Pierro, Jr. v. Bimbo Foods, Inc.

Filing 46

ORDER granting 36 Motion for Summary Judgment. Please see attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 9/30/2017. (Chenoweth, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LOUIS PIERRO,
Plaintiff,
v.

BIMBO BAKERIES USA, INC.,
Defendant.

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Case No. 15-cv-580(RNC)

RULING AND ORDER
Plaintiff Louis Pierro brings this action alleging age
discrimination in hiring in violation of the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a60(a)(1).

Defendant Bimbo Bakeries USA, Inc. (“Bimbo”) has moved

for summary judgment.

Whether plaintiff must prove that his age

was the “but for” cause of the adverse action, as would be
necessary if the claim were brought under the Age Discrimination
in Employment Act, (“ADEA”), 29 U.S.C. § 621, see Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 1876 (2009), or may prevail by
showing that his age was a “motivating factor,” the standard
under the ADEA until the Supreme Court’s decision in Gross, has
not been authoritatively decided.

Judge Shea has predicted that

the Connecticut Supreme Court will continue to apply the more
lenient “motivating factor” standard to age discrimination claims
under the CFEPA.

See Weisenbach v. LQ Management, No. 3:13-cv-

1663(MPS), 2015 WL 5680322, at *7 (D. Conn. Sept. 25, 2015).
1

In

this case, assuming the “motivating factor” standard applies, the
evidence in the record is insufficient to sustain plaintiff’s
claim that the adverse action was motivated by the plaintiff’s
age.

Bimbo has provided a legitimate, nondiscriminatory

explanation for the adverse action, one that is well-supported by
the record, and plaintiff has not shown that the explanation is a
pretext for discrimination.

Accordingly, the motion for summary

judgment is granted.
I.

Background

The parties’ submissions show the following.

Plaintiff was

born in 1953 and worked in the “route sales industry” for
multiple food companies from 1972 to 2012.
15) ¶¶ 8-10.

Most recently, he worked for Hostess Foods from

2002 until 2012.1
77.

Am. Compl. (ECF No.

Pl.’s Resume, Cover Ltr. (ECF No. 40-1) at 76,

He was laid off in November 2012 when Hostess filed for

bankruptcy.
40) at 1.

Am. Compl. (ECF No. 15) ¶ 10; Pl.’s Opp’n (ECF No.
As a route sales representative, plaintiff was

responsible for delivery and sales of bakery products.
Dep. (ECF No. 40-1) at 74.

Lundy

The work required lifting boxes of up

to fifty pounds and communicating clearly with customers.
75.

Plaintiff was also a union steward for many years.

Id. at
Pl.’s

Dep. (ECF No. 36-2) at 37:23-25.
After plaintiff was laid off at Hostess he attended a job

1

Interstate Bakeries Corporation (“IBC”) owned Hostess Foods
until IBC became Hostess Brands in 2009.
2

fair and subsequently sought employment with Bimbo.

Between

January and June 2013, he applied for route sales representative
jobs with Bimbo through an online job application portal.

Id.

¶ 13; Pl.’s Local Rule 56(a)(2) Statement (ECF No. 40-7) ¶ 40.
His application contained a one-line resume (“TABLE TALK PIES
1974-1979 HOSTESS CAKE 1979-1982 DRAKES 1983-2002 IBC 2002-2012”)
and a short cover letter explaining that he had worked for forty
years in the industry.2
at 76, 77.

Pl.’s Resume, Cover Ltr. (ECF No. 40-1)

Plaintiff’s friend, Kevin O’Toole, who was well-known

in the industry, called Bimbo to recommend him.

Pl.’s Local Rule

56(a)(2) Statement (ECF No. 40-7) ¶ 33.
Plaintiff was interviewed at Bimbo for two route sales
representative positions.

The individuals responsible for

filling these positions at Bimbo, Brian Lundy and Jeannette
Depew, have stated that they were looking for three qualities in
a candidate: an entrepreneurial spirit, ability to sell, and
desire to grow the business.

Lundy Dep. (ECF No. 40-1) at 23:14-

18. Plaintiff was interviewed but he received no offer.3

2

He was

The cover letter stated in full: “Worked in bakery for 40
years, due to Hostess closing I am out of work as of 11/16/12.
Worked at Drakes Cakes for 22 years and IBC for another ten
years, previous to working at Drakes, I was employed at Table
Talk Pies, I have been employed as a salesman for all of the
companies I mentioned above. I have an excellent work ethic and
background.” Pl.’s Opp’n (ECF No. 40-1) at 77.
3
The record suggests that there were three available positions.
Jeanette Depew was hiring for one, and Brian Lundy was hiring for
two. Depew Dep. (ECF No. 40-3) at 19:15-17; Lundy Dep. (ECF No.
40-1) at 12:8-11. Mr. Pierro was not in consideration for Ms.
Depew’s position because she did not select his application from
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informed that “the company decided to go in a different
direction.”

Am. Compl. (ECF No. 15) ¶ 14.

He then learned that

the company had hired younger people for the jobs.

Id. ¶ 16.

Plaintiff did not seek other employment; instead he collected his
pension early and retired in July 2013.

Pl.’s Local Rule

56(a)(2) Statement (ECF No. 40-7) ¶¶ 8-10.
Plaintiff has stated that he suspects Bimbo hired the other
candidates “because they were younger than me.”
No. 36-2) at 30:14-16.

However, he has testified that no one

made any comments about his age.
31:12-20.

Pierro Dep. (ECF

Pierro Dep. (ECF No. 36-2) at

Plaintiff has also stated that it’s possible the

adverse action was motivated by his involvement in union
activities as a shop steward.

Id. at 37:18-38:22.

Plaintiff claims that he should have been hired because he
was one of the top sellers in his former route.

Mr. Lundy stated

that there is “usually a bidding process, and those with more
experience or seniority usually can bid on better routes.”
at 25:3-5; 59:25-60:4.

Id.

Thus, plaintiff’s sales record was not a

compelling indication of his sales skills.
Plaintiff also points to his on the job experience.

It is

the online portal. She testified that this was because she
“wasn’t that impressed” with the plaintiff’s application, given
the lack of detail included. Depew Dep. (ECF No. 40-3) at 60:1425. The plaintiff was considered for the other two positions
with Mr. Lundy. Lundy Dep. (ECF No. 40-1) at 20:13-18; id. at
46:4-47:25. However, Ms. Depew did interview the plaintiff as
part of a group interview. Lundy Dep. (ECF No. 40-1) at 5.
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undisputed he had enough experience to be considered for the job,
but so did the candidates who were hired.

Pl.’s Resp. (ECF No.

40) at 3 (Trevor Wright had 12 years’ experience); Lundy Dep.
(ECF No. 40-1) at 20:13-16; 31:1-18 (Nick Conklin had five years
of experience); id. at 43:12-23 (Edwin Nunez had sixteen years of
experience); Rodriguez Resume (ECF No. 40-1) at 103 (Angel
Rodriguez had over three years of experience).

Both parties

agree there is no linear relationship between amount of time on
the job and competence.

Lundy Dep. (ECF No. 40-1) at 58:4-7

(noting that a candidate with 43 years of experience would not
necessarily be more qualified than Mr. Pierro); Pierro Dep. (ECF
No. 36-2) at 17:13-18:4 (stating that he could do the job better
after a few months than other people who had been there longer).
Lundy and Depew have testified that the candidates who were
hired submitted better applications, did better in the interview
performance and had stronger references.

Mr. Lundy testified

that Nick Conklin’s references highly recommended him, saying,
“[h]e’s good. I would love to keep him, but I can’t.”
(ECF No. 40-1) at 36:8-13.

Lundy Dep.

Mr. Edwin Nunez “interviewed much

better” than the plaintiff and had extensive familiarity with the
route he would be hired to drive.

Id. at 43:22-44:10.

Mr. Angel

Rodriguez had previously worked closely with Mr. Lundy, so he did
not feel that it was necessary to bring Mr. Rodriguez in for a

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Id. at 48:25-49:24.4

second interview as he did for Mr. Pierro.

Trevor Wright was hired because he “came in with a very outgoing
attitude, talked safety.”

Depew Dep. (ECF No. 40-3) at 43:18-25.

The record establishes that plaintiff’s application was not
very detailed.

Ms. Depew stated that plaintiff provided only a

“bare” resume without any “detail in it,” and when there are
“that many candidates and that many resumes, you have to be
distinctive to have yourself stand out.”

Depew Dep. (ECF No. 40-

3) at 60:18-61:17.
Lundy and Depew have testified that when they contacted
others to gain information about the plaintiff (he provided no
references), they received negative feedback about him.

The

feedback specifically noted problems with his “overall work and
demeanor.”

Lundy Dep. (ECF No. 40-1) at 25:5-16.

Mr. Lundy

learned that there might be “some trouble” if plaintiff were
hired, and he was concerned about maintaining a productive work
environment.

Id. at 58:18-24 (“Basically, [I was told] to kind

of stay away from him. . . . It would be like having another shop
steward in the building and probably create some tension or
concerns.”); id. at 64:10-19 (“The concern was that he was a
troublemaker.

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Not that he was a union guy, that he was a

Though plaintiff claims he was subject to disparate treatment
in the interview process, because Angel Rodriguez had only one
interview, the record suggests that for one of the positions,
plaintiff also “skipped” the first interview round. Pl.’s Opp’n
(ECF No. 40) at 3; Lundy Dep. (ECF No. 40-1) at 47:14-25.
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troublemaker.”).

Regarding feedback from others, Ms. Depew has

testified, “I got some good.

I got some bad.

And really with

the amount of candidates we had, any bad kind of knocked him out
of the pool because we had so many.

So I got some negative

feedback from my shop stewards in the building that have worked
alongside Mr. Pierro in the market.”

Depew Dep. (ECF No. 40-3)

at 45:23.
Plaintiff did receive a positive reference from Mr. O’Toole,
Depew testified that O’Toole called “and really asked me to
consider him for the position.”
46:10-18.5

Depew Dep. (ECF No. 40-3) at

Mr. O’Toole stated that he “was only going to send

them [his] best guys.”

O’Toole Dep. (ECF No. 40-5) at 9:15-24.

According to Mr. O’Toole, plaintiff had never missed a day of
work in over thirty years and would always volunteer for more
work.

Id. at 10:19-23.

However, Mr. O’Toole never worked with

Mr. Pierro; he was simply a fellow union member and social
friend.

Def.’s Reply (ECF No. 41) at 15:9-16.

Lundy and Depew have testified that they were not impressed
with plaintiff’s interview responses.

Lundy stated, “I felt that

Lou seemed to feel like he was a shoe-in and was entitled and

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Mr. Lundy had a different experience with Mr. O’Toole: “The
only phonecall [sic] I got from Kevin O’Toole was a rather angry
one in which he explained that he was upset that we did not hire
Lou Pierro and that he was going to have to spend more time down
at the depot.” Lundy Dep. (ECF No. 40-1) at 14:24 (ostensibly
meaning that O’Toole would now have to spend more time and effort
working on labor relations).
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basically a guarantee for the role.”

Lundy Dep. (ECF No. 40-1)

at 22:22-23:18. Depew stated that the plaintiff seemed
“disinterested” and had a “laid back entitled persona, I guess,
because he’s been in the business so long he thought that he just
had an entitlement.”

Depew Dep. (ECF No. 40-1) at 40:25-41:5.

Lundy stated that plaintiff did not provide satisfactory answers
about his interest in growing the business.

Id. at 27:4-23.

Plaintiff’s own recommender, Mr. O’Toole, conceded that Mr.
Pierro was not interested in growing the business.

O’Toole Dep.

(ECF No. 40-5) at 11:8-14.
II.

Legal Standard

Summary judgment may be granted when there is no genuine
dispute as to any material fact, and the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

A

genuine issue of fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

court’s role is not to weigh the evidence but to determine
whether the evidence is sufficient to raise a genuine issue.

In

assessing the evidence, the court must review the record as a
whole, and give the nonmovant the benefit of all reasonable
inferences.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150–51 (2000).

Summary judgment should be granted “against

a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
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which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The

nonmoving party must provide admissible evidence and “may not
rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible.”

Gan v. City

of New York, 996 F.2d 522, 532 (2d Cir. 1993) (citations
omitted).

Conclusory allegations, conjecture and speculation are

insufficient to create a genuine issue for trial.

Kerzer v.

Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
III.

Discussion

Connecticut courts analyze employment discrimination claims
under the CFEPA using the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which
helps a plaintiff establish a case of discrimination through
inference by presenting “facts sufficient to remove the most
likely bona fide reasons for an employment action . . . .”

Tyler

v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992).
The analysis proceeds in three steps:
[A] plaintiff first bears the “minimal”
burden of setting out a prima facie
discrimination case, and is then aided by a
presumption of discrimination unless the
defendant proffers a “legitimate,
nondiscriminatory reason” for the adverse
employment action, in which event, the
presumption evaporates and the plaintiff must
prove that the employer’s proffered reason
was a pretext for discrimination.
Irizarry v. United Parcel Serv., Inc., No. 3:11-CV-1658
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(JCH), 2014 WL 1246684, at *11 (D. Conn. Mar. 24, 2014)(quoting
McPherson v. N.Y. City Dep’t of Educ., 457 F.3d 211, 215 (2d Cir.
2006).
Plaintiff has satisfied the minimal burden of presenting a
prima facie case.

He is a member of a protected class because at

the time of the alleged discrimination he was 59 years of age.
He was objectively qualified for the route sales representative
position.

He was denied a position.

And the denial occurred

under circumstances giving rise to an inference of
discrimination.

Bimbo hired younger applicants for the three

route sales representative positions and did not make an offer to
the plaintiff although he had more experience.
Bimbo has satisfied its burden of proffering a legitimate,
nondiscriminatory reason.

As discussed above, it explains that

the candidates who were hired had more than adequate experience,
submitted better applications, performed better in the
interviews, had stronger references and, unlike the plaintiff,
were not the subject of negative feedback.
Because Bimbo has met its burden, it is entitled to summary
judgment “unless the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination.
Specifically, plaintiff must demonstrate that the proffered
reason is merely a pretext or cover-up for age discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000).

He has not met this burden.
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Plaintiff states that the defendant’s explanation is merely
a pretext because his credentials were so superior to the
credentials of the persons selected that no reasonable person, in
the exercise of impartial judgment, could have chosen one or more
of the other candidates over him.

I disagree.

The evidence in

the record does not support a finding that plaintiff was
objectively a superior applicant.
experience in route sales.

Plaintiff relies on his long

It is undisputed, however, that the

nature of the position did not require extensive experience and
all the candidates who were hired were qualified.

A reasonable

jury could not find that plaintiff was objectively a better
candidate for the position just because he had more experience.
No other factors support a finding of pretext.

Plaintiff

has no evidence that suggests Bimbo’s explanation is unworthy of
credence.

See Bombero v. Warner-Lambert Co., 142 F. Supp.2d 196,

203 n.7 (D. Conn. 2000) (plaintiff may sustain burden of
demonstrating that employer’s explanation is a pretext by
pointing to weaknesses, implausibilities, inconsistencies or
contradictions in the explanation).

Plaintiff’s only

recommendation came from a friend, as opposed to a daily
supervisor.

He was the subject of negative feedback provided by

people in the industry; the successful applicants had only
positive recommendations.

Bimbo wanted people with an interest

in growing the business and, as far as it knew at the time,
plaintiff had no such interest, unlike the successful candidates.
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Because the evidence does not support a finding of pretext,
summary judgment is appropriate.
IV. Conclusion
Accordingly, the motion for summary judgment is hereby
granted.
So ordered this 30th day of September 2017.

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/s/ RNC
Robert N. Chatigny
United States District Judge

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