Opinion
HHDCV176076872S
10-10-2018
Laverne WATTS v. GIRL SCOUTS OF CONNECTICUT, INC.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is the motion of the defendant, Girl Scouts of Connecticut, Inc. (Girl Scouts), for summary judgment as to the employment discrimination claim of the plaintiff, Laverne Watts (plaintiff). Because the plaintiff has failed to establish discriminatory intent as part of her prima facie case, and because the Girl Scouts has established a legitimate nondiscriminatory reason for terminating the plaintiff, the motion for summary judgment is granted.
RELEVANT FACTS AND PROCEDURAL HISTORY
The plaintiff, an African-American woman, alleges she suffered discrimination and retaliation in violation of General Statutes § § 46a-60(a) and 46- 60(a)(4) in counts one and two, respectively, of her two-count complaint. The plaintiff alleges the following facts in her complaint. The defendant, Girl Scouts, hired the plaintiff as a Production/Print Coordinator on or about March 9, 2009. During her employment, the plaintiff performed her job at or above a satisfactory level. In 2013, Girl Scouts restructured the company, resulting in the plaintiff being assigned to Sharon Bellinger’s (Bellinger) department. Bellinger is employed by the defendant as a supervisory employee. Thereafter, "Bellinger stripped a number of [the] plaintiff’s job responsibilities ... [and] excluded [the] plaintiff from one or more business meetings." Consequently, in 2013, the plaintiff complained to the defendant that Bellinger discriminated against her on the basis of her race.
Section 46a-60(b)(1) provides in relevant part that "It shall be a discriminatory practice ... (1) For an employer, by the employer or the employer’s agent, except in the case of a 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 compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability, including, but not limited to, blindness, or status as a veteran."
Section 46a-60(b)(4) provides that it shall be a discriminatory practice "[f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."
In August 2015, the defendant instructed each of its departments to make a video intending to feature departmental employees and show departmental functions. Prior to shooting the video, Bellinger informed the plaintiff that she should not appear in the video. At the same time, other similarly situated employees were allowed to participate. These similarly situated employees did not complain to the defendant about race discrimination. On January 14, 2016, the defendant terminated the plaintiff. "Bellinger was involved in the decision-making process to terminate [the] plaintiff’s employment." The defendant replaced the plaintiff with Samantha Goodman who is not African-American.
The plaintiff conceded at oral argument that this assertion is based on hearsay. Specifically, the plaintiff testified at deposition that co-employees Nancy Busman, Brenda Hall and Sheena Young told her that Goodman was doing her job.
On February 17, 2016, the plaintiff filed charges against the defendant with the Connecticut Commission on Human Rights and Opportunities (CHRO). On January 24, 2017, the plaintiff received a release of jurisdiction from the CHRO. On March 29, 2017, the plaintiff filed this two-count complaint. The defendant filed a motion for summary judgment along with a memorandum of law on March 15, 2018. In addition, the defendant attached the following exhibits: (1) excerpts of Laverne Watts’ deposition testimony, dated February 15, 2018; (2) the sworn affidavit of Sharon Bellinger; (3) Laverne Watts’ performance management report for December 19, 2014, and December 17, 2015; (4) the sworn affidavit for Johnetta Washington (Washington), Director of Human Resources at Girl Scouts; and (5) Laverne Watts’ staff photo authorization form. On May 30, 2018, the plaintiff filed her objection to the motion for summary judgment. The plaintiff also attached a memorandum of law, and excerpts of her deposition testimony. On June 15, 2018, the defendant replied to the plaintiff’s objection, and the court heard oral argument at short calendar on June 18, 2018.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[The ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... 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).
"[T]he party moving for summary judgment ... is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). Additionally, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017).
ANALYSIS
A: Race Discrimination
The defendant argues that the plaintiff fails to satisfy the fourth element of her prima facie discrimination case of showing "circumstances giving rise to an inference of race discrimination." Additionally, the defendant argues that it terminated the plaintiff because her "position was eliminated and her duties were dispersed and added to the existing duties of administrative assistants as part of a [reductions-in-force] RIF." In 2015, the defendant determined that it needed to reduce its workforce to control internal operational costs and meet its financial obligations. This resulted in several rounds of layoffs, with eight employees laid off in October of 2014, five in January of 2016, and ten in June of 2017. Bellinger provided an affidavit in which she averred that her decision to eliminate the plaintiff’s position was because the defendant could no longer afford a full-time or even part-time employee solely dedicated to the print shop in which she worked.
The plaintiff was terminated in this round.
"Our Supreme Court has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws." (Citations omitted; footnote omitted; internal quotation marks omitted.) Thomson v. Dept. of Social Services, 176 Conn.App. 122, 128, 169 A.3d 256, cert. denied, 327 Conn. 962, 172 A.3d 800 (2017). "The [legal] framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny." Heyward v. Judicial Dept. of Connecticut, 178 Conn.App. 757, 767, 176 A.3d 1234 (2017).
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, smoking gun type, 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).
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., 316 Conn. 65, 73-74, 111 A.3d 453 (2015). 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 third step involves a shift of the burden 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.
Count One- Discrimination
The defendant takes issue not with the first three elements of the prima facie case but with the fourth. In its estimation the plaintiff cannot meet this element, that is, that adverse employment action, her termination, occurred under circumstances that give rise to an inference of discrimination. Additionally, the defendant asserts that there is no genuine issue of material fact that the legitimate non-discriminatory reason for the adverse employment action, a reduction in force resulting in the plaintiff’s termination, is a pretext for a discrimination firing.
The plaintiff has unequivocally stated that the adverse action was her termination. "Plaintiff was terminated. Termination is an adverse employment action." Plaintiff’s Memorandum of Law in Opposition to the defendant’s Motion for Summary Judgment, Entry No. 118, p. 9.
The plaintiff does not suggest she has any direct evidence of discriminatory intent but claims she can raise an inference of such by her demonstration that the plaintiff was replaced by someone not in her protected class. Specifically, the plaintiff asserted in her objection to the motion for summary judgment that "Samantha Goodman, a white woman and one of Defendant’s employees ... was placed in the print shop to perform the duties that Plaintiff performed. (Pl. Ex. 1 Watts Dep. at 114.)" Plaintiff’s Objection to Defendant’s Motion for Summary Judgment, Entry No. 118, p. 5. The plaintiff repeated this assertion later in her memorandum. "Here, Plaintiff was replaced by an individual who is outside of plaintiff’s protected class. Samantha Goodman is not African-American. (Pl. Ex. 1 Watts Dep. At 114.)" Id., p. 10. It is true that the plaintiff’s burden of satisfying the discriminatory inference is de minimis and, moreover, it will ordinarily be met if the plaintiff offers proof that she was replaced by someone outside the protected class. Littlejohn v. City of New York, 795 F.3d 297, 313 (2d Cir. 2015). The plaintiff’s assertion however, suffers from two infirmities. The first is that the page of the deposition transcript to which the plaintiff refers the court for the proposition that Goodman, her replacement, was white, is devoid of any mention of her race. The court has carefully scrutinized page 114 of Watts’ deposition transcript, and, thereafter, the entirety of the transcript provided to the court in support of the plaintiff’s objection to the defendant’s summary judgment motion, and has found no reference to Goodman’s race. The assertion that appears on pages five and ten of the plaintiff’s memorandum in support of her objection, that she was replaced by a caucasian, does not appear in the record before the court.
Moreover, as previously noted, the information regarding Goodman as her replacement is derived from hearsay statements attributed to other employees. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Unless subject to an exception, hearsay is inadmissible." (Citations omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 655, 137 A.3d 1 (2016). "Hearsay is generally inadmissible and therefore when deciding a motion for summary judgment a court may not consider material that would be hearsay at trial." Walker v. Housing Authority, 148 Conn.App. 591, 600, 85 A.3d 1230 (2014). "Hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007). Because the only ground upon which the plaintiff’s claim of inference of discriminatory intent, her replacement by a caucasian, is neither proven or properly before the court, the motion for summary judgment should be granted for the plaintiff’s failure to satisfy the fourth element of her prima facie case.
Assuming arguendo that the plaintiff had met her burden to demonstrate a discriminatory inference, summary judgment should still be granted. The defendant has produced a legitimate nondiscriminatory reason for the plaintiff’s termination, the reduction in force. "If the plaintiff succeeds in meeting that burden [of proving a prima facie case], his employer can counter the presumption of discrimination by proffering a legitimate, nondiscriminatory reason for its action." (Internal quotation marks omitted.) Green v. Cello Partnership, 218 F.Supp.3d 157, 163 (D.Conn. 2016).
In the present case the defendant proffers that the company RIFs included multiple employee layoffs in 2014, 2016 and 2017.
Moreover, the plaintiff testified at her deposition that she was indeed aware that other employees were terminated the same time as she was.
The burden would then shift back to the plaintiff to demonstrate that her termination was actually motivated by discrimination. Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996). The plaintiff argues that the evidence of her exclusion from the video shoot and meetings provides such evidence. The defendant contends that it did not include the plaintiff in the video because, as demonstrated by Exhibit F to the defendant’s motion for summary judgment, she checked off "no" as her response to Girl Scouts’ use of her photo for publications and social media purposes. As for an exclusion from meetings, the plaintiff admitted that she chose not to attend department meetings at Girl Scouts’ Hartford headquarters because she could not "find" the office, located on 340 Washington Street in Hartford. (Plaintiff’s Tr., pp. 79-80.) The plaintiff testified that she complained in 2013, that she felt excluded from department meetings, but even after being assured that was not the case and she was encouraged to attend, she stopped coming after three to four attempts because she did not feel that it was worth it to travel to headquarters. (Plaintiff’s Tr., pp. 79-80.) Thus, the evidence upon which the plaintiff relies to establish pretext does not raise a genuine issue of material fact.
Count Two- Retaliation
Next, the plaintiff contends that the defendant retaliated against her after she notified the defendant of her alleged race discrimination in the workplace. Nonetheless, the defendant contends that it did not engage in retaliatory practice when it terminated the plaintiff because the reason for her termination was the purely business related RIF.
To maintain a retaliation claim, "a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action." Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009). "A plaintiff’s burden in this regard is de minimis, and the court’s role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive. Once a prima facie case of retaliation is established, then a presumption of retaliation arises and the employer must articulate a legitimate, non-retaliatory reason for the action that the plaintiff alleges was retaliatory. If the employer demonstrates a legitimate, non-discriminatory reason, then the burden shifts back to the plaintiff to show that, but for the protected activity, an adverse employment action would not have been taken against him." (Citations omitted; internal quotation marks omitted.) White v. City of Middletown, 45 F.Supp.3d 195, 214 (D.Conn. 2014). "The term protected activity refers to action taken to protest or oppose statutorily prohibited discrimination." Id., 215. "The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of coworkers who have filed formal charges." (Citations omitted; internal quotation marks omitted.) Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000).
"The causation element can be proven (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment ... Alternatively, causation may be satisfied by showing a sufficiently close temporal connection between the protected activity and the adverse action." Jones v. Dept. of Children & Families, 172 Conn.App. 14, 35-36, 158 A.3d 356 (2017). This court is not persuaded that the plaintiff has met her burden of establishing a prima facie case of retaliation because she cannot meet the fourth prong. In other words, the plaintiff failed to show that her complaint of discrimination was indeed followed by any discriminatory treatment, or, a close temporal connection between complaining of discrimination and her termination. The alleged complaint of discrimination happened in 2013, while the defendant terminated the plaintiff in 2016.
As pointed out by the defendant, a lack of temporal proximity between the protected conduct and the purported discriminatory act may be fatal to establishing causation. See Clark County School District v. Breeden, 532 U.S. 268, 274, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) "[a]ction taken ... 20 months [after the protected activity] suggests, by itself, no causality at all." Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (determining that three-month period between complaint and failure to provide favorable recommendation too attenuated); Burkybile v. Board. of Education, 411 F.3d 306, 314 (2d Cir. 2005) (concluding that more than a year not sufficiently proximate in time to establish causation); Zboray v. Wal-Mart Stores East, L.P., 650 F.Supp.2d 174, 182 (D.Conn. 2009) ("time periods ranging from two-and-a-half months to eight months have been deemed insufficient to show the necessary temporal proximity"); Ware v. Donahoe, United States District Court, Docket No. 3:09CV00740 (DJS) (D.Conn. March 4, 2014) (finding the passage of four months too attenuated). In the present case no rational finder of fact can infer a retaliatory nexus between the complaint in 2013, and the plaintiff’s termination in 2016.
Moreover, as discussed above, the defendant established a nondiscriminatory reason for termination, the RIF. The plaintiff fails to establish that, but for her engaging in the protected activity, the termination would not have occurred. There is no genuine issue of material fact in dispute that the defendant terminated the plaintiff for business reasons. The law of discrimination does not foreclose an employer’s right to manage its work force so as to maximize profits and efficiency in a nondiscriminatory manner. Smith v. F.W. Morse & Co., supra, 76 F.3d 425.
The plaintiff contends that while there is a gap of two and a half years between the alleged protected activity and the adverse treatment, the timeframe does not destroy the causal connection because "there was never a cessation of discriminatory conduct." While this argument carries some weight, and courts have found that gaps in between the protected activity and the adverse treatment can still be taken into account, in the present case, the plaintiff failed to provide any evidence of any continuous discriminatory conduct by the defendant, and the gap is over two years. "This two-year gap is too wide to support the inference that she was terminated in retaliation for complaining about discrimination, and Richardson failed to adduce any other evidence to indicate that her discharge was the product of retaliatory animus." Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 447 (2d Cir. 1999).
For all the above reasons the defendant’s motion for summary judgment is granted as to counts one and two.