Koonce v. Gaylord Hosp Inc

Filing 33

ORDER granting 26 Motion for Summary Judgment. See attached order. The Clerk of Court is directed to enter judgment for Defendant and close this action. Signed by Judge Vanessa L. Bryant on 07/30/15. (Thomas, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

KIMBERLY KOONCE,
Plaintiff,

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:
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v.
GAYLORD HOSPITAL, INC.
Defendant.

CIVIL ACTION NO.
3:13-CV-00362 (VLB)
July 30, 2015

MEMORANDUM OF DECISION GRANTING DEFENDANT‟S MOTION FOR SUMMARY
JUDGMENT
Plaintiff Kimberly Koonce brings this action against her former employer,
Defendant Gaylord Hospital, Inc. (“Gaylord”), pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

Koonce alleges that, unlike

similarly situated employees who were not African-American or over the age of 40,
she was denied a tuition reimbursement, did not receive a raise, and was fired rather
than promoted after receiving additional education. The parties began discovery in
September 2013 and concluded discovery in August 2014.

In a motion dated

September 2014, Gaylord moves for summary judgment, arguing that Koonce has
no evidence demonstrating that Gaylord‟s nondiscriminatory rationales were pretext
and that all of the relevant events occurred before Koonce reached the age of 40.
For the following reasons, Gaylord‟s motion for summary judgment is GRANTED,
and Koonce‟s action is DISMISSED with prejudice.

1

I.

Background
The following facts, which are undisputed unless otherwise noted, are drawn

from the record.1 Gaylord is a long-term, acute-care hospital in Connecticut. Dkt.
Nos. 26-2 (Palladino Aff.) at ¶ 4; 26-46 (Palladino Dep.) at 7. Koonce is AfricanAmerican and was born on July 20, 1970. Dkt. Nos. 26-8 (Offer Letter & New Hire
Profile) at 4; 26-25 (CCHRO Compl.) at ¶ 1. In August 2005, Koonce began working
as a Certified Nursing Assistant (“CNA”) on a full-time basis, i.e., she worked 32
scheduled hours per week. Dkt. Nos. 26-8 (Offer Letter & New Hire Profile) at 1; 2747 (Koonce Dep.) at 11–12.

A CNA, inter alia, “assists in and or [sic] provides

activities of daily living” and “[m]onitors and records temperature, blood pressure,
pulse, respiration rates, oxygen saturations, pain levels[,] and weights.” Dkt. No.
26-3 (CNA Job Description). During her first two years at Gaylord, Koonce was
twice warned about multiple unscheduled absences. Dkt. Nos. 26-11–12 (Koonce
Progressive Counseling Statements). In 2007, citing transportation issues, Koonce
requested to work as a per diem employee, i.e., an employee with no set schedule.
Dkt. No. 27-13 (Koonce Letter); see also Dkt. No. 27-47 (Koonce Dep.) at 12. Gaylord
honored Koonce‟s request. Dkt. No. 27-47 (Koonce Dep.) at 12.
In April 2007, Koonce applied for a tuition reimbursement for classes that she
planned to take at Stone Academy. Dkt. No. 26-43 (Tuition Refund Application). The
1

Ordinarily, the Court relies on the parties‟ Local Rule 56(a) statements to
help the Court ascertain what disputes of fact remain. Here, however, Gaylord‟s 11paragraph 56(a)(1) statement fails to include many material facts. For example, the
Rule 56(a)(1) statement does not identify Koonce‟s race, an undisputed fact
pertinent to Koonce‟s race discrimination claims. Further, Koonce was able to
admit to every statement without the Court being able to ascertain whether
summary judgment was appropriate. The Court will nonetheless address the merits
of Gaylord‟s summary judgment motion because Gaylord‟s memorandum in support
of summary judgment states the necessary facts with citations to the record.
2

request was approved three days after it was submitted, id., but no funds were
dispersed, Dkt. No. 26-47 (Koonce Dep.) at 40.

A 2006–2007 tuition funds

spreadsheet indicates that Koonce‟s “requstd amt” was “past deadline.” Dkt. No.
26-45 (Tuition Funds Spreadsheet). Koonce was not told why she never received a
tuition reimbursement. Dkt. No. 26-47 (Koonce Dep.) at 45–46. Under Gaylord‟s
tuition reimbursement program, the “[f]ailure to submit the proof of completion on
time [makes] the employee ineligible for the reimbursement.”

Dkt. No. 26-2

(Palladino Aff.) at ¶ 23.
Koonce attended the Education Expo in the 2007. Dkt. No. 26-18 (Koonce
Annual Reviews) at 6. A genuine dispute exists with respect to whether Koonce
attended the Education Expo in 2008. See id. at 2; compare Dkt. No. 26-24 (Emails),
with Dkt. No. 26-47 (Koonce Dep.) at 41. A June 2010 email exchange indicates that
Koonce did not receive a pay raise in late December 2008 because she had not
attended the Education Expo in 2008. See Dkt. No. 26-24 (Emails). This information
was later communicated to Koonce. See Dkt. No. 26-47 (Koonce Dep.) at 41–42.
At some point before July 2010, Koonce completed her Licensed Practicing
Nurse (“LPN”) qualification.

Cf. id. at 18.

LPNs have more training and

responsibility than CNAs. See Dkt. No. 26-2 (Palladino Aff.) at ¶¶ 12–13. LPNs, inter
alia, perform ongoing patient evaluations and administer and monitor patient
medication. Dkt. No. 26-4 (LPN Job Description). On July 14, 2010, Koonce was
fired from her CNA position pursuant to a decision made by Mary Palladino,
Gaylord‟s Director of Nursing. Dkt. No. 27-4 (Termination Letter). Palladino averred
and testified that she had a policy whereby she “would not permit an employee to
continue working in a position that was below [her] scope of licensure.” Dkt. Nos.
3

26-2 (Palladino Aff.) at ¶ 12; 26-46 (Palladino Dep.) at 15.

Palladino identified

another employee, Barbara Ruys, who was terminated under this policy. Dkt. No.
26-41 (Email).
Koonce inquired “a few times” whether any LPN positions were available at
Gaylord. Dkt. No. 26-47 (Koonce Dep.) at 18–19. Palladino told Koonce that no
positions were available. Dkt. No. 26-46 (Palladino Dep.) at 19. However, two weeks
after Koonce was fired, a LPN position was created for Elizabeth DeVylder, who had
inquired about a position in June 2010.

Dkt. No. 26-27 (DeVylder Email); 26-28

(DeVylder Employee Change Notice). Palladino created a LPN position for DeVylder
rather than Koonce based on DeVylder‟s work experience and education. Dkt. No.
26-46 (Palladino Dep.) at 21. DeVylder began working for Gaylord in 2002, Dkt. No.
26-28 (DeVylder Employee Change Notice); Koonce began working for Gaylord in
2005, Dkt. No. 26-8 (Offer Letter & New Hire Profile) at 4.

DeVylder‟s overall

performance summaries from her annual reviews (prior to 2010) indicate that
DeVylder either met or frequently exceeded expectations, and those marks were
based, in part, on objective criteria such volunteering to work extra weekends, Dkt.
No. 26-30–36 (DeVylder Annual Reviews); Koonce never received marks above
“meets expectations” in her overall performance summaries from her annual
reviews, ECF docs. 26-18–19 (Koonce Annual Reviews), and she received numerous
warnings concerning her ability to show up to work and perform her job duties, Dkt.
No. 28-11–12, 14–15, 17 (Koonce Progressive Counseling Statements). DeVylder
has a college degree in biology and was studying to become a registered nurse.
Dkt. No. 26-27 (Email).

4

II.

Legal Standards Governing Summary Judgment
Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving
that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court
is required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any evidence in the
record that could reasonably support a jury‟s verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation marks
and citation omitted).
A plaintiff opposing summary judgment “cannot defeat the motion by relying
on the allegations in [her] pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996). “At the summary judgment stage of the
proceeding, [a plaintiff is] required to present admissible evidence in support of
[her] allegations; allegations alone, without evidence to back them up, are not
sufficient.” Welch–Rubin v. Sandals Corp., 2004 WL 2472280, at *1 (D. Conn. Oct.
20, 2004) (citing Gottlieb, 84 F.3d at 518); see Martinez v. Conn. State Library, 817
F.Supp.2d 28, 37 (D. Conn. 2011). For example, a lay witness‟s opinion testimony is
not appropriate summary judgment evidence unless it is: “(a) rationally based on
5

the witness's perception; (b) helpful to clearly understanding the witness‟s
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702 [expert
testimony].”

Fed. R. Evid. 701.

In other words, a plaintiff opposing summary

judgment must produce more than “a „scintilla of evidence,‟” i.e., the evidence
produced must be sufficient for “„a jury to properly proceed to find a verdict for the
party producing it, upon whom the onus of proof is imposed.‟”

Fincher v.

Depository Trust & Clearance Co., 604 F.3d 712, 726–27 (2d Cir. 2010) (quoting
Anderson, 477 U.S. at 251–52).
III.

Title VII Claims
A. Legal Standards Governing Title VII Claims
Title VII prohibits an employer from refusing to hire, discharging, or otherwise

discriminating “against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual‟s race, color,
religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination
claims are analyzed under the familiar burden-shifting rules of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Holcomb v. Iona College, 521 F.3d 130, 138 (2d
Cir. 2008). Under this framework, a plaintiff must first make out a prima facie case
by producing evidence that: “(1) [she] is a member of a protected class; (2) [she]
was qualified for the position . . . ; (3) [she] suffered an adverse employment action;
and (4) the adverse action took place under circumstances giving rise to the
inference of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir.
2010). If the plaintiff makes out a prima facie case of discrimination, “the burden
shifts to the employer to come forward with a legitimate, nondiscriminatory reason
6

for the adverse employment action.” Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.
2012). If the employer provides such a reason, the plaintiff must produce evidence
showing that “the real reason for plaintiff's termination was [her] race.” Ruiz, 609
F.3d at 492.

In other words, “the employee‟s admissible evidence must show

circumstances that would be sufficient to permit a rational finder of fact to infer that
the employer‟s employment decision was more likely than not based in whole or in
part on discrimination.” Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir.
2014).
B. Claim that Denial of Tuition Reimbursement Was Race Discrimination
Koonce alleges that she was “denied a tuition reimbursement in 2007, which
was granted to a similarly situated . . . white female named Jaimie D‟[A]mato.”2 Dkt.
No. 1 (Compl.) at 5. Gaylord argues that it denied Koonce‟s request for a tuition
reimbursement because Koonce did not timely prove that she completed her
course. Dkt. No. 26-49 (Mem.) at 31–32. Gaylord relies on a 2006–2007 tuition funds
spreadsheet listing the disbursement and denial of tuition funds to various
employees including Koonce, whose requested amount was “past deadline.” Dkt.
No. 26-45 (Tuition Funds Spreadsheet). Gaylord argues that Koonce provides no
evidence that this nondiscriminatory rationale was pretext. Dkt. No. 26-49 (Mem.) at
32. Gaylord relies on Koonce‟s deposition testimony in which she testified that she
did not know why she was denied a tuition reimbursement. Dkt. No. 26-47 (Koonce
Depo.) at 45–46. Koonce opposes, arguing that Elba Colon, Gaylord‟s scheduling
2

Koonce filed her complaint pro se, but it was prepared by an attorney. Dkt.
No. 26-47 (Koonce Dep.) at 50. Accordingly, Koonce‟s complaint is not entitled to
liberal construction. Cf. In re Fengling Liu, 664 F.3d 367 (2011) (observing that that
ghostwriting inappropriately affords pro se party the benefit of liberal construction).
Koonce‟s attorney signed all other court documents.
7

coordinator, “heard racially discriminatory remarks directed at [Koonce] by Nurse
supervisors and Nurse Managers” and “believes that the discrimination [Koonce]
was subjected to included . . . the decision to deny [Koonce] a tuition
reimbursement.” Dkt. No. 27-1 (Opp‟n) at 3. Koonce relies on Colon‟s affidavit in
which Colon avers that “[w]hile working at Gaylord, Nurse supervisors made racially
discriminatory statements to [Colon] about Kimberly Koonce, in regards to her race
(African[-]American[)], and her color, (black),” and that “[Colon] believe[s] Kimberly
Koonce was discriminatorily denied a tuition reimbursement on the basis of
[Koonce‟s] race, color, and age.” Dkt. No. 27-12 (Colon Aff.) at ¶¶ 17, 22.
Koonce submits no evidence demonstrating that she was denied a tuition
reimbursement under circumstances giving rise to an inference of discrimination.
There is no evidence to support Koonce‟s allegation that a similarly situated
employee received a tuition reimbursement. Koonce testifies in her deposition that
D‟Amato, “a young girl who was working per diem, who was Caucasian,” received a
tuition reimbursement.

Dkt. No. 26-47 (Koonce) at 40, 45.

However, Koonce‟s

deposition does not constitute evidence of this fact because Koonce does not
identify how she could have had personal knowledge of her colleague‟s tuition
reimbursement. See Major League Baseball Props., Inc. v. Savino, 542 F.3d 290, 310
(2d Cir. 2008) (hearsay statements may not be considered in deciding summary
judgment motion if those statements would not be admissible if testified to at trial).
Indeed, Gaylord‟s tuition funds spreadsheet does not identify D‟Amato as an
employee receiving a reimbursement. Dkt. No. 26-45 (Tuition Funds Spreadsheet).
Even if Koonce had shown that D‟Amato received a tuition reimbursement,
Koonce submits no evidence that she and D‟Amato were similarly situated. Her
8

testimony fails to include any acts to support her conclusion that she was entitled
to a reimbursement because D‟Amato received one. Koonce‟s deposition testimony
is devoid of any facts that could reasonably explain why D‟Amato received a tuition
reimbursement. For example, she offers no evidence of D‟Amato‟s position, when
D‟Amato applied for a tuition reimbursement, what tuition D‟Amato sought to have
reimbursed, or the company policy governing her tuition reimbursement.

Thus,

Koonce‟s testimony is insufficient to raise a genuine issue of fact as to whether she
and D‟Amato were “similarly situated in all material respects.” Graham v. Long
Island R.R., 230 F.3d 34, 39–40 (2d Cir. 2000) (internal quotation marks omitted).
Similarly, the tuition funds spreadsheet, which identifies other employees receiving
tuition

reimbursement,

omits

material

facts

about

the

persons

receiving

reimbursement. See Dkt. No. 26-45 (Tuition Funds Spreadsheet). No other evidence
in the record demonstrates facts permitting a jury to conclude that a similarly
situated employee received a tuition reimbursement.
Colon‟s affidavit is the only other proffer that Koonce makes in support of her
claim that she was denied a tuition reimbursement under circumstances giving rise
to an inference of discrimination, but that affidavit lacks evidentiary value. Colon
first avers that “Nurse supervisors” made “racially discriminatory statements.” Dkt.
No. 27-12 (Colon Aff.) at ¶ 17. Colon is not an expert witness, and her affidavit is
conclusory and wholly devoid of any supporting evidence: it does not identify with
any particularity the speaker, the timing, the content, or the context of the
statements. Without this information, it is impossible to ascertain whether Colon‟s
conclusions are rationally based on her perception. Colon‟s statement is therefore
inadmissible lay witness testimony because it offers nothing which would help a
9

factfinder clearly understand Colon‟s conclusion and determine whether Koonce
was in fact a victim of racial animus and. See Fed. R. Evid. 701. Even assuming that
Colon‟s statement is admissible, a jury could not reasonably conclude that the
statement bears a nexus to the denial of tuition reimbursement. Cf. Hasemann v.
United Parcel Serv. of Am., Inc., 2013 WL 696424, at *7 (D. Conn. Feb. 26, 2013)
(discussing whether the remark at issue tended to show that the decision-maker
was motivated by discrimination based on, inter alia, who made the remark, when
the remark was made, the content of the remark, and the context in which the
remark was made).
Finally, Colon‟s second averment is a legal conclusion and would also be
inadmissible at trial. See Cameron v. City of New York, 598 F.3d 50, 62 (2d Cir. 2010)
(“[W]itnesses may not present testimony in the form of legal conclusions.” (internal
quotation marks omitted)). The Court disregards this statement. See Fed. R. Civ. P.
56(c)(4) (“An affidavit or declaration used to support or oppose a motion must . . .
set out facts that would be admissible in evidence.”).

Accordingly, Gaylord is

entitled to judgment as a matter of law on Koonce‟s first Title VII claim because
Koonce provides no evidence demonstrating that she was denied tuition
reimbursement under circumstances giving rise to an inference of discrimination.
C. Claim that Denial of Raise Was Race Discrimination
Koonce also alleges that “[i]n 2008 [she] was denied a raise while other
similarly situated white or non Black [sic] CNAs received a raise.”3
3

Dkt. No. 1

The record evidence also indicates that Koonce was denied a raise in 2009.
DKt. No. 26-24 (Emails). The Court need not address whether this event was
discriminatory because Koonce does not allege, either in her complaint or during
her deposition, that this event was discriminatory. See Dkt. Nos. 1 (Compl.); 26-47
(Koonce Depo.) at 40 (testifying that the only discrimination occurring prior to July
10

(Compl.) at 4. Gaylord moves for summary judgment with respect to this claim,
arguing that Koonce was denied a raise because “she failed to complete a
compulsory continuing education requirement,” i.e., the Education Expo, and that
“Koonce fails to identify any other Gaylord employee who failed to attend the
Education Expo and then received an annual raise.” Dkt. No. 26-49 (Mem.) at 30. In
support, Gaylord relies on: (1) an email exchange wherein Gaylord‟s Compensation
and Benefits Administrator told the former Vice President of Human Resources that
Lyn Cripino (an unidentified person) had told Gaylord‟s Compensation and Benefits
Administrator that Koonce never completed the Education Expo in 2008, Dkt. No. 2624 (Emails); (2) Koonce‟s 2007 annual review, which indicates that Koonce attended
the annual Education Expo, Dkt. No. 26-18 (Koonce Annual Reviews) at 5–9;
(3) Koonce‟s 2008 annual review, which does not indicate whether Koonce attended
the annual Education Expo, id. at 1–4; and (4) Koonce‟s deposition during which she
testified that she attended the Education Expo every year, Dkt. No. 26-47 (Koonce
Dep.) at 40. In opposition, Koonce again relies on Colon‟s affidavit. Dkt. No. 27-1
(Opp‟n) at 3.
Koonce submits no evidence demonstrating that she was denied a raise in
2008 under circumstances giving rise to an inference of discrimination. Koonce
does not support her allegation that similarly situated employees received a raise;
she merely testifies that “all other nurses -- all other CNAs got the raise.” Dkt. No.
26-47 (Koonce Depo.) at 39. Despite having completed discovery (or at the very
least having had the opportunity to conduct discovery), Koonce does not state the

2010 was the denial of tuition reimbursement in 2007 and the denial of a raise in
2008). But, evening assuming that Koonce had raised such a claim, it would be
meritless for the reasons stated above.
11

factual basis of her professed knowledge, and she presents no documentary or
testimonial evidence to support it.

A party's bald assertion, completely

unsupported by evidence, is not sufficient to overcome motion for summary
judgment. Perez v. Metro. Corr. Ctr. Warden, 5 F.Supp.2d 208, 211 (S.D.N.Y. 1998).
Further, Koonce‟s testimony is inadmissible hearsay because she does not profess
that she has personal knowledge of the fact and she does not support her statement
with any admissible testimonial evidence given by a person with personal
knowledge, with any documentary evidence, or with any statement attributable to
Gaylord or on of its agents. Finally, as noted above, Colon‟s vague statement of
discriminatory remarks is too conclusory to be probative of discrimination, and
Colon‟s legal conclusion is unacceptable evidence.

Thus, Koonce has failed to

raise a genuine issue of fact as to whether she was denied a raise under
circumstances giving rise to an inference of discrimination and therefore summary
judgment is hereby entered for Gaylord on this Title VII claim.
D. Claim that Employment Termination Was Race Discrimination
Koonce alleges that Gaylord discriminated against her when it fired her on
July 14, 2010. Dkt. No. 1 (Compl.). Gaylord moves for summary judgment with
respect to this claim, arguing that Palladino‟s decision to fire Koonce was based on
her facially neutral policy not to employ a nurse below the scope of her license. Dkt.
No. 26-49 (Mem.) at 27–29. In support, Gaylord offers, in relevant part, Palladino‟s
deposition testimony and an email in which Palladino states that another employee,
Barbara Ruys, was fired for the same reason. See Dkt. Nos. 26-46 (Palladino Dep.);
26-41 (Email). Koonce opposes, arguing that it was Palladino‟s rationale rather than
a hospital policy or state regulation and that Palladino could only identify one other
12

employee who had been terminated under this policy. Dkt. No. 27-1 (Opp‟n) at 1–2.
Koonce again relies on the Colon affidavit. Id. at 3.
Koonce submits no evidence demonstrating that she was terminated under
circumstances giving rise to an inference of discrimination. First, Koonce testified
that she did not think that the decision to fire her was discriminatory. Dkt. No. 26-47
(Koonce Dep.) at 53. Second, Koonce fails to offer any evidence to support her
contention that Palladino or any other supervisor at Gaylord allowed an employee
who was a LPN to work as a CNA. Finally, as discussed above, Colon‟s vague
averment to the existence of discriminatory remarks is too conclusory to be
probative of discrimination, and Colon‟s legal conclusion is inadmissible.
Even assuming that Koonce had put forth evidence of a prima facie case,
Gaylord offers a plausible, nondiscriminatory rationale, and Koonce provides no
evidence of pretext. Koonce argues that this rationale is pretext because it was not
a hospital policy or a state regulation, but this argument is beside the point. A
defendant is not required to point to company policy or state regulation to meets its
burden of production. Moreover, identifying a lack of a written company policy or
state regulation does not demonstrate pretext because it does not demonstrate both
that the proffered “reason was false and that discrimination was the real reason.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Similarly, the fact that
Gaylord can identify another employee who was fired for the same reason is not
evidence of pretext. Koonce does not produce any evidence tending to show that
the statement in the email is not true or that her termination was discriminatory.
Once again, in the absence of any evidence to support her claim that the proffered
reason for her termination was pretext, Gaylord is entitled to summary judgment as
13

a matter of law on Koonce‟s third Title VII.
E. Claim that Decision to Not to Promote Was Race Discrimination
Koonce alleges that Gaylord discriminated against her when it decided to
promote DeVylder to a LPN position rather than Koonce sometime in July 2010. Dkt.
No. 1 (Compl.). Gaylord moves for summary judgment with respect to this claim,
arguing that Koonce cannot demonstrate pretext because DeVylder‟s qualifications
were superior. In support, Gaylord primarily relies on: (1) Koonce‟s annual reviews,
ECF docs. 28-18–19 (Koonce Annual Reviews); (2) Koonce‟s file records of poor
performance, Dkt. No. 28-11–12, 14–15, 17 (Koonce Progressive Counseling
Statements); (3) DeVylder‟s annual reviews; Dkt. No. 26-30–36 (DeVylder Annual
Reviews); and (4) DeVylder‟s email listing her qualifications, Dkt. No. 26-27 (Email).
Koonce opposes, arguing that she was qualified for the position created for
DeVylder. Dkt. No. 27-1 (Opp‟n) at 2–3. Koonce also again relies on the Colon
affidavit. Id. at 3.
First, Koonce submits no evidence demonstrating that the rationale for
promoting DeVylder rather than Koonce was pretext. The only evidence she offers is
Colon‟s affidavit. As noted above, that affidavit lacks evidentiary value because it
conclusory and devoid of factual content. Moreover, when a plaintiff alleges that
the decision not to hire her was discriminatory, she must produce evidence that
“[her] credentials [were] so superior to the credentials of the person selected for the
job that no reasonable person, in the exercise of impartial judgment, could have
chosen the candidate selected over the plaintiff for the job in question.” Byrnie v.
Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (internal citations
omitted). Koonce offers no evidence indicating that she was more qualified than
14

DeVylder. In fact, the record demonstrates the exact opposite: DeVylder worked
longer,

had

better

credentials,

and

received

better

performance

reviews.

Accordingly, Gaylord is entitled to judgment as a matter of law on Koonce‟s fourth
Title VII claim because Koonce provides no evidence demonstrating that Gaylord‟s
proffered rationale for not promoting her was pretext.
IV.

ADEA Claims
Under the ADEA, “it shall be unlawful for an employer . . . to fail or refuse to

hire or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual‟s age.” 29 U.S.C. § 623(a)(1). These prohibitions are
“limited to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a); see also
D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194 (2d Cir. 2007) (“The ADEA
prohibits discrimination in employment on the basis of age against persons aged 40
or older.” (emphasis added)). Koonce was born on July 20, 1970. Dkt. No. 26-8
(Offer Letter & New Hire Profile) at 4. The first three adverse actions (denial of a
tuition reimbursement, denial of a raise, and termination) occurred before July 20,
2010, the date on which Koonce turned 40. Dkt. No. 26-47 (Koonce Dep.) at 40.
Therefore, these adverse actions do not support an ADEA claim.
However, the record does not indicate on what date Gaylord determined that
it would hire DeVylder rather than Koonce for the LPN position. See Dkt. No. 26-49
(Koonce Dep.) at 18–19 (testifying that she inquired a few times about LPN
openings). For purposes of summary judgment, this Court will assume that the
decision was made on July 28, 2010, the date on which Gaylord hired DeVylder. Dkt.
No. 26-28 (DeVylder Employee Change Notice). But even assuming that Koonce
15

was 40 years old when this adverse action took place, Koonce‟s ADEA claim fails as
a matter of law. Similar to Title VII claims, ADEA claims are analyzed under the
burden-shifting framework set forth in McDonnell Douglas. Delaney v. Bank of Am.
Corp., 766 F.3d 163, 167–68 (2d Cir. 2014). However, under the third step, a plaintiff
must demonstrate but-for causation, which is a higher burden of proof than the
burden of proof in a Title VII case. Id. at 168–69. As this Court already discussed,
Koonce identifies no evidence that the decision not to hire her for the LPN position
was based on anything other than the legitimate differences between the two
candidates. A fortiori, Koonce has not produced evidence tending to show that that
the decision not to promote would not have been made but for her age.
Accordingly, Gaylord is entitled to judgment as a matter of law on all of Koonce‟s
ADEA claims.
Conclusion
For the foregoing reasons, the Court GRANTS Gaylord‟s motion for summary
judgment. The Clerk of Court is directed to enter judgment in Gaylord‟s favor and to
close the case.
IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 30, 2015

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