Echevarria v. Utitec Inc.
ORDER denying 40 Plaintiff's Motion for Summary Judgment and denying 51 Defendant's Motion for Summary Judgment for the reasons set forth in the attached decision. This case is referred to Magistrate Judge Robert A. Richardson for a settlement conference. The parties are ORDERED to contact his chambers on or before 10/05/2017 and schedule a conference during the month of October 2017. The current deadlines remain in effect; the Joint Trial Memorandum is due by 10/03/2017 and Jury Selection will take place 11/07/2017. Signed by Judge Vanessa L. Bryant on 09/28/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIVIL ACTION NO.
September 28, 2017
MEMORANDUM OF DECISION
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 40] AND
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51]
Plaintiff Haydee Echevarria brings this case under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that she was subjected to a
hostile work environment and retaliated against for complaining about sexual
harassment. Plaintiff also brings common law claims for negligent and reckless
supervision. Defendant has moved for summary judgment on all of Plaintiff’s
claims, and Plaintiff has moved for summary judgment on her common law
claims. For the reasons that follow, these motions for summary judgment are
Plaintiff began working at Utitec as a temporary employee on April 23,
2013. [Dkt. No. 52-3 at 37-38, 52-53; Dkt No. 52-4 at 1]. Kara Harlow, Director of
Human Resources, hired Plaintiff on a permanent basis on September 30, 2013.
[Dkt. No. 52-3 at 38, 58-60; Dkt. No. 52-4 at 2; Dkt. No 52-5 at 7]. In this position,
she served as Utitec’s receptionist and assisted various managerial employees
as needed. [Dkt. No. 52-3 at 58-60]. In or about mid-July 2014, Plaintiff began to
support Samuel Oakes, Director of Engineering, and Yared Mengistu, Director of
Quality Assurance. [Dkt. No. 52-3 at 66-67, 70; Dkt. No 52-5 at 8, 32, 48; Dkt. No.
52-6 at 13-15]. According to Oakes, Plaintiff did a good job for him and he liked
her as an employee. [Dkt. No. 52-6 at 15]. He also described the Plaintiff as a
social person who socialized with “everybody” in the office. Id. at 15. Mengistu
was also satisfied with Plaintiff’s work performance, enjoyed working with her,
and described Plaintiff’s mood as “generally positive.” [Dkt. No. 52-23 ¶ 5].
B. Plaintiff’s Relationship with Arthur Dostaler
Arthur Dostaler is an eyelet toolmaker at Utitec, which is not a supervisory
position. [Dkt. No. 52-3 at 171; Dkt. No. 52-8 at 12, 14-15; Dkt. No. 52-7 at 36; Dkt.
No. 52-18 ¶ 1]. Plaintiff met Dostaler in April 2013, and agreed that their first
meeting was “innocuous and uneventful.” [Dkt. No. 52-3 at 100-101]. She further
described their relationship as initially involving only the exchange of
pleasantries such as “hi” and “bye.” Id. at 100-101. However at some point “a
couple of months” before a July 17, 2014 Happy Hour, Dostaler began “float[ing]
by” her desk to speak to her about his personal life, work complaints, and
Plaintiff’s appearance. Id. at 101-102. Plaintiff testified that Dostaler’s work
complaints seemed “angry,” and that she sometimes felt uncomfortable when
Dostaler made comments about her appearance. Id. at 111-12. Plaintiff testified
that Dostaler came across as “arrogant and slimy,” and would look at her in an
“uncomfortable” or “dirty” way when he commented on her clothing and lipstick.
Id. at 112-14.
Oakes similarly described Dostaler as having “a quick temper sometimes”
and being “loud.” [Dkt. No. 56-6 at 21]. Oakes also described Dostaler as
“touchy” or “handsy.” [Dkt. No. 52-6 at 56-57]. While he believed he had seen
Dostaler touch multiple female employees, including giving shoulder rubs to
“several women,” he could only specifically remember the name of one woman
who Dostaler gave a shoulder rub, but who asked Dostaler to do so. Id. at 58-59.
Oakes did not know whether any other touches or shoulder rubs he witnessed
were or were not welcome, but testified that he “wouldn’t touch the people [he]
work[ed] with” and that it made him “uncomfortable.” Id. at 57-58; [Dkt. No. 56-22
¶¶ 4-5]. Oakes did not report any of these incidents to Human Resources. [See
Dkt. No 52-5 at 75-77, Dkt. 52-25 ¶ 6].
At Plaintiff’s request, Dostaler stopped making comments about Plaintiff’s
clothing and lipstick. [Dkt. No. 52-3 at 101, 115-18, 119]. However, Plaintiff
testified that Dostaler continued giving her “I-want-you-looks” or “I-want-to-havesex-with-you” looks. Id. at 117-19. Dostaler denies making inappropriate
comments or giving inappropriate looks. [Dkt. No. 52-18 ¶ 2, 7]. Plaintiff testified
that she did not think she reported any of these alleged comments or looks to her
supervisors or human resources. [Dkt. No 52-3 at 119].
C. Happy Hour
On Thursday, July 17, 2014, approximately ten Utitec employees, including
the Plaintiff, Dostaler, Oakes, and Mengistu, went to a “happy hour” at Prime
Time Pub in Thomaston, Connecticut. To Plaintiff’s knowledge, no supervisors or
representatives of human resources other than Oakes and Mengistu attended. Id.
at 119-20, 128; [Dkt. No. 52-8 at 47-48; Dkt. No 52-5 at 73; Dkt. No. 52-9 at 7, 22;
Dkt. No. 52-11 at 10, 28-29; Dkt. No. 52-7 at 69-70]. Plaintiff was not required to
attend the happy hour, she was not paid for her time there, and she was unaware
of any business that may have been conducted there. [Dkt. No. 52-3 at 124-26].
However, the happy hour was planned at the office by two of her co-workers, who
spread invitations by talking to other employees in the office. Id. at 121-23.
During the happy hour, Dostaler approached the Plaintiff on three or four
separate occasions. She alleges that he tried to feed her food and asked what
time she was leaving, whether her husband was home, whether he husband knew
she was at the Prime Time Pub, why she did not let her hair down, and why she
seemed uptight. Id. at 133, 135-36. In response, Plaintiff told Dostaler, “No, thank
you. Get away from me. I’m good.” Id. at 136-38. Oakes described Dostaler’s
conduct as “pestering” and “very irritating.” [Dkt. No. 52-6 at 36-39]. He testified
that he observed Dostaler try to feed the Plaintiff food and ask her questions
about where she was going after the Happy Hour, if she was going home to her
husband, and if she was going to be cooking. Id. at 36-39. Dostaler denied trying
to feed the Plaintiff food, and said that when he said “[w]hy don’t you let your hair
down,” he meant, “why don’t you relax and have a good time.” [Dkt. No. 52-8 at
49-51; Dkt. No. 52-18 ¶ 8]. Plaintiff asked Oakes to walk her to her car around 7:00
p.m., which he did. [Dkt. No. 52-3 at 155; Dkt. No. 52-6 at 40]. Although she did
not say so, Oakes believed Plaintiff asked for his escort because she was
uncomfortable. [Dkt. No. 52-6 at 40]. On the morning following the happy hour,
Dostaler “lurked” near Plaintiff’s area and told her he was disappointed she had
not let her hair down or let loose the night before. [Dkt. No. 52-3 at 157-58, 17479; Dkt. No. 52-6 at 47].
D. Human Resources Report and Responses
Plaintiff initially wanted to handle the incidents with Dostaler herself and
therefore did not immediately report them to Human Resources. [Dkt. No. 52-3 at
168; Dkt. No. 52-6 at 74-75]. Plaintiff admitted at her deposition that it is possible
she asked Oakes not to report to Harlow what had happened at the happy hour
and the following day. [Dkt. No. 52-3 at 193-94].
Despite Plaintiff’s reluctance to report the incident, at some point between
July 18, 2014 and August 6, 2014, Oakes did share concerns about Dostaler’s
behavior at the happy hour with Robert Oppici, Utitec’s President and Chief
Executive Officer, which he shared with Harlow, who in turn spoke to Oakes.
[Dkt. No. 52-5 at 74, 77; Dkt. No. 52-6 at 7, 44-46; Dkt. No. 52-9 at 24-25]. Harlow
decided not to open a formal investigation into Oakes’ observations from the
happy hour because the alleged conduct had not occurred at a work event or
during work hours. [Dkt. No. 56-5 at 77; Dkt. No. 56-25 ¶¶ 3-4]. Harlow and Oppici
testified that she had never heard or observed anything about Dostaler’s conduct
or behavior that caused her concern, and that she had not received any
complaints about Dostaler. [Dkt. No 52-5 at 75-77; Dkt. No. 52-9 at 7, 29; Dkt. 5225 ¶ 6].
Utitec has an Anti-Harassment and Non-Discrimination Policy and a
Reporting Process Policy that are set forth in the employee handbook, and which
are shared with all employees when they join Utitec. [Dkt. No. 52-5 at 66; Dkt. No.
52-25 ¶ 7; Dkt. No. 52-26 at BATES000321-322]. The handbook requires
supervisors to report all suspected acts of harassment or discrimination. [Dkt.
No. 47-1 at 8]. It also provides that “[t]he Company will promptly and thoroughly
investigate all complaints and will take appropriate action, up to and including
termination of employment, if the circumstances warrant.” Id. Plaintiff was given
a copy of the handbook that describes these policies. [Dkt. No. 52-5 at 66; Dkt.
No. 52-25 ¶ 7].
Harlow conducted a sexual harassment training class for Utitec
supervisors on August 6, 2014. [Dkt. No. 52-5 at 49-50; Dkt. No. 52-25 ¶8].
Plaintiff testified that she attended the training because she believed it would be
“informative,” but that she was not asked or required to attend. [Dkt. No 52-3 at
180-83]. Plaintiff testified that during the training, Harlow stated that it was her
understanding that something had happened at the Happy Hour and if the person
who had an issue did not come forward, the supervisors who attended the Happy
Hour could be fired for not reporting the incident. Id. at 185. Harlow denies
making this statement and counters that at most, she noted that supervisors have
a responsibility to report sexual harassment that they observe or about which
they are informed. [Dkt. No. 53-5 at 125-26; Dkt. No. 53-25 ¶ 8].
Plaintiff formally reported her concerns about Dostaler to Harlow on
August 15, 2014, at least in part because she believed Oakes and Mengistu would
be fired if she failed to do so. [Dkt. No. 52-3 at 195]. Plaintiff testified that she
told Harlow, “You already know why I’m here” and that she was sorry she had not
come to her sooner, but that she did not want to be a burden to Harlow and she
was trying to take care of the problem herself. Id. at 199-200. Following this
conversation, Harlow decided to issue Dostaler a written reprimand. [Dkt. No. 525 at 84-85, 87; Dkt. No. 52-25 ¶ 10; Dkt. No. 52-28].
E. Alleged Unwanted Touching and Reprimand
Dostaler was to be given this reprimand at a meeting with his supervisors
on the morning of Monday, August 18, 2014. [Dkt. No. 52-9 at 39-40; Dkt. No. 5220 ¶ 3]. However, at some point it was decided that the meeting should wait until
the end of Dostaler’s shift, so that he could go home immediately afterward. [Dkt.
No. 52-9 at 39-40; Dkt. No. 52-20 ¶ 3]. Plaintiff alleges that on the morning of
August 18, 2014, Dostaler came up behind her and “swiped three to four finders
on the back of [her] neck down to . . . the very top of where the buttocks would
begin.” [Dkt. No. 52-3 at 213-14, 222-23]. Defendant disputes that Dostaler
touched the Plaintiff anywhere lower than her “mid-back.” [Dkt. No 52-5 at 10708, Dkt. No. 52-6 at 66; Dkt. No. 52-9 at 41-42; Dkt. No. 52-11 at 54, 59].
Immediately after Dostaler ran his fingers down Plaintiff’s back, Plaintiff “took
off.” [Dkt. No. 52-3 at 223-24]. Dostaler followed behind her and grabbed her
hand for a couple of seconds before she jerked it away. Id.
Plaintiff reported the incident to Oppici. Id. at 224-25. Both plaintiff and
Oppici erroneously believed that Dostaler received his reprimand before he
touched the Plaintiff. Id. at 224-26; [Dkt. No. 52-9 at 41, 43]. In an email about the
incident, Oppici wrote, “As you know, Art was going to be spoken to about his
unprofessional conduct . . . first thing this morning . . . . To my surprise and
unbeknown to me, it was decided to speak to Art at the end of the day rather than
first thing in the morning as it might affect Art’s work day, etc. Well that decision
backfired.” [Dkt. No. 61-2 at BATES000878]. Oakes testified that the Plaintiff also
reported the incident to him and that at the time she was “hysterical.” [Dkt. No.
52-6 at 65-67]. Plaintiff left work early on August 18, 2014 and took August 19,
2014 off as a result of this incident. Id. at 72-73; [Dkt. No. 52-3 at 231, 244-45; Dkt.
No. 52-25 ¶ 16].
After learning of the incident, it was determined that Goad and McGregor
would read Dostaler the written reprimand immediately after lunch instead of at
the end of his shift. [Dkt. No. 52-8 at 68]. Dostaler admitted touching Plaintiff’s
back but testified that he denied any wrongdoing and refused to sign the
reprimand. Id. at 69, 72. He also testified that he was told any similar conduct in
the future would result in his termination, and was instructed to go to sexual
harassment training. Id. Plaintiffs dispute that Dostaler was instructed to attend
sexual harassment training, but offer no evidence that the written reprimand,
which includes this instruction, and which the Dostaler testified he was read, was
inaccurate. Id. at 67-68; [Dkt. 52-28].
On Wednesday, August 20, 2014, Plaintiff returned to work and met with
Contadini and Oppici. [Dkt. No. 52-9 at 57-58; Dkt. No. 52-3 at 250]. Plaintiff
testified that Contadini apologized for Dostaler’s behavior and told her that
Dostaler had been spoken to and was told to stay away from her. [Dkt. No. 52-3 at
252-53]. She also testified that Oppici said something along the lines of, “These
things sometimes happen, and sometimes they’re misread, and sometimes we
shouldn’t think anything of them.” [Dkt. No. 52-3 at 253]. Contadini also told her
that if anything happened in the future, she should report it to Contadini or
Oppici. [Dkt. No. 52-3 at 253].
The parties disagree about the course of events following Dostaler’s
reprimand. Harlow testified that on Tuesday, August 26, 2014, she met with the
Plaintiff, who told her that she was okay, except that every time Dostaler walked
by her workstation to use the bathroom, he would look at her. [Dkt. No. 52-5 at
113-115; Dkt. No. 52-25 ¶ 11; Dkt. No. 52-29 at BATES000189]. Harlow testified
that thereafter she reminded Dostaler to stay away from the Plaintiff. [Dkt. No. 525 at 113-115; Dkt. No. 52-25 ¶ 11; Dkt. No. 52-29 at BATES000189]. Harlow also
testified that she asked the Plaintiff a couple of time if Dostaler was leaving her
alone and that Plaintiff said yes. [Dkt. No. 52-5 at 118]. Plaintiff did not recall any
of these conversations taking place. [Dkt. No. 52-3 at 263]. Similarly, Dostaler
testified that he asked co-workers to be present if he was ever in the same room
with the Plaintiff, and that he made an effort to stay away from her. [Dkt. 52-8 at
F. Subsequent Incidents
Plaintiff maintains that in September or October 2014, Dostaler walked
closely behind her, brushed her shoulder, and said something in a grunting tone.
[Dkt. No 52-3 at 260-61]. She reported this to Harlow, who allegedly told her that
“she couldn’t very well talk to everyone that made grunting sounds.” Id. at 262.
Additionally, she alleges that in October 2014, she and Dostaler were
walking down the same corridor in opposite directions and Dostaler “pushed into
[her] shoulder” as he walked past her. [Dkt. No. 52-6 at 270-71]. Plaintiff also
became worried when Dostaler would be nearby and would look at her in a way
that made her feel uncomfortable. Id. at 92-93. Plaintiff did not report these
incidents to Harlow, but she did report concerns about Dostaler’s proximity and
looks to Oakes. Id. at 52-53, 92-93; [Dkt. No. 52-3 at 271]. Dostaler denies that
these interactions took place. [Dkt. No. 52-8 at 80; Dkt. No. 52-18 ¶ 7].
G. Workstation Move
In or about September or October 2014, Plaintiff’s workstation was moved
from the reception desk in the front office to the engineering department so that
she would sit closer to her supervisors. [Dkt. No. 52-3 at 72-73; Dkt. No. 52-5 at
48-49, 226; Dkt. No. 52-23 ¶ 4]. Although Plaintiff testified that the move made her
job easier, she attributed this to the fact that she was no longer required to
perform receptionist duties following her move, and that she was able to work
from other computers in the office if hers did not work. [Dkt. No. 72-73, 81-82].
Beginning November 2014, Utitec underwent a renovation that required a
change of seating arrangements for many employees, including the Plaintiff.
[Dkt. No. 52-3 at 267-68; Dkt. No. 52-5 at 144-45; Dkt. No. 52-6 at 83]. Plaintiff’s
department was not scheduled to begin its move until February 2015, and
Defendant maintains that it wanted temporarily to move the Plaintiff’s workstation
to a location in the quality assurance department so that she could be near
Mengistu. [Dkt. No. 56-5 at 172-73; Dkt. No. 52-25 ¶ 34; Dkt. No. 52-23 ¶ 16].
Plaintiff objected to this move because it would place her desk near Dostaler’s
workspace. [Dkt. No. 52-3 at 263-65]. In response, Harlow told the Plaintiff that if
she did not want her workspace in its proposed location she was “more than
welcome to transfer to another administrative position within the company, where
you would be sitting in the front office area.” [Dkt. No. 52-16]. The parties
dispute whether this other position was equivalent. Defendant claims that it was
a promotion because it would have provided her the opportunity to earn a
commission in addition to her base pay rate. [Dkt. No. 52-25 ¶ 39]. Plaintiff
counters that the position provided less opportunity for advancement or
professional growth and would involve fewer substantive responsibilities. [Dkt.
No. 62-2 ¶ 19].
H. Medical Leave
Plaintiff took a substantial amount of medical leave between October 1,
2014 and March 6, 2015, working only 37 days during this period. [Dkt. No. 52-25
¶ 24; Dkt. No. 52-31 at BATES00062-65]. Plaintiff’s last day of work was March 9,
2015, and the Plaintiff went on long term disability on or about April 29, 2015.
[Dkt. No. 52-3 at 282, 285; Dkt. No. 52-25 ¶¶ 23, 27-28]. During her extended
medical leave, Harlow sent Plaintiff a letter and an email indicating that Plaintiff
would be terminated if she did not return to work before August 12, 2015, and
Plaintiff did not return to work on that date. [Dkt. No. 52-25 ¶¶ 29-31; Dkt. No. 5237]. Plaintiff attributes some of her medical problems and her inability to return
to work in March 2015 to distress Dostaler caused, and her fear of being required
to sit at a workspace where she would be unable to avoid Dostaler. [Dkt. No. 62-2
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought. Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any
evidence in the record that could reasonably support a jury’s verdict for the
nonmoving party, summary judgment must be denied.” Am. Home Assurance
Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006)
(quotation omitted). In addition, “the court should not weigh evidence or assess
the credibility of witnesses” on a motion for summary judgment, as “these
determinations are within the sole province of the jury.” Hayes v. New York City
Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment ‘cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.’ At the
summary judgment stage of the proceeding, Plaintiffs are required to present
admissible evidence in support of their allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.
3:03-cv-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (quoting Gottlieb v.
County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). “Summary judgment cannot
be defeated by the presentation . . . of but a ‘scintilla of evidence’ supporting [a]
claim.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir.
2010) (quoting Anderson, 477 U.S. at 251).
A. Hostile Work Environment
Pursuant to Title VII of the Civil Rights Act of 1964, “[i]t shall be an unlawful
employment practice for an employer . . . to discriminate against any individual
with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
“[S]exual harassment so ‘severe or pervasive’ as to ‘alter the conditions of . . .
employment and create an abusive working environment’ violates Title VII.”
Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).
To prevail on a hostile work environment claim, a plaintiff must
demonstrate: (1) that her workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the conditions of her
work environment, and (2) that a specific basis exists for imputing the conduct
that created the hostile environment to the employer. Id. At issue on summary
judgment is whether the conduct at issue is objectively offensive and whether
this conduct can be imputed to Utitec.
1. The Alleged Harassment is Sufficiently Severe and Pervasive
To be actionable, allegedly harassing conduct “must be severe [or]
pervasive enough to create an environment that ‘would reasonably be perceived,
and is perceived, as hostile or abusive.’” Schwapp v. Town of Avon, 118 F.3d
106, 110 (2d Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993));
see also Redd v. New York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (“[A]
plaintiff need not show that her hostile working environment was both severe and
pervasive; only that it was sufficiently severe or sufficiently pervasive, or a
sufficient combination of these elements, to have altered her working
conditions.”). Additionally, the “sexually objectionable environment must be
both objectively and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did perceive to be so.”
Faragher, 524 U.S. at 787.
“[A] work environment’s hostility should be assessed based on the totality
of the circumstances.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)
(quotations omitted) (citing Harris, 510 U.S. at 22). “Factors that a court might
consider in assessing the totality of the circumstances include: (1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it is threatening and
humiliating, or a mere offensive utterance; and (4) ‘whether it unreasonably
interferes with an employee’s work performance.’” Id. “The Second Circuit has
consistently ‘cautioned against setting the bar [for a hostile work environment
claim] too high, noting that while a mild, isolated incident does not make a work
environment hostile, the test is whether the harassment is of such quality or
quantity that a reasonable employee would find the conditions of his employment
altered for the worse.’” Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 186
(E.D.N.Y. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
While “incidents of harassment must be more than episodic,” Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002), “[t]here is neither a threshold magic
number of harassing incidents that gives rise, without more, to liability as a
matter of law, nor a number of incidents below which a plaintiff fails as a matter
of law to state a claim,” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.
2000). “[A] single act can meet the threshold if, by itself, it can and does work a
transformation of the plaintiff's workplace.” Alfano, 294 F.3d at 374. “Physical
contact that might be expected among friends—a hand on the shoulder, a brief
hug, or a peck on the cheek—would normally be unlikely to create a hostile
environment.” Redd v. New York Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012).
However, this ceases to be the case when there are “aggravating circumstances
such as continued contact after an objection.” Id. “Direct contact with an
intimate body part constitutes one of the most severe forms of sexual
harassment.” Id. at 180.
Defendant argues that the alleged harassment is not objectively severe or
pervasive because the relevant incidents were “few and far between, and
occurred sporadically.” [Dkt. No. 51-1 at 17]. It similarly characterizes the
physical touching involved—Dostaler attempting to feed the Plaintiff, running his
fingers from her neck to the top of her buttocks and grabbing her hand when she
tried to escape and brushing against her and grunting—as “relatively minimal
and unobtrusive.” [Dkt. No. 51-1 at 19]. The Court disagrees. Plaintiff describes
conduct that became progressively more invasive, progressing from comments
to touching the Plaintiff with an object (food), to touching the Plaintiff with his
own body. A reasonable jury could readily conclude that these incidents
constituted an unwanted invasion of Plaintiff’s physical space of a highly
personal and intimidating nature.
2. The Alleged Harassment Can Be Imputed To Utitec
Where a hostile work environment is created by a co-worker, rather than a
supervisor, “‘the employer will be held liable only for its own negligence,’ and the
plaintiff must demonstrate that the employer ‘failed to provide a reasonable
avenue for complaint or that it knew, or in the exercise of reasonable care should
have known, about the harassment yet failed to take appropriate remedial
action.’” Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (quoting Duch
v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009)). “In determining the appropriateness
of an employer’s response, we look to whether the response was ‘immediate or
timely and appropriate in light of the circumstances, particularly the level of
control and legal responsibility [the employer] has with respect to [the
employee’s] behavior.’” Id. (quoting Crist v. Focus Homes, Inc., 122 F.3d 1107,
1111 (8th Cir. 1997)).
Citing Devlin v. Teachers’ Ins. & Annuity Ass’n of Am., No. 02 CIV. 3228
(JSR), 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003), Defendant argues that it
cannot be held responsible for Dostaler’s conduct at the happy hour because it
was between co-workers, and happened after work hours, off-site, and at a non-
company event. [Dkt. No. 51-1 at 24]. Like the instant case, Devlin involved an
incident of harassment that took place at a bar among a group of co-workers,
during an event that had been organized at work, but was not sponsored by the
plaintiff’s employer. See id. at *1. Devlin is distinguishable, however, because
the only instance of harassment at issue took place during the event, and
because the employer’s response to the harassment was to “demote [the
perpetrator], cut his pay and prohibit him from entering the floor where [the
plaintiff] worked.” See id. Here, alleged harassment at an informal post-work
event was reported by a supervisor, but no formal action was taken until several
weeks later, when the Plaintiff filed a separate complaint. As a consequence,
Dostaler was free to later make comments about the happy hour that made the
Plaintiff uncomfortable, and to escalate his behavior by touching the Plaintiff in
an unwanted and offensive manner.
Moreover, “[t]he court is aware of no settled law that, in gauging the
severity or pervasiveness and effects of sexual harassment, allows the offender
to compartmentalize his misconduct . . . in other words, to allow a harasser to
pick and choose the venue for his assaults so as to not account for those that
occur physically outside the workplace.” Parrish v. Sollecito, 249 F. Supp. 2d
342, 350-51 (S.D.N.Y. 2003). A “practical or constructive extension of the work
environment” is often necessary because an “offender’s license to engage in
sexual misconduct towards a co-worker outside the company may derive and
draw comfort from his understanding of what is permissible behavior in the
workplace or his perception of how far he can push the limits and what
discriminatory wrongs against a fellow employee he can inflict with impunity.” Id.
at 351–52. This is particularly true where, as here, harassing conduct occurred
during an event planned and attended by a sizable group of co-workers, including
Defendant next argues that its failure to speak with Dostaler about his
behavior at the happy hour was appropriate because the Plaintiff asked Oakes to
keep her complaint confidential. In support they cite Torres v. Pisano, 116 F.3d
625, 639 (2d Cir. 1997). In that case, the court noted that “the law will not
presume in every case that harassed members of Title VII’s protected classes do
not know what is best for themselves and cannot make reasonable decisions to
delay—at least for a time—pursuing harassment claims, perhaps for privacy or
emotional reasons, until they are ready to do so.” Id. The court emphasized that
the supervisor had been placed in a “difficult situation” in which disclosing the
plaintiff’s complaint would have “breached her trust.” Id. The court then held
that a supervisor does not necessarily breach his duty to an employee who asks
for confidentiality by failing to take action, unless there is, for example, evidence
of “serious physical or psychological harm that would have occurred if the
employer did not act forthwith” or in the case where “a supervisor or co-worker is
harassing a number of employees, and one employee asks the company not to
take action.” Id.
The instant case is distinguishable. First, Oakes ultimately did disclose
Dostaler’s conduct to human resources, so any trust that the plaintiff placed in
him to keep the incident confidential had already been breached. Second, there
is no evidence that the employer in Torres had a mandatory reporting policy for
supervisors, as is the case here. Third, at least one other supervisor was present
at the happy hour to witness both Dostaler’s conduct and Echevarria’s objections
to that conduct, as were several other co-workers. Therefore, the other
employees present at the happy hour would have known the substance of any
information that Echevarria might have shared with Oakes. Torres does not
stand for the proposition that an employer may do nothing when harassment is
widely known to management.
Title VII makes it unlawful for employers to retaliate against employees who
oppose employment discrimination, or submit or support a complaint of
employment discrimination. See 42 U.S.C. § 2000e-3(a); Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2532 (2013). Retaliation claims are evaluated using
the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
“Under this framework, a plaintiff must first establish a prima facie case of
discrimination.” Ruiz v. Cnty of Rockland, 609 F.3d 486, 491 (2d Cir. 2010)
(citation omitted). The plaintiff’s prima facie burden is “‘de minimis,’ and ‘the
court’s role in evaluating a summary judgment request is to determine only
whether proffered admissible evidence would be sufficient to permit a rational
finder of fact to infer a retaliatory motive.’” Hicks v. Baines, 593 F.3d 159, 164 (2d
Cir. 2010) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
“If the plaintiff sustains this initial burden, ‘a presumption of retaliation
arises.’ The defendant must then ‘articulate a legitimate, non-retaliatory reason
for the adverse employment action.’” Id. If the Defendant offers a legitimate nondiscriminatory reason for the employment action “the employee must show that
retaliation was a substantial reason for the adverse employment action.” Id. “A
plaintiff can sustain this burden by proving that ‘a retaliatory motive played a part
in the adverse employment actions even if it was not the sole cause[;] if the
employer was motivated by retaliatory animus, Title VII is violated even if there
were objectively valid grounds for the [adverse action].’” Id. (quoting Sumner v.
U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)).
“[T]he Second Circuit has observed that under the McDonnell Douglass
framework, setting forth a prima facie case for retaliation ‘tend[s] to collapse as a
practical matter’ into analysis of the later requirement that the plaintiff show the
legitimate reason to be mere pretext.” Blackwell v. City of Bridgeport, 238 F.
Supp. 3d 296, 310 (D. Conn. 2017) (citation and quotations omitted) (quoting
Collins v. N.Y. City Transit Auth., 305 F.3d 113, 119 n.1 (2d Cir. 2002)). “[A]
plaintiff may rely on evidence comprising her prima facie case . . . together with
other evidence such as inconsistent employer explanations, to defeat summary
judgment” at the pretext stage. See also Zann Kwan v. Andalex Grp. LLC, 737
F.3d 834, 847 (2d Cir. 2013).
To establish a prima facie case of unlawful retaliation under Title VII, “an
employee must show that (1) she was engaged in protected activity; (2) the
employer was aware of that activity; (3) the employee suffered a materially
adverse action; and (4) there was a causal connection between the protected
activity and that adverse action.” Rivera v. Rochester Genesee Reg’l Transp.
Auth., 743 F.3d 11, 24 (2d Cir. 2014) (quoting Lore v. City of Syracuse, 670 F.3d
127, 157 (2d Cir. 2012)).
At issue is whether Plaintiff was subject to an adverse action, and whether
there is any causal connection between her complaints and this adverse action.
A materially adverse action is one that would “dissuade a reasonable worker
from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006). “‘[T]here are no bright-line rules’ with respect to what
constitutes an adverse employment action for purposes of a retaliation claim, and
therefore ‘courts must pore over each case to determine whether the challenged
employment action reaches the level of adverse.’” Fincher, 604 F.3d at 721
(quoting Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997)).
Causation “can be shown indirectly by timing: protected activity followed closely
in time by adverse employment action.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 90 (2d Cir. 2015).
1. Workstation Move
Plaintiff first argues that Defendants retaliated against her by reassigning
her to a workspace close to her harasser. Defendant argues that the move was
required to accommodate planned renovations, and that because the Plaintiff
never actually moved to a new workstation, no adverse employment action took
place. More specifically, Defendant argues that a threatened workstation move
does not constitute an adverse employment action. Defendant cites Durkin v.
Verizon New York, Inc., 678 F. Supp. 2d 124, 139 (S.D.N.Y. 2009) and Thomas v.
Bergdorf Goodman, Inc., No 03-CIV-124, 139 (S.D.N.Y. 2004) for the principle that
“an action must actually occur to be considered an adverse employment action,”
and that the “mere threat of disciplinary action, including the threat of
termination, does not constitute an adverse action materially altering the
conditions of employment.” [See Dkt. No. 51-1 at 31]. However, this “mere
threat” language is inconsistent with the standard for an adverse employment
action set forth in Burlington, and with more recent Second Circuit precedent.
See Burlington, 548 U.S. at 68 (holding that “the antiretaliation provision, unlike
the substantive provision, is not limited to discriminatory actions that affect the
terms and conditions of employment” and that an action is materially adverse if it
would have “dissuaded a reasonable worker from making or supporting a charge
of discrimination.” (quotation omitted)); Rivera, 743 F.3d at 26 (holding that a
“reasonable juror could find both that [a supervisor] threatened [the plaintiff] with
the loss of his job, and that this threat would dissuade[ ] a reasonable worker
from making or supporting a charge of discrimination.”).
The Supreme Court chose the “dissuade a reasonable worker” standard
because “the significance of any given act of retaliation will often depend upon
the particular circumstances.” Burlington, 548 U.S. at 69. This Court must
therefore consider the effect of the proposed workstation move on the
motivations of a reasonable employee in Plaintiff’s situation. Plaintiff has offered
evidence that the Defendant offered her two choices: she could either sit at a
workstation that might bring her in close contact with her harasser, or she could
accept a new position that would allow her to sit further away from him. The
Court must consider whether being forced to sit near a harasser would deter an
employee from complaining, whether any legitimate business need required
Plaintiff to sit in the proposed new location to do her original job, and whether the
proposed alternative position was equivalent to the Plaintiff’s.
A reasonable woman whose co-worker has subjected her to an unwanted
invasion of her personal space, as Plaintiff alleges, could certainly want to limit
her interaction with her harasser, and might refrain from making a formal
complaint of discrimination if she believed doing so would result in being forced
to work in close proximity to him.
Defendants offer some evidence that legitimate business need required
plaintiff’s workspace to be near that of her supervisor. For example, Plaintiff
testified that her job became “easier” when she moved away from the reception
area and closer to her supervisors. However, a reasonable interpretation of her
full testimony was that her job became easier when she was no longer required to
perform the responsibilities of a receptionist and had access to alternate
computers when her computer was not working. Moreover, the Defendant has
not offered evidence that alternative locations within the office were unavailable.
While Defendant offered Plaintiff an opportunity to transfer to a new
position, there is insufficient evidence in the record to determine as a matter of
law that this new position was equivalent to Plaintiff’s position. Defendant offers
evidence that both positions had the same base salary, but that the new position
could allow Plaintiff to earn additional income from commissions. This suggests
that the new position might be more desirable than Plaintiff’s original position.
However, the record includes no evidence regarding how these commissions are
earned or the likelihood that Plaintiff would actually earn them. Similarly, while
both positions are administrative in nature, the administrative assistant to the
director of engineering or quality assurance could, as Plaintiff alleges, have more
substantive responsibilities and greater opportunities for advancement than an
administrative assistant in a different department. Because a reasonable
employee could want to avoid contact with her harasser, and could find the
proposed alternative position less desirable, Defendant’s threatened workstation
move could deter a reasonable employee from filing a complaint of
discrimination. These material factual disputes regarding the need for Plaintiff’s
workspace to be located close to her supervisors, the availability of other
workspaces within the office, and the desirability of the alternative position,
preclude summary judgment regarding whether the threatened workstation move
was an adverse employment action.
Defendant next argues that there is no causal nexus between Plaintiff’s
complaints and the workstation move, because her last formal complaint was
made in November 2014, and she was not notified of the move until February
2015. “The case law in the Second Circuit is unclear with regard to how much
time can pass between a protected action and the adverse employment action
before no causal connection can be inferred, but the Second Circuit has
emphasized that it has not ‘drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and an allegedly retaliatory
action.’” McCall v. Genpak, LLC, No. 13-CV-1947 KMK, 2015 WL 5730352, at *22
(S.D.N.Y. Sept. 30, 2015). The three to four month gap present here is has been
held sufficient to support an inference of causation. See id. (“While some courts
have held that three months is too long to draw a causal inference based on the
temporal relationship, others have held that fact finders could draw temporal
inferences from gaps between protected action and adverse employment actions
of three months or, indeed, much longer.”); see also, e.g., Feliciano v. Alpha
Sector, Inc., No. 00 CIV. 9309 (AGS), 2002 WL 1492139, at *12 (S.D.N.Y. July 12,
2002) (holding that lapse of two months was insufficient to show causation, but
stating that “this time lag is not dispositive of the issue”); Kanhoye v. Altana Inc.,
686 F. Supp. 2d 199, 209 (E.D.N.Y. 2009) (holding that an adverse action that took
place between “two and three months after the complaints [was] a sufficiently
short gap to permit a reasonable inference of retaliation at the prima
facie stage”). Particularly since the Plaintiff was on extended medical leaves
during the period in question, the Court is reluctant to conclude that the time
lapse present in this case would necessarily prevent a reasonable jury from
2. Failure to Investigate Complaints
Plaintiff also argues that Defendant retaliated against her by failing to
investigate her harassment complaints. “[A]n employer’s failure to investigate a
complaint of discrimination cannot be considered an adverse employment action
taken in retaliation for the filing of the same discrimination complaint.” Fincher,
604 F.3d at 721. Plaintiff therefore cannot show that Utitec’s failure to investigate
the happy hour incident was retaliation. However, Plaintiff does identify two
other alleged instances of harassment that took place within a couple of months
of her initial complaint: (1) she reported that she believed Dostaler was
intentionally coming to her work area; and (2) she reported that Dostaler brushed
against her and grunted. Neither of these instances was investigated, and in one
case, record evidence suggests that Harlow’s response was to tell the Plaintiff
that “she couldn’t very well talk to everyone that made grunting sounds.” [Dkt.
No. 52-3 at 262]. The knowledge that her subsequent complaints were falling on
deaf ears could easily dissuade a reasonable employee from continuing to report
harassment, and can therefore constitute an adverse action. See Delisi v. Nat’l
Ass’n of Prof’l Women, Inc., 48 F. Supp. 3d 492, 497 (E.D.N.Y. 2014) (holding that
the case was distinguishable from Fincher because it involved the failure to
investigate a subsequent complaint of discrimination).
Defendant argues that that it could not have known that Plaintiff’s
complaint about Dostaler’s “grunting,” brushing against her, or unnecessarily
coming to her work space was a protected activity. However, when considered
with the Plaintiff’s previous complaints, in which the Plaintiff reported that
Dostaler subjected the her to unwanted touching because of her sex, it is difficult
to believe that Defendant would not have known that when the Plaintiff
complained of further physical contact and “grunting” she did not believe that
these actions were a form of sexual harassment. Defendant therefore fails to
offer a legitimate, non-retaliatory reason for failing to investigate her subsequent
C. Negligent and Reckless Supervision
Both Plaintiff and Defendant have moved for summary judgment on
Plaintiff’s negligent and reckless supervision claims. As “[t]he difference
between negligence and recklessness is one of degree” and “[t]he facts relevant
to both claims are categorically the same,” Echevarria v. Utitec, Inc., No. 3:15-CV1840 (VLB), 2017 WL 1042060, at *3 (D. Conn. Mar. 17, 2017), the Court considers
the claims together.
“A negligent supervision claim requires a plaintiff to plead and prove that
she suffered an injury ‘due to the defendant’s failure to supervise an employee
whom the defendant had a duty to supervise.’” Miller v. Ethan Allen Glob., Inc.,
No. 3:10-CV-1701 JCH, 2011 WL 3704806, at *11 (D. Conn. Aug. 23, 2011) (quoting
Abate v. Circuit–Wise, Inc., 130 F. Supp. 2d 341, 344 (D. Conn. 2001)). “In order to
state a claim, a plaintiff must allege that a defendant knew or should have known
of another employee’s propensity to engage in the alleged tortious behavior.”
Shanks v. Walker, 116 F. Supp. 2d 311, 314 (D. Conn. 2000).
In general, to establish that conduct was reckless, a plaintiff must prove
conduct that is “more than a failure to exercise a reasonable degree of
watchfulness to avoid danger to others or to take reasonable precautions to
avoid injury to them . . . . It is such conduct as indicates a reckless disregard of
the just rights or safety of others or of the consequences of the action . . . [and it]
tends to take on the aspect of highly unreasonable conduct, involving an extreme
departure from ordinary care, in a situation where a high degree of danger is
apparent.” Elliott v. City of Waterbury, 245 Conn. 385, 415 (1998). The bounds of
“reckless supervision” have not been clearly defined in the employment context,
but have been described as “supervision of an employee with reckless
indifference or disregard of the rights of others,” Dewey v. Gosselin, No. CV
970571659S, 1997 WL 584710, at *2 (Conn. Super. Ct. Sept. 10, 1997), or the
knowing “disregard of foreseeable dangers,” Ramirez v. Dietrich, No.
CV146024621S, 2017 WL 1194288, at *4 (Conn. Super. Ct. Mar. 3, 2017).
Plaintiff claims that Defendant was reckless and negligent when it failed to
take remedial action against Dostaler prior to the happy hour, given that Oakes
had observed Dostaler being “handsy” or “touchy” with female employees. She
argues that this failure gave Dostaler license to assault her during the happy hour
by attempting to force feed her food and making uncomfortable comments about
her husband and her behavior at the happy hour. Material issues of fact exist
with respect to Utitec’s knowledge of Dostaler’s propensity to harass the Plaintiff
or other female employees prior to the happy hour. For example, the import of
Oakes’ observation that Dostaler had been “handsy” with female employees is
moderated by the fact that Oakes was only able to identify one employee other
than the Plaintiff whom Dostaler had touched in the workplace, and that other
employee denied that the touching in question was unwanted. Whether Oakes
was in fact more sensitive to touching in the workplace than was reasonable is
also a question best resolved by a jury.
Plaintiff next claims that Defendant was reckless and negligent by failing to
take any remedial action immediately after the happy hour, because Oakes was
present to witness Dostaler’s behavior, and he reported his observations to
human resources. Plaintiff alleges that this failure resulted in an assault and
battery on August 18, 2014. Material issues of fact also preclude summary
judgment on this issue. First, the parties dispute the severity and impropriety of
Dostaler’s conduct at the Happy Hour and in the office on August 18, 2014. For
example, Dostaler denies attempting to feed the Plaintiff and denies that any of
his comments were of a romantic or sexual nature, and he describes the August
18, 2014 incident as involving a light touch on the shoulder, which a jury could
conclude would have been neither harmful nor offensive to a reasonable person,
although it is unlikely because of the prior intrusive behavior and Dostaler’s
reprimand. By contrast, Plaintiff describes a deliberate and unwanted caress
from neck to buttocks, which a reasonable jury could find highly offensive.
Second, material issues of fact exist with respect to management’s intent after
receiving Oakes’ complaint. A reasonable jury could conclude that that Harlow’s
decision not to conduct an investigation or discipline Dostaler after receiving
Oakes’ complaint was either unreasonable in light of his demonstration of a
propensity to harass the plaintiff, or displayed a conscious disregard for the risk
that Dostaler would harass her again.
The Court is not convinced, however, that the decision to delay Dostaler’s
August 18, 2014 reprimand from the morning to the end of Dostaler’s shift was
negligent or reckless. Disciplining an employee immediately before he is
scheduled the leave the office is often desirable not only because it provides the
disciplined employee the opportunity to lick his wounds in private, but also
because it prevents the employee from immediately retaliating against any
complainant, or from otherwise disrupting the workplace. While a reasonable
jury could conclude that Dostaler had a propensity to harass the plaintiff or that it
was likely he would do so, the evidence does not suggest that Dostaler’s
harassment was a daily occurrence or that waiting several hours to discipline
Dostaler would lead to Plaintiff’s assault.
Defendant argues that Plaintiff’s negligent supervision claim is barred by
the Worker’s Compensation Act’s exclusivity statute, Conn. Gen. Stat. § 31284(a), which provides that an employer “shall not be liable for any action for
damages on account of personal injury sustained by an employee arising out of
and in the course of his employment.” In support of this position, Defendant
cites Driscoll v. General Nutrition Corp., 252 Conn. 215, 216 (2000), which held
that being forced to perform fellatio in the workplace was a “physical injury,” and
that an action for emotional distress arising out of such an assault was barred by
the exclusivity statute. However, subsequent decisions in this district have
limited the reach of Driscoll, and have permitted actions for damages where the
physical touching involved was not as “invasive” or where it was unclear whether
the damages arose from physical conduct, verbal harassment, or a combination
of the two. See Roberts v. Circuit-Wise, Inc., 142 F. Supp. 2d 211, 215 (D. Conn.
2001); Abate, 130 F. Supp. 2d at 345-46. Here, Plaintiff alleges both physical and
verbal harassment, and material issues of fact preclude summary judgment on
the question both of whether Plaintiff is entitled to any damages, and from which
actions these damages arose.
Defendant also argues that the Plaintiff cannot recover damages for
negligent supervision, because she has not offered evidence that she suffered
any economic damages, and “Connecticut bars all negligence-based emotional
distress claims occurring within a continuing employment context,”
Antonopoulos v. Zitnay, 360 F. Supp. 2d 420, 431 (D. Conn. 2005). While Plaintiff
agrees that emotional distress damages are unavailable in a negligent
supervision case in a continuing employment context, she argues that (1) her
emotional distress arose during the course of her termination; and (2) that she is
entitled to economic damages.
The Court disagrees that that the alleged negligent supervision was in any
way related to Plaintiff’s separation from Utitec. While the exact timing of
Plaintiff’s formal separation is in dispute, Defendants have offered unrebutted
evidence that Plaintiff was welcome to return to work at numerous times during
her extended medical leave.
Material issues of fact prevent the Court from holding as a matter of law
that the Plaintiff is not entitled to economic damages. Plaintiff has offered
evidence that she began to take extended leave from work in the fall of 2014, or
shortly after Plaintiff alleges that Dostaler began harassing her. The causes of
this leave, whether fear of continuing harassment by Dostaler in the office,
worsening medical conditions due to harassment-related stress, or pre-existing
medical issues unrelated to Plaintiff’s claims, are best left to the jury. While the
economic damages at issue here may have resulted from emotional distress, at
least one decision issued since Antonopoulos has cautioned against applying the
bar on recovery for emotional distress too broadly in negligent supervision
cases. See Molina v. Eagle Leasing Co., No. 3:13-CV-00413-WWE, 2014 WL
3864879, at *3 (D. Conn. Aug. 6, 2014). Molina refused to dismiss a complaint for
negligent supervision where the plaintiff asserted “severe financial harm,
physical harm and jeopardy, and loss of employment in addition to emotional
injuries.” See id. As Plaintiff has offered evidence of economic damages from
lost wages, and genuine issues of fact remain regarding why Plaintiff stopped
going to work, summary judgment is inappropriate.
For the foregoing reasons, the parties’ cross-motions for summary
judgment are DENIED.
IT IS SO ORDERED.
_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 28, 2017
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