Stefanidis v. Jos. A. Bank Clothiers, Inc.
Filing
58
ORDER granting 37 Motion for Summary Judgment. The clerk is directed to enter judgment for the Defendant and close the case. Signed by Judge Victor A. Bolden on 3/2/2016. (Dearing, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KONSTANTINOS STEFANIDIS,
Plaintiff,
v.
CASE NO. 3:14-cv-971 (VAB)
JOS. A. BANK CLOTHIERS, INC.,
Defendant.
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Konstantinos Stefanidis, has sued his former employer, Jos. A. Bank
Clothiers, Inc. (“Jos. A. Bank”). Compl., ECF No. 1-2. Mr. Stefanidis alleges that he has
a disability, namely chronic tonsillitis, and that Jos. A. Bank harassed and discriminated
against him as a result. Id. ¶¶4-5. He makes disability discrimination claims under the
Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §46a-60, and
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq.. See Compl. at
First Count, ECF No. 1-2. He also alleges that Jos. A. Bank negligently and/or
intentionally inflicted emotional distress. Id. at Second and Third Counts.
Jos. A. Bank has filed a motion for summary judgment, seeking to dismiss all of
Mr. Stefanidis’s claims. Mot. for Summ. J., ECF No. 37. For the reasons that follow, the
motion is GRANTED in its entirety.
I.
STATEMENT OF FACTS
Jos. A. Bank is a menswear retail company that hired Mr. Stefanidis in mid-2005.
Def.’s Local Rule 56(a)1 Stmt. ¶¶1, 4, 10, ECF No. 37-2; Pl.’s Ex. A, Stefanidis Aff. ¶3,
ECF No. 45.1 Mr. Stefanidis began working at Jos. A. Bank as a retail sales associate in
1
In applying for this job with Jos. A. Bank, Mr. Stefanidis misrepresented on both his application and
resume that he had a bachelor’s degree from the University of Connecticut. Def.’s Local Rule 56(a)1 Stmt.
1
Westport, Connecticut. Pl.’s Ex. A, Stefanidis Aff. ¶6, ECF No. 45. Jos. A. Bank
subsequently promoted him to key holder, assistant manager in 2008, and store manager
in 2009. Id.; see also Def.’s Local Rule 56(a)1 Stmt. ¶¶16, 18, ECF No. 37-2. In 2010,
he was transferred to the Fairfield, Connecticut store as the store’s manager, where the
events that form the basis for this case occurred. Pl.’s Ex. A, Stefanidis Aff. ¶6, ECF No.
45.
Mr. Stefanidis suffered from “chronic tonsillitis” for a number of years before he
was hired and while he worked for Jos. A. Bank. Id. ¶7. He testified that the tonsillitis
reduced his stamina, gave him earaches and fever, made him more susceptible to getting
sick, and impaired his abilities to speak and swallow. Id. ¶¶7-8; Def.’s Ex. D, Stefanidis
Dep. 28:8-16, 29:20-30:10, ECF No. 37-6. He also indicated that, before they were
removed, his tonsils were very large and that he had difficulty swallowing and had sleep
apnea. Def.’s Ex. D, Stefanidis Dep. 29:1-6, ECF No. 37-6. Mr. Stefanidis contends that
he missed work often for his condition and that he informed his supervisor, Joan
Callanan, of his condition generally and when it caused him to miss work. Pl.’s Ex. A,
Stefanidis Aff. ¶8, ECF No. 45.
In November 2011, December 2011, and March 2012, Mr. Stefanidis had three
appointments with a doctor at Soundview Medical Associates at which he complained of
sore throat. Def.’s Local Rule 56(a)1 Stmt. ¶¶24-27, ECF No. 37-2. The doctor’s notes
from the March 2012 visit indicate that Mr. Stefanidis was considering a tonsillectomy.
Id. ¶¶28-29. He also noted that Mr. Stefanidis had “chronic pharyngitis.” Id. ¶29.
¶¶5, 8, ECF No. 37-2. Mr. Stefanidis does not dispute that he misrepresented his educational background,
but contends that he was hired because of his retail sales experience, not because of his then-alleged
educational achievements. Pl.’s Local Rule 56(a)1 Stmt. ¶¶7, 9, ECF No. 48; Pl’s Ex. A, Stefanidis Aff.
¶5, ECF No. 45.
2
On April 3, 2012, Mr. Stefanidis saw Dr. Robert Weiss, an ear, nose and throat
specialist. Id. ¶30. During this visit, he scheduled a tonsillectomy for May 9, 2012. Id.
Mr. Stefanidis informed Ms. Callanan about the surgery the month before it occurred and
indicated to her that he would return to work in early June. See Def.’s Ex. M, Callanan
Dep. 30:12-31:16, ECF No. 37-15; Pl.’s Ex. A, Stefanidis Aff. ¶¶11, 13, ECF No. 45; see
also Pl.’s Ex. G, E-mail dated June 4, 2012, ECF No. 47 (indicating that Mr. Stefanidis
had initially intended to return to work in June). He claims that she was upset that he was
taking leave and questioned him about who would operate the store in his absence. Pl.’s
Ex. A, Stefanidis Aff. ¶¶13-14, ECF No. 45.
Mr. Stefanidis also sought leave under the Family Medical Leave Act (“FMLA”)
for the surgery and recovery time, which Jos. A. Bank approved through May 23, 2012.
Def.’s Ex. D, Stefanidis Dep. 59:1-10, ECF No. 37-6; Def.’s Local Rule 56(a)1 Stmt.
¶50, ECF No. 37-2; Def.’s Ex. X, Memo regarding FMLA Leave, ECF No. 37-26.
Consistent with Ms. Callanan’s instructions, Mr. Stefanidis also obtained a note from Dr.
Weiss supporting his claim for leave. Pl.’s Ex. A, Stefanidis Aff. ¶12, ECF No. 45; see
also Pl.’s Ex. D, Letter dated Apr. 19, 2012, ECF No. 47. The letter indicated the date of
the procedure and that Mr. Stefanidis would not be able to return to work “until he is
considered medically cleared.” Id.2
Mr. Stefanidis underwent a tonsillectomy on May 9, as scheduled. Def.’s Local
Rule 56(a)1 Stmt. ¶39, ECF No. 37-2. He returned to work on May 23, 2012 at the end
of his FMLA leave. Id. ¶50. After some post-operative visits during May 2012, Mr.
2
In seeking the note, Mr. Stefanidis asked Dr. Weiss to indicate that he could not return to work for thirty
days. Def.’s Local Rule 56(a)2 Stmt. ¶31, ECF No. 37-2. However, Dr. Weiss testified that typically
patients recovered from a tonsillectomy in fourteen days. Def.’s Ex. V, Weiss Dep. 53:154:4, ECF No. 3724.
3
Stefanidis did not see a physician for at least a year and half about this tonsillitis. Id.
¶¶41-43, 47; Pl.’s Local Rule 56(a)2 Stmt. ¶47, ECF No. 48. However, he contends that
he still suffers symptoms from his tonsillitis including throat pain, fatigue, and dry throat.
Pl.’s Local Rule 56(a)2 Stmt. ¶47, ECF No. 48; Pl.’s Ex. A, Stefanidis Aff. ¶18, ECF No.
45.
Jos. A. Bank contends that Mr. Stefanidis returned to work without any
restrictions and that he did not inform anyone at Jos. A. Bank that he had a permanent
condition or needed accommodation. Def.’s Local Rule 56(a)1 Stmt. ¶¶50-53, ECF No.
37-2. Mr. Stefanidis indicates that he had not yet recovered from the surgery when he
returned to work, that he continued to suffer from symptoms of tonsillitis, mentioned
above, and that he could not lift heavy objects. Pl.’s Ex. A, Stefanidis Aff. ¶18, ECF No.
45. Mr. Stefanidis also claims that Ms. Callanan called him at home during his FMLA
leave and told him that sales figures were down. Id. ¶16. He contends that, as a result of
Ms. Callanan’s calls, he returned to work before he was ready and that, upon his return,
he found the store to be well-maintained and the sales figures to be at a normal level. Id.
¶¶16-17; see also Pl.’s Ex. G, E-mail dated June 4, 2012, ECF No. 47 (indicating that Mr.
Stefanidis had initially intended to return to work in June but had come back early).
Mr. Stefanidis admits that he did not request additional time away from work.
Def.’s Ex. D, Stefanidis Dep. 69:1-6, ECF No. 37-6. He testified that he told Anthony
Macaluso, the new store manager, that he was dizzy, had a sore throat, and was not
operating at “a hundred percent.” Id. at 63:5-13. There is no record evidence, however,
that Mr. Stefanidis formally sought an accommodation for his condition.
4
In 2009, 2010 and 2011, Mr. Stefanidis was counseled for various performance
issues, including a failure to secure the store’s bank deposit, failing to achieve acceptable
audit results, and failing to provide customer service to a particular customer. See Def.’s
Local Rule 56(a)1 Stmt. ¶¶19-21, 23, ECF No. 37-2; Pl.’s Local Rule 56(a)2 Stmt. ¶¶1921, 23, ECF No. 48. Mr. Stefanidis contends that a bad economy caused his poor sales
numbers but does not otherwise deny that these performances issues occurred. Pl.’s
Local Rule 56(a)2 Stmt. ¶21, ECF No. 48.
Two additional incidents also occurred which resulted in his demotion and
termination, respectively. First, while he was out for his tonsillectomy an anonymous
employee in the Fairfield store called the Jos. A. Bank’s whistle-blower hotline and
indicated that Mr. Stefanidis was improperly charging business-related shipping costs to
the company’s Westport store, in a plot to get back at the Westport store manager. Def.’s
Local Rule 56(a)1 Stmt. ¶48, ECF No. 37-2.3 Shipping expenses are deducted from each
store’s profits. Id. ¶58. Thus, charging shipping costs to another store would negatively
impact that store’s profitability. Id.
When Mr. Stefanidis returned to work after his tonsillectomy, Michael Staines, a
Regional Loss Prevention Manager, spoke to him about the anonymous complaint. Id.
¶54. Mr. Stefanidis signed a statement admitting he had improperly used the shipping
codes. See Def.’s Ex. JJ, Pl.’s Stmt., ECF No. 37-38. But now, in the context of this
litigation, he denies “intentionally” misusing the shipping codes and argues that other
employees had access to the shipping codes. See Pl.’s Ex. A, Stefanidis Aff. ¶¶20-21,
3
Mr. Stefanidis purports to contest this fact but does not cite to any record evidence to support his
objection, as required under this District’s Local Rule 56(a)3. Pl.’s Local Rule 56(a)2 Stmt. ¶48, ECF No.
48; D. Conn. L. Civ. R. 56(a)3. The Local Rule notes that “failure 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 Rule 56(a)1.” D. Conn. L. Civ. R. 56(a)3.
5
ECF No. 45. Jos. A. Bank demoted Mr. Stefanidis as a result of this incident and placed
him on “final written warning.” Def.’s Local Rule 56(a)1 Stmt. ¶59, ECF No. 37-2.
Second, Jos. A. Bank claims that Mr. Stefanidis and an assistant manager, who
was senior to him at the time, improperly closed the Fairfield store on the evening of
August 9, 2012. The company’s policies require employees to lock the doors of stores at
the scheduled closing time and complete daily closing procedures, including counting
cash in the registers and preparing daily bank deposits, after the store is closed. Def.’s
Local Rule 56(a)1 Stmt. ¶61, ECF No. 37-2.4
On the day in question, the store’s alarm was armed at 9:02 p.m., indicating in
Jos. A. Bank’s view, that either Mr. Stefanidis began closing procedures before the
scheduled 9 p.m. closing time or that he did not complete the required procedures. Id.
¶¶61-67. Mr. Stefanidis contends that the clock on the alarm did not work properly, but
does not directly deny closing the store improperly. Pl.’s Ex. A, Stefanidis Aff. ¶¶24-27,
ECF No. 45. He also contends that, even if the closing procedures were not properly
completed that night, he was “not responsible” for the closing and was following
instructions from the assistant manager, who was senior to him at the time. Id.
Jos. A. Banks terminated Mr. Stefanidis on August 16, 2012, because it believed
that Mr. Stefanidis had improperly closed the store while he was on “final written
warning.” Def.’s Local Rule 56(a)1 Stmt. ¶¶68, 70, ECF No. 37-2. Mr. Stefanidis
contends that he was discharged because of his chronic tonsillitis. Pl.’s Local Rule
56(a)2 Stmt. ¶70, ECF No. 48. It is undisputed that the assistant manager who also was
responsible for closing the store that same evening was not terminated as a result of the
4 Mr.
Stefanidis contends that store closing procedures do not always occur after the store’s doors are
locked, but he does not cite to any record evidence to support his objection, as required under this District’s
Local Rule 56(a)3. Pl.’s Local Rule 56(a)2 Stmt. ¶61, ECF No. 48; D. Conn. L. Civ. R. 56(a)3.
6
incident. Def.’s Local Rule 56(a)1 Stmt. ¶74, ECF No. 37-2. Jos. A. Bank indicates that
this assistant manager had no prior disciplinary incidents and therefore, was subject to
more limited disciplinary action. Id. ¶75.
II.
STANDARD
The Court shall grant summary judgment, if 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 carries the burden of demonstrating that there is no genuine
material dispute of fact by citing to “particular parts of materials in the record.” See Fed.
R. Civ. P. 56(c)(1)(A)-(B); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.
2000). A dispute regarding a fact is “‘genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party’” and material if the substantive law
governing the case identifies those facts as material. Williams v. Utica Coll. Of Syracuse
Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v. Am. Cyanamid Co., 158 F.3d
622, 626 (2d Cir. 1998)); Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59
(2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing a summary judgment motion, the Court must resolve all ambiguities
and draw all inferences from the record as a whole in favor of the non-moving party.
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010); see also Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Only when reasonable
minds could not differ as to the import of the evidence is summary judgment proper.”
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted).
7
III.
DISCUSSION
Mr. Stefanidis claims that Jos. A. Bank discriminated against him on the basis of
his alleged disability, tonsillitis, in violation of the ADA and CFEPA when it demoted
and terminated him. Compl. at First Count, ECF No. 1-2. He also contends that he was
subjected to a hostile work environment, in violation of the same statutes, and appears to
also suggest that Jos. A. Bank failed to reasonably accommodate his disability. Id.
Finally, he claims that Jos. A. Bank negligently and/or intentionally inflicted emotional
distress on him. Id. at Counts Two and Three. Jos. A. Bank has moved to summarily
dismiss all of these claims. Mot. for Summ. J., ECF No. 37.
A. Retaliation
In opposing summary judgment, Mr. Stefanidis discusses a retaliation claim. Pl.’s
Opp. Br. 15, ECF No. 44. The Court finds nothing in his Complaint indicating that he
brought such a claim. A complaint must set forth all of the claims in a lawsuit. See Fed.
R. Civ. P. 8(a); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff cannot
assert new claims for the first time in opposing summary judgment. See Thomas v. Egan,
1 F. App’x 52, 54 (2d Cir. 2001) (“[I]t is inappropriate to raise new claims for the first
time in submissions in opposition to a summary judgment motion.”); Davis v.
Connecticut Community Bank, 937 F. Supp. 2d 217, 238 (D. Conn. 2013) (same); see
also Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) (affirming a district
court’s decision not to analyze a claim raised for the first time in opposing summary
judgment).
Mr. Stefanidis’s Complaint does not contain any allegations that could constitute
a retaliation claim. He cannot now add one at summary judgment. See id.
8
B. Disability Discrimination (First Count)
The ADA and CFEPA prohibit an employer from discriminating against its
employees on the basis of their disabilities. See 42 U.S.C. §12112(a); Conn. Gen. Stat.
§46a-60(a)(1). Mr. Stefanidis claims that Jos. A. Bank discriminated against him because
he has chronic tonsillitis, which he claims to be a disability, when it demoted and
terminated him. Jos. A. Bank argues that Mr. Stefanidis’s claim fails, because he is not
disabled under the ADA or CFEPA. Def.’s Br. 6-18, ECF No. 37-1. It also argues that it
had legitimate, non-discriminatory reasons for demoting and terminating Mr. Stefanidis,
and that its reasons were not pretext. Id. at 18-24.
In analyzing a discrimination claim under the ADA, the Court applies the
McDonnell Douglas burden-shifting framework. Heyman v. Queens Vill. Comm. for
Mental Health for Jamaica Cmty. Adolescent Prog., Inc., 198 F.3d 68, 72 (2d Cir. 1999)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); McBride v.
BIC Consumer Prods. Mfg., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (citation omitted).
Under this framework, Mr. Stefanidis must first introduce evidence raising a genuine
question of material fact on a prima facie case of discrimination. See Heyman, 198 F.3d
at 72 (citation omitted). To make out a prima facie case, Mr. Stefanidis must show that
“(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the
ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or
without reasonable accommodation; and (4) he suffered adverse employment because of
his disability.” Id. (citation omitted). If the evidence demonstrates a dispute of material
fact on each element of the prima facie case, Jos. A. Bank must then offer a nondiscriminatory reason for terminating him. Id. Its burden is satisfied if the reason, if
9
believed, “would support a finding that unlawful discrimination was not a cause of the
disputed employment action.” Id.
If Jos. A. Bank meets this burden, to survive summary judgment, Mr. Stefanidis
then must introduce evidence that the offered reason was a pretext for discrimination.
See id. To show pretext, he must introduce evidence from which a reasonable juror could
conclude that Jos. A. Bank’s real motivation was discrimination. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (under Title VII) (citing Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 258 (1981)); Bickerstaff v. Vassar Coll. 196 F.3d 435,
446-47 (2d Cir. 1999) (under Title VII); see also e.g., Greene v. Enlarged City Sch. Dist.
of Middletown, N.Y., 606 F. App’x 624, 626 (2d Cir. 2015) (applying the same standard
to the analysis of pretext under the ADA); Wesley-Dickson, Warwick Valley Cent. Sch.
Dist., 586 F. App’x 739, 741-44 (2d Cir. 2014) (same). He may offer evidence that the
legitimate reason offered to justify the employment decision is false, “as one means to
support her ultimate burden of proving discrimination,” but such evidence is not required
to show pretext. Bickerstaff, 196 F.3d at 447.
Other than CFEPA’s broader definition of disability, Connecticut courts have
interpreted disability discrimination claims brought under CFEPA to be similar to those
brought under the ADA. See Hopkins v. New Eng. Health Care Employees Welfare
Fund, 985 F. Supp. 2d 240, 255-56 (D. Conn. 2013). Because the Court need not address
the definition of disability to dispose of this case, it will treat the analysis of Mr.
Stefanidis’s claims under ADA and CFEPA as the same.
Assuming, without deciding, that Mr. Stefanidis has demonstrated genuine
questions of material fact on all elements of his prima facie case, the Court finds that his
10
case cannot survive summary judgment. Jos. A. Bank has provided legitimate nondiscriminatory reasons for both his demotion and termination, and Mr. Stefanidis has
failed to identify any record evidence showing those reasons were pretext for disability
discrimination. Accordingly, summary judgment must be granted.
1. Demotion
Jos. A. Bank argues that it demoted Mr. Stefanidis because it believed he had
violated company policy by improperly using shipping codes for another store. Def.’s
Br. 19-21, ECF No. 37-1. Mr. Stefanidis signed a written confession that he had
improperly used the codes. Def.’s Ex. JJ, Pl.’s Stmt., ECF No. 37-38. Violations of
company policy are legitimate non-discriminatory reasons to discipline employees. See
e.g., Pacenza v. IBM Corp., No. 04 Civ. 5831(PGG), 2009 WL 890060, at *12-13
(S.D.N.Y. Apr. 2, 2009) (finding that an employer’s claim that the plaintiff violated its
standards of conduct was a legitimate reason for termination and collecting cases with the
same outcome). Because Jos. A. Bank has provided a legitimate, non-discriminatory
reason for his demotion, to survive summary judgment, Mr. Stefanidis must show that
this reason was pretext. He fails to do so.
Mr. Stefanidis argues that Jos. A. Bank’s reason is pretext because he now claims
that he did not “intentionally” misuse the codes and other employees had access to
shipping codes, implying that another employee misused the codes. Pl.’s Opp. Br. 31-32,
ECF No. 44. He also contends that the demotion occurred one week after his return from
his tonsillectomy, raising an inference of a causal link between his tonsillitis and the
demotion. Id. at 14-15, 32. Finally, he argues that his supervisor, Ms. Callanan
expressed frustration with him when he told her about his surgery and called him while
11
he was out on leave to discuss falling sales numbers and other aspects of the store’s
management. Id. at 30-31.
This evidence is insufficient to show pretext, because it does not raise any
inference that Jos. A. Bank’s decision to demote Mr. Stefanidis was motivated by
discrimination. As a preliminary matter, “[t]emporal proximity may be sufficient to show
a prima facie case, but is insufficient to demonstrate pretext” without other evidence of
discriminatory intent. Trent v. Town of Brookhaven, 966 F. Supp. 2d 196, 206-07
(E.D.N.Y. 2013) (collecting cases); see Bickerstaff, 196 F.3d at 446-47 (noting that in
evaluating pretext, the plaintiff has the “ultimate burden to persuade the trier of fact that
she has been the victim of intentional discrimination (i.e., that an illegal discriminatory
reason played a motivating role in the adverse employment decision)”), see also El Sayed
v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (holding in the context of a
retaliation claim that “temporal proximity,” without more, cannot satisfy plaintiff’s
burden on pretext).
Second, none of the other evidence Mr. Stefanidis has identified raises an
inference that discriminatory intent played any role in his demotion. His discussions with
Ms. Callanan did not relate to his ability to do his job upon his return or his alleged
disability. He also presents no evidence that his discussions with Ms. Callanan while he
was recovering from his surgery led to his demotion.
The fact that Mr. Stefanidis now denies using the shipping codes improperly also
does not show pretext. The purpose of the pretext inquiry is not to determine whether an
adverse employment action was fair or wise, but rather to determine whether
discrimination was a motivating factor behind such a decision. See Anderson v. Nat’l
12
Grid, PLC, 93 F. Supp. 3d 120, 145 (E.D.N.Y 2015) (collecting cases); McPherson v.
New York City Dep’t of Ed., 457 F.3d 211, 216 (2d Cir. 2006) (noting that in evaluating
pretext, the Court is “not interested in the truth of the allegations against plaintiff [but
rather] in what motivated the employer.”) (emphasis in original and internal quotation
marks and citation omitted) (in the context of evaluating an ADEA claim); see also
DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170-71 (2d Cir. 1993) (A “fact-finder
need not, and indeed should not, evaluate whether a defendant’s stated purpose is unwise
or unreasonable [but should instead] determin[e] whether the articulated purpose is the
actual purpose for the challenged employment-related action.”) (citation omitted); Roge
v. NYP Hldgs., Inc., 257 F.3d 164, 169 (2d Cir. 2001) (“[I]t is common sense and entirely
lawful for an employer to select for termination an employee who the employer in good
faith believes recently engaged in fraud relating to the employment. Whether or not fraud
actually occurred… [such] circumstances… provide a nondiscriminatory reason for
choosing to terminate that employee...”); Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F.
Supp. 2d 98, 111 (S.D.N.Y. 2009) (“Where a plaintiff has been terminated for
misconduct, the question is not ‘whether the employer reached a correct conclusion in
attributing fault [to the plaintiff]…, but whether the employer made a good-faith business
determination.’”) (alterations in original) (citation omitted).
Mr. Stefanidis presents no evidence that non-disabled employees who improperly
used shipping codes were treated differently. He fails to show that the allegations of
misconduct were entirely baseless or otherwise an expression of discriminatory intent.
He also provides no evidence that, prior to this lawsuit, he told anyone at Jos. A. Bank
that he did not misuse the shipping codes.
13
Jos. A. Bank has demonstrated that it had a good faith belief that Mr. Stefanidis
violated its company policy by improperly using shipping codes for another store.
Without other evidence that Jos. A. Bank was motivated, at least in part, by
discriminatory animus, Mr. Stefanidis has failed to create a genuine issue of material fact
on pretext. Anderson, 93 F. Supp. 3d at 145 (dismissing plaintiff’s argument that he did
not “actually violate” his employer’s standards of conduct because his arguments went
“only to the accuracy or wisdom of the defendants’ decision to terminate him” and failed
to create a triable issue on whether defendants’ reasons were pretext for discrimination);
Pacenza, 2009 WL 890060, at *14 (holding that “to avoid a finding of pretext, an
employer must merely have a good faith belief in the articulated reason for an employee’s
termination” and collecting cases); Luckette v. F.M. Howell & Co., Inc., 942 F. Supp. 2d
374, 378 (W.D.N.Y. Apr. 29, 2013) (finding that plaintiff failed to show pretext where he
did not produce evidence that his supervisor’s interpretation of the plaintiff’s conduct
was, “even if incorrect, insincere, so frivolous as to be incredible, or motivated by
discriminatory animus.”). Because Mr. Stefanidis has failed to show that his demotion
was motivated in any way by discrimination against him because of his chronic tonsillitis,
his ADA claim based on his demotion must fail.
2. Termination
Jos. A. Bank indicates that it terminated Mr. Stefanidis for failing to comply with
another company policy, by failing to properly close the store one evening. Def.’s Br.
21-22, ECF No. 37-1. Employees are required to complete closing procedures daily,
once the store is closed. See Def.’s Ex. A, Callanan Decl. ¶¶11-12, ECF No. 37-3; Def.’s
Ex. CC, Loss Prevention Policies and Procedures 4, ECF No. 37-31. On the evening in
14
question, the store’s alarm was armed at 9:02 p.m. when the store was scheduled to close
at 9 p.m. Jos. A. Bank argues that this timing indicates either that Mr. Stefanidis did not
properly complete closing procedures, which took more than two minutes, or that he
closed the store to the public early. Def.’s Br. 21, ECF No. 37-1. For the same reasons
discussed with respect to his demotion, this reason satisfies Jos. A. Bank’s obligation of
providing a legitimate non-discriminatory reason for Mr. Stefanidis’s termination. See
e.g., Pacenza, 2009 WL 890060, at *13. Accordingly, to survive summary judgment,
Mr. Stefanidis must produce evidence from which a reasonable juror could conclude Jos.
A. Bank was truly motivated, at least in part, by discrimination.
Mr. Stefanidis argues that Jos. A. Bank’s legitimate reason is pretext because it
occurred less than sixty days after his tonsillectomy. Pl.’s Opp. Br. 32, ECF No. 44. As
noted above, a temporal connection alone is insufficient in considering pretext. See
Trent, 966 F. Supp. 2d at 206-07; Bickerstaff, 196 F.3d at 446-47.
Mr. Stefanidis also argues that the clock on the store’s alarm did not function
properly and did not record time accurately. Pl.’s Opp. Br. 33, ECF No. 44. Thus, he
reasons, there is insufficient evidence that he failed to perform the store closing
procedures. Id. However, he does not directly deny that he failed to close the store
properly. Moreover, the only evidence Mr. Stefanidis cites in support of his conclusion
that the alarm clock was inaccurate is his own conclusory testimony that “[t]he clock…
was frequently slow and not accurate.” Pl.’s Ex. A, Stefanidis Aff. ¶27, ECF No. 45.
The Court finds that this conclusory, self-serving statement is insufficient to raise a
genuine question on whether the clock was working properly. See Lujan v. Nat’l Wildlife
Federation, 497 U.S. 871, 888 (1990) (noting that under Rule 56(e), a district court
15
cannot deny summary judgment based on “conclusory allegations of the complaint or
answer” placed into an affidavit); see also Hayes v. New York City Dep’t of Corr., 84
F.3d 614, 619 (2d Cir. 1996) (“[F]actual issues created solely by an affidavit crafted to
oppose a summary judgment motion are not ‘genuine’ issues for trial.”). Mr. Stefanidis
could have conducted discovery on this issue to substantiate his claim but chose not to or
found no evidence to support his contention. The Court is not required to assume such an
unsupported allegation is true. See Lujan, 497 U.S. at 887-88.
However, even assuming that the clock was not working properly, this fact is not
material because it does not show that Mr. Stefanidis’s termination was pretext. As
explained above, the relevant inquiry is whether a defendant’s proffered reason was
pretext for discrimination, not whether the adverse employment action was wise or based
on facts that ultimately were true. See e.g., McPherson, 457 F.3d at 216.
Finally, Mr. Stefanidis argues that he was treated differently from the assistant
manager, who he claims was responsible for the improper closing and was not disabled.
Pl.’s Opp. Br. 32-33, ECF No. 44. He contends that this assistant manager was merely
given a verbal warning and subsequently promoted. Id. at 33. In other words, he argues
that he was treated differently from a non-disabled, similarly situated employee and that
this disparate treatment creates a genuine issue of material fact as to whether Jos. A.
Bank’s reason for terminating him was a pretext for discrimination.
A plaintiff may raise an inference of discrimination when the employer treats the
plaintiff less favorably than an employee who is “similarly situated” “in all material
respects” and “outside his protected group.” Mandell v. Cnty. of Suffolk, 316 F.3d 368,
379 (2d Cir. 2003). For an employee to be “similarly situated,” he “must have a situation
16
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).
The assistant manager’s situation is not similar enough to Mr. Stefanidis’s
situation to sustain a disparate treatment claim. Mr. Stefanidis does not contest that the
assistant manager did not have any other disciplinary infractions. He also admits he had
a number of prior disciplinary incidents. Accordingly, whether she was treated
differently from him is not probative of whether Jos. A. Bank was motivated by
discrimination. See generally Padilla v. Harris, 285 F. Supp. 2d 263, 270-71 (D. Conn.
2003) (granting summary judgment in favor of the defendant because the possible
comparator individual had a “fundamentally different” disciplinary record and noting that
“[p]rior disciplinary problems may be sufficient to justify differential treatment of
otherwise similarly situated employees”); see also e.g., D’Cunha v. New York Hosp. Med.
Ctr. of Queens, No. 02-CV-5445(DLI)(LB), 2006 WL 544470, at *7 (E.D.N.Y. Mar. 6,
2006) (finding that different performance records showed that plaintiff was not similarly
situated with possible comparator and granting summary judgment in favor of the
defendant).
Moreover, to the extent that Mr. Stefanidis tries to shift blame onto the assistant
manager for improperly closing the store, such an argument cannot establish pretext. See
Taylor v. Polygram Records, No. 94 CIV. 7689(CSH), 1999 WL 124456, at *10
(S.D.N.Y. 1999) (“faulting others for, or otherwise rationalizing, problems legitimately
perceived by [plaintiff’s] employer does not establish pretext…”) (citing McLee v.
Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997)).
17
Accordingly, summary judgment must be granted on Mr. Stefanidis’s
discrimination claim based on his termination because no reasonable juror could
conclude that Jos. A. Bank was truly motivated by discrimination and that its legitimate
reason for his termination was pretext.
C. Hostile Work Environment (First Count)
Mr. Stefanidis claims that he was subject to a hostile work environment at Jos. A.
Bank because of his disability, in violation of the ADA and CFEPA. As with the
discrimination claims discussed above, hostile work environment claims brought under
the CFEPA and ADA are treated the same generally. See Martin v. Town of Westport,
558 F. Supp. 2d 228, 242 (D. Conn. 2008) (“Connecticut courts look to federal law for
guidance when analyzing CFEPA hostile work environment claims.”). Counsel has not
identified any dispositive differences between the two statutes that apply to this case;
thus, the Court will treat the claims under the ADA and CFEPA as the same.
Workplace harassment is legally “actionable when it creates a so-called hostile
work environment which is ‘so severely permeated with discriminatory intimidation,
ridicule, and insult that the terms and conditions of [plaintiff’s] employment were thereby
altered.’” Farina v. Branford Bd. of Educ., 458 F. App’x 13, 16-17 (2d Cir. 2011)
(quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)).5 Jos. A. Bank argues that
the Court should dismiss this claim because Mr. Stefanidis cannot show that he was
subject to severe and pervasive harassment or that such harassment had a connection to
5
The Second Circuit has not yet decided whether a hostile work environment claim exists under the ADA,
but several circuit courts have recognized such a cause of action. Farina, 458 F. App’x 13, 17 &n.2
(collecting cases); accord Robinson v. Dibble, 613 F. App’x 9, 12 n.2 (2d Cir. 2015). Courts allowing
hostile work environment claims under the ADA apply the same standards that apply to Title VII. See e.g.,
Dibble, 613 F. App’x at 12-13; accord Murphy v. BeavEx, Inc., 544 F. Supp. 2d 139, 150 (D. Conn. 2008)
(citation omitted). The Court need not decide whether such a claim exists, because if it does exist, summary
judgment is appropriate here.
18
his alleged disability. Def.’s Br. 26, ECF No. 37-1. It also argues that it has shown that
the Faragher/Ellerth defense applies. Id. at 28-29. Because the Court agrees that Mr.
Stefanidis cannot show that he was subject to severe and pervasive harassment, summary
judgment must be granted.
In determining whether an environment is hostile or abusive, the Court examines
the totality of the circumstances. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)
(“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking
at all the circumstances.”) (analyzing Title VII); see also Murphy v. BeavEx, Inc., 544 F.
Supp. 2d 139, 150 (D. Conn. 2008) (applying the Title VII standard to ADA claims).
Relevant considerations include “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. at 23. The plaintiff must also show that the harassment he
experienced was because of his disability. See Brennan v. Metro. Opera Ass’n, Inc., 192
F.3d 310, 318 (2d Cir. 1999) (“A plaintiff must also demonstrate that she was subject to
the hostility because of her membership in a protected class.”).
Mr. Stefanidis contends that he was subjected to a hostile work environment
because he was demoted upon his return to work after his tonsillectomy, asked to run two
stores and to train a new manager, asked to move a shelf on one occasion, and asked to
sign a document regarding his use of shipping codes by Mr. Staines when he was not
operating at “a hundred percent”. Def.’s Ex. D, Stefanidis Dep. 69:14-71:12, ECF No.
37-6. However, he admits that being asked to run two stores and train a new manager did
not relate to his alleged disability. Id. at 72:12-73:2. Thus, the only possible conduct that
19
could establish a hostile work environment claim is his demotion, moving a shelf, and the
document he signed regarding the shipping codes. Such conduct falls far short of the
kind that survives a summary judgment motion on a hostile work environment. See e.g.,
Fox v. Gen. Motors Corp., 247 F.3d 169, 179 (4th Cir. 2001) (affirming a jury’s finding
of a hostile work environment where plaintiff’s supervisors exposed him to physical harm
on numerous occasions and “constantly berated and harassed him” “in vulgar and profane
language” and “encouraged other employees to ostracize disabled workers” and
“prevent[ed] them from doing their assigned tasks by refusing to give them necessary
materials”); see also generally, Alfano, 294 F.3d at 374 (noting that to sustain a hostile
work environment claim, “incidents must be more than ‘episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.’ Isolated acts,
unless very serious, do not meet the threshold of severity or pervasiveness”) (citations
omitted).
The Court finds that no reasonable juror could conclude that Mr. Stefanidis was
subject to a hostile work environment. Accordingly, summary judgment must be granted.
D. Reasonable Accommodation Claim (First Count)
To the extent the Complaint raises a reasonable accommodation claim, that claim
is also dismissed. The ADA and CFEPA require an employer to make reasonable
accommodations for employees who have a known disability. See 42 U.S.C.
§12112(b)(5)(A); Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 414 (2008). An
essential aspect of a reasonable accommodation claim under both statutes is showing that
the employer had notice of the employee’s disability and that the disability required
accommodation. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008)
20
(“[A]n employer has a duty reasonably to accommodate an employee’s disability [under
the ADA]… if the employer knew or reasonably should have known that the employee
was disabled.”); Payne v. PSC Indus. Outsourcing, Ltd. P’ship, CIVIL ACTION NO.
3:13-CV-00355 (VLB), ___ F. Supp. 3d ___, 2015 WL 5797004, at *5 (D. Conn. Sept.
30, 2015) (noting that “Connecticut courts generally analyze ADA and CFEPA claims
under the same standard” and analyzing a reasonable accommodation under both statutes
in the same way) (citation omitted).
Generally, an employee has the responsibility of directly requesting an
accommodation from his employer. Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d
Cir. 2006) (“[G]enerally, ‘it is the responsibility of the individual with a disability to
inform the employer that an accommodation is needed.’”) (quoting 29 .C.F.R. §1630.9);
Felix v. New York City Trans. Auth., 154 F. Supp. 2d 640, 657 (S.D.N.Y. 2001) (“Courts
have… dismissed ADA claims where the plaintiff has failed to prove that she requested
an accommodation.”) (collecting cases). However, Mr. Stefanidis may also satisfy the
notice requirement if he can show that his disability was known or obvious, such that Jos.
A. Bank knew or reasonably should have known of his need for an accommodation. See
Brady, 531 F.3d at 135-36 (affirming a jury instruction enabling a jury to conclude that,
while an employee did not explicitly request an accommodation, plaintiff’s cerebral palsy
“manifested itself” in sufficiently obvious ways to place the employer on notice of his
disability and sustain a reasonable accommodation claim).
Mr. Stefanidis introduces no evidence indicating that he told any of his
supervisors that he was disabled or that he requested an accommodation for his tonsillitis
that Jos. A. Bank denied. His doctor’s note did not indicate he required an
21
accommodation. Pl.’s Ex. D, Letter dated Apr. 19, 2012, ECF No. 47. Although there is
evidence that Mr. Stefanidis told his supervisor that he was not at “a hundred percent”
and could not lift heavy items, he did not ask for an accommodation or otherwise indicate
that he needed an accommodation for these issues in the long-term.
Moreover, there was nothing inherently obvious in his condition or the nature of
the leave he took, for a tonsillectomy, indicating that he was disabled and required
accommodation. See e.g., MacEntee v. Int’l Bus. Machs., 783 F. Supp. 2d 434, 443-44
(S.D.N.Y. 2011) (holding in the motion to dismiss context that a plaintiff taking a “shortterm leave” for depression did not put her employer on notice that she had a disability
requiring accommodation).
In addition, to survive summary judgment on a reasonable accommodation claim,
the plaintiff must show that some accommodation exists that would have allowed him to
do his job with his disability. McBride, 583 F.3d at 97 (“The plaintiff bears the burdens
of both production and persuasion as to the existence of some accommodation that would
allow her to perform the essential functions of her employment…”) (citation omitted).
There is also no evidence in record of what Jos. A. Bank could have or should have done
to accommodate Mr. Stefanidis’s tonsillitis. Thus, Mr. Stefanidis cannot show that an
accommodation was possible.
For all of these reasons, to the extent that the Complaint makes out a reasonable
accommodation claim, it is dismissed.
E. Intentional Infliction of Emotional Distress (Third Count)
Mr. Stefanidis claims that Jos. A. Bank intentionally inflicted emotional distress
on him in the way it treated him. Jos. A. Bank argues that summary judgment is
22
appropriate on this claim because its conduct was not sufficiently extreme or outrageous
to sustain a claim of intentional infliction of emotional distress. Def.’s Br. 30, ECF No.
37-1. The Court agrees.
For Mr. Stefanidis to prevail on his intentional infliction of emotional distress
claim, he must show that a genuine issue of material fact exists with respect to all of the
following elements: (1) that Jos. A. Bank intended to inflict emotional distress or knew or
should have known that emotional distress was the likely result of its conduct; (2) that the
conduct was extreme and outrageous; (3) that Jos. A. Bank’s conduct was the cause of
Mr. Stefanidis’s distress; and (4) that the emotional distress he sustained was “severe.”
Appleton v. Bd. of Educ. of Stonington, 254 Conn. 205, 210 (2000) (citation omitted);
Muniz v. Kravis, 59 Conn. App. 704, 708-709 (Conn. App. Ct. 2000) (a plaintiff must
prove all four elements to prevail on an intentional infliction of emotional distress claim)
(citation omitted).
“Whether a defendant’s conduct is sufficient to satisfy the requirement that it be
extreme and outrageous is initially a question for the court to determine… Only where
reasonable minds disagree does it become an issue for the jury.” Carone v. Mascolo, No.
3:06cv01094 (DJS), 2007 WL 2318818, at *3 (D. Conn. Aug.14, 2007) (quoting
Appleton, 254 Conn. at 210) (alteration in original). Extreme and outrageous conduct
“exceeds ‘all bounds usually tolerated by decent society.’” Dollard v. Bd. of Educ. of
Town of Orange, 63 Conn. App. 550, 554 (Conn. App. Ct. 2001) (quoting Petyan v. Ellis,
200 Conn. 243, 254 n.5 (1986), superseded by statute on other grounds, Chadha v.
Charlotte Hungerford Hosp., 272 Conn. 776, 787, 793 n.21 (2005)). “‘Liability [for
intentional infliction of emotional distress] has been found only where the conduct has
23
been so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.’” Appleton, 254 Conn. at 210-11 (citation omitted). Conduct that is “merely
insulting or displays bad manners or results in hurt feelings” cannot be extreme and
outrageous for the purposes of an intentional infliction of emotional distress claim. Id. at
211 (citation omitted).
None of Jos. A. Bank’s conduct here can be said to be extreme and outrageous.
Jos. A. Bank had a reasonable basis to believe that Mr. Stefanidis violated company
policy on two occasions, that it clearly communicated the consequences of such
violations, and disciplined Mr. Stefanidis accordingly. Even if Jos. A. Bank was wrong
about whether the underlying conduct occurred or whether such conduct justified its
actions, it engaged in “routine employment actions,” which cannot sustain an intentional
infliction of emotional distress claim unless accompanied by additional egregious
conduct. See Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 195 (D. Conn. 2000) (“An
employer’s adverse yet routine employment action, even if improperly motivated, does
not constitute extreme or outrageous behavior when the employer does not conduct that
action in an egregious and oppressive manner.”) (citations omitted); Conge v. Sikorsky
Aircraft Corp., No. 3:05-cv-1650 (PCD), 2007 WL 4365676, at *10 (D. Conn. Dec. 11,
2007) (granting summary judgment on where plaintiff “made absolutely no showing that
[the defendant] treated him outrageously during his employment or termination”, even if
he was improperly terminated because of his disability); see also Tomby v. Cmty.
Renewal Team, Inc., No. 3:09-cv-1596 (CFD), 2010 WL 5174404, at *7 (D. Conn. Dec.
15, 2010) (complaint’s allegations that manager harassed and disciplined him, monitored
24
him closely and warned him about his performance did not state a valid intentional
infliction of emotional distress claim).
When Mr. Stefanidis signed the confession admitting that he misused the store
shipping codes, Mr. Staines warned him of the possible consequences of this violation,
which included termination or demotion. Def.’s Ex. D, Stefanidis Dep. 78:2-4, ECF No.
37-6. This conduct, without more, also cannot sustain a claim of intentional infliction of
emotional distress. See e.g., Emanuele v. Boccaccio & Susanin, No. CV 90-0379367S,
1992 WL 79823, at *3-4 (Conn. Super Ct. Apr. 10, 1992) (holding alleged conduct not
extreme and outrageous where at-will employee alleged that her employer made false
accusations regarding her work performance in order to deprive her of benefits and
compensation).
The interaction that comes the closest to possible misconduct is Mr. Stefanidis’s
claim that Ms. Callanan was upset when he told her about his surgery and called him
frequently when he was out of work recovering from his tonsillectomy. However, this
behavior is not “extreme and outrageous.” See Tomby, 2010 WL 5174404, at *7
(employer’s constant monitoring was not extreme and outrageous). Nor is there evidence
of any causal link drawn between Ms. Callanan’s alleged actions and Mr. Stefanidis’s
termination.
Mr. Stefanidis notes that an employer terminating an employee to avoid providing
worker’s compensation benefits has been found to be extreme and outrageous conduct.
Pl.’s Opp. Br. 42, ECF No. 44. However, there is no evidence that Jos. A. Bank
terminated Mr. Stefanidis for this reason and ample evidence indicating that he was
25
terminated for other reasons. Accordingly, summary judgment must be granted on Mr.
Stefanidis’s intentional infliction of emotional distress claim.
F.
Negligent Infliction of Emotional Distress (Second Count)
Finally, Mr. Stefanidis claims that Jos. A. Bank’s conduct can sustain a claim of
negligent infliction of emotional distress. To prevail on such a claim, Mr. Stefanidis
must produce evidence that creates a genuine question of material fact on all of the
following elements: “(1) the defendant’s conduct created an unreasonable risk of causing
the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the
emotional distress was severe enough that it might result in illness or bodily harm; and
(4) the defendant’s conduct was the cause of the plaintiff’s distress.” Carrol v. Allstate
Ins. Co., 262 Conn. 433, 444 (2003).
Connecticut law recognizes a claim for negligent infliction of emotional distress
in the employment context only where it is based on “unreasonable conduct of the
defendant in the termination process.” Morris v. Hartford Courant Co., 200 Conn. 676,
682 (1986); Perodeau v. City of Hartford, 259 Conn. 729, 749, 757 (2002) (holding that a
plaintiff cannot sustain a negligent infliction of emotional distress claim in the context of
a “continuing employment relationship”). “The mere act of firing an employee, even if
wrongfully motivated” will not sustain a negligent infliction of emotional distress claim.
See Parsons v. United Techs. Corp., 243 Conn. 66, 88-89 (1997). Instead, to survive Jos.
A. Bank’s summary judgment motion, Mr. Stefanidis must show that Jos. A. Bank acted
unreasonably in terminating him and that the distress he suffered as a result was
“reasonable in light of the defendant[’s] conduct.” Id.; Larobina v. McDonald, 274
Conn. 394, 410 (2005) (internal quotation marks and citation omitted).
26
Drawing all inferences in Mr. Stefanidis’s favor, no reasonable juror could
conclude that Jos. A. Bank’s conduct created an unreasonable risk of causing him
emotional distress. As noted above, in the context of the intentional infliction of
emotional distress claim, Ms. Callanan’s conduct is arguably the closest allegation in the
record of conduct that could lead to emotional distress. There is no record evidence
linking her conduct to Mr. Stefanidis’s termination. See generally Mody v. Gen. Elec.
Co., No. Civ. A. 3-04-CV-358(JC), 2006 WL 1168051, at*4 (D. Conn. Apr. 26, 2006)
(holding that the “termination process” does not begin “when an employer and employee
first encounter a conflict with each other”); see also e.g., Michaud v. Farmington
Community, No. CV010806951S, 2002 WL 31415478, at *4 (Conn. Super. Ct. Sept. 25,
2002) (granting summary judgment on a negligent infliction of emotional distress claim
where plaintiff failed to show a connection between the claimed offensive act and her
termination); Delise v. Metro-North R.R. Co., 646 F. Supp. 2d 288, 293 (D. Conn. 2009)
(granting summary judgment where plaintiff produced no evidence “concerning events
that occurred during the resignation process or once plaintiff terminated [his]
employment”) (citation and internal quotation marks omitted).
As noted above, the Court does not believe that Mr. Stefanidis has produced
record evidence indicating that the reason for his termination, failing to close the store
properly, was false or fabricated. But even if those reasons were false, his negligent
infliction of emotional distress claim would still fail. Falsely accusing an employee of
misconduct can sustain a negligent infliction of emotional distress claim, but not under
the circumstances in this case. See Battistoni v. Lakeridge Tax Dist., No.
LLICV075002223S, 2008 WL 2746080, at *4 (Conn. Super. Ct. June 17, 2008) (citation
27
omitted). “Cases in which [this] claim is based on allegations of falsity typically include
more unreasonable conduct than the false statement itself.” Tomby, 2010 WL 5174404,
at *5; see also generally Parsons, 243 Conn. at 88-89 (noting that the “wrongful”
termination of an employee will not sustain a negligent infliction of emotional distress
claim without more). Summary judgment is appropriate here because Mr. Stefanidis has
produced no evidence of any unreasonable conduct, other than his unsupported claim that
Jos. A. Bank’s reason for terminating him is false.
For all of these reasons, the Court must grant summary judgment on Mr.
Stefanidis’s negligent infliction of emotional distress claim.
IV.
CONCLUSION
For all of the foregoing reasons, Jos. A. Bank’s Motion for Summary Judgment,
ECF No. 37, is GRANTED. The Clerk is directed to enter judgment for Jos. A. Bank
and close the case.
SO ORDERED at Bridgeport, Connecticut this 2nd day of March 2016.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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