Opinion
HHDCV176074533S
07-02-2018
Oscar ORTIZ-MARTINEZ v. C & S WHOLESALE GROCERS, INC.
UNPUBLISHED OPINION
OPINION
Peck, JTR
In a one-count complaint, filed on January 11, 2017, the plaintiff, Oscar Ortiz-Martinez, alleges that the defendant, C & S Wholesale Grocers, Inc., terminated his employment in retaliation for filing a workers’ compensation claim in violation of General Statutes § 31-290a. Specifically, the plaintiff alleges that the defendant terminated his employment because he applied for workers’ compensation benefits arising from a 2015 knee injury, and that the defendant’s assertion that he was terminated for violating company policy and insubordination on November 16, 2017, by retrieving a frozen turkey from a closed company trailer, is a pretext for its discriminatory intent. Pending before the court is the defendant’s motion for summary judgment on the ground that the plaintiff cannot make out a prima facie case of discrimination and that its stated reasons for the plaintiff’s termination are not a pretext for discrimination.
The defendant filed its motion for summary judgment and a supporting memorandum on December 1, 2017, accompanied by several deposition transcripts, a copy of the defendant’s trailer safety and management procedures, a copy of documents containing information about the defendant’s free turkey event on November 16, 2016, and copies of several emails sent between Gino Vignato, a first shift operations manager, Melisa Mehmedovic, a human resources assistant, and James Foy, another C & S employee, discussing the November 16 "turkey incident," and copies of employee statements sent to the human resource department regarding the turkey incident. In response, the plaintiff filed a memorandum in opposition on January 5, 2018, also accompanied by several deposition transcripts, a copy of the plaintiff’s medical records from three of his orthopedic doctor appointments in October and November 2016, a copy of the plaintiff’s job description, and a copy of the plaintiff’s July 13, 2015 incident report. In addition, the defendant filed a reply memorandum on January 24, 2018 with copies of documents maintained by the defendant’s human resource department documenting the plaintiff’s workers’ compensation claim, photos of safety banners hung in the defendant’s Windsor Locks facility and the affidavit of Dwayne Lott, the defendant’s regional environmental health and safety manager, attesting that the safety posters were hung in the facility and that all non-office employees, including the plaintiff, were trained on the fatal risk trailer pull policy.
Oral argument was held at short calendar on March 12, 2018.
DISCUSSION
"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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
"A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).
The defendant argues that the plaintiff cannot show by a preponderance of the evidence that he was discriminated against for exercising his workers’ compensation rights. Further, the defendant argues that it has met its burden to provide a legitimate, nondiscriminatory reason for terminating the plaintiff which the plaintiff cannot rebut. Namely, that the plaintiff disobeyed orders from a superior and violated the defendant’s trailer safety policy. In opposition, the plaintiff counters that he has set forth sufficient evidence to show a causal connection between exercising his workers’ compensation rights under General Statutes § 31-275 et seq., and his termination, and thus can make out a prima facie case of discrimination. The plaintiff further asserts that there are genuine issues of material fact as to whether the defendant has shown that it terminated the plaintiff for a legitimate, nondiscriminatory reason.
GENERAL STATUTES § 31-290A
Section 31-290a of the Connecticut General Statutes provides in relevant part as follows: "No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised his rights afforded to him pursuant to the provisions of this chapter."
"General Statutes § 31-290a was designed to protect [employees] who file for workers’ compensation benefits ..." Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 365, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991).
"The burden of proof in § 31-290a claims is set forth in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990), and its progeny. In the burden shifting analysis, the plaintiff, initially, has the burden of proving by the preponderance of the evidence a prima facie case of discrimination ... [T]o meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity ... The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the [fact-finder] ... that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence." (Internal quotation marks omitted.) Dickman v. University of Connecticut Health Center, 162 Conn.App. 441, 448, 132 A.3d 739 (2016). "[T]he ultimate burden of proving discrimination lies, at all times, with the plaintiff." Mele v. Hartford, 270 Conn. 751, 778, 855 A.2d 196 (2004).
1. The Prima Facie Case
"To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [him] under the act and that the defendant discriminated against [him] for exercising that right." (Internal quotation marks omitted.) Mele v. Hartford, supra, 270 Conn. 769. Specifically, "the plaintiff must first present ... evidence sufficient to permit a rational trier of fact to find [1] that she engaged in protected [activity] ... [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Barbee v. Sysco Connecticut, LLC, 156 Conn.App. 813, 819, 114 A.3d 944 (2015).
There is no question that the plaintiff has established certain elements of his prima facie case. The defendant conceded that it was aware that the plaintiff filed for and collected workers’ compensation benefits pursuant to the Connecticut Workers’ Compensation Act and that he suffered adverse employment action in that he was terminated from his job. The defendant, however, claims that the plaintiff cannot show a causal connection between the protected activity and the termination itself, or that the defendant was aware that the plaintiff was recommended for additional knee surgery the day before he was terminated. Construing the evidence in the light most favorable to the plaintiff, however, the plaintiff has met his initial burden on the element of causation.
"A causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action ... but the inquiry into whether temporal proximity establishes causation is factual in nature. There is no bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between [protected activity] and an allegedly retaliatory action." (Citation omitted; emphasis added; [internal quotation marks omitted.) Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 539, 976 A.2d 784 (2009).
Connecticut courts have generally been flexible in their interpretation of temporal proximity. See, e.g., Li v. Canberra Industries, 134 Conn.App. 448, 457, 39 A.3d 789 (2012) (holding that a genuine issue of material fact exists as to whether employee’s complaint to supervisor that she would refuse to engage in practice she believed was illegal was cause of employee’s termination several months later); Simoes v. Olin Corp., Superior Court, judicial district of Waterbury, Docket No. CV 06-6000206 (June 4, 2010, Cremins, J.) (50 Conn.L.Rptr. 26, 28) ("[w]hether an eight-month lapse of time between the adverse action taken by the defendant, i.e., the plaintiff’s termination, and the filing of the plaintiff’s workers’ compensation claim establishes the causal connection necessary to establish the plaintiff’s prima facie case is an issue of material fact to be decided by the fact finder"); Oquendo v. Margaritaville of Connecticut, LLC, Superior Court, judicial district of New London, Docket No. 11-6007189 (June 24, 2011, Martin, J.) (holding, in part, that plaintiff established a cause of action pursuant to § 31-290a where there is a six-month gap between protected activity and adverse employment action).
In the present action, the defendant argues it was not aware that the plaintiff required additional knee surgery. However, while the defendant may not have been aware of that specific development in the plaintiff’s treatment plan, the plaintiff has set forth evidence that Melisa Mehmedovic, a human resources employee directly involved in deciding whether to terminate him on November 22, 2016, was aware of his ongoing workers’ compensation claim. Specifically, the plaintiff states in his certified deposition transcript that sometime in 2016 he spoke with Mehmedovic to report he was having continued knee pain, that he was planning on filling out workers’ compensation paperwork to receive further treatment, and was unsure of where to send that paperwork. Consequently, the plaintiff provided evidence to show that the defendant was aware of the plaintiff’s claim. It is up to the finder of fact to determine whether the period of time between Mehmedovic’s awareness of the ongoing knee claim and the plaintiff’s termination are proximate enough to conclude there was a causal connection. See Simoes v. Olin Corp., supra, Docket No. CV 06-6000206. Thus, a genuine issue of material fact exists as to the plaintiff’s prima facie case.
2. Rebuttal of Plaintiff’s Prima Facie Case
The burden next shifts to the defendant to show that it terminated the plaintiff for a legitimate, nondiscriminatory reason. The defendant argues there is no genuine issue of material fact that the plaintiff violated its fatal risk trailer pull policy on November 16, 2016, and, alternatively, was insubordinate.
The purpose of the defendant’s trailer pull policy, included as the defendant’s Exhibit D, "to ensure the proper procedure for safely pulling and placing ‘plugging’ trailers to and from dock doors." The relevant policy language provides that once a trailer’s overhead doors are closed, latched and a colored seal applied to the closed trailer "no one may re-enter the trailer unless authorized to do so by the shipper or shipping supervisor."
First, the plaintiff argues that the defendant presents no evidence that the plaintiff was ever trained on the tractor pull policy. However, the defendant provides the deposition testimony of Dwayne Lott, the defendant’s regional environmental health and safety manager, who attests that employees receive training on the trailer pull policy during orientation, and are retrained on the policy annually. Regardless of whether the plaintiff was aware of the policy, there remains a genuine issue of material fact as to whether the plaintiff violated the policy.
In addition, the defendant’s exhibits reveal the following information. On November 16, 2016, the defendant offered free frozen turkeys to its employees, which were available for pick up from a refrigerated trailer in the parking lot of the defendant’s Windsor Locks, Connecticut facility. The plaintiff and his wife arrived between 6:30 p.m. and 6:45 p.m. to pick up a turkey, but by that time the defendant had ceased handing out turkeys and Gino Vignato had closed the trailer and requested the trailer be moved back to a dock. When the plaintiff arrived he called the shipping office to ask permission to remove a turkey from the truck. During that call, James Foy and Vignato told the plaintiff not to enter the trailer because it would soon be moved. Vignato states that several minutes later he returned to the trailer and witnessed the plaintiff exiting from the trailer with a turkey, even though he had not been given permission to enter the closed trailer.
However, looking at the plain language of policies, it is unclear whether they were applicable in this circumstance. Notably, the policies clearly define the responsibilities regarding trailer pulls of the following positions: loaders, shipping clerks, shippers, receiving clerks, backhaulers, auditors, drivers and yard jockeys. The policy does not clarify the role of mechanics when interacting with trailers. While the policies state generally: "Employees are not allowed to enter a trailer until the designated authorized Dock Coordinator/Supervisor has verified the air supply lines have been disconnected"; that policy applies specifically to employees "receiving trailers at the dock ." Similarly, while another section of the policy provides that "No one may re-enter the trailer unless authorized to do so by the shipper or shipping supervisor," this instruction is listed only as a "loader’s responsibility" while the trailer is stationed at a dock. It is unclear if or how the procedures cover trailer pulls if the trailer is not at a dock, but rather in the parking lot, as the turkey trailer was during the incident. Consequently, there is a genuine issue of material fact as to whether the plaintiff violated the defendant’s trailer pull policies.
The defendant next argues that even if the plaintiff did not violate the trailer pull policy, this termination occurred for the legitimate, nondiscriminatory reason of insubordination. The defendant has provided the deposition transcripts of several employees, including that of Vignato, whose directions the plaintiff purportedly did not follow, as well as Bethzaido Adorno, a human resource employee who witnessed part of the incident.
Adorno asserts that when she arrived to pick up a turkey several minutes after the plaintiff, the plaintiff was on the phone with Vignato, who instructed the plaintiff not to go in the trailer, and that he could receive his turkey after the trailer had been relocated to the dock.
Adorno further states she saw the plaintiff open the trailer door, which was not locked, but could not remember whether the plaintiff actually entered the trailer and did not witness him take out a turkey.
Vignato states that on November 16, he told the plaintiff during their phone conversation "not to go on the trailer" and that the plaintiff responded by raising his voice and telling Vignato that he was not the plaintiff’s boss and that he was going to enter the trailer. The plaintiff then hung up on him. Vignato states that several minutes later he entered into the parking lot and saw the plaintiff exiting the open trailer with a turkey in his hand. Vignato states that he asked the plaintiff why he did not follow his orders to stay out of the trailer, and the plaintiff began acting in a hostile manner and threw the turkey back onto the trailer.
At his deposition, the plaintiff testified that when he called Vignato to inquire about the turkeys, Vignato informed him that because the trailer had already been locked the plaintiff needed to pick his turkey up later at the loading dock. The plaintiff states that Vignato never instructed the plaintiff not to touch the trailer and at no point was the plaintiff made aware that the trailer had been called to be pulled to the dock. The plaintiff states that he did open the trailer door slightly to inform Vignato that it was not locked and that he never entered the trailer or retrieved a turkey. Based on the foregoing, the parties have presented conflicting evidence as to whether the plaintiff was insubordinate on November 16, 2016. "In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary [judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). Consequently, a genuine issue of material fact exists as to whether the defendant terminated the plaintiff for a legitimate, nondiscriminatory reason.
3. Pretext or Discriminatory Motive or Intent
Because a genuine issue of material fact exists as to whether the defendant terminated the plaintiff for a legitimate, nondiscriminatory reason, it is unnecessary to analyze the final step in the test laid out in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., namely, whether the plaintiff has met his burden of demonstrating that he was the victim of discrimination either directly by persuading the fact-finder that a discriminatory reason more likely than not motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant’s motion for summary judgment is hereby denied.