Montague v. Sodexco, Inc. et al

Filing 68

ORDER. For the reasons set forth in the attached, the 54 Motion for Summary Judgment and the 58 Motion for Summary Judgment are GRANTED. The Clerk is directed to close this case. Signed by Judge Michael P. Shea on 10/6/2017. (Taykhman, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

BARBARA MONTAGUE,
No. 3:15-cv-00972 (MPS)
Plaintiff,
v.
SODEXCO, INC. AND YALE-NEW HAVEN
HOSPITAL, INC.,
Defendants.

RULING ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Barbara Montague filed this action against Defendants Sodexo, Inc. (“Sodexo”)1
and Yale-New Haven Hospital, Inc. (“YNHH”) after Montague was terminated from her
employment with Sodexo and from her placement at YNHH. Montague brings claims for
discrimination on the basis of race, color, sex, religion, and marital status in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Count One); age discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.
(Count Two); discrimination based on the filing of a workers’ compensation claim in violation of
Conn. Gen. Stat. § 31-290a (Count Three); disability discrimination in violation of the Americans
with Disabilities Act (“ADA”) (Count Four); intentional infliction of emotional distress (Count
Five); and discrimination in violation of the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. § 46a-51 et seq. (Count Six). (ECF No. 20.)

1

Sodexo notes that it has been incorrectly identified in this litigation as “Sodexco, Inc.” Sodexo
Operations, LLC, a wholly-owned subsidiary of Sodexo, Inc., is the payroll entity that employed
Plaintiff. (ECF No. 58-2 at 1 n.1.)
1

On November 21, 2016, Sodexo and YNHH filed motions for summary judgment. (ECF
Nos. 54, 58.) Defendants contend that Montague’s claims, to the extent they are based on any
events that occurred prior to Montague’s departure for medical leave, are time-barred; that the
undisputed evidence in the record shows Montague’s termination was due to Sodexo’s decision to
downsize by eliminating 134 positions; that Montague failed to meet her burden in producing
evidence that her termination was on the basis of her race, color, religion, marital status, sex, age,
claimed disability, or receipt of workers’ compensation benefits; and that Montague failed to put
forth evidence to support a hostile work environment claim.
For the reasons set forth below, Defendants’ motions are GRANTED.
I.

Factual Background
The following facts are taken from Defendants’ Local Rule 56(a)(1) Statements and the

exhibits. 2 See Sodexo’s Local Rule 56(a)(1) Statement, ECF No. 58-2; YNHH’s Local Rule
56(a)(1) Statement, ECF No. 57. Because Montague did not file a Statement of Undisputed
Material Facts pursuant to Local Rule 56(a)(2), the material facts set forth in Defendants’ Local
Rule 56(a)(1) statements and supported by the evidence will be deemed admitted. L.R. 56(a)(1)
(“Each material fact set forth in the Local Rule 56(a)1 Statement and supported by the evidence
will be deemed admitted (solely for purposes of the motion) unless such fact is controverted by
the Local Rule 56(a)2 Statement required to be filed and served by the opposing party in
accordance with this Local Rule . . . .). See also Burke v. Town of East Hartford, No. 14-CV-662
(JCH), 2016 WL 8709993, at *1 n.3 (D. Conn. Mar. 4, 2016) (“[Plaintiff] failed to file the requisite
Local Rule 56(a)(2) Statement among his papers opposing the defendants’ Motion. By operation

2

Montague included with her opposition papers only a single exhibit, a four-page affidavit. (ECF
No. 60-1; ECF No. 61-1.)
2

of Local Rule 56(a)(1), this failure has the effect of ‘deem[ing] admitted’ ‘all material facts set
forth in [the moving party’s Local Rule 56(a)(1) Statement] and supported by the evidence.”). The
facts are undisputed unless otherwise stated.
A. Montague Becomes a General Manager at Sodexo
Montague, who is an African-American woman and Pentecostal, and was born in 1958,
began working for Sodexo in 2004. (ECF No. 56-2 at 2; ECF No. 57 ¶¶ 1-2; ECF No. 58-2 ¶¶ 12.) In May 2007, Montague became the Operations Manager at Sodexo client YNHH, assigned to
work in YNHH’s Service Response Center (“SRC”), which handles maintenance requests within
the hospital. (ECF No. 57 ¶ 3, 5; ECF No. 58-2 ¶ 8; ECF No. 58-3 at 24, 26; ECF No. 58-8 at 910; ECF No. 60-1 ¶ 3.) The position was a promotion from Montague’s previous Sodexo position
at Stamford Hospital and came with a pay increase. (ECF No. 58-2 ¶ 9; ECF 58-3 at 24, 32.)
Montague was employed by Sodexo and assigned to perform services at YNHH through its vendor
contract with Sodexo. (ECF No. 56-1 at 25; ECF No. 57 ¶ 4.)
After she had been Operations Manager for approximately one month, in June 2007
Montague was asked and agreed to fill in as the General Manager for YNHH’s SRC, while Sodexo
looked for candidates to fill the position on a more permanent basis. (ECF No. 58-2 ¶ 10; ECF No.
58-3 at 31.) Montague filled in as the General Manager for several months, overseeing service
provision by employees at YNHH. (ECF No. 58-2 ¶ 11; ECF No. 58-3 at 34-36, 38.) Montague
testified at her deposition that she “didn’t know what [she] was doing as ops manager, so [she]
certainly didn’t know what [she] was doing as GM” (ECF No. 58-3 at 35), and that she felt “totally
green” and left “in the GM position by [her]self.” (ECF No. 58-3 at 51.)
In her affidavit, Montague states that she “received no training” for her position as
Operations Manager, or for when she filled in as General Manager. (ECF No. 60-1 ¶¶ 3-4.)

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Montague testified at her deposition, however, that she completed all of the classes required to
become a General Manager. (ECF No. 58-3 at 41.) She also testified that during the 11-month
period in which she was filling in as General Manager, she did not have any complaints about
being treated unfairly. (ECF No. 58-3 at 41.) Montague did not request additional training from
Defendants while filling in as General Manager. (ECF No. 58-2 ¶ 11; ECF No. 58-3 at 35-37.)
After filling in as General Manager for several months, in March 2008 Montague was
offered, and she accepted, the position of General Manager 2, a promotion that resulted in another
pay increase. (ECF No. 58-2 ¶ 12; ECF No. 58-3 at 37-38, 42-43; ECF No. 58-8 at 12-13.)
Montague took classes as part of her training as a General Manager 2. (ECF No. 58-2 ¶ 13; ECF
No. 58-3 at 40.) Montague testified that she believes she completed all of the classes that were
required to use the service tracking application she used in her position. (ECF No. 58-2 ¶ 13; ECF
No. 58-3 at 43.) Montague testified that she also received training regarding use of the application
and Sodexo’s procedures from a Senior Manager and a Customer Service Manager in the Express
Services Division of which the SRC was a part. (ECF No. 58-2 ¶¶ 14-15; ECF No. 58-3 at 44-49;
ECF No. 58-8 at 4 ¶ 12.) A Senior Manager in the Express Services Division, “went over some
things with” Montague, though Montague testified that “just showing someone something doesn’t
mean that they are trained.” (ECF No. 58-4 at 1; ECF No. 58-8 at 4 ¶ 12.)
Montague never complained to anyone at Sodexo that she was not receiving sufficient
training; Montague testified that she “did not realize that – you don’t realize what you are missing
until you see someone else who has something that you don’t have.” (ECF No. 58-2 ¶ 16; ECF
No. 58-4 at 2-3.)
B. A YNHH Employee Allegedly Makes Racially Discriminatory Comments
Regarding Montague’s Marriage

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In December 2009, Montague married Harry Nicholls, a white man who was employed by
YNHH as a System Director. (ECF No. 56-1 at 3; ECF No. 57 ¶ 7; ECF No. 60-1 ¶ 5.) According
to Montague, in or around December 2009 or January 2010, David Wurcel, a Vice President at
YNHH and Nicholls’ supervisor, told Nicholls that he had “ruined his career by marrying a black
woman,” and that “[b]lack women are to be played with, not married.” (ECF No. 58-4 at 46, 4950, 59; ECF No. 60-1 ¶ 6.) Montague also testified that Wurcel’s “characterizations of [Montague]
were negative,” which bothered Nicholls. (ECF No. 56-1 at 50.) Montague testified that Wurcel
made these comments around the time Montague and Mr. Nicholls returned from their honeymoon,
and that Montague “knew that when Harry and [she] got married, his boss didn’t like it.” (ECF
No. 58-3 at 12.) Montague states in her affidavit that she knew of these statements because her
husband relayed them to her. (ECF No. 60-1 ¶ 7.) Montague does not contend that anyone at
Sodexo expressed agreement with Wurcel’s comments; she testified, rather, that people at Sodexo
congratulated her on her marriage to Nicholls. (ECF No. 58-3 at 13.) Montague provides no
evidence that anyone at Sodexo knew of Wurcel’s comments.
Montague testified that in January 2010, while at a holiday party, she reported Wurcel’s
comments to Kevin Myatt, the senior vice president of Human Resources at YNHH. (ECF No. 584 at 26-27; ECF No. 60-1 ¶ 8.) Montague testified that she did not recall that Myatt said anything
in response, but that he “may have said something along the lines [of], [‘]there is a new sheriff in
town.[’]” (ECF No. 58-4 at 27.) Montague testified that she did not ask Myatt to elaborate, and
hoped that his statement meant that comments like Wurcel’s would not be tolerated. (ECF No. 584 at 28.)
C. Montague’s Receives Notice of Low Performance Scores at Work in her 2010 and
2011 Performance Reviews

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YNHH administered employee engagement surveys annually to gauge how YNHH
employees felt about their managers. (ECF No. 58-2 ¶ 17; ECF No. 58-3 at 16; ECF No. 58-8 at 3
¶ 5.) Beginning in or around 2010, Montague’s employee engagement surveys were low. (ECF
No. 58-2 ¶ 17; ECF No. 58-3 at 16.)
In Montague’s performance review for the 2011 fiscal year, dated October 9, 2011,
Montague received ratings of “Meets Expectations” or “Above Expectations” for all of her
performance goals, with the exception of one goal, for which she received an “Outstanding” rating.
(ECF No. 58-8 at 15-27.) Under the performance goal titled “Building a Diverse Team,” the
“Manager Comments” stated, “Barb’s efforts in this area must be reflected in the upcoming
hospital employee satisfaction scores.” (ECF No. 58-2 ¶ 18; ECF No. 58-4 at 31; ECF No. 58-8 at
22.) Under “Managing Employee Performance and Development (GM),” the “Manager
Comments” noted, “Barb needs to continue to focus on items that will help to increase employee
satisfaction levels within her department. Currently, our scores are the lowest in the support service
division and she needs to maintain vigilant [sic] on determining ways to increase employee
satisfaction.” (ECF No. 58-4 at 31-32; ECF No. 58-8 at 24.) Under “Manager Overall Comments,”
the review stated that Montague “must keep in the forefront her relationships with her staff to
assure their satisfaction is reflected in the employee satisfaction survey.” (ECF No. 58-2 ¶ 18; ECF
No. 58-8 at 27.) Montague testified that in 2011, it was made clear to her that employee satisfaction
surveys were very important. (ECF No. 58-4 at 32.)
D. Montague Takes FMLA Leave After Her Husband Passes Away
Montague’s husband, Nicholls, passed away on February 11, 2012, three days before he
and Montague were scheduled to finalize their divorce. (ECF No. 56-1 at 64; ECF No. 58-2 ¶ 53;
ECF No. 58-6 at 1; ECF No. 59 at 25; ECF No. 60-1 ¶ 9.) In February 2012, Montague saw a

6

social worker in relation to the emotional distress she suffered after her husband’s death, which
was the sixth death in her family in six months. (ECF No. 58-3 at 8; ECF No. 59 at 13-14.)
On February 13, 2012, Wurcel sent an email to YNHH employees informing them of
Nicholls’s death. (ECF No. 58-9 at 43-44; ECF No. 60-1 ¶ 10.) The email did not identify
Montague as his widow, though it referenced Nicholls’ four children. (ECF No. 58-9 at 43-44;
ECF No. 60-1 ¶ 10.) The email attached an obituary for Nicholls, which listed Montague among
Nicholls’s close family and friends. (ECF No. 56-2 at 39.) Montague states in her affidavit that
“Wurcel attempted to control [her] husband’s funeral arrangements, not acknowledging
[Montague] as Mr. Nicholls’ wife, following his death, continuing his pattern of discrimination for
[her] husband as well as [for Montague]. He also used his disapproval of [Montague’s] biracial
marriage in decisions relating to [her] status at work,” although she does not specify how. (ECF
No. 60-1 ¶ 12.) Montague states that “[a]s a result of these acts by Mr. Wurcel in his capacity as
an officer of [YNHH], and Sodexo’s acceptance and implementation of his wishes, [she] suffered
great emotional distress and had to take a medical leave pursuant to the [FMLA].” (ECF No. 60-1
¶ 13.)
Later, while reviewing a document from her employee file that had been printed out for
her when she was checking in for an exam at YNHH, Montague saw that her marital status was
listed in YNHH’s employee records system as “divorced” rather than “widowed,” despite the fact
that Nicholls had passed away shortly before the couple’s divorce was finalized. (ECF No. 59 at
3; see also ECF No. 58-9 at 48; ECF No. 60-1 ¶ 11.) Montague handwrote corrections on the form,
dated September 27, 2012, including to make clear that she was widowed rather than divorced,

7

and that Sodexo was her employer rather than YNHH. (ECF No. 56-1 at 69-70; ECF No. 58-9 at
48.)3
On March 21, 2012, weeks after her husband passed away, Montague took a leave of
absence pursuant to the Family Medical Leave Act (“FMLA”). (ECF No. 58-2 ¶ 21; ECF No. 584 at 6; ECF No. 58-8 at 3 ¶ 6.) During Montague’s FMLA leave, Sodexo employee Melvin
Dockery filled Montague’s prior role of managing the YNHH SRC. (ECF No. 58-2 ¶ 22; ECF No.
58-8 at 3 ¶ 6.) Dockery began working for Sodexo in or around 1997 and had served as a General
Manager in the SRCs for other Sodexo clients. (ECF No. 58-2 ¶ 23; ECF No. 58-8 at 3 ¶ 7.) In
March 2012, Dockery was between assignments at Sodexo, and was on Sodexo’s Healthcare
Resource Bench. (ECF No. 58-2 ¶ 23; ECF No. 58-8 at 3 ¶ 7.) Dockery is a white male who was
married and in his early forties in 2012. (ECF No. 58-2 ¶ 23; ECF No. 58-6 at 29; ECF No. 58-8
at 3 ¶ 7.)
Montague testified that while she was out on FMLA leave, she had a conversation with
Teresa Fripp, a YNHH employee who told Montague “that [Dockery] was going to be taking
[Montague’s] job, and that [Sodexo and YNHH] were going to use the employee opinion survey
as the reason they are getting rid of [Montague].” (ECF No. 56-1 at 18; ECF No. 58-4 at 10.)
Montague testified that she did not ask Fripp for the basis of that statement, and did not ask anyone
at Sodexo or YNHH whether the statement was true. (Id.) Montague further testified that she
learned from Fripp that Wurcel had said, in a meeting with YNHH Vice President of
Administration Stephen Merz, which Wurcel “did not want . . . on the calendar,” that YNHH
“needed to get rid of” Montague, and that YNHH “wanted Sodexo to terminate [her] while [she]

3

YNHH does not dispute it was Montague’s employer for the purposes of the motion for summary
judgment. (ECF No. 55 at 3 n.5.)
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was out on FMLA.” (ECF No. 56-1 at 51-52.) In her affidavit, Montague states that while on leave,
she “received a phone call from a hospital liaison for Sodexo who explained, specifically, that Mr.
Wurcel wanted to discuss terminating [her] for discriminatory reasons.” (ECF No. 60-1 ¶ 14.)4
E. Montague Returns from FMLA Leave and is Transitioned from her Role as
General Manager
On or around May 2 or 3, 2012, Montague returned from FMLA leave and to a General
Manager position. (ECF No. 57 ¶ 28; ECF No. 58-2 ¶ 24; ECF No. 58-4 at 7, 9; ECF No. 58-8 at
3 ¶ 6.) Montague testified that she came to think that she had not received sufficient training when
she saw “how knowledgeable Melvin Dockery was” after she returned from her FMLA leave, and
when Dockery told her that he had “received a host of training from the company.” (ECF No. 584 at 2-4.) Montague also testified that although she was not invited to participate in conference
calls, meals, and meetings with management, Dockery was while serving as a General Manager.
(ECF No. 58-4 at 48-49.) At that point, Montague did not complain to anyone at Sodexo regarding
her concern, though she asked Dockery to share some of the things that he had learned with her.
(ECF No. 58-4 at 3.)
On May 29, 2012, Sodexo received a notice from YNHH, requesting that Montague be
removed from the General Manager position. (ECF No. 58-2 ¶ 25; ECF No. 58-8 at 4 ¶ 11; ECF
No. 58-8 at 7.) The letter, sent by Merz and addressed to Art Mesiti, then Sodexo’s Regional
Resident District Manager and Montague’s supervisor, stated in relevant part:
In follow-up to our most recent conversations, this letter is to notify you of the
Hospital’s desire to reorganize the leadership structure within the Hospital’s
Service Response Center served by Sodexo management . . . . To meet operation
requirements and to address ongoing issues regarding employee satisfaction and
financial performance, we would like to request that the General Manager Position
be replaced and substituted for another Sodexo staff member. Barbara Nicholls may

4

It is not clear whether Fripp is the hospital liaison to whom Montague refers in her affidavit.
9

maintain her role as a leader within the SRC but not as the primary role as the
General Manager.
(ECF No. 58-8 at 7.)
On May 31, 2012, Montague acknowledged receipt of a “Constructive Counseling Notice”
from Sodexo. (ECF No. 58-8 at 40.) The notice stated that “[f]or the 3rd consecutive year, the SRC
Department results distributed in January, under Barbara’s leadership, were unacceptable &
amongst the lowest in the facility[.]” (ECF No. 58-8 at 40.) The notice also stated that “[f]urther
disciplin[e] up to & including termination may occur” if the “employee d[id] not demonstrate and
maintain satisfactory performance or conduct[.]” (Id.) Montague testified that she met with Mesiti
in May 2012 in connection with the notice. (ECF No. 58-4 at 24.)
On June 22, 2012, YNHH employees Merz and Carlos Lourenco met with Montague to
inform her of YNHH’s decision to remove her from the General Manager position. (ECF No. 57
¶ 35; ECF No. 58-2 ¶ 26; ECF No. 58-3 at 14-16; ECF No. 60-1 ¶ 17.) Montague testified that at
the June 22, 2012 meeting, Montague was informed that she “had done a very good job,” and “was
well-respected at the hospital,” but that her employee engagement scores were “among the lowest”
for the past three annual surveys, such that “there couldn’t be a fourth.” (ECF No. 58-3 at 15-16.)
Montague was informed that Dockery would be transitioning into the role of General Manager of
the SRC, and that YNHH wanted Montague to instead manage the transition of St. Raphael’s
Hospital (“St. Ray’s”) into the SRC process, beginning July 1, 2012. (ECF No. 57 ¶ 38; ECF No.
58-2 ¶ 26; ECF No. 58-3 at 15; ECF No. 60-1 ¶ 17.) Lourenco and Merz informed Montague that
the St. Ray’s transition would last approximately six months, i.e., until January 1, 2013, and that
there would be other projects for Montague after that period. (ECF No. 58-2 ¶ 26; ECF No. 58-3
at 15.)

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Montague subsequently met with Mesiti again, who informed Montague that her
assignment handling the St. Ray’s Hospital transition would be temporary, and would end in six
months. (ECF No. 58-2 ¶ 27; ECF No. 58-4 at 11-12.) Montague told Mesiti that she understood
from her conversation with YNHH representatives that there would be other projects for Montague
to work on following the St. Ray’s Hospital transition. (ECF No. 58-4 at 12, 18.) Mesiti informed
Montague that after the temporary assignment ended, if she “didn’t find another position, [she]
would be let go.” (ECF No. 58-4 at 18, 20.) Montague testified that she did not tell Mesiti that she
felt she was being treated unfairly, or make any complaints about discrimination, harassment, or
retaliation, because she “felt like he was part of the group that[] [was] doing this to” Montague.
(ECF No. 58-4 at 13.)
After her conversation with Mesiti, Montague spoke with Georgia Colquhon-Pryce, a
Sodexo Human Resources Director, who informed Montague that after the temporary assignment,
Montague “would have two weeks to find another position.” (ECF No. 58-2 ¶ 30; ECF No. 58-4
at 13-15, 19, 20; ECF No. 60-1 ¶ 18.) Montague testified that she did not tell Colquhon-Pryce that
she felt she was being treated unfairly because Montague “felt like [Colquhon-Pryce] was aware
of what was going on in the transition . . . .” (ECF No. 58-4 at 14.) Montague testified that it was
her impression that Colquhon-Pryce would get clarification on whether there would be projects
for Montague after the temporary assignment was scheduled to end, but Montague did not follow
up with Colquhon-Pryce regarding the issue. (Id. at 20.)
F. Montague Manages the St. Ray’s Transition and Receives Her 2012 Performance
Review
On July 1, 2012, Montague began her temporary assignment of handling the St. Ray’s
Hospital transition. (ECF No. 58-2 ¶ 32.) In this role, Montague’s title as General Manager at
Sodexo, as well as her compensation, remained the same as in her previous role. (ECF No. 58-2 ¶

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32; ECF No. 58-4 at 17.) However, Montague testified that she felt that she was being supervised
more closely than other employees, including by “having to create daily reports,” having to meet
with a supervisor daily, and having to print out her calendar around this time. (ECF No. 58-3 at 7.)
On July 31, 2012, Mesiti emailed Montague to inform her that her position managing the
St. Ray’s transition had been extended until March 2013. (ECF No. 58-2 ¶ 33; ECF No. 58-9 at
5.)
In Montague’s performance review for the 2012 fiscal year, under the goal of “Developing
Our People (GM),” Sodexo Human Resources Manager Cassandra Douglas noted, “continued
development needed in team building per low employee engagement scores . . . .” (ECF No. 58-8
at 30.) With respect to the goal of “Service and Value (GM),” Montague herself noted, “Employee
engagement needed to be improved.” (Id. at 32.) Montague electronically signed the 2012
performance review on November 9, 2012, to confirm her receipt of the evaluation. (Id. at 37.)
On September 4, 2012, Douglas had a call with Montague to help Montague find another
position after completing the St. Ray’s transition. (ECF No. 58-2 ¶ 34; ECF No. 59 at 9-10.)
G. Montague Takes Medical Leave and Settles a Workers’ Compensation Claim with
Sodexo
One of Montague’s duties in her role managing the St. Ray’s Hospital transition was data
entry. (ECF No. 56-1 at 26-27; ECF No. 60-1 ¶¶ 19-20.) On December 5, 2012, after conducting
data entry for five consecutive days, Montague reported suffering a shoulder injury to Sodexo.
(ECF No. 58-2 ¶ 35; ECF No. 58-4 at 22-23.) Beginning on December 7, 2012, Montague took a
leave of absence related to the injury, after a doctor told her that she hurt her shoulder as a result
of the data entry assignment and diagnosed her with a herniated disc. (ECF No. 58-4 at 23; ECF
No. 58-8 at 3 ¶ 8; ECF No. 60-1 ¶ 21.) Sodexo initially expected Montague to return from leave
on April 15, 2013, but her leave was extended, with a return date of July 17, 2013. (ECF No. 58-

12

8 at 3 ¶ 8; ECF No. 58-9 at 7; ECF No. 58-9 at 9.) The letter extending her leave specified that
Montague had exhausted her FMLA Job-protected leave in March 2013, such that Sodexo could
no longer guarantee that Montague would be reinstated to the same or an equivalent position upon
returning. (ECF No. 58-9 at 9.)
Montague never returned to work after December 5, 2012. (ECF No. 58-6 at 12; ECF No.
56-1 at 36.) Montague filed for Workers’ Compensation on December 31, 2012, listing Sodexo as
her employer. (ECF No. 56-3 at 2; ECF No. 60-1 ¶ 22.) Montague began receiving Workers’
Compensation benefits in connection with the injury in December 2012. (ECF No. 59 at 1-2.)
Montague remained unable to return to work, and was “completely unable to work,” until
May 2016. (ECF No. 58-2 ¶ 44; ECF No. 58-4 at 25-26; ECF No. 58-9 at 23.) In or around July
2016, Montague entered into a Stipulation for Full and Final Settlement (“the Stipulation”) related
to her workers’ compensation claim against Sodexo. (ECF No. 58-2 ¶ 56; ECF No. 58-9 at 50-56.)
The Stipulation contained the following provision:
This agreement specifically releases all of the Claimants’ rights pursuant to CGS §
31-290a. The agreement specifically does not release or waive any rights and claims
pursuant to federal or state statutes, common law or regulations, as they pertain to
work place discrimination, negligence, breach of contract, misrepresentation or
infliction of emotional distress as claimed in Claimant’s federal court action against
Respondent Sodexo, Inc. and Yale New Haven Hospital entitled: Montague v.
Sodexo, 3:15-cv-00972-MPS.
(ECF No. 58-9 at 54.)
H. Montague’s Temporary Assignment Ends and Montague is Terminated After She
Fails to Secure a New Position with Sodexo
On January 23, 2013, while Montague was on medical leave, Douglas emailed Montague,
informing Montague of an opening for a Sodexo SRC Operations Manager 1 at YNHH, and asking
that Montague advise of her interest in applying for the position. (ECF No. 58-2 ¶ 38; ECF No.
58-9 at 12.) Douglas wrote, “I realize that you are on an LOA, but wanted to share the information

13

regarding the posting below. Please advise of your interest in posting for the position.” (ECF No.
58-9 at 12.) The posting specified that the “Operations Manager of the [SRC] w[ould] report to
the General Manager of the [SRC] and w[ould] oversee approx[imately] 20 employees.” (ECF No.
58-9 at 12.) On March 2, 2013, over a month after the email was sent, Montague responded to
Douglas, writing that she had “not been checking [her] email on a regular basis.” (ECF No. 58-9
at 11; ECF No. 59 at 1.) Montague wrote, “I am interested in returning to work but have probably
missed this opportunity. I am still having pain…” (Id.)
Montague did not apply for any positions with Sodexo while in her temporary role as
manager of the St. Ray’s transition or while on FMLA leave, including following her call or email
correspondence with Douglas. (ECF No. 58-2 ¶ 34; ECF No. 58-4 at 21.) Montague testified that
her “goal was to finish the project of the Hospital of Saint Ray’s transition” and that she “was
hoping that [she] wouldn’t have to” look for another job, “based on what [YNHH] had said[,] that
there would be other projects to work on.” (ECF No. 58-4 at 21.)
In March 2013, while Montague was out on medical leave, Montague’s St. Ray’s
assignment ended as scheduled. (ECF No. 58-2 ¶ 39; ECF No. 58-8 at 3 ¶ 9.) Rather than
terminating Montague’s employment, Sodexo kept her on its payroll and on its Healthcare
Resource Bench, though her payroll file had been transferred to the Healthcare Resource Bench in
August 2012, before Montague left for medical leave. (ECF No. 58-2 ¶ 39; ECF No. 58-8 at 3 ¶
9.)
On March 4 or 5, 2013, Colquhon-Pryce sent Montague a letter saying that Sodexo would
be eliminating its Healthcare Resource Bench by August 2, 2013, and that if Montague wished to
remain employed by Sodexo after that date, she had to find another position within Sodexo. (ECF
No. 58-2 ¶ 40; ECF No. 58-4 at 52-53; ECF No. 58-9 at 15-17.) The transmission letter sent by

14

Colquhon-Pryce further stated, “Please note that your current approved leave of absence will not
change. If you are able to return to work when your leave of absence expires, we will conduct a
reasonable search for a new resource assignment within your region. If we cannot locate another
assignment, you will be provided two weeks with pay to secure a new position within Sodexo.”
(ECF No. 58-9 at 15.) Sodexo’s letter further provided, “Given these changes, it is important for
you to prepare for potential layoff by updating your resume, reviewing open positions within the
organization, and posting to those positions for which you are qualified.” (ECF No. 58-9 at 17.)
In a follow-up letter dated July 31, 2013, Sodexo informed Montague that her anticipated
last date of employment would be August 2, 2013 as a result of Sodexo’s decision to eliminate the
Healthcare Resource Bench. (ECF No. 58-2 ¶ 42; ECF No. 58-4 at 54; ECF No. 58-9 at 19.) On
August 2, 2013, Sodexo terminated the employment of all 134 employees on its Healthcare
Resource Bench, including Montague. (ECF No. 58-2 ¶ 43; ECF No. 58-8 at 4 ¶ 10; ECF No. 601 ¶ 23.) Montague states in her affidavit that she was terminated because she “was on leave and
filed a workers’ compensation claim.” (ECF No. 60-1 ¶ 23.)
I. Montague Files Charges with the CHRO and EEOC
At no point during her employment with Sodexo did Montague make a complaint of
discrimination, harassment, or retaliation. (ECF No. 58-4 at 26.) Montague testified that this was
because Montague believed “Sodexo was involved with [YNHH] according to what Teresa Fripp
told” her. (Id.)
On January 28, 2014, Montague filed a complaint with the Connecticut Commission on
Human Rights and Opportunities (“CHRO”) and the Equal Employment Opportunities
Commission (“EEOC”). (ECF No. 58-2 ¶ 46; ECF No. 58-9 at 26-41; ECF No. 60-1 ¶ 24.)
According to Douglas, Sodexo first learned about Montague’s claims of discrimination when

15

Sodexo received notice of Montague’s CHRO filing. (ECF No. 58-2 ¶ 7; ECF No. 58-8 ¶¶ 3-4.)
Montague received “Right to Sue” letters from the CHRO on March 27, 2015, with respect to
Sodexo and April 29, 2015, with respect to YNHH, and from the EEOC on April 6, 2015, with
respect to Sodexo and April 30, 2015, with respect to YNHH. (ECF No. 20 at 16-20; ECF No. 601 ¶¶ 25-26.) Montague filed this lawsuit on June 24, 2015. (ECF No. 1.)
J. Sodexo’s Employee Handbook
Sodexo’s March 2009 Employee Handbook (“the March 2009 Handbook”) states that
employment at Sodexo is “terminable at any time by either you or us, with or without cause and
with or without notice. This Handbook is not a contract of employment.” (Id. ¶ 3; ECF No. 59-1
at 6.) The March 2009 Handbook further states, under “Equal Employment Opportunity,”
[Sodexo] will provide equal employment opportunity without regard to race, color,
religion, . . . age, marital status, . . . gender, . . . or any other basis protected by law.
This commitment extends to all aspects of employment, including but not limited
to hiring, promotion, transfer, job assignments demotion, recruiting, advertising or
solicitation, compensation, training, layoff or termination, participation in social
and recreational function and use of employee facilities.
(ECF No. 58-2 ¶ 4; ECF No. 59-1 at 10.) The March 2009 Handbook also states,
Any employee who in any way discriminates against or harasses a fellow employee,
a customer, or any other person may be subject to immediate termination of
employment. Sodexo will not retaliate against an individual because he or she
opposes any unlawful practice, files or participates in any investigation of an
internal claim or a formal charge of discrimination, or participates in any action
under any anti-discrimination law . . . . If you believe that you have been
discriminated against or harassed, you are encouraged to use the Promise of Respect
and Fair Treatment and notify: [your manager, your manager’s manager, or a
Sodexo Human Resources manager].
(ECF No. 58-2 ¶ 5; ECF No. 59-1 at 11.)5

5

Sodexo states in its Local Rule 56(a)(1) Statement that “[t]he March 2009 Sodexo Employee
Handbook further contains procedures for filing a complaint regarding discriminatory or harassing
conduct.” (ECF No. 58-2 ¶ 6.) However, it appears that these procedures are primarily described
in the section titled, “Raising a Concern through the Promise of Respect and Fair Treatment,”
16

II.

Legal Standard
“Summary judgment is appropriate only if the movant shows that there is no genuine issue

as to any material fact and the movant is entitled to judgment as a matter of law.” Tolan v. Cotton,
134 S.Ct. 1861, 1866 (2014) (internal quotation marks and citations omitted). The moving party
bears the burden of demonstrating that no genuine issue exists as to any material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). If the moving party carries its burden, “the opposing
party must come forward with specific evidence demonstrating the existence of a genuine dispute
of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). On summary
judgment a court must “construe the facts in the light most favorable to the nonmoving party and
must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v.
Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013).
It is “well-settled in this circuit that a party may not, in order to defeat a summary judgment
motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn
testimony.” Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572-73 (2d
Cir. 1991). However, a subsequent affidavit may create a material issue of fact if the affidavit
“amplifies or explains, but does not merely contradict, [the] prior testimony.” Rule v. Brine, Inc.,
85 F.3d 1002, 1011 (2d Cir. 1996).
III.

Discussion
A. Title VII Claim
Title VII prohibits an employer from discriminating against an employee because of the

employee’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). In Count One,

which Sodexo did not include in the record. (See ECF No. 59-1 at 7, 10 (referencing the section
on raising a concern through the “Promise of Respect and Fair Treatment,” located on page 23 of
the March 2009 Handbook).)
17

Montague brings Title VII claims on the grounds that Defendants discriminated against her on the
basis of race and color, religion, sex, and marital status.6 “A plaintiff may establish a claim of
disparate treatment under Title VII either (1) by showing that he has suffered an adverse job action
under circumstances giving rise to an inference of discrimination on the basis of race, color,
religion, sex, or national origin, or (2) by demonstrating that harassment on one or more of these
bases amounted to a hostile work environment.” Feingold v. New York, 366 F.3d 138, 149 (2d Cir.
2004) (internal quotation marks and citation omitted). Montague brings her discrimination claims
under both of these theories, which I analyze in turn below, after first determining whether
Montague’s Title VII claims are timely. (ECF No. 60 at 6.)
1. Timeliness
Where a state has an agency with authority to grant relief under Title VII, a plaintiff is
required to “file an administrative complaint within 300 days of the complained-of conduct, and
the basis for any subsequent federal court action must in turn be based on the conduct that could
properly have been the subject of an administrative complaint.” Marini v. Costco Wholesale
Corp., 64 F. Supp. 3d 317, 326 (D. Conn. 2014); 42 U.S.C. § 2000e-5(e)(1). Because “[d]iscrete
acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to
identify,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), “[e]ach discrete

6

As Defendants point out, discrimination on the basis of marital status is not actionable under Title
VII. 42 U.S.C. § 2000e-2(a)(1); see also Panjwani v. Jet Way Sec’y & Investigations, LLC, No. 13
Civ. 7186 (SLT)(VMS), 2016 WL 3675331, at *16 (E.D.N.Y. Feb 26, 2016) (collecting cases
explaining that discrimination on the basis of marital status is not actionable under Title VII).
Plaintiff is correct that policies that forbid or restrict the employment of married women that do
not equally apply to married men violates Title VII’s prohibition on sex discrimination (ECF No.
60 at 6)—but Montague does not assert that Defendants had any such policy. Therefore,
Montague’s claim asserting discrimination on the basis of marital status in violation of Title VII
fails. In any event, Montague failed to exhaust this claim by neglecting to check the “marital status”
box on her CHRO complaint or including any allegations therein sounding in marital status
discrimination. (ECF No. 58-9 at 26.)
18

discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113. “[D]iscrete
discriminatory acts are not actionable if time barred, even when they are related to acts alleged in
timely filed charges.” Id.7
Montague filed her administrative complaint on January 28, 2014. (ECF No. 58-9 at 26.)
Thus, any discrete discriminatory act must have occurred on or after April 3, 2013, 300 days before
that date, in order to be actionable. The only discrete conduct that Montague alleges occurred after
April 3, 2013 (approximately four months after her last day of performing work for either Sodexo
or YNHH) was her termination on August 2, 2013. Any disparate treatment claims based on any
allegedly discriminatory acts that occurred while she was still going to work, prior to taking
medical leave in December 2012, are untimely. However, as discussed below, “so long as at least
one alleged adverse employment action occurred within the applicable filing period, evidence of
an earlier alleged . . . act may constitute relevant background evidence in support of that timely

7

Montague argues that the continuing violation doctrine operates to render her claim timely, as
she was terminated within the limitations period. “Under the continuing violation exception to the
Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any
incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts
of discrimination under that policy will be timely even if they would be untimely standing alone.”
Patterson v. Cnty. of Oneida, N.Y., 375 F. 3d 206, 220 (2d Cir. 2004) (internal quotation marks
omitted); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). “To bring a
claim within the continuing violation exception, a plaintiff must at the very least allege that one
act of discrimination in furtherance of the ongoing policy [of discrimination] occurred within the
limitations period.” Patterson, 375 F.3d at 220. But the “mere fact that an employee was dismissed
within the statutory period cannot be used ‘to pull in [a] time-barred discriminatory act’ . . . for
‘continuity of employment, without more, is insufficient to prolong the life of a cause of action for
employment discrimination.’” Id. (quoting Morgan, 536 U.S. at 112-13). Moreover, “[c]ourts in
this circuit disfavor application of the continuing violations doctrine and hold that only compelling
circumstances warrant use of this exception to the statute of limitations.” Ravenscroft v. Williams
Scotsman, Inc., No. 3:14-CV-870 (MPS), 2015 WL 1311332, at *3 (D. Conn. Mar. 23, 2015)
(quoting Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 189-90 (D. Conn. 2000)). Apart from
its potential applicability to the hostile work environment claim, which is discussed below, the
continuing violation doctrine does not apply here, because Montague points to no evidence in the
record from which a reasonable juror could infer that her termination was “in furtherance of [an]
ongoing policy [of discrimination].” Patterson, 375 F.3d at 220.
19

claim.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 150 (2d Cir. 2012) (internal quotations
and alterations omitted).8
2. Disparate Treatment Based on Termination
Montague’s Title VII claim alleging disparate treatment based on her termination is subject
to analysis under the burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, Montague must establish a prima facie case
of discrimination by showing that (1) she is part of a protected class under Title VII; (2) that she
was qualified for her position; (3) that she suffered an adverse employment action; and (4) that the
circumstances surrounding the employment action give rise to an inference of discrimination.
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015).
“If Plaintiff can establish a prima facie case, the burden shifts to the Defendant to proffer
a legitimate, nondiscriminatory reason for the adverse employment action.” Adams-Martin v.
Conn. Dep’t of Dev. Servs., No. 3:10-CV-00099 (VLB), 2012 WL 878306, at *9 (D. Conn. Mar.
14, 2012) (citing McDonnell, 411 U.S. at 802) “This burden is one of production, not persuasion;
it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000) (internal quotations omitted). “If Defendant meets its burden of production, the
burden shifts back to Plaintiff to show that the legitimate, nondiscriminatory reason offered by the
Defendant is mere pretext for illegal employment discrimination.” Adams-Martin, 2012

8

YNHH argues that because Montague was no longer working at YNHH after December 5, 2012,
that all claims under Title VII against YNHH are time-barred. (ECF No. 57 ¶¶ 46, 60.) However,
Montague alleges in her Amended Complaint that she was terminated by both Sodexo and YNHH.
(ECF No. 20 ¶ 30.) Though the record suggests that Sodexo was Montague’s employer, and that
YNHH was not (ECF No. 56-1 at 25, 69-70; ECF No. 56-3 at 2; ECF No. 58-8 at 9, 12), as YNHH
notes, I need not decide whether a joint employment relationship existed among the parties. (See
ECF No. 55 at 3 n.5.) Rather, I consider whether Montague has put forth evidence to meet her
burden with respect to either defendant.
20

WL878306, at *9 (citing McDonnell, 411 U.S. at 804). “The ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The parties do not dispute that Montague, an African-American female, is a member of a
protected class, or that she suffered an adverse employment action when she was terminated.
Defendants dispute that Montague was qualified for her position and that the circumstances
surrounding Montague’s termination give rise to an inference of discrimination on the basis of a
protected characteristic.
a. Qualification for Position
Defendants argue that Montague was not qualified because she admitted in her deposition
that was “completely unable to work” (ECF No. 58-4 at 26). Although “the qualification necessary
to shift the burden to defendant for an explanation of the adverse job action is minimal” and a
“plaintiff must show only that [she] possesses the basic skills necessary for performance of [the]
job.” Slattery v. Swiss Reinsurance Am. Corp., 2448 F.3d 87, 92 (2d Cir. 2001) (internal quotations
omitted), courts have held that where a plaintiff is “totally disabled and unable to perform any
work,” the plaintiff is unqualified for a position. See Williams v. R.H. Donnelley Inc., 199 F. Supp.
2d 172, 177 (S.D.N.Y. 2002) (finding that plaintiff was unqualified for the job where plaintiff
submitted evidence from her doctor stating that she was totally disabled and unable to perform any
work) aff’d, 368 F.3d 123 (2d Cir. 2004); Pesok v. Hebrew Union Coll. - Jewish Institute of
Religion, 235 F. Supp. 2d 281, 287 (S.D.N.Y. 2002) (“[Plaintiff] was unable to work due to his
back problem when his employment [with Defendant] ended, and he has been unable to work ever
since . . . . Thus, plaintiff was not qualified for the position in question and cannot establish the
second element of his prima facie case.”).

21

It is undisputed that Montague was unable to return to work from December 2012 until
May 2016. (ECF No. 58-2 ¶ 44; ECF No. 58-4 at 25-26; ECF No. 58-9 at 23.) Montague stated in
her affidavit that in December 2012, she had gone to a doctor who told her that she had suffered
physical injuries as a result of her work assignment. (ECF No. 60-1 ¶ 21.) She testified at her
deposition, “My doctor said I had a herniated disc or pinched nerve . . . and put me out of work.”
(ECF No. 58-4 at 23; see also ECF No. 58-4 at 25 (testimony that Montague’s doctor “put [her]
out of work” and never told her she could return).) Montague also testified that her current treating
physician told her in May 2016 that she could return to work with restrictions, but had not released
her prior to that time. (ECF No. 58-4 at 25-26.) She agreed with defense counsel that she was
“completely unable to work” until May 2016 (ECF No. 58-2 ¶ 44; ECF No. 58-4 at 26). Montague
herself characterized her injury as “life-altering” in her workers’ compensation claim, writing that
she would “never return to her profession . . . .” (ECF No. 58-2 ¶ 45; ECF No. 58-9 at 23.)
Montague argues that this case is distinguishable from Williams, as Montague did not go
on an indefinite leave of absence rendering her unable to fill an open position. Rather, Montague’s
leave was first set to expire on April 15, 2013, but was then extended, with a return date of July
17, 2013. (ECF No. 60 at 9.) While she was on leave, a representative for Sodexo even reached
out to Montague to see if she would be interested in applying for an Operations Manager position
prior to the scheduled elimination of her job. (ECF No. 58-2 ¶ 38; ECF No. 58-9 at 12.) Therefore,
Montague argues, Sodexo believed that Montague would be qualified to return to her job at the
time Sodexo gave her notice in March 2013 that Sodexo would be eliminating the Healthcare
Resource Bench by August 2, 2013. But Montague cites no authority suggesting that the
“qualification” element of the prima facie case depends on the employer’s awareness of whether
the plaintiff was qualified, and the evidence in the record suggests that Sodexo was not fully aware

22

of the debilitating nature of her injury. (See ECF No. 58-9 at 11, in which Montague wrote, in
response to an inquiry from Douglas as to Montague’s interest in applying for a position at Sodexo
while on leave, that she was “interested in returning to work but ha[d] probably missed this
opportunity,” adding, “I am still having pain…”) And she points to no evidence in the record
suggesting that she was able to work—even with accommodations—at the time of the termination.
Therefore, she has not satisfied the “qualification” element of her prima facie case.
b. Circumstances Giving Rise to Inference of Discrimination
Even if Montague was qualified for her position at Sodexo, no reasonable juror could find
that the termination occurred under circumstances giving rise to an inference of discrimination
based on race, color, sex, or religion. There are several ways in which a plaintiff may demonstrate
circumstances giving rise to an inference of discrimination. “An inference of discrimination can
arise from circumstances including, but not limited to, the employer’s criticism of the plaintiff’s
performance in ethnically degrading terms; or its invidious comments about others in the
employee’s protected group; or the more favorable treatment of employees not in the protected
group; or the sequence of events leading to the plaintiff’s discharge.” Littlejohn v. City of New
York, 795 F.3d 297, 312 (2d Cir. 2015) (internal quotations omitted). “[A]n inference of
discrimination also arises when an employer replaces a terminated or demoted employee with an
individual outside the employee’s protected class.” Id. at 312-13. The evidence necessary to satisfy
this initial burden is “minimal.” Zimmermann v. Assocs. First Capital Grp., 251 F.3d 376, 381 (2d
Cir. 2001).
“A plaintiff who claims unlawful discrimination in the termination of employment may
prevail notwithstanding the fact that his or her job was eliminated as part of a corporate
reorganization or reduction in workforce, for even during a legitimate reorganization or workforce

23

reduction, an employer may not dismiss employees for unlawful discriminatory reasons.” Cronin
v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995). “The Second Circuit has recognized that a
plaintiff . . . may raise a prima facie inference of discrimination by presenting evidence that the
employer continued, after discharging the plaintiff, to seek applicants from persons of the
plaintiff’s qualifications to fill that position.” Hannah v. Wal-Mart Stores, Inc., No. 3:12-CV01361 (VAB), 2016 WL 554771, at *8 (D. Conn. Feb. 11, 2016) (quoting Leibowitz v. Cornell
Univ., 584 F.3d 487, 502 (2d Cir. 2009)). The Second Circuit has also “held that plaintiffs raised
prima facie inferences of discrimination where, following a reduction in force, the employer hired
candidates outside of a plaintiff’s protected class, transferred a plaintiff’s responsibilities to
persons outside of the plaintiff’s protected class, and/or failed to hire or consider a plaintiff for
vacant positions.” Hannah, 2016 WL 554771, at *8 (collecting cases).
Montague points to the following as evidence that her termination occurred under
circumstances giving rise to an inference of discrimination:


Montague allegedly received insufficient training in her positions as Operations
Manager and General Manager, while her replacement, a younger, white man, appeared
to receive more training (ECF No. 60-1 ¶¶ 3-4, 16);



Montague was removed from the General Manager position and replaced by a younger,
white male in July 2012 (ECF No. 60-1 ¶ 15);



Montague was not invited to participate in conference calls, meals, and meetings with
management, while her younger, white male replacement was (ECF No. 58-4 at 4849);



A YNHH vice president allegedly made derogatory comments about black women to
Montague’s late husband, another YNHH employee, in December 2009 or January

24

2010, after which Montague’s late husband relayed these comments to Montague (ECF
No. 60-1 ¶ 6);


The same vice president failed to identify Montague as her husband’s widow in an
email sent to YNHH employees after Nicholls’ death in February 2012 (ECF No. 60-1
¶ 10);



While on FMLA leave, Montague heard from another employee that the same vice
president wanted to terminate Montague for discriminatory reasons (ECF No. 60-1 ¶
14);



Montague saw that her marital status was incorrectly listed as “divorced” rather than
“widowed” on an employee record (ECF No. 60-1 ¶ 11);



Montague felt that she was being supervised more closely than other employees,
including by “having to create daily reports,” having to meet with a supervisor daily,
and having to print out her calendar (ECF No. 58-3 at 7); and



Montague was transitioned into a temporary role that involved physically difficult
tasks, such as consecutive days of data entry, which she believed were “impossible to
complete,” and which ultimately caused her to suffer an injury.9 (ECF No. 60 at 12.)

As discussed above, the Court may consider prior allegedly discriminatory acts for which
no charge was timely filed as background evidence in support of Montague’s timely claim based
on her termination. See Morgan, 536 U.S. at 113.
While I may consider this evidence as background evidence even though it falls outside
the limitations period, there are multiple reasons why this evidence fails to show that Montague’s

9

Plaintiff makes other factual assertions in her opposition papers, such as that Dockery would
work fewer hours than she did without admonishment. (ECF No. 60 at 11.) However, these are not
supported by any evidence in the record.
25

termination was under circumstances giving rise to an inference of discrimination. First, with
respect to Montague’s allegations that she received insufficient training, while her younger white
male replacement received more training and was invited to participate in more events than she
was, these events predated her termination by over a year, and Montague puts forth no admissible
evidence showing that her replacement by Dockery was at all related to her termination. And,
Montague’s deposition testimony contradicts her statements in her affidavit that she received “no”
training. (See, e.g., ECF No. 58-3 at 45 (Q: “So Bill would provide you with training on the
application whenever you had a question; is that fair to say?” A: “Yes. . . . He would tell me over
the phone, walk me through it.”); id. at 47 (Q: “And did [Amy Bucci] give you any training?” A:
Yes.”). Moreover, Dockery’s alleged statement that he “received a host of training,” offered to
prove that Dockery received more training from Sodexo than Montague, is inadmissible hearsay
that I need not consider on summary judgment. See Fed. R. Civ. P. 56(c)(4) (requiring that
affidavits “used to support or oppose a motion must . . . set out facts that would be admissible in
evidence . . . .”); Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248, 254 (S.D.N.Y. 2009) (“[T]he
Court may . . . simply disregard any material that does not comply with [Rule 56].”) (internal
quotations omitted).
Second, while Wurcel’s alleged derogatory comments are not offered for their truth and
would in any event be admissible as statements of a party opponent because of Wurcel’s highranking position at YNHH, Zaken v. Boerer, 964 F.2d 1319, 1323 (2d Cir. 1992) (statement by
vice president of employer was admissible against defendant as a statement under Fed. R. Evid.
801(d)(2)(D)), Montague has no personal knowledge of these statements; she claims to know that
Wurcel made these statements only because her husband told her so. (ECF No. 60-1 ¶ 7; ECF No.
56-1 at 49.) Montague’s husband’s statement to her regarding Wurcel’s comments, offered to

26

prove that Wurcel made the comments, is inadmissible hearsay. See Fed. R. Evid. 801(c), Fed. R.
Evid. 802. Montague also does not provide evidence to show that Wurcel was a decisionmaker in
her termination,10 such that no reasonable jury could conclude that either his comments—made
over three years before her termination and after she had received two promotions—or his failure
to identify Montague as her husband’s widow in the email sent to YNHH employees had any
connection to her termination. “[S]tray comments are not evidence of discrimination if they are
not temporally linked to an adverse employment action or if they are made by individuals without
decision-making authority.” Inguanzo v. Hous. & Servs., Inc., No. 12-CV-8212 (ER), 2014 WL
4678254, at *16 (S.D.N.Y. Sept. 19, 2014) (finding that plaintiff “failed to demonstrate any nexus
between any of the comments made and her termination”); see also Meyer v. State of New York
Office of Mental Health, 174 F. Supp. 3d 673, 688-89 (E.D.N.Y. 2016) (holding that plaintiff’s
assertion that decisionmakers did not like women did not give rise to inference of discrimination,
but the fact that decisionmakers made stray remarks about plaintiff’s religion did give rise to an
inference of discrimination, because of evidence that the remarks were connected to the adverse
employment action).
Finally, the statement allegedly made by another employee to Montague that Wurcel
wanted to terminate Montague for discriminatory reasons, offered to prove that Wurcel in fact
wanted to terminate Montague for discriminatory reasons, is similarly inadmissible hearsay. Fed.
R. Evid. 801(c); Fed. R. Evid. 802.
Even considering the allegations together, I find that Montague has failed to produce
evidence that her ultimate termination was under circumstances that give rise to an inference of

10

Montague testified that Wurcel was her husband’s boss. (ECF No. 56-1 at 7.) There is no
evidence in the record that Wurcel was Montague’s supervisor or had any authority over her.
27

discrimination on any of the alleged protected characteristics of race, color, sex, or religion.
Montague has not put forth any evidence that Sodexo continued to seek applicants with her
qualifications to fill positions after she was terminated. Montague has also not put forth any
evidence that those affected by Sodexo’s elimination of 134 positions on the Healthcare Resource
Bench were disproportionately members of any of the protected classes Montague is a member of,
that the individuals not laid off or hired after her termination were disproportionately outside of
her protected classes, or that her prior responsibilities were transferred to persons outside of her
protected classes following her termination.11 And the record contradicts Montague’s claim that
Sodexo “could have easily moved Plaintiff to another department,” rather than terminate her (ECF
No. 60 at 23): it is undisputed that a Sodexo Human Resources Manager spoke with Montague in
order to help her find another position following the St. Ray’s transition (ECF No. 58-2 ¶ 34; ECF
No. 59 at 9-10); the record also suggests that Montague was invited to apply for an open position
via email during her medical leave, but that she did not respond to that email until over a month
after receiving it, and acknowledged that she had “probably missed th[e] opportunity.” (ECF No.
58-9 at 12.)
Montague ultimately fails to meet her burden to establish a prima facie case because her
allegations are unsupported by the record, and because she has not put forth evidence disputing
the facts asserted by Defendants. The only evidence Montague submits in opposition to summary
judgment is her own affidavit, which contradicts her own deposition testimony in key respects and

11

Montague asserts in her opposition brief that of the individuals terminated by Sodexo when it
eliminated its Healthcare Resource Bench, 17.6% were African-American, compared to the 11.6%
of the Connecticut population that is African-American – but she cites nothing in the record in
support of this assertion. (ECF No. 60 at 13.)
28

will, to that extent, be disregarded.12 Other portions of Montague’s affidavit contain only legal
conclusions without pointing to any evidence, such as Montague’s claim that she was terminated
because she was on leave and had filed a workers’ compensation claim (ECF No. 60-1 ¶ 23), and
her claim that Defendants’ conduct “was systematic and continuous.” (ECF No. 60-1 ¶ 27.)
It is true that in the employment discrimination context, “[b]ecause direct evidence of an
employer’s discriminatory intent will rarely be found, affidavits and depositions must be carefully
scrutinized for circumstantial proof, which, if believed, would show discrimination.” Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotations and citations omitted).
“However, even in the discrimination context, a plaintiff must provide more than conclusory
allegations of discrimination to defeat a motion for summary judgment.” Id. I find that no
reasonable jury could conclude that the circumstances surrounding Montague’s termination give
rise to an inference of discrimination on the basis of race, color, sex, or religion.13

12

For example, Montague stated in her affidavit that she “received no training” in either her
Operations Manager or General Manager positions (ECF No. 60-1 ¶¶ 3-4) but testified that she
received training from several individuals at Sodexo and took several classes required for her
General Manager position. (ECF No. 58-3 at 41, 43, 44-49; ECF No. 58-4 at 1.) See Trans-Orient
Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572-73 (2d Cir. 1991) (“a party may
not, in order to defeat a summary judgment motion, create a material issue of fact by submitting
an affidavit disputing his own prior sworn testimony”).
13
Montague has abandoned her religious discrimination claim by failing to address Defendants’
arguments regarding this claim. See Hudson v. Babilonia, 192 F. Supp. 3d 274, 289 (D. Conn.
2016) (“Federal courts may deem a claim abandoned when a party moves for summary judgment
on one ground and the party opposing summary judgment fails to address the argument in any
way.”) (internal quotations and citation omitted). Moreover, Montague testified that she did not
believe YNHH discriminated against on her on the basis of religion. (ECF No. 56-1 at 60.) With
respect to Sodexo, Montague testified she believed she was discriminated on the basis of her
Pentecostal religion when she was “excluded from things that other GMs were included in, such
as the weekly . . . district manager calls,” and when district managers “visited [certain] accounts
on a monthly basis.” (ECF No. 58-6 at 22-23, 28-29.) However, Montague testified that she did
not know whether her district manager at the relevant time knew of her religion, and that she did
not know the religion of the other General Managers whom she alleges were treated more
favorably than she was. (ECF No. 58-6 at 23, 27-29.) Montague merely asserts her belief that her
29

c. Legitimate, Non-Discriminatory Reason for Termination
Even if Montague were able to establish a prima facie case of discrimination, Defendants
have put forth a legitimate, non-discriminatory reason for her termination—that Sodexo decided
to eliminate all 134 positions on its Healthcare Resource Bench, including Montague’s. (ECF No.
58-2 ¶ 43.) The Second Circuit has held that downsizing through layoffs due to a reduced
employment need is a legitimate, nondiscriminatory reason for termination. See Windham v. Time
Warner, Inc., 275 F.3d 179, 188 (2d Cir. 2001) (affirming district court finding that defendant met
its burden of producing evidence of a legitimate business reason for the termination by
demonstrating that the department in question had less work); Jaiyeola v. Carrier Corp., 350 F.
Appx. 583, 585 (2d Cir. 2009) (acknowledging that downsizing of a department in which plaintiff
was the weakest performer, leading ultimately to the elimination of the entire department, was a
legitimate, non-discriminatory reason for termination). Therefore, Defendants have met their
burden of establishing a legitimate non-discriminatory reason for the termination.
d. Pretext
Because Defendants have articulated a legitimate, non-discriminatory reason for the
termination, the burden shifts back to Montague to establish that the proffered reason was pretext
for discrimination. Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). “To qualify
as pretext, it must be ‘shown both that the reason was false, and that discrimination was the real
reason.’” Gooding v. Walgreens Home Care, Inc., No. 3:11-CV-856 (JCH), 2013 WL 3338568, at
*7 (D. Conn. July 2, 2013) (quoting St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 515 (1993)).

“religion played a part,” (ECF No. 58-6 at 21), which is insufficient to raise an inference of
discrimination.
30

Here, Montague received ample notice that her position was in jeopardy of termination,
because of low performance scores, because her temporary assignment handling the St. Ray’s
transition was scheduled to end on a certain date, and because the Healthcare Resource Bench was
scheduled to be eliminated on a certain date. (ECF No. 58-2 ¶¶ 27, 40; ECF No. 58-4 at 12, 52-53;
ECF No. 58-8 at 40; ECF No. 58-9 at 15-17). See Johnson v. C. White & Son Inc., 772 F. Supp.
2d 408, 417-18 (D. Conn. 2011) (where plaintiff received warnings about poor job performance
and did not provide evidence of pretext, finding that the decision to terminate him was based on
performance). Her replacement by a younger, white male in the General Manager position
occurred over a year before her termination and, as discussed, there is no evidence that it was
connected to her termination. (ECF No. 58-2 ¶¶ 22-23.) Montague implies in her opposition papers
that Sodexo should have done more to find her an available position prior to the scheduled
elimination of the Healthcare Resource Bench, and that its failure to do so is evidence of pretext
(ECF No. 60 at 13-14), but ignores the evidence that Sodexo did in fact reach out to Montague
about a position and that she failed to respond until over a month later. (See ECF No. 58-2 ¶ 38;
ECF No. 58-9 at 11-12.) Montague cites no evidence in the record to suggest that the proffered
reason for Montague’s termination was false, or that discrimination was the real reason.
Montague’s claim of disparate treatment based on her termination fails as a result.
3. Disparate Treatment Based on Hostile Work Environment
Montague also asserts that she was subject to a hostile work environment in violation of
Title VII. Montague concedes that a hostile work environment claim based on any of the alleged
discriminatory acts, standing alone, would be time-barred under the 300-day statute of limitations
for charges of discrimination. (ECF No. 60 at 14.) Under Morgan, however, for her hostile work
environment claim to be timely, Montague need only have alleged at least one harassing act that

31

occurred on or after April 3, 2013, i.e., 300 days before she filed her CHRO charge. See Morgan,
536 U.S. at 122. As discussed above, the only discriminatory act that Montague asserts occurred
after April 3, 2013 is her termination on August 2, 2013. But termination, even if on its own
discriminatory, without evidence that it was in furtherance of an alleged practice of harassment, is
insufficient to render untimely hostile work environment practices actionable. See Patterson, 375
F.3d at 220. Thus, the timeliness of Montague’s claim depends on whether she has proffered
evidence that her termination was in furtherance of the harassment that she alleges Defendants
engaged in, i.e., whether the termination contributed to the hostile work environment. Courts
recognize that hostile work environment claims and discrete acts, such as termination, are
fundamentally “different in kind.” Morgan, 536 U.S. at 114-15. See also Darling v. Potter, No.
3:04-CV-1467 (PCD), 2005 WL 2045951, at *4 (D. Conn. Aug. 25, 2005) (recognizing that a
hostile work environment’s “constituent parts are different in kind from discrete acts”). I have
already concluded that there is no evidence that the termination was discriminatory, and thus, it
could not have been part of a discriminatory hostile work environment. Nonetheless, I will
independently consider whether Montague has put forth sufficient evidence to support her hostile
work environment claim even based on the time-barred acts.
“[T]o survive summary judgment on a claim of hostile work environment harassment, a
plaintiff must produce evidence that the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment.” Aulicino v. New York City Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009)
(internal citations and quotation marks omitted). “This test has objective and subjective elements:
the misconduct shown must be ‘severe or pervasive enough to create an objectively hostile or
abusive work environment,’ and the victim must also subjectively perceive that environment to be

32

abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).
As a general rule, alleged incidents must be more than “episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” Alfano, 294 F.3d at 374 (internal
citations and quotation marks omitted). “Isolated acts, unless very serious, do not meet the
threshold of severity or pervasiveness.” Id. But it is “well-settled in [the Second] Circuit that even
a single act can meet the threshold if, by itself, it can and does work a transformation of the
plaintiff’s workplace.” Id. “[T]he test is whether ‘the harassment is of such quality or quantity that
a reasonable employee would find the conditions of her employer altered for the worse.’” Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (quoting Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 70 (2d Cir. 2000) (emphasis in original)). Among the factors courts consider when
determining whether an environment is sufficiently hostile are “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.” Terry,
336 F.3d at 148 (quoting Harris, 510 U.S. at 23). “Whether the challenged conduct is sufficiently
severe or pervasive depends on the totality of the circumstances.” Aulicino, 580 F.3d at 82 (internal
citations and quotation marks omitted).
Montague must also show that “the conduct occurred because of [the protected
characteristic].” Alfano, 294 F.3d at 374. Finally, Montague “must demonstrate a specific basis for
imputing the conduct creating the hostile work environment to the employer.” Feingold v. New
York, 366 F.3d 138, 150 (2d Cir. 2004); Gregory v. Daly, 243 F.3d 687, 702 n.3 (2d Cir. 2001)
(“For liability to attach, the employer must also be responsible for the conduct at issue.”).

33

Montague’s principal evidence in support of her hostile work environment claim are
allegedly derogatory comments made by a YNHH Vice President to her husband. The record
makes clear that Montague subjectively perceived these acts to be severe and pervasive, and that
Montague believed that she would not have been treated in this manner if it were not for her race
or color. (See, e.g., ECF No. 58-4 at 46-47 (deposition testimony that learning of Wurcel’s
comments to her husband created an “intimidating and hostile work environment” for Montague);
ECF No. 56-1 at 39 (deposition testimony that Montague believed Wurcel would not have failed
to acknowledge her as her husband’s widow in a management-wide email unless he disapproved
of her marriage to Nicholls because of her race).)
However, a jury could not reasonably find that the isolated derogatory comments made
about Montague to her late husband give rise to a hostile work environment claim. First, the
remarks were not made to her or in her presence, and, as discussed above, her husband’s statement
relaying them to her, the only evidence they were made at all, is inadmissible hearsay. Second,
even if supported by admissible evidence, the comments are too isolated to amount to a hostile
work environment. Conduct that is “merely offensive,” while unfortunate, does not rise to the level
of a hostile work environment. Leibovitz v. New York City Transit Auth., 252 F.3d 179, 189 (2d
Cir. 2001). Stray remarks, even when they reference the plaintiff’s protected characteristics, are
not considered sufficiently severe to give rise to a hostile work environment claim. See, e.g., Paul
v. Postgraduate Ctr. for Mental Health, 97 F. Supp. 3d 141, 184 (E.D.N.Y. 2015) (comment that
plaintiff was an “old Haitian” was a stray remark that did not support a hostile work environment
claim); Rivera v. Brooklyn Hosp. Med. Ctr., 28 F. Supp. 3d 159, 163 (E.D.N.Y. 2014) (dismissing
plaintiff’s hostile work environment claim where only one remark referenced the plaintiff’s ethnic
origin in the entirety of his hostile work environment allegations, making it “the classic ‘stray

34

remark’ which, standing along, will not support . . . a hostile work environment claim”); McKenna
v. VCS Grp. LLC, No. 3:08-CV-1563 (VLB), 2009 WL 3193879, at *5-6 (D. Conn. Sept. 30, 2009)
(finding that allegations on fifteen occasions over the course of seven months about plaintiff’s
body and marital status were insufficient to state a hostile work environment claim); cf. Marino v.
EGS Electrical Grp., LLC, No. 3:12-CV-518 (JBA), 2014 WL 1289453, at *9 (D. Conn. Mar. 31,
2014) (denying summary judgment with respect to hostile work environment claim where plaintiff
alleged that she and other nonwhite coworkers were subject to racist remarks and threatening taunts
and gestures for over a year). Third, Montague has not put forth any evidence that the comments
had a direct impact on her work environment. There is no evidence that Wurcel was Montague’s
supervisor or co-worker; she submitted no evidence that she had any work-related contact with
Wurcel. (See ECF No. 56-1 at 7-8 (testimony that Wurcel was Montague’s husband’s boss and
worked for YNHH).)
Montague also claims that Defendants “engaged in a process of continuing and
progressively worse treatment” of Montague. (ECF No. 1 ¶ 11.) Montague asserts that she received
less training for her position than a younger, white man (ECF No. 58-4 at 2-4); that she was subject
to greater scrutiny in performing her job than others were (ECF No. 58-3 at 8); that she was not
invited to participate in conference calls, meals, and meetings with management while a younger,
white man in the same position was (ECF No. 58-4 at 48-49); and that she was given what she
claims were “physically grueling” tasks, as a result of which she suffered a physical injury. (ECF
No. 60 at 21.)
These alleged incidents—even taken together with Wurcel’s alleged comments—were too
infrequent to permit a reasonable jury to find that Montague’s work environment was so permeated
with intimidation, insult, and ridicule as to alter the terms and conditions of her employment. See

35

Paul v. Postgraduate Center for Mental Health, 97 F. Supp. 3d 141, 182 (E.D.N.Y. 2015) (finding
that plaintiff’s allegations failed to establish sufficient frequency for a hostile work environment
claim where the incidents happened on five occasions over the course of roughly fourteen months).
Montague points to a few concrete incidents that occurred over the course of four years, otherwise
making general, unsupported allegations of continuous conduct. See Lucas v. South Nassau Cmty.
Hosp., 54 F. Supp. 2d 141, 148-149 (E.D.N.Y. 1998) (finding that plaintiff did not establish a
pervasive hostile work environment where the plaintiff “alleged a handful of indeterminate
encounters with a few explicit events”).
A reasonable jury also could not find Montague’s other alleged incidents to have been
severe. Courts in the Second Circuit have held that both “typical office disputes” and “unfortunate
stray marks” are not considered severe. Paul, 97 F. Supp. 3d at 183. Montague’s claim that she
received inequitable training compared to a younger, white man is based only on her assertion (as
noted, based on hearsay) that he told her he received a “host” of training and appeared more
knowledgeable about an application than she felt she was. But Montague herself received training
from several individuals at Sodexo and testified that she took all required classes for her General
Manager position. There is thus some doubt as to whether this constituted disparate treatment at
all; the evidence that it did is vague, at best. And Montague’s claims that she was left out of
conference calls, meals, and meetings with management, and that she was subject to scrutiny in
performing her job, amount to “nothing more than workplace dynamics.” Davis-Molinia v. Port
Auth. of N.Y. & N.J., No. 08 CV 7584 (GBD), 2011 WL 4000997, at *11 (S.D.N.Y. 2011)
(dismissing claim that plaintiff was subject to a hostile work environment on the basis of her race
where plaintiff was excluded from staff meetings, was required to submit a list of her duties to
supervisors, was avoided in the office and was spoken to in a “nasty way,” among other

36

allegations); see also Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (holding
that hostile work environment claim was properly dismissed where predicated on allegations that
negative statements were made about plaintiff, that plaintiff was replaced at meetings, and that
plaintiff was wrongfully reprimanded). Montague has put forth no evidence that any of these
incidents had any link to her race, color, or sex. (See ECF No. 58-6 at 9 (deposition testimony by
Montague that she did not know if her alleged exclusion from meetings and conference calls was
because of her race, but that she “just [didn’t] know how else” to explain it).) Montague’s Title
VII claim, whether premised on an adverse employment action or hostile work environment,
therefore fails.
B. ADEA Claim
In Count Two, Montague claims that Defendants discriminated against her on the basis of
her age, in violation of ADEA. Like Title VII, the ADEA requires that claims of age discrimination
be filed with an administrative agency no later than 300 days after the allegedly discriminatory act
occurred. See 29 U.S.C. §§ 626(d)(1)(B), 633(b). ADEA claims also follow the McDonnell
Douglas framework, such that the analysis for Montague’s ADEA claim largely tracks the analysis
of her Title VII claim. Gorham v. Town of Trumbull, 7 F. Supp. 3d 218, 230 (D. Conn. 2014).
The only conduct by Defendants that remotely implicated Montague’s age was Montague’s
replacement by a younger man in the General Manager position. This conduct, if a timely basis for
a claim, would raise an inference of discriminatory intent. See Carlton v. Mystic Transp., Inc.,
202 F.3d 129, 135 (2d Cir. 2000) (“[A] plaintiff has demonstrated an inference of age
discrimination and thus established a prima facie case . . . where the majority of [the] plaintiff’s
responsibilities were transferred to a younger person . . .”). However, it is undisputed that
Montague’s replacement by Dockery in the General Manager position occurred in March 2012,

37

such that any claim based on this conduct is time-barred. And, as discussed above, Montague has
put forth no evidence suggesting that the circumstances surrounding her termination give rise to
an inference of discrimination on the basis of any protected characteristic, including age.
Montague has also not put forth any evidence that suggests she was subject to severe and pervasive
harassing conduct because of her age. Montague’s ADEA claim necessarily fails.
C. ADA Claim
In Count Four, Montague claims that Defendants discriminated against her on the basis of
disability in violation of the ADA. Specifically, Montague claims that she was discriminated
against on the basis of her work-related injury, after which she was diagnosed with a herniated
disc. (ECF No. 56-1 at 61.)
The ADA incorporates the procedures for bringing suit laid out in Title VII. 42 U.S.C. §
12117(a). Thus, like for her Title VII and ADEA claims, Montague must have filed her
administrative complaint within 300 days of an employment practice she alleges violated the ADA.
Disability discrimination claims follow the McDonnell Douglas burden shifting analysis.
McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (explaining that in the
ADA context, “[a] plaintiff must establish a prima facie case; the employer must offer through the
introduction of admissible evidence a legitimate non-discriminatory reason for [its adverse
employment action]; and the plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext”) (internal citations and quotation marks omitted).
To establish a prima facie case of discrimination under the ADA, a plaintiff 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 action because of his disability.” Sista

38

v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (internal citations and quotation marks
omitted). Here, Defendants dispute only the second and fourth elements. Under the ADA, “[t]he
term ‘qualified individual’ means an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position . . . .” 42 U.S.C. § 12111(8). The
ADA provides that “consideration shall be given to the employer’s judgment as to what functions
of a job are essential . . . .” Id.
Montague argues that at the least, a genuine issue of material fact exists as to whether
Montague was completely unable to return to work in manner that would render her unqualified.
As discussed above, no reasonable jury could find that Montague was qualified for her position at
the time of her termination, given the undisputed fact that she was “completely unable to return to
work” until May 2016. (ECF No. 58-2 ¶ 44; ECF No. 58-4 at 25-26; ECF No. 58-9 at 23.)
Even if she were qualified, however, Montague cannot make out a prima facie case of
disability discrimination because she has not established that her termination was under
circumstances giving rise to an inference of discrimination on the basis of disability. With respect
to YNHH, Montague disavowed any claim of disability discrimination, testifying that she did not
“believe that Yale-New Haven Hospital” discriminated against her on the basis of a physical
disability, and that she did not know whether YNHH was aware of her injury or diagnosis. (ECF
No. 56-1 at 61-62.) With respect to Sodexo, the record demonstrates that Montague was informed
that her temporary assignment would end, and that she would have to apply for another position
in order to remain employed at Sodexo, well before she suffered her injury. (ECF No. 58-2 ¶ 40;
ECF No. 58-4 at 52-53; ECF No. 58-9 at 15-17.) And a Sodexo representative reached out to her
after she went on medical leave as a result of her injury in order to gauge Montague’s interest in
applying for an open position at the company. (ECF No. 58-9 at 12.) In short, Montague points to

39

no evidence in the record suggesting that her termination was because of her alleged disability.
Thus, no reasonable jury could conclude that Montague’s termination was because of her
disability, rather than because Montague was transferred to a temporary assignment before her
injury, her temporary assignment ended as scheduled, Sodexo decided to downsize by eliminating
its Healthcare Resource Bench, and Montague did not apply for another position at the company.
Montague’s ADA claim therefore fails.
D. Workers’ Compensation Retaliation Claim
In Count Three, Montague claims that Defendants discriminated against her on the basis
of her filing of a workers’ compensation claim under Conn. Gen. Stat. § 31-290a, which states that
“[n]o employer who is subject to the provisions of this chapter shall discharge, or cause to be
discharged, or in any manner discriminate against any employee because the employee has filed a
claim for workers’ compensation benefits or otherwise exercised the rights afforded to him
pursuant to the provisions of this chapter.” Conn. Gen. Stat. § 31-290a. To support this claim,
Montague states in her affidavit that she was terminated because she “was on leave and filed a
workers’ compensation claim” after suffering a shoulder injury at work. (ECF No. 60-1 ¶ 23.)
Defendants argue that Montague released her claim for retaliation on the basis of her filing
a workers’ compensation claim by entering into the Stipulation, which “specifically release[d] all
of the Claimants’ rights pursuant to CGS § 31-290a.” (ECF No. 58-9 at 54.). Montague does not
respond to this argument in her opposition brief, such that I may deem her claim abandoned. See
Hudson v. Babilonia, 192 F. Supp. 3d 274, 289 (D. Conn. 2016).
Nonetheless, though Montague does not make this argument, the language of the settlement
agreement is arguably ambiguous, as it “releases all of the Claimants’ [sic] rights pursuant to CGS
§ 31-290a,” but “specifically does not release or waive any rights and claims pursuant to federal

40

or state statutes, common law or regulations, as they pertain to work place discrimination . . . as
claimed in [Montague’s] federal court action against [Sodexo and YNHH],” leaving unclear
whether the former clause is an exception to the latter. (ECF No. 58-9 at 54.) Because there is a
genuine dispute as to whether Montague released her workers’ compensation retaliation claim, I
will independently consider the merits of her claim.
Analysis of a retaliation claim under Conn. Gen. Stat. § 31-290a follows the McDonnell
Douglas burden-shifting framework. See Dupee v. Klaff’s, Inc., 462 F. Supp. 2d 233, 239-40 (D.
Conn. 2006). “To make out a prima facie case of retaliation, an employee must show that the
employee was engaged in protected activity; that the employer was aware of that activity; that the
employee suffered adverse employment decisions; and that there was a causal connection between
the protected activity and the adverse employment action.” Id. (quoting Collins v. New York City
Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002)).
Montague put forth no evidence that her termination was at all connected to the filing of
her workers’ compensation claim, except for the fact that the filing of her claim predated her
termination by eight months, and that she was terminated while on medical leave. (ECF No. 60-1
¶ 23.) The eight-month gap “is not too temporally disconnected to support an inference of
retaliation.” Dupee, 462 F. Supp. 2d at 240 (finding that a 13-month gap was substantial but
supported an inference of retaliation); see also Grant v. Bethlehem Steel Corp., 622 F.2d 43, 4546 (2d Cir. 1980) (holding that an eight-month gap between the filing of an EEOC complaint and
retaliatory action suggested a causal relationship).
However, courts have held that such a gap does not, on its own, give rise to an inference
of discrimination where no other evidence is offered to support a claim of retaliation. See Muoio
v. Costco Wholesale Corp., No. No. 3:13-CV-44 (SRU), 2015 WL 222160, at *15 (D. Conn. Jan.

41

14, 2015) (finding that ten-month gap, without any other evidence that plaintiff was terminated for
exercising his workers’ compensation rights, was insufficient to meet evidentiary burden with
respect to the causation element). Moreover, “[a]bsent any other evidence of retaliatory motive,
mere temporal proximity alone is insufficient.” Lajeunesse v. Great Atlantic & Pacific Tea, 160
F. Supp. 2d 324, 334 (D. Conn. 2001) (granting summary judgment on claim under Conn. Gen.
Stat. § 31-290a where plaintiff put forth no evidence of retaliatory motive aside from the fact that
he was terminated two months after filing a workers’ compensation claim) (citing Gallo v. Eaton
Corp., 122 F. Supp. 2d 293, 303-04 (D. Conn. 2000); see also Hollander v. Am. Cyanamid Co.,
895 F.2d 80, 85-86 (2d Cir. 1990) (finding no prima facie case of retaliation where plaintiff only
offered evidence that adverse employment action occurred three months after filing agency
complaint).
Here, Montague provides only conclusory allegations that she was “terminated . . . because
[she] was on leave and filed a workers’ compensation claim” (ECF No. 60-1 ¶ 23) and that the
“termination was part of a continuing violation of previous discriminatory behavior,” (ECF No.
61 at 8) without pointing to any evidence of retaliatory motive. Montague therefore fails to
establish a prima facie case of discrimination, such that her workers’ compensation retaliation
claim fails. And in any event, as shown, Sodexo has provided a legitimate reason for her
termination, and she has not submitted any evidence suggesting it was pretextual.
E. CFEPA Discrimination Claim
In Count Six, Montague claims that Defendants discriminated against her on the basis of
race14 in violation of the CFEPA, Conn. Gen. Stat. § 46a-60 et seq. Under CFEPA, a claim must

14

Count Six references only race discrimination, but it is unclear from Montague’s factual
allegations whether she asserts discrimination on the basis of other protected characteristics under
CFEPA.
42

be filed within 180 days after the alleged act of discrimination occurred. Conn. Gen. Stat. § 46a82(f); see also O’Hazo v. Bristol-Burlington Health Dist., 599 F. Supp. 2d 242, 252 (D. Conn.
2009). The 300-day filing period applicable to claims under Title VII, the ADA, and the ADEA
does not apply to claims brought under CFEPA. Kelly v. Am. Med. Response, Inc., No.
CV095025835, 2009 WL 2450730, at *3-4 (Conn. Super. Ct. July 7, 2009) (explaining that the
180-day time limit applies to claims brought under CFEPA, even when those claims are brought
in conjunction with claims under federal employment discrimination claims). Montague’s CFEPA
claim is therefore time-barred to the extent it is based on acts that occurred prior to August 1, 2013.
Though she received notice of her anticipated last date of employment in a letter dated July
31, 2013 (ECF No. 58-2 ¶ 42; ECF No. 58-4 at 54; ECF No. 58-9 at 19), Montague’s last day of
employment was August 2, 2013, when Sodexo terminated the employment of all 134 employees
on its Healthcare Resource Bench. (ECF No. 58-2 ¶ 43; ECF No. 58-8 at 4 ¶ 10; ECF No. 60-1 ¶
23.) Thus, Montague’s claim is arguably timely if based on her August 2, 2013 termination.
“Other than the CFEPA’s broader definition of disability, claims under the CFEPA are
analyzed using the same burden shifting framework set forth by the Supreme Court in McDonnell
Douglas for use in Title VII, ADA, and ADEA cases.” DeAngelo v. Yellowbook Inc., 105 F. Supp.
3d 166, 180 (D. Conn. 2015) (internal quotations and citations omitted). Therefore, because
Montague has put forth no evidence that her termination occurred under circumstances giving rise
to an inference of discrimination on the basis of any protected characteristic, and has in any event
failed to introduce evidence of pretext at the third step of the McDonnell Douglas framework,
Montague’s CFEPA claim fails along with her Title VII, ADEA, and ADA claims.
F. Intentional Infliction of Emotional Distress

43

In Count Five, Montague alleges that she experienced severe distress as a result of the
allegedly racially derogatory comments made by Wurcel to Nicholls in December 2009 or January
2010, the email circulated by Wurcel that failed to acknowledge Montague as her husband’s widow
immediately following Nicholls’ death in February 2012, and seeing her marital status listed as
“divorced” rather than “widowed” on her employee record, despite her divorce not being finalized.
(ECF No. 56-1 at 67-68.)
Montague’s claim is subject to Connecticut’s three-year statute of limitations for tort
claims. See Rivera v. Men’s Wearhouse, Inc., No. 3:05-CV-1907 (WWE), 2006 WL 1801705, at
*4 (D. Conn. June 27, 2006) (acknowledging that intentional infliction of emotional distress claim
is controlled by the Connecticut personal injury statute of limitations, three years); Ortiz v.
Prudential Ins. Co., 94 F. Supp. 2d 225, 233 (D. Conn. 2000) (applying three-year statute of
limitations for tort claims brought in employment discrimination suit).
As Montague filed her civil suit on June 23, 2015, 15 her intentional infliction of emotional
distress claim is time-barred to the extent it relies on any conduct that occurred prior to June 23,
2012, three years prior to filing suit. Therefore, her claim is time-barred if based on Wurcel’s
alleged racially derogatory comments and the email Wurcel circulated following Nicholls’ death.
However, it is unclear when Montague first saw that her marital status was incorrectly listed as
“divorced” rather than “widowed.” Because the form itself is dated September 27, 2012 (ECF No.
58-9 at 48), within the statute of limitations, I consider whether this incident suffices as the basis
for an intentional infliction of emotional distress claim.

15

Montague’s complaint was docketed on June 24, 2015, but dated June 23, 2015. This distinction
is immaterial for the purposes of determining the timeliness of Montague’s intentional infliction
of emotional distress claim.
44

To prevail on a claim of intentional infliction of emotional distress under Connecticut law,
Montague must show (1) that Defendants intended to inflict emotional distress or that they knew
or should have known that emotional distress was the likely result of their conduct; (2) that the
conduct was extreme and outrageous; (3) that Defendants’ conduct caused Montague’s distress;
and (4) that Montague sustained severe emotional distress. See Appleton v. Bd. of Educ. of Town
of Stonington, 254 Conn. 205, 210 (2000).
“Connecticut courts have narrowly defined the boundaries of extreme and outrageous
conduct.” Sacco v. Paradigm New Haven Health Care, LLC, No. 3:12-CV-1207 (WWE), 2013
WL 2321709, at *2 (D. Conn. May 28, 2013). “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.” Id.
(internal citations omitted). A defendant is liable for intentional infliction of emotional distress
only where the conduct has 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. Generally, the case is
one in which recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, Outrageous!
Appleton, 254 Conn. at 210-11 (internal quotations and citations omitted). “Conduct on the part of
the defendant that is merely insulting or displays bad manners or results in hurt feelings is
insufficient to form the basis for an action based upon intentional infliction of emotional distress.”
Carrol v. Allstate Ins. Co., 262 Conn. 433, 443 (2003) (internal quotations and citations omitted).
Even if distressing to Montague, Defendants’ conduct was less extreme than conduct
Connecticut courts have found to be insufficient to support a claim for intentional infliction of
emotional distress in the employment context. See Lute v. Dominion Nuclear Conn., Inc., No. 3:12CV-01412 (MPS), 2015 WL 1456769, at *17 (D. Conn. Mar. 30, 2015) (collecting cases); see

45

also, e.g., Appleton, 254 Conn. at 211 (holding that supervisor’s conduct toward plaintiff,
including making condescending comments, questioning plaintiff’s ability to read, calling the
police who escorted plaintiff out of the building, subjecting plaintiff to two psychological
examinations, and forcing plaintiff to take a suspension and a leave of absence, did not constitute
extreme and outrageous conduct); Tracy v. New Milford Pub. Sch., 101 Conn. App. 560, 567-68
(2007) (holding that defendant’s harassment, intimidation, defamation, and discipline of plaintiff
without a proper investigation were not extreme and outrageous); Gillians v. Vivanco-Small, 128
Conn. App. 207, 213 (2011) (holding that allegations that defendant co-workers conspired to create
hostile work environment, falsely accused plaintiff of racial and sexual bias, and gave plaintiff
negative performance evaluations were insufficient for intentional infliction of emotional distress
claim); Dollard v. Bd. of Educ. of Town of Orange, 63 Conn. App. 550, 552-53 (2001) (holding
that allegations that defendant engaged in a concerted plan to force plaintiff to resign “or to become
so distraught that [defendant] would have a colorable basis for terminating her employment” by
“hypercritically examining every small detail of her professional and personal conduct,”
transferring her to another school and then secretly hiring a replacement, and publicly admonishing
her were insufficient for claim of intentional infliction of emotional distress).
With respect to Montague’s incorrect marital status, Montague testified that she did not
know whether people assumed she was divorced because she was within days of getting divorced
when Nicholls died. (ECF No. 56-1 at 71.) Montague also testified that she did not know whether
anybody wrote the incorrect marital status intentionally to cause her severe emotional distress.
(ECF No. 56-1 at 71.) Montague testified that she knew Wurcel was involved with the incorrect
form because “[i]t was his department,” but later conceded that she did not know who made the
change on the form. (ECF No. 56-1 at 70-71.) Finally, Montague testified that she had six deaths

46

in her family in a matter of six months, including her husband’s. (ECF No. 56-1 at 71.) Montague
further testified, “When I filed the claim, those things were going on in my life, and contrary to
what some people knew, my husband and I had talked about getting back to together . . . . And so
it hit me pretty hard when he ended up passing away . . . . That was the culmination of six months,
six deaths, and I was just done emotionally.” (ECF No. 56-1 at 72.) When asked whether she could
allocate her severe emotional distress to YNHH, Montague testified, “I can’t compartmentalize,
but it all added to.” (ECF No. 56-1 at 73.)
Montague has not put forth evidence to demonstrate that listing an incorrect marital status
was intentional, extreme, or outrageous conduct, or that encountering the incorrect record was the
cause of any distress she suffered. Even if Wurcel’s alleged comments and the email circulated to
YNHH staff are added to the mix, Montague’s claim fails to meet the high bar for the tort of
intentional infliction of emotional distress.16
IV.

Conclusion
For the reasons stated above, Defendants’ Motions for Summary Judgment are

GRANTED.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
October 6, 2017

16

Montague argues that the continuing course of conduct doctrine applies to her intentional
infliction of emotional distress claim. (ECF No. 61 at 8.) I need not consider whether this doctrine
applies to Montague’s claim, as the claim fails on the merits, even considering Wurcel’s alleged
comments and the email sent to YNHH sent, both time-barred acts.
47