance on Stetson v. NYNEX Serv. Co., 995
F.2d 355 (2d Cir. 1993), is misplaced. Unlike here, the employer
in Stetson “never either expressly or impliedly suggested that
[the plaintiff‟s] employment would be terminated.” Id., 995 F.2d
at 361. Also unavailing is the defendant‟s argument that an
employee‟s right to post-termination grievance remedies negates
a finding of constructive discharge. The defendant relies on
distinguishable cases from other circuits. See Ross v. City of
Perry, 396 F. App‟x 668, 670 (11th Cir. 2010) (plaintiff could
have chosen to be terminated and then appeal his termination to
the city manager); Honor v. Booz-Allen & Hamilton, Inc., 383
F.3d 180, 187-88 (4th Cir. 2004) (no constructive discharge
where employee‟s complaints revolved around someone who had no
supervisory or managerial power over employee and where employee
was seeking alternative employment prospects prior to

26

resignation); Mitchell v. City of Natchez, 5:11-cv-137
(DCB)(RHW), 2013 WL 139337, *6 (S.D. Miss. Jan. 10, 2013) (no
constructive discharge where employee resigned after supervisor,
who had no final authority to terminate employee, expressed an
intention to recommend employee‟s termination); Dodge v. City of
Belton, 10-0038-CV-W-ODS, 2011 WL 529708, *2-3 (W.D.Mo. Feb. 4,
2011) (no constructive discharge where employee resigned before
a pre-termination hearing and after supervisor, who had no final
authority to terminate employee, expressed an intention to
recommend termination).
3. Inference of Discrimination
With respect to the fourth element, the plaintiff has
failed to proffer evidence that could show that he was treated
differently than similarly situated custodians or that the
defendant‟s decision was motivated by animus toward a protected
class such that the court would be able to draw an inference of
discrimination.
a. Disparate Treatment
Gorham argues that he was treated differently from “white
and/or younger employees” (Am. Compl., Doc. No. 15, ¶ 31)
because he was terminated for taking an item from the trash,
notwithstanding an understanding among the custodial staff that
they could take items found in the trash.
“A plaintiff may raise [an inference of discrimination] by

27

showing that the employer subjected him to disparate treatment,
that is, treated him less favorably than a similarly situated
employee outside his protected group.” Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000). When considering whether a
plaintiff has raised such an inference, “the plaintiff must show
[he] was similarly situated in all material respects to the
individuals with whom [he] seeks to compare [him]self.” Id.
(quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64
(2d Cir. 1997)) (internal quotation marks omitted). “An employee
is similarly situated to co-employees if they were (1) subject
to the same performance evaluation and discipline standards and
(2) engaged in comparable conduct.” Ruiz, 609 F.3d at 493-94.
“[T]he standard for comparing conduct requires a reasonably
close resemblance of facts and circumstances of plaintiff‟s and
comparator‟s cases, rather than a showing that both cases are
identical.” Graham, 230 F.3d at 40.
Here, Gorham falls short of meeting his de minimis burden.
Gorham alleges that “Craig Snyder, Allan Rajensen, (both
Caucasian) and others (names unknown)” (Am. Compl., Doc. No. 15,
¶ 22) have taken items from the dumpster. Gorham also asserts
that the BOE has not terminated white and/or younger employees
for taking items from the trash, based on the BOE‟s admission,
in an interrogatory response, that it has not terminated any
employee for taking items from the trash. Aside from Gorham‟s

28

conclusory assertions, he has not proffered any evidence
concerning Schneider, Rajensen, or any other employee that would
allow the court to assess whether any of them engaged in
comparable conduct. In addition, because Schneider is a
custodial supervisor, to establish that he was similarly
situated to Schneider, Gorham would have to demonstrate that he
was subject to the same performance evaluation and discipline
standards as his supervisor. But Gorham has not proffered any
evidence that could show that he is similarly situated in all
material aspects to Schneider.
While Gorham‟s burden to establish a prima facie case of
discrimination is minimal, he “cannot meet this burden through
reliance on unsupported assertions.” Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Thus, the
court concludes that Gorham has failed to raise an inference of
disparate treatment because of his race, color, or age.
b. Racial Animus
The plaintiff argues that a comment McDougald-Campbell made
during the disciplinary hearing supports an inference of racial
animus. Specifically, she said “use him for [an] example.”
(Pl.‟s Mem., Doc. No. 42, at 20; Gorham Dep., Doc. No. 42-3, at
47:17.) On its face, this remark reflects no racial animus, so
it does not constitute direct evidence of discriminatory animus.
See De La Cruz v. New York City Human Res. Admin. Dep‟t, 884 F.

29

Supp. 112, 116 (S.D.N.Y. 1995) (“In a discrimination case,
explicit and unambiguous statements of racial . . . hostility
would be direct evidence.”), aff‟d, 82 F.3d 16 (2d Cir. 1996).
There is also no other remark in the record that would support
an inference that McDougald-Campbell‟s statement had a
discriminatory overtone or that discriminatory animus played a
role in McDougald-Campbell‟s assessment of Gorham‟s conduct.
Moreover, even if the court were to assume that McDougaldCampbell‟s remark was racially charged, it is only one such
comment, and would be characterized as a stray remark. See
Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998)
(“Stray remarks, even if made by a decision maker, do not
constitute sufficient evidence [to support] a case of employment
discrimination.”). A single, racially-neutral comment cannot
give rise to an inference of discrimination based on race or
color.
Gorham also points to the fact that neither of his
replacements is black. However, “[t]hat one‟s replacement is of
a different race, sex, or age may help a plaintiff to establish
a prima facie case, it is however insufficient by itself to
raise an inference of discrimination.” Pleener v. New York City
Bd. of Ed., 311 F. App‟x 479, 481 (2d Cir. 2009) (quoting Carson
v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).
Therefore, in light of the fact that Gorham has not provided any

30

other evidence that would support an inference of racial
discrimination, the mere fact that his replacement was not a
member of the same protected class is insufficient to support an
inference of discrimination.
c. Age-Related Animus
There is also no evidence that could support an inference
that Gorham‟s employment was terminated because of his age. For
example, there was no remark concerning Gorham‟s age made by
anyone during the investigation or the disciplinary hearing. Nor
does the record contain any stray or isolated remarks. Gorham
states that “[he has] reason to believe [his replacement] was
younger than [him].” (Gorham Aff., Doc. No. 42-2, ¶ 48.) After
the termination of Gorham‟s employment, there was no outside
hire or transfer to replace him for some time. The BOE, however,
has provided evidence that there were two vacancies around the
time Gorham was terminated; one was filled by a 56 year-old
Hispanic male, and the other by a 64 year-old Caucasian male.
The BOE also has provided evidence concerning additional
personnel decisions following the termination of Gorham‟s
employment. Gorham asserts that the defendant‟s failure to
identify a specific person who replaced him creates a genuine
issue of material fact. However, Gorham has not produced any
evidence to support his asserted belief. Therefore, this dispute
does not constitute a genuine issue of material fact.

31

B. Defendant’s Legitimate, Nondiscriminatory Reason
Even if Gorham could establish a prima facie case of race,
color, and age discrimination, the BOE has set forth a
legitimate, non-discriminatory reason for terminating his
employment and, as discussed below, Gorham has failed to produce
evidence that could show that the BOE‟s reason is a pretext for
discrimination.
The record establishes that the missing instrument case
prompted Kennedy to conduct an investigation, which included
speaking with Gorham and reviewing surveillance camera videos.
Based on his investigation, Kennedy concluded, inter alia, that
Gorham changed his story concerning the musical instrument
several times and that Gorham took items, i.e., a dry mop from
the custodial closet and a coat from the Lost and Found, home
without permission. In consulting with McDougald-Campbell and
Iassogna, McDougald-Campbell expressed her concern that the
musical instrument incident was not an isolated incident, and
the incident was “especially disturbing given the unfettered
access Mr. Gorham, as a custodian, had to the school facilities
and property in the school buildings.” (Def.‟s Mem., Ex. M,
Affidavit of Rita McDougald-Campbell (“McDougald-Campbell Aff.”),
Doc. No. 38-15, ¶ 9.) Based on Kennedy‟s investigation, the BOE
concluded that Gorham committed theft and was dishonest. That
conclusion led the BOE to offer Gorham resignation in lieu of

32

termination. Thus, the defendant has met its burden of
articulating a legitimate, nondiscriminatory reason for
terminating Gorham‟s employment.
Even assuming Gorham did not commit theft, the allegation
of theft still constitutes a legitimate, nondiscriminatory
reason. See Crump v. NBTY, Inc., 847 F. Supp. 2d 388, 393
(E.D.N.Y. 2012) (“[T]he relevant inquiry is not whether
Plaintiff actually stole product, but rather whether Defendant
has proffered a nondiscriminatory reason for firing
Plaintiff. . . . [T]heft is a sufficiently legitimate
nondiscriminatory reason for firing Plaintiff.”); Jowers v.
Family Dollar Stores, No. 09 Civ 2620(WHP), 2010 WL 3528978, at
*3 (S.D.N.Y. Aug. 16, 2010) (“[Defendant‟s] allegation of theft
constitutes a valid reason for termination.”).
C. Pretext for Discrimination
Because the defendant has articulated a legitimate,
nondiscriminatory reason for terminating Gorham‟s employment,
“the plaintiff must prove that the legitimate reason[] offered
by the defendant [was] not its true reason[], but [was] a
pretext for discrimination.” Woodman, 411 F.3d at 76. The court
must “examine the entire record to determine whether the
plaintiff could satisfy his ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff.” Schnabel v. Abramson, 232 F.3d 83, 90

33

(2d Cir. 2000) (internal citation and quotation marks omitted).
Gorham argues that the BOE‟s stated reason for the
termination is a pretext. He argues that the BOE never brought
up the established understanding of allowing custodians to take
items from the trash during the investigation into his alleged
misconduct; that the BOE did not acknowledge this established
understanding until August 17, 2012; that the defendant changed
its position from claiming that Gorham committed theft to
claiming that he failed to obtain approval from his supervisor
prior to removing items from the trash; that he did not steal
the dry mop from the custodial closet and the coat from the Lost
and Found because he had permission to take these items; that
the November 16 Letter contained accusations that read like a
criminal indictment; and that affidavits the defendant has
submitted from Kennedy, Schneider, and Bike stating that they
did not give Gorham permission to take the instrument case are
self-serving and were not made contemporaneously.
However, assuming arguendo that the plaintiff could create
a genuine issue of material fact as to whether the reason
articulated by the defendant was pretextual, “a reason cannot be
proved be a pretext for discrimination unless it is shown both
that the reason was false, and that discrimination was the real
reason.” St. Mary‟s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)
(emphasis in original). As discussed above, the plaintiff has

34

failed to produce evidence that could support an inference of
discrimination, based on either evidence that he was treated
differently from similarly situated individuals or evidence of
discriminatory animus on the part of the defendant towards a
protected class.
Moreover, the defendant points to evidence that gives rise
to inferences that would negate an inference of race, color, or
age discrimination. With respect to age discrimination, Kennedy,
McDougald-Campbell, and Iassogna were 47, 57, and 65,
respectively, at the time the defendant terminated Gorham‟s
employment. Thus, each was older than Gorham. An inference
against age discrimination can be drawn “where the person who
participated in the allegedly adverse decision is also a member
of the same protected class.” Drummond v. IPC Intern., Inc., 400
F. Supp. 2d 521, 532 (E.D.N.Y. 2005) (citing Marlow v. Office of
Court Admin., 820 F. Supp. 753, 757 (S.D.N.Y 1993), aff‟d, 22
F.3d 1091 (2d Cir. 1994)).
Likewise, with respect to racial discrimination, the same
actor inference can be drawn because Kennedy and Iassogna
participated in both the decision to hire Gorham and in the
decision to terminate his employment. See Grady v. Affiliated
Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (“[S]ome factors
strongly suggest that invidious discrimination was unlikely . . .
[w]hen the person who made the decision to fire was the same

35

person who made the decision to hire . . . .”). Such an
inference is less compelling here considering the length of time,
i.e., 7 years, that elapsed between Gorham‟s hiring and the
termination, but the inference may nevertheless be drawn. See
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 138 (2d Cir. 2000)
(“[T]he inference is less compelling when a significant period
of time elapses between the hiring and the firing.”).
Thus, even assuming arguendo that Gorham could create a
genuine issue of material fact as to whether the reason given by
the BOE for terminating his employment was pretextual, he has
proffered only his own conclusory assertions, but not evidence,
in support of his contention that unlawful discrimination was
the real reason.
The plaintiff argues that there is significance to
Schneider‟s comment to Gorham that “I don‟t know how to tell you
this, but that [saxophone] ended up back in the dumpster again”
(Gorham Dep., Doc. No. 42-3, at 60:14-15.), and the defendant‟s
attempt to explain that the saxophone was placed on top of the
trash “as a practical joke” played on the owner by fellow
students (Pl.‟s Mem., Ex. D-1 Doc. No. 42-7, at 1) as evidence
that the BOE‟s reason is pretextual. However, Schneider made the
comment to Gorham in April, months after the November 19, 2010
disciplinary hearing and resignation. Thus, the fact that the
instrument was put in the trash a second time is not something

36

Kennedy, McDougald-Campbell, and Iassogna could have considered
in making a decision about the plaintiff. Gorham also argues
that the BOE contradicts itself when it accused him of “theft of
items belonging to a public entity” in the November 16, 2010
Letter and later uses the word “heirloom” to describe the
instrument and admits that it does not have possession of it.
However, Kennedy concluded after his investigation that Gorham
took a dry mop from the custodial closet, in addition to taking
a coat from the Lost and Found, without permission. Thus, the
plaintiff has proffered evidence that, at most, goes to the
issue of whether the investigation conducted by the defendant
was flawed to some degree, which is a different question from
whether the reason proffered by the defendant for terminating
the plaintiff‟s employment was pretextual, and an altogether
different question from whether the real reason was intentional
discrimination.
Because, even assuming arguendo that the plaintiff could
create a genuine issue of material fact as to whether the reason
articulated by the defendant was pretextual, the plaintiff has
failed to proffer evidence that creates a genuine issue of
material fact as to whether the real reason for the termination
of his employment was his race, color, or age, the motion for
summary judgment is being granted as to the plaintiff‟s claims
for discrimination in violation of Title VII, the ADEA, and

37

CFEPA.
D. Retaliation Claim
The Amended Complaint alleges that “[t]he defendant later
retaliated against [the] plaintiff by failing to reinstate him
to his position after [the] defendant had been made aware that
other of its employees had acted as [the] plaintiff had, but had
not been terminated and otherwise informed of the nature of the
defendant‟s illegal actions at and during the CHRO process.” (Am.
Compl., Doc. No. 15, ¶ 30.) Based on that allegation, the
defendant moves for summary judgment on any retaliation claim
being asserted by the plaintiff.
“The McDonnell Douglas burden shifting analysis used in
claims of discrimination in violation of Title VII also applies
to retaliation claims brought pursuant to Title VII. . . . The
same standards and burdens apply to claims of retaliation in
violation of the ADEA.” Ashcroft, 336 F.3d at 141 (2d Cir. 2003).
“Claims under CFEPA are analyzed in the same manner as those
under Title VII, including for claims of retaliation.” Collins v.
Connecticut Job Corps, 684 F. Supp. 2d 232, 254 (D. Conn. 2010)
(quoting Kearney v. City of Bridgeport Police Dep‟t, 573 F. Supp.
2d 562, 573 (D. Conn. 2008)).
“To establish a prima facie case of retaliation under Title
VII, a plaintiff is required to show by a preponderance of the
evidence: (1) that he participated in a protected activity; (2)

38

the defendant knew of the protected activity; (3) he experienced
an adverse employment action; and (4) a causal connection exists
between the protected activity and the adverse employment
action.” Collins, 684 F. Supp. 2d at 254.
The plaintiff does not respond to the motion for summary
judgment as to any retaliation claim, other than stating
generally that “the burden of establishing a prima facie case
for discrimination/retaliation is minimal.” (Pl.‟s Mem., Doc. No.
42, at 31.). Therefore, the claim has been abandoned and the
defendant is entitled to summary judgment on this basis alone.
See Nguyen v. People‟s United Bank, No. 3:10-cv-455, 2011 WL
2198315, at *4 (D. Conn. Jun. 6, 2011) (granting summary
judgment on, and deeming abandoned, claim that plaintiff failed
to respond to in opposing summary judgment).
In any event, however, the plaintiff‟s theory as to why he
was retaliated against, as alleged in the Amended Complaint, is
that the defendant failed to reinstate him to his position after
he filed a complaint with the CHRO. However, it is apparent that
the plaintiff could not meet his de minimis burden of
establishing a prima facie case because, inter alia, the record
is devoid of any evidence that could support an inference that
there was a causal connection between the plaintiff filing his
CHRO complaint and the defendant failing to reinstate him to his
position.

39

Therefore, the motion for summary judgment is being granted
as to any claims brought by the plaintiff for retaliation in
violation of Title VII, the ADEA, and CFEPA.
IV. Conclusion
For the reasons set forth above, the defendant‟s Motion for
Summary Judgment (Doc. No. 38) is hereby GRANTED. Judgment shall
enter in favor of defendant Town of Trumbull Board of Education
on all the claims in the Amended Complaint.
The Clerk shall close this case.
It is so ordered.
Signed this 26th day of March 2014, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

40