Opinion
HHDCV156063782S
10-02-2017
Mouy Taing v. Camrac, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Cesar A. Noble, J.
The present case arises out of alleged employment discrimination by the defendant, CAMRAC, LLC (Camrac), against the plaintiff, Mouy Taing (Taing). Camrac moves for summary judgment on the ground that there is no genuine issue of material fact that Taing, who was pregnant at the time of her firing, was terminated for a legitimate nondiscriminatory reason, to wit, habitual tardiness. In contrast, Taing maintains that summary judgment is not appropriate because there are issues of fact under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court agrees with Camrac and grants summary judgment.
I
FACTS AND PROCEDURAL HISTORY
The revised complaint, dated January 26, 2016, alleges that Taing was employed by Camrac between April of 2013 and December of 2014. In mid-December 2014, Taing notified Camrac that she was pregnant and discussed taking maternity leave. On December 24, 2014, the day of Camrac's holiday party, Taing arrived, late to work and was sent home. On December 29, 2014, the day of Taing's first prenatal appointment, about which she had previously notified Camrac, she was terminated for tardiness. Taing asserts a claim for employment discrimination under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq., based on her status as a pregnant employee. CFEPA provides, in relevant part, that " [i]t shall be a discriminatory practice in violation of this section . . . [f]or an employer . . . [t]o terminate a woman's employment because of her pregnancy." General Statutes § 46a-60(a)(7)(A). Taing asserts disparate discriminatory treatment based on the allegation that other similarly situated employees were tardy to work but not terminated from their employment.
Taing's revised complaint is in three counts. The second and third counts allege violations of Connecticut wage and hour law, General Statutes § § 31-67 and 31-72. Camrac moves for judgment as to all three counts of Taing's complaint. At oral argument, Taing conceded that her employment in car sales exempted her from the ambit of General Statutes § § 31-67 and 31-72, and, accordingly, she did not oppose summary judgment in favor of Camrac on counts two and three of her revised complaint.
Camrac argues that there is no genuine issue of material fact that Taing was terminated for a legitimate, nondiscriminatory reason, i.e., habitual tardiness, not pregnancy, and there is no evidence that Taing was treated differently than similarly situated employees. Taing objects, arguing that discrimination can be inferred based on the fact that her replacement was a male, not susceptible to pregnancy, and her disparate treatment is evident because other non-pregnant employees were not terminated despite also being tardy on December 24 and other occasions. Taing also argued that summary judgment was premature because she had not received discovery responses or had the opportunity to depose her former supervisor, Matthew Fisher. As Fisher was deposed on July 7, 2017, the court provided Taing with the opportunity to file a brief with further evidentiary proffers on or before September 13, 2017, and afforded Camrac the opportunity to reply on or before September 26, 2017. Both parties filed briefs which the court has reviewed.
Taing also argued that summary judgment was premature because she had not received discovery responses or had the opportunity to depose her former supervisor, Matthew Fisher. As Fisher was deposed on July 7, 2017, the court provided Taing with the opportunity to file a brief with further evidentiary proffers on or before September 13, 2017, and afforded Camrac the opportunity to reply on or before September 26, 2017.
The following facts are not in dispute. Taing was hired by Camrac in April of 2013, and throughout her employment experienced problems with tardiness. Nonetheless, Taing was promoted in January 2014, despite an October 2013 review of her work performance noting concerns about her repeated tardiness. An April 27, 2014 review again referenced Taing's issues with tardiness and counseled that she needed to improve her punctuality. On July 18, 2014, Taing received a notice of violation of the attendance and punctuality policy based on tardy arrivals nine times in the previous six weeks. She was informed that, if minimum expectations were not met, she would be subject to further disciplinary action, up to and including termination of employment. On December 19, 2014, Taing received a final written warning for tardiness. The warning noted that Taing had been late to work fifteen times in the last eleven weeks on the following dates: October 1, 13, 24, 27, 30, November 14, 17, 21, 24, December 6, 11, 12, 13, 18 and 19. The warning provided that one more violation would constitute cause for her termination. Taing disputed that she was tardy on four of those occasions, but not the other eleven. Meanwhile, on December 16, 2014, Taing informed Camrac's human resources manager that she was pregnant and she inquired about maternity leave. According to Taing, she also informed her supervisor, Matthew Fisher, and a co-worker, Kevin Hill, of her pregnancy sometime during the first or second week of December.
There is no dispute that Taing was late for work on December 24, 2014, albeit by a matter of minutes, or that she was sent home early and subsequently terminated on December 29, 2014, her next scheduled day of work. Taing had scheduled her first prenatal appointment for December 29, 2014, and claims she told Camrac about the appointment. She also asserts that other employees arrived late for work on December 24, 2014, and on previous occasions, but were not terminated. Specifically, Taing identifies Brianne Donlon and Anastasia Nisyrios as employees who arrived late to work on December 24 but who were not disciplined. Camrac does not dispute that Taing was replaced by a male. Additional facts will be set forth as necessary.
Taing admitted at deposition that it was also a possibility that she was late on December 22, 2014.
II
SUMMARY JUDGMENT STANDARD
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012); see Practice Book § 17-49. " In seeking summary judgment, it is the movant that has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016). Moreover, the facts in dispute must be material. " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
III
ANALYSIS
Taing pursues liability against Camrac under CFEPA, which provides, in relevant part, that " [i]t shall be a discriminatory practice in violation of this section . . . [f]or an employer . . . [t]o terminate a woman's employment because of her pregnancy." General Statutes § 46a-60(a)(7)(A). Connecticut courts look to " federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both." Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). The essential element of a discrimination claim is an adverse employment action motivated by a prohibited factor. Jacobs v. General Electric Co., 275 Conn. 395, 401, 880 A.2d 151 (2005). As direct evidence of discriminatory intent is typically unavailable, " plaintiffs and courts ordinarily proceed by way of the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, [ supra, 411 U.S. 792]." Holtz v. Rockefeller & Co., 258 F.3d 62, 76 (2d Cir. 2001); see Craine v. Trinity College, 259 Conn. 625, 636-37, 791 A.2d 518 (2002).
While the allegations of liability in Taing's complaint identify other violations of General Statutes § 46a-60(a)(7), such as refusing to reinstate her to an equivalent position upon her signifying her intent to return to work following her maternity leave, the arguments and evidence marshalled in opposition to summary judgment, and more importantly, the factual allegations of her complaint, support only a claim of termination because of her pregnancy.
First, an employee must " make a prima facie case of discrimination" by showing 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." (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn. 73-74. The second step shifts the burden to the employer to " rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question . . . This burden is one of production, not persuasion; it can involve no credibility assessment." (Citation omitted; internal quotation marks omitted.) Id., 74. Once the employer proffers a legitimate, nondiscriminatory reason, the burden shifts back to the employee to " demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." (Internal quotation marks omitted.) Id.
In the present case, Camrac does not contest, for purposes of summary judgment, that Taing was a member of a protected class, was qualified for the position and suffered an adverse employment action. Camrac asserts, however, that Taing cannot establish a prima facie case of discrimination because there is no direct evidence of discriminatory intent, and the circumstances of Taing's termination do not permit an inference of discriminatory intent. The court is not persuaded. " [T]he showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimis . . ." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995). The burden at this stage is minimal and not " onerous." (Internal quotation marks omitted.) Bird v. West Valley City, 832 F.3d 1188, 1200-01 (10th Cir. 2016); see Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). Taing has satisfied this minimal burden by producing evidence that she was replaced by a male who cannot possibly come within the ambit of the protected classification at issue. See Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (" the mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage . . ." (citations omitted; emphasis omitted)). Accordingly, the court holds that, under the facts presented, Taing has established all elements of a prima facie case of discrimination, thereby creating " a rebuttable presumption of discriminatory intent." Craine v. Trinity College, supra, 259 Conn. 638.
Nonetheless, Camrac has met its burden of rebutting that presumption by submitting sufficient evidence that Taing's habitual tardiness was the basis for her termination. As such, the burden now shifts back to Taing to " demonstrate that the proffered reason was not the true reason for the employment decision." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see Edwards v. Hiland Roberts Dairy, Co., 860 F.3d 1121, 1125 (8th Cir. 2017) (once evidence of a legitimate, nondiscriminatory reason for an employee's termination has been submitted " the presumption disappears and the plaintiff must provide evidence demonstrating the employer's proffered nondiscriminatory reason is mere pretext for intentional discrimination"). Taing may succeed in this either by direct evidence that her pregnancy, a discriminatory reason, motivated Camrac to terminate her employment, or indirectly by showing that Camrac's proffered explanation, i.e., habitual tardiness, " is unworthy of credence." Texas Dept. of Community Affairs v. Burdine, supra; see Jacobs v. General Electric Co., supra, 275 Conn. 403 (" there are two discrete methods for proving intentional discrimination: the first by direct proof of a discriminatory motive and the second, indirect method by proving that the reasons given by the employer for the employment decision were pretextual"). In the present case, Taing has suggested no direct evidence of a discriminatory intent. Rather, she claims that there is sufficient indirect evidence of pretext based on (1) the disparate treatment between herself and other employees, and (2) her replacement by an individual from a non-protected category. The court disagrees.
" [D]isparate treatment occurs when an employer simply treats some people less favorably than others because of a certain characteristic . . ." (Internal quotation marks omitted.) Jensen v. Solvay Chemicals, Inc., 625 F.3d 641, 660 (10th Cir. 2010); see Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (proof of discriminatory motive " can in some situations be inferred from the mere fact of differences in treatment"). Evidence of disparate treatment must, however, be based on the treatment of " similarly situated" employees. Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 516, 43 A.3d 69 (2012). " [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." (Internal quotation marks omitted.) Id., 514. While the determination of whether comparators are similarly situated to a plaintiff is ordinarily one of fact for the jury, summary judgment is appropriate " where it is clear that no reasonable jury could find the similarly situated prong met." Harlen Associates v. Village of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001).
Taing asserts that other non-pregnant employees, both male and female, were either also late on December 24th or had histories of tardiness to work. The plaintiff directs the court's attention to Camrac's personnel policy, applicable to all employees, which identifies habitual tardiness as a reason for disciplinary action, up to and including termination. Camrac responds that the employees identified by Taing are not proper comparators because, inter alia, none of them can be shown to have conduct of comparable gravity. The court agrees. Whereas Taing was terminated after a final warning, there is no evidence to establish that any of the proposed comparators were, or had ever been, subject to a final warning for attendance issues. See Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) (" [i]n the context of employee discipline . . . the plaintiff and the similarly situated employee must have engaged in comparable conduct, that is, conduct of comparable seriousness" (internal quotation marks omitted)); Harris v. Dep't of Corr., 154 Conn.App. 425, 432-33, 107 A.3d 454 (2014), cert. denied, 315 Conn. 925, 109 A.3d 921 (2015) (a co-employee is " similarly situated" only where he or she has a comparable disciplinary history). In the absence of such evidence, Taing's proposed comparators are not " similarly situated" to her.
Camrac's employment policy provides that " [r]egular and punctual attendance is expected of all employees. Attendance is one of the factors considered when evaluating performance, as it is an essential function of each position . . . Habitual absence or tardiness is cause for disciplinary action, up to and including termination."
Taing argues that the deposition testimony of Fisher reveals issues of credibility which may not be resolved by summary judgment. Specifically, Fisher testified that he verbally warned both Donlon and Nisyrios for being late to work on Christmas Eve which should have been documented. Camrac denies the existence of any attendance-related disciplinary records for Donlon or Nisyrios. In Taing's view, this demonstrates bias because they were not pregnant. Any issue of credibility related to an issue of fact, must, however, be one of a material fact, one that " will make a difference in the result of the case." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 556. Whether or not the tardiness of non-pregnant workers was documented on one occasion does not establish disparate treatment because Taing has not shown that they were similarly situated. This is so, again, because neither Donlon or Nisyrios possessed the same disciplinary history. Thus, any dispute is not of a " material fact."
Finally, the court finds the fact that Taing was replaced by a male is not sufficient to raise a genuine issue of material fact as to whether Camrac's explanation for her termination, i.e., habitual tardiness, was pretext. There is a clear and undisputed record establishing that Taing was habitually tardy, which pre-dated her notification to Camrac of her pregnancy. Notably, Taing's pre-pregnancy employment evaluations include negative comments regarding her attendance and she received a written warning for tardiness in July of 2014. Taing does not dispute that the July 2014 warning referenced termination as a potential consequence of continued tardiness. She also does not dispute that she was tardy on eleven days between October 1 and December 19, 2014; that she received a final written warning on December 19, 2014, as a result of the foregoing tardy arrivals; that the final written warning advised her that another violation of the tardiness policy would result in her termination; or that she was tardy for work on December 24, 2014. Given Taing's long history of tardiness, much of which pre-dates her pregnancy, coupled with her tardiness following the final warning, the court cannot find that Taing has raised a genuine issue of material fact that the nondiscriminatory reason proffered for her termination, to wit, habitual tardiness, was false or pretextual.
The plaintiff does not argue, for example, that she was given a final warning because of her pregnancy.
IV
CONCLUSION
Camrac's motion for summary judgment has rebutted the presumption of a prima facie case of discrimination. Taing failed to submit sufficient evidence to raise a genuine issue of material fact as to whether Camrac's reason for her termination was pretextual. Camrac's motion for summary judgment is granted as to all counts of the complaint.
So ordered.