Owoeye v. Connecticut et al
ORDER granting 60 Motion for Summary Judgment. See attached memorandum of decision. The Clerk is directed to close this file. Signed by Judge Vanessa L. Bryant on 12/23/2016. (Hoffman, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STATE OF CONNECTICUT and
DEPARTMENT OF MENTAL HEALTH
AND ADDICTION SERVICES,
December 23, 2016
MEMORANDUM OF DECISION GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. 60]
Plaintiff Foluke Owoeye, a former employee of Defendant Department of
Mental Health and Addiction Services (“DMHAS”), brings this action under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Ms.
Owoeye alleges that she was (1) terminated based on her race, color, ethnicity, or
national origin; (2) terminated in retaliation for filing a complaint of discrimination
on these bases; and/or (3) subjected to a hostile work environment. For the
reasons that follow, Defendants’ Motion for Summary Judgment [Dkt. 60] is
A. Procedural History
On March 13, 2013, Plaintiff filed a complaint with the Connecticut
Commission on Human Rights and Opportunities, claiming that she was
discharged on the basis of her race, color, national origin, and ancestry. [See
Dkt. 66-5]. She filed her complaint in this Court on May 9, 2014. [See Dkt. 1].
Defendants filed a Motion to Dismiss on July 1, 2015. [See Dkt. 24]. After
numerous disputes and delays relating to Plaintiff’s failure to diligently prosecute
this case, [see, e.g., Dkts. 41, 45], the Court dismissed all of Plaintiff’s claims
except for her Title VII claim, [see Dkt. 54 at 13].
Defendants filed the instant Motion for Summary Judgment on May 27,
2016. [See Dkt. 60]. On the day that Plaintiff’s opposition was due, Plaintiff’s
counsel filed a Motion for Extension of Time without making the requisite
showing of good cause required by Local Rule of Civil Procedure 7(b). [See Dkt.
62]. The Court denied this motion, and stated that Defendants’ summary
judgment motion would be considered unopposed (as no opposition was filed by
the deadline), [see Dkt. 63], reversing course after the Second Circuit ordered
expedited briefing on the issue, [see Dkt. 65]. Plaintiff’s opposition was finally
filed on July 20, 2016, with Defendants’ reply filed on July 29, 2016. [See Dkts. 66,
B. The Record on Summary Judgment
“A party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). A party may also support their assertion by “showing that
the materials cited do not establish the absence . . . of a genuine dispute.” Id.
Cited documents must consist of either “(1) the affidavit of a witness competent
to testify as to the facts at trial and/or (2) evidence that would be admissible at
trial.” Local R. Civ. P. 56(a)3; see also Fed. R. Civ. P. 56(c)(4).
“The principles governing admissibility of evidence do not change on a
motion for summary judgment.” Schaghticoke Tribal Nation v. Kempthorne, 587
F. Supp. 2d 389, 395 (D. Conn. 2008), aff’d, 587 F.3d 132 (2d Cir. 2009) (quoting
Merry Charters, LLC v. Town of Stonington, 342 F. Supp. 2d 69, 75 (D. Conn.
2004)). “[D]ocuments submitted in opposition to a summary judgment motion
must be properly authenticated in order to be considered by the court at
summary judgment stage.” Barlow v. Connecticut, 319 F. Supp. 2d 250, 257 (D.
Conn. 2004), aff’d sub nom., Barlow v. Dep’t of Pub. Health, Connecticut, 148 F.
App’x 31 (2d Cir. 2005); see also Bazak Int’l Corp. v. Tarrant Apparel Grp., 378 F.
Supp. 2d 377, 391 (S.D.N.Y. 2005) (“[P]roper admission requires a determination
on relevance and authenticity.”).
If no objection to a document’s authenticity has been raised, the Court may
exercise its discretion to consider documents that have not been properly
authenticated. H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454 (2d Cir. 1991);
see also Delgado v. City of Stamford, No. 3:11-CV-01735-VAB, 2015 WL 6675534,
at *5 n.3 (D. Conn. Nov. 2, 2015) (“[T]he court has the discretion to consider
unauthenticated or otherwise objectionable evidence where it is apparent that the
party may be able to authenticate and establish the admissibility of those
documents at trial.”); Charles A. Wright & Arthur R. Miller, et al., 10A Fed. Prac. &
Proc. Civ. § 2722 (2016) (“[D]ocuments inadmissible under the evidence rules
may be considered by the court if not challenged.”) However, the Court may also
correct evidentiary errors on its own initiative. See Bellard v. Gautreaux, 675 F.3d
454, 461 (5th Cir. 2012) (holding that the rule allowing courts to consider
unobjected-to evidence is permissive rather than mandatory); see also United
States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985) (stating that if counsel “pursues
an objectionable line of questioning, he can hardly cry ‘foul’ when the judge . . .
excludes the testimony sua sponte.”). Therefore, while Defendants have raised
only vague objections to the evidence Plaintiff has offered, [see Dkt. 67 at 2], the
Court may exercise its discretion to exclude inadmissible evidence.
The exhibits to Plaintiff’s opposition are deficient in numerous respects.
They include (1) what appears to be text copied from a deposition transcript and
pasted into a new document that not only lacks page and line numbers, but also
lacks any authenticating signatures or declarations [see Dkt. 66-3]; (2)
interrogatory responses that lack Plaintiff’s signature [see Dkt. 66-4]; (3) the
affidavit of illegal discriminatory practice that Plaintiff filed with the Connecticut
Commission on Human Rights and Opportunities [see Dkt. 66-5]; and (4) various
documents apparently related to Ms. Owoeye’s employment for which the Court
has been provided no context [see Dkt. 66-6]. Exhibits 1 and 2 are inadmissible
on summary judgment because they do not bear authenticating signatures and
lack any other indicia of reliability. Exhibit 3 appears to be a verified complaint
that is admissible as on summary judgment to the extent it is made on personal
knowledge, sets out facts that would be admissible in evidence, and shows that
Ms. Owoeye is competent to testify on the matters asserted in the complaint. See
Fed. R. Civ. P. 56(c)(4); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“A
verified complaint is to be treated as an affidavit for summary judgment
purposes, and therefore will be considered in determining whether material
issues of fact exist, provided that it meets the other requirements for an affidavit
under Rule 56(e).”). Some of the documents contained within Exhibit 4 also
appear to bear some indicia of reliability that might counsel against exclusion,
but many of these documents appear to be of little relevance to the questions
presented on summary judgment. This problem is exacerbated by Plaintiff’s
counsel’s failure to cite Exhibits 3 and 4 anywhere in Plaintiff’s brief or Rule 56(a)
The Court need not consider any materials that the parties have failed to
cite, but may in its discretion consider other materials in the record. Fed. R. Civ.
P. 56(c)(3). If a party fails to properly support an assertion of fact, or fails to
properly address another party’s assertion of fact, the Court may “consider the
fact undisputed for purposes of the motion [and] grant summary judgment if the
motion and supporting materials – including the facts considered undisputed –
show that the movant is entitled to it.” Fed. R. Civ. P. 56(e); see also Local R.
56(a)3 (“[F]ailure to provide specific citations to evidence in the record as
required by this Local Rule may result in the Court deeming certain facts that are
supported by the evidence admitted in accordance with [Local] Rule 56(a)1 or in
the Court imposing sanctions, including . . . an order granting the motion if the
undisputed facts show that the movant is entitled to judgment as a matter of
law.”).1 Because Plaintiff’s Rule 56(a) statement cites only the inadmissible
While Rule 56(e) also permits the Court to give a party the “opportunity to
properly support or address the fact,” such a course of action is not warranted.
Exhibits 1 and 2, the Court is not obligated to consider any of the facts Plaintiff
asserts in that document. However, the Court has nevertheless considered facts
asserted in Plaintiff’s Rule 56(a) where they are supported by admissible
evidence elsewhere in the record.
C. Factual Background
Ms. Owoeye worked as a registered nurse (“RN”) in the Clinical
Neuroscience Research Unit (“CNRU”) of the Connecticut Mental Health Center
(“CMHC”) from March 23, 2013 to September 17, 2012. [Dkt. 60-4, March 10, 2016
Deposition of Foluke Owoeye (“Owoeye Dep.”) at 34, 52, 250]. The CNRU
consists of a 12-bed residential inpatient unit and five specialty outpatient clinics,
which offer interventions for obsessive compulsive disorder, depression,
schizophrenia, and cocaine addiction. [Dkt. 60-6, April 22, 2016 Affidavit of
Carolyn Cochran-Dintner (“Cochran-Dinter Aff.”) ¶ 8].
Plaintiff’s counsel repeatedly has failed to diligently pursue this case. [See, e.g.,
Dkts. 11-16 (evidencing Plaintiff’s failure to serve the Defendants until more than
year after the complaint was filed); Dkts. 40, 41, 45, 53 (ordering sanctions for
Plaintiff’s failure to provide discovery responses or respond to Defendants’
motion to compel within the applicable deadlines); Dkts. 62-63 (noting that
counsel did not file Plaintiff’s opposition to summary judgment by the applicable
deadline, and failed to demonstrate good cause for extending the deadline to
object)]. Despite having a full 54 days to draft Plaintiff’s opposition, the brief is
rife with errors. For example, even though Ms. Owoeye is Nigerian, the
opposition states, “[T]he Plaintiff has undisputably offered direct evidence that
plaintiff’s Hispanic heritage was the motivating factor for defendant’s conduct.”
[Dkt. 66-1 at 36]. The brief also references “fellow Hispanic workers” and refers
to Ms. Owoeye’s position as “his employment.” [See id.]. Plaintiff’s counsel also
appears to have cut and pasted the same paragraph into two separate sections of
the brief. [Compare Dkt. 66-1 at 21 with Dkt. 66-1 at 36]. Under these
circumstances, the Court has little confidence that counsel will produce a brief
that comports with Rule 56’s requirements if given the opportunity to do so.
1. Job Responsibilities and Training
As an RN in the SNRU, Ms. Owoeye’s responsibilities included: (1)
collaborating with attending physicians and multidisciplinary teams to plan
treatments and provide direct care to patients; (2) writing nursing notes in patient
charts; (3) transcribing medical orders onto the “kardex” medical information
system; (4) dictating reports on patients for upcoming shifts; (5) completing
admissions with comprehensive initial nursing assessment for patients with
acute psychiatric and addictive problems; (6) maintaining safety of patients who
are at imminent risk to themselves or others, including from potential or actual
substance withdrawal; (7) describing nursing care needs or problems; (8)
administering medications in accordance with CMHC standards of practice and
nursing policies and procedures; (9) providing treatment to patients in double
blind placebo controlled studies; and (10) after demonstrating competence,
drawing blood, initiating intravenous therapy, and performing
electrocardiograms. [Dkt. 60-8, Exh. B to Owoeye Dep.; Cochran-Dinter Aff. ¶ 15].
RNs in the CNRU must demonstrate competency in each of these duties and
responsibilities during a training orientation before they may work without
supervision, and before they may be considered full members of the CNRU staff.
[Cochran-Dinter Aff. ¶ 16].
According to the employee handbook, the “CMHC Nursing Policy and
Procedure Manual,” this orientation averages six weeks, but may be extended if a
new employee experiences difficulty. [Dkt. 60-10, Exh. F to Owoeye Dep.; Dkt. 607, April 22, 2016 Affidavit of Rebecca O. Wetteman (“Wetteman Aff.”) ¶ 25;
Cochran-Dinter Aff. ¶ 17]. Ms. Owoeye received a copy of the handbook on April
13, 2012. [Owoeye Dep. at 61; Dkt. 60-9, Exh. E to Owoeye Dep.].
During an employee’s orientation, a supervisor or other designee evaluates
the employee’s ability to fulfill job responsibilities and completes an orientation
checklist. [Dkts. 60-9, 60-10, Exhs. E-F to Owoeye Dep.; Cochran-Dinter Aff. ¶¶
19-20; Wetteman Aff. ¶¶ 27-28]. In addition, preceptors keep the nurse manager
and other supervising nurses apprised of the employee’s progress throughout
the orientation. [Dkt. 60-10, Exh. F to Owoeye Dep.; Cochran-Dinter Aff. ¶ 21;
Wetteman Aff. ¶ 29]. At the end of the orientation, the employee is expected to
demonstrate completion of all clinical competencies necessary to perform her
role. [Dkts. 60-9, 60-10, Exhs. E-F to Owoeye Dep.; Cochran-Dinter Aff. ¶ 19].
Ms. Owoeye began her orientation in the CNRU on April 2, 2012 and
substantially completed it on June 27, 2012. [Dkt. 60-9, Exh. E to Owoeye Dep.,
Cochran-Dinter Aff. ¶ 23]. During her orientation, she attended mandatory
training sessions, passed the mandatory Medication Administration Test, and
was taught how to complete (1) daily charts (2) a handoff report/shift to shift
report; (3) medical orders; (4) patient kardex; and (5) admission and discharge
paperwork. [Dkt. 60-9, Exh. E to Owoeye Dep., Cochran-Dinter Aff. ¶ 27]. She did
not complete the blood draws component of the orientation until August 13, 2012.
[Dkt. 60-9, Exh. E to Owoeye Dep.; Cochran-Dinter Aff. ¶¶ 23, 27].
During her orientation, Ms. Owoeye was assigned several preceptors,
including Colleen Kereljza, Linda Wheaton, Sue Keleman-Pfistner, Dottie Arovich,
Marta Cahill, Schelia Zayas, and Jane Wanyiri. [Owoeye Dep. at 63-65, 238;
Cochran-Dinter Aff. ¶ 24; Wetteman Aff. ¶ 33]. Ms. Kereljza, Ms. Keleman-Phister,
and Ms. Arovich are non-Hispanic white women, Ms. Cahill and Ms. Zayas are
Hispanic women, and Ms. Wanyiri is a black woman. Id. Plaintiff did not dispute
this, [see Dkt. 66-2 at 2 (admitting Dkt. 60-2 ¶ 19)], despite stating during her
deposition that she was the only black nurse in her unit, and that all of the other
nurses were white, [Owoeye Dep. at 102].
2. Difficulty Meeting Orientation Expectations
After Ms. Owoeye’s first month of employment, Defendants claim that she
appeared to have difficulty retaining information covered in training, that she
failed to ask questions when she did not understand something, that she did not
perform required safety checks on the patients every 30 minutes, and was not
answering phones or undertaking in other unit management tasks. [CochranDinter Aff. ¶ 32]. Defendants also claim that Plaintiff had difficulty with simple
tasks relating to kardex entries, despite the efforts of Plaintiff’s preceptors to
show Plaintiff her mistakes and explain how the entries should read. [Owoeye
Dep. at 187-92; Cochran-Dinter Aff. ¶¶ 36-41]. Some of the mistakes Defendants
claim Plaintiff made include entering incorrect dates, missing a zero in a patient
identification number or mixing up “AM” and “PM” when writing the time
medication should be administered. [Owoeye Dep. at 157-58, 187-92; CochranDinter Aff. ¶ 36]. Ms. Cochran-Dinter described some of these issues in her
“supervision notes” as early as April 26, 2012. [Cochran-Dinter Aff. ¶ 95; Dkt. 6016, Exh. V to Owoeye Dep.]. Defendants claim that they extended Ms. Owoeye’s
orientation period beyond the standard 6-week period based on these
performance related issues. [Cochran-Dinter Aff. ¶¶ 39-40]. Plaintiff disputed all
of these facts, but failed to cite any record evidence in support of her position.
[See Dkt. 66-2 at 3 (disputing Dkt. 60-2 ¶¶ 25, 27-30, 32, but citing no record
evidence that supports this position)].
Plaintiff did not dispute that a kardex listing inaccurate dosage, patient
information, start/end date for medication, and incomplete instructions on how to
give the medications could be life threatening to patients or could compromise
the CNRU’s research. [Dkt. 66-2 at 3 (admitting Dkt. 60-2 ¶ 31); see also Owoeye
Dep. at 71, 227; Cochran-Dinter Aff. ¶ 42]. Plaintiff blamed these errors on
others—she argued that she was often given incorrect medication orders, and
that she was not properly trained on medication room duties. [See Dkt. 60-15,
Exh. P to Owoeye Dep.]. She also said separately that she “did everything [she]
was supposed to do,” with respect to her medication room duties but failed to
elaborate. [Owoeye Dep. at 136].
3. Allegedly Discriminatory Comments
During her deposition, Ms. Owoeye agreed that it was important for
coworkers to understand oral reports that she had to give about patients during
shift changes. [Owoeye Dep. at 127]. Defendants claim, and Plaintiff has offered
no evidence to rebut, that these oral reports were “a very important aspect of the
nurses’ duties because the passing of information between the staff members
ensures patient safety and the accuracy of the research. It is thus very important
that the reports are accurate, clearly communicated and understood by the
recipient.” [Cochran-Dinter Aff. ¶ 47].
Defendants claim that by May 17, 2012, Ms. Cochran-Dinter had received
complaints that Ms. Owoeye’s oral reports were confusing and hard to
understand. In response, Ms. Cochran-Dinter claims to have asked the Plaintiff to
“speak clearly so everyone could understand her.” [Cochran-Dinter Aff. ¶ 48].
She also discussed, and gave Plaintiff materials regarding, the information that
should be included in an oral report. [Cochran-Dinter Aff. ¶ 48]. Plaintiff claims
that during this interaction, Ms. Cochran-Dinter told her that “people can’t
understand me because of my accent.” [Owoeye Dep. at 124]. Despite disputing
that “no one else at CMHC made any comment to the Plaintiff regarding her
accent” in her Rule 56(a) statement, [see Dkt. 66 at 3 (disputing Dkt. 60-2 ¶¶ 3435)], Plaintiff agreed during her deposition that “nobody else other than [Ms.
Cochran-Dinter] ever made a comment about [her] accent.” [Owoeye Dep. at
In addition to Ms. Cochran-Dinter’s comments, Plaintiff offered evidence
that on her first day on the job, unnamed “other nurses” told Plaintiff:
“[T]his is not your job. You are going to screw up our research”
“[H]ow did you find out about this job?”
“Did you apply on the internet?”
“Did you mail in your application?”
“How can you know what we do here?”
“Who interviewed you?”
“You belong on the 4th Floor.”
“We did not ask for somebody like you.” [Dkt. 66-4 ¶ 8]
Plaintiff did not identify these nurses, and offered no evidence regarding their
racial composition, job titles, or what if any supervisory authority they may have
had over Plaintiff.
4. Affirmative Action Complaints and Post-Orientation
On May 18, 2012, shortly after Ms. Cochran-Dinter commented on Ms.
Owoeye’s accent or oral communication skills, Ms. Cochran-Dinter had a “frank
conversation” with the Plaintiff, during which she emphasized that the CNRU was
a difficult place to work, and asked Plaintiff to spend the following weekend
thinking about whether she wanted to continue working at the CNRU. [Owoeye
Dep. at 136; Cochran-Dinter Aff. ¶ 51]. On the same day, Plaintiff filled out an
internal complaint of discrimination, which she sent to Defendants’ affirmative
action office on May 21, 2012. [Dkts. 60-13, 60-14, 60-15, Exhs. N, O, and P to
Owoeye Dep.]. Plaintiff received her first performance evaluation on May 28,
2012, in which Ms. Cochran-Dinter gave Plaintiff a service rating of
“unsatisfactory,” based on her belief that Plaintiff struggled with every aspect of
the job and was still in orientation even though the standard 6-week period had
expired. [Dkt. 60-19, Exh. FF to Owoeye Dep.; Cochran-Dinter Aff. ¶¶ 63-65)].
Ms. Cochran-Dinter claims that even after Plaintiff completed her
orientation, she still displayed serious performance issues. [Cochran-Dinter Aff.
¶¶ 70-79]. In particular, in August 2012, two nurses supervising Plaintiff
complained that Plaintiff had failed to complete physical safety checks on
patients under her supervision. [Owoeye Dep. at 237-38; Dkt. 60-17, Exh. CC to
Owoeye Dep.; Cochran-Dinter Aff. ¶¶ 74-77; Wetteman Aff. ¶¶ 36-39]. Defendants’
human resources department conducted an investigation, which appears to have
consisted of obtaining statements from Plaintiff and her coworkers and
supervisors regarding the alleged failure to conduct safety checks. [Dkt. 60-17,
Exh. CC to Owoeye Dep.; Cochran-Dinter Aff. ¶ 77; Wetteman Aff. ¶ 39]. The
investigation determined that Plaintiff had violated a work rule. Id. Plaintiff
disputed that she had failed to do the safety checks, but offered no evidence in
support of her position. [See Dkt. 66-2 at 3 (disputing Dkt. 60-2 ¶¶ 47-49, but
citing no record evidence that supports this position)]. In September 2012, one of
Plaintiff’s coworkers also reported that Plaintiff had given a patient a razor
without signing it out. [Dkt. 60-18, Exh. DD to Owoeye Dep.; Cochran-Dinter Aff. ¶
79]. Plaintiff agreed in her deposition that it could be dangerous for patients to
have sharp objects because of the potential suicide risk, but implied that it was
not a big deal to have failed to sign out the razor in this instance because she
was “standing right there.” [See Owoeye Dep. at 239-240].
Plaintiff filed a second complaint with the affirmative action office on
September 4, 2012. [Dkt. 66-4 ¶ 46; Dkt. 66-6]. On September 17, 2012, Plaintiff
received her second “unsatisfactory” service rating, because Defendants claim
she continued to make errors in transcribing medical orders, showed poor
judgment by allowing a razor out in the unit without signing it out or notifying
peers that a patient had such an item, and violated patient safety policies. [Dkt.
60-20, Exh. GG to Owoeye Dep.]. Plaintiff was also officially terminated on
September 17, 2017. [Dkt. 60-21, Exh. HH to Owoeye Dep.]. Defendants claim that
CMHC’s Director of Nursing, Rebeca O. Wetteman ultimately determined that
Plaintiff should be terminated, and that none of the individuals named in
Plaintiff’s affirmative action complaint made this determination or even had the
authority to make this determination. [Wetteman Aff. ¶ 42-44]. Ms. Wetteman
claims that she found Plaintiff’s failure to conduct safety checks unacceptable,
and that failure alone would justify Plaintiff’s termination. [Wetteman Aff. ¶ 44].
Plaintiff offered no evidence to rebut these assertions. [See Dkt. 66-2 at 4
(disputing Dkt. 60-2 ¶ 54, but citing no record evidence that supports this
Plaintiff is not aware of any similarly situated white nurses who (1) received
two “unsatisfactory” service ratings; or (2) had two work rule violations filed
against them, but were not terminated. [Owoeye Dep. at 251]. Defendants also
claim that several other black nurses worked at CMHC, including some African
nurses with accents, and Plaintiff testified that she was unaware of any other
African American or African nurse who complained of discrimination or
harassment at CMHC. [Owoeye Dep. at 60, 84, 103, 116-19; Wetteman Aff. ¶¶ 1117]. Plaintiff disputed Defendants’ claim that some of the African American or
African nurses at CMHC worked directly with Plaintiff, but offered no evidence in
support. [Dkt. 66-2 at 4 (disputing Dkt. 60-2 ¶ 64, but citing no record evidence
that supports this position)].
Standard of Review
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 factual issues exist. 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)
(quotation omitted). In addition, “the court should not weigh evidence or assess
the credibility of witnesses” on a motion for summary judgment, as “these
determinations are within the sole province of the jury.” Hayes v. New York City
Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
“A party 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.’ At the
summary judgment stage of the proceeding, [p]laintiffs are required to present
admissible evidence in support of their allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.
3:03-cv-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (quoting Gottlieb v.
County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). “Summary judgment cannot be
defeated by the presentation . . . of but a ‘scintilla of evidence’ supporting her
claim.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir.
2010) (quoting Anderson, 477 U.S. at 251).
Plaintiff claims that she was subjected to disparate treatment on the basis
of her membership in a protected class, that her termination was retaliatory, and
that she was subjected to a hostile work environment. Upon review of all facts
supported by evidence properly admitted to the record, the Court finds no
genuine issues of fact that would preclude summary judgment.
A. Claims Analyzed Under the McDonnell Douglas Framework
Title VII claims for both disparate treatment and retaliation are evaluated
using the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92
(2d Cir. 2010); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
“Under this framework, a plaintiff must first establish a prima facie case of
discrimination.” Ruiz, 609 F.3d at 491 (citation omitted). “The burden of proof
that must be met to permit an employment discrimination plaintiff to survive a
summary judgment motion at the prima facie stage is de minimis.” Chambers v.
TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). “Once a plaintiff meets
this initial burden, the burden then shifts to the defendant to offer a legitimate
non-discriminatory reason for the termination.” Ruiz, 609 F.3d at 492 (citation
omitted). If the defendant offers a legitimate non-discriminatory reason for the
termination, “the burden returns to the plaintiff to show that the real reason for
plaintiff's termination was [her] race and national origin.” Id. (citation omitted).
1. Prima Facie Case
a. Disparate Treatment
Title VII makes it unlawful “for an employer . . . to discharge . . . or
otherwise to discriminate against any individual . . . because of such individual’s
race, color . . . or national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima
facie case of disparate treatment, “a plaintiff must show that (1) [s]he is a member
of a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he
suffered an adverse employment action; and (4) the adverse action took place
under circumstances giving rise to the inference of discrimination.” Ruiz, 609
F.3d at 491-92 (citation omitted).
The parties do not dispute that Plaintiff is a member of a protected class
because she is a black woman who was born in Africa. [Dkt. 60-1 at 12]. They
similarly do not dispute that Plaintiff was qualified for her position, because she
was a registered nurse when she applied and was hired for her position. Id.
Plaintiff also suffered an adverse employment action when she was terminated.
[Cochran-Dinter Aff. ¶ 84; Wetteman Aff ¶ 42; Dkt. 60-1 at 12]. However, only the
thinnest evidence supports Plaintiff’s assertion that she was terminated under
circumstances that give rise to an inference of discrimination.
Evidence giving rise to an inference of discrimination includes (1) the
employer’s criticism of the plaintiff’s performance in ethnically degrading terms;
(2) invidious comments about others in the employee’s protected group; or (3)
the more favorable treatment of employees not in the protected group. See
Chambers, 43 F.3d at 37. “Because an employer who discriminates is unlikely to
leave a ‘smoking gun’ attesting to a discriminatory intent, a victim of
discrimination is seldom able to prove [her] claim by direct evidence, and is
usually constrained to rely on circumstantial evidence.” Id.
A plaintiff usually presents a prima facie case by “showing that the
employer . . . treated [the employee] less favorably than a similarly situated
employee outside [her] protected group.” Graham v. Long Island R.R., 230 F.3d
34, 39 (2d Cir. 2000). The Plaintiff must be “similarly situated in all material
respects to the individuals with whom she seeks to compare herself.” Id.
(citations omitted). Here, Plaintiff has agreed that she is unaware of any similarly
situated white nurses who received two “unsatisfactory” service ratings or had
two work rule violations filed against them, but were not terminated. [Owoeye
Dep. at 251]. She similarly has offered no evidence that similarly situated white
nurses engaged in the conduct for which Defendants claim she was terminated,
but received satisfactory service ratings, or did not have any official work rule
violations filed against them. Plaintiff was also unaware of any other black or
African nurses who had complained of discrimination or had been subject to
disciplinary measures that were not applied to white nurses. [Owoeye Dep. at
“Whether two employees are similarly situated ordinarily presents a
question of fact for the jury.” Graham, 230 F.3d at 39. However, “where a plaintiff
seeks to establish the minimal prima facie case by making reference to the
disparate treatment of other employees, those employees must have a situation
sufficiently similar to plaintiff's to support at least a minimal inference that the
difference of treatment may be attributable to discrimination.” McGuinness v.
Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001); see also Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 n. 2 (2d Cir. 2001) (“[A] court can properly grant
summary judgment where it is clear that no reasonable jury could find the
similarly situated prong met.”). No record evidence suggests that Defendants’
treatment of similarly situated employees raises an inference of discrimination.
In the interest of considering the evidence in the light most favorable to
Plaintiff, the Court will assume arguendo that Plaintiff accurately interpreted the
comments discussed in Section II.C., supra. If true that “somebody like you”
refers to someone who is black or African, or that the “other nurses” wanted to
find out if their employer knew Plaintiff’s race before she was hired, [see Dkt. 66-4
¶ 8], a reasonable jury might determine that racial prejudice existed in Plaintiff’s
workplace. Similarly, a reasonable jury might see prejudice in Ms. CochranDinter’s alleged comment that people could not understand Plaintiff’s accent.
The Court does not believe that either of these determinations necessarily gives
rise to an inference that Plaintiff’s termination was motivated by discrimination,
but will nevertheless proceed to the next stage of the McDonnell Douglas
analysis with respect to Plaintiff’s disparate treatment claim.
Title VII makes it unlawful for employers to retaliate against employees who
oppose employment discrimination, or submit or support a complaint of
employment discrimination. See 42 U.S.C. § 2000e-3(a); Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2532 (2013). “‘To establish a prima facie case of
retaliation, an employee must show  participation in a protected activity known
to the defendant;  an employment action disadvantaging the plaintiff; and  a
causal connection between the protected activity and the adverse employment
action.’” Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (quoting Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998).
“Title VII retaliation claims must be proved according to traditional
principles of but-for causation . . . which require proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action
or actions of the employer.” Nassar, 133 S. Ct. at 2533. This causal connection
“can be shown indirectly by timing: protected activity followed closely in time by
adverse employment action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 90 (2d Cir. 2015). However, “[w]here timing is the only basis for a claim of
retaliation, and gradual adverse job actions began well before the plaintiff had
ever engaged in any protected activity, an inference of retaliation does not arise.”
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).
Plaintiff filed her complaints of discrimination on May 21, 2012 and
September 4, 2012. [Dkts. 60-13, 60-14, 60-15, Exhs. N, O, P to Owoeye Dep.;
Dkts. 66-4 ¶ 46; Dkt. 66-6]. Plaintiff also received unsatisfactory performance
ratings on May 28, 2012 and September 17, 2012—shortly after she filed each of
her complaints. [See Dkts. 60-19, 60-20, Exhs. FF and GG to Owoeye Dep.]. On
August 30, 2012, several of Plaintiff’s colleagues filed formal complaints
regarding Plaintiff’s failure to conduct required safety checks. [See Dkt. 60-17,
Exh. CC to Owoeye Dep.]. Human resources investigated these complaints and
determined on September 11, 2012, that Plaintiff’s conduct violated a work rule.
[See Dkt. 60-17, Exh. CC to Owoeye Dep.]. A second investigation into a work
rule violation began on September 12, 2012. [Dkt. 60-18, Exh. DD to Owoeye
Dep.].2 Plaintiff was officially terminated on September 17, 2017. [Dkt. 60-21, Exh.
HH to Owoeye Dep.]. The fact that Plaintiff’s final performance evaluations, rule
violation investigations, and termination occurred immediately after Plaintiff filed
complaints of discrimination creates enough of an inference of retaliation for
Plaintiff to establish a prima facie case.
2. Legitimate Non-discriminatory Reason
Defendants have offered numerous legitimate, nondiscriminatory reasons
for terminating Plaintiff. In meeting its burden of articulating a nondiscriminatory
reason for taking an adverse employment action, “an ‘employer’s explanation of
its reasons must be clear and specific’ in order to ‘afford the employee a full and
fair opportunity to demonstrate pretext.’” Byrnie v. Town of Cromwell, Bd. of
Educ., 243 F.3d 93, 105 (2d Cir. 2001) (quoting Meiri v. Dacon, 759 F.2d 989, 996-97
(2d Cir. 1985)); see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255
(1981) (“[T]he defendant must clearly set forth, through the introduction of
admissible evidence, the reasons for the plaintiff's rejection.”). However, “[a]ny
legitimate, non-discriminatory reason will rebut the presumption triggered by the
prima facie case. The defendant need not persuade the court that it was actually
motivated by the proffered reasons.” Paul v. Bank of Am., CIV 3:08CV1066J13A,
2010 WL 419405 (D. Conn. Jan. 29, 2010) (quoting Fisher v. Vassar Coll., 114 F.3d
Because these unsatisfactory service ratings and rule violations were used as
justification for Plaintiff’s termination, [see Dkt. 60-1 at 20], their timing is relevant
to whether Defendants retaliated against Plaintiff.
1332, 1335–36 (2d Cir. 1997), abrogated on other grounds, Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133 (2000)); see also Farias v. Instructional Sys.,
Inc., 259 F.3d 91, 98 (2d Cir. 2001) (“The defendant is not required to prove that
the articulated reason actually motivated its actions.”).
Defendants offered overwhelming and undisputed evidence that Plaintiff
could not competently perform basic job functions, and committed two rule
violations that endangered the safety of patients under her care. [See Sections
II.B., II.D., supra]. They have therefore offered legitimate, nondiscriminory
reasons for Plaintiff’s dismissal. The burden, therefore, shifts back to Plaintiff to
present “admissible evidence that would be sufficient to permit a rational finder
of fact to infer that the employer’s proffered reason is pretext for an
impermissible motivation.” See Vivenzio, 611 F.3d at 106 (quotation and citation
Plaintiff has offered no admissible evidence to refute the vast majority of
Defendants’ claims regarding her poor job performance, or that discrimination or
retaliation were motivating factors for her dismissal.
a. Disparate Treatment
“To avoid summary judgment in an employment discrimination case, ‘the
plaintiff is not required to show that the employer’s proffered reasons were false
or played no role in the employment decision, but only that they were not the only
reasons and that the prohibited factor was at least one of the motivating factors.’”
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (quoting Cronin v. Aetna
Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)); see also Nassar, 133 S. Ct. at 2522–
23 (“An employee who alleges status-based discrimination under Title VII need
not show that the causal link between injury and wrong is so close that the injury
would not have occurred but for the act.”). Plaintiff may meet her burden “either
directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” See Burdine, 450 U.S. at 256; accord
Cooper v. Connecticut Pub. Defender’s Office, 480 F. Supp. 2d 536, 545 (D. Conn.
2007), aff’d sub nom., Cooper v. State of Connecticut Pub. Defenders Office, 280
Fed. Appx. 24 (2d Cir. 2008). Conclusory and unsupported assertions that an
employer's proffered race-neutral reason was a pretext for discrimination may
support a grant of summary judgment in favor of the employer. See, e.g.,
Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (“[I]f the
plaintiff has failed to show that there is evidence that would permit a rational
factfinder to infer that the employer's proffered rationale is pretext, summary
judgment dismissing the claim is appropriate”).
The comments that Plaintiff believes evidence disparate treatment only do
so by virtue of inferential gymnastics much more favorable to Plaintiff than the
summary judgment standard requires. See Fincher, 604 F.3d at 726 (holding
summary judgment inappropriate where alleged discriminatory remarks “are at
best just such a ‘scintilla’ in light of their offhand, conclusory nature and the lack
of further support in the record for [the plaintiff’s] claim”). Further, Plaintiff has
offered no evidence regarding the identities of the “other nurses” who allegedly
made derogatory comments, whether they played any role in Plaintiff’s
termination, or whether they exercised any supervisory authority over Plaintiff.
The comments therefore cannot give rise to an inference of discrimination in
Plaintiff’s termination, which was authorized by Ms. Wetteman, possibly with
some input from Ms. Cochran-Dinter. [See Wettman Aff. ¶ 42; Dkts. 66-19, 66-20,
66-21, Exhs. FF, GG, HH to Owoeye Dep.].
Plaintiff also has offered no evidence to support her assertion that Ms.
Cochran-Dinter’s comment about her accent was motivated by discrimination on
the basis of Plaintiff’s national origin. By contrast, copious record evidence
suggests that this comment was made because of concerns about Plaintiff’s oral
communication skills. [See Section II.C.3., supra]. “An adverse employment
decision may be predicated upon an individual's accent when—but only when—it
interferes materially with job performance. There is nothing improper about an
employer making an honest assessment of the oral communications skills of a
candidate for a job when such skills are reasonably related to job performance.”
Vidal v. Metro-N. Commuter R. Co., No. 3:12-CV-00248 MPS, 2014 WL 3868027, at
*11 (D. Conn. Aug. 6, 2014), appeal withdrawn, (Mar. 26, 2015). Here, Plaintiff has
agreed that it was important for coworkers to understand oral reports that she
had to give about patients during shift changes. [Owoeye Dep. at 127]. She also
offered no evidence that her oral reports were cogent or easy to understand.
Therefore, even if some nexus existed between Ms. Cochran-Dinter’s belief that
people could not understand Plaintiff’s accent and Plaintiff’s termination, it would
not be evidence that Plaintiff’s termination was motivated by anything other than
poor job performance.
Although the timing of the events leading up to Plaintiff’s dismissal
appears at first to suggest that it may have been retaliatory, a full view of the
record evidence demonstrates that Plaintiff filed her affirmative action complaints
immediately after receiving performance-based criticism from her supervisors.
For example, Plaintiff filed her May 2012 complaint on the first business day after
Ms. Cochran-Dinter told Plaintiff that she was having difficulty learning how to
perform the tasks required of her in the CNRU and suggested that Plaintiff might
want to think about resigning. [See Owoeye Dep. at 135-37; Cochran-Dinter Aff. ¶
51]. Undisputed evidence also shows that Ms. Cochran-Dinter had concerns
about Plaintiff’s job performance weeks before Plaintiff filed her first complaint.
[See Cochran-Dinter Aff. ¶¶ 33, 95; Wetteman Aff. ¶ 50]. Similarly, Plaintiff
submitted her second complaint two business days after her colleagues formally
reported her serious work rule violation to human resources. [See Dkt. 60-17,
Exh. CC to Owoeye Dep.; Dkt. 66-6]. While the record evidence suggests that
Plaintiff reacted to performance-based criticism by quickly filing discrimination
complaints, it does not support Plaintiff’s claim that this criticism was pretextual.
B. Hostile Work Environment
“‘Title VII affords employees the right to work in an environment free from
discriminatory intimidation, ridicule, and insult.’” Schwapp v. Town of Avon, 118
F.3d 106, 110 (2d Cir. 1997) (quoting Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 65 (1986)). “To prevail on a hostile work environment claim, a plaintiff
must demonstrate: ‘(1) that [her] workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the conditions of
[her] work environment, and (2) that a specific basis exists for imputing the
conduct that created the hostile environment to the employer.’” Id. (quoting Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996)). “Conduct that
is not severe or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or
abusive—is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993). A “mere utterance of an epithet which engenders offensive feelings in
a[n] employee . . . does not sufficiently affect the conditions of employment to
implicate Title VII.” Id.
In support of her claim that she was subjected to a hostile work
environment, Plaintiff asserts in conclusory fashion that co-workers said negative
things about her when she was not around, that she did not feel she was
adequately trained, and that she was reprimanded for mistakes that she did not
make. [See, e.g., Dkt. 66-4 ¶¶ 11-29]. While unpleasant, “[h]ostility or unfairness
in the workplace that is not the result of discrimination against a protected
characteristic is simply not actionable.” Sethi v. Narod, 12 F. Supp. 3d 505, 536
(E.D.N.Y. 2014). With the possible exception of the comments discussed in
Section II.C.—which are not sufficiently “severe or pervasive” to violate Title VII—
Plaintiff has offered no evidence that her perceived mistreatment by Ms. CochranDinter or other co-workers was motivated by racial animus.
For the foregoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED. The Clerk is directed to close this file.
IT IS SO ORDERED.
_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: December 23, 2016
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