Weisenbach v. LQ Management, LLC

Filing 46

ORDER. As set forth herein, the Court DENIES Defendant's motion 32 for summary judgment. Signed by Judge Michael P. Shea on 9/25/15. (Bradley, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHARLES WEISENBACH
Plaintiff,

No. 3:13-cv-01663 (MPS)

v.
LQ MANAGEMENT,
Defendant.

MEMORANDUM OF DECISION
In this diversity case, Plaintiff Charles Weisenbach, who worked as a hotel manager for
LQ Management (“LQ”), has sued LQ for allegedly discriminating against him based on his age
in violation of the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §
46a-60, when it terminated his employment. LQ moves for summary judgment, arguing that
undisputed facts in the record show that LQ terminated Weisenbach because he violated its wage
and hour policies by requiring an employee under his supervision to work “off the clock,” and
not because of age-based discrimination. I deny LQ’s motion because Weisenbach has submitted
enough evidence to allow a reasonable juror to find that the person who terminated him was
motivated in part by age-based animus. As discussed below, I predict that the Connecticut
Supreme Court would treat such a finding as sufficient to hold LQ liable for age discrimination
under the CFEPA—even though it would not be sufficient for liability under the federal Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

I.

BACKGROUND
The following facts are taken from the parties’ statements of material fact pursuant to

Local Rule 56(a) and their supporting materials. The facts are undisputed, unless otherwise
indicated. (See Defendant’s L.R. 56(a)(1) Statement, ECF No. 32-4 (“Def.’s SMF”); Plaintiff’s
L.R. 56(a)(2) Statement, ECF No. 41-1 (“Pl.’s SMF”).)
A.

Weisenbach’s Employment with LQ

Weisenbach was born on March 30, 1950. (Def.’s SMF ¶ 6; Pl.’s SMF ¶ 6.) He worked
as a General Manager (“GM”) at the Fairfield Inn by Marriott in Stamford, Connecticut, from
2003 until LQ purchased the Fairfield Inn in February 2007, and hired Weisenbach to work as
the GM for the same building. (Def.’s SMF ¶ 7; Pl.’s SMF ¶ 7; Pl.’s Opp. Br., ECF No. 41 at 2.)
LQ owns, operates, and provides hotel franchise services under the La Quinta Inns and La
Quinta Inns & Suites brands in North America. (Def.’s Br., ECF No. 32-1 at 2.) In September
2007, Weisenbach began reporting to LQ’s Regional Vice President of Region 16, Kevin Dailey.
(Def.’s SMF ¶ 8; Pl.’s SMF ¶ 8.) In the second part of 2008, Weisenbach transferred to LQ’s
New Haven, Connecticut hotel, where he served as GM and continued reporting to Dailey.
(Def.’s SMF ¶ 9; Pl.’s SMF ¶ 9.)
Weisenbach received generally positive annual reviews, and there is no evidence in the
record that he was disciplined until a few months before his termination in April 2012, with one
exception that involved a written warning in March 2009, which is discussed below. (Plaintiff’s
Statement of Material Facts in Dispute ¶ 13 (“Pl.’s Stmt. Disputed Facts”); Pl.’s Ex. 4.)
Weisenbach’s first supervisor, Joe Prinzo, gave Weisenbach a review in September 2007, after
Weisenbach had been working for LQ for approximately seven months. (Pl.’s Stmt. Disputed
Facts ¶ 17; Pl.’s Ex. 4 at 10-12.) Prinzo wrote that “Charlie shows tremendous leadership and

2

commitment to his property. He has developed a successful team of associates that pull together
to achieve the necessary goals . . . .” (Pl.’s Stmt. Disputed Facts ¶ 17; Pl.’s Ex. 4 at 11.) In
Dailey’s first review of Weisenbach, for the year 2007, he noted that, “Charlie’s work habits are
sound. He puts in the required time to be successful at his hotel. He arrives very early each day
so he can interact with guests and staff during the busy morning hours. Charlie is always open to
trying new things to grow revenue at his hotel.” (Pl.’s Stmt. Disputed Facts ¶ 14, Pl.’s Ex. 4 at
9.) Dailey added that “[r]esults were below expectations in both revenue and EBITDA [Earnings
Before Interest, Taxes, Depreciation and Amortization]. This was not a reflection of Charlie’s
efforts, rather a very aggressive budget.” (Pl.’s Ex. 4 at 9.) Dailey’s 2008 review, issued in
March 2009, stated that, “[r]esults were very good at Stamford with the exception of revenue and
EBITDA. It should be noted that Charlie is not responsible for the revenue results. He
implemented every idea and suggestion that was made by the team to improve those results. . . .
He made sure his product and service quality was at and even above standards. . . .” (Pl.’s Ex. 4
at 7.) Dailey added that, “Charlie shows his commitment to the region and LaQuinta by
transferring to New Haven at my request. He has hit the ground running and has made very nice
improvements in staff quality and product quality. I appreciate your efforts here and your
willingness to help your region improve. Thank you.” (Pl.’s Stmt. Disputed Facts ¶ 15; Pl.’s Ex.
4 at 7.) In Weisenbach’s 2009 review, issued in February 2010, Dailey stated that “Charlie has
proven that he is a team player. Some people talk about that, and others quietly do things to
prove it. Charlie walks the talk. He knows his hotel is not where he wants it and being aware of
that is a big first step for continued improvement. Since he’s been at New Haven, he has moved
the hotel forward in a big way. I appreciate his efforts.” (Id. ¶ 16; Pl.’s Ex. 4 at 5.) Dailey’s last
review of Weisenbach, completed in March 2011, stated that “Charlie has done a nice job

3

improving product quality at New Haven. As a seasoned veteran, he knows how to lead and
motivate a staff to improve. He adjusts his schedule to fit the needs of the hotel, which includes
him working most weekends. He will need to take the lead in his hotel’s sales efforts . . . . This is
not a problem for Charlie as he has always been actively involved in the sales process.” (Id. ¶ 19;
Pl.’s Ex. 4 at 3.) Dailey also congratulated Weisenbach on having low staff turnover, stating,
“Charlie did a great job managing his team with less than 18% turnover for the entire year. Well
done!” (Id. ¶ 20; Pl.’s Ex. 4 at 3.) Finally, Dailey stated that Weisenbach’s “main goals” for 2011
“are the EBITDA and beating his competition in Smith Travel. This is not intended to reduce the
need for better Medallia performance but simply a recognition that the age and style of Charlie’s
hotel does not lend itself to high SIR [Satisfied Intent to Return] scores.” (Id. ¶ 21; Pl.’s Ex. 4 at
3.)
The exception referred to above occurred in March 2009, when Dailey issued
Weisenbach a written warning for manipulating wage and hour records in violation of LQ
policy. 1 (Def.’s SMF ¶ 49; Pl.’s SMF ¶ 49.) Weisenbach had changed the hours for some
employees—by deducting time—because he believed that they were not clocking out when they
had completed their work. (Id.) In the warning, Dailey noted that “due to Charlie’s honesty in
offering this information openly and the belief that Charlie’s intent was not malicious or to
falsify labor records, the decision was made to make this a first level written warning.” (Pl.’s
Stmt. Disputed Facts ¶ 77.) The written warning also stated that if the behavior occurred again,
Weisenbach would be subject to further disciplinary action up to and including termination.
(Def.’s SMF ¶ 49; Pl.’s SMF ¶ 49; Def.’s Ex. 18, ECF No. 32-7.)

1

LQ’s wage and hour policies are discussed in part I.B.

4

In the fall of 2011, Keith Berry replaced Dailey as Weisenbach’s supervisor and as the
Regional Vice President of Region 16. (Def.’s SMF ¶ 10; Pl.’s SMF ¶ 10.) Berry, who was born
on July 4, 1960, visited Weisenbach’s hotel on September 28, 2011. (Def.’s SMF ¶ 11-12; Pl.’s
SMF ¶ 11-12.) LQ states that the purpose of the visit was for Berry “to meet Weisenbach and
familiarize himself with the hotel.” (Def.’s SMF ¶ 11.)
On February 3, 2012, Berry gave Weisenbach a written warning for performance issues.
(Def.’s SMF ¶ 13; Pl.’s SMF ¶ 13.) Berry described a “[v]iolation of company conduct standards
as outlined on pages 16 and 17 of the employee handbook” including “insubordination” and
“failure to provide guest service in accordance with the hotel’s service philosophy or failure to
satisfactorily perform work or job assignments.” (Pl.’s Ex. 9, ECF No. 41-10 at 1; Def.’s Ex. 7,
ECF No. 32-6 at 1.) Specifically, Berry wrote that “many items noted as needing improvement in
a previous visit to the hotel were still not up to La Quinta standards,” including deep-cleaning of
the Amtico floors, the bed-making process, the guest-room sheers, and the condition of the tile
and grout behind the toilet. (Id.) Berry added that “[t]he Satisfied Intent to Return [SIR] score at
property #2048 is a direct reflection of Charlie’s ability to train his staff and hold them
accountable for La Quinta standards of service and cleanliness. With a current SIR score of 65.1,
property #2048 continues to fail in this metric. Additionally, property #2048’s SIR score
continues to fall below its score from the previous year.” (Id.) Berry also wrote that Weisenbach
“is expected to immediately train his staff on the correct La Quinta procedures for the items of
negligence noted” and “ensure all La Quinta policies, procedures and standards are followed and
maintained” at the hotel. (Id.) Finally, Berry warned that if Weisenbach’s performance did not
improve, “[a]ny future performance issues may result in further disciplinary action, up to and
including termination.” (Id.) Weisenbach had an opportunity to write comments on the form, and

5

he wrote, “I am up for the challenge of developing a new staff that is trained and delivering
results needed to resolve the above mention [sic] issues. However I will need the Here For You
support from Corp pertaining to CapEx funds that are needed to resolve on[-]going product
quality issues (working condition of guest room doors, sagging mattresses, old case goods,
outdate [sic] bathrooms and leaking windows causing ceiling damage) that continue to appear in
the Medallia surveys.” (Pl.’s Ex. 9, ECF No. 41-10 at 4; Def.’s Ex. 7, ECF No. 32-6 at 4.)
Weisenbach did not complain internally that this warning was discriminatory. (Def.’s SMF ¶ 15;
Pl.’s SMF ¶ 15.)
Loretta Smith, an employee in LQ’s Internal Audit and Financial Reporting Department,
conducted an internal audit of the petty cash in Weisenbach’s hotel in March and April of 2012.
(Def.’s SMF ¶ 16; Pl.’s SMF ¶ 16.) LQ avers that properties were randomly selected for the
audit; Weisenbach disputes that the selection was random, but he offers no evidence to suggest
that it was not random. 2 (Def.’s SMF ¶ 16; Pl.’s Opp. Br., ECF No. 41 at 27.) Smith sent an email to Weisenbach on April 3, 2012, notifying him of her preliminary findings and asking for an
explanation for certain items in the audit, including a payment of $120 to “Teddy for chair
removal.” (Def.’s SMF ¶ 17; Pl.’s SMF ¶ 17.) Weisenbach responded by e-mail on April 9,
2012, and stated that the $120 was paid to “an individual . . . to remove 48 sofa chairs from the
guest rooms to our storage container.” Weisenbach elaborated that “this was more cost
effect[ive] than paying hourly employees to do the same job.” (Def.’s SMF ¶ 18; Pl.’s SMF ¶
18.) In Weisenbach’s complaint, deposition, and statement of material facts, however, he alleges
that he paid $120, not to an individual employee, but rather to a janitorial business owned by the
2

Smith’s affidavit states that “[t]he properties selected for audit were chosen at random by the Internal
Audit Department using a non-statistical sampling method.” (Def.’s Ex. 9, Smith Aff. ECF 32-6 ¶ 5.) It is
unclear what a “non-statistical sampling method” means.

6

employee, Thad Stanley. 3 (Pl.’s SMF ¶ 31; Weisenbach Tr. at 85.) According to LQ, it employed
Stanley as a “houseman” and a “van driver,” and paid him a wage of $9.00 per hour. (Def.’s
SMF ¶ 32.) Weisenbach could have assigned Stanley the task of removing chairs from hotel
rooms as part of Stanley’s regular LQ job duties. (Def.’s SMF ¶ 33; Pl.’s SMF ¶ 33; Weisenbach
Tr. at 37-39.)
Smith notified the following individuals of her audit findings by email: Berry, Mikki
Hughes, Vice President – Talent Acquisition & Employee Relations, and Stacy Babl, Field
Human Resources Manager. (Def.’s SMF ¶ 20; Pl.’s SMF ¶ 20.) In her e-mail, Smith stated that
“I initially began to question how this was determined to be more cost effective . . . however,
once I obtained the attached time detail for that period, I noted that [Thad Stanley] was already
set to hit over 40 hours for the week and questioned if the GM may have been attempting to
avoid more overtime hours.” (Def.’s SMF ¶ 21; Pl.’s SMF ¶ 21.) According to LQ, Babl
recommended that Weisenbach be terminated because he had paid an employee to work “off the
clock” in violation of LQ’s wage and hour policies, and Berry approved the decision. (Def.’s
SMF ¶¶ 22-23; Pl.’s SMF ¶¶ 22-23.) Berry met with Weisenbach on April 17, 2012, and
terminated him. Weisenbach was 62 years old. (Def.’s SMF ¶ 22, Pl.’s Stmt. Disputed Facts ¶¶
57-58.) Laura King, who was born on October 8, 1962 (Def.’s SMF ¶ 52; Pl.’s SMF ¶ 52),
replaced Weisenbach as the GM in New Haven when she was 49 years old. (Def.’s SMF ¶ 51;
Pl.’s SMF ¶ 51.) King had been a “floating GM” prior to Weisenbach’s termination, and she had
been working at Weisenbach’s hotel in New Haven approximately 20 hours per week for several

3

Plaintiff’s SMF ¶¶ 31-32 refers to “Thad Smith,” but elsewhere in the parties’ briefs and statements of
material fact, the employee is called “Thad Stanley.”

7

of the preceding months. (Def.’s SMF ¶ 53; Pl.’s SMF ¶ 53; Def.’s Ex. 2, Berry Tr., ECF No. 3235, 72-73.)
B.

LQ’s Wage and Hour Policies

According to LQ’s Employee Handbook, hourly employees “are required to clock in for
all time worked,” and it is the employee’s “responsibility to ensure the time reported on . . . is
accurate.” (Def.’s SMF ¶ 34; Pl.’s SMF ¶ 34.) LQ policy prohibits employees from working
“off-the-clock,” and employees are told to “notify Human Resources or your General Manager if
your supervisor is requiring or permitting you to work off-the-clock.” (Def.’s SMF ¶ 36; Pl.’s
SMF ¶ 36.) The “Standards of Conduct” section of LQ’s Handbook repeats the instruction that
“at no time should any employee work off the clock. You must immediately report to the Human
Resources Department any request to work off the clock,” and “violations of this policy can
result in termination.” (Def.’s SMF ¶ 38; Pl.’s SMF ¶ 38.) Also under the Standards of Conduct
heading, the LQ Handbook lists grounds for immediate termination, including “providing false
statements and/or willful falsification or altering of hotel records including, but not limited to . . .
time cards,” and “disobeying any hotel rules, department policies and procedures and
supervisor’s instructions, regulations, and/or statutes of the local, state, and federal government.”
(Def.’s SMF ¶ 39; Pl.’s SMF ¶ 39; Def.’s Ex. 4, Employee Handbook, ECF No. 32-6, at 16-17.)
Finally, the LQ Handbook emphasizes that all LQ employees are employed “at will” and may be
terminated “at any time, with or without cause.” (Def.’s SMF ¶ 39; Pl.’s SMF ¶ 39; Def.’s Ex. 4,
Employee Handbook, ECF No. 32-6, at 17.) Weisenbach acknowledged that he received, read,
and understood this LQ Handbook on March 15, 2011. (Def.’s SMF ¶ 40; Pl.’s SMF ¶ 40; Def.’s
Ex. 13.)

8

LQ also sent its managers, including Weisenbach, several memoranda emphasizing the
importance of its wage and hour policies. On April 9, 2010, LQ sent managers a memo about
proper time reporting in accordance with state and federal law. (Def.’s SMF ¶ 41; Pl.’s SMF ¶
41; Def.’s Ex. 14 at 1.) The memo stated that managers must ensure that “employees clock in
and remain clocked in at all times they are performing work for La Quinta” and they “are paid
through payroll for all time worked.” (Def.’s SMF ¶ 42; Pl.’s SMF ¶ 42; Def.’s Ex. 14 at 1.) The
memo reminded managers that “it is never acceptable to instruct or allow employees to work off
the clock or offer other forms of payment (e.g., gift cards, cash payment, etc.) for time worked,
even if the employee volunteers or agrees to such an arrangement.” (Def.’s SMF ¶ 43; Pl.’s SMF
¶ 43; Def.’s Ex. 14 at 1-2.) Managers who failed to comply with LQ’s time reporting policies
faced “disciplinary action up to and including termination of employment.” (Id.) Weisenbach
signed an acknowledgment of this memo on April 26, 2010. (Def.’s SMF ¶ 43; Pl.’s SMF ¶ 43;
Def.’s Ex. 14 at 2.)
LQ sent an additional memo to managers by e-mail on July 1, 2010, warning that the
Department of Labor (“DOL”) was targeting the hotel industry for audits. (Def.’s SMF ¶ 44;
Pl.’s SMF ¶ 44; Def.’s Ex. 15.) The memo provided a link to LQ’s wage and hour tips. (Id.)
Finally, LQ sent another, similar email memo to managers on May 4, 2011, emphasizing that
managers were to “ensure that employees are paid through payroll for all time worked,” and
reemphasizing that managers should “NOT allow employees to work off the clock” and “it is
never acceptable to instruct or allow employees to work off the clock or offer other forms of
payment . . . for time worked.” (Def.’s SMF ¶ 46; Pl.’s SMF ¶ 46; Def.’s Ex. 16.)

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C.

Discrimination Claim

On September 28, 2012, Weisenbach filed a charge of discrimination with the
Connecticut Commission on Human Rights & Opportunities (“CHRO”), alleging age
discrimination in violation of the CFEPA. 4 (Def.’s SMF ¶ 57; Pl.’s SMF ¶ 57.) Weisenbach filed
a one-count complaint in the Superior Court of Connecticut, Judicial District of New Haven, on
October 23, 2013, and LQ removed the case to this Court on November 11, 2013. (Notice of
Removal, ECF No. 1.)
Prior to his termination, Weisenbach never complained to LQ that he suffered from
discriminatory treatment. (Def.’s SMF ¶ 56; Pl.’s SMF ¶ 56.) Weisenbach now alleges, and
testified in his deposition (Pl.’s Ex. 2, ECF No. 41-3, Weisenbach Tr. at 14), that Berry made at
least three disparaging age-based comments. First, Berry allegedly told Weisenbach, repeatedly,
that “the future of the company was with the youth.” (Def.’s SMF ¶ 58; Pl.’s SMF ¶ 58;
Weisenbach Tr. at 120, 153-56.) Weisenbach also testified that on Berry’s second visit to
Weisenbach’s hotel—prior to the February 3, 2012 written warning—Berry told him, that “in
this day and age and with all of the technology out there, you, along with your generation should
be able to research it and locate the information.” (Def.’s SMF ¶¶ 59-60; Pl.’s SMF ¶¶ 59-60;
Weisenbach Tr. at 167-72.) Weisenbach testified that Berry made this comment to him after
learning that Weisenbach was having difficulty finding a specific cover for tissue boxes that
Berry had asked him to find. (Pl.’s Stmt. Disputed Facts ¶ 30; Weisenbach Tr. 167-72.) Finally,

4

Conn. Gen. Stat. § 46a-60(a)(1) provides that it is an unlawful employment practice for:
an employer, by the employer or the employer’s agent, except in the case of a bona fide
occupational qualification or need, to . . . discharge from employment any individual or
to discriminate against such individual in compensation or in terms, conditions or
privileges of employment because of the individual’s . . . age. . . .

10

Weisenbach testified that on Berry’s third visit to the hotel—which was also prior to the
February 3, 2012 written warning—Berry told Weisenbach that he could “accept that level of
performance from younger, inexperienced GMs but, with older, experienced GMs, it can’t be
tolerated.” (Def.’s SMF ¶ 61; Pl.’s SMF ¶ 61; Weisenbach Tr. 172-76.) Weisenbach contends
that Berry made this statement as he was criticizing Weisenbach for his performance on a
project, and that Berry again commented that the future of the company was with the youth.
(Pl.’s Stmt. Disputed Facts ¶ 31; Weisenbach Tr. 172-76.) Weisenbach does not allege that
Hughes, Babl, or Smith discriminated against him (Def.’s SMF ¶¶ 24-27; Pl.’s SMF ¶¶ 24-27),
and he testified that “if Berry had nothing to do” with his termination, Weisenbach would not
believe that he suffered age discrimination. (Def.’s SMF ¶ 30; Weisenbach Tr. at 152.)
II.

STANDARD
Summary judgment is appropriate only when “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 demonstrating that no genuine issue exists as
to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). “A dispute
regarding a material fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116
(2d Cir. 2006) (internal quotation marks and citation omitted). In reviewing the record, the court
must “construe the facts in the light most favorable to the non-moving party,” Breyer v. County
of Nassau, 524 F.3d 160, 163 (2d Cir. 2008), and “resolve all ambiguities and draw all inferences
in favor of the nonmoving party in order to determine how a reasonable jury would decide.”
Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992). If the moving party
carries its burden, “the opposing party must come forward with specific evidence demonstrating

11

the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358
(2d Cir. 2011). The ultimate test “is whether the evidence can reasonably support a verdict in
Plaintiff’s favor.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir.2000).
III.

DISCUSSION
Both parties agree that Weisenbach’s claim of age discrimination in violation of the

CFEPA is subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). 5
[A] plaintiff first bears the “minimal” burden of setting out a prima facie
discrimination case, and is then aided by a presumption of discrimination unless
the defendant proffers a “legitimate, nondiscriminatory reason” for the adverse
employment action, in which event, the presumption evaporates and the plaintiff
must prove that the employer’s proffered reason was a pretext for discrimination.
Irizarry v. United Parcel Serv., Inc., No. 3:11-CV-01658 JCH, 2014 WL 1246684, at *11 (D.
Conn. Mar. 24, 2014) (quoting McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 215
(2d Cir. 2006)).
A.

Prima Facie Case

To establish a prima facie case of age discrimination, a plaintiff must show that: (1) he
was within the protected age group, i.e. he was at least 40 years old, (2) he was qualified for the
position, (3) he experienced an adverse employment action, and (4) such action occurred under
circumstances giving rise to an inference of discrimination. Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 107 (2d Cir. 2010). It is undisputed that Weisenbach was a member of the protected
age group, was qualified for his position, and experienced an adverse employment action
(termination). Therefore, having established the first three elements of his prima facie case,
5

Age discrimination claims brought under the CFEPA are generally evaluated under the same standards
that govern the ADEA. See Fasoli v. City of Stamford, 64 F. Supp. 3d 285, 313 (D. Conn. 2014).

12

Weisenbach must next come forward with sufficient admissible evidence suggesting that his
termination occurred under circumstances that give rise to an inference of discrimination.
Irizarry, 2014 WL 1246684, at *12.
Weisenbach argues that King, his replacement, was—at 49 years old—significantly
younger than he was. Although King was also over 40 years old, “an employer’s decision to
replace an older worker with a significantly younger one can support an inference of intentional
age discrimination even when both persons” are members of the protected class. Woodman v.
WWOR-TV, Inc., 411 F.3d 69, 78-79 (2d Cir. 2005) (citing O’Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 313 (1996)). The plaintiff, however, must show some evidence that the
defendant-employer acted with knowledge about the age discrepancy between the plaintiff and
his replacement. Woodman, 411 F.3d at 78-79. Citing Berry’s affidavit, LQ argues that Berry did
not know King’s age at the time she was selected to replace Weisenbach. (Def.’s Ex. 6, Berry
Aff., ECF No. 32-6 at 1.) Nevertheless, a reasonable juror could find that Berry knew King’s age
relative to Weisenbach because he supervised Weisenbach and he had met King prior to hiring
her to replace Weisenbach. (Def.’s Ex. 2, Berry Tr., ECF No. 32-5 at 72 (Berry testified that,
before hiring King to replace Weisenbach, “I didn’t know her, no. I’d met her, but I didn’t know
her.”).) And it was Berry who, several months before he terminated Weisenbach, had assigned
King to work at the New Haven hotel. (Def.’s Ex. 2, ECF No. 32-5, Berry Tr. at 72-73 (“Charlie
had requested some help at the property to try to get things going in the right direction, and so I
sent Laura.”).)
LQ argues that the age difference between Weisenbach and King was insignificant. The
Second Circuit has declined to “draw any bright line . . . as to the degree of age discrepancy that
can or cannot support an inference of discriminatory intent.” Woodman, 411 F.3d at 78 n.9;

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compare Glenwright v. Xerox Corp., 832 F. Supp. 2d 268, 276 (W.D.N.Y. 2011) (evidence that a
six year age difference between a 46-year-old who was replaced by a 40-year-old “is not
sufficient to create an inference of age discrimination because [the replacement] was not
significantly younger than [plaintiff]”), with Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d
93, 102 (2d Cir. 2001) (finding that a 22 year age difference is substantial); see also D’Cunha v.
Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir.2007) (plaintiff met the fourth element of a
prima facie case where “one of the individuals who was offered a position was eight years
younger”); Moree v. Frank H. Reis, Inc., No. 00 CIV. 4632 (CM), 2001 WL 736810, at *6
(S.D.N.Y. June 25, 2001) (“courts in this district have generally recognized that age differences
of ten years or more are sufficient to give rise to an inference of age discrimination”).
Weisenbach was 62 years old when he was terminated and King was 49 years old when
she replaced him. This age difference is sufficient to create an inference of age discrimination.
Thus, Weisenbach has satisfied his minimal burden of coming forward with sufficient admissible
evidence suggesting that his termination occurred under circumstances that give rise to an
inference of discrimination.
B.

Legitimate Nondiscriminatory Reason

There is no dispute that LQ has stated a legitimate, non-discriminatory reason for
terminating Weisenbach: his violation of LQ’s wage and hour policies by paying an LQ
employee $120 from the hotel’s petty cash fund to remove chairs from guest rooms. (Pl.’s Opp.
Br., ECF No. 41 at 24-25.) LQ has supported its reason with extensive documentation, including
policy statements from the LQ Employee Handbook and memoranda reminding managers of the
importance of complying with LQ’s wage and hour policies. LQ also provided evidence of
Weisenbach’s signed acknowledgment that he received the LQ Handbook. Finally, LQ provided

14

the e-mail exchange between Smith, Babl, and Hughes in which Smith reported Weisenbach’s
suspected policy violation.
As LQ points out, and Weisenbach does not contest, violation of company policies is a
legitimate, non-discriminatory reason for an employer to take adverse employment actions. See,
e.g., Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997) (violation of “no
fraternization” policy was a legitimate, non-discriminatory reason for termination); Greenfield v.
McDonald's Corp., No. 3:10-CV-40 VLB, 2011 WL 3859717, at *7 (D. Conn. Sept. 1, 2011)
(plaintiff’s violation of employer’s policy not to have physical altercations was a legitimate nondiscriminatory reason for adverse employment action). Thus, LQ has satisfied its burden of
producing a legitimate, non-discriminatory reason for Weisenbach’s termination.
C.

Pretext and Causal Standards

Because LQ has articulated a legitimate, non-discriminatory reason for Weisenbach’s
termination—namely, his failure to comply with LQ’s wage and hour polices—Weisenbach must
submit evidence sufficient to permit a reasonable fact-finder to conclude that LQ’s explanation is
pretextual. A showing of pretext requires that Weisenbach “demonstrate both that [his]
employer’s stated reason was untrue or incomplete, and that discrimination played a causal role
in [his] discharge.” Smith v. Connecticut Packaging Materials, No. 3:13-CV-00550 JAM, 2015
WL 235148, at *2 (D. Conn. Jan. 16, 2015) (citing Henry v. Wyeth Pharm., Inc., 616 F.3d 134,
157 (2d Cir.2010)). “[O]nce the employer articulates a legitimate reason for its decision, the
ultimate burden of proving that the challenged employment decision was the result of intentional
discrimination remains with the plaintiff.” Luciano v. Olsten Corp., 110 F.3d 210, 218 (2d Cir.
1997) (internal citations omitted).

15

Prior to the Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
176 (2009), a plaintiff who brought a claim under the ADEA could prevail at summary judgment
by demonstrating that his or her age was a “motivating factor” in the adverse employment action.
Gorzynski, 596 F.3d at 105-06. In Gross, however, the Supreme Court held that this “motivating
factor” standard does not apply to claims under the ADEA, and an ADEA plaintiff must prove
that age was a “but for” cause of the adverse employment action. “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.” Fetcho v. Hearst Connecticut Post, LLC, No. 3:12CV-904 GWC, 2015 WL 1800111, at *6 (D. Conn. Apr. 16, 2015). The Supreme Court’s
decision in Gross focused on the text of the ADEA, which states that “[i]t 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) (emphasis added). The
Supreme Court interpreted the phrase “because of” to require “but for” causation. By contrast,
Congress amended Title VII of the Civil Rights Act of 1964—which governs federal
discrimination claims based on race, color, religion, sex, or national origin—“by explicitly
authorizing discrimination claims in which an improper consideration was ‘a motivating factor’
for an adverse employment decision.” Gross, 557 U.S. at 174; see 42 U.S.C. § 2000e–2(m)
(providing that “an unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the practice” (emphasis added)).
In this case, Weisenbach has brought a claim under the CFEPA, not the ADEA. The text
of the CFEPA provides that it is unlawful for an employer to discharge or discriminate against an

16

employee “because of the individual’s race, color, religious creed, age, sex, gender identity or
expression, marital status, national origin, ancestry, present or past history of mental disability,
intellectual disability, learning disability or physical disability . . . .” Conn. Gen. Stat. § 46a60(a)(1) (emphasis added). In addition, the CFEPA has not been amended to add language
expressly stating that it is also unlawful to discriminate if a prohibited reason is a motivating
factor. Since Gross, however, neither the Connecticut Supreme Court nor the Connecticut
Appellate Court has expressly addressed whether the “motivating factor” standard still applies to
CFEPA claims. 6
Connecticut trial courts, however, have continued to apply the “motivating factor”
standard and have declined to require the “but for” standard for age-discrimination claims under
the CFEPA. See, e.g., Frederick v. Gladeview Health Care Ctr., Inc., No. CV116011350, 2014
WL 1876955, at *5 (Conn. Super. Ct. Apr. 10, 2014) (“Until our appellate courts say otherwise,
this court will continue to apply the ‘mixed motive’ and ‘pretext’ models discussed by our state
Supreme Court in Levy v. Commission on Human Rights & Opportunities, [236 Conn. 96, 10405 (1996)]”); Wagner v. Bd. of Trustees for Connecticut State Univ., No. HHDCV085023775S,
6

In Marasco v. Connecticut Reg'l Vocational-Technical Sch. Sys., 153 Conn. App. 146 (2014), the
Connecticut Appellate Court affirmed a trial court’s grant of summary judgment on a plaintiff’s CFEPA
age discrimination claim because “[t]he plaintiff failed to produce any evidence” to counter the
defendant’s evidence that his “transfer was not related to, or even partially motivated by, his age.” Id. at
161-62. In affirming the trial court on the CFEPA claim, the Connecticut Appellate Court reemphasized
that “the law as it relates to discrimination claims” requires the plaintiff to “demonstrate that the reason
proffered by the employer is merely a pretext and that the decision actually was motivated by illegal
discriminatory bias.” Marasco, 153 Conn. App. at 160 cert. denied, 316 Conn. 901, 111 A.3d 469 (2015).
In its ruling, the trial court had distinguished the causal standards in the ADEA and the CFEPA after
Gross, stating that “[a]lthough the ADEA is very similar [to the CFEPA] in its proof requirements, the
plaintiff cannot rely on a ‘mixed motive theory,’ i.e. that age was more likely the motivating factor for the
adverse action. Rather [for an ADEA claim] the plaintiff must establish that age was the ‘but for’ reason
for the action.” Marasco v. Connecticut Reg'l Vocational-Technical Sch. Sys., No. CV095014324, 2012
WL 5476905, at *6 (Conn. Super. Ct. Oct. 15, 2012) (internal citations omitted). The Appellate Court did
not specifically mention Gross or whether its causal standard should be adopted under the CFEPA when
it affirmed the trial court’s grant of summary judgment on the CFEPA claim.

17

2012 WL 669544, at *11 (Conn. Super. Ct. Jan. 30, 2012) (declining to require the “but for” test,
and allowing the “contributing or motivating factor” test for a CFEPA age discrimination claim);
see also Dwyer v. Waterfront Enterprises, Inc., No. CV126032894S, 2013 WL 2947907, at *8
(Conn. Super. Ct. May 24, 2013) (“in accordance with the liberal construction afforded to
CFEPA, [plaintiff] need only plead that his physical disability was a motivating factor in his
termination.”).
The Second Circuit has not issued a binding ruling on whether the Gross “but for”
causation standard should apply under the CFEPA. Because the CFEPA generally follows the
same legal analysis as the federal anti-discrimination law, the Second Circuit has assumed, in
two non-precedential rulings, that the “but for” standard from Gross applies to both the ADEA
and the CFEPA age discrimination claims. See Timbie v. Eli Lilly & Co., 429 F. App’x 20, 22 n.1
(2d Cir. 2011) (summary order); Rubinow v. Boehringer Ingelheim Pharm., Inc., 496 F. App’x
117, 118 (2d Cir. 2012) (summary order). Neither case, however, specifically discussed what
standard the Connecticut Supreme Court would decide to apply to the CFEPA after Gross.
Moreover, both rulings were summary orders, and “[r]ulings by summary order do not have
precedential effect.” 7 Second Circuit L.R. 32.1.1(a); Delaney v. Bank of Am. Corp., 766 F.3d
163, 169 (2d Cir. 2014) (“a summary order is not citable as precedent.”). In a slightly more
recent summary order, the Second Circuit affirmed a district court’s decision to apply both tests
because of “the potential instability in Connecticut law.” Aiello v. Stamford Hosp., 487 F. App’x
677 (2d Cir. 2012) (summary order). In that case, even “under the prior more lenient standard,”
the district court had found that the plaintiff “failed to provide sufficient evidence establishing

7

“[T]he rationale underlying the Rule is that such orders, being summary, frequently do not set out the
factual background of the case in enough detail to disclose whether its facts are sufficiently similar to
those of a subsequent unrelated case. . . .” Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011).

18

that Defendant’s legitimate non-discrimination reason for the adverse employment action was a
pretext for age discrimination.” Aiello v. Stamford Hosp., No. 3:09CV1161 VLB, 2011 WL
3439459, at *27 (D. Conn. Aug. 8, 2011).
Like the district court in Aiello, other courts in this District have generally found it
unnecessary to resolve this issue because their decisions would have been the same under either
standard. See, e.g., Fetcho, 2015 WL 1800111, at *10 (“[t]his court does not have to venture a
prediction on this issue of state law because” there was no evidence, direct or circumstantial,
“that other older employees were the subject of discrimination.”); Connecticut Packaging
Materials, 2015 WL 235148, at *5, n.6 (assuming that plaintiff made out a prima facie case, “she
has not provided enough evidence to raise a triable issue that [defendant’s] legitimate,
nondiscriminatory reason . . . was an untrue or incomplete explanation, and that in fact plaintiff
was fired as a result of . . . discrimination” under either causation standard.); Hasemann v.
United Parcel Serv. of Am., Inc., No. 3:11-CV-554 VLB, 2013 WL 696424, at *13 (D. Conn.
Feb. 26, 2013) (following the more lenient standard for the CFEPA, but finding that both
plaintiff’s ADEA and CFEPA claims fail, in part, because “he cannot establish an inference of
discrimination for his prima facie case.”); Miller v. Ethan Allen Global, Inc., No. 3:10-CV-01701
JCH, 2012 WL 1899378, at *4-6, n.8 (D. Conn. May 24, 2012) (finding that the plaintiff failed to
set forth a prima facie case); Herbert v. Nat’l Amusements, Inc., 833 F. Supp. 2d 192, 203 (D.
Conn. 2011) (stating that the court would “follow existing Connecticut court pronouncements on
the appropriate standard to employ in applying Connecticut law” until “such time as the
Connecticut courts adopt the new standard,” but finding that “the Court need not address whether
the mixed-motive analysis is still applicable to CFEPA claims” because the plaintiff “has met the
more stringent ‘but-for’ standard”).

19

In this case, however, the choice of the standard matters. Even construing the facts in the
light most favorable to Weisenbach, and resolving all ambiguities and drawing all inferences in
his favor, I cannot find that he has raised a genuine issue of fact as to whether discrimination was
a “but for” cause of his termination, i.e., whether in the absence of age discrimination, LQ would
have terminated him for violating its policies. He has submitted no evidence to rebut LQ’s
evidence that the audit was random; that he committed a policy violation for which, according to
the terms of the policy, he could be terminated; that he earlier had committed a wage and hour
policy violation for which he was disciplined and warned that future violations could result in
termination; and that Babl, who recommended his termination, harbored no discriminatory
animus. Nor has he submitted any evidence that younger employees who had committed similar
violations were not terminated or, for that matter, whether the company had ever refrained from
terminating a manager-level employee who had violated its wage and hour policies twice during
the course of his employment. As shown below, however, Weisenbach has submitted sufficient
evidence to raise a genuine dispute about whether age was a motivating factor in his termination.
(See infra, Part III.D.) Therefore, I must determine which causal standard applies to the CFEPA.
In this diversity-jurisdiction case, that task involves “predict[ing] how [the Connecticut Supreme
Court] would resolve” the issue. Runner v. New York Stock Exch., Inc., 568 F.3d 383, 386 (2d
Cir. 2009) (when there are uncertainties in state law, “our role as a federal court sitting in
diversity . . . . [is to] carefully predict how the state’s highest court would resolve the
uncertainties we have identified”) (internal quotation marks and citation omitted). I follow
Connecticut’s trial courts in predicting that the Connecticut Supreme Court will continue to
apply the more lenient “motivating factor” standard to CFEPA age discrimination claims.

20

First, “while often a source of great assistance and persuasive force . . . it is axiomatic
that decisions of the United States Supreme Court are not binding on Connecticut courts tasked
with interpreting [their] General Statutes. Rather, Connecticut is the final arbiter of its own
laws.” Vollemans v. Town of Wallingford, 103 Conn. App. 188, 199 (2007) (internal quotation
marks omitted).
Second, unlike the federal statutory scheme, Connecticut does not have a separate statute
for age discrimination. The CFEPA provides that it is unlawful for an employer to discharge or
discriminate against an employee “because of the individual’s race, color, religious creed, age,
sex, gender identity or expression, marital status, national origin, ancestry, . . . mental disability,
intellectual disability, learning disability or physical disability . . . .” Conn. Gen. Stat. § 46a60(a)(1). Although the CFEPA includes the “because of” language that the ADEA interpreted in
Gross, Connecticut courts have applied the “motivating factor” standard to all types of CFEPA
discrimination claims. See Miko v. Comm’n on Human Rights & Opportunities, 220 Conn. 192,
205-207 (1991) (adopting the “mixed motive” analysis from Price Waterhouse v. Hopkins, 490
U.S. 228 (1989)); see also Jacobs v. Gen. Elec. Co., 275 Conn. 395, 401 (2005) (CFEPA age
discrimination) (emphasizing that the plaintiff has “ultimate burden of persuading the court that
[he] has been the victim of intentional discrimination. [He] may succeed in this . . . by
persuading the court that a discriminatory reason more likely motivated the employer or . . . by
showing that the employer’s proffered explanation is unworthy of credence.”); Levy v. Comm’n
on Human Rights & Opportunities, 236 Conn. 96, 106 (1996) (CFEPA disability discrimination)
(plaintiff in a “mixed-motives” case “must focus his proof directly at the question of
discrimination and prove that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the
employment decision”). And it is unlikely that Connecticut would adopt one causal standard for

21

age and use another standard for the other types of discrimination that are protected by the same
statute. See Dwyer, 2013 WL 2947907, at *7 (“The traits protected at the federal level by Title
VII, the ADA and the ADEA are all protected by a single statute in Connecticut—CFEPA—the
meaning of which has been previously determined. It would be largely unworkable to ascribe
different interpretations to the same language in the same statute depending on the context in
which the statute is invoked.”); Wagner, 2012 WL 669544, at *11 (“Although our legislature has
amended § 46a–60 several times over the years, no amendment has addressed the standard of
proof. Given the legislature's decision to include multiple types of unlawful employment
discrimination within a single statutory provision without setting out distinctive standards for the
different types, the logical conclusion is that it intended that the same standard of proof be
applied to all the types of discrimination set forth in § 46a–60.”)
Finally, the “CFEPA defines important rights designed to rid the workplace of
discrimination . . . As such, the act is composed of remedial statutes, which are to be construed
liberally to effectuate their beneficent purposes.” Vollemans, 103 Conn. App. 197 (internal
quotation marks and citations omitted). Given this remedial purpose, and for the reasons
discussed above, it is unlikely that the Connecticut Supreme Court would overrule its prior case
law applying the more lenient “motivating factor” standard in discrimination cases under the
CFEPA.
D.

Berry’s Age-Based Comments and Criticisms of Weisenbach

Weisenbach contends that Berry made comments that disparaged older workers, and
these may be used as evidence in support of his timely CFEPA claim. 8 In addition to these

8

Although Berry’s comments were made more than 180 days before Weisenbach filed his CHRO charge,
they still may be used to prove discriminatory intent. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002).

22

comments, the record shows that Weisenbach received generally positive reviews until Berry
became his supervisor, after which he received verbal criticisms of his work performance and a
written warning. A reasonable juror could infer from Berry’s age-based comments—together
with his criticism of Weisenbach in the seven months that he supervised him prior to the
termination—that age was a motivating factor in LQ’s decision to terminate Weisenbach.
Prinzo, Weisenbach’s first supervisor at LQ, gave Weisenbach a positive review in
September 2007, after Weisenbach had been working for LQ for approximately seven months.
(Pl.’s Stmt. Disputed Facts ¶ 17.) Prinzo stated that “Charlie shows tremendous leadership and
commitment to his property. He has developed a successful team of associates that pull together
to achieve the necessary goals . . . .” (Id. ¶ 17.) During the time that Dailey supervised him, from
2007-2011, Weisenbach received positive annual reviews commending, among other things, his
sound work habits, efforts, openness to trying new things, improvements in staff and product
quality, teamwork, and low staff turnover (less than 18% in 2010). (Id. ¶¶ 13-15, 19-21.) During
Weisenbach’s last annual review before he was terminated, which was completed in March
2011, Dailey stated that “[t]he main goals for Charlie to focus on in 2011 are the EBITDA and
beating his competition in Smith Travel. This is not intended to reduce the need for better
Medallia performance but simply a recognition that the age and style of Charlie’s hotel does not
lend itself to high SIR scores.” (Id. ¶ 21.)
Weisenbach received only one written warning during the period from 2007 until 2011.
In March of 2009, Weisenbach changed the hours for some employees—by deducting time—
because he believed that they were not clocking out when they had completed their work. This
violated LQ’s wage and hour policies. (Def.’s SMF ¶ 49; Pl.’s SMF ¶ 49.) Even in the written
warning, however, Dailey commended Weisenbach’s honesty and openness, writing that “due to

23

Charlie’s honesty in offering this information openly and the belief that Charlie’s intent was not
malicious or to falsify labor records, the decision was made to make this a first level written
warning.” (Pl.’s Stmt. Disputed Facts ¶ 77.)
Berry replaced Weisenbach in the fall of 2011, and began making negative age-based
remarks to Weisenbach in the context of criticizing Weisenbach’s work. Weisenbach testified
that Berry told him, on multiple occasions, that “the future of the company was with the youth.”
(Def.’s SMF ¶ 58; Pl.’s SMF ¶ 58; Weisenbach Tr. at 120, 153-154.) Weisenbach also testified
that, during Berry’s second visit to the hotel, Berry told him that, “in this day and age and with
all of the technology out there, you, along with your generation should be able to research . . .
and locate the information.” (Def.’s SMF ¶¶ 59-60; Pl.’s SMF ¶¶ 59-60; Weisenbach Tr. at 16772.) Weisenbach testified that Berry similarly made this comment to him while criticizing
Weisenbach after he told Berry that he was having difficulty finding a specific tissue box cover
that Berry had asked him to find. (Pl.’s Stmt. Disputed Facts ¶ 30; Weisenbach Tr. at 167-72.)
Finally, Weisenbach testified that on Berry’s third visit to the hotel, Berry told Weisenbach that
he could “accept that level of performance from younger, inexperienced GMs but, with older,
experienced GMs, it can’t be tolerated.” (Def.’s SMF ¶ 61; Pl.’s SMF ¶ 61; Weisenbach Tr. at
172-76.) Weisenbach contends that Berry made this statement as he was criticizing Weisenbach
for his performance on a project, and that during this visit, Berry again commented that the
future of the company is with the youth. (Pl.’s Stmt. Disputed Facts ¶ 31; Weisenbach Tr. at 17276.) Berry allegedly made all of these statements prior to issuing a written warning to
Weisenbach on February 3, 2012.
The February 3, 2012 written warning stated that Weisenbach had violated “company
conduct standards as outlined on pages 16 and 17 of the employee handbook” because of his

24

“insubordination” and “failure to provide guest service in accordance with the hotel’s service
philosophy or failure to satisfactorily perform work or job assignments.” (Pl.’s Ex. 9, ECF No.
41-10 at 1; Def.’s Ex. 7, ECF No. 32-6 at 1.) Specifically, Berry wrote that “many items noted as
needing improvement in a previous visit to the hotel were still not up to La Quinta standards,”
including deep-cleaning of the Amtico floors, the bed-making process, the guest-room sheers,
and the condition of the tile and grout behind the toilet. (Id.) Berry added that “[t]he Satisfied
Intent to Return score at property #2048 is a direct reflection of Charlie’s ability to train his staff
and hold them accountable for La Quinta standards of service and cleanliness. With a current
SIR score of 65.1, property #2048 continues to fail in this metric. Additionally, property #2048’s
SIR score continues to fall below its score from the previous year.” (Id.) Weisenbach’s response
on the form asserted that he needed capital funds to resolve certain ongoing product quality
issues, including the working condition of guest room doors, sagging mattresses, old case goods,
outdated bathrooms and leaking windows causing ceiling damage, that appear in the Medallia
surveys. (Pl.’s Ex. 9, ECF No. 41-10 at 4; Def.’s Ex. 7, ECF No. 32-6 at 4.) Thus, Weisenbach
argues that Berry’s written warning was based on items like bathroom tile and grout, which
required capital expenditures that LQ was unwilling to make, and on low the hotel’s low SIR
scores, which contradicted Dailey’s recognition “that the age and style of Charlie’s hotel does
not lend itself to high SIR scores.” (Pl.’s Stmt. Disputed Facts ¶ 21.)
“[Discriminatory] comments may constitute evidence of an intention to discriminate, but
only if a sufficient nexus exists between the comments and the termination decision.” Graham v.
Elmira City Sch. Dist., No. 6:10-CV-6645T, 2015 WL 1383657, at *6 (W.D.N.Y. Mar. 25, 2015)
(internal citations omitted). “If no such nexus exists, the comments are merely ‘stray remarks’
which do not lead to an inference of discrimination.” Brown v. AstraZeneca Pharm., L.P., No.

25

CV 03 6166 DGT, 2006 WL 2376380, at *7 (E.D.N.Y. Aug. 16, 2006). District courts in this
circuit consider the following factors in determining whether statements are “stray remarks” or
probative of discrimination:
(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level coworker); (2) when the remark was made in relation to the employment decision at
issue; (3) the content of the remark (i.e., whether a reasonable juror could view
the remark as discriminatory); and (4) the context in which the remark was made
(i.e., whether it was related to the decision-making process).
Henry, 616 F.3d at 149 (2d Cir. 2010).
In this case, Berry—Weisenbach’s supervisor and the decision-maker in his
termination—made all three comments. None of the comments were made at the time that
Weisenbach was terminated, but they were all made during the seven months that Berry
supervised Weisenbach before terminating him, and they were also made in the context of
criticizing Weisenbach’s job performance prior to Berry giving Weisenbach a written warning in
February 2012.
Berry denies that he ever told Weisenbach that the “future of the company was with the
youth.” Even if he did say it, LQ argues that this comment was not discriminatory because it is a
statement of “common sense,” and “[i]t is a reality of the workplace” that the future is with the
youth. (Def.’s Br., ECF No. 32-1 at 24-25.) LQ also argues that such a statement is innocuous
“particularly when made by an individual over the age of 50 to another individual over the age of
50.” (Def.’s Br., ECF No. 32-1 at 25.) But a reasonable juror could also interpret this comment
as evidence of Berry’s discriminatory animus towards people in the protected age class. LQ cites
cases from several other circuits in support of its argument that such a comment is insufficient to
demonstrate bias. As Weisenbach points out, however, these cases are distinguishable. None of
them are from the Second Circuit, and the comments were not directed at the plaintiffs in those
cases. In contrast, Weisenbach alleges that Berry made the comment that “the future of the
26

company was with the youth” directly to Weisenbach, on several occasions after becoming
Weisenbach’s supervisor “in the context of growing criticism about Weisenbach’s work
performance.” (Pl.’s Opp. Br., ECF No. 41 at 31.) Viewing all of the comments together, in the
light most favorable to Weisenbach, a reasonable juror could interpret them as disparaging of
older workers, and as evidence of Berry’s intent in accepting the recommendation to terminate
Weisenbach in April 2012. In other words, the evidence is sufficient for a reasonable juror to
find that at least part of Berry’s motivation for the termination was age-based animus. Thus
Weisenbach’s evidence—while not overwhelming—is sufficient to raise genuine issues of
material fact about whether age was a motivating factor in his termination.
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES LQ’s motion for summary judgment.
IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
September 25, 2015

27