Opinion
AANCV146016031S
02-17-2016
Vincent Brescia v. United Illuminating Company
February 17, 2016, Decided
UNPUBLISHED OPINION
Barry K. Stevens, J.
OPINION BY: Barry K. Stevens
OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (NO. 111)
STATEMENT OF THE CASE
This employment discrimination action was instituted by the plaintiff, Vincent Brescia, against the defendant, the United Illuminating Company. The complaint alleges that the defendant terminated the plaintiff's employment on the basis of his age in violation of the Fair Employment Practices Act, General Statutes § 46a-60 et seq. The defendant filed an answer denying that it unlawfully discriminated against the plaintiff and asserting as a special defense that it had a legitimate, nondiscriminatory reason to terminate his employment. Pending before the court is the defendant's motion for summary judgment to which the plaintiff has objected. For the reasons articulated below, the defendant's motion is granted.
General Statutes § 46a-60(a) provides in relevant part: " [i]t shall be a discriminatory practice . . . (1) [for an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need . . . to discharge from employment any individual . . . because of the individual's . . . age . . ."
DISCUSSION
I
" 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
II
The complaint alleges the following facts. The plaintiff was born on December 6, 1948. He was employed by the defendant from February 24, 1970, until February 15, 2013. The plaintiff consistently received satisfactory performance reviews throughout his close to forty-three years of employment. The plaintiff and his co-worker, Scott Murphy, were both employed by the defendant as overhead power delivery managers, and there was a plan to restructure the company and eventually merge the plaintiffs and Murphy's positions into one.
On February 15, 2013, the plaintiff was accused of the following allegations of misconduct: (1) making threatening remarks to his co-worker, Wendy Ardizone; (2) failing to properly supervise his subordinates, including authorizing falsified time sheets and letting clerical employees work excessive overtime hours; and (3) misusing company time by conducting regular offsite staff meetings at a diner. According to the complaint, the plaintiff was told to either retire immediately or face termination, and in response, the plaintiff chose the former. He was sixty-four years old. After the plaintiff retired, he was eventually replaced by Murphy who was approximately fifty years old. The complaint alleges that " [t]he plaintiff's age was a substantial motivating factor in his forced and involuntary retirement" and that " [t]he excuses given by the defendant for its actions were false and a mere pretext for unlawful employment discrimination" in violation of the Fair Employment Practices Act. The gravamen of the plaintiff's complaint is that the charges made by the defendant were mere pretexts upon which to remove the plaintiff or force his retirement based upon his age.
" The legal standards governing discrimination claims involving adverse employment actions are well established. The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny . . . We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both . . . Under this analysis, the employee must first make a prima facie case of discrimination . . . In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination . . . The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question . . . This burden is one of production, not persuasion; it can involve no credibility assessment . . . The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Citations omitted; emphasis added; internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73-74, 111 A.3d 453 (2015).
" There rarely will be direct evidence of discrimination . . . In recognition of this fact, we have adopted a framework that enables us to analyze discrimination claims based primarily on circumstantial evidence. (Citation omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 516, 832 A.2d 660 (2003). " [W]hen a plaintiff attempts to establish . . . discrimination through the use of circumstantial evidence, the plaintiff must first present some evidence from which an inference may be drawn that other similarly situated individuals not in the protected class were treated more favorably than the plaintiff." Perez-Dickson v. Bridgeport, 304 Conn. 483, 516, 43 A.3d 69 (2012). " [A]n inference of discriminatory intent may [also] be established by, inter alia, the employer's . . . invidious comments about others in the employee's protected group; or . . . the sequence of events leading to the plaintiff's discharge." (Emphasis in original; internal quotation marks omitted.) Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009).
For the purposes of this summary judgment motion, the parties do not argue about whether the plaintiff has satisfied the first three prongs necessary to establish a prima facie case of employment discrimination: (1) the plaintiff is a member of a protected class under General Statutes § 46a-60(a)(1); (2) the plaintiff was qualified for his position in that he was encouraged to apply for the new manager of power delivery services position by the defendant; and (3) he suffered an adverse employment action by allegedly being forced into early retirement. The contested issue is whether the plaintiff has presented evidence demonstrating that his termination " occurred under circumstances that give rise to an inference of discrimination." Feliciano v. Autozone, Inc., supra, 316 Conn. 73.
In his deposition, the plaintiff testified that he was encouraged to apply for the new manager position. The defendant does not dispute this testimony, which is cited in its brief.
In support of its motion for summary judgment, the defendant argues that there is no basis for inferring from the circumstances that plaintiff's age had any bearing whatsoever on [the defendant's] decision to terminate his employment, " and, therefore, summary judgment should enter in its favor. In his objection to the summary judgment motion, the plaintiff argues that he has submitted evidence that establishes an inference of discrimination because it shows that he was replaced by a significantly younger employee. The court agrees with the defendant. As a matter of law, the plaintiff's sworn statements in his affidavit and deposition are insufficient to create an inference that he suffered dismissal or discrimination on the basis of his age. The plaintiff has only provided the court with general, conclusory allegations based on the plaintiff's own hunches or apprehensions that he suffered age discrimination.
For example, the plaintiff has not offered any evidence indicating that he was exposed to ageist remarks or criticisms. He has also failed to offer any evidence of discrimination against similarly aged employees so as to suggest a pattern or a policy of age discrimination. Indeed, the plaintiff essentially concedes the nonexistence of evidence supporting an inference of discrimination.
[Q. W]hy do you think your age had anything to do with [the defendant's decision to terminate your employment and award the position to Murphy?] A. Because I was in the position to be eligible for retirement. I had full benefits, and it was the easy way out for the company. Q. Is there anything else that you can think of that leads you to conclude that your age had anything to do with the decision to let you go? A. No . . . Q. Prior to the time that you were let go, did you ever get a sense that your age was an impediment to your employment or your successful employment [with the defendant?] A. Not that I know of.
In his affidavit, the plaintiff avers that he and Murphy approached their general manager, William Ostrum, with a plan to maintain the two-manager system. This plan, however, was ultimately rejected. The plaintiff further indicates that " Mr. Murphy was then given all the day-to-day tasks and [he] was pushed aside. [He] discussed this with Mr. Ostrum and explained [his] desire to be a manager, but was ignored . . . After numerous and fruitless attempts to come up with a fair and workable solution, [he] even asked about the feasability of a buy-out as had been extended to other employees, as [his] job was being eliminated." During his deposition, when asked whether he thought his age had anything to do with the new division of labor, he stated, " Yes. In a sense, I thought that he was getting me in a position and Scott [Murphy] in a position to take over and push the old man out, yes." Nonetheless, when asked whether Ostrum said anything validating this belief, he responded: " No."
The plaintiff concedes that when he left the company, the defendant had not yet made a decision regarding who would assume the new managerial position. There is a lack of evidence showing the defendant's general preference for Murphy, let alone evidence demonstrating that the defendant planned to hire Murphy specifically because of his younger age. The plaintiff testified that Murphy never " agreed that he was a better candidate for the [manager] position because he was younger." The plaintiff also admits that he can only speculate as to potential statements by management declaring that Murphy was a better candidate due to his younger age.
Q. You said something to the effect that Mr. Murphy being younger than you would [place him] in a better position to fulfill [your company's] plans going forward? A. Correct. Q. Did [your employer] say something along those lines or are you just speculating? A. No. That's just speculation.
During his deposition, the plaintiff generally testified that " age was always a factor in discussions with a lot of different people." For example, the plaintiff indicated that a co-worker once stated " you're [sixty-four], you can retire soon . . ." No specific discriminatory context, however, was provided for this statement, and the plaintiff, when asked whether " there [were] any conversations with people in management or human resources where somebody other than [himself] raised the subject of [his] age, " responded, " [n]ot that I can recall." When specifically asked if the defendant or any of its agents ever suggested retirement, the plaintiff responded: " No. Not in that sense."
The plaintiff also acknowledged that when he was informed of the future restructuring, he was encouraged to apply for other positions within the company. When asked how he could reconcile that suggestion with the allegation that the defendant was trying to phase him out due to his age, he responded " [t]hat was a blanket order in the middle of all this."
In summary, the plaintiff has concerns or suspicions about age discrimination, but the evidence supporting these suspicions do not rise above speculation. See Board of Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 517 (to support an inference of discrimination evidence must go " beyond mere conjecture or surmise"). On the facts of the present record, the singular fact that a younger employee eventually assumed the position is not by itself sufficient to show that this employment action occurred under circumstances giving rise to an inference of discrimination. Therefore, the plaintiff has failed to establish a prima facie case of employment discrimination.
Moreover, as an alternative basis for granting the motion for summary judgment, the court further concludes that the defendant has offered legitimate nondiscriminatory reasons supporting the basis for its actions against the plaintiff.
III
The defendant claims that the plaintiff's alleged misconduct constituted bona fide nondiscriminatory reasons to terminate the plaintiff's employment. The plaintiff disputes this claim. " [I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Specifically . . . [t]he factfinder's disbelief of the reasons put forward by the [employer] (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 508. Nevertheless, " proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct . . . In other words, [i]t is not enough . . . to disbelieve the employer; the factfinder must believe the [complainant's] explanation of intentional discrimination." (Internal quotation marks omitted.) Id.
" An employer's good-faith belief that an employee has committed misconduct provides the employer with a nondiscriminatory reason for termination, whether or not the misconduct occurred." Honeck v. Nicolock Paving Stones of New England, LLC, Docket No. 3:04 CV 1577 (JBA), 2006 WL 2474950, *7 (D.Conn. August 25, 2006), aff'd, 247 F.App'x 306 (2d Cir. 2007); accord Jeunes v. Potter, Docket No. CIV 308CV1218 (HBF), 2009 WL 2883060, *10 (D.Conn. September 3, 2009), aff'd, 382 F.App'x 2 (2d Cir. 2010) (" [i]n determining whether a plaintiff has produced sufficient evidence of pretext, the key question is not whether the stated basis for termination actually occurred, but whether the defendant believed it to have occurred" [internal quotation marks omitted]).
The defendant argues that the " plaintiff's case is premised entirely on his denial of the wrongdoing cited by defendant as the reason for the discharge decision--in particular, repeated occasions of misusing company time and neglectful oversight of his subordinates' timekeeping practices resulting in a failure to unearth fraudulent reporting of work hours topped off by a bizarre threat of workplace violence--but the denials ring hollow and, more importantly, do not amount to evidence of age discrimination." In response, the plaintiff contends that he was forced into retirement based upon his age and that the defendant's purported nondiscriminatoiy reasons are merely pretextual. The resolution of such issues on a motion for summary judgment is ordinarily challenging because the court is tasked with identifying the existence of material facts and not resolving any that are found to exist. Nevertheless, in this particular case, the plaintiff's admissions about the basic underlying facts of the misconduct charges are sufficient to establish the existence of legitimate nondiscriminatory bases for asserting these charges against him.
With respect to the accusation that he approved falsified time sheets, the plaintiff admits that two employees under his supervision submitted time sheets claiming hours that they never worked and that he signed off on these time sheets. In his affidavit, the plaintiff avers that " [a]s for the supervisors abusing the system, I explained that I authorized time sheets based on the honor system . . ." By acknowledging that he operated through " the honor system, " the plaintiff essentially admits that he neglected to monitor or verify the accuracy of the time sheets. The plaintiff also acknowledges that clerical employees under his supervision were only allowed to work a certain amount of overtime hours one weekend, but these employees nevertheless worked in excess of the allotted amount of hours in violation of his employer's explicit instructions. In addition, the defendant asserted that it was improper for the plaintiff to conduct hour-long (or longer) offsite meetings at a diner that involved nonbusiness related discussions. There is no dispute that these meetings took place. The plaintiff explains that about 75% of each meeting was business related.
With respect to the alleged threats of workplace violence, the plaintiff contests the veracity of the complaint, but there is no dispute that the defendant received this complaint from another employee. The incident report characterizes the complainant as providing an " explicit, first-hand account and [that the] reporting of this incident is considered reliable." In his deposition, the plaintiff posits that the workplace violence allegations were an attempt " to make [him] and [his] supervisors and [his] business look bad and [that Ms. Ardizone's allegations] w[ere] just part of the process." Nonetheless, when asked whether he could point to any facts supporting this theory, he responded: " No. Not at all." As previously stated, " An employer's good-faith belief that an employee has committed misconduct provides the employer with a nondiscriminatory reason for termination, whether or not the misconduct occurred." Honeck v. Nicolock Paving Stones of New England, LLC, supra, United States District Court, Docket No. 3:04 CV 1577 (JBA).
An employer's evidence of nondiscriminatory explanations for its actions does not end the inquiry because the complainant must then be given the opportunity to prove that the legitimate explanations offered by the employer were not its true reasons, but were a pretext for discrimination. Any such evaluation of the employer's motivations requires a full assessment of the evidence in its entirety from a perspective that discriminatory intent of this nature may be susceptible to proof only through circumstantial rather than direct evidence. Furthermore, summary judgment is ordinarily inappropriate when a party's state of mind is implicated. Nevertheless, even on issues such as a party's motivation or good faith, when the movant, as the case here, has met its burden of showing the absence of a material factual dispute, the objecting party cannot establish the existence of a disputed fact sufficient to defeat summary judgment by solely relying on bald assertions. The plaintiff here has merely made a bald assertion that the defendant's nondiscriminatory explanations for its actions are pretextual.
Compare Board of Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 492, 512-17, where the complainant responded to the defendant's proffered nondiscriminatory reasons for its conduct by offering evidence indicating, inter alia, that the employer failed to comply fully with its affirmative action plan; that the employer advanced criteria for the position only after determining that the other candidate had such qualifications; that statistical evidence showed disparate treatment in the employer's hiring history.
Although " summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated, " as is the case here, " [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 . . . [E]ven 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 fact." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006). This rule applies in the present case. The plaintiff has only offered " his own conclusory statements and personal assessment of the [allegedly discriminatory] motives of the [defendant] in attempting to demonstrate that a genuine issue as to any material fact exists." (Internal quotation marks omitted.) Id., 540; accord, Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014) (Internal quotation marks omitted) (" [m]ere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment").
In summary, the court concludes that the defendant has presented legitimate nondiscriminatory reasons validating its adverse employment action against the plaintiff, and the plaintiff has failed to present evidence demonstrating that these reasons were merely pretextual.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted and the plaintiff's objection thereto is overruled.
So ordered this 17th day of February 2016.
STEVENS, J.