Opinion
106015468S
06-30-2016
Yolanda Prioleau v. Ryder's on Main, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Thomas J. Corradino, Judge Trial Referee.
The plaintiff brought a cause of action against the defendant, Ryder's on Main. The complaint was filed on October 26, 2010 and alleges the defendant violated § 46a-60(a) as a result of (1) racial discrimination and (2) color discrimination.
The first count based on racial discrimination in violation of § 46a-60(a)(1) states in paragraph 34 that (1) the defendant interfered with the plaintiff's privilege of employment on the basis of her race (2) the defendant limited and classified the plaintiff by her race in such a way that resulted in depriving her of opportunities and recognition given to other similarly situated coworkers (3) the defendant racially discriminated against the plaintiff as to adversely affect her status as an employee (4) the defendant " treated the plaintiff adversely different from similarly situated Caucasian employees (5) the " defendant terminated the plaintiff from employment on account of her race." In the second count the plaintiff makes the same allegations of discrimination based on her color.
As a result of the alleged violation of § 46a-60(a)(1) the plaintiff she claims suffered damages which included loss of employment with resulting loss of income and wages and various job benefits. She also claims as a result of the discrimination she " suffered severe humiliation, embarrassment, and emotional distress."
The plaintiff in a final paragraph to both counts of the complaint states that her " termination and unequal treatment was arbitrary, unreasonably discriminatory and retaliatory all in violation of the Connecticut Fair Employment Practices Act C.G.S. § 46a-60a et seq. The defendant exhibited ill will, malice, improper motive, and indifference to the plaintiff's civil rights by discriminating against her and terminating her on the basis of her race (first count) and on the basis of her color (second) count.
Prefacing the legal claims in the first and second counts the plaintiff makes 33 factual allegations which are incorporated in each of the counts. It alleges the defendant Ryder on Main, LLC is a limited liability company located on West Main Street in Meriden and it is a bar and grill establishment. The defendant admits these allegations. There are other allegations of an introductory nature which the court finds were established at trial but as to which the defendant left the plaintiff to her proof. The court finds that the plaintiff is African-American and that her color is black. Prior to the defendant purchasing the bar and grill Tom and Fred Mauri owned the establishment which was known as Mauri's Café and the plaintiff was employed by these prior owners as the head bartender. This business was purchased by the defendant Ryder's On Main in February or March 2008. After the defendant purchased the business the plaintiff was employed by the defendant Ryder's On Main.
Paragraph 12 through thirty-three then lists a series of discriminatory and racist statements or actions which form the basis of the discriminatory actions on which the First and Second Counts are based. As noted the plaintiff has brought this action against a business entity, Ryder's On Main and bases its suit on the Connecticut Fair Employment Practices Act (CFEPA) which provides that it is a violation of the act:
For an employer, by the employer or the employer's agent, except in the case of bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in terms of compensation or in terms, conditions or privileges of employment because of the individual's race, color . . .
The following acts of discrimination are then alleged:
12. In or about March 2008, Jay Ryder, an employee and/or member of the defendant, told the plaintiff that he was told to get rid of the black girl if he did not want a problem crowd.
13. In or about March 2008, Jay Ryder told the plaintiff that " there is a difference between blacks and niggers, just like there's a difference between whites and white trash."
14. Plaintiff objected to Jay Ryder's use of the racial epithet " nigger."
15. Jay Ryder told the plaintiff that he did not want the DJ playing hip hop and rhythm and blues music because he was afraid that he would lose his day crowd.
16. The day crowd was Caucasian.
17. In or about May 2008, Jay Ryder told the plaintiff that all employee's shift hours were going to be changed to see who worked best on what nights. He did not tell the plaintiff that any employee would lose hours.
18. Defendant hired a cousin of Lynn Ryder who is Caucasian to work as a bartender.
19. Jay Ryder told the plaintiff that the defendant hired the cousin because the defendant wanted to keep the Wallingford crowd.
20. The Wallingford crowd is predominately white.
21. Defendant replaced the plaintiff from working as a second bartender on Thursday night.
22. Plaintiff was replaced by a Caucasian employee.
23. Plaintiff asked the defendant why she was replaced as the second bartender on Thursday nights, the defendant, by and through Jay Ryder, stated I have no good reason.
24. Defendant accused the plaintiff of stealing when the defendant knew that plaintiff had not.
25. After accusing the plaintiff of stealing, the defendant told the plaintiff that it wanted to fire her but that it did not have a good reason to do so.
26. On or about September 25, 2008, defendant informed the plaintiff that it believed that she was unhappy at work and that certain customers had complained about her.
27. Defendant failed to provide the names of any of the alleged customers that complained and failed to provide any description of the nature and/or substance of the alleged customer complaints.
28. Other similarly situated, non-African-American employees of the defendant did engage in misconduct in the workplace but were not terminated.
29. On or about September 25, 2008, defendant terminated plaintiff's employment.
30. Any and all excuse that may be offered by the defendant for the plaintiff's discrimination would be a pretext to mask a true motivating factor of unlawful race and/or color discrimination.
31. Defendant did not want an African-American crowd at its establishment and believed that having an African-American employee as a bartender would attract such a crowd.
The defendant denies all of these allegations in its brief except as to paragraphs 18 and 20 where it leaves the plaintiff to her proof.
Apart from these denials the defendant also argues that any comments or actions by Jay Ryder cannot be attributed to the business entity, Ryder's On Main. The defense takes the position that Jay Ryder's wife set up and financed the business and ran it. The court will discuss this position and the actual factual allegations of discrimination later in the decision.
The defendant also filed special defenses in its answer to the plaintiff's complaint (1) a general statement that the action is barred by " the applicable statute of limitations"; (2) the action is barred by § 46a-100 of the General Statutes; (3) the action is barred by § 46a-98; (4) the action is barred by § 46a-101; (5) the action is barred by § 46a-102.
I
The court will first examine the test to be applied to determine whether there has been a violation of Section 46a-60(a)(1), a section of CFEPA. In this part of the court's decision it will reference federal case law. In Levy v. Commission on Human Rights, 236 Conn. 96, 103, 671 A.2d 349 (1996) the court said that " Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own anti-discrimination statutes" citing Miko v. Commission on Human Rights, 220 Conn. 192, 202, 596 A.2d 396 (1991), also see Ezikovich v. Commission on Human Rights, 57 Conn.App. 767, 774, 750 A.2d 494 (2000), also see Jackson v. Water Pollution Control Authority, 278 Conn. 692, 900 A.2d 498 at footnote 11 (2006). In analyzing a CFEPA claim in the Connecticut Federal District Court, the same principle applies. Referring to Title VII, the federal employment anti-discrimination statute, the court in Johnson v. C. White & Son, Inc., 772 F.Supp.2d 408, 413 (D.Conn., 2011) said " Both Title VII and the CFEPA make it unlawful to discriminate against an employee because of the employee's race or color, see 42 U.S.C. § 2000e-2(a)(1) (Title VII); Connecticut General Statutes § 46a-60(a)(1) (CFEPA). Claims of racial discrimination under Title VII and CFEPA are analyzed using the same standard, " citing Feingold v. New York, 366 F.3d 138, 157 (CA2, 2004) and Levy v. CHRO, supra, also see Williams v. Quebecor, 456 F.Supp.2d 372, 382-83 (2006). In a race discrimination case brought in District Court under federal and state statutes, the court said that as a result of the foregoing law " . . . the court will analyze Lyte's Title VII and CFEPA race discrimination claims together, " Lyte v. South Central Regional Water Authority, 482 F.Supp.2d 252, 262 (D.Conn., 2007).
As noted in Levy v. Commission on Human Rights, 35 Conn.App. 474, 480, 646 A.2d 893 (1994), the Federal Supreme Court has advanced two theories of employment discrimination (1) the disparate treatment theory, McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and (2) the direct evidence theory, Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). As pointed out by the Connecticut Supreme Court on the appeal of this case " 'disparate treatment' simply refers to those cases where certain individuals are treated differently than others . . . The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status, " Levy, 236 Conn. page 104.
The theory advanced in this case is the so-called McDonnell-Burdine Model. In Levy the Supreme Court said that: " Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts (that are) sufficient to remove the most likely bona fide reasons for an employment action' . . . Tyler v. Bethlehem Steel Corporation, 958 F.2d 1176, 1180 (CA2, 1992). From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons. It is in these instances that the McDonnell Douglas-Burdine model of analysis must be employed . . . The plaintiff's burden of establishing a prima facie case is not onerous under this model, " see also Smith v. Cingular Wireless, 579 F.Supp.2d 231, 242 (D.Conn. 2008), Levy at 236 Conn. at page 105. The court went on to say that: " Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created." Id.
In Jacobs v. General Electric Company, 275 Conn. 395, 400, 880 A.2d 151 (2005), quoting from an earlier case the court said, pursuant to the McDonnell Douglas standard, that: " In order to establish a prima facie case, the complainant must prove that (1) he (she) is in the protected class (2) he (she) was qualified for the position (3) he (she) suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination."
As to the first prong a reading of § 46a-60(a)(1) make clear that it is unlawful to discriminate against an employee because of her race or color.
The second prong of the McDonnell Douglas has caused some confusion but it is fairly well settled that " McDonnell Douglas requires only a minimal showing of qualification to establish a prima facie claim. Owens (the plaintiff) only needs to demonstrate that she 'possesses the basic skills necessary for performance of (the) job, '" Owens v. New York City Housing Authority, 934 F.2d 405, 409 (CA2, 1991); Visco v. Community Health Plan, 957 F.Supp. 381, 385 (Dist.Ct., N.D.New York, 1997). Insofar as there is a difference of opinion in various federal circuits as to some aspects of how McDonnell Douglas should be interpreted or applied Connecticut courts would be well advised to rely on Second Circuit cases to avoid chaotic results that would otherwise occur-- Title VII and CFEPA claims can go in many cases to state or federal courts in the same geographical area.
The third prong of the McDonnell Douglas test is self-explanatory. Termination from a job is an adverse employment action, see United Techs. Corporation/Pratt & Whitney Aircraft Div. v. Comm'n on Human Rights & Opportunities, 72 Conn.App. 212, 804 A.2d 1033 (2002); Walker v. Department of Children and Families, 146 Conn.App. 863, 873, 80 A.3d 94 (2013).
As to the fourth prong of the test Judge Hall in Clarke v. 1 Emerson Drive North Operations, Civil Action No. 3:13-CV-690, (D.Conn., 2015), said that: " One way that a plaintiff can meet her burden as to the fourth prong is by proffering evidence of " disparate treatment" --that is, a showing that an employer treated plaintiff " less favorably than a similarly situated employee outside his protected group, " Ruiz v. City of Rockland, 609 F.3d 486, 493 (CA 2, 2010). A second way a plaintiff can meet this burden is by proffering evidence " that (the) plaintiff was replaced by someone outside the protected class, " Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (CA2, 2001).
As a guide to interpret the four prong test in Larson, Employment Discrimination 2d.ed § 8.01 it is said that as to the four-prong test " (there is an) omission of any reference to employer intent at the first stage, that of making the plaintiff's prima facie case. This is plainly deliberate and is dictated by the court's determination to keep the standards non-subjective and even mechanical" . In Evening Sentinel et al. v. National Organization for Women, 168 Conn. 26, 33, 357 A.2d 498 (1975) the court said " Specific intent is not an element requisite to a violation of CFEPA. This has been accepted in federal cases where good faith was held to be no defense . . .'This rule is founded upon the principle that the primary purpose of the act is to protect the public . . . rather than punish the violator of the Act.'" In Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002) the court said that: " The burden of establishing a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder." The court went on to say what was mentioned above: " 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" citing a Second Circuit case. Craine itself was a claim of sex discrimination as a result of denial of tenure brought under Title VII and § 46a-60.
In any event in Levy v. CHRO, supra at 236 Conn. page 108 the court said:
Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's rejection. Texas Dept. of Community Affairs v. Burdine, supra, at 254, 101 S.Ct. at 1094; Miko v. Commission on Human Rights & Opportunities, supra, at 204, 596 A.2d 396. Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas-Burdine model does not shift the burden of persuasion to the defendant. Therefore, " [t]he defendant need not persuade the court that it was actually motivated by the proffered reasons . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Dept. Of Community Affairs v. Burdine, supra, at 254-55, 101 S.Ct. at 1094; see Miko v. Commission on Human Rights & Opportunities, supra, at 204, 596 A.2d 396. Once the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual. Texas Dept. Of Community Affairs v. Burdine, supra, at 255-56, 101 S.Ct. at 1094-95; Miko v. Commission on Human Rights & Opportunities, supra, at 204, 596 A.2d 396.Minevich v. Spectrum Health, 1 F.Supp.3d 790 (W.D. Michigan 2014), was a Title VII action claiming among other things gender discrimination. Relying on earlier Circuit Court case the court at page 805 said: " Pretext may be established by demonstrating; that the stated reason '(1) had no basis on fact (2) did not actually motivate the defendant's challenged conduct or (3) was insufficient to warrant the challenged conduct.'"
The concept of " pretext" is more complex than might first appear if one examines the cases. In Stratton v. Department for the Aging, 132 F.3d 869 (CA2, 1997) the plaintiff brought a job discrimination claim because of age. At page 880 the court said: " A finding of pretext, of course, does 'not necessarily mean that the true motive was the illegal one argued by the plaintiff' . . . Rather pretext may mask some other improper; albeit not illegal, motivation, such as 'back scratching, log rolling, horse trading, institutional politics, envy, nepotism (or spite).'" In other words as the court said in Taylor v. Local 32E, 286 F.Supp.2d 246 (S.D.N.Y., 2003) (a job discrimination case) that the plaintiff had the burden of showing the reasons for the adverse employment action was a pretext: " However, even if Taylor (the plaintiff) did provide sufficient evidence of pretext, that alone is not sufficient. Grady, 130 F.3d at 561. 'There must also be evidence that would permit a rational fact finder to infer that the discharge was actually motivated, in whole or in part by discrimination, '" id., page 252. As said in Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40 (CA 5, 2002) . . . " even if the trier of fact disbelieves the nondiscriminatory explanation given by the employer, the trier is not compelled to find that the real reason was discrimination (citing Reeves v. Sanderson, 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). That is because the ultimate question is not whether the explanation was false but whether discrimination was the cause of the (job) termination." A variation on this theme is presented in Visco v. Community Health Plan, 957 F.Supp. 381 (NDNY, 1997) where at pp. 388-89 the court said:
As has consistently been held by other courts, an employer may exercise business judgment in making personnel decisions as long as they are not discriminatory. Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (" Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons"); Mesnick v. General Elec Co., 950 F.2d 816, 825 (1st Cir. 1991) (" Courts may not sit as super personnel departments, assessing the merits--or even the rationality--of employers' nondiscriminatory business decisions"); 389 Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (" The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason").(Visco was a Title VII discrimination action based on plaintiff's pregnancy, also see Dorsey v. Pinnacle Automation Co, 278 F.3d 830, 837 (2002) (action under Age Discrimination in Employment Act).
On the other hand as the Supreme Court noted in Reeves v. Sanderson, 530 U.S. at p. 147.
Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose . . . Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.
The case of Sweeney v. Research Foundation, 711 F.2d 1179 (CA2, 1983) sums up the discussion in a Title VII case where a female employee was denied a position and claimed sex discrimination. At pp. 1186-87 the court said:
Once the employer has met its burden, the plaintiff " must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. This burden merges with the ultimate burden of persuasion. Id. However, this ultimate burden is in effect narrowed once the employer has set forth its proffered reasons for its actions, and the plaintiff may focus upon " the specific reasons advanced by the employer." Wright v. National Archives and Records Service, 609 F.2d 702, 716 (4th Cir. 1979) (en banc). The plaintiff can meet this ultimate burden " 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." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.
As said in Cha v. Henderson, 258 F.3d 802, 805 (CA8, 2001) . . . " A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false may permit the trier of fact to conclude that the employer unlawfully discriminated, " also see Zapata-Matos, supra, at 277 F.3d page 45. Likewise the Connecticut Supreme Court in Jacobs v. General Electric Co., 275 Conn. 395, 880 A.2d 151 (2005) said . . . " we recently adopted 'the explicit holding in Reeves that evidence establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and of itself, enough to support the trier of facts ultimate finding of intentional discrimination, '" id., page 401.
But finally on the issue and bearing of pretext on the plaintiff's ultimate burden, the court said in Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (CA2, 1995) that a Title VII plaintiff " is not required to show that the employer's proferred reasons were false or played no role in the employment decisions, but only that they were not the only reasons and the prohibited factor (i.e., this court racial discrimination) was at least one of the 'motivating' factors." This is so because " The 'ultimate' issue in any employment discrimination case is whether the plaintiff has met (her) burden of proving that the adverse employment decision was motivated at least in part by an 'impermissible reason'--i.e. that there was discriminatory intent."
Further comments concerning the plaintiff meeting his or her ultimate burden are noted in the case law. In Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 124 (CA2, 2004); " To meet his or her ultimate burden, the plaintiff may, depending on how strong it is, rely upon the same evidence that comprised her prima facie case." On the other hand as the court in Lyte v. South Central Connecticut Regional Water Authority, 482 F.Supp.2d 252 (D.Conn, 2007), said: " Where the plaintiff's evidence barely establishes a prima facie case, the prima facie case alone may not be sufficient to prove that it is more likely than not that discrimination, not defendant's proffered explanation, was the true motive for the adverse employment action. See Reeves, 530 U.S. at 148 . . . ('Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact finder could conclude that the action was discriminatory')" --the quote is from Stern v. Trustees of Columbia University, 131 F.3d 305, 312 (CA2, 1997).
II
There are certain factual claims raised in these cases which are used to establish a prima facie case by a plaintiff, in responding to a defendant's attempt to offer a non-discriminatory reason for adverse action against the plaintiff employee, and to ultimately provide support for the plaintiff's burden of persuasion that the plaintiff employee was discriminated against and this discrimination resulted in adverse action such as termination of employment. The court will discuss two of them because of factual issues in this case (1) disparate treatment and (2) discriminatory comments.
Disparate Treatment
(a)
Disparate treatment can be used to establish the inference of discrimination prong necessary to establish a prima facie case of discrimination by the plaintiff. In Clayton v. Meijer, Inc., 281 F.3d 605 (CA6, 2002) the plaintiff who was terminated from his job brought a Title VII race discrimination claim. The court framed the issue before it by saying: " The plaintiff concedes that he cannot establish that he was replaced by a person outside the protected classification. Therefore in order to establish a prima facie case of discrimination, he must show that he was treated differently than similarly situated employees outside the class, " id., page 610. The court went on to say that the " plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in all relevant aspects " . . . court should not demand exact correlation but should instead seek relevant similarity, " id., page 611, also see, id., page 611. In Smith v. Cingular Wireless, 579 F.Supp.2d 231 (D.Conn., 2008) the plaintiff brought suit alleging violations of the ADA and Title VII because of racial discrimination that led to her termination. To establish the fourth prong of McDonnell Douglas --" (4) that the circumstances surrounding the employment action gives rise to an inference of discrimination" --the court said that " One way that a plaintiff can create an inference of discrimination is by introducing evidence that similarly situated individuals of a different race were treated differently, " id., page 243.
Disparate treatment can also be used later in the several step framework used to decide these cases. Thus instances of disparate treatment may support an inference of pretext where the employer tries to show a non-discriminator reason for adverse action involving an employee after a prima facie case has been established, Williams v. St. Luke's - Shawnee Mission Health Sys., 276 F.3d 1057, 1060 (CA8, 2002) also see Russell v. University of Toledo, 537 F.3d 596, 607 (CA6, 2008) (Title VII termination case involving claim of racial discrimination), also see Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 450-51 (CA1, 2009) where the court said at page 451: " An employer's disparate treatment of employees in response to behavior that legitimately offends the employer can provide evidence of discriminatory animus." Later in the opinion the court said, quoting earlier cases, " it is not enough for a plaintiff merely to impugn the veracity of the employer's justification; he must eluadate specific facts which would enable a jury to find that the reason given is not only a sham but a sham intended to cover up the employer's real (and unlawful) motive of discrimination " --a 'suspicion of mendacity may be particularly influential to a jury's determination of whether an employer seeks to cover up intentional discrimination, '" id., page 452.
Discriminatory Comments
(b)
Interesting complications are involved when there is a claim that discriminatory remarks were made at the work place.
Apart from a purely linguistic analysis of remarks to determine if they were discriminatory, their relevance in a termination case depends on whether, if not made by a decision maker, they can be considered by some application of the cat's paw theory. Thus the comments of the court in Johnson v. C. White & Son, Inc., 772 F.Supp.2d 408 (D.Conn.), are relevant. That case was a Title VII and CFEPA race discrimination case. Applying the McDonnell Douglas test the court held that the fourth prong--inference of discrimination--was not established. The plaintiff cited two alleged remarks that were allegedly discriminatory the Johnson court referred to Second Circuit case law to the effect that " remarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision maker was motivated by the discriminatory sentiment expressed in the remark, " id., page 414.
If the person making the remark was a decision maker in a termination decision then " the inquiry should focus on the type and frequency of the remarks, the context in which the remark was stated, the period of time between the remark and the adverse employment action, " Brown v. City of Aurora, 942 F.Supp. 375 (N.D. Ill. 1996) (Title VII, race discrimination termination case). The court also said prefacing this quote: . . . " it does not believe that there can be a bright line rule as to whether discriminatory remarks, by themselves, are sufficient to raise a reasonable inference that (for example, this court) that the employer's legitimate non-discriminatory reason is pretextural, " id., page 381. As also said in Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 115 (CA2, 2007) " the relevance of discrimination related remarks does not depend on their offensiveness, but rather on their tendency to show the decision maker was motivated by assumptions or attitudes relating to the protected class, " also see Williams v. Quebecor World Infiniti, 456 F.Supp.2d 372, 385 (D.Conn. 2006); Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (CA2, 1998).
If the individual uttering the remarks cannot be characterized as a decision maker then his or her discriminatory remarks can still be relevant in a Title VII or CFEPA case if the actual decision maker, as previously discussed relies upon or is influenced the decision maker as per Staub v. Proctor Hospital, supra .
III
Decision Maker
By way of introductory remarks before the court tries to examine the facts of this case the concept of " decision maker" must be discussed. A necessary predicate for finding that a claim of discrimination has been established under Title VII and CFEPA is that the decision maker who imposed the adverse employment action was motivated by discriminatory animus.
Thus in Griffin v. Ambika Corporation, 103 F.Supp.2d 297, 309 (S.D.N.Y., 2000), a Title VII racial discrimination case, the court said: " It is fatal to plaintiffs' case that they only allege that (a manager and supervisor) and not any of the decision makers who were responsible for their termination harbored discriminatory feelings for them, also see Collins v. N.Y. City Transit Authority, 305 F.3d 113, 116-19 (CA2, 2002). In Smith v. Cingular Wireless, 579 F.Supp.2d 231 (D.Conn, 2008), the plaintiff brought a race discrimination claim because of her termination; the court found her immediate supervisor had probably been shown to have discriminatory animus towards the plaintiffs but " this is beside the point because there is no evidence that Taylor (the immediate supervisor) played any role in Smith's termination." The court went on to grant the defendant's summary judgment motion on the Title VII claim, id., p. 243, 244, also see Raggs v. Mississippi Power & Light, 278 F.3d 463, 470 (CA5, 2002).
It should be noted that in a case cited by the plaintiff, Lima Addeco, 634 F.Supp.2d 394 (S.D. New York (2009)), the court noted that " The definition of 'employer' has been construed liberally for Title VII purposes 'and does not require a direct employer/employee relationship . . . Instead the term is to be viewed 'functionally, to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an employee's compensation, or terms, conditions, or privileges of employment, '" id., page 399 (emphasis by this court given the fact that the explicit claim is for termination from employment).
Lima v. Addeco analyzed the situation of a termination and there was a claim that the defendant Addeco was a joint employer of the plaintiff and thus responsible for a discriminatory termination. This is a different question from the predicate to a Title VII or CFEPA analysis of whether the person who made an actual decision to terminate was influenced by, for example racial discrimination. That is, the first question is ascertaining whether the employer taking the adverse action, who had by definition the authority to do so, was motivated by racial discrimination. But that does not end the inquiry and that is why we have the cat's paw theory. Liberal definitions of employer cannot be used to avoid the issue of whether, in practical terms, a person who actually terminated the complainant was motivated by discrimination or subject to liability under the cat's paw theory.
But an employer is not immune from liability under Title VII or CFEPA if the employer taking the adverse employment action is not shown to have discriminatory animus in making the decision--for example as to termination. Liability can be imposed on the employer through application of the so-called Cat's Paw Theory of Liability. The case of Rajaravivarma v. Board of Trust of Connecticut State University System, 862 F.Supp.2d 127, 148-49 (D.Conn, 2012) describes the doctrine in general terms, relying on the Supreme Court case of Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). Staub involved a claim of employment discrimination under the Uniformed Services and Re-employment Rights Act (USERRA). The Rajaravivarma court said:
In Staub, the Supreme Court considered " the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision." 131 S.Ct. at 1189. In a " cat's paw" case, a plaintiff typically seeks to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. The Supreme Court held that a plaintiff may establish " cat's paw" liability under USERRA " if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." 131 S.Ct. at 1194. The Supreme Court explained that " [p]roximate cause requires only 'some direct relation between the injury asserted and the injurious conduct alleged, ' and excludes only those 'link[s] that are too remote, purely contingent, or indirect.'" Id. at 1192 (quoting Hemi Group, LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010)).
The Rajuravivarma court went on to say that although the Staub decision involved USERRA it could see no reason why it should be limited to that act. It noted that " the Supreme Court expressly indicated in Staub that USERAA was similar to Title VII, " 862 F.Supp.2d at page 150. The court noted that as of 2012 the Second Circuit has not formally adopted the cat's paw theory but the district courts therein have in effect supported it. The court also noted a Title VII case based on failure to give a promotion, Bickerstaff v. Vassar College, 196 F.3d 435 (CA2, 1999) where the Second Circuit " recognized that the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on behalf of the decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process, " id. page 450. Or. as said in Minevich v. Spectrum Health-Meier Heart Center, 1 F.Supp.3d 790, 805-06 (W.D. Michigan, 2014), a Title VII case, . . . " Cat's paw liability arises when a biased subordinate, who lacks decision making power, uses the formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment action . . . if the decision maker relies entirely on the biased subordinate's recommendation or investigation of the facts the subordinate becomes the defacto decision maker; imposing liability on the employer under agency principles."
Case law prior to Staub used language that expressed a slightly different emphasis on how the cat's paw theory was to be applied. Bickerstaff said the discriminatory animus must play a " meaningful role." Minevich takes a rubber stamp approach--the decision maker relied " entirely" on the biased employee's report. A Third Circuit case, Levendos v. Stern Entertainment, 909 F.2d 747 (1994), in a Title VII case, quotes language from a Fifth Circuit case that under Title VII " a person is an agent under § 2000e(b) if he participated in the decision making process that forms the basis of the discrimination." (Emphasis by this court.) The Fourth Circuit took a seemingly more restrictive view of the ambit of the theory in Title VII cases, Hill v. Lockheed Martin, 354 F.3d 277, 291 (2004), when it said, relying on the earlier Supreme Court decision of Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), said " Regarding adverse employment actions, an employer will be liable not for the improperly motivated person who merely influences the decision but for the person who in reality makes the decision. This encompasses individuals who may be deemed actual decision makers even though they are not formal decision makers, such as in Reeves where the husband of the formal decision maker wielded absolute power within the company . . . As the court said, just preceding these remarks, subordinate employees with no decision making authority are not agents of the employer " simply because they have influence or even substantial influence in effecting a challenged decision" (claimed to be discriminatory).
In effect by imposing a proximate cause standard Staub took a middle ground between two extremes.
Connecticut appellate courts have applied the cat's paw test. United Technologies v. Commission on Human Rights, 72 Conn.App. 212, 804 A.2d 1033 (2002) was a gender discrimination CFEPA case under § 46a-60(a)(1). The court said: " Nevertheless, companies may be held liable for discrimination even where the decision making official did not intentionally discriminate if the information used by that official in deciding to terminate a worker's employment was filtered through another employee who had a discriminatory motive, " id., page 235.
There is no reason to believe our appellate courts will not apply the Staub standard as have Connecticut trial courts and our federal district court. Judge Scholl cited Staub in Jones v. DCF, 2014 WL 7739150 (involving a CFEPA claim as did Judge Cohn in Andoh v. CHRO, 2012 WL 3518069 and Judge Bryant cited Staub in Asante-Addae v. Sodexo, Inc., 2015 WL 1471927, (United States District Court of Connecticut).
IV
The court will try to apply the foregoing to the claims and defenses made in this case.
(a)
The first issue to be decided is whether the plaintiff has set forth a prima facie case pursuant to McDonnell Douglas and the adoption of that test in Connecticut case law, see Board of Education v. CHRO, 266 Conn. 492, 505-06, 832 A.2d 660 (2003). To establish a prima facie case the plaintiff must show:
(1) She is in the protected class
(2) She was qualified for the position
(3) She suffered an adverse employment action
(4) That the adverse action occurred under circumstances giving rise to an inference of discrimination.
The first prong of the test is clearly met and has been established for the purposes of this case. Section 46a-60(a)(1) makes it unlawful to discriminate against a person because of their race or color. Ms. Prioleau is an African-American and she is black.
As to the second prong the court would refer to its earlier discussion. Second Circuit cases make clear that a plaintiff need only show that " she possesses the basic skills necessary for performance of (the) job, " Owens v. New York City Housing Authority, supra, also see Visco v. Community Health Plan, supra . It is true that in this case the defendant vigorously argues that the plaintiff engaged in misconduct which would provide a non-discriminatory reason for any adverse employment action taken against her. But as the Owens court said: " This misconduct is distinct, however, from the issue of minimal qualification to perform a job. An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive, " 934 F.2d at page 409.
A prima facie case has been established that the plaintiff possessed the necessary skills to perform the job of bartender at the defendant establishment. She worked as a bartender then head bartender at Mainer's Café for four to four and a half years. She then worked as a bartender then head bartender at Mauri's from 2006 to 2008. Mauri's was bought out in 2008 and become Ryder's on Main, LLC, the defendant, in February 2008. She worked at the defendant establishment as bartender until September 25, 2008 when claims she was terminated by the defendant. She worked as a bartender in three establishments for seven years prior to September 2008. No evidence was introduced to establish the plaintiff did not have the basic skills to act as a bartender. Lynn Ryder at one point in her testimony said: " I knew that Yolanda (the plaintiff) was good at her job." She also testified that the plaintiff was the head bartender. " She always remained with the title " head bartender." This characterization of the plaintiff's skills has been established for the purposes of this case.
The third prong requires a plaintiff to establish a prima facie case that she suffered an adverse employment action. The explicit claim in the complaint, the plaintiff's post-trial brief and at argument is that the plaintiff was terminated. This, therefore, is not a constructive discharge case where the claim is made, that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign, Syed v. YWCA of Hanover, 906 F.Supp.2d 345, 359 (MD, Penn., 2012), see test for establishing such a claim under Title VII in Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (CA3, 1993), also see Taylor v. General Jiminic " Red Jones, " 653 F.2d 1193, 1198 (E.D.NY, 1986) (forced resignation racial discrimination case under Title VII).
Here the plaintiff has testified to increasingly intolerable working conditions which she alleges were the result of racial animus but she states that her September 25, 2008 departure from employment was not based on her resignation after a mutually agreed upon parting of the ways as the defendant asserts--she claims she was terminated, that is, fired. The statement she submitted to the CHRO which was attached to the " Notice of Charge of Discrimination" sent to the defendant (Plaintiff's Ex. 7a) makes this clear in paragraphs 16 through 19.
16. On September 25, 2008 Jay Ryder called me at about 1:26 pm and asked me to come down to the club. I was not scheduled to be at work until 7 p.m. I told him that I could be there after 5:30 p.m. I arrived at 6 p.m.
17. Jay Ryder and Lynn Ryder met with me. Lynn Ryder told me, " You're very unhappy at work and customers are complaining." I never said I was unhappy and the Ryders did not give me any information about these alleged customer complaints.
18. I was not given any verbal or written warnings. There were no verbal or written complaints. Other bartenders who engaged in various acts of misconduct, including working while intoxicated and leaving the cash drawer out until the next day, received no discipline. Yet, I was terminated for no reason.
19. Jay Ryder terminated me because he did not want to attract a black crowd.
Apart from the plaintiff's own statements that her job was in fact terminated there is other evidence in the record that supports such a conclusion and it did not only come from the plaintiff, which might permit an inference that her termination claim was self-serving and manufactured for the purposes of litigation.
On direct examination by her counsel Lynn Ryder stated she worked as a bartender with the plaintiff and April Barnes when she first acquired the business to learn about how the bar business ran and should run. She was asked whether she saw any " improper activities" by the plaintiff and responded she saw the plaintiff ring up premium drink prices when only a medium quality drink was sold--the difference would go into the tip jar. Lynn Ryder kept track of empty liquor bottles versus cash taken in--the worst discrepancies were on Thursday through Friday nights when the plaintiff worked her shifts. She brought this to the plaintiff's attention and the other bartenders but at another point when cash receipt discrepancies were being discussed Lynn Ryder said on one occasion she talked to the plaintiff again about this but the plaintiff said " I wasn't the only one ringing" --Ryder responded as the head bartender she would be responsible for making sure the till was accurate and correct--i.e. reflected receipts for all liquor actually sold. Lynn Ryder testified as time went on from the time of purchase relations became increasingly uncomfortable between her and the plaintiff--she would ignore her requests to wait on customers, would tell her get other bartenders to do it. The customers noticed the growing hostility between them. Lynn Ryder noted that on occasion the plaintiff did not show up for work; her shifts were covered but the plaintiff did not respond to Ryder's texts inquiring as to what the problem was, neither did she provide a doctor's note that was requested to support her claimed reason for not showing up for work.
The defendant cannot have it both ways claiming there was no termination but an agreed upon parting of the ways while presenting the foregoing evidence of what would otherwise serve to rebut a claim of discrimination leading to adverse employment action.
In fact evidence of actual termination can be garnered from Lynn Ryder's own testimony. She understandably was concerned about possible violence between motorcycle gangs and took thorough steps to avoid such violence. She posted signs and instructed employees that gang members could not wear colors in her establishment. She hired security. In light of her concerns and these measures she was upset about reports she received from the bar from another employee that the plaintiff had come into the bar with the Thug Riders and they had their colors on the back of their vests while another motorcycle gang was already in the bar and they had removed their colors--the employee who called said the two groups were " getting agitated by each other." The plaintiff called Lynn Ryder and denied the Thug Riders were wearing colors. Ryder viewed tapes of the incident the next day which proved otherwise. The following then occurred while Lynn Ryder was being questioned by her attorney who referred to this incident.
Q If you--what you understood was going on, because at some--is this not part of the reason behind the end game with you and Yolanda?
A (by Lynn Ryder). This was the final end game.
She then said the wearing of the colors problem " was not a little issue, this was a huge issue." We then come to the September 25, 2008 meeting a few days after the foregoing events where the plaintiff's employment came to an end. Describing the meeting she had with the plaintiff Lynn Ryder among other things said she discussed with the plaintiff the growing animosity the plaintiff displayed toward her and other employment problems just discussed albeit saying she had no intention of terminating the plaintiff.
She also referred to the fact that customers felt ignored and were uncomfortable with the plaintiff--" you could feel the tension in the building . . . people want to come in to relax, not be stressed out." This from a woman who said she worked 18 to 20 hours a day to develop a profitable business. Lynn Ryder then testified " I said, at this point, you're not happy here and I think at this point its best that we agree to go our separate ways. And that's how this ended. It was an agreement to go our separate ways." This language in the conversation has the ring of termination.
In December 2008 the plaintiff filed a complaint with the CHRO. On cross Lynn Ryder admitted that she informed the CHRO that the plaintiff was terminated.
Finally Exhibit D is entitled " Section F--Unemployment Notice." It says that the employer must give " this entire packet to the separating employee at the time of separation." The first page is a document signed by Lynn Ryder. Subsection L has a box entitled " Reason for Unemployment" and a box has to be checked off by the employer, the reasons given are " Lack of Work, " " Voluntary Leaving, " " Discharge/Suspension, " " Leave of Absence, " " Other." The box checked was " Discharged/Suspension."
It is true that there was testimony that the plaintiff on several occasions expressed unhappiness with her bartending job and said she wanted to return to school and move to a new job setting. This was offered to support the position that what occurred here was not a termination but a voluntary parting of the ways coupled with unemployment conversation. This is certainly relevant to the issue but, in the court's opinion is not convincing not only for the reasons the court has just stated. Employees may have various negative opinions about their jobs and be considering new paths to secure further education offering the possibility of different and, to them, better employment. But they have a right to make these decisions with a timing and under circumstances they approve of and plan on. Furthermore there is nothing to indicate any unemployment compensation offered to the plaintiff would equal the salary she was earning as a bartender.
A prima facie case of adverse employment action because termination has been established, satisfying the third prong of the McDonnell Douglas test.
The end of employment was on September 25, 2008 and a complaint was filed with the CHRO on December 8, 2008. The plaintiff continued to come into the defendant establishment for two months until the complaint was filed. This could support a position that there was in fact a friendly parting of the ways but it does not counter the tangible evidence of termination just discussed. The plaintiff had worked at the establishment under its prior owner and Ryder on Main for several years and had numerous friends who still went there at the time of her termination. It is not surprising she continued to visit the bar to meet with friends after termination which she might find helpful in dealing with fact that she had been terminated.
Since the issue of termination in this case determines whether the litigation is viable and should go forward under CFEPA, the court has conducted a more lengthy discussion than would be expected under a simple prima facie analysis. In so doing the court has concluded that for the purposes of meeting her ultimate burden the plaintiff has also established, beyond a prima facie test, that she was terminated.
The fourth prong of the McDonnell Douglas test requires that a plaintiff prove that the adverse employment action " occurred under circumstances giving rise to an inference of discrimination." Underlining the word " inference" the court concludes this element of the prima facie case has been established.
A discussion of this prong is inextricably bound up, at least in the court's opinion with the decision maker question and the cat's paw variation of that concept. Suffice it to say we are only dealing with the prima facie case issue which requires a low bar of proof and the notion of inferences. In conducting this discussion, the court is of the opinion that " apparent authority, " Cefaratti v. Aranow et al., 321 Conn. 593, 141 A.3d 752 (2016), is a concept different from the decision maker-cat's paw analysis that must be made in Title VII and CFEPA cases--but again inference and the low proof standard of a prima facie case must be kept in mind.
The plaintiff said when they first took over Jason and Lynn Ryder introduced themselves as the owners. She met with both of them prior to their actually taking over. She said the Ryders had more than one conversation with her as to their plans for the restaurant. It is true that a former bartender, April Barnes, who was a witness for the plaintiff, another bartender, Elizabeth Lees, and a disc jockey at the bar and a security person all testified that Lynn Ryder not her husband ran the day to day operations of the defendant bar. He was only there to do remodeling and at closing time.
But Lees also gave a statement in February 2009 referring to Lynn and Jason Ryder in the plural as the " owners." And Jason Ryder did say that when he was present in the bar if he saw something relating to the bartender employees he felt he should comment on, he did so. The plaintiff also testified that at one point Jason Ryder told her--which he denies--that if there were any problems speak to him and not his wife. She regarded him as her boss.
Against this mixed background the plaintiff testified that throughout her employment Jason Ryder made some discriminatory racial remarks to the plaintiff. On two occasions April Barnes, a former bartender at Ryders said she heard these remarks despite the fact that Jason Ryder denied making them. Without getting into the complexities of the decision maker issue and the cat's paw theory at this point one can conclude that an inference of discrimination has been established.
It is also the case that the plaintiff was the only African-American bartender and another one was not hired for a year or two after her leaving employment. Also the plaintiff testified that her Thursday night shift was taken from her. Thursday nights were a guest bartender night where local figures such as politicians etc. were guest bartenders. To replace the plaintiff a white bartender was chosen who was a co-worker. It was a business move to attract customers--this in the context of a situation where there was a change in the music played from " ghetto music" to the type of music, Jason Ryder said, according to the plaintiff, which would attract the crowd from Maloney's. This was another bar whose clientele the plaintiff had seen when she went there once or twice a week and the crowd was " predominantly white."
The court concludes the fourth prong of the McDonnell Douglas test been established on a prima facie basis. As to whether it has been ultimately established further discussion of the evidence is necessary.
V
The court will now try to discuss the defenses raised by the defendant to the prima facie case and the claim that they were pretextural. This case is somewhat unique in that there is a dispute between the parties as to whether a termination actually occurred--if it did the Title VII and CFEPA cases apply in the sense that after the prima facie case has been established the burden of explanation shifts to the employer to show there is no validity to the prima facie case so that an employment discrimination case cannot be made because of the adverse employment action. The plaintiff can then try to show the employer's assertions were merely a pretext and would still have the ultimate burden of proving her Title VII and CFEPA claim.
If there was no termination then the case is over because this is not a hostile environment claim but a claim of termination based on impermissible racial discrimination.
The court has concluded that there was a termination. It could be argued that a claim that Section 46a-60 does not apply because there was no termination of employment is pretextural and thus might support an inference of discriminatory motive. But the inference in this case is not of great weight, in the court's opinion, because the evidence was mixed on the issue and could be characterized as a fairly taken, after the fact, litigation tactic which the defendant through counsel had a right to pursue.
What are the grounds on which the defendant could argue that any adverse employment action was based on valid nondiscriminatory reasons not based on the plaintiff's race?
There are several arguments advanced by the defendant to rebut the plaintiff's prima facie case--specifically that any adverse action was based on racial discrimination.
It is suggested that the plaintiff improperly diverted money to the tip jar after serving drinks instead of the cash register (till).
There is a claim that the plaintiff became more and more hostile on the job, ignoring customers and Lynn Ryder's requests to service customers, and engendering customer complaints because of her behavior and a perception by customers of a growing tension between the plaintiff and Lynn Ryder.
Lynn Ryder claims the plaintiff missed several of her shifts without prior notice she would not be coming in. The plaintiff had her shifts covered but on three occasions Lynn Ryder said she had to cover the shifts.
All of the foregoing was coupled with her behavior of walking into Ryder on Main with the Thug Riders who were wearing their " colors" at a time when another motorcycle gang was present.
Lynn Ryder testified about the fact that there was a discrepancy between monies in the till and those in the tip jar of the bartenders. She took steps to ensure that this would not happen by the practice of counting empty alcohol containers at the end of the business day and estimating from this process how much money should have been taken in by the bar from sales of the alcohol. She then determined how much money and the court assumes credit card slips, was actually in the till at the end of the business day. That number is taken down by $250 which was originally put in the till and this would show the amount earned by the bar. From comparing the figures arrived at the owner of the bar could determine if the till had been shorted.
Lynn Ryder testified that the plaintiff's till was found to be short on two occasions, $42 the first time and $180.00 the next time but " It could be in reverse." When Ms. Ryder pointed out the discrepancy to the plaintiff the plaintiff pointed out to her that other bartenders had access to the tip jar. Lynn Ryder opined that since she was the head bartender she was responsible. Jason Ryder testified that on the night of the pig roast--a charitable money raising event there was $786 in the till and $914 in the tip jar. But how can a busy bartender, no matter her title, perform her job and keep a close eye on the tip jar and till? To ask the question provides the answer. Jason Ryder said only April Barnes and the plaintiff were acting as bartenders while the alleged shenanigans were going on, but confusingly seemed to say perhaps other bartenders were working the shift--" Liz, " " C.C., " and Donna. Also the plaintiff was not given a formal warning.
Also in Lynn Ryder's testimony about her conversation with the plaintiff preceding the claimed parting of the ways on September 25, 2008 she told the plaintiff customers complained they were being ignored by the plaintiff, and sensed the " growing animosity" between her and the plaintiff. And she knew the plaintiff " wasn't happy" anymore and was looking " for other options and other avenues" but there was no mention about money missing from the till.
Three other bartenders who worked with the plaintiff when she was a bartender for Ryder's On Main. April Barnes was called by the plaintiff, Elizabeth Lees and Erica Kuimmer were called by the defendant. None of them testified on direct concerning short changing the till nor were they asked this on cross by either counsel, with defense counsel having the primary motive to do so. One would assume as bartenders they would be able to make first hand observations as to whether the plaintiff was engaged in an ongoing scheme to inflate the tip jar at the expense of the till.
Two other considerations at least in the court's opinion suggest that surmises about the plaintiff being involved in a scheme to short change the till and divert money improperly to herself. In his questioning of the plaintiff, defense counsel suggested two bartenders had been fired for doing this exact thing. Lynn Ryder in her testimony never specifically referred to this but one would think such activity would be regarded as meriting immediate dismissal--it is difficult to believe, if the defendant really believed the plaintiff was stealing, she would not have been terminated before September 25, 2008 and upon her separation from employment would not have been told unemployment benefits were agreed to by Lynn Ryder. Even more to the point if she was really suspected of being a thief why was she allowed to keep a liquor key and one of the safe keys until she turned them in herself--one safe key she apparently kept until her departure from employment.
Jason Ryder's testimony on this subject was, at least to the court, difficult to weigh. He said the plaintiff was " over serving" by getting big tips and not charging. But the actual questions and answer are instructive. He first said he did not think the plaintiff was taking money out of the register then the following occurred:
Q What do you think she was doing? A I think they were over serving and they were getting big tips and not charging. Did he actually observe the plaintiff do this, is the claim that she was responsible because she was the head bartender? He was not sure there were nights she was the only bartender. He apparently did not see the plaintiff engage in this because he asked her about what was going on and she said she did not know. Jason Ryder told his wife about these problems and that is apparently why the Ryders started counting the empties and compared what would be the income from the alcohol served and the money in the till. Interestingly enough Lynn Ryder, who claims she was in charge of actually running the business and termination of employees in her testimony about the September 25, 2008 meeting never brought this subject up as noted.
It seems self-evident that in a businesslike running of a bar it is important to ensure customers are treated in such a way by bartenders and other employees that they enjoy coming to the establishment because of the good service they receive and the happy and relaxed atmosphere they would hope to find. Tension between staff and staff and management is not conducive to that type of atmosphere which would lead people to continue their business with the establishment and encourage them to bring their friends who might be new customers.
The court has previously discussed Lynn Ryder's testimony about her sense of the increasing tension between her and the plaintiff. She also testified that on occasion the plaintiff ignored her requests to attend to customers on the apparently infrequent times that Lynn Ryder was filling in as a bartender. The court will not repeat that discussion--it served to underline that, in the court's opinion a termination did in fact occur here. But for the purposes of the present discussion it is also relevant on the issue of the defendant's position that there were non-racially discriminatory reasons for any adverse employment action that might have been taken.
In this regard Lynn Ryder's observations on tension and treatment of customers was supported by other witnesses at the trial. Elizabeth Lees worked as a bartender with the plaintiff after the bar became Ryder's on Main. At first she did not observe the plaintiff having problems with customers. As time went on, however the plaintiff would get more agitated--she would not describe the plaintiff's behavior as aggressive she said " I just know that she wasn't as happy towards the end."
Lees went on to say the plaintiff was getting more aggravated because she was not getting more shifts. Asked to expand on her observations of the plaintiff in the last two months she worked as a bartender she said " when the plaintiff was in a good mood she was in a good mood." But when she was in a bad mood she was a " crab" verbally going after customers. She qualified her observation by saying " But we've all done that, so." And she further said her mood changed when a particular customer or the bar crowd was acting unruly. She also said she could not remember any incidents where the plaintiff went " crazy" when customers did not provoke her. And more to the point Lees said " a lot of us, " presumably referring to the bartenders, were fighting with each other. Interestingly Lees testified she did not recall bringing anything about the plaintiff's behavior to Lynn Ryder's attention. Lees did notice tension between the plaintiff and Lynn Ryder got worse especially after the pig roast.
Erica Kummer worked with the plaintiff for two months after the bar became Ryder's. Kummer testified the plaintiff was very unfriendly with her and though her demeanor with customers she liked was friendly but was not friendly with people she did not like. Kummer did talk to Lynn Ryder about customer dissatisfaction with the plaintiff--" people were walking out."
On cross the picture sought to be presented is less clear. She only worked with the plaintiff " a handful of times:" Q Five or less. A. Maybe. Jason Ryder testified but never went into his observations about what he observed regarding the plaintiff's relationship and treatment of customers.
The plaintiff herself testified that she was not made aware of customer complaints and only remembered two incidents where she had disagreements with customers. Prior to the night her employment terminated she had never received verbal or written warnings. She asked at the termination meeting what people were saying and who they were and was not told by Lynn or Jason Ryder anything beyond generalities. She did note that if she was in fact rude to customers she would make less money--most of her income came from tips.
The stated reasons concerning this issue are not themselves pretextural but the question becomes whether the evidence supporting this ground for termination is convincing or so weak as to support a finding of pretext. It should also be noted that Jason Ryder, as will be discussed, continually made racially discriminatory remarks and allegedly told her her Thursday shifts were to be taken away, and her Monday shifts were also to be taken away or would be taken away. The plaintiff also testified that the night of the pig roast Jason Ryder accused her of stealing. Whether he had the authority to change her shifts or was a " decision maker, " as will be discussed, he was Lynn Ryder's husband who appeared every night at the bar. The plaintiff's increasingly angry mood with Lynn Ryder and other employees can possibly be explained by these factors--query though whether they can be offered as an excuse especially since Lynn Ryder has not been shown to be aware of them. Also, they have no relation to the issue of appropriate relations with customers.
In order to operate efficiently and therefore profitably a business such as the one conducted by the defendant must depend on its employees showing up for their work assignments according to their assigned shifts. If the employee fails to show up for her shift causing harm to the business operations termination could not be said to be a pretext for an adverse employment action based on an illegal motive.
In May 2008 Lynn Ryder testified that the plaintiff missed two or three of her shifts but then said she was out of work for two weeks. But the plaintiff explained to Ryder she had back problems and that she had to take care of her mother who was very sick. Ryder expressed no upset at this absence from work and the plaintiff had arranged to cover her shifts.
It is also interesting to note as the plaintiff points out the allegation is that she missed two weeks of work in May 2008. But the payroll records indicate the plaintiff worked 26 hours every week in May and the time records introduced by the defendant do not start until June.
In September 2008 Ms. Ryder testified there was a whole week and one-half that the plaintiff did not show up for her shifts and she had to cover three of them, the other missed shifts were covered by others apparently at the plaintiff's request to other bartenders. She said she was sick and was asked for a doctor's note but never gave one to Ms. Ryder. On cross the September worksheets were referred to and Ms. Ryder seemed to say the plaintiff missed shifts on three days not a week and one-half. The plaintiff did say she spoke to Lynn Ryder before the dates in question about not showing up, only missed one week (3 shifts) and arranged herself to have her shifts covered.
The other time Ms. Ryder said that the plaintiff did not appear for work was the day of the charity event called the " pig roast." Ms. Ryder said she wanted her whole staff in for the entire day and if they could not come they were to call in. The plaintiff's version of events is different. She said Lynn Ryder could call the bartenders as to what time they were to come in to cover the event. The plaintiff said she never received a call but did show up for her regular shift.
The foregoing is not very convincing to support the position that any termination was based on valid business reasons--the plaintiff says the times she missed her shifts she arranged for them to be covered. Whether it rises to a level of pretext, with its suggestion of mendacity is, somewhat problematical. Even if Ms. Ryder did not cover three shifts, if she was fabricating she could have picked a higher number--not having her most experienced bartender available would have been undesirable from a business perspective.
The most persuasive reason offered, at least in the court's opinion, as to a non-racially discriminatory reason, for the plaintiff's job termination involved the Thug Rider incident. The Thug Riders are a motorcycle gang. The visitation to the bar by motorcycle gangs had created problems in the past operation of the bar and the defendant wanted to prevent violence breaking out between rival gangs.
In order to fully examine any claim of pretext as to the defendant's reference to the plaintiff coming into the bar, with the Thug Riders, who allegedly were wearing their colors, a discussion must be had regarding security measures taken by Ryder's on Main that would appear to have nothing to do with meeting the defense requirements of this litigation.
Lynn Ryder testified that after she took over the bar from Mauri's she had posters put up outside the entrance informing motorcycle gangs that they must remove their colors before entering the bar. Security cameras were installed and security people were hired to pat down prospective customers for weapons. She had a wall knocked down so what was occurring in two back areas could be observed. Ryder said she told the bartenders about her policy concerning motorcycle gang members removing their colors--it seems commonsensical that she would have done so since they would thus be able to enforce the policy which would be in the bar's best interests and their own. April Barnes who worked with the plaintiff and was called by her said in 2008 " there was a rule" --the rule was " no colors." Colors meant " anything associated with a gang affiliation." This was a policy, according to Barnes, instituted after Ryder's On Main took over the bar. Barnes had worked at the bar when it was owned by the Mauris. She said when Ryder's took over things got " better, " " less fighting." When it was Mauri's the police came a couple of times a month--after Ryder's came in " not so often."
It is against this background that the events of September 22, 2008 must be viewed--three days before the plaintiff's termination. She walked into the bar with members of the Thug Riders who she had ridden with a few times. There was another motorcycle gang in the bar at the time and other bartenders called Lynn Ryder fearing an altercation would develop. The plaintiff admitted she was aware of the policy that a gang member could not enter the bar wearing their colors--they had to take them off. She testified that the policy came into effect in the summer of 2008, before September. Upon cross she was asked whether when she walked into the bar the Thug Riders were wearing their colors. Her responses were not credible, at least to the court. She first said " I didn't believe they had colors, it was a vest with the emblem on it." She " didn't understand they were colors." Perhaps mixing up her years because when asked whether from 2006 motorcycle gangs were coming into Mauri's and Ryder's the plaintiff responded " A. I wasn't involved with motorcycle clubs until probably around 2007." But that was a year before the determinative dates here. She was then asked what did the Thug Riders have on the back of their jackets and vests; she said the name Thug Riders appears and an " emblem" --a skull. The following then occurred:
Q It's a skull. So, this skull and the words Thug Riders is their club emblem, so-to-speak, isn't it?
A I guess so, yes.
Q All right. So, after the party, pig roast, that same week, within days, you brought in--you came in with the Thug Riders with you?
A Yes.
Q Okay. You brought them in?
A Yes.
Q They didn't just happen in and you happened to be there, you physically brought the gang with you into the bar?
A We walked in together, yes.
Q Okay. And did you tell them that they had to remove their jackets with the emblems on them?
A It wasn't until later on that evening when I real--when I found out that--they just weren't going to do it anymore, they weren't going to allow colors, any type of--anything that was affiliated with chapters, gangs, clubs anymore. At the time that I brought them, they didn't.
This last response is not credible since she earlier had said the no colors policy was instituted in the summer. There is some confusion between jackets and vests and what the Thug Riders were wearing on the night in question. But Lynn Ryder had a video system which taped the entry of 25 Thug Riders into the bar. She froze the video and said: " . . . on the back where I froze the video, was a picture emblem of 'the back of the motorcycle jacket . . . (it showed) . . ." a skull and it had letters Thugs in yellow, excuse me, white and Riders on the bottom." To Ryder these were " colors." She said when the plaintiff called her, as all this is going on, she denied the Thug Riders had colors on.
The problem, if there be any, with the defendant's reliance on the Thug Rider episode was as a justification for termination is that neither Jason or Lynn Ryder mentioned or even alluded to it in their conversation with the plaintiff the night she was terminated. This was the case despite the fact that there was no hesitation in that conversation about alluding to other claimed failures of performance and inappropriate behavior by the plaintiff.
Query, however, if this rises to the level of pretext. If, hypothetically, a perfectly valid and convincing reason for termination exists, which would otherwise provide a defense to racially biased motivation, it should hardly be considered pretextural if it is not mentioned in a conversation with the employee at the time of discharge?
V.
As discussed earlier in this opinion and its references to cases that have dealt with these issues and which the court will now paraphrase, the plaintiff must first establish a prima facie case. As the cases previously discussed indicate " the burden of establishing a prima facie case is a burden of production not a burden of proof and therefore involves no credibility assessment by the fact finder." Perhaps more to the point " the level of proof required to establish a prima facie case is minimal and need not reach the level of proof required to establish a jury verdict in the plaintiff's favor, " Craine v. Trinity College, supra . " Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created, Levy v. CHRO, supra . Levy went on to say when the prima facie case is established, " the burden of production shifts to the defendant to rebut the presumption . . . by articulating not proving some legitimate, non-discriminatory reason for" (the adverse employment action). " The plaintiff then has the opportunity to prove by a preponderance of evidence that the proffered reason is pretextural." This burden merges with the ultimate burden of persuasion which in the last analysis upon the plaintiff, Sweeney v. Research Foundation, supra . But as said in Zapata-Matos v. Reckitt & Colman, Inc. " Even if the trier of fact disbelieves the non-discriminatory explanation given by the employer, the trier is not compelled to find that the real reason was discrimination." Finally it has been said that to meet the ultimate burden of persuasion a plaintiff can rely on the same evidence that comprised her prima facie case, Back v. Hastings on Hudson, supra but where the plaintiff " barely establishes a prima facie case, the primary facie case may not be sufficient to prove that it is more likely than not that discrimination, not the defendant's proffered explanation, was the true motive for the adverse employment action Lyte v. South Central Connecticut Regional Water Authority.
Apart from the discussion about the defendant's position that appears to be, even if the adverse action of termination occurred, there was a non-discriminatory basis for it which the plaintiff argues was pretextural, what evidence is there in the record to indicate the plaintiff has met her ultimate burden of persuasion that her termination was based on racial discrimination?
The discussion involves two related questions. What evidence of racial bias has been presented and can such evidence be attributed to the decision maker or decision makers who perpetrated the adverse employment action who was animated in doing so by racial bias. And even if the decision maker was not so directly motivated pursuant to the cat's paw theory can it be said a supervisor or a person with some management responsibilities or engaged in acts indicative of racial bias and intended to bring about the adverse employment action were the proximate cause of that adverse employment action. In other words was the employer decision maker in terminating an employee merely a conduit for another is bias thus tainting the ultimate employment decision.
The court will first address the issue of who can be said to be the decision maker first, then it will discuss the actual termination process. Finally it will try to apply, this decision maker discussion to claims of specific racial bias and animus that are said to have occurred prior to the plaintiff's termination and which she claims was the reason for her termination. It will also try to apply the cat's paw theory to a discussion of these particular matters.
The particular facts of this case require further discussion of the decision maker concept. In a termination case the termination must be made by a decision maker with authority to fire the employee. Usually this issue arises where a subordinate employee harbors discriminatory bias and as said in 45A Am.Jur.2d § 65, pp. 91-92 the court have held in Title VII litigation that " An official must be high enough in the management hierarchy that the person's actions 'speak' for the employer and must be the decision maker or person principally responsible for the adverse action, " citing Hill v. Lockheed, 354 F.3d 277, 286-91 (CA4, 2004). See also Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 where concurring Justice O'Connor said " statements by non-decision makers or statements by decision makers unrelated to the decisional process itself (do not) suffice to satisfy the plaintiff's burden of proving discrimination, " id., page 277.
Thus even if Jason Ryder was an owner or represented himself as such that does not make him a decision maker as to a particular termination in and of itself. Thus discriminatory animus harbored by a co-owner who is not a decision maker in a particular adverse employment action and whose animus under the cat's paw theory did not influence to decision maker so as to make the latter a conduit of that animus in terminating someone in the protected class will not serve to establish a Title VII or CFEPA claim. Thus there is no justification for employing some variation of the apparent authority doctrine in a termination case.
This is not to say a co-owner or even a subordinate employee cannot have the power to terminate under the practices of a particular business entity. As said in Hill, page 291: " This encompasses individuals who may be deemed actual decision makers even though they are not formal decision makers such as in Reeves, 530 U.S. 133 (2000), where the husband of the formal decision maker wielded absolute power within the company and in Shager, 913 F.2d 398 (CA7, 1990), where the supervisor's reports and recommendations were merely rubber stamped by the formal decision making committee." Here for example the plaintiff as head bartender, soon after Ryder's on Main became operational, terminated two bartenders.
The record clearly establishes that Lynn Ryder was the owner of the defendant business. She alone negotiated and financed the purchase of the business from the previous owners, she is the only member of the company, and holds the liquor permit, taxes are made to her. The plaintiff testified that she learned after her termination that Lynn Ryder was the only owner of the business. But as discussed that would not bar a CFEPA claim here if Jason Ryder in fact, as in Reeves, exercised sufficient power in the establishment including the power to terminate. What are the general indicia on this question as presented at trial.
As the plaintiff indicated Lynn Ryder handled the day to day operations of the business. As Lynn Ryder herself testified in 2008 she worked 18 to 20 hours a day. At the outset Jason Ryder did the remodeling and renovation work since physically the bar was in poor condition. Jason Ryder had his own landscaping and plowing business and would often only appear at the bar before closing to help with that process and walk with the bartenders to their cars. During the summer months of 2008 after the bar became Ryder's on Main the plaintiff saw Jason Ryder " when the sun was still up" doing repair and maintenance work. But Jason Ryder testified regarding his own business hours that he would start at 7 a.m. and did not finish until it gets dark. In the summer months he would finish with his business at 8 or 9 p.m. The plaintiff said that although Lynn Ryder ran the day to day operations and did the scheduling initially at some point Jason Ryder started doing the scheduling--the court will discuss this claim later in the opinion.
April Barnes was the plaintiff's witness. She testified that in 2008 Lynn Ryder acted as management. Jason Ryder (apparently after the initial repair and renovation work) came in at closing to make sure things were getting done. April Barnes went on to say employee meetings were held with Lynn Ryder. If she had a problem she would go see Lynn or Jason Ryder but " most likely Lynn." To her knowledge Lynn Ryder runs Ryder's on Main.
Scott Berling was hired for security in February 2008 when the Ryders took over the bar. He worked in that capacity for about a year. When asked who was head of operations he answered " I dealt with Lynn Ryder." He said he would talk to Jason Ryder " about the operations but (he) never dealt with him in an individual capacity. Berling went on to say he would briefly discuss proposed changes in his operations with Jason Ryder but said " A. I didn't implement any plans with Jay. I would do it with Lynn."
Elizabeth Lees testified, she had been a bartender at Ryder's. Jason Ryder " was around" but Lynn Ryder hired her; she never met with Jason Ryder in the interview process. Employment decisions were made by Lynn or sometimes the plaintiff. She said Jason Ryder was always working was not at Ryder's very often. Lynn Ryder was there almost every day from " morning till night." She never met with Jason Ryder regarding " employment decisions or instructions."
Henry Parski worked as a disc jockey during the summer of 2008. In the beginning he dealt with the plaintiff and then more and more with Lynn Ryder. He described Jason Ryder as " a mascot who was in and out." Lynn Ryder and he made the business decision and policies as to the music that was going to be played. Jason Ryder would approach Parski at times to say that Lynn wants to know if you could do this or that. In the initial transition period after Ryder's on Main was started all he saw Jason Ryder do was renovation work.
Jason Ryder said he would give his opinion about the bar's operations to employees and customers. He denied being involved in the day to day operation of the bar but the record indicates that he was present on the night of the pig roast he questioned and the plaintiff says hovered over her concerning the appropriate amount of money in the tip jar as opposed to the till. He said he had noticed bartenders improperly diverting money to themselves and he and his wife spoke on occasion to the bartenders about this. He summed up by saying he would advise his wife about how the bar was operating and what was happening while he was there but said: " She wouldn't listen to me, she does it on her own two feet."
Lynn Ryder testified that her husband never hired or fired anyone. He had no involvement with the bar's personnel, only she and the plaintiff did. She said when she first took over operation of the bar she talked to the plaintiff about the organization of the bar. She said she was going to run the day to day operations of the bar; she testified " she needed to learn my own business." She told all the staff she wanted to change the dangerous reputation of the bar. She held a meeting with the entire staff in June 2008 explaining the steps she was going to take regarding discrepancies regarding money coming in as compared to the empties. Lynn Ryder said her husband would come home and told her what was going on at the bar from his observations--if he saw something she should be aware of he would tell her. She denied he would come home and talk about specific employees--the court frankly finds this hard to believe given the common observations about his temperament. But the weight Lynn Ryder attached to any such comments are summed up in her response as to whether he would talk about particular employees--" at times he would bark about all employees to me" (emphasis by court).
From all of this it can be surmised that Lynn Ryder would be expected to be the decision maker on any decision to terminate the plaintiff. But they were husband and wife and he had a degree of involvement in the business from its original renovation to his presence on apparently every night before closing. Do the facts warrant the conclusion that in effect he acted as an unpaid supervisor or agent of the defendant Ryder's on Main with the power to terminate an employee.
First the court will discuss the actual termination in this case and who made that decision. Even though Jason Ryder was not the owner and even though Lynn Ryder managed day to day operations and therefore would be expected to be the decision maker on termination, can the plaintiff's position be credited that both he and Lynn Ryder terminated her on September 25, 2008. This is a crucial issue in the case because of, as the court will discuss, the racially charged comments made by Jason Ryder throughout the plaintiff's period of employment at Ryder's on Main.
The court has already concluded that a termination occurred not an agreed upon, mutual parting of the ways. Did in fact Jason Ryder terminate the plaintiff as she claims and was his decision to terminate, in any event, a causative factor in Lynn Ryder's termination decision. In the court's opinion the just concluded discussion underlines the fact that Lynn Ryder made the decision to terminate the plaintiff. Ms. Ryder struck the court and several witnesses underlined the fact that she is a highly motivated and intelligent businesswoman. She started up her own business, gradually overtook day to day operations, worked an inordinate amount of hours and focused on all aspects of the business from adequate security, monitoring business operations including making sure employees did not misappropriate monies that should have gone to the business, and the type of music being played. Her husband was present only for limited amounts of time at the end of the business day and admitted to the forceful nature of her personality. There is no indication he ever hired or fired anyone, prior to the plaintiff's termination or had anything to do with the day to day operations of the business.
Why all of a sudden and given all of the above would Jason Ryder be elevated to a managerial position where he would assume the authority to terminate someone. The plaintiff said both Ryders terminated her but did not refer or quote the language used in that process. If Jason Ryder terminated the plaintiff why did both wait until Lynn Ryder arrived on the scene? Why did he leave, what could not have been a lengthy meeting, early? He testified it was an emotional meeting between the plaintiff and Ms. Ryder--exactly, because she made what was a difficult decision for her. Interestingly he said " they cried and hugged each other and they just went their separate ways basically, " (emphasis by court). It was the plaintiff who she first talked to about business operations when Ryder's on Main was started up. She let her at least keep the title of head bartender so there would not be a pay reduction even when Lynn Ryder took over the business.
In any event much was made about who contacted the plaintiff to come in early the night she was terminated. The court fails to see the significance of that. Lynn Ryder texted her also to come in early. They are husband and wife and Lynn Ryder's decision to terminate presumably was not made at the actual meeting with the plaintiff but predated it so it is not surprising Jason Ryder would have called the plaintiff to come in early.
It is true that the termination took place soon after the pig roast incident where Jason Ryder had concluded the plaintiff was responsible for the shortfall between the till and the tip jar. But Lynn Ryder did not need Jason Ryder's possibly racial animus reporting to be concerned about the plaintiff's possible complicity in the shortfalls. She observed them herself and took various steps prior to September 25, 2008 to stop them. She noted in testifying that the greatest discrepancies between tip jar and till were on the weekends when the plaintiff was bartending and her opinion was that she was responsible for these problems. The same is true about customer complaints. Lynn Ryder testified customers complained directly to her, bartender testimony confirmed this and it was revealed to Lynn Ryder. She herself noted what she described as the plaintiff's behavior in not giving her a drink she had ordered and " insubordination" on the plaintiff's part, in front of customers, when she asked the plaintiff to do something.
As far as the power to terminate was concerned April Barnes's testimony was instructive. She said Jason Ryder would terminate you every other day but until Lynn Ryder terminated you really were not fired. When she was terminated by Jason Ryder she would come back the next day she believed he had the authority to fire someone " if he wanted." But when he fired you it " kind of" meant you were fired " but I would go back the next day and make sure I was really fired or not fired--" Q And you would only know that by speaking with Lynn? A Lynn." On redirect she equivocally said: " Because I'm pretty sure if he really didn't want somebody working there, they probably wouldn't work there." (Emphasis by court)--this from the plaintiff's witness.
From the court's review of the transcript it appears in any event that the final end game which led to the termination was Lynn Ryder's perception of the plaintiff's behavior or claimed violation of an important business policy revolving around the previously discussed Thug Rider incident. As to this Jason Ryder was not an observer nor is there any evidence he had any input on what Lynn Ryder's reaction should be to it.
But the discussion cannot end at this point. Other factors must be considered. The court will first discuss certain comments by Jason Ryder which the plaintiff alleges showed racial animus and were of a type that were made throughout her employment period with the defendant. These comments must be viewed in the context they were made and in their relationship to each other.
The plaintiff testified that " Jay and I often had conversations that deal with color." At one point he said someone had told him that to get rid of the " trouble" they were having at night " you got to get rid of the black bartender." The statement was made " at the beginning" of her employment at Ryders. No one was present to hear the remark. At another point a customer complained about the music being played. During the discussion the plaintiff had with Jason Ryder about this request he " said he didn't want certain music being played inside . . . at . . . the bar. He didn't want to hear any, you know hip-hop, any rap, an(d) ghetto music was one of words . . . terms that he used." The comment was made around the middle of the plaintiff's employment with the defendant which would place it around May 2008. At a later point, the plaintiff said, Jason Ryder explained this comment. When the bar had the guest bartender night at which time local personalities were invited to bartend to attract business, he said " he wanted a certain type of crowd as far as the music goes. He wanted the people who frequented a bar down the street Maloney's." The plaintiff went there once or twice a week and the crowd was " predominantly white." On several occasions he told the plaintiff he wanted a white crowd at the bar throughout the week.
She was then asked what other conversations she had with Jason Ryder showing racial animus. The plaintiff testified that Jason Ryder was harassing her about money missing from the till. She asked him why was he doing this to her; she became fed up and she asked him " why are you doing this to me, is it because I'm black. He said . . . that's half the reason, the other is my wife doesn't like you." The plaintiff said the bartender April Barnes was present for this conversation. This comment was made the night of the pig roast all day charity event a few days prior to her termination.
The plaintiff also said at the time he told her someone said " to get rid of the trouble you should get rid of the black bartender, " Ryder also said . . . " there's a difference between be . . . African-Americans and n, and just as there is a difference between whites and white trash." (The word not spelled out by the court, n, ' is the classically racist term used for African Americans and at trial the plaintiff said the full word, the so-called " n" word). Jason Ryder denied making these statements. But April Barnes, a Caucasian, who worked at Ryder's and with the plaintiff said she heard Jason Ryder tell the plaintiff several times that he did not like her because she was black. She said Jason Ryder was a hot head and he screamed a lot. Lynn Ryder said in 2008 she spent 90% of the time working in the food preparation area. The only conversation she overheard was the one wherein her husband talked about differences between people in racial groups--whites and white trash, African-Americans and--oddly she said the plaintiff used the " n" word but in the context of the conversation which the plaintiff did not initiate why would she do that?
The plaintiff never brought Jason Ryder's racially offensive remarks to Lynn Ryder's attention; she said she did not recall whether she requested corrective action be taken. The following occurred during the cross of the plaintiff.
Q Okay. Now, I'm going to ask you a question, during the whole entire time that you were at Ryder's, did you ever, ever believe that Lynn Ryder did or said anything based upon race or discrimination?
A Lynn Ryder?
Q Yes.
A No.
Q Okay. Your position is the only person within Ryder's that in any way had made any racial remarks to you was only Jay Ryder?
A Yes.
She basically retook this position later in the cross examination. This repeated her testimony at a deposition of the plaintiff taken on October 7, 2013 almost a year and a half before trial. At that time she agreed up to the point of her termination that Lynn Ryder never said anything " that was racially motivated or discriminatory." And she answered " no" when asked " Q And had she ever said anything to you that was racially motivated or discriminatory."
The plaintiff's position is, of course, that she was terminated because of racial discrimination and at least from a testimonial point of view this was so because Lynn Ryder and Jason Ryder terminated her.
First the court should state the court finds that Jason Ryder did make the racial statements testified to by the plaintiff and repeated throughout her employment period. Her testimony was corroborated by that of April Barnes as just noted. The use of the " n" word in a direct conversation with someone of that race in the court's opinion reflects a racially biased attitude just as telling someone another individual suggested the problems you are having with customer behavior would disappear if you got rid of the black bartender--especially in conjunction with a derogatory remark about ghetto music being banned so a white crowd would appear at the bar. A person choosing to put these two just mentioned matters together would seem to be operating under racial animus and not on the basis of making merely business decisions that were racially neutral. These observations are underlined by the fact of Ryder's comment to the effect that he was pestering the plaintiff the night of the pig roast based on the fact that the plaintiff was black. The expressions and phraseology used as claimed by the plaintiff do not have the ring of some concoction or invention to establish racial animus.
The racial comments discussed above and especially this last comment and the fact that the plaintiff was terminated only a few days after it was made on the night of the pig roast could allow a conclusion that the plaintiff's termination was at least in part motivated by racial prejudice. This position could in part be supported by a claim that the attempt to make what was in fact a termination appear as an agreed upon parting of the ways provides in itself circumstantial evidence that a racially discriminatory action was sought to be thereby explained away.
But in light of the evidence the court cannot accept the plaintiff's position. It can only rest on one of two suppositions, that in fact Jason Ryder was a decision maker in the termination of the plaintiff so that his racially biased comments would establish an improper motive for termination under CFEPA or that even if he was not a decision maker his comments were not just stray comments going no further than his immediate conversations with the plaintiff, but somehow could be considered under the so-called cat's paw theory in evaluating and determining the true basis of Lynn Ryder's decision to terminate the plaintiff. In this case Lynn Ryder's concern about the Thug Riders incident and the plaintiff's problems with customers would provide a non-discriminatory grounds for termination.
But again the discussion cannot be ended because the test is whether racial discrimination in part motivated the decision to terminate. It would seem clear that a plaintiff claiming termination on the basis of race or color can rely on discriminatory practices prior to the termination to establish a pattern of behavior that show that the reason for the termination was based on racial animus. In this case the plaintiff claims that at Mauri's and when Ryder's when it first opened for business she had four shifts, Thursday, Friday, Saturday, and Sunday. Her claim is that Jason Ryder took shifts away from her. She worked at Ryder's from February 2008 to her termination on September 25, 2008. At her deposition the plaintiff testified in the summer Monday nights were taken from her and Thursday nights were taken from her shortly before then. As to Thursday night she was replaced by another bartender, Cee-Cee. On Thursdays Ryder's planned to have a guest bartender come in to serve drinks. It was to be a local personality, male dancer, politician, etc. The obvious reason for this plan was to increase business on Thursday nights. The plaintiff was replaced by a Caucasian bartender, generating a claim that the withdrawal of Thursday night shifts was prompted by racial discrimination.
The claim must be set in factual context, however. When she worked at Mauri's as head bartender she received a salary of between $4.50 and $5.50 per hour. She retained the title of head bartender when Ryder's opened and received a raise to $8.60 an hour. Incongruously enough, although the claim is that the shifts were taken based on racial discrimination (1) she was allowed to retain the title of head bartender despite the fact that Lynn Ryder took over many of the functions related to that position and (2) her salary of $8.60 per hour was not reduced from $8.60 an hour.
In any event defense Exhibit 5 shows the months from June through September 2008 taken from the log used to register employee attendance. It indicates the plaintiff worked every Monday in June 2008, three of the four Mondays in July 2008, four of the five Mondays in August 2008, and three of the four Mondays in September 2008. Monday, September 22, 2008 she did not work but she did not come to work that week, Lynn Ryder said she had tried to text her. Later on in her testimony the plaintiff seemed to modify her testimony by saying Jason Ryder said, in futuro, she would no longer be working Mondays.
She also worked three of the four Thursdays in June, two of the five Thursdays in July 2008, one of the five Thursdays in August 2008, and no Thursdays in September 2008.
When Ryder's started up there were four bartenders and four more were hired for a total of eight. The court at one point asked . . . " if you had four people working as bartenders, and then you had eight, okay, wouldn't that be a reason to cut the shifts back?" Defense counsel answered " Maybe it would" but then pointed out the plaintiff's shifts were taken and given to a Caucasian employee. But due to the increase in the number of bartenders shifts might have to be cut back and reallocated. The plaintiff said she was not aware of any other people losing shifts--the other bartenders were all Caucasian. This line of inquiry was not explored by either side.
Perhaps more to the point the person who the plaintiff said took away her shifts was Jason Ryder. But this would be the same Jason Ryder that was said to terminate people on a regular basis but was not taken seriously. Lynn Ryder testified she was the one who took over scheduling from the plaintiff, she wanted her input but Ryder saw " no reason to change scheduling" and denied that she took any shifts from the plaintiff.
As discussed previously Elizabeth Lees testified. She worked as a bartender with the plaintiff in the summer of 2008. She first said Jason Ryder " wasn't there very often." She then testified Lynn Ryder made the schedule. Interestingly she also testified that as time went on the plaintiff became more aggravated because she wanted more shifts, she wanted her own hip hop nights--her aggravation was not based on the fact that she lost shifts.
Given the fact that it appears incontrovertible that Lynn Ryder ran this establishment and Jason Ryder was not there very often or at least until the end of the night shifts, why on earth would he or even could he do the scheduling.
Finally it should be noted that this very thorough lawyer for the plaintiff in her post-trial brief calculated the damages her client was entitled to post-termination, there was no attempt at trial to have the plaintiff try to calculate the monetary loss from at least the Thursday shifts she was allegedly deprived of by Jason Ryder.
The plaintiff's testimony about lost shifts as to Monday nights is controverted by the facts. As to Thursday shifts her statement that she lost these shifts to a Caucasian in their entirety is again controverted by the facts--in June through August she did work some Thursdays. If she was indeed replaced for discriminatory reasons why would or did she show up for work on several Thursday shifts.
There could be many reasons why an employee would not show up for assigned shift. The problem with this case is that it was tried seven years after the events in question. Lynn Ryder, for example, testified she lost a bartender employee who had worked Monday during the day. The plaintiff called this person up and said you are going to have to work a double shift because I am not coming in to work. His employee chose to walk off the job.
The court will now discuss steps Ryder's is alleged to have taken to attract more whites to the bar especially on weekends and thus reduce the number of African Americans. If this were the intended purpose of measures taken by Ryder's it could support a claim of racial animus consistent with the termination of the plaintiff because of her race and color. Even more specifically it could be argued that it is consistent with Jason Ryder's alleged remark to the plaintiff that a customer told him that if you got rid of the black bartender you would get rid of the " trouble." Furthermore, if this was the intended purpose--attract more Caucasians and " get rid" of the African Americans, Lynn Ryder could not insulate herself from discriminatory animus. She ran the day to day operations of the bar and exclusively dealt with, for example, the disc jockey who played music for the customers. She has to be regarded as the decision maker on how the bar operated and more specifically how it chose to attract customers and by what methods--were they explicitly aimed at driving down the number of African-American customers? Throwing the cloak of " this was just a business decision" will not suffice to address this issue since it is conclusory and after the fact.
It is interesting to note that after the plaintiff was terminated until the time she filed her CHRO complaint she continued to come to Ryder's during the week to participate in pool league competition. The pool leagues were mixed--whites, Hispanics and African Americans. No action was taken to discourage these pool leagues and change their racial makeup according to any of the evidence. So it would appear the steps taken on the weekends regarding music played, for example, was directed at the unruly nature of the crowds on weekends not having anything to do with their racial makeup.
First it should be noted Jason Ryder told the plaintiff that there was to be a change in the music played to attract a white crowd from another nearby bar and he did not want a certain type of music played--hip hop, rap and ghetto music. These racially offensive remarks could support a claim of racial animus standing alone but various factors must be noted. There is no evidence that Lynn Ryder made any such remarks. As previously noted the plaintiff testified she never heard Ms. Ryder make racially offensive remarks.
There was uncontroverted testimony that violent or dangerous incidents or situations had occurred at or near the bar. Lynn Ryder expressed concern over this and was also apprehensive because she lived 2, 000 feet from Ryder's with her children. Various steps were taken, as has been discussed before in light of these apprehensions. Walls were knocked down in the bar so what was happening in all parts of the establishment could be observed. A policy was instituted about motorcycle gangs--no matter their racial makeup--to the effect that they were not allowed to wear their " colors" inside the bar. Security was hired to pat down prospective customers for weapons such as guns and knives, and drugs. Mr. Berling the security person recommended to Lynn Ryder that a black female be hired to pat down women to avoid situations where weapons and drugs could be passed by males to female companions leaving Berling, as a man, unable to do a pat down search. Cameras were installed and certain clothing items were barred such as hoodies and headbands. None of these measures--some of which must have involved expense, were aimed at or specially designed for a particular racial group.
Henry Parski testified to the fact that he was a disc jockey at Ryders in 2008 and continues that function to the present. At Mauri's starting in 2007 no one told him what to play. He played with the crowd that was at the bar. Fridays and Saturdays had minority crowds he played hip hop and R& B dance music to a wall to wall crowd. The crowd got more rowdy around 12 o'clock at night. When security was installed by Ryder's certain people could not enter the bar. Lynn Ryder said that one night she asked her husband to tell the disc jockey " to please mix up the music, not to play a certain type to mix it up." Parski said Jason Ryder communicated Lynn Ryder's wishes to him. Parski said he started playing the top forties which still had some rap music. The music he played did not change; he basically edited it by taking out swear words, negative words, the inclusion of the " n" word. He said he had no intention to discriminate against any group or to attract or get rid of a certain crowd. He was never instructed to stop playing a particular genre of music. He plays the same songs he had always played just different versions.
The plaintiff testified that after the music changed the percentage of African Americans dropped--the crowd " started to change to a mixed crowd." Berling, the security person, said after the music changed more white people came to the bar--less hip hop music was played. But Lynn Ryder says the crowd attending the bar is still a mixed crowd " Caucasian, Philippino, Spanish, African-American." With the changes she made business did slow down for a while but the dangerous element has been removed and her business is more profitable. April Barnes testified that she worked at Mauri's and Ryder's. When it was Mauri's the police were there a couple of times a month but at the end of her employment at Ryder's they were there " not really so often."
It is hard from all this to concoct a theory that the change in music being played coupled with security measures that were taken had anything to do or was somehow directly connected to the plaintiff's termination. Terminating an African American bartender would not seem to have any rational relation to any alleged discriminatory animus that wanted to exclude or drastically reduce the number of African American customers. In this context why would Ryder's, specifically Lynn Ryder, go along with the hiring of an African American female security person who would be one of the first person seen as customers entered the establishment. It was the dangerous late night crowd that presented the security problem. A mixed crowd still attended the bar after the music change and other security members. This mixed crowd included African Americans who would be beneficiaries of the security measures and editing of the music being played just as their white and Spanish fellow customers and would have the right to expect these measures would be taken no matter what the racial composition of the crowd before and after the measures taken were instituted.
For all the foregoing reasons the court concludes that the plaintiff has not established her claim under § 46a-60(a) and (b).
The statute of limitations defenses are affirmative defenses and thus will not be addressed by the court in light of its ruling.