Rubin v. ADT, LLC
Filing
59
ORDER granting in part and denying in part 42 Motion for Summary Judgment. For the reasons set forth in the attached decision, the Defendants motion for summary judgment is GRANTED as to Count Two and DENIED as to Count One. The parties Joint Tri al Memorandum is due on or before October 12, 2019. (See ECF No. 33.) The Joint Trial Memorandum shall comport with this Court's standing order, which will be separately docketed. Signed by Judge Kari A. Dooley on 9/12/2019. (Beyerlein, Alexis)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL RUBIN
Plaintiff,
)
)
)
)
)
)
)
v.
ADT, LLC
Defendant.
3:17-CV-01529 (KAD)
SEPTEMBER 12, 2019
MEMORANDUM OF DECISION
Kari A. Dooley, United States District Judge
This employment discrimination action arises out of the termination of Michael Rubin
(“Rubin”) during a reduction in force (“RIF”) at ADT, LLC (“ADT”) in 2016. Rubin asserts
claims for disability and age discrimination under the Connecticut Fair Employment Practices Act,
Conn. Gen. Stat. § 46a-51 et seq. (“CFEPA”). ADT has moved for summary judgment as to both
claims. For the reasons set forth in this decision, ADT’s motion for summary judgment is
GRANTED in part and DENIED in part.
Factual Background1
Rubin initially worked as a service technician and supervisor for a series of companies that
were ultimately acquired by ADT’s former parent company in 1998. (Def.’s SMF at ¶ 2.) Prior
to this acquisition, Rubin was counseled for performance deficiencies and demoted from a
supervisor position back to a technician position. (Id. at ¶ 3.) Rubin was later promoted back to a
supervisor position shortly before ADT’s acquisition of the predecessor company. (Id.)
On April 25, 2012, Rubin (then age 54) was promoted to the position of Installation Team
Manager in the Shelton office of ADT’s Connecticut/Western Massachusetts market area. (Id. at
1
Unless otherwise indicated, the following facts are either undisputed or construed in a light most favorable
to Rubin, the non-moving party.
¶¶ 8–9.) During 2012, Rubin began to experience balance issues. (Id. at ¶ 12; see also Plf.’s
Response to Def.’s SMF at ¶ 12.) Rubin recalls one episode in the summer of 2012 when he fell,
but it was not at work. (Def.’s SMF at ¶ 13.)
On July 15, 2013, Rubin received a written warning because his technicians were refusing
to pick up additional work, and Rubin could not be reached to address the problem. (Id. at ¶ 14.)
In response, Rubin filed a rebuttal in which he explained that the telephone call at issue occurred
on a Saturday while he was having a serious conversation with his father. (Plf.’s Dep. at 59–60.)
He maintains that he called back as soon as his conversation with his father was over, which was
approximately an hour after receiving the initial call. (Id.)
The following month, on August 9, 2013, Rubin was coached for below standards mobility
utilization, not fulfilling his administrative requirements, and not updating safety websites on a
monthly basis. (Def.’s SMF at ¶ 15; Def.’s Ex. 13.) On October 11, 2013, Rubin was placed on
a Performance Improvement Plan (“PIP”) due to his continued failure to meet the job requirements
of an Installation Team Manager. (Def.’s SMF at ¶ 16; Def.’s Ex. 14.) In the PIP, Rubin’s
supervisor noted that he had previously communicated with Rubin concerning “stranded capacity
jobs, techs schedules not being full and backlog management.” (Def.’s Ex. 14.) He further noted
that although Rubin had received coaching regarding his response to an injured employee in July,
Rubin had recently failed to report another injury in a timely fashion. (Id.)
In 2013, Rubin was also misdiagnosed with multiple sclerosis before being re-diagnosed
with isolated myelitis. (Def.’s SMF at ¶ 17.) Rubin did not receive any medication for his
condition. (Id.) Although Rubin never reported his medical condition to human resources, he did
tell his colleagues at ADT about his health issues and began using a cane while in the field. (Def.’s
SMF at ¶¶ 18–19; Plf.’s Dep. at 30–35.)
2
On January 22, 2015, one of Rubin’s team members was injured while using a personal
knife in violation of company policy. (Def.’s SMF at ¶ 24.) During a review of this incident on
March 19, 2015, Rubin was reminded that personal tools, such as knives or box cutters, were not
approved for use by technicians. (Id. at ¶ 25; Def.’s Ex. 17.)
In May 2015, Anthony Peluso became the Area General Manager and Rubin’s supervisor.
(Def.’s SMF at ¶ 29.) Thereafter, on May 19, 2015, another team member under Rubin’s
supervision was injured while using an unauthorized knife. (Id. at ¶ 27.) The injury occurred
during a safety audit and in front of the safety director. (Peluso Dep. at 39; see also Plf.’s Dep. at
82; Stewart Dep. at 22.) In response, Peluso issued Rubin a “final warning” and admonished him
concerning the need to improve. (Def.’s SMF at ¶ 28; Def.’s Ex. 17.)
Around this time, Susan Masella, an installation coordinator in the Shelton office, heard
Rubin discuss his doctor’s appointments and treatment plan with Peluso. (Masella Dep. at 33.)
She further heard Peluso make comments to Rubin and others in the office regarding Rubin’s gait
and instability “in a joking fashion” or in a “condescending manner.” (Id. at 13, 31; see also id. at
25.) Masella thought that Peluso seemed “very agitated with the fact that [Rubin] was unsteady
on his feet” and his comments about Rubin made her uncomfortable. (Id. at 31–32.) Peluso denies
making these remarks or ever talking with anyone about Rubin’s gait or health, in a joking manner
or otherwise. (Peluso Dep. at 53, 128–29.)
In November 2015, Masella was terminated as part of a RIF. (Def.’s SMF at ¶ 32.) The
following month, in December 2015, Peluso (then age 29) swapped Rubin (then age 57) and Edwin
Sepulveda, a Service Team Manager, (then age 51) in their respective managerial roles. (Def.’s
SMF at ¶¶ 52–54, 71; Peluso Dep. at 13; Plf.’s Ex. K at 15.)
3
In approximately August 2016, ADT decided to eliminate one of its seven manager
positions in the Connecticut/Western Massachusetts area market as a necessary reduction in force.
(Def.’s SMF at ¶ 55.) Similar RIFs were occurring in other regions across the country. (Id. at ¶
56.) Consistent with ADT’s standardized RIF process, Michael Stewart (then approximately age
54), from human resources, collected information and data on the seven eligible managers,
including Rubin. (Id. at 58.) Stewart collected each of the manager’s last two performance
appraisals and looked for disciplinary actions in the previous five years.2 (Stewart Dep. at 24, 32–
33.) He then provided this information and a RIF worksheet to Peluso (then age 30), who rated
the managers on a scale of 1 to 5 on four key competencies or skills with a possible high score
across all categories of 20. (Def.’s SMF at 59–60; see also Def.’s Ex. 19; Plf.’s Ex. L.)
The completed RIF worksheet contained the following relevant information:
2
Rubin maintains that Stewart looked back only two years for disciplinary history and, therefore, his pre2014 disciplinary history, having not been considered, is irrelevant in this action. As a factual matter, Rubin is
mistaken. Stewart did testify that he looked back only two years for performance appraisals. When asked how far
back he looked for disciplinary actions, however, Stewart responded:
I don’t know how far back they went. But the one or two that — again, on memory
that I’m aware of — were fairly recent in the last — again, going on memory, five
years or less. I think the most recent one was — was a couple, two years ago from
the day he was terminated back in, what, December 2016.
(Stewart Dep. at 32–33.) Later, Stewart reaffirmed that he believed that Rubin’s 2013 disciplinary actions would have
been looked at and that he was aware that Rubin had a disciplinary history, including a final written warning.
Accordingly, Rubin’s pre-2014 disciplinary history, having been relied upon in the determination to terminate his
employment, is relevant to the Court’s analysis of Rubin’s claims.
4
Last
Name
First
Initial3
Title
2015
Performance
Leadership
Talent
Management
Customer
Focus
Total Score
Gajewski
J.
Mgt Team
Install
2
3
3
5
13
Lamonica
A.
Mgt Team
Service
2
1
1
4
8
Ortega
J.
Mgt Team
Install
2
2
2
5
11
Rubin
M.
Mgt Team
Service
2
1
1
5
9
Sepulveda
E.
Mgt Team
Install
2
3
3
5
13
Shea
P.
Mgt Team
Service
4
3
4
4
15
White
D.
Mgt Team
Install
4
3
3
5
15
(Def.’s Ex. 19; Plf.’s Ex. L.)
The RIF worksheet further noted that none of the managers had any corrective action in
the past twelve months. (Id.) In the notes section, however, Peluso highlighted Rubin’s older
disciplinary history and other performance shortcomings.4 (Id.) He similarly noted that another
manager, J. Ortega, was given a final warning the prior year for improper use of a company credit
card but had since been in compliance. (Id.) Overall, Rubin received the second lowest score of
the seven managers on the RIF worksheet. (Id.; Def.’s SMF at ¶ 66.) The only manager to receive
a lower score, A. Lamonica (then age 48), was also the only female manager and had no
disciplinary record. (Def.’s SMF at ¶ 66.)
3
To protect their privacy, the Court has omitted the first names of the other managers considered during the
4
The note stated:
RIF.
Michael was issued a final (5/21/15) and verbal coaching on management. His
technician was carrying a non ADT approved tool (Box Cutter). Michael has also
showed lack of leadership and management to his direct reports; proper inventory
counts were not conducted as required by AGM, no auditing on time tickets prior
to AGM requirements.
(Def.’s Ex. 19; Plf.’s Ex. L.)
5
Peluso provided the completed worksheet to Stewart, who forwarded it to the ultimate
decision-makers in ADT’s legal and human resources departments. (Stewart Dep. at 24, 60–61.)
Stewart testified that he knew Rubin would be selected even before the official decision was made
based on Rubin’s ranking. (Id. at 61.)
In October 2016, and prior to his termination, Peluso allegedly “made a crack about me,
my abilities with my walk.” (Rubin Dep. at 39.) Rubin responded by asking, “Do I need to go to
the ethics line?” (Id.) Peluso allegedly retorted, “You wouldn’t dare,” and walked away. (Id.)
Rubin did not thereafter report this exchange to anyone at ADT. (Id. at 40.)
Sometime thereafter, Rubin was officially selected for termination. (Def.’s SMF at ¶ 69.)
Rubin’s termination was effective on December 1, 2016. (Id. at ¶ 70.) ADT did not subsequently
fill Rubin’s vacated managerial position; instead, other managers absorbed Rubin’s duties. (See
id. at ¶ 72.) In March 2017, Peluso was terminated due to the still on-going RIFs. (Id. at ¶ 75.)
In October 2017, Stewart was terminated due to the RIFs. (Id. at ¶ 76.)
Additional facts will be set forth as necessary.
Standard of Review
The standard under which the Court reviews motions for summary judgment is wellestablished. “The court shall grant summary judgment 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). A fact is “material” if it “might affect the outcome of the suit under governing law,”
while a dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
6
The court’s inquiry focuses on “whether there is the need for a trial — whether, in other
words, there are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Id. at 250. As a result, the
moving party satisfies his burden under Rule 56 “by showing . . . that there is an absence of
evidence to support the nonmoving party’s case” at trial. PepsiCo, Inc. v. Coca-Cola Co., 315
F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks omitted). Once the movant
meets his burden, the nonmoving party must set forth “‘specific facts’ demonstrating that there is
‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R.
Civ. P. 56(e)). “[T]he party opposing summary judgment may not merely rest on the allegations
or denials of his pleading” to establish the existence of a disputed fact. Id.; accord Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990). “[M]ere speculation or conjecture as to the true nature
of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citations omitted;
internal quotation marks omitted). Nor will wholly implausible claims or bald assertions that are
unsupported by evidence. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Argus Inc. v.
Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). “In deciding a motion for summary
judgment, the district court’s function is not to weigh the evidence or resolve issues of fact; it is
7
confined to deciding whether a rational juror could find in favor of the non-moving party.” Lucente
v. Int’l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002).
Discussion
The CFEPA prohibits employers from discriminating against employees on the basis of
certain characteristics, including physical disability or age. Conn. Gen. Stat. § 46a-60(b)(1).
CFEPA claims are analyzed under the familiar burden-shifting framework set forth in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Clark v. Stop & Shop Supermarket Co., No.
3:15-cv-00304 (JCH), 2016 WL 4408983, at *3 (D. Conn. Aug. 16, 2016); see Feliciano v.
Autozone. Inc., 316 Conn. 65, 73 (2015) (“We look to federal law for guidance on interpreting
state employment discrimination law, and the analysis is the same under both.”).
“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). “The burden of proof that must be
met to permit an employment discrimination plaintiff to survive a summary judgment motion at
the prima facie stage is de minimis.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d
Cir. 1994) (alteration omitted; internal quotation marks omitted). To establish a prima facie case
of discrimination, “a plaintiff must show that (1) he is a member of a protected class; (2) he was
qualified for the position he held; (3) he suffered an adverse employment action; and (4) the
adverse action took place under circumstances giving rise to the inference of discrimination.” Ruiz,
609 F.3d at 491–92. “Because an employer who discriminates is unlikely to leave a ‘smoking gun’
attesting to a discriminatory intent, a victim of discrimination is seldom able to prove his claim by
direct evidence and is usually constrained to rely on circumstantial evidence.” Chambers, 43 F.3d
at 37. “Circumstances contributing to a permissible inference of discriminatory intent may include
the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the
8
plaintiff’s qualifications to fill that position, or 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, or the timing of the discharge.”
Id. (citations omitted).
“Once the plaintiff has presented a prima facie case of discrimination, the defendant has
the burden of producing, through the introduction of admissible evidence, reasons for its actions
which, if believed by the trier of fact, would support a finding that unlawful discrimination was
not the cause of the employment action.
After the defendant has articulated such
nondiscriminatory reasons, the plaintiff has an opportunity to show that the reason was merely a
pretext for discrimination. Pretext may be demonstrated either by the presentation of additional
evidence showing that the employer’s proffered explanation is unworthy of credence or by reliance
on the evidence comprising the prima facie case, without more.” Id. at 38 (citations omitted;
emphasis omitted; internal quotation marks omitted).5
Disability Discrimination Claim (Count One)
ADT contends that the record establishes that Rubin was terminated because of his poor
work performance and disciplinary history, in conjunction with the RIF, rather than because of
The parties dispute whether the “but for” standard or “mixed motive” standard applies to disability
discrimination claims brought under the CFEPA. In Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), the United
States Supreme Court adopted the “but for” standard for claims brought under the Age Discrimination in Employment
Act of 1967. Id. at 169–170. The Second Circuit Court of Appeals recently expanded this holding to disability
discrimination claims brought under the Americans with Disabilities Act. Natofsky v. City of New York, 921 F.3d 337,
341 (2d Cir. 2019). The Connecticut Supreme Court and the Connecticut Appellate Court have not addressed to what
extent, if any, Gross changes the legal landscape for claims brought under the CFEPA. There is non-binding precedent
on both sides of the issue. Weisenbach v. LQ Mgmt., No. 3:13-cv-01663 (MPS), 2015 WL 5680322, at *7–*8 (D.
Conn. Sept. 25, 2015) (collecting cases). Whether the more stringent “but for” standard or “mixed motive” standard
applies is not dispositive for purposes of summary judgment. Accordingly, the Court assumes that the “but for”
standard applies.
5
9
any disability, perceived or otherwise. Rubin argues that Peluso’s comments about his gait,
scoring of the RIF worksheet, and disparate treatment of disabled and non-disabled employees
establish that Peluso discriminated against him based on a perceived disability during the RIF
process.6
Here, there is evidence that Peluso perceived Rubin to be disabled. Masella testified that
she heard Rubin discuss his doctor’s appointments and treatment plan with Peluso; (Masella Dep.
at 33.); that she heard Peluso make derogatory comments about Rubin’s gait and instability on “six
or seven” occasions prior to her termination; (id. at 13, 31); and that Peluso seemed “very agitated
with the fact that [Rubin] was unsteady on his feet”; (id. at 32). Rubin similarly testified that in or
about October 2016 Peluso “made a crack about me, my abilities with my walk.” (Rubin Dep. at
39.) Although Peluso denies making any of these remarks, the Court must construe all of the
evidence in a light most favorable to Rubin. Upon doing so, the Court concludes that there is a
genuine issue of material fact as to whether ADT, through Peluso, perceived Rubin to be disabled.
ADT next asserts that Rubin cannot establish that the circumstances of his termination give
rise to an inference of discriminatory intent for purposes of demonstrating his prime facie case.7
Rubin argues that discriminatory intent can be inferred not only from the testimony cited above
regarding Peluso’s derogatory comments, but also from Peluso’s questionable, and arguably
6
In seeking summary judgment, ADT first asserts that there is no evidence that Rubin was disabled or that
ADT was aware of Rubin’s disability, assuming he had one. It is certainly undisputed that Rubin never reported any
disability to ADT. However, ADT’s assessment, even if accurate, does not end the inquiry. Rubin does not proceed
on a theory that ADT was aware of an actual disability when it terminated him. Rather, Rubin’s claim is premised on
the theory that ADT, through Peluso, perceived him to be disabled and treated him adversely because of that
perception. The CFEPA applies with equal force to claims based on actual or perceived physical disabilities.
Desrosiers v. Diageo N. Am., Inc., 314 Conn. 773, 786 (2014).
7
Peluso was not the final decision-maker for the RIF in 2016 that resulted in Rubin’s termination. So, the
Court assumes that Rubin proceeds under a Cat’s Paw theory of liability. “Under a Cat’s Paw theory of liability, a
discriminatory motive may be imputed to a final decision-maker if the decision-maker’s adverse employment action
was proximately caused by a subordinate who had a discriminatory motive and intended to bring about the adverse
employment action.” Natofsky, 921 F.3d at 350 (internal quotation marks omitted). Courts in this District have
previously applied the Cat’s Paw theory in CFEPA employment discrimination cases. Delgado v. City of Stamford,
No. 3:11-cv-01735 (VAB), 2015 WL 6675534, at *19 (D. Conn. Nov. 2, 2015) (collecting cases).
10
manipulative, scoring on the RIF worksheet. Rubin also argues that discriminatory intent may be
inferred from Peluso’s disparate treatment of non-disabled managers — namely, P. Shea, Ortega,
and J. Gajewski — when handling both disciplinary matters and scoring the RIF worksheet. The
Court agrees with Rubin that there are triable issues of fact on this issue.
First, Rubin argues that discriminatory intent can be inferred from Peluso’s derogatory
comments about his gait, which were overheard by both him and Masella. ADT responds that this
is too great an inferential leap because the remarks overheard by Masella were mere “stray
remarks” and temporally remote from Rubin’s termination. The Court is not persuaded. Masella
testified that she heard Peluso making joking and derogatory remarks about Rubin on multiple
occasions to Rubin and others. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d
107, 124 n.12 (2d Cir. 2004) (rejecting characterization of remarks about plaintiff’s motherhood
as “stray remarks” where they were “made repeatedly”). And although the remarks Massella heard
were temporally remote to Rubin’s termination, Rubin also testified that Peluso made a derogatory
remark to him about his gait in October 2016, two months before his termination. Together this
evidence supports an inference of animus toward Rubin because of his perceived disability, an
animus that persisted until shortly before his termination.
ADT alternatively contends that any inference that Peluso was biased against Rubin is
undermined by the fact that Peluso moved Rubin into a leadership role the year before Rubin’s
termination. Under the so-called same-actor inference, when the individual who made the
discharge decision is the same individual who hired the employee, and the hiring or and discharge
occur within a relatively short time span, an inference can be made that discrimination was not a
motivating factor in an employee’s discharge. Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir.
2003) (“when the person who made the decision to fire was the same person who made the decision
11
to hire, especially when the firing occurred only a short time after the hiring, it is difficult to impute
[to the decisionmaker] an invidious firing motivation that would be inconsistent with [the] decision
to hire.”). Under the facts and circumstances of this case, as discussed above, the same actor
inference does not eliminate the genuine issues of material fact concerning discriminatory intent.
See Varno v. Jefferson Cty. Dep’t of Planning, No. 7:11-cv-00803, 2015 WL 5602965, at *5
(N.D.N.Y. Sept. 23, 2015) (“The same-actor inference is not dispositive, however, when the
decisionmaker makes comments demonstrating discriminatory animus.”), aff’d sub nom. Varno v.
Canfield, 664 Fed. Appx. 63 (2d Cir. 2016) (summary order). ADT is free to argue the inference
at trial and it will be for the jury to determine what if any weight to give to the fact that Peluso
moved Rubin into another supervisory role the year before his termination.
Finally, Rubin argues that certain peculiarities in the scoring of the RIF worksheet further
support the inference that Peluso deliberately scored it to ensure that he was selected. The Court
agrees. As previously discussed, Stewart asked Peluso to complete a RIF worksheet. Peluso and
Stewart testified that the overall ratings of the managers for each employee was supposed to be
based on their 2015 Performance Evaluations. Yet, in some respects, Rubin’s scores on the
worksheet do not align with his 2015 Performance Evaluation, to his detriment. For example, in
his 2015 Performance Evaluation, Rubin scored a 3 overall and a 3.5 in leadership competencies,
but Rubin’s score for 2015 Performance on the RIF worksheet is a 2 and his Leadership is a 1.
Notably, had Rubin’s ratings in the RIF worksheet aligned with his 2015 Performance Evaluation
in these areas, Rubin’s score would have been three points higher overall and one point higher than
Ortega. And a jury could reasonably conclude that Ortega was also a possible candidate for
reduction and might have been selected instead of Rubin had Rubin’s score been fairly calculated.
12
All of this evidence, in sum, is grist for the jury’s mill. It is not for this Court, on summary
judgment, to decide the impact or import of the evidence. Rather, the Court merely determines
whether there is sufficiently competing evidence on issues of material fact so as to require a trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“at the summary judgment stage the
judge’s function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial”). Here, there are genuine issues of material
fact concerning Rubin’s prima facie case.8
Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant to offer a legitimate non-discriminatory reason for the termination. Chambers v. TRM
Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994). Rubin does not contest that ADT can meet
this burden. It is undisputed that ADT was undergoing a series of nationwide RIFs around the
time period that Rubin was terminated. Once the defendant comes forward with a legitimate nondiscriminatory reason for the termination, the burden shifts back to the plaintiff to establish that
the purported reason is mere pretext and that the termination was the result of discriminatory
animus.
8
The Court does not rely on any claim by Rubin that he was subject to disparate treatment as means to infer
discriminatory intent. The evidence submitted, in the Court’s view, does not support any such claim. For example,
Rubin takes issue with the fact that Shea was not punished for a subordinate’s motor vehicle accident in early 2014
and that the incident was not mentioned in the RIF worksheet. But there is little to no evidence before the Court
concerning this accident or Shea’s discipline for it. Without such evidence it would be mere speculation that Peluso’s
failure to include this incident in the RIF worksheet was the result of discriminatory animus. Similarly, the record
does not support a disparate treatment argument with respect to Ortega. Like Rubin, Ortega was disciplined for
misconduct, i.e., his misuse of a company credit card, and the misconduct was highlighted on the RIF worksheet. Nor
is there anything inherently suspect about Ortega receiving a 2 in the Leadership category on the RIF worksheet, as
Rubin suggests, in light of his total leadership competencies score on his 2015 Performance Evaluation. Finally,
Rubin complains that Gajewski was not punished for one of his employees not wearing appropriate footwear, nor was
it put on the RIF worksheet. Rubin equates this incident with the two incidents in which two of his team members
were injured while using unauthorized knives or box cutters. Again, there is insufficient evidence before the Court
regarding the footwear incident, making an inference of disparate treatment purely speculative. Rubin also suggests
that Gajewski received inflated scores on the RIF worksheet, but the record does not support this contention either.
13
On the issue of pretext, Rubin relies on the same evidence used to establish his prima facie
case as discussed above. A plaintiff may rely upon the same evidence in establishing both the
prime facie case and pretext once the burden shifts back. Kerzer v. Kingly Mfg., 156 F.3d 396,
402 (2d Cir. 1998); DeAngelo v. Yellowbook Inc., 105 F. Supp. 3d 166, 177 (D. Conn. 2015). ADT
responds that the undisputed facts establish that Rubin was selected for reduction because his
performance and disciplinary record were worse than his peers. The Court disagrees that this fact
is undisputed. As previously discussed, there is evidence from which a jury could reasonably
conclude that but for Peluso deliberately downgrading Rubin on the RIF worksheet he might not
have been selected for the RIF, as the next lowest scoring manager, Ortega, also had a disciplinary
history and performance issues. Construing all of the evidence in a light most favorable to Rubin,
the Court concludes that there are triable issues of fact not only with respect to his prime facie case
but also on the issue of pretext. The motion for summary judgment is denied as to Count One.
Age Discrimination Claim (Count Two)
ADT also moves for summary judgment on Rubin’s age discrimination claim, arguing that
none of the circumstances surrounding Rubin’s termination give rise to a reasonable inference of
age discrimination.
Rubin responds that age discrimination can be inferred from Peluso’s
comparative youth and the fact that Peluso treated younger employees more favorably. The Court
concludes that Rubin cannot establish a prima facie case of age discrimination.
It is well established that “a jury cannot infer discrimination from thin air.” Norton v.
Sam’s Club, 145 F.3d 114, 119 (2d Cir. 1998). As the Second Circuit has noted:
It is not infrequent that people who are dismissed are fired by
managers who differ from them in some respect — managers who
are younger or older, or of a different race or gender. If that fact,
without more, could suffice to support the finding of discrimination
. . . , it would be hard to imagine a termination that could not be
attributed to discrimination.
14
Id.
Here, Rubin identifies no evidence, direct or circumstantial, that age discrimination played
a role in his termination. The mere fact that Peluso is younger than Rubin and may have treated
him unfairly during the RIF process, is legally insufficient on its own to establish a triable age
discrimination claim. Rubin contends that other, younger managers — Shea, Ortega, and Gajewski
— were not disciplined as harshly and were treated more favorably during the RIF. As previously
noted, the facts do not support Rubin’s disparate treatment claims regarding Shea, Ortega, and
Gajewski. See footnote 6 of this decision. In addition, Peluso appears to have treated Sepulveda,
who was 52 years old at the time of the RIF, favorably. Peluso provided Sepulveda with favorable
scores on the RIF, and Sepulveda tied for the second highest ranked manager. Rubin further
testified that after he was terminated Sepulveda assumed his duties before resigning one or two
months later.9
It is but pure speculation that ADT discriminated against Rubin on the basis of age. The
motion for summary judgment as to count two is granted. See Norton, 145 F.3d at 120 (reversing
jury verdict in favor of plaintiff where record was “devoid of evidence, direct or circumstantial,
sufficient to support a finding that Sam’s Club fired Norton because of his age”).
Conclusion
For the reasons set forth in this decision, ADT’s motion for summary judgment [ECF No.
42] is GRANTED as to Count Two and DENIED as to Count One.
9
Rubin now maintains that the younger Gajewski assumed his duties. The Court rejects this assertion because
Rubin himself testified that Sepulveda assumed his duties after his termination. (Rubin Dep. at 106, 116–17.) Peluso’s
testimony was less clear, as he could not remember precisely what happened, but he indicated that Gajewski and
Sepulveda at differing times absorbed Rubin’s duties. (Peluso Dep. at 124.)
15
SO ORDERED at Bridgeport, Connecticut, this 12th day of September 2019.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE
16
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