Dunbar v. Stratford

Filing 29

Memorandum of Decision granting 22 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 8/7/2018. (LaMura, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARJORIE DUNBAR,
Plaintiff,
v.
No. 3:16 CV 1302 (WWE)
TOWN OF STRATFORD,
Defendant.
MEMORANDUM OF DECISION ON SUMMARY JUDGMENT
In this action, plaintiff Marjorie Dunbar alleges that defendant Town of
Stratford discriminated against her based on her race or color and
retaliated against her in violation of Title VII.
Defendant has filed a motion for summary judgment on plaintiff’s
complaint. For the following reasons, the motion for summary judgment
will be granted.
A.

BACKGROUND

The parties have submitted statements of undisputed facts, exhibits
and affidavits. Although plaintiff filed her Rule 56 statement late, the Court
accepts the filing. These materials reflect the following factual
background.
Plaintiff is an African-American woman, who has been employed by
defendant since 2000.

She holds a non-union, at-will position of Finance

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Secretary, providing clerical and administrative support to the Finance
Director. According to plaintiff's deposition testimony, plaintiff has had
“pretty much the same” job responsibilities since 2003. When she
performs additional duties, plaintiff receives extra pay or “stipends.”
Plaintiff received regular annual pay increases from 2003 through
fiscal year (“FY”) 2009.

In FY 2010, then-Mayor James Miron sought

raises for the non-union, at-will employees. This request was rejected by
the Town Council.
In 2010, the non-union, at-will employees were required to accept two
furlough days and a wage freeze.

All non-union, at-will staff were required

to sign letter agreements, standardizing many of the terms and conditions
of employment. These agreements provided, in relevant part, that (1)
raises were at the Mayor’s sole discretion and recommendation, subject to
the approval of the Town Council; and (2) that at-will employees would
receive limited sick leave and no pay for longevity.

The agreements

contained no provision conferring a benefit for an employee with perfect
attendance.
Raises
Plaintiff received a raise of about $1,200 on January 1, 2012, bringing
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her annual salary to $57,690.

The raise, which occurred during FY 2013,

was recommended by plaintiff's supervisor, Susan Collier, Director of
Finance; it was approved by Human Resources Director Ronald Ing, Chief
Administrative Officer Stephen Nocera, and Mayor John Harkins. Later, in
November 2012, plaintiff asked Collier and Ing for another raise.

Plaintiff

also requested that she be allowed to cash out her vacation days, although
she understood that non-union, at-will staff were not permitted to do so.
Collier requested a 2.5% raise for plaintiff at the end of 2012. She
knew that the proposal was not included in the Town budget; however, she
submitted the request because she thought that money allocated for a
vacant position could be directed toward plaintiff’s raise.
Mayor Harkins declined the request for the pay increase to plaintiff's
salary.

He asserted that he based his decision upon information that there

would be a dramatic increase in health insurance costs; consequently, he
did not want to ask the Council to approve a mid-year raise that had not
been previously included in the Town budget.

Collier was informed that

the decision was due to budget constraints.
In 2013, plaintiff signed a revised employee agreement dated March
26, 2013, which allowed her to carry over and to cash out her vacation time
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for the first time.
On April 29, 2013, plaintiff filed a complaint to the Commission on
Human Rights and Opportunities (“CHRO”), alleging that she had been
denied a raise and was earning a different rate of pay due to a
discriminatory animus.
On July 1, 2014, plaintiff and other non-union, at-will employees
received raises.

The raise for plaintiff’s position had been approved as

part of the FY 2015 budget. According to defendant, the raise was
approved by Ing, Collier, Nocera, and Mayor Harkins.
Parking Space
In November 2015, plaintiff found heavy equipment blocking her
reserved handicapped parking space as well as those of other employees.
Plaintiff, who possesses a handicap tag, parked in another handicap
parking place.

She asserts that members of the Town administration saw

her park in the handicap space and called the police. Police Officer
Donald Schuler called her and questioned her about the validity of her
handicap tag. He did not give her a ticket.
Plaintiff claims that she was denied a copy of the incident report
regarding this situation and that the police have told her such report does
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not exist.
Racial Remarks
Plaintiff asserts that a year prior to filing her 2013 CHRO claim, a coworker made a racial remarks to her. Plaintiff maintains that the co-worker
complimented her hairstyle and then stated, “Black don’t crack.”
Additionally, plaintiff asserts that on another occasion, the co-worker said,
“I am catching up to you,” in reference to the co-worker's tan.

According

to Ing, plaintiff asked him what could be done about inappropriate
comments from a co-worker.
He recalls inquiring whether she wanted to file a complaint, and that
she declined to do so at the time. Plaintiff disputes Ing’s recollection.
Plaintiff’s Asserted Comparators
Plaintiff claims as comparators Rickey Williams, Gail Nobili, Raynae
Serra, Susan Barksdale, and Kathleen Pacacha.
Williams is an African-American male and has a base salary of
$42,000.

Due to his performance of additional duties for the Metro

North/Amtrak parking lot, he was paid a weekly stipend of $250, bringing
his total compensation to $55,000 per year.
out of the Town railroad fund
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The railroad stipend was paid

Nobili is a Caucasian woman, who worked as a Paralegal/Legal
Secretary1 to the Town Attorney.

She received a $10,000 salary increase

on July 1, 2011. Prior to 2011, she had not received a raise since 2008.
The salary increase, which had been included in the Town budget, was
approved by the Town Council.

A July 1, 2011, Personnel Action Form

indicates that Nobili’s raise was requested in light of “increased
responsibilities.” Nobili’s duties had broadened to encompass the
processing of taxpayer car accident claims, and the duties of Citation Clerk,
which had formerly been handled by a contractor.
Serra received a lump sum increase of $35,000 when she was
promoted from Administrative Analyst to Operations Coordinator for the
Department of Public Works.2
Pacacha and Barksdale are Caucasian women who were hired in
2010 as Human Resources Generalists in the Human Resources
Department. Ing hired Pacacha and Barksdale at a lower rate of pay than

1

In 2014, her position was reclassified as “Paralegal.”

2

The Court does not appear to have information about Serra's race or
color, or the date on which she received the lump sum increase.
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what had been budgeted for their positions.

He promised that they would

receive incremental raises in 2011 and 2012, provided that they learned the
requisite duties and skills for their positions.

These pay increases had

been included within the budgets that were approved in advance by the
Council for Human Resources.
Plaintiff filed the instant complaint after the CHRO dismissed the
plaintiff’s administrative charge on October 22, 2015.
B.

DISCUSSION

A motion for summary judgment will be granted where there is no
genuine issue as to any material fact and it is clear that the moving party is
entitled to judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The burden is on the moving party to demonstrate the
absence of any material factual issue genuinely in dispute.

American

International Group, Inc. v. London American International Corp., 664 F. 2d
348, 351 (2d Cir. 1981). In determining whether a genuine factual issue
exists, the court must resolve all ambiguities and draw all reasonable
inferences against the moving party.

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). "Only when reasonable minds could not differ as to
the import of the evidence is summary judgment proper."
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Bryant v.

Maffucci, 923 F. 2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
If a nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has the burden of
proof, then summary judgment is appropriate.

Celotex Corp., 477 U.S. at

323. If the nonmoving party submits evidence which is "merely colorable,"
legally sufficient opposition to the motion for summary judgment is not met.
Anderson, 477 U.S. at 249.
Disparate Treatment
Plaintiff alleges that defendant discriminated against her on the basis
of her race (1) when it declined to approve a salary increase after it had
been requested by Collier at the end of 2012, and (2) when it reduced
certain fringe benefits with regard to longevity pay, perfect attendance
provisions, cost of living increases, sick days, and vacation cash-out.
Defendant maintains that plaintiff cannot raise an inference of
discrimination and cannot show as pretext defendant’s proffered nondiscriminatory reasons for its employment decision.
The Court analyzes plaintiff’s claims of disparate treatment according
to the burden shifting process established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) and Texas Dep’t of Community Affairs v.
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Burdine, 450 U.S. 248, 252-56 (1981). See Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 82-83 (2d Cir. 2015).
To establish her prima facie claim of discriminatory treatment, plaintiff
must demonstrate that (1) she belongs to a protected class; (2) she was
performing her duties satisfactorily; (3) she suffered an adverse
employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of discrimination.

Although the

plaintiff’s initial burden is not onerous, she must show that the alleged
adverse employment action was not made for legitimate reasons.
Thomas v. St. Francis Hosp. & Med. Ctr., 990 F. Supp. 81, 86 (D. Conn.
1998).
If the plaintiff establishes a prima facie case, the defendant must
articulate a legitimate, non-discriminatory business reason for the alleged
discriminatory action.

The plaintiff must then prove by a preponderance of

the evidence that the supposed legitimate reason is actually a pretext for
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
Plaintiff may raise an inference of discrimination by showing that her
employer treated her less favorably than similarly situated employees
outside her protected class for a similar offense.
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Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000). However, plaintiff must demonstrate
that these comparators are similarly situated in all material respects and
have “engaged in comparable conduct.”

Shumway v. United Parcel

Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997).
For purposes of ruling on this motion, the Court assumes that plaintiff
has established her prima facie case of discrimination.

However, plaintiff

has not adduced evidence evincing an inference that discriminatory animus
animated defendant’s employment decision with regard to either the
reduction in fringe benefits or the 2012 salary increase request.
Relevant to the reduction in fringe benefits, defendant maintains that
plaintiff and other clerical, non-union, at-will employees signed a 2010 letter
agreement that provided for the same reduction in fringe benefits.
As its legitimate, non-discriminatory reason for its decision not to
approve her salary increase, defendant proffers that budgetary concerns
due to increased medical costs prevented approval of the requested salary
increase.

Defendant also points out that the requested salary increase

had not been previously included in the budget and that no employee
would receive a salary increase if the increase had not already been
included in the Town budget.
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Plaintiff has provided no evidence indicating that other clerical, nonunion, at-will employees outside of her protected class received more fringe
benefits than those benefits set forth in her 2010 letter agreement.
In her Rule 56 statement, plaintiff admitted the following statement of
fact in defendant’s Rule 56 statement:

“There was nobody else who had

received or would receive a raise that was not budgeted for.”
Plaintiff has asserted that certain individuals – Williams, Nobili, Serra,
Barksdale, and Pacacha – outside of the protected class did receive pay
raises. However, plaintiff has not demonstrated that these individuals are
similarly situated to her in all material respects and have engaged in
comparable conduct so as to raise an inference of discrimination.
Williams
Williams, as an African American, is in the plaintiff’s protected class
based on race and color.

Additionally, he received increased

compensation in the form of stipends for additional work rather than a
salary increase, which Collier had proposed for plaintiff.
Nobili
Nobili’s salary raise had been in the Town budget that was approved
by the Council, and she had taken on additional responsibilities in
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processing car accident claims and becoming the Citation Clerk.

By

contrast, plaintiff has not shown that she took on any additional
responsibilities. Further, it is undisputed that her salary increase had not
been included in the Town budget.
Serra
Plaintiff has stated that she and Serra “have two different functions”
with different jobs.

Further, plaintiff has not provided any evidence

demonstrating that she and Serra performed comparable duties.
Pacacha and Barksdale
Plaintiff has not demonstrated that Pacacha and Barksdale performed
clerical duties comparable to her position.

Further, plaintiff admitted

defendant’s statement that Pacacha and Barksdale were hired at a lower
rate of pay, with the agreement that they would receive incremental raises
in 2011 and 2012.
Accordingly, plaintiff has failed to raise an inference of disparate
treatment based on her race or color.
Retaliation
Plaintiff alleges that the blocking of her reserved handicapped parking
space by heavy equipment in 2015 constitutes retaliation for her complaints
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to Ing about a co-worker's racial comments in 2012. In her deposition,
she stated that she was retaliated against for filing the 2013 CHRO
complaint by having her reserved parking space blocked, by being denied
freedom of information requests, and by not receiving any salary
increases.3

Defendant asserts that plaintiff cannot establish a prima facie

case of retaliation.
In order to establish a prima facie case of retaliation, plaintiff must
show that “(1) she had engaged in protected activity, (2) the employer was
aware of that activity, (3) an employment action adverse to the plaintiff
occurred, and (4) there existed a causal connection between the protected
activity and the adverse employment action.”
670 F.3d 127, 157 (2d Cir. 2012).

Lore v. City of Syracuse,

To prevail on a retaliation claim, plaintiff

need not prove the merit of her underlying complaint of discrimination, but
only that she had a “good faith, reasonable belief that the underlying
employment practice was unlawful.” Kwan v. Andalex Grp. LLC, 737 F.3d
834, 843 (2d Cir. 2013).

3

The Court will construe the complaint of retaliation most liberally to assert
retaliatory acts of denial of pay increases, denial of freedom of information
requests, and blocking of her parking space.
13

In the context of retaliation, the applicable standard for adverse
employment action is broader than that applied to discrimination claims.
Santiesteban v. Nestle Waters North America, Inc., 61 F. Supp. 3d 221,
241 (E.D.N.Y. 2014).

A “plaintiff must show that a reasonable employee

would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”

Burlington Northern &

Santa Fe Railway Co., 548 U.S. 53, 68 (2006). Adverse employment
action must be “more disruptive than a mere inconvenience or an alteration
of job responsibilities...;” it may include “a less distinguished title, a material
loss of benefits, significantly diminished material responsibilities, or other
indices ... unique to a particular situation.”

Chung v. City Univ. of N.Y.,

605 Fed. Appx. 20, 22 (2d Cir. 2015). However, actions that are “trivial
harms” such as “petty slights or minor annoyances that often take place at
work and that all employees experience” are not materially adverse.
Burlington, 548 U.S. at 68.
A plaintiff can establish a causal connection between the protected
activity and the adverse employment action through indirect evidence such
as showing a temporal proximity between the protected activity and
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retaliation, or the disparate treatment of comparable employees who
engaged in similar conduct.
(W.D.N.Y. July 17, 2018).

Fullwood v. Sodexo, Inc., 2018 WL 3439866
To satisfy the causation showing based

on temporal proximity, the retaliatory conduct must have followed “very
close” in time after the protected activity.

Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001). The Second Circuit has not
established a “bright line to define the outer limits beyond which a temporal
relationship is too attenuated.” Summa v. Hofstra Univ., 708 F.3d 115, 128
(2d Cir. 2013). Thus, the Court may “exercise its judgment about the
permissible inferences that can be drawn from temporal proximity in the
context of particular cases.”

Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.

2009).
If plaintiff establishes a prima facie case, defendant must articulate a
legitimate, non-retaliatory reason for the challenged employment decision;
plaintiff must then “point to evidence that would be sufficient to permit a
rational factfinder to conclude that the employer’s explanation is merely a
pretext for impermissible retaliation.”

Treglia v. Town of Manlius, 313 F.3d

713, 721 (2d Cir. 2002).
Even assuming that the asserted retaliatory acts – blocking the
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parking space, denying freedom of information acts, and failing to increase
her pay – all constitute adverse employment action, the Court finds that
summary judgment should enter in favor of defendant.
The incident concerning her parking space occurred more than two
and a half years after her CHRO complaint filing.

The Court finds, based

on the circumstances of this action, that more than two years between the
protected activity and the blocking of the parking space does not support
an inference of causation.

See Bonano v. Staniszewski, 2016 WL

11263168, at *10 (E.D.N.Y. Sept. 2, 2016) (citing cases finding one year,
two years, and three years to be attenuated for purposes of showing
causation).
The Court has no information about the denial of freedom of
information requests except that plaintiff asserts that she was not provided
with a copy of the incident report relative to the parking space incident, and
that the police have told her that such report does not exist.

However,

such denial also occurred in 2015, and plaintiff has offered no evidence to
establish a causal connection between the asserted retaliatory conduct by
the police and her complaints about discrimination to the CHRO or
defendant.
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Finally, with regard to her claim that defendant retaliated against her
by failing to increase her salary, plaintiff has not adduced evidence to
support such a claim of retaliation.
a salary increase in 2014.

Plaintiff does not dispute she received

As previously discussed, plaintiff’s asserted

comparators are not so similarly situation in all material respects to give
rise to an inference of discriminatory or retaliatory animus.
Accordingly, the Court will enter summary judgment in defendant’s
favor.
C.

CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment [doc.
#22] is GRANTED.

The clerk is instructed to close this case.

Dated this 7th day of August, 2018 at Bridgeport, Connecticut.

/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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