Percoco v. Lowes Home Centers, LLC.
ORDER granting 42 Motion for Summary Judgment. Please see attached memorandum of decision. The Clerk's Office is directed to enter a separate judgment in favor of Defendant and close this file. Signed by Judge Vanessa L. Bryant on 09/22/2016. (Thomas, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LOWE’S HOME CENTERS, LLC,
CIVIL CASE NUMBER:
September 22, 2016
MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
Plaintiff Vivian Percoco brings this employment discrimination action
against her former employer, Defendant Lowe’s Home Centers, LLC. She raises
claims for race and national origin discrimination in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a-60 et seq.; claims for
age discrimination in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et seq., and CFEPA; and claims for interference and
retaliation in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29
U.S.C. §§ 2601 et seq.1 Defendant moves for summary judgment on all claims. The
Court grants the motion and enters judgment in favor of Defendant.
Plaintiff also brought a discrimination claim under the Americans with
Disabilities Act of 1990. ECF No. 1 at ¶¶ 92–94. This claim was dismissed at the
pleading stage. ECF No. 31.
The following facts, which are undisputed unless otherwise noted, are drawn
from the record.2 Plaintiff is Hispanic, is of Puerto Rican descent, and was over the
age of forty at all relevant times. ECF Nos. 1 (Compl.) at ¶ 16; 37 (Answer) at ¶ 16;
see 42-9 (Pl. Depo.) at 129:16–21.
Plaintiff worked as the Human Resources
Manager for Defendant’s Danbury store from 2006 until 2013. ECF Nos. 1 (Compl.)
at ¶¶ 15, 19, 39; 37 (Answer) at ¶¶ 15, 19, 39; 42-10 (Jewell Depo.) at 12:15–19. Her
immediate supervisor in 2013 was Area Human Resources Manager Svetlana
Jewell née Baranova, who is neither Hispanic, Puerto Rican, nor over the age of
forty. ECF Nos. 1 (Compl.) at ¶ 21; 37 (Answer) at ¶ 21; 42-10 (Jewell Depo.) at 5:15–
20. Jewell’s immediate supervisor was Human Resources Director Luis Rivera,
who is Hispanic, is of Puerto Rican descent, and was over the age of forty in 2013.
Local Rule of Civil Procedure 56(a)1 requires “a concise statement of each
material fact” and each fact to be supported by admissible evidence. At several
points, Defendant fails to comply: Defendant fails to cite any admissible evidence,
see ECF No. 42-3 at ¶¶ 7, 38, 42; and Defendant sets forth sprawling paragraphs
containing numerous assertions of fact, see id. at ¶¶ 9, 24–25. These errors,
however, do not necessitate the denial of summary judgment because a jury trial
would be waste of resources. See Voccola v. Rooney, 136 F.Supp.3d 197, 201 n.1
(D. Conn. 2015) (granting summary judgment despite defendants’ failure to comply
with Local Rule of Civil Procedure 56(a)).
Plaintiff fairs no better. Local Rule of Civil Procedure 56(a)2 requires a party
opposing summary judgment to state “whether each of the facts asserted by the
moving party is admitted or denied.” Plaintiff, at various points, fails to admit or
deny facts and instead states that she has “no knowledge.” ECF No. 45-2 at ¶¶ 23,
28, 33–35, 41. The Court deems those facts admitted because “no knowledge” is a
noncognizable response. See Loc. R. Civ. P. 56(a)1. Plaintiff also denies two facts
but fails to support those denials with a citation to “(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,” as required by Local Rule of Civil Procedure 56(a)3. ECF No.
45-2 at ¶¶ 40, 49. The Court deems those facts admitted as well. See Loc. R. Civ.
ECF No. 42-2 (Rivera Aff.) at ¶¶ 2–3, 5.
Members of the Human Resources
Department, including Plaintiff, are not trained to investigate complaints of gender
discrimination and harassment. ECF No. 42-10 (Jewell Depo.) at 30:8–18, 35:3–9.
Given the potential for legal liability, Defendant’s Employee Relation Department
are specifically trained to investigate these claims. Id. at 35:10–18.
On March 31, 2013, Plaintiff sustained face and chest injuries from a car
accident. ECF No. 42-9 (Pl. Depo.) at 13:2–20. That night, she informed the night
manager of Defendant’s Danbury store that the car accident prevented her from
coming to work the following week. Id. at 15:13–16:10. A few days later, Plaintiff
also informed Jewell, and Jewell told Plaintiff “to take it easy and just keep in
contact with [Plaintiff’s] coordinator.” Id. at 16:11–25. Plaintiff used four paid sick
days, id. at 17:22–18:8; ECF No. 42-10 (Jewell Depo.) at 10:9–14, and never received
nor requested any type of FMLA documentation, ECF No. 42-9 (Pl. Depo.) at 18–21.
Plaintiff returned to work on Monday, April 8, 2013. Id. at 13:24–14:9.
The Friday evening before Plaintiff’s return, Kayla Fleming, a store
employee, emailed Store Manager Angelo Resso and Plaintiff.
ECF No. 42-5
(Email). Fleming’s email states, in relevant part, that “[Manager Samir Feratovic]
told me on multiple occasions that because he is a man and we are women that
men are superior to women in every way therefore he is above me.” Id. When
Plaintiff returned to work the following Monday, Resso informed Plaintiff that a
number of employees including Fleming had submitted written statements
concerning sexual harassment, but Resso did not provide any specific details.
ECF No. 42-9 (Pl. Depo.) at 19:4–20:2. Plaintiff read Fleming’s email that Monday
afternoon, id. at 22:5–7, and the following day Resso provided Plaintiff with the
three written complaints, id. at 20:10–12. The complainants alleged that Feratovic
had made statements that he does not listen to women, that woman are beneath
him, and that men are superior to women. ECF Nos. 6–8 (Written Statements). Lisa
LeBreque, a store employee, also complained to Plaintiff, but the parties dispute
whether this occurred on Monday or Tuesday. ECF No. 42-9 (Pl. Depo.) at 25:9–13.
On Tuesday, April 9, 2013, Plaintiff spoke with Feratovic, ECF No. 42-9 (Pl.
Depo.) at 34:2–5, but the parties dispute whether Plaintiff took a written statement
from Feratovic, compare id. at 105:9–15, with ECF No. 42-10 (Jewell Depo.) at 81:2–
6 (“Percoco had explicitly stated . . . that she did not collect a statement from
[Feratovic].”). Feratovic admitted that the complaints were accurate. ECF No. 429 (Pl. Depo.) at 35:5–10. He further stated that he should not joke that way because
women are “mostly emotional and sensitive.” Id. at 44:6–7. Plaintiff believed that
Feratovic was just “joking around.” Id. at 45:12–15. Plaintiff also thought that she
“stopped the behavior” by telling Feratovic that he “couldn’t really be friendly with
his subordinates,” id. at 35:17–22, 112:18–20, and she blamed the incident on
Feratovic’s national origin, id. at 31:25–32:1 (“[I]t’s his personality. I’m just saying
that’s German.”). But on April 13, one of the complainants informed Plaintiff that
Feratovic retaliated against her. ECF No. 42-9 (Pl. Depo.) at 125:17–21.
Plaintiff informed Jewell of the complaints of gender discrimination a week
after Plaintiff first learned of them. ECF No. 42-9 (Pl. Depo.) at 105:20–22. On the
following day, Jewell told Rivera because members of the Employee Relation
Department, not the Human Resources Department, are specifically trained to and
charged with investigating claims of gender discrimination and harassment. ECF
No. 42-10 (Jewell Depo.) at 30:8–18, 35:3–9; 35:10–18.
In light of the problems
caused by Plaintiff’s unsupervised investigation, Rivera ordered Jewell to look into
the issue, and Jewell learned that one of the complainants intended to call
Defendant’s hotline because the claims of discrimination went unabated. Id. at
Rivera also tasked Jewell with ascertaining why Plaintiff waited to
immediately report the incident after returning to work, as Plaintiff was required to
do, and Plaintiff said she believed that she had addressed the complaints herself.
ECF No. 42-10 (Jewell Depo.) at 31:14–32:25. Rivera then decided to terminate
Plaintiff’s employment for failing to immediately report the incident, and Jewell
agreed. Id. at 74:22–75:8. On April 25, 2013, Jewell informed Plaintiff that she was
being fired because she failed to promptly notify Jewell of the complaints of gender
discrimination after Plaintiff learned of those complaints when she returned to
work. ECF No. 42-9 (Pl. Depo.) at 117:3–17. Defendant replaced Plaintiff with a
female employee who was over the age of forty, but the record does not
demonstrate whether the replacement was younger, Hispanic, or Puerto Rican.
ECF No. 42-10 (Jewell Depo.) at 44:7–45:10.
Defendant concedes that the
replacement was neither Hispanic nor Puerto Rican. ECF No. 42-1 (Mem.) at 11.
Plaintiff believes that the failure to discharge Resso shows race, national
origin, and age discrimination, as well as FMLA retaliation. ECF No. 42-9 (Pl. Deop.)
at 131:1–5. Resso is white and younger than Plaintiff, id. at 128:15–18, but the
record does not indicate whether Resso is Puerto Rican. Resso was not in the
Human Resources Department, is not a human resources professional, and has no
reporting relationship to Jewell and Rivera. ECF No. 42-10 (Jewell Depo.) at 16:2–
17:12. Resso received one complaint of discrimination on Friday evening, and he
reported the incident the following Monday. ECF No. 42-9 (Pl. Depo.) at 19:14–15,
117:22–24. According to Jewell, Resso was not disciplined because a less-thanfive-day delay in reporting was not inappropriate given that Plaintiff, his supervisor,
would be returning to work on the following Monday. ECF No. 42-10 (Jewell Depo.)
at 14:16–15:1, 44:2–3.
Plaintiff believes that the failure to discharge Michael Velez, Defendant’s
Derby Store Human Resources Manager, illustrates age discrimination as well as
FMLA retaliation. ECF No. 42-9 (Pl. Depo.) at 128:22–24. Velez is both Hispanic
and of Puerto Rican descent but younger than forty. ECF No. 42-11 (Velez Depo.)
at 23:14–24. In May 2013, Velez received a complaint that a male store manager
used the “f” word when scolding a male employee. Id. at 28:18–19, 57:11–15; ECF
No. 42-10 (Jewell Depo.) at 56:8–13. The complaint was not based on any claim of
discrimination. ECF No. 42-10 (Jewell Depo.) at 73:1–10. Velez informed Jewell of
the alleged incident two or three days later. ECF No. 42-11 (Velez Depo.) at 63:17–
Velez received a final warning, the last disciplinary step before being
discharged, for failing to immediately report the incident. ECF No. 42-10 (Jewell
Depo.) at 72:4–7.
Plaintiff also believes that she was the victim of age discrimination because
another unidentified store manager was allegedly fired six months before Plaintiff
was terminated. ECF No. 42-9 (Pl. Depo.) at 141:15–142:25. But other than vague
rumor, the record contains no evidence either delineating or substantiating this
allegation. Plaintiff further testified that her claim for age discrimination was based
on the fact that she and another employee over the age of forty generally felt
uncomfortable around Jewell and that Jewell treated them with condescension. Id.
Plaintiff cannot remember any specifics as to why she felt
uncomfortable around Jewell, and Plaintiff does not recall Jewell ever making any
age-related comments to her or any other employee. Id. at 127:15–19, 128:9–11.
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 genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court
is required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any evidence in the
record that could reasonably support a jury’s verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted).
A plaintiff opposing summary judgment “cannot defeat the motion by relying
on the allegations in [her] pleading . . . or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty
of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citation omitted).
summary judgment stage of the proceeding, [a plaintiff is] required to present
admissible evidence in support of her allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., 2004
WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (citing Gottlieb, 84 F.3d at 518); see
Martinez v. Conn. State Library, 817 F.Supp.2d 28, 37 (D. Conn. 2011). A plaintiff
opposing summary judgment must produce more than “a ‘scintilla of evidence’”—
that is, the evidence sufficient for “‘a jury to properly proceed to find a verdict for
the party producing it, upon whom the onus of proof is imposed.’” Fincher v.
Depository Trust & Clearance Co., 604 F.3d 712, 726–27 (2d Cir. 2010) (quoting
Anderson, 477 U.S. at 251–52).
Race and National Origin Discrimination Claims
Title VII prohibits employment discrimination on the basis of race, color,
religion, sex, and national origin.
42 U.S.C. § 2000e-2(a)(1).
proscribes employment discrimination based on race and national origin. Conn.
Gen.Stat. 46a-60(a)(1). The statutes employ slightly different language but are read
coextensively. State v. Commission on Human Rights and Opportunities, 211
Conn. 464, 470 (1989). The claims are evaluated under the three-part, burdenshifting standard set forth by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Preston v. Bristol Hosp., 2016 WL 1253872, at *1
(2d Cir. Mar. 31, 2016); Vogel v. CA, Inc., 2015 WL 7428928, at *2 (D. Conn. Nov. 20,
2015) (“Title VII and CFEPA race and national origin discrimination claims are
analyzed under identical legal standards.”).
A plaintiff must first show: “(1) that [she] belonged to a protected class;
(2) that [she] was qualified for the position [she] sought; (3) that [she] suffered an
adverse employment action; and (4) that the adverse employment action occurred
under circumstances giving rise to an inference of discriminatory intent.” Abrams
v. Dep’t of Pub. Safety, 764 F.3d 244, 251–52 (2d Cir. 2014). Once a plaintiff makes
such a showing, “the burden shifts to the employer to come forward with a
legitimate, nondiscriminatory reason for the adverse employment action.”
Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012). If the employer cites a proper
explanation, the plaintiff must show pretext. Ruiz v. Cnty. of Rockland, 609 F.3d
486, 492 (2d Cir. 2010). “Pretext may be demonstrated either by the presentation
of additional evidence showing that the employer’s proffered explanation is
unworthy of credence, or by reliance on the evidence comprising the prima facie
case, without more.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir.
1994) (internal quotation marks and citations omitted). The ultimate question on
summary judgment is whether “the employee’s admissible evidence [ ] show[s]
circumstances that would be sufficient to permit a rational finder of fact to infer
that the employer’s employment decision was more likely than not based in whole
or in part on discrimination.” Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d
Cir. 2014) (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)).
Defendant does not dispute that the record contains sufficient evidence of a
prima facie claim of race and national origin discrimination. ECF No. 42-1 (Mem.)
Defendant instead adduces this nondiscriminatory reason for
terminating Percoco’s employment: instead of promptly notify her supervisor
about the discrimination claims, Percoco launched her own inquest, exacerbating
Defendant’s liability exposure. Id. at 11–12. Plaintiff argues that this explanation
is pretext, not that Defendant failed to meet its burden of proof. See ECF No. 45-1
at 23–26. The issue is thus whether Plaintiff’s admissible evidence would permit a
rational finder of fact to infer discriminatory motivation. It would not.
Plaintiff contends the following “evidence” demonstrates pretext: (1) her
good-faith effort to resolve the incident without involving her supervisor; (2) her
lack of prior disciplinary issues; (3) LHC’s failure to engage in progressive
discipline; (4) a replacement who was neither Hispanic nor Puerto Rican; and (5) a
store manager who was allegedly subjected to the same workplace standards and
engaged in comparatively serious conduct but who was not fired and was neither
Hispanic nor Puerto Rican. ECF No. 45-1 at 24–26.
Her first four pieces of “evidence” are insufficient to survive a motion for
Plaintiff’s rationalizations for conduct prohibited by her
employer are immaterial. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.
1997) (ruling that defendant entitled to summary judgment where plaintiff offered
only “disputations [that] were rationalizations for his deficiencies rather than
demonstrations of any genuine issue of material fact to be tried”).
Plaintiff’s lack of prior disciplinary issues and Defendant’s failure to engage in
progressive discipline may be harsh, but the severity of the punishment alone does
not suggest that the reasons for firing her were unworthy of belief or that she was
the victim of race or national origin discrimination. See Kaplan v. Multimedia
Entm’t, Inc., 2008 WL 686774, at *7 (W.D.N.Y. Mar. 10, 2008) (“While the
consequence of termination for the violation of the driving policy may have been
harsh, plaintiff has offered no proof of retaliatory animus or evidence of pretext.”);
but see Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 81 (2d Cir. 2015) (Chin,
J. dissenting) (relying on district court precedent ruling that “harsh punishment
coupled with positive employment record supports finding of pretext”). And even
assuming that this type of evidence could demonstrate pretext, her “evidence”
lacks support in the cited record and thus cannot defeat summary judgment. See
Koonce v. Gaylord Hosp., Inc., 2015 WL 4603414, at *6 (D. Conn. July 30, 2015) (“A
party's bald assertion, completely unsupported by evidence, is not sufficient to
overcome motion for summary judgment.”).
Finally, Defendant’s admission
concerning the replacement’s race and national origin may be relevant, but this
admission alone cannot defeat summary judgment. See Blanke v. Rochester Tel.
Corp., 36 F.Supp.2d 589, 597 (W.D.N.Y. 1999) (“Replacement by a person of a
different race may suffice to make out the fourth element of a prima facie case
under Title VII, but without additional evidence of discriminatory intent, it is
insufficient at the summary judgment stage.”).
Plaintiff’s claims for race and national origin discrimination thus depend on
whether she can identify a similarly situated employee of a different race or national
origin who was treated differently from her. But evidence concerning Resso does
not raise a question of fact for the jury. A similarly situated employee must be
subject to the same workplace standards and engage in comparably serious
conduct. See Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Here no
reasonable jury could find the store manager to be similarly situated. See 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.”).
Plaintiff and the store manager were not subject to the same workplace
standards because they had different jobs and job duties. See Reyes v. New York
State Office of Children & Family Servs., 109 F. App’x 466, 467 (2d Cir. 2004)
(affirming dismissal of discrimination claim on summary judgment because the
plaintiff and comparator “had a totally different job and a totally different set of
responsibilities”). Plaintiff, who worked in Human Resources, was specifically
tasked with reporting discrimination claims. Resso, on the other hand, was not in
the Human Resources Department, was not a human resources professional, and
had no reporting relationship to Jewell and Rivera.
In addition to being subject to different workplace standards, Resso did not
engage in comparatively serious conduct. Resso reported the claims of gender
discrimination in less than one full business day; Plaintiff waited approximately a
week before reporting the incident.
Another key difference lies in the
circumstances underlying the failure to report. Resso waited to report the incident
because it occurred late in the workday on Friday and because the person to whom
he was obligated to report the incident was not present and was scheduled to
return to work on Monday, the following business day. Resso did nothing in the
interim. Plaintiff, on the other hand, conducted her own investigation in addition
to failing to report the incident. She did this despite lacking the training to conduct
discrimination investigations; indeed, she was specifically prohibited from doing
so. And during her discussion with Feratovic, Feratovic made a blatantly sexist
remark. Rather than reporting the incident at that point, Plaintiff shrugged off
Feratovic's sexist remark characterizing it as a “cultural misunderstanding”—that
is, she stereotyped all German men as sexist and washed her hands of the whole
affair by instructing Feratovic not to befriend subordinates. So, not only did she
fail to report the incident, she made the situation worse: the claimants added a
retaliation claim to their arsenal.
Given these material differences between the
conduct of Plaintiff and Resso, no reasonable juror would find them to be
comparable. Without a comparator, Plaintiff lacks sufficient evidence to raise a
triable question of fact. The Court thus enters summary judgment in favor of
Defendant on Plaintiff’s federal and state claims for race and national origin
Age Discrimination Claims
The ADEA prohibits an employer from discriminating against an employee
“because of” her age.
29 U.S.C. § 623(a)(1).
discrimination in employment.
CFEPA likewise proscribes age
Conn. Gen.Stat. 46a-60(a)(1).
Both claims are
evaluated under the burden-shifting framework from McDonnell-Douglas.
Rubinow v. Boehringer Ingelheim Pharm., Inc., 496 F. App’x 117, 118 (2d Cir. 2012).
At the first step, the plaintiff must produce evidence tending to show: “(1) that she
was within the protected age group, (2) that she was qualified for the position,
(3) that she experienced adverse employment action, and (4) that such action
occurred under circumstances giving rise to an inference of discrimination.”
Gorzymki v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010) (citation
Defendant moves for summary judgment on the basis that Plaintiff cannot
point to evidence showing that she was fired occurred under circumstances giving
rise to discrimination. ECF No. 42-1 at 15–18. Plaintiff identifies the following
“evidence”: (1) her replacement, who was over the age of forty; (2) water-cooler
talk about an unnamed human resources manager who was terminated or let go;
(3) her and her colleague’s subjective feelings of discrimination; (4) Resso, the
store manager, who waited the weekend before notifying the proper supervisor;
and (5) Velez, a human resources manager, who reported an incident involving the
“f” word two or three days later. ECF No. 45-1 at 15–19. Based on this evidence,
a reasonable juror could not infer circumstances suggesting age discrimination.
Defendant first argues that Plaintiff cannot produce evidence that her
replacement, who was also over the age of forty, was significantly younger than
Plaintiff. ECF No. 42-1 at 16. Plaintiff contends that Defendant failed to put forth
evidence that Plaintiff’s replacement was not substantially younger. ECF No. 45-1
at 15. This dispute concerns the standards governing summary judgment and thus
is easily resolved. When a nonmoving party bears the burden of proof, “the burden
on the moving party may be discharged by ‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Defendant has
discharged its duty by showing that Plaintiff, who has been afforded a full and fair
opportunity for discovery, has not produced any evidence concerning her
replacement’s age. Plaintiff cannot defeat summary judgment by relying on her
failure to confirm unsubstantiated hunches during discovery. See Henry v. Metro.
Transp. Auth., 2014 WL 4783014, at *13 (S.D.N.Y. Sept. 25, 2014) (“Plaintiff, after
failing to request these materials during discovery, cannot now point to their
absence as evidence. . . .”).
A similar problem arises with Plaintiff’s second piece of evidence—that is,
some unnamed employee was the victim of age discrimination. Defendant argues
that “[t]hat assertion is based on rumor or gossip, not admissible evidence.
Moreover, by the plaintiff’s own admission, she has no idea of the circumstances
or reasons that this unidentified Store Human Resources Manager, according to
the scuttlebutt, purportedly was either removed or terminated by [Jewell].” ECF
No. 42-1 at 18. Plaintiff does not explicitly challenge this argument, merely referring
to this “evidence” in her opposition. ECF No. 45-1 at 19 (“Plaintiff also testified
that another older HR manager was terminated or let go by [Jewell] about six
months before she was.”). Unsubstantiated gossip cannot defeat survive summary
judgment. Crawford v. Dep’t of Investigation, 324 F. App’x 139 (2d Cir. 2009)
(affirming award of summary judgment in favor of defendant, where plaintiff
presented testimony from uncorroborated source, as well as “speculation, hearsay
and other inadmissible rumor, and conclusory allegations”).
discharged its burden by pointing to the absence of evidence, and Plaintiff fails to
counter with any appropriate evidence.
Plaintiff also purports to raise an inference of discrimination by relying on
her and her colleague’s subjective feelings of age discrimination. ECF No. 45-1 at
at 18–19. But this too does not constitute evidence. See Bickerstaff v. Vassar Coll.,
196 F.3d 435, 456 (2d Cir. 1999) (ruling that the plaintiff's “feelings and perceptions
of being discriminated against are not evidence of discrimination”). Importantly,
Plaintiff testified that she cannot identify any specific incident suggesting age
discrimination and cannot remember any time when Jewell made comments
relating to her or another employee’s age. This “evidence” of discrimination thus
amounts to nothing.
only two remaining pieces
discrimination: her alleged comparators.
ECF No. 45-1 at 16–18. But for the
reasons stated above, no reasonable juror could find Resso to be a relevant
comparator. This leaves only Velez, who also worked as a Human Resources
Manager and was thus subject to the same workplace standards as Plaintiff. But
no reasonable juror could find that Velez engaged in comparatively similar
The incidents underlying each employee’s failure to report bear no
similarity. Velez failed to report a single incident involving a cuss word. Plaintiff,
on the other hand, failed to report multiple claims of discrimination. Plaintiff also
had a greater duty to report because the underlying incidents involved serious
legal liability, the rationale underlying Defendant’s reporting policy.
misguided attempt to ameliorate the problem was ineffective: Feratovic was
unyielding, making made a sexist remark during the conversation in which she
confronted him with the complaint.
Plaintiff and Velez also engaged in different conduct in the interim. Velez
failed to take action; Plaintiff continued to violate work policy by launching her own
investigation, making a bad situation worse by creating a retaliation claim. Finally,
Plaintiff waited a week before reporting the incident; Velez waited only two or three
days before doing so. Given these material discrepancies, no reasonable juror
could compare the two. Plaintiff can point to no other evidence suggesting an
inference of age discrimination.
Plaintiff also cannot show that Defendant’s supported, age-neutral
explanation was pretext. Under the ADEA, Plaintiff must ultimately show but-for
causation.3 See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 167 (2009). Under
CFEPA, this Court applies the motivating-factor test. See Asante-Addae v. Sodexo,
Inc., 2015 WL 1471927, at *23 (D. Conn. Mar. 31, 2015), aff'd, 631 F. App’x 68 (2d Cir.
2016). Under either standard, Plaintiff lacks sufficient evidence to warrant a trial.
She fails to show a prima facie claim of discrimination, so she cannot demonstrate
pretext by relying on her prima facie case. She also fails to offer any evidence that
Defendant’s explanation for terminating her employment was pretext.
evidence of pretext—that is, rationalizations for her conduct and unsupported
allegations that she was treated harshly—fails for the reasons explained above.
The Court enters summary judgment on the age discrimination claims.
Plaintiff, who is represented by counsel specializing in employment law,
appears to be unaware of the legal standard articulated by Supreme Court over
seven years ago. See ECF No. 45-1 at 9 (“The plaintiff can satisfy this burden by
demonstrating that his race, age, and/or national origin as well as defendant’s
retaliation was a motivating or substantial factor in the adverse employment
actions she faced.”).
The FMLA provides an “eligible employee” with the right to take twelve
weeks of unpaid leave for, inter alia, “a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). The FMLA prohibits employers from interfering with this
right and from retaliating against an employee who asserts this right. 29 U.S.C.
§ 2615. Interference and retaliation claims are two district claims for relief. See
Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004).
Plaintiff asserts both interference and retaliation claims. The basis for her
interference claim is this: “Defendant failed to notify the plaintiff whether the leave
had or had not been designated as FMLA leave within five (5) days of when the
defendant had enough information to determine whether the plaintiff’s leave was
FMLA qualifying.” ECF No. 1 at ¶ 72.
Plaintiff was indeed entitled to prompt
notification, 29 C.F.R. § 825.300(b)(2), but Defendant’s failure to notify her does not
constitute the denial of a benefit necessary to state an interference claim unless
the failure “affected the employee’s leave, benefits, or reinstatement,” Sarno v.
Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 162 (2d Cir. 1999).
Defendant argues that the interference and retaliation claims should be
addressed together because the lack of notice prevented Plaintiff from invoking
FMLA’s anti-retaliation protections. ECF No. 42-1 at 20. In other words, the claims
rise and fall together because Plaintiff cannot demonstrate the prejudice necessary
to state an interference claim if her retaliation claim fails. Plaintiff does not address
this argument and states that the failure to notify her “prejudiced her,” citing only
to her complaint alleging “[b]y failing to notify and designate plaintiff’s leave as
FMLA-qualifying leave, plaintiff was prejudiced.” ECF No. 45-1 at 20–21 (citing ECF
No. 1 at ¶ 76). In the absence of any explanation as to why Defendant’s reading of
Plaintiff’s interference claim is incorrect, the Court addresses only the retaliation
claim, ruling that the interference claim fails because the retaliation claim fails.
FMLA retaliation claims have been analyzed under the McDonnell-Douglas
test, but the proper legal standard has not been resolved. See Graziadio v. Culinary
Inst. of Am., 817 F.3d 415, 429 n.7 (2d Cir. 2016). The Court applies McDonnellDouglas because Plaintiff does not argue for the application of the test articulated
in Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). ECF
No. 45-1 at 6, 22. Under this standard, a prima facie claim requires proof of the
following elements: “1) [she] exercised rights protected under the FMLA; 2) [she]
was qualified for his position; 3) [she] suffered an adverse employment action; and
4) the adverse employment action occurred under circumstances giving rise to an
inference of retaliatory intent.” Potenza, 365 F.3d at 168.
Defendant argues that Plaintiff cannot point to evidence showing that she
was fired under circumstances giving rise to an inference of retaliatory intent. ECF
No. 42-1 at 22. And while Plaintiff fails to raise the argument, the temporal proximity
between her FMLA-qualifying leave and the termination of her employment is
sufficient to suggest a retaliatory motive at the prima facie stage. See Weichman
v. Chubb & Son, 552 F.Supp.2d 271, 289 (D. Conn. 2008) (ruling that employee’s
termination approximately one month after exercising her rights to medical leave
protected under FMLA was sufficient in temporal proximity to establish causal
connection). Defendant, however, correctly notes that temporal proximity alone is
insufficient to survive a motion for summary judgment at the pretext stage. See
id.; cf. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (“The
temporal proximity of events may give rise to an inference of retaliation for the
purposes of establishing a prima facie case of retaliation under Title VII, but without
more, such temporal proximity is insufficient to satisfy appellant's burden to bring
forward some evidence of pretext.”).
There is some dispute among courts concerning the legal standard
governing the pretext stage of an FMLA retaliation claim. See Matye v. City of New
York, 2015 WL 1476839, at *18 (E.D.N.Y. Mar. 31, 2015) (“The causation standard
that Plaintiff must satisfy at the pretext stage is currently an open question in this
circuit.”). The Court applies the claimant-friendly, motivating-factor test because
it does not alter the outcome.
The only evidence not already discussed that
Plaintiff can offer to support her claim of pretext is that Defendant’s stated reason
for terminating her employment was failing to report an incident while on leave.
But, as the parties do not dispute, this was not the stated reason for disciplining
Plaintiff. This was the reason: the delay between April 8—that is, the day Plaintiff
learned of the complaint after returning to work—and April 15—that is, the day
Plaintiff reported the incident to Jewell—frustrated Defendant’s anti-discrimination
initiates by preventing the immediate input of the Employee Relations Department
investigators. Compare ECF No. 42-3 at ¶ 25, with ECF No. 45-2 at ¶ 25. Because
there is no evidence that Plaintiff was being fired for a reporting delay attributable
to her FMLA-qualifying leave, her retaliation claim fails as a matter of law. The
Court thus enters summary judgment for Defendant on Plaintiff’s interference and
The Court grants Defendant’s motion for summary judgment on all
remaining claims. The Clerk’s Office is directed to enter a separate judgment in
favor of Defendant and close this file.
IT IS SO ORDERED.
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 22, 2016.
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