Fetcho v. Hearst Connecticut Post, LLC
Filing
59
OPINION and ORDER granting 35 Motion for Summary Judgment. Signed by Judge Geoffrey W. Crawford on 4/16/15. (Campbell, A)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF CONNECTICUT
RUSSELL G. FETCHO,
Plaintiff,
v.
HEARST CONNECTICUT POST, LLC,
DIBIA CONNECTICUT POST,
Defendant.
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3:12-cv-904 (GWC)
OPINION AND ORDER RE:
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(Doc. 35)
Plaintiff Russell Fetcho has filed suit against his former employer Hearst Connecticut
Post, LLC ("Hearst"). He alleges age discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 et seq., and the Connecticut Fair Employment Practices Act,
Conn. Gen. Stat.§ 46a-58(a) et seq. He also alleges state-law claims of retaliatory discharge and
intentional infliction of emotional distress.
I.
Facts
Plaintiff started work for a newspaper called the Connecticut Post (the "Post") in 1972 at
age 18. He first worked for one year as a proofreader in the Advertising Department. He soon
advanced to a sales position. He spent his career at the Post in advertising sales. His
employment at the Post ended in the spring of2010.
In May 2010, plaintiffbecame involved in a dispute with his supervisor Terri Sells. The
parties tell two different versions about how the disagreement arose.
The Post states that plaintiff failed to respond to an email fiom one of his accounts-the
Bridgeport Hospital. (Doc. 35-15 at 3.) The Post has supplied copies of emails which show that
on May 12, 2010, an advertising staff member at the Post sent the hospital a draft of a proposed
classified ad concerning a physician's retirement. (Doc. 35-5.)
I
On Friday, May 21, 2010, after normal business hours, the hospital's representative sent
plaintiff an email approving the ad and requesting that it appear twice in successive weeks in
order to comply with the rules conceming public notice of a physician's retirement. (Id. at 2.)
On Tuesday, May 25,2010, the hospital's representative followed up with an email to
plaintiff complaining that she had not received a response to her email the previous Friday. The
email states:
Russ,
I sent this to you last week-and have not heard back-even a confirmation that
the attached ad has been placed. We lost time with the Post's production
department with our original request-and it is imperative that this be placedgiven that we have lost time. This is not the way I was hoping this new
relationship would proceed.
Please confirm for me that you received this and this it is being handled.
(Id.) The Post's publisher John DeAugustine was also copied on this email. Mr. DeAugustine
forwarded the email to plaintiffs supervisor Terri Sells who immediately sent an email to the
hospital confirming that the ad would be placed in the Post as requested. (Doc. 35-6 at 2.)
The next morning, May 26, 2010, Ms. Sells asked plaintiff about the unanswered email
from the hospital's representative. Plaintiff told her that he did not receive the May 21 email.
The plaintiff became angry and stated that he could not stand the "micromanaging" of his
performance. He swore once and left the meeting. (Doc. 35-15 at 4.) Ms. Sells complained to
Mark Aldam who was her superior at the Post. Mr. Aldam and Ms. Sells met with plaintiff who
became upset and angry. Plaintiff offered to resign and was offered four weeks' severance pay
plus health benefits if he assisted with a smooth transition of his assignments. (Doc. 35-1 at 9;
Doc. 35-9 at 4.)
Later on the same day, plaintiff met twice with John DeAugustine, publisher of the Post,
to discuss his employment and resignation. Plaintiff complained about Mr. Aldam's demanding
and abrupt personal style. Plaintiff agreed to resign. (Doc. 45-9 at 4.) In a final meeting with
Mr. DeAugustine on May 28, 2010, plaintiff stated that he had never complained about Mr.
Aldampreviously. (Doc. 35-11.) Plaintiffs employment came to an end around June 1, 2010.
2
Plaintiffs version of these events is different. He states that he never received the May
21 email from the Bridgeport Hospital and therefore had no reason to respond to the hospital on
May 24 or 25. (Doc. 43-4 at 1.) When he explained this to Ms. Sells at their first meeting on
May 26, she demanded to see his computer. (Id. at 4.) Plaintiff stated that it contained no emails
because he routinely deleted his email inbox in order to permit the outdated system to function.
(Id.) He had already deleted the emails from the time in question. Ms. Sells used this incident to
create a complaint which resulted in accusations by Mr. Aldam of poor job performance and
poor attitude. Plaintiff states that at the initial meeting with Mr. Aldam and Ms. Sells, he
criticized Mr. Aldam's management style. He denies that he resigned. He states that he was
involuntarily terminated. (Id. at 4-5.)
Plaintiff attributes his termination to age discrimination. He was fifty-six years old at the
time of termination. He finds factual support for his claim of discrimination in the following
ways:
•
Ms. Sells concocted the stmy about the missed email in order to harass the
plaintiff and, after plaintiff reacted strongly to her criticism, immediately referred
the dispute to Mr. Aldam.
•
In his first conversation with the plaintiff following the complaint from Ms. Sells,
Mr. Aldam falsely accused the plaintiff of poor job performance and poor
attitude. He did so because the plaintiff complained that he had been unfairly
criticized by Ms. Sells.
•
The plaintiff also complained to Mr. Aldam about Mr. Aldam's abrupt and
disrespectful management style. He told Mr. Aldam that he had retained an
attorney. The plaintiff had previously complained to others in management at the
Post about Mr. Aldam. Mr. Aldam retaliated against the plaintiff for making
these complaints and for hiring an attorney by tetminating plaintiffs
employment.
•
Tln·ee other employees-Stewart Lahey, Ray Sbrega, and Kim Boath-have all
committed more serious offenses than plaintiffs use of profanity without being
terminated.
3
•
At the time of termination, plaintiff was the oldest and most senior employee at
the Post. With few exceptions, all others had been terminated or retired by the
defendant. In other departments at the Post, older employees were offered
retirement agreements. No such agreements were offered to employees in the
classified advertising department where plaintiff was employed.
(Doc. 43-1 at 2-4.)
II.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that the court "shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter oflaw." A factual dispute is "genuine" if "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party asserting that a fact is
genuinely disputed must cite to "particular parts of materials in the record, including[,] [inter
alia,] depositions." Fed. R. Civ. P. 56(c)(l). "[A]t the summary judgment stage the judge's
function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." Redd v. NY. State Div. ofParole, 678 F.3d
166, 173-74 (2d Cir. 2012).
The burden is on the moving party to show that it is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2004). The non-moving party receives the
benefit of favorable inferences drawn from the underlying facts. Hayes v. New York City Dep 't
ofCorr., 84 F.3d 614, 619 (2d Cir. 1996). However, allegations that are "conclus01y and
unsupported by evidence of any weight" are insufficient for the non-moving party to withstand a
motion for summary judgment. Smith v. Am. Express Co., 853 F.2d 151, 155 (2d Cir. 1988). "If
the party moving for summary judgment demonstrates the absence of any genuine issue as to all
material facts, the nonmoving party must, to defeat summary judgment, come forward with
evidence that would be sufficient to support a jury verdict in its favor." Burt Rigid Box, Inc. v.
Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
4
III.
Analysis
In ruling on defendant's motion for summary judgment, the court is required to accept all
statements by the plaintiff as factually true except for those statements which are demonstrably
false or mistaken. Certain allegations are demonstrably untrue. These are that Mr. Lahey, Mr.
Sbrega and Ms. Boath are younger than the plaintiff and that he is the oldest or most senior
employee remaining at the Post. 1
The court accepts as true the sworn declaration of Cheri Panzica, Human Resource
Manager at the Post since 2009, that at the time of the plaintiffs termination, 18 of 55 employees
in the Advertising Department were older than plaintiff. (Doc. 35-2 at 3.) The court also accepts
as true the employment record supplied by the Post indicating that Mr. Lahey was 84 years old
and Mr. Sbrega 58 at the time of plaintiff's termination. (Doc. 35-4.) These are objective and
readily verifiable statements of fact which are not rebutted by record evidence offered by
plaintiff. In all other respects, the court accepts the plaintiffs allegations as true for purposes of
the motion.
The plaintiff makes claims under both state and federal law. The court will consider each
separately.
A.
Claims under the Age Discrimination in Employment Act
In 1967, Congress passed the Age Discrimination in Employment Act, 29 U.S.C. §§ 621
et seq. (the "ADEA''), in order to address the unfairness experienced by "older workers [who]
find themselves disadvantaged in their efforts to retain employment, and especially to regain
employment when displaced from jobs." 29 U.S. C. § 621(a)(l). The ADEA prohibits
workplace discrimination on the basis of age. It provides for enforcement both through
administrative proceedings before the Secretary of Labor and through private civil actions such
as this case. 29 U.S.C. § 626.
The elements of a claim under the ADEA are:
(1) that the employee is a member of the protected class,
(2) that the employee is qualified for the position,
1
Mr. Sbrega is mistakenly described as "Mr. Spera" in plaintiffs motion papers. (Doc. 43-1.)
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(3) that the employee suffered adverse employment action, and
(4) that the circumstances surrounding the action give rise to an inference of age
discrimination.
Abrahamson v. Ed. ofEduc., 374 F.3d 66, 71 (2d Cir. 2004).
There is no dispute for purposes of this motion that plaintiff can establish the first two
elements of the claim. He is over 40 years old which is the minimum age for claims under the
ADEA, and there is no dispute that he is qualified to work in the position of sales representative.
The disputed elements are (3) and (4). The Post denies that the plaintiff suffered an adverse
employment action because he resigned voluntarily. It also denies that there is any evidence to
support an inference of age discrimination.
The court begins with the claim of voluntary resignation. The circumstances under which
plaintiffleft the employ of the Post are in dispute. As defendant's memo in support of the
motion for summary judgment indicates, the support for this claim comes from Mr. DeAugustine
who states under oath that the plaintiff told him he had resigned. (Doc. 35-9 at 4.) Plaintiff
denies making these statements.
The plaintiff specifically said that he did not quit to the Publisher of the Post, John
DeAugustine. The plaintiff received unemployment compensation after being terminated by the
defendant; this, too the plaintiff would not have received if he had voluntarily left his
employment. Ultimately, DeAugustine told the plaintiff to cease coming into work. The
plaintiff refused to sign a resignation letter. (Doc. 43-1 at 18 (references to plaintiff's deposition
transcript deleted)). Plaintiff relies upon his deposition testimony in which he stated:
I just told [John DeAugustine] that after 39 years ofbeing a good employee for
this paper ... he said, "You quit." I said, "Why would I do that with five weeks'
vacation, good benefit package?" Why would-it would never happen. I told
him I was dissatisfied with the [tennination] package. It was terrible. It is like a
slap in your face when you have been there that long. That is what we basically
talked about.
(Doc. 43-2 at 47.) As these excerpts make clear, the circumstances under which plaintiffs
employment ended are in dispute. This is an issue which cannot be resolved through summary
judgment.
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The court turns now to the defendant's claim that even if plaintiff was terminated
involuntarily, there is insufficient evidence to support a claim of age discrimination. From the
Post's perspective, the termination was the result of the plaintiffs bad attitude towards his
supervisor Mr. Aldam and his mde conduct towards Ms. Sells.
i.
McDonnell Douglas Rubric
The question of how to prove that an employer has acted out of an improper motive is the
central challenge posed by all remedies against discrimination. The development of legal
remedies and an increased awareness of the moral wrong of prejudice have caused employers in
some cases to avoid disclosing the real reason for a termination or other job action. In other
cases, there may be no discriminatory motive at all despite the age, race, gender or other
characteristic of the employee. Finally, there are cases in which the motives for the job action
are mixed and may include some element of discrimination. Led by the Supreme Court, the
lower courts have developed a burden-shifting analysis to guide the trial courts in evaluating the
evidence offered in support of an inference of discrimination.
Any discussion of this topic starts with McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), which established the three-step analysis which applies to claims of discrimination filed
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2004 et seq. Green was a civil
rights activist and a skilled mechanic at a McDonnell Douglas plant. He was laid off for
economic reasons. While out of work, he participated in an act of civil disobedience at the plant.
When McDonnell Douglas advertised for new workers, he applied and was rejected. The
Supreme Court recognized the difficulties of proving unlawful motivation and, in particular, the
need to look behind a pretext for an employer's decision:
[An employee] must be afforded a fair opportunity to show that [an employer's]
stated reason for [his or her] rejection was in fact pretext. ... In shmt, on the
retrial [Green] must be given a full and fair opportunity to demonstrate by
competent evidence that the presumptively valid reasons for his rejection were in
fact a cover up for a racially discriminatory decision.
Id. at 805. The analytical structure imposed by McDonnell Douglas requires initial consideration
of whether the plaintiff has established a prima facie case of discrimination. Green was able to
meet this requirement by showing that he is a member of a protected class, that he was qualified
for the job, that he was rejected, and that McDonnell Douglas continued to advertise for workers.
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Once the ptima facie case has been established, the burden of production of evidence
shifts to the defendant who must establish a legitimate, non-disctiminatory reason for the adverse
employment action. McDonnell Douglas met this requirement througlt evidence that Green had
patiicipated in an illegal protest on plant grounds after his layoff. In the third and final step, the
burden of production returns to the plaintiff who must prove that the proffered reason is a pretext
which conceals the true discriminatory basis for the employer's action.
Two subsequent Supreme Court decisions considered whether evidence of pretext-that
is, evidence casting doubt on the veracity of the employer's non-discriminatory reason for
discharge or other adverse action-is sufficient by itself to satisfY the plaintiffs burden of
production. In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), the Court held that
when an employer met its burden of production on the second step by producing evidence of an
alternative, legitimate explanation for the job action, the presumption of discrimination
disappem·s. The plaintiff retains the burden of proof which he or she may meet by proving the
elements of the original prima facie case. This proof may be supplemented with evidence that
the explanation for dischm·ge offered by the employer is false. "[R]ejection of the defendant's
proffered reasons will permit the trier of fact to infer the ultimate fact of intentional
discrimination.... " I d. at 511. But proof of pretext alone is an insufficient basis for summary
judgment in favor of the plaintiff.
The St. Mary's decision left unsettled the inverse question of"whether a defendant is
entitled to judgment as a matter oflaw when the plaintiffs case consists exclusively of a prima
facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the
defendant's legitimate, nondiscriminatory explanation for its action." Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000). In Reeves, the Court left this issue to case-bycase analysis. "Certainly there will be instances where, although the plaintiff has established a
prima facie case and set forth sufficient evidence to reject the defendant's explanation, no
rational factfinder could conclude that the action was discriminatory." I d. at 148. Conclusive
evidence of a non-discriminatmy reason or a "weak issue of fact as to whether the employer's
reason was untrue" coupled with "abundant and uncontroverted independent evidence that no
discrimination had occurred" could suppoli judgment as a matter of law in favor of the
defendant. Id. at 148.
8
The McDonnell Douglas formula has passed through one final evolutionary stage in
ADEA cases. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court further
developed the McDonnell Douglas analysis in so-called "mixed motive" Title VII cases in which
discrimination was one of multiple causes for the employer's action. If the plaintiff
demonstrates that discrimination was a motivating or substantial factor in the employer's action,
the burden of persuasion shifts to the employer to show that it would have taken the same action
for reasons independent of discrimination. In 2000, Congress amended Title VII to permit
recovery when discrimination was one of several motivating factors. See 42 U.S.C. § 20042(m). This amendment did not apply to the AD EA.
The Supreme Court's decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009),
eliminated the Price Waterhouse rule in ADEA cases in which there was evidence of mixed
motive. In place ofthe fourth step in the burden-shifting analysis required for Title VII claims
by Price Waterhouse, the plaintiff in an ADEA case bears the burden of establishing that age
discrimination was a "but for" cause of his or her termination or other adverse action. "A
plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial),
that age was the 'but-for' cause of the challenged employer decision." Id. at 177-78. Proof of a
"but for" cause for the adverse action requires evidence from the plaintiff that the adverse action
would not have occurred in the absence of discrimination. Although the Gross decision includes
language critical of McDonnell Douglas, it did not eliminate the three-step analysis in ADEA
cases. ·Since the Gross decision, the Second Circuit has retained the McDonnell Douglas
analytic structure but only for cases which in obedience to Gross can satisfy the "but for" test.
See Gorzynsld v. JetBlue Airways Corp., 596 F.3d 93 (201 0). Relying upon dictum in Gross
which leaves open the possibility that the McDonnell Douglas test has continued application in
ADEA cases in which the plaintiffs evidence is sufficient to establish "but for" causation, the
Second Circuit continues to follow the three-step test.
ii.
Application
Turning to the facts in this case, the first issue which the Court considers is whether
plaintiff has established a factual record for purposes of summary judgment which, if believed,
contains support for the elements of a prima facie case of age discrimination. This is step one of
the McDonnell Douglas analysis. The defendant does not dispute that plaintiff is a member of
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the protected class of older workers (element 1) or that he was qualified for his position (element
2). With respect to proof of an adverse job action (element 3), the plaintiff has provided
testimony that, ifbelieved, will prove that he was fired and did not quit voluntarily. For
purposes of summary judgment, he has established the third element.
The element principally in dispute is whether he has provided sufficient evidence that his
age was a "but for" cause of his termination. Such evidence may be either direct or
circumstantial. The plaintiff asserts that he never received the May 21 email from Bridgeport
Hospital and that his supervisors unreasonably seized this instance of customer dissatisfaction in
order to terminate his employment on the basis of his age. In applying the McDonnell Douglas
analysis, the court concludes that the dispute over the reason for the plaintiff's dismissal is
sufficient to meet the requirements of the prima facie case for purposes of the first step.
Plaintiff's assertion that his supervisors at the Post used the dispute over the hospital
advertisement to push him out the door is at least some evidence---however thin-of possible
age discrimination.
The employer's explanation for the termination is sufficient to meet the requirements of
the second step. The employer has produced evidence that it terminated plaintiff due to his loss
of temper and poor attitude when called upon to explain his delay in responding to the hospital's
email. This non-discriminatory basis for the termination decision satisfies the employer's burden
of production.
Turning to the third step-whether the factual dispute over the reason for termination is
sufficient to meet the plaintiff's burden of producing evidence of discrimination-the court relies
upon the Reeves decision and the requirement of case-by-case consideration. As the Supreme
Court recognized in Reeves, conflicting evidence about the reason for the termination will not
always lead to a decision in plaintiffs favor.
In this case, there is no direct evidence of age discrimination such as a statement or
practice which shows the Post's intent to remove older workers from its force. Indeed, there is
almost no discussion of age in the deposition of the plaintiff. He testified as follows with respect
to the impact of age on his termination:
Q. What was your understanding of why [you were terminated]?
10
A. Well, I believe it was they didn't have anybody that was senior that had been
there a long time and at my age.
Q. Did anybody ever say anything about your age?
A. Not that I recall.
Q. So you think they asked you to leave because of your age, because you were
the only senior person there?
A. That is partially what I believe. I think that was it. I think it was because of
it. It was all contrived with the Bridgeport Hospital thing, and in his office, "You
can be replaced." I will make it easy. Then when I went in to see John I said,
"John, this is totally unacceptable." He said, "But you quit." I never said those
words. I don't !mow where you got that from. Why would you offer me four
weeks['] pay if I quit? It doesn't make sense. That is what he said to me. I said,
"No, I did not."
(Doc. 43-2 at 44.) In addition to this statement of personal belief, plaintifftestified that he
suspected age discrimination based on the lay-off of "older employees" and "senior staff' from
the composition, printing and classified ad departments. (Jd. at 57, 68-69.) These employees
were offered a "package deal" which many accepted. (Jd. at 57.) This practice did not occur in
the sales department where plaintiff worked. (Jd.) Finally, plaintiff testified that although the
complaint alleges that younger employees who were involved in disagreements with
management received more lenient treatment than his, he could not recall who these were. (Jd. at
58.)
The memorandum provided by plaintiffs counsel goes somewhat further and seeks to
identifY three "comparators"-younger employees who engaged in similar or worse behavior
and were not fired. These are Stewart Lahey, Ray Sbrega, and Kim Boath. (Doc. 43-1 at 19.)
The difficulty with this argument is that two of these employees are older than plaintiff--one by
more than 30 years. The legal argument is not supported by the record.
The plaintiff makes no attempt to provide proof of discrimination through statistical
analysis of hiring and termination practices at the Post. The employees in the sales department
are distributed across the spectrum of age with one-third being older than plaintiff. Although
plaintiff stated in his deposition that he believed that older employees were being let go at a
higher rate than younger employees, there is no other evidence that this is true. Since the age
and start and finish dates of Post employees is a matter of record, the plaintiffs failure to supply
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this information or otherwise demonstrate a statistical bias in favor of younger employees shows
that his case cannot be supported through such means.
Plaintiffs claim comes down to this: he disagrees with the circumstances which led up to
his termination and identifies the dispute over the email from the Bridgeport Hospital as a
pretext. He argues that if he proves that the reason he was fired was fabricated, then the jury
may infer that the real reason was age.
Evidence of disparate treatment based upon age is frequently circumstantial and
inferential. Few employers who discriminate on the basis of age do so openly. See Holcomb v.
lana Call., 521 F.3d 130 (2d Cir. 2008). However, standing alone, plaintiffs claim that the Post
has been untruthful about the basis for the termination is not evidence that age was the real
reason. In this case, the fundamental dispute was whether the initial email from the customer
failed to reach the plaintiff or whether he overlooked it in his inbox. The dispute was
compounded by a show of temper. These facts are not in dispute. What is missing is any basis
on which a reasonable jury could infer that the employer's purported reason for the
termination-even if untrue--was a pretext which concealed a discriminatory motive. This
inquiry is the type of case-by-case inquiry required by Reeves.
The court has reviewed the record closely, especially the deposition testimony of the
plaintiff, and can find no basis upon which to infer that age played any part in his termination.
There is no claim that the employer's representatives made any statement about his age or the
need to move younger employees into his position. Plaintiff fell at the older end of the middle
third of the employees in his department. Approximately one-third are older. Two-thirds are
younger. There is no evidence that a younger employee was hired to replace him. Although he
complains that his supervisor Mr. Aldam was harsh and abrupt with him, he admits that Mr.
Aldam behaved that way with all employees and that this conduct was umelated to age. The
principal evidence offered by plaintiff is his contention that the tlu·ee Post executives who played
a role in his termination were wrong about whether he had neglected to respond to the Hospital's
email. Assuming for purposes of the motion that plaintiff is right that he never received the
email and that his supervisors misunderstood and overreacted to this problem, this alleged
"pretext" for his firing provides no basis for inferring that the real reason for the termination is
age discrimination.
12
This is one of those cases anticipated by Reeves in which the plaintiff has "created only a
weak issue of fact as to whether the employer's reason [for termination] was untrue and there
was abundant and uncontrove1ted evidence that no discrimination had occurred." Reeves, 530
U.S. at 148. There is no question that there was a complaint from the hospital and that plaintiff
reacted poorly to his supervisor's questions and criticism. Plaintiffs claim is that his conduct
was not bad enough to justify his dismissal and therefore his age must be the real reason. But
such an inference would equally support any theory about the reason for dismissal such as
personal dislike, reduction of the labor force, or performance concerns. In the absence of any
evidence that the employer has created a false account of the events leading to the termination, a
claim that its representatives' subjective intent was discriminatory-unsupported by other
evidence-is insufficient to meet the plaintiffs burden of production at the third step of the
McDonnell Douglas analysis.
B.
Claims under the Connecticut Fair Employment Practices Act
Plaintiff also alleges that he suffered age disc1imination in violation of the Connecticut
Fair Employment Practices Act, General Statutes, §§ 46a-58(a) et seq. (the "CFEPA"). Section
46a-60 prohibits workplace discrimination in terms which closely follow the ADEA. Plaintiff
argues that the burden-shifting analysis which the Connecticut Supreme Court has applied in
cases filed under the CFEPA is not subject to the limits imposed on the ADEA by the Gross
decision and that proof that age was one "motivating factor" among two or more contributing to
his termination is sufficient to establish liability. He relies primarily on the decision of the
Connecticut Supreme Court in Jacobs v. Gen. Elec. Co., 880 A.2d 151 (Conn. 2005).
In Jacobs, both the trial judge and the Connecticut Supreme Court sought to apply the
McDonnell Douglas analysis in an age discrimination case. Both courts agreed that plaintiff had
satisfied the elements of the first stage of the test. Both agreed that the defendant-employer had
provided evidence of an alternative basis for the plaintiffs discharge umelated to age. The
Connecticut Supreme Court reversed the trial court for supplying jury instructions which
required the plaintiff in an age discrimination case to prove both that the defendant's reasons for
te1mination were false and merely a pretext and that plaintiffs age was a motivating factor for
the decision. The Court followed the decision of the Second Circuit in Gordon v. New York City
Bd. ofEduc., 232 F.3d 111 (2d Cir. 2000), which held that age discrimination could be proved
13
either by direct evidence of retaliatory intent or by evidence from the plaintiff that the reasons
given by the defendant were untrue.
The Jacobs decision in 2005 predates the Gross decision by 4 years. The Connecticut
Supreme Court has not considered whether the limitations which the Gross ruling places on the
use of the McDonnell Douglas test in the context of the ADEA also apply to the CFEP A. In
other words, the question of whether the CFEPA-in contrast to the ADEA-permits a claim of
disparate treatment based on mixed motives has not been addressed by the Connecticut Supreme
Court. This court does not have to venture a prediction on this issue of state law because the
evidence in this case falls short of the standard recognized in Gordon. As this decision has
already discussed, there is no direct evidence of age discrimination. There is also no
circumstantial evidence that other older employees were the subject of discrimination and,
therefore, by inference plaintiff was also. The only evidence offered by plaintiff is that the
reason for his termination was fabricated. He contends that Ms. Sells failed to understand that he
did not receive the Hospital's email and that the presence in the case of a false pretext is
sufficient evidence of discrimination standing alone to survive summary judgment.
The Jacobs decision does not go this far. It is true that the decision allows for proof of
mixed motives in which discrimination and other motives are joined as a basis for a claim of
discrimination under the CFEP A. It is more favorable to plaintiffs than the Gross decision which
requires "but for" causation and rules out "mixed motive" as a basis for liability under the
ADEA. In adopting the Gordon analysis, however, the Jacobs decision retains the dual
requirement that the pretext be shown to be false and that the plaintiff present some evidence that
age--as opposed to any of the countless other factors which may have led to his terminationwas at least one of the factors which motivated the employer. Jacobs, 880 A.2d at 157.
The rule that proof of pretext also requires proof that discrimination was the real reason
for an adverse job action has long been settled in the Second Circuit. The Gordon decision
adopts the reasoning of the Second Circuit in Fields v. NY. State Office ofMental Retardation
and Developmental Disabilities, 115 F.3d 116 (2d Cir. 1997). In Fields, the court stated:
[A] Title VII plaintiff may not prevail by establishing only pretext, but must
prove, in addition, that a motivating reason was discrimination. But though a
plaintiff may not prevail only by showing that a proffered explanation is a pretext,
14
it is not required to make such a showing. Since a plaintiff prevails by showing
that discrimination was a motivating factor, it can invite the jmy to ignore the
defendant's proffered legitimate explanation and conclude that discrimination was
a motivating factor, whether or not the employer's proffered explanation was also
in the employer's mind.
Id. at 121. Jacobs makes exactly the same point. The plaintiff has two routes by which he or she
can prove discrimination: by direct evidence or inferentially by demonstrating that the reason
offered by the employer was false. Like Field and Gordon, Jacobs holds that a plaintiff does not
have to prove both. But since the Connecticut Supreme Court adopted Field and Gordon for
purposes of construing the Connecticut statute, there is no reason to predict that the Connecticut
Supreme Court would not also follow the requirements imposed in these cases that a plaintiff
who chooses to prove pretext must prove two things: that the reason stated for dismissal was
false and that discrimination was a motivating factor.
Before leaving the issue, the court must consider one further step in the analysis. In Bd.
ofEduc. of City ofNorwalkv. Comm 'non Human Rights and Opportunities, 266 Conn. 492
(2003), the Connecticut Supreme Court expressed the widely accepted formula that racial
discrimination may be proved by showing that the employer's stated reason was false and that
there was evidence of intentional discrimination. Relying upon the decision of the U.S. Supreme
Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Connecticut
Supreme Court held that although proving that the pretext was false did not always establish
discrimination, evidence of falsity, and in particular of mendacity, could be sufficient to support
an inference of intentional discrimination.
Jacobs, Gordon, Field and City ofNorwalkwere all written before Gross and arise in a
setting in which an employer could be found liable in an age discrimination case on a record
demonstrating "mixed motives." The question which has not been answered is whether the
restrictions imposed by Gross to the ADEA will also be applied by the Connecticut Supreme
Court to the CFEP A. This court has no reason to offer a prediction as to the direction of state
law on this issue because the plaintiffs claim fails to meet the requirements of "mixed motive"
analysis.
In this case, there is no factual basis on which a reasonable jury could infer tl1at age
discrimination played a part in the tennination decision. There is evidence from the plaintiff that
15
he and other employees were subjected to demanding and abrupt treatment by their sales
managers and that he lost his temper, swore and behaved inappropriately on a single occasion,
and was discharged in the wake of that conduct. From the plaintiffs perspective, his supervisors
overreacted to a minor incident which had its origin in a disagreement with his supervisor about
whether he had received the email from the Hospital. Other employees had done worse without
being terminated.
Accepting plaintiffs version of the facts as true, these facts in no way implicate his age
as the reason for his termination. Any employee of any age could find himself in a disagreement
with a supervisor which escalates into a termination. Plaintiff offers no acceptable evidence to
link his termination to his age. His comparators-people who did the same thing and fared
better-tum out to be both older and younger. Although he suspects that the Post terminated
more older people than younger people dming a recent period oflayoffs and down-sizing, he
offers no proof. Similarly, he suspects that management harbored a desire to get rid of older
workers, but he offers no statement or pattern ofbehavior to back up his subjective belief.
A plaintiff's suspicion alone is not sufficient evidence to make out a prima facie case of
age discrimination under Jacobs. Plaintiff plainly satisfies the requirement that he have evidence
that the reason given for his termination was false. His own testimony, if believed, establishes
that he did not receive the email from the Hospital and that his two immediate supervisors
created the quarrel which led to his termination. But he offers no evidence to show that age was
a factor in the original exchange with his supervisor or in the Post's reaction and his ultimate
termination.
The court has also considered plaintiffs claim that if he can prove at trial that the Post
concocted the events which led to his dismissal, he is entitled to an inference of discrimination
for purposes of summary judgment. The difficulty with the argument is that the events leading
up to the termination are not disputed. The parties agree about the exchanges between plaintiff
and Ms. Sells and Mr. Aldam. They disagree about whether the exchange was the true reason for
termination, but there is substantial agreement on all aspects of the dispute over the Hospital
email. Plaintiff does not suggest that the Hospital email was a fabrication. They disagree only
about whether the email failed to reach plaintiffs inbox. But no one suggests that the Hospital
conspired with the Post to make it appear that an email had been sent to plaintiff. These events
16
are entirely different from false pretext cases in which the employer might fabricate the reason
for a termination. Events on which the parties are substantially in agreement do not support a
claim oflying by the employer.
In place of record evidence, plaintiff offers his subjective belief as stated in his
deposition that management wished to get rid of older workers. His suspicion alone is
insufficient evidence to meet the Jacobs requirement of false pretext plus some evidence that age
played a role in the termination decision. At most he has demonstrated that he was the victim of
a minor workplace dispute which blew up into a firing offense. This evidence is insufficient to
establish "mixed motives" including unlawful discrimination under the CFEPA.
C.
Claims of Retaliatory Discharge
Plaintiff also claims that he was fired in retaliation for protected speech in violation of the
CFEPA, C.G.S.A. § 31-51q. In his Memorandum in Opposition to the Post's Motion for
Summary Judgment, he states that he complained that at the time of his termination, working
conditions had become "very tense" due to pressure from Mr. Aldam and Ms. Sells. Plaintiff
claims that Ms. Sells "manufactured a complaint" against him after he complained about how
she handled the email from the Bridgeport Hospital as well as her "micromanagement." (Doc.
43-1 at 15.) Plaintiff claims that he then complained to Mr. Aldam and to Mr. DeAugustine
about his treatment and the "hostile work environment" at the Post. (Id. at 15-16.) Additionally,
he advised Mr. DeAugustine that he was in contact with a lawyer (his cousin) and, by
implication, would be suing the Post. (Id. at 16; Doc. 43-2 at 47.) He claims that he was
discharged in retaliation for the complaints against Ms. Sells and Mr. Aldarn and because he
stated that he had contacted an attorney.
The difficulty with plaintiffs claim is that he identifies no speech or conduct which is
protected for purposes of the CFEP A. The complaint itself is relatively economical on this issue:
"Further the defendant's conduct was in retaliation for the plaintiffs complaints." (Doc. 1-1
~
20.) In his memorandum, plaintiff describes the conflict between himself and his supervisors
and his perception that he was treated unfairly. (Doc. 43-1 at 14-16.) This conflict concerned
only the work-place dispute already described above. There is no record evidence that plaintiff
complained about potential discrimination. Without such a complaint, there is no protected
17
speech which can form the basis of a claim of retaliation. See Schumann v. Dianon Sys., Inc., 43
A. 3d 111, 127 (Conn. 2012) (holding that the First Amendment does not protect from discipline
by private employers statements made by the employee in the course of employment duties, in
order to "keep[] courts from the constitutionally untenable task of, in essence, having to choose
sides in a work-related viewpoint dispute between two private actors").
Plaintiff does allege that he advised Mr. DeAugustine that he was consulting with an
attorney. He claims that this infonnation placed the Post on notice that he was asserting a claim
of discrimination and that he was terminated in retaliation. The information that a person is in
contact with an attorney has never been recognized as a protected statement for purposes of the
CFEP A. See Daley v. Aetna Life & Cas. Co., 734 A.2d 112, 120 (Conn. 1999) ("Section 31-Slq
applies to constitutionally protected speech, that is to say, speech that addresses a matter of
public concern."). No reasonable jury could connect the dots in the manner plaintiff suggests.
There is no question that plaintiff was in serious difficulties at work after his conversation with
Mr. Aldam. There are many reasons why he might wish to speak with an attorney at this painful
juncture in his career. But the fact of the potential representation alone is not the equivalent of a
positive statement protected by the CFEPA.
D.
Title VII claims
Plaintiff also claims that he was the subject of discrimination actionable under Title VII
of the Civil Rights Act of 1964, 42 U.S. C. § 2000e. He makes no claim of discrimination on the
basis of race, gender, religion or other category protected by Title VII. Age is not a protected
category under Title VII and is subject instead to the AD EA. For these reasons, the Title VII
claim fails.
E.
State law claims
Plaintiff also makes claims that he suffered outrageous conduct at the hands of the Post
and that as a result the Post is liable for the intentional infliction of emotional distress ("IIED").
C01mecticut follows the Restatement of Torts (2d) § 46 in its fmmulation of outrageous
conduct.
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Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, Outrageous!
Carrol v. Allstate Ins. Co., 262 Conn. 433, 443 (2003) (citing Restatement (Second) of Torts§
46 cmt. d., at 73 (1965)).
The conduct alleged in this case does not rise to the level of atrocity .and intolerability
required to satisfy the tort of liED or outrage. By his own acconnt, the plaintiff became
embroiled in a work-place dispute, used profanity, and was terminated. He attributes the
termination to age discrimination which is independently actionable. Nothing that he describes
is sufficiently outrageous that it would cause a reasonable juror to describe the conduct as
outrageous. In the absence of specific claims of outrageous conduct, the liED claim fails.
F.
Negligent Supervision
The claim of negligent supervision of its employees by the Post fails in this case because none of
the employees have engaged in acts which give rise to civil liability. As the previous discussion
demonstrates, plaintiff has not demonstrated discrimination, outrageous conduct or any other
basis for liability. The Post cannot be liable for negligent supervision without an underlying
showing of tortious conduct by its employees.
IV.
Conclusion
For the reasons stated above, Hearst's motion for summary judgment (Doc. 35) is
GRANTED.
Dated this 161h day of April, 2015.
GeoffreyW. Crawford, Judge
United States District Court
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