Opinion
NNHCV186077279
06-21-2019
Monica CLOUD v. The CONNECTION, INC.
UNPUBLISHED OPINION
OZALIS, J.
I.
PROCEDURAL HISTORY
The defendant, The Connection, Inc. (The Connection), has moved for summary judgment as to the plaintiff, Monica Cloud’s (Cloud), one-count complaint filed on January 24, 2018. The plaintiff’s complaint alleges a violation of The Connecticut Fair Employment Practice Act (CFEPA), General Statutes § 46a-60(a)(7), against the defendant on the following grounds: (1) the plaintiff experienced unfair treatment in the work place and was subjected to a hostile work environment up through September 15, 2015; (2) the plaintiff was not given the work hours she sought; and (3) the plaintiff sought to return to work after maternity leave, but instead, her employment was terminated. The defendant moves for summary judgment on the grounds that: (1) any employment action occurring before March 2016 is untimely as a matter of law; and (2) that the defendant was terminated for threatening a co-worker after returning to work post-maternity leave which constitutes a legitimate and nondiscriminatory reason for termination, unrelated to her pregnancy.
General Statutes § 46a-60(7) states: "(7) For an employer, by the employer or the employer’s agent: (A) To terminate a woman’s employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee to her original job or to all equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; (E) to limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy; (F) to discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment; (G) to fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer; (H) to deny employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy; (I) to force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment (i) does not have a known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment; (J) to require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and (K) to retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation."
The court heard argument on the defendant’s motion for summary judgment and the plaintiff’s objection thereto, on April 1, 2019.
II.
UNDISPUTED FACTS
The following facts are relevant to the defendant’s motion for summary judgment. In 2013, the plaintiff was hired as a per diem Client Service Aid at The Connection’s Elm City Program, and in May of 2014, the plaintiff became a full-time aid at The Connection’s Recovery House Program. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. p. 46, 83-84, 90. By letter dated September 28, 2015, the plaintiff notified the defendant that she wanted to change her status from full-time back to per diem employee, effective as of October 12, 2015. See Def.’s Mem. Supp. Mot. J., Canto Aff. ¶7.
At the time the plaintiff changed her employment status, she informed the defendant that she did not want to work in any program that would require her to report to supervisors that she had previously had conflict with, particularly Ms. Barrett and Ms. Ferrarro. See Def.’s Mem. Supp. Mot. J. Canto Aff. ¶9-11. This request limited where the plaintiff could work, since she only had experience in the department supervised by these individuals. See Def.’s Mem. Supp. Mot. J., Canto Aff. ¶9-11. The plaintiff, therefore, was taken off her remaining shifts at Recovery House in October of 2015 and was not provided with additional shifts from October 12, 2015, through February 24, 2016. See Def.’s Mem. Supp. Mot. J., Canto Aff. ¶12.
On February 24, 2016, the plaintiff gave birth to her daughter. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. p. 49. On April 4, 2016, Cloud emailed the Director of Human Resources for The Connection, Ruthanne Canto, to express interest in returning to her work in behavior health at The Connection. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. P. 49; Canto Aff. ¶14. The plaintiff was offered the opportunity to resume working per diem shifts at The Connection, within the behavioral health program, at which time Ms. Canto knew that the plaintiff recently had a baby. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. P. 83; Canto Aff. ¶15-16.
On or about June 19, 2016, the plaintiff contacted Michelle Giardina, the Elm City Program Manager, to express frustration about a specific co-worker who was consistently calling out of work on holidays which then forced Cloud to have to cover those extra shifts. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. p. 101, 103. On June 26, 2016, said co-worker called into Elm City, spoke with the plaintiff, and indicated that she could not come into work that day as scheduled. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. p. 76-77; Canto Aff. ¶22-23. The co-worker later reported that during the phone call, the plaintiff threatened her with defamatory language and threats of violent physical contact. See Def.’s Mem. Supp. Mot. Summ. J., Canto Aff. ¶24. Another employee confirmed Cloud’s conduct during this conversation. See Def.’s Mem. Supp. Mot. Summ. J., Canto Aff. ¶24.
Pursuant to The Connection’s Personal Conduct Policy and Procedure, the plaintiff was terminated from The Connection for threatening a co-worker. See Def.’s Mem. Supp. Mot. Summ. J., Canto Aff. ¶26-28, 31. The connection issued a termination letter on June 27, 2016, which was drafted by Ms. Canto, who participated in the termination decision. The plaintiff, however, alleges that she was terminated for discriminatory reasons related to her pregnancy.
III.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
The defendant moves for summary judgment on the ground that the plaintiff cannot establish a prima facie case of discrimination. Moreover, the defendant argues that there was a clear, nondiscriminatory reason for terminating the plaintiff’s employment, and thus, the plaintiff’s claims of discrimination lack merit. The plaintiff objects to the defendant’s motion on the ground that genuine issues of material fact exist, that the conduct that occurred before March of 2016 is timely under the doctrine of continuing course of conduct, and that she has established a prima facie case of pregnancy discrimination by which the defendant must disprove.
The court finds that the plaintiff properly exhausted her administrative remedies by filing this complaint with the Connecticut Human Rights Organization (CHRO) on or about September 14, 2016. On or about October 24, 2017, the plaintiff received a release of jurisdiction letter from the CHRO, pursuant to General Statutes § 46a-102, and timely filed her claim with this court. Pursuant to General Statutes § 46a-82(f), this court finds that it has subject matter jurisdiction over the discrimination claims asserted in the plaintiff’s complaint that occurred from March 18, 2016, and thereafter. The court finds that it has subject matter jurisdiction over paragraphs 32-51 of the plaintiff’s complaint. Pursuant to § 46a-82(f), the court does not have subject matter jurisdiction over claims prior to that date because they are untimely, and thus, are barred.
The court notes that there is a scrivener’s error in the plaintiff’s complaint, which alleges that the plaintiff’s discrimination complaint was filed with the CHRO on September 14, 2017, as opposed to 2016. See. Pl.’s Compl. ¶46. According to the defendant’s motion for summary judgment, however, the plaintiff’s complaint was, in fact, filed with the CHRO in September of 2016. See Def.’s Mem. Supp. Summ J., p. 8. Moreover, if the complaint was actually filed with the CHRO on September 14, 2017, this court would not have subject matter over any of the claims alleged in the plaintiff’s complaint because employment actions occurring more than 180 days prior to the filing of an administrative complaint cannot form the basis of a discrimination claim pursuant to General Statutes § 46a-82(f).
General Statutes § 46a-102 states: "Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission, except that an action may be brought within six months of October 1, 1991, with respect to an alleged violation provided a complaint concerning such violation has been pending with the commission for more than one year as of October 1, 1991, unless the complaint has been scheduled for a hearing."
General Statutes § 46a-82(f) states: "Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination, except that any complaint by a person claiming to be aggrieved by a violation of subsection (a) of section 46a-80 must be filed within thirty days of the alleged act of discrimination."
"With respect to employment discrimination claims, our Supreme Court has held that we review federal precedent ... for guidance in enforcing our own antidiscrimination statutes." (Internal quotation marks omitted.) Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 86, 153 A.3d 687 (2017); see also Tomick v. United Parcel Service, Inc., 157 Conn.App. 312, 325-28, 115 A.3d 1143 (2015), aff’d, 324 Conn. 470, 153 A.3d 615 (2016) ("[I]t is well settled that [w]e look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both" [internal quotation marks omitted]). Although the plaintiff has alleged only violations of CFEPA and not Title VII, her discrimination claims are analyzed under the McDonnell Douglas burden-shifting framework used for Title VII claims according to both federal and state law. See Buster v. City of Wallingford, 557 F.Supp.2d 294, 298-99 (D.Conn. 2008); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
"Section 703(a) [Title VII] makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ..." (Internal quotation marks omitted.) Newport News Shipbuilding and Dry Dock v. EEOC, 462 U.S. 669, 682, 103 S.Ct. 2622, 77 L.Ed.2d 89 (explaining Title VII); see also 42 U.S.C. § 2002e-2(a) (1976) (also called Title VII).
"To determine whether a plaintiff has established a prima facie claim for discrimination pursuant to § 46a-60(a)(1), the court employs the burden shifting analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green ..." (Citation omitted.) Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 170 Conn.App. 87. First, under the McDonnell Douglas framework, the plaintiff carries the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802; see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"). Second, if the plaintiff successfully establishes a prima facie discrimination case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802-03. Third, if the defendant meets this burden, "the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. "(Internal quotation marks omitted.) Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 253; see also McDonnell Douglas Corp. v. Green, supra, 411 U.S. 804; Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015).
Following the McDonnell Douglas framework, this court first seeks to determine whether the plaintiff has met her burden of establishing a prima facie case of discrimination on the basis of her pregnancy. "The burden of establishing a prima facie case [of discrimination] is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder ... The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in the plaintiff’s favor." Perez-Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012).
"To establish a prima facie case of ... discrimination, [the plaintiff] must prove: (1) membership in a protected class; (2) qualification for her position; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination on the basis of her membership in the protected class." (Internal quotation marks omitted.) Buster v. City of Wallingford, supra, 557 F.Supp.2d 299; see also; McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802 (which originally established this four-factor test in the context of racial discrimination); Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 11 A.3d 453 (2015) (where Connecticut Supreme Court applied this federal standard for establishing prima facie case of discrimination).
This court has already found that the plaintiff’s claims occurring prior to March of 2016 are time barred. As a result, the court lacks subject matter jurisdiction over the claims contained in paragraphs 1-31 of the plaintiff’s complaint, and thus, cannot consider them in determining whether the plaintiff has established a prima facie case of pregnancy discrimination. This court will address the remaining allegations in the plaintiff’s complaint in paragraphs 32-51.
In the plaintiff’s objection to the defendant’s motion to dismiss, the plaintiff argues that the claims prior to March of 2016 are not time barred because the plaintiff was subjected to a continuous string of conduct which made the claims timely for purposes of this lawsuit. See Pl.’s Obj. Def.’s Mot. Summ. J., p. 12. The court does not find this argument to have merit under the present circumstances, and therefore, it declines to further address the continuing course of conduct argument.
"The complaint must be filed within one hundred and eighty days after the alleged act of discrimination ... Thus, there are two prerequisites to the bringing of the action in superior court- a timely filing with the CHRO and a release from the commission. Failure to meet either implicates the court’s subject matter jurisdiction." Paris-Purtle v. State, Superior Court, judicial district of Waterbury, Docket No. X10-UWY-CV-14-6025212 (March 11, 2015, Dooley, J.) (60 Conn.L.Rptr. 158).
General Statutes § 46a-60(7)(A) states in relevant part that it is unlawful for an employer "[t]o terminate a woman’s employment because of her pregnancy ..." (Internal quotation marks omitted.) In the present case, the plaintiff has satisfied this requirement of membership in a protected class because she has alleged in her complaint that her employment was adversely affected on the basis of her pregnancy. See Compl. ¶48-51.
It is also undisputed for purposes of this motion, that the plaintiff was qualified to perform her job. "To show qualification sufficiently to shift the burden of providing some explanation for discharge to the employer, the plaintiff need not show perfect performance or even average performance ... Instead, she need only make the minimal showing that she possesses the basic skills necessary for performance of [the] job." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gregory v. Daly, 243 F.3d 687, 696 (2d. Cir. 2001). In the plaintiff’s complaint, she alleges that she was qualified for the job. See Compl. ¶45. The defendant admits in its answer that the plaintiff was, at least, minimally qualified to perform the job. See Def.’s Ans. & Sp. Defenses ¶45.
"For the third element, a plaintiff must have endure[d] a materially adverse change in the terms and conditions of employment, which might be indicated by a termination of employment ... or other indices unique to a particular situation." (Internal quotation marks omitted.) Buster v. City of Wallingford, supra, 557 F.Supp.2d 299. In the present case, the plaintiff’s employment was terminated, constituting a materially adverse change in the terms of employment, and thus, the plaintiff has satisfied this element of the McDonnell test. See id.; see also McDonnell Douglas Corp v. Green, supra, 411 U.S. 802; Def.s Mem. Supp. Summ. J. Ex. G.
The plaintiff also argues that when she voluntarily moved to per diem status, she was not given work hours because of her pregnancy status. See Pl.’s Mem. Obj. Mot. Summ. J. p. 7. A decrease in hours can also constitute an adverse change in terms of employment. See Buster v. City of Wallingford, supra, 557 F.Supp.2d 299. The court notes, however, that these allegations surround circumstances prior to March of 2016. The court, thus, does not have subject matter jurisdiction to address these claims. See General Statutes § 46a-82(f).
This court now turns to the fourth prong of the McDonnell Douglas test, circumstances giving rise to an inference of discrimination on the basis of membership in a protected class. In regard to the fourth element of a prima facie case of discrimination, our Appellate Court recently noted that a trial court addressing a motion for summary judgment must analyze "whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Martinez v. Premier Maintenance, Inc., 185 Conn.App. 425, 435, 197 A.3d 919 (2018).
"Circumstances contributing to a permissible inference of discriminatory intent under the fourth McDonnell Douglas-Burdine factor include (1) the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff’s qualifications to fill that position; (2) the employer’s criticism of the plaintiff’s performance in ethnically degrading terms or invidious comments about others in the employee’s protected group; (3) the more favorable treatment of employees not in the protected group; or (4) the sequence of events leading to the plaintiff’s discharge or the timing of the discharge." Martinez v. Premier Maintenance, Inc., supra, 185 Conn.App. 439-40. "In the absence of any affirmative evidence of a causal connection between [the defendant’s agent’s] discriminatory animus toward the plaintiff and the defendant’s termination of her employment, no inference of the defendant’s discriminatory intent can be made." Id., 449-50.
"Because employers rarely leave a paper trail- or ‘smoking gun’- attesting to a discriminatory intent ... disparate treatment plaintiffs often must build their cases from pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer. Such determinations are, generally speaking, most competently and appropriately made by the trier of fact. So long as the plaintiff can present solid circumstantial evidence supporting his case ... he should have the opportunity to prove his case at trial." (Citations omitted; internal quotation marks omitted.) Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990); see also Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 170 Conn.App. 88 ("in addition to proffering direct evidence of discrimination with respect to the fourth prong [of the McDonnell test], a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was."
In the present case, the plaintiff has not presented sufficient evidence, either direct or circumstantial, that allows the court to draw an inference of casual connection between the alleged discriminatory treatment on the basis of pregnancy, and the plaintiff’s termination. Because the allegations of discrimination occurring prior to March 2016 cannot be considered by this court, the plaintiff’s complaint alleges only that the human resources department at The Connection was advised not to use the plaintiff for work after the plaintiff took maternity leave, and that the plaintiff was eventually terminated as a result of pregnancy discrimination.
The defendant’s memorandum of law in support of summary judgment, however, supports that after the birth of the plaintiff’s child, the plaintiff returned to work and was not discriminated against on the basis of pregnancy. From the point that the plaintiff returned to work in April of 2016 until she was terminated, the evidence before the court supports that Cloud: (1) worked essentially full-time hours at The Connection; (2) was assisted by Ms. Canto when applying for a promotion within the company; (3) was offered the promotion she applied for, which ultimately never took effect because the state lost its funding for the Elm City program; and that (4) the program manager for the Elm City department at The Connection wrote letters of recommendation for Cloud once it was determined that the Elm City program was closing. See Def.’s Mem. Supp. Mot. Summ. J., Cloud Depo. Ex. A. p. 59, 66-67, 74; Canto Aff. ¶15, 17, 19-20. The plaintiff has not presented evidence that establishes the existence of any genuine issues of material fact as to any of the above findings.
Additionally, in Martinez v. Premier Maintenance, Inc., supra, 185 Conn.App. 452, our Appellate Court reasoned that "[w]here the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. The premise underlying this inference is that if the person who fires an employee is the same person that hired him, one cannot logically impute to that person an invidious intent to discriminate against the employee. Such an inference is strong where the time elapsed between the events of hiring and firing is brief ... [T]he same-actor inference is permissive, not mandatory, [but] it applies with greatest force where the act of hiring and firing are not significantly separated in time ..." (Citations omitted; internal quotation marks omitted.)
Following this rationale, the defendant presents evidence through an affidavit of Ms. Canto which states that she facilitated the plaintiff’s resumption of her per diem status at The Connection after the plaintiff’s maternity leave. See Def.’s Mem. Supp. Summ. J. Ex. B, Canto Aff. ¶15. The affidavit also states that at the time Ms. Canto helped the plaintiff become reinstated with The Connection, she was aware that the plaintiff recently had a baby. See Def.’s Mem. Supp. Summ. J. Ex. B, Canto Aff. ¶16. Ms. Canto also states that she participated in the decision to terminate the plaintiff approximately two months later. Following the court’s reasoning in Martinez v. Premier Maintenance, Inc., supra, 185 Conn.App. 425, the fact that the same person reinstated the plaintiff and then terminated her in such a short window of time points in favor of the defendant’s position that the plaintiff was not discriminated against.
For the foregoing reasons, this court is unpersuaded by several of the plaintiff’s arguments. The court does not find supporting evidence reflecting that the defendant terminated the plaintiff because the defendant did not wish to employ someone who had been pregnant and could possibly be pregnant again in the future. See Pl.’s Mem. Obj. Mot. Summ. J. p. 3. Likewise, the evidence presented does not support the plaintiff’s contention that she was treated differently from other non-pregnant employees. See Pl.’s Mem. Obj. Mot. Summ. J., p. 9. Finally, this court is unpersuaded that the E-mails between a program manager and a case manager at The Connection, indicating that the plaintiff should not be used for work at The Connection, which the plaintiff was copied on, constitute an inference of pregnancy discrimination See Pl.’s Obj. Mot. Summ. J. Ex. 4. The E-mails contained no explanation for why the plaintiff should not be used for work, and even despite the E-mails, the plaintiff’s employment was reinstated post-maternity leave shortly after the E-mail exchange. See Pl.’s Obj. Mot. Summ. J. Ex. 4. The E-mails, thus, seemingly had no effect on the plaintiff’s future with The Connection since the Human Resources department continued to facilitate her reinstatement contrary to the substance of the E-mails.
From the time the plaintiff was reinstated in April of 2016 until her termination in June of 2016, the only issue the plaintiff had with her employment that is evidenced by the pleadings and evidence before the court had to do with a co-worker calling out, and not with the way she was treated by The Connection for her pregnancy. In support of this court’s ruling, the defendant presents evidence that the plaintiff was terminated for threatening a co-worker, a reason unrelated to her pregnancy.
This court concludes that the plaintiff has failed to establish a prima facie case of discrimination because the plaintiff has failed to demonstrate any genuine issues of material fact concerning whether the plaintiff’s termination occurred under circumstances that give rise to an inference of discrimination. Since the plaintiff has not established a prima facie case of discrimination, this court need not address whether the defendant has met its burden of establishing that the plaintiff’s pregnancy was not a motivating factor in its decision to terminate the plaintiff.
This court also finds that the plaintiff has failed to demonstrate any genuine issues of material fact as to whether the plaintiff’s termination occurred under circumstances that give rise to an inference of discrimination. See Feliciano v. Autozone, Inc., supra, 316 Conn. 71-72. The evidence does not establish that a casual connection can be drawn between the plaintiff’s pregnancy and her termination. If a plaintiff cannot make such a showing, summary judgment is proper. See id., 76.
IV.
CONCLUSION
For the foregoing reasons, this court grants summary judgment on the plaintiff’s complaint dated January 24, 2018 in its entirety in favor of defendant The Connection, Inc.