Opinion
No. CV05-4003197S
May 17, 2006
MEMORANDUM OF DECISION
On May 9, 2005, the plaintiff, Wendy Poeta-Tisi, filed a single-count complaint against the defendant, Griffin Hospital, alleging discrimination based upon age and sex in violation of General Statutes §§ 46a-58(a), 46a-60(a)(1), 46a-60(a)(3), 46a-60(a)(4) and 46a-60(a)(5), the Connecticut Fair Employment Practices Act. The hospital filed an answer with special defenses on July 5, 2005.
The plaintiff in her memorandum in opposition to the motion for summary judgment withdrew this claim because "the allegation of sex discrimination has not been supported by the evidence."
The complaint alleges the following facts. The plaintiff is a woman born on September 6, 1955. The plaintiff applied for several employment positions at the hospital, including laboratory customer service representative, distribution supervisor, registration assistant and 24-hour medical records clerk. The plaintiff further alleges that although she was qualified for each position, the person hired for each position and the other positions for which the plaintiff applied was younger and/or male. Furthermore, the plaintiff alleges that she was finally accepted as a soft touch volunteer at the hospital on August 3, 2004, but received a letter on August 9, 2004, from the director of human resources "rejecting her multiple applications for employment with Griffin Hospital and informing [her] that the plaintiff would not be permitted to serve as a volunteer at the hospital in any capacity." The stated reason for this letter was that the plaintiff "exhibited hostile behavior after having been rejected for several positions and an unwillingness to accept the protocol of [the hospital's] hiring process."
On February 3, 2006, the hospital filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff was discriminated against based on her age and that it is entitled to judgment as a matter of law. The hospital submitted a memorandum of law and the following evidence: (1) a copy of excerpts from the plaintiff's deposition testimony dated November 10, 2005; (2) a copy of excerpts from the plaintiff's deposition testimony dated January 5, 2006; (3) a copy of the plaintiff's resume, which is labeled as exhibit one from the plaintiff's November 10, 2005, deposition; (4) a copy of the plaintiff's resume, which is labeled as exhibit six from the plaintiff's January 5, 2006, deposition; (5) a copy of the plaintiff's application to the hospital dated May 20, 2004; (6) a copy of excerpts from the deposition of Janice Yankowski, the director of the hospital's human resources department; (7) a copy of excerpts from the deposition of Tricia Pereira, who is employed in the hospital's human resources department; (8) a signed and sworn affidavit of Pereira accompanied by a copy of the hospital's employment policy and a copy of the job posting program policy; (9) a copy of a letter dated September 21, 2003, from the plaintiff to Patrick Charmel, president of the hospital; (10) a copy of a letter dated January 2, 2004, from the plaintiff to Charmel; (11) a copy of excerpts from the deposition of Anastasia Timpko, director of the hospital's volunteer and community services program; (12) a copy of a letter dated August 3, 2004, from the hospital to the plaintiff regarding the soft touch volunteer position; (13) a copy of a letter dated August 9, 2004, from the hospital to the plaintiff; (14) a copy of the plaintiff's complaint filed on September 27, 2004, with the Connecticut Commission on Human Rights and Opportunities (CHRO); (15) a copy of the plaintiff's reply dated December 28, 2004, with CHRO; (16) a copy of CHRO's merit assessment review dated February 16, 2005; and (17) a copy of a letter from the plaintiff to the hospital dated May 20, 2004.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Because the plaintiff failed to object to the hospital's use of unauthenticated evidence and there is no dispute as to their authenticity, this court will consider such documents in its determination of the motion for summary judgment. See Mates v. Syed, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001655 (January 12, 2006, Brunetti, J.); Farina v. Modzelewski, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075133 (November 10, 2004, Curran, J.T.R.) ( 38 Conn. L. Rptr. 261, 262 n. 1), aff'd, 94 Conn.App. 203, 891 A.2d 138 (2006).
The plaintiff filed a memorandum in opposition on February 14, 2006. The plaintiff did not submit any evidence in support. The hospital filed a reply memorandum on February 15, 2006. This matter was heard on the short calendar on February 20, 2006.
"A party objecting to a properly submitted motion for summary judgment is required to support the objection by affidavits or other documentary evidence, especially if the objection is based on the existence of material issues of disputed fact. The rules of practice use mandatory language in this regard: `[t]he adverse party shall . . . file opposing affidavits and other available documentary evidence.' [Practice Book] § 17-45. Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.
"The law is also well settled that the plaintiff's reference to or reliance on unadmitted allegations in the pleadings is insufficient to establish the existence of material, factual disputes . . . Similarly, a plaintiff cannot establish the existence of disputed facts by relying on bald exhortations in the opposing memorandum. Under Section 17-46 of the Practice Book, affidavits in opposition to a summary judgment motion must be based on facts as would be admissible in evidence from a person who has knowledge and who is competent to testify. Arguments from counsel obviously do not satisfy this rule . . . Since an evidentiary showing is indispensable, general averments will not suffice to show a triable issue of fact. Moreover, mere conclusions are insufficient as is evidence which would be inadmissible hearsay. Indeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue existed." (Internal quotation marks omitted.) Galligan v. Milford Public Schools, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085584 (January 27, 2006, Stevens, J.).
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "The genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
The hospital argues that the plaintiff has not established her prima facie case of age discrimination pursuant to § 46a-60(a)(1) for several reasons: (1) the plaintiff cannot prove that she was qualified for the positions to which she applied; (2) there is no inference of age discrimination where the hospital did not know of the plaintiff's age and where the decision maker was the same sex, female, and older than the plaintiff; and (3) the plaintiff has not established a prima facie case because a subjective belief of discrimination is insufficient to create an inference of discrimination. The hospital also argues that even if the plaintiff has established a prima facie case for age discrimination, the hospital has a legitimate, nondiscriminatory reason for not hiring the plaintiff. Finally, the hospital argues that the plaintiff's reliance on §§ 46a-58(a) and 46a-60(a)(3) and (a)(5) fail as a matter of law.
The plaintiff argues that she "must be the most rejected employment applicant in the history of the hospital" having applied for more than twenty-five positions with the hospital and rejected for all of them, including a volunteer position. Without submitting any evidence of her own in opposition to the hospital's motion and relying on some of the evidence submitted by the hospital, she maintains that she has established a prima facie case for age discrimination because she is a member of a protected class who was subjected to an employment action and that younger applicants were hired instead of her. The plaintiff also argues that "a jury could easily find the hospital's stated reasons for repeatedly hiring younger people in preference to the plaintiff to be pretextual" and courts are reluctant to grant summary judgment where an employer's intent is at issue and that "a jury question is presented by the evidence in this case."
General Statutes § 46a-60(a)(1)
The hospital first argues that the plaintiff has not established a prima facie case for age discrimination. Section 46a-60(a)(1) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section . . . [f]or an employer, by the employer or the employer's agent . . . to refuse to hire or employ . . . any individual . . . because of the individual's age . . ." "The framework for the burden of production of evidence and the burden of persuasion in an employment discrimination case is well established. [ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] and subsequent decisions have established an allocation of the burden of production and an order of presentation of proof . . . in discriminatory-treatment cases . . . First, the [complainant] must establish a prima facie case of discrimination . . . In order to establish a prima facie case, the complainant must prove that: (1) [s]he is in the protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination . . . Once the complainant establishes a prima facie case, the employer then must produce legitimate, nondiscriminatory reasons for its adverse employment action . . . This burden is one of production, not persuasion; it can involve no credibility assessment . . .
"After the plaintiff has established a prima facie case, and the [hospital] has produced evidence of a legitimate, nondiscriminatory reason for the employment action, [t]he plaintiff retains the burden of persuasion. [The plaintiff] now must have the opportunity to demonstrate that the [hospital's] proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination. [The plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence . . . Employment discrimination therefore can be proven either directly, with evidence that the employer was motivated by a discriminatory reason, or indirectly, by proving that the reason given by the employer was pretextual." (Citations omitted; emphasis in original; internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400-01, 880 A.2d 151 (2005). While courts "have characterized plaintiff's prima facie burden as `minimal' and `direct examination minimis;'" Woodman v. WWQR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005); Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002); that is not to say that the burden is nonexistent. See Curry v. Allan S. Goodman, Superior Court, judicial district of Hartford, Docket No. CV 02 0817767 (November 18, 2004, Stengel, J.) (granting motion for summary judgment where plaintiff claimed discrimination based on disability and failed to show that he was qualified for position), rev'd on other grounds, 95 Conn.App. 147 (2006).
In the present case, the hospital does not dispute that the plaintiff is a member of a protected class or that a failure to hire constitutes an adverse employment action. See Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (federal courts have defined adverse employment action broadly to include refusal to hire). The plaintiff must, however, bring forth evidence not only to show that she was qualified for her position but also that the adverse action occurred under circumstances giving rise to an inference of discrimination. On these factors, the plaintiff has failed to meet her burden.
In her complaint, the plaintiff states that she "was qualified" for each position, that these positions were available and were filled by younger persons. She argues in her memorandum that "[o]n almost all of those occasions she possessed the minimum qualifications for the positions." "Mere assertions of fact [however] . . . are insufficient to establish the existence of a material fact . . ." Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 664 A.2d 609 (1995).
The hospital presented admissible evidence that the plaintiff was not qualified for at least some of the positions to which she applied. For example, in her deposition Pereira, the recruiter of the hospital's human resources department, states that the plaintiff applied for (1) a phlebotomy position that required blood drawing experience, (2) an automatic technician position that required experience and (3) an outreach coordinator position that required the person to be bilingual, all of which the plaintiff did not possess and, therefore, was not qualified. Thus, the plaintiff has not met her burden of showing that she was qualified for the positions and the hospital has met its burden of showing no genuine issue of material fact is in dispute on this element of her age discrimination case.
"The most typical method used by plaintiffs to establish the fourth prong of a prima facie case [of discrimination] is to introduce evidence that the [hospital] later considered, hired, granted tenure to, or promoted comparably qualified individuals not in a protected class of individuals." Craine v. Trinity College, supra, 259 Conn. 639. In the complaint, the plaintiff alleges that the person ultimately hired for each position was younger. The plaintiff argues that an inference of discrimination must be drawn from that allegation because "it is apparent that she is well-qualified and interacts well with others" and "her employment history demonstrates that — with the exception of the hospital — employers have hired her readily and have been pleased with her work." The plaintiff, however, fails to submit any evidence in support of these allegations and arguments. Without such evidence, there can be no inference of discrimination. On the other hand, the hospital has presented an affidavit from Pereira in which she states that three of the twenty-two positions for which the plaintiff submitted applications were filled by persons older than the plaintiff and over eighteen percent of the hospital's workforce is age fifty or older. The affidavit also states that Yankowski, the director of the hospital's human resources department, is fourteen years older and Timpko, the director of the hospital's volunteer and community service program, is eleven years older than the plaintiff. See Drummond v. IPC International, Inc., United States District Court, Docket No. 03CV1187 (E.D.N.Y. November 18, 2005) ("well-recognized inference against discrimination exists where the person who participated in the allegedly adverse decision is also a member of the same protected class"); Marlow v. Office of Court Administration of New York, 820 F.Sup. 753, 757 (S.D.N.Y. 1993), aff'd, 22 F.3d 1091 (2d Cir.), cert. denied, 513 U.S. 897, 115 S.Ct. 252, 130 L.Ed.2d 173 (1994) (no inference of discrimination where decision makers were in the same protected class as the plaintiff). In addition, a copy of the hospital's employment policy, which is attached to the Pereira affidavit, states that "[i]t is the policy of the Hospital to employ people on the basis of their qualifications with assurance of equal opportunity and treatment regardless of . . . age . . ." and a copy of the plaintiff's application to the hospital shows that the hospital did not know the age of the plaintiff at the time of the application. The plaintiff cannot rely on mere assertions of fact that a disputed issue of fact exists, but has the burden of demonstrating with evidence the existence of a genuine issue of material fact. The plaintiff has failed to establish a prima facie case for age discrimination pursuant to § 46a-60(a)(1) and the hospital is entitled to judgment as a matter of law.
Assuming, arguendo, that the plaintiff met her burden of establishing a prima facie case, then it must determine whether the hospital met its burden of "produc[ing] legitimate, nondiscriminatory reasons for its adverse employment action." Jacobs v. General Electric Co., supra, 275 Conn. 400. In her deposition, the plaintiff testified that although, she may have the subjective belief that her age played a role in the hospital's decisions, she has no facts to support this conclusion. In addition, she affirmed that she was aware of the hospital's policies to provide favorable or preferential treatment for its current employees, who sought another job within the hospital and were equally qualified, and that from her experience at one of her prior jobs, she was also aware that this was a legitimate business policy.
The hospital submitted admissible evidence of its internal application procedures and screening process for applicants, which were in effect at the time that the plaintiff filed her applications for employment. These exhibits are attached to Pereira's affidavit in which she attests to their authenticity. The hiring policy, as noted previously, is to employ persons on the basis of their qualification with an equal opportunity regardless of, inter alia, age. In her deposition, Pereira explained the screening process for applicants. She testified that as an employer of choice, the hospital receives numerous applications and screens them to select applicants for an interview. She explained that on July 16, 2001, she had spoken with the plaintiff who called to determine why she had not been chosen to come in for an interview, that the plaintiff seemed to become angry and upset when she was told that the interview process had started and that, although she had not been chosen for an interview yet, she would be considered along with the other applicants, to which the plaintiff then responded that she was going to speak about this to the director of human resources and others in the administrative offices. Pereira also testified that the reason the plaintiff had not been selected for an interview was because she was overqualified for many of the positions and would be making much less money than at her current job; that for some of the positions, the plaintiff was not qualified; and for other positions current hospital employees applied, who if qualified, would receive preference. Furthermore, Yankowski testified at her deposition that in a conversation with Pereira, she noticed that Pereira was "visibly shaken" after she had spoken with the plaintiff on the phone concerning the hiring process at the hospital and its internal policy of hiring current staff. Pereira stated to Yankowski that "she felt [the plaintiff] was attacking her and she didn't know quite how to handle an attack like that." Pereira also stated that during their conversation, she believed that the plaintiff was "threatening" her and was a threat, in general, to the hospital.
The director of the volunteer program, Timpko testified at her deposition that she suggested the "soft touch" volunteer position to the plaintiff as a way for the plaintiff to have patient interaction and meet the needs of the hospital. Timpko made it clear to the plaintiff that prior to actually starting as a volunteer, the hospital required any new volunteers to attend a training program, and that the training director who was to train the plaintiff and others who were scheduled to start in August was not available until November of that year, even though each volunteer including the plaintiff had received a letter confirming a much earlier start date. As a result, Timpko stated she called the plaintiff and left a message of the change in starting dates, advising the plaintiff not to attend the earlier, canceled session but to wait for the orientation and training to be rescheduled in November. Pereira affirmed that she was "totally unnerved" when the plaintiff responded saying that if she could not volunteer at the hospital at the earlier time, there would be legal ramifications. Nonetheless, the plaintiff did appear at the hospital for the cancelled training session, which she knew had been postponed until November and she then indicated that she could not come in November, but was ready now for her orientation and if that was not to happen she would have to speak to someone in administration. Following this confrontation with the plaintiff, Timpko. testified she was so "visibly shaken" that she immediately spoke with Yankowski about the situation and resolved that she no longer could place the plaintiff in any volunteer position because her impression was that the plaintiff believed she "came first" and the patients second, which clearly was contrary to the hospital's policy. Based on these encounters with the plaintiff, the hospital decided that this behavior was inconsistent with its patient care philosophy, and, henceforth, it would no longer consider any applications from the plaintiff. See e.g., Marlow v. Office of Court Administration of New York, supra, 820 F.Sup. 758 (plaintiff's "belligerent attitude during his interviews provide[d] ample reasons for [the defendant's] refusal to select him for the position"). Although the plaintiff argues that these reasons presented by the hospital raise an issue of intent for the jury, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001). Since the plaintiff has not offered any evidence of age discrimination or that the hospital's proffered reasons are pretextual, there is no issue of material fact in dispute and the hospital is entitled to judgment as a matter of law on the plaintiff's allegation of age discrimination under § 46a-60(a)(1).
General Statutes § 46a-60(a)(4)
The hospital also argues that the plaintiff has not established a prima facie case for retaliation. Section 46a-60(a)(4) provides in relevant part that "[i]t shall be a discriminatory practice . . . [f]or any person . . . [or] employer . . . to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding . . ." The courts also use a burden-shifting approach for retaliation claims. "First, the plaintiff must establish a prima facie case. That is, an employee must show (1) participation in a protected activity; (2) that the hospital knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action . . . The burden of proof that must be met to permit a . . . plaintiff to survive a summary judgment motion at the prima facie stage has been characterized as minimal and direct examination minimis . . . In determining whether this initial burden is satisfied in a . . . retaliation claim, 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 . . .
"If a plaintiff sustains the initial burden, a presumption of retaliation arises. In turn, under the second step of the burden-shifting analysis, the onus falls on the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action . . . Finally, as for the third step, once an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action . . . In this regard, a retaliation claim follows the familiar burden-shifting framework developed to evaluate allegations of disparate treatment." (Citations omitted; internal quotation marks omitted.) Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); accord Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990); see also Yancey v. Allstate Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 97 0573357 (November 2, 1999, Peck, J.) (granting hospital's motion for summary judgment where plaintiff failed to establish adverse employment action under § 46a-60(a)(4)).
In the present case, the plaintiff again has failed to provide any admissible evidence and any legal argument with appropriate authority that any proffered reasons by the hospital were pretextual. The hospital maintains that it has presented uncontroverted evidence of legitimate, nondiscriminatory reasons for its actions. It further argues that the plaintiff has not provided any evidence that the hospital's reasons for not hiring her were pretextual to prevail on her claim for retaliation under § 46a-60(a)(4). As discussed in the prior section on the plaintiff's claim for employment discrimination under § 46a-60(a)(1), the hospital has submitted evidence from the director of human resources, the recruiter of human resources and the director of the volunteer and services program showing that the hospital's reason for not hiring and/or retaliating against the plaintiff is not pretextual, but legitimate. Based on this evidence, the defendant's motion for summary judgment on this claim is granted.
General Statutes § 46a-58(a)
The hospital next argues that the plaintiff cannot bring a cause of action pursuant to § 46a-58(a) as a matter of law. Section 46a-58(a) provides in relevant part that "[i]t shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability." Although age discrimination is within the purview of § 46a-60, it is not included within the protections of § 46a-58. "[T]here are some forms of discrimination that are prohibited under § 46a-60, such as discrimination due to age or marital status, that are not within the purview of § 46a-58(a) and that, therefore, § 46a-58 would be inapplicable." Commission on Human Rights Opportunities v. Truelove Maclean, Inc., 238 Conn. 337, 357, 680 A.2d 1261 (1996). Since age is inapplicable to the plaintiff's claims under § 46a-58, the hospital is entitled to judgment as a matter of law. Since age discrimination is inapplicable to the plaintiff's claims under § 46a-58, the hospital is entitled to judgment as a matter of law.
General Statutes § 46a-60(a)(3)
The hospital also argues that the plaintiff cannot bring a cause of action pursuant to § 46a-60(a)(3) as a matter of law. Section 46a-60(a)(3) provides in relevant part that "[i]t shall be a discriminatory practice . . . [f]or a labor organization, because of the . . . age . . . of any individual to . . . discriminate in any way against any of its members or against any employer or any individual employed by an employer . . ." A "[l]abor organization" is defined as "any organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment." § 46a-51(12). The plaintiff has not alleged any facts nor presented any evidence that the hospital is a labor organization. The defendant's motion for summary judgment as to the plaintiff's claims under § 46a-60(a)(3) is granted. CT Page 9129
General Statutes § 46a-60(a)(5)
The hospital's final argument is that the plaintiff cannot bring a cause of action pursuant to § 46a-60(a)(5) as a matter of law. Section 46a-60(a)(5) provides in relevant part that "[i]t shall be a discriminatory practice . . . [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so . . ." "The law in Connecticut is clear that while an individual employee may be held liable for aiding and abetting [her] employer's discrimination, an employer can not be liable for aiding and abetting its own discriminatory conduct . . . This is similar to Connecticut's intracorporate conspiracy doctrine where, if the allegations involve only one corporate entity acting though its employees, no conspiracy claim can stand . . ." [The plaintiff] may seek recovery from individual [defendant's] employees for illegally aiding and abetting discrimination against him, should he choose to file an independent lawsuit or to join those parties as hospitals to this action. His remedy for the company's conduct, however, lies in the direct claims of discrimination he has raised in . . . his complaint." Canty v. Rudy's Limousine, United States District Court, Docket No. 3:04CV1678 (D.Conn. September 15, 2005).In the present case, similar to the Canty case, the plaintiff has not brought a cause of action against any of the company employees, which herein are the hospital's employees. Since the plaintiff's remedy is limited to direct claims of age discrimination and she has failed to join any of the hospital's employees to this action, the defendant is entitled to judgment as a matter of law.
For the foregoing reasons, the hospital's motion for summary judgment is granted.