Opinion
CV166028497
11-16-2018
Patricia WAGNER v. OSTERMAN PROPANE, LLC
UNPUBLISHED OPINION
OPINION
Swienton, J.
The issue before the court is whether the defendant, Osterman Propane, LLC, is entitled to summary judgment on both counts of the plaintiff’s complaint alleging age discrimination and retaliation in violation of General Statutes § 46a-60(a)(1) and (4) because the plaintiff cannot (1) establish a prima facie case of age discrimination and retaliation, (2) the defendant had a legitimate, nondiscriminatory reason for the plaintiff’s termination, and (3) the plaintiff lacks any evidence demonstrating that the defendant’s reason for termination was a pretext or that the plaintiff’s termination was motivated by or because of the plaintiff’s age.
I
FACTS
This action arises from a dispute between the plaintiff, Patricia Wagner, and the defendant, Osterman Propane, LLC, regarding alleged discriminatory employment practices. The plaintiff alleges that she was subject to discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. On November 22, 2016, the plaintiff filed a complaint against the defendant. The complaint contains two counts. Count one alleges age discrimination in violation of § 46a-60(a)(1), while count two alleges retaliation in violation of § 46a-60(a)(4).
In the complaint, the plaintiff alleges the following facts. At the time of the filing of the complaint, the plaintiff was a sixty-year-old woman. On or about April 17, 2013, the plaintiff was hired by the defendant as a customer service representative at its Oakdale, Connecticut business location. The plaintiff’s direct supervisor was Dawn Guerra, who held the title of office supervisor.
In November of 2015, Dan Ochs became the plaintiff’s manager. Beginning in April of 2016 and on multiple occasions thereafter, the plaintiff witnessed Guerra openly kissing another employee in a sexual manner that made the plaintiff uncomfortable. Guerra engaged in this conduct in the women’s restroom, which was directly behind the plaintiff’s desk. Guerra also engaged in this conduct in the file room, which was to the left of the plaintiff’s desk.
Due to Guerra’s conduct, the plaintiff lodged a sexual harassment and hostile work environment complaint with the defendant’s human resources representative, Peter Iacobucci, that contained a complaint, amongst other complaints, about the use of foul language by fellow coworkers in the workplace. Upon receipt of the plaintiff’s complaint, the defendant did not appear to take any action because the conduct at issue continued unabated.
The plaintiff also alleges she was the oldest employee working for the defendant at its Oakdale business location throughout the tenure of her employment and was subjected to differential treatment because of her age. Ochs subjected the plaintiff to differential treatment as he generally ignored and disregarded the plaintiff in contrast to his frequent communication with the plaintiff’s younger coworkers.
The plaintiff was only issued two warnings, one verbal and one written, during her entire tenure with the defendant. Both warnings came on the same day in April of 2016 and were both issued by Ochs. One of the warnings was for failing to lock the safe in the manager’s office. The other employee responsible for the safe, who was approximately thirty years old at the time of the incident, was not disciplined for the same matter.
On August 15, 2016, the defendant terminated the plaintiff for poor work performance. The plaintiff alleges that the stated reason for her termination was a pretext for age discrimination and/or retaliation based on the plaintiff’s prior complaint of sexual harassment and hostile work environment. As a result of the defendant’s conduct, the plaintiff has suffered, inter alia, lost wages.
On approximately August 24, 2016, the plaintiff filed an administrative complaint with the Commission on Human Rights and Opportunities. Subsequently, the plaintiff received a release of jurisdiction letter from the commission dated October 21, 2016. In her prayer for relief, the plaintiff seeks, inter alia, money damages and reinstatement or front pay.
On February 21, 2017, the defendant filed an answer and special defenses to the complaint. In its answer, the defendant admits several of the allegations in the amended complaint, claims insufficient knowledge to admit or deny others, and denies, inter alia, the allegation that its reason for terminating the plaintiff’s employment was a pretext for age discrimination and/or retaliation based upon the plaintiff’s prior complaint of sexual harassment and hostile work environment. On April 7, 2017, the plaintiff filed a reply denying the defendant’s special defenses.
On May 25, 2018, the defendant filed a motion for summary judgment with an accompanying memorandum of law on both counts of the complaint. In support of its summary judgment motion, the defendant submits, inter alia, the following documents: (1) the signed and sworn affidavit of human resources/risk manager Richard Donnell, (2) excerpts from the certified transcript of the plaintiff’s deposition, (3) the signed and sworn affidavit of Guerra, (4) the signed and sworn affidavit of Ochs, (5) documentation of the plaintiff’s performance issues, (6) the plaintiff’s warning report, (7) the signed and sworn affidavit of Iacobucci, (8) the plaintiff’s e-mail complaint dated May 23, 2016, (9) Donnell’s e-mail to the plaintiff dated May 31, 2016, and the plaintiff’s response, (10) the signed and sworn affidavit of coworker Jessica Cloutier, (11) the signed and sworn affidavit of coworker Jacqueline Jackson, (11) additional posting error documents, (12) the defendant’s employee handbook, (13) an e-mail from Donnell to the plaintiff dated August 16, 2016, and the letter of termination, and (14) excerpts from the certified transcript of Och’s deposition.
On July 27, 2018, the plaintiff filed an objection to the defendant’s motion for summary judgment with an accompanying memorandum of law. In support of her objection, the plaintiff submits, inter alia, the following documents: (1) excerpts from the certified transcript of the plaintiff’s deposition, (2) excerpts from the certified transcript of Ochs, (3) the plaintiff’s 2014 performance review, (4) the plaintiff’s 2015 performance review, (5) the certified transcript of Iacobucci’s deposition, (6) the plaintiff’s e-mail to Iacobucci and Donnell dated May 23, 2016, and (7) the certified transcript of Guerra’s deposition. On August 16, 2018, the defendant filed a reply memorandum to the plaintiff’s objection. The defendant attached several items of documentary evidence to its reply memorandum. On September 17, 2018, oral argument regarding the motion for summary judgment was heard at short calendar.
II
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." Feliciano v. Autozone, Inc., 316 Conn. 65, 72-73, 111 A.3d 453 (2015).
A.
AGE DISCRIMINATION
The defendant argues that it is entitled to summary judgment on count one of the complaint alleging age discrimination in violation of § 46a-60(a)(1) because the plaintiff cannot establish a prima facie case of discrimination. In order to establish a prima facie case of discrimination, the plaintiff must show that: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position, (3) the plaintiff suffered an adverse employment action, and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. Feliciano v. Autozone, Inc., supra, 316 Conn. 73. "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." Amato v. Hearst Corp., 149 Conn.App. 774, 780, 89 A.3d 977 (2014).
In order to establish an inference of discrimination, the plaintiff "may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was. To be probative, this evidence must establish that the plaintiff and the individuals to whom she seeks to compare herself were similarly situated in all material respects ... [A]n employee offered for comparison will be deemed to be similarly situated in all material respects if (1) ... the plaintiff and those he maintains were similarly situated were subject to the same workplace standards, and (2) ... the conduct for which the employer imposed discipline was of comparable seriousness." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012).
The defendant contends that there is no evidence demonstrating that the plaintiff’s termination occurred under circumstances giving rise to an inference of discrimination because (1) the plaintiff’s verbal warning was primarily a result of numerous performance-related issues attributed to numerous posting errors, improper weekly balancing of accounts, failing to bill customer meters and to collect compliance fees, and failing to close the office properly, (2) the plaintiff’s coworker did not receive a similar written warning for not closing the office properly because she had not committed any of the plaintiff’s other performance issues, and (3) the plaintiff’s subjective claim that she was generally ignored and disregarded, while the plaintiff’s supervisor spoke frequently with the plaintiff’s coworkers also fails to support any inference of discrimination. In support of its contentions, the defendant has submitted evidence of the plaintiff’s performance-related issues and an excerpt of Ochs’ deposition transcript referencing the defendant’s contention that the plaintiff was going to receive a warning even without the office closing issue. The plaintiff, on the other hand, contends that she has established an inference of discrimination by her showing that her similarly situated coworker was treated more favorably than the plaintiff was for the same conduct.
The court agrees with the plaintiff that she has established an inference of discrimination at the prima facie stage by her showing that her younger similarly situated coworker was treated more favorably than the plaintiff for the same incident. The supervisors’ sworn affidavits corroborate the plaintiff’s contention that the younger coworker and the plaintiff were jointly responsible for the office closing incident, yet, the plaintiff received harsher discipline than her coworker. The plaintiff is not required to provide any additional evidence to meet the minimal level of proof required to establish a prima facie case. See Amato v. Hearst Corp., supra, 149 Conn.App. 780.
The defendant’s next contention is that, even if the plaintiff has met the minimal level of proof required to establish a prima facie case for age discrimination, the defendant is still entitled to summary judgment because there was a legitimate, nondiscriminatory reason for terminating the plaintiff’s employment. "The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The burden is one of production, not persuasion; it can involve no credibility assessment ... The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Citations omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn. 74.
The defendant argues that the plaintiff was terminated because of her continued and repeated performance issues. The defendant has submitted evidence demonstrating the plaintiff’s performance issues that included (1) numerous posting errors, (2) the failure to confirm the gallons and dollar amounts, and (3) the failure to bill meters on a monthly basis.
The defendant, in addition, presented the plaintiff’s deposition testimony in which she admitted to failing to follow the defendant’s safety protocol in regards to a failed leak test involving a younger driver and the plaintiff. In her deposition testimony, the plaintiff stated that she failed to follow the defendant’s safety protocol prior to notifying a customer that he could turn on his propane system after a failed leak test.
The defendant’s evidence sufficiently establishes a legitimate, nondiscriminatory reason for the plaintiff’s termination as the evidence demonstrates numerous performance-related issues and safety violations that the plaintiff committed during her tenure with the defendant. See id.
Upon the defendant’s production of a legitimate, nondiscriminatory reason for the plaintiff’s termination, the burden shifts to the plaintiff to demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. Id. "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law." (Citations omitted.) Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "[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." Id.
The defendant argues that summary judgment is proper because there is no evidence that exists to show that its legitimate, nondiscriminatory reason is false. The plaintiff, in response, argues that the defendant’s reason was pretextual because of (1) the disparity in the issuance of discipline among the plaintiff and her younger coworkers for committing the same or similar workplace violations, (2) Ochs disliked the plaintiff and treated her less favorably than her younger coworkers, and (3) the plaintiff had a multiyear history of positive performance reviews prior to Ochs taking over as the plaintiff’s new supervisor.
The plaintiff contends that the disparity in the issuance of discipline among the plaintiff and her younger coworkers for committing the same or similar workplace violations is evidence that the defendant’s reason for termination was pretextual. Specifically, the plaintiff argues that the disparity in the issuance of discipline between (1) her younger coworker and herself for the failure to properly close the office, and (2) a younger driver and herself for the leak test incident demonstrated that age was a motivating factor for the employer’s adverse action.
As it pertains to the incident between the plaintiff and her younger coworker for the failure to close the office properly, the plaintiff has not provided any additional evidence beyond the minimal level of proof required for the prima facie case to demonstrate that the disparity in the issuance of discipline between the plaintiff and her younger coworker was due to the defendant discriminating against the plaintiff because of her age.
In regards to the leak test incident involving the plaintiff and the younger driver, the plaintiff has not provided sufficient evidence to demonstrate that the plaintiff and the younger driver were similarly situated. The defendant’s job descriptions of its employment positions show that the plaintiff and the driver had materially different job duties and responsibilities and, thus, were not similarly situated. Roa v. Mineta, 51 Fed.Appx. 896, 899 (2d Cir. 2002) (concluding that plaintiff and her coworker were not similarly situated because their duties and responsibilities were materially different).
Thus, the plaintiff has not provided sufficient evidence that the disparity of discipline was intended to mask age discrimination. See Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) ("beyond the minimal proof required to state a prima facie case, Schnabel [the plaintiff] has offered no evidence that he was discriminated against because of his age" [emphasis in original; footnote omitted]).
The plaintiff’s second contention is that Ochs disliked and treated her less favorably than her younger coworkers because she noticed that he would interact socially with her coworkers, but would not talk to the plaintiff. In her deposition testimony, the plaintiff stated that she thought Ochs discriminated against her because of her age due to his social interactions with her younger coworkers. The plaintiff continued on to state that her belief about a discriminatory motivation was simply her opinion. Upon inquiry regarding her work-related interactions with Ochs, the plaintiff stated in her deposition that Ochs was not required to socialize with people in the office and always treated the plaintiff with respect. The plaintiff, moreover, stated that Ochs did speak to her during required work-related interactions. Upon review, the plaintiff’s evidence does not demonstrate that Ochs engaged in a discriminatory manner towards the plaintiff. See McGuire-Welch v. House of the Good Shepard, 720 Fed.Appx. 58, 62 (2d Cir. 2018) (concluding that an employee’s general complaints that her supervisor was antagonistic towards her were insufficient in satisfying the employee’s burden to show unlawful age discrimination); Fetcho v. Hearst Connecticut Post, LLC, 103 F.Supp.3d 207, 219 (2d Cir. 2015) ("suspicion alone is insufficient evidence to meet the Jacobs requirement of false pretext plus some evidence that age played a role in the termination decision").
The plaintiff’s third contention is that the plaintiff had a multi-year history of positive performance reviews prior to Ochs taking over as her new supervisor. In support of her contention, the plaintiff presented evidence of several positive performance reviews that were completed prior to the hiring of Ochs as her new supervisor. The plaintiff’s prior history of positive performance reviews, standing alone, are an insufficient showing that any later negative reviews were pretextual. See Jarnutowski v. Pratt & Whitney, 103 F.Supp.3d 225, 238 (D.Conn. 2015) ("[c]ourts have recognized that prior positive performance evaluations cannot, without more, demonstrate that later negative evaluations are pretextual").
Upon review of the evidence presented to the court, the plaintiff has not demonstrated a genuine issue of material fact that the defendant’s reasons for termination were pretextual. The plaintiff’s contentions that she was discriminated against on the basis of her age are based on her subjective opinion; she has failed to produce any evidence supporting her contention. Since the plaintiff did not produce any evidence that the defendant’s reasons for termination served as pretext for age discrimination upon the defendant’s production of a legitimate, nondiscriminatory reason for her termination, summary judgment must be granted on count one of the complaint. See Norville v. Staten Island University Hospital, 196 F.3d 89, 98 (2d Cir. 1999) (concluding that the district court did not err in granting judgment as a matter of law on the plaintiff’s age discrimination claim because the plaintiff did not produce any evidence that the defendant’s reasons served as pretext for age discrimination).
B.
RETALIATION
"To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that [s]he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against [her]; and (4) a causal connection between the protected activity and the adverse employment action." Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 94-95, 153 A.3d 687 (2017). "Relying on Second Circuit case law, Connecticut courts have found that [a] protected activity is an action taken to protect or oppose statutorily prohibited discrimination. These actions can include the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management ... protecting against discrimination by industry and expressing support of co-workers who have filed formal charges." Samakaab v. Dept. of Social Services, 178 Conn.App. 52, 62-63, 173 A.3d 1004 (2017).
"In interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance. In drafting and modifying the Connecticut Fair Employment Practices Act ... our legislature modeled that act on its federal counterpart, Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.] ... and it has sought to keep our state law consistent with federal law in this area." (Internal quotation marks omitted.) Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 579, 42 A.3d 478 (2012).
In the present case, the plaintiff has presented sufficient evidence to establish a prima facie case. The plaintiff presented evidence that she wrote an e-mail to management complaining about unwelcome sexual behavior and improper use of foul language in the workplace after allegedly observing her coworkers using improper language and engaging in sexual behavior in the workplace. See Agosto v. Premier Maintenance, Inc., 185 Conn.App. 559, 587 (2018) ("[a]n employee’s complaint may qualify as protected activity ... so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law"). Less than three months after the plaintiff e-mailed her complaint, the plaintiff was terminated. See Li Li v. Canberra Industries, 134 Conn.App. 448, 457, 39 A.3d 789 (2012) ("[t]ermination within several months of the time the allegedly protected activity occurred may be sufficient to create an inference of causation").
"Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action." Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001). As described in the preceding section, the defendant has produced a legitimate, nondiscriminatory reason for the plaintiff’s termination. "The burden shifts, therefore, back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer’s action was, in fact motivated by discriminatory retaliation." Id.
The plaintiff provides conclusory arguments that the defendant’s reason was pretextual because of (1) the timing of her termination following the complaint, (2) her supervisors’ immediate criticism of her following her complaint, and (3) the defendant’s response to her complaint. "Inferences and opinions must be grounded on more than flights of fancy, speculations, hunches, intuitions, or rumors, and discrimination law would be unmanageable if disgruntled employees ... could defeat summary judgment by affidavits speculating about the defendant’s motives." (Citations omitted.) Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir. 1991).
The plaintiff has not presented sufficient evidence demonstrating that the defendant’s termination was pretextual or retaliatory. Zboray v. Wal-Mart Stores East, L.P., 650 F.Supp.2d 174, 184-85 (D.Conn. 2009) (granting summary judgment because the plaintiff failed to demonstrate that the defendant’s proffered reasons for disciplining and terminating the plaintiff were pretextual). The record refutes any suggestion that the defendant had a discriminatory motive or intent when it terminated the plaintiff’s employment. Therefore, the court finds that no issue of material fact exists as to the plaintiff’s claim that her termination was in retaliation for her e-mail complaint. The defendant is entitled to summary judgment as to count two of the plaintiff’s complaint.
The plaintiff raises in her objection-for the first time-the claim that the defendant retaliated against her for her informal complaints that she made because Ochs wanted to get rid of her "because [she] is the old lady in the office." (Plaintiff’s Obj., p. 16-17.) This theory has not been plead in her complaint. The only allegation made in the complaint as to a protected activity is her prior complaint of sexual harassment/hostile work environment. The court shall not consider this new theory of liability.
III
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted on both counts of the plaintiff’s complaint. The defendant has established the absence of a genuine issue of material fact.