Opinion
FBTCV176066971S
01-25-2019
Linell BRAGG v. NORTHBRIDGE HEALTH CARE CENTER, INC.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendant Northbridge Health Care Center, Inc. has moved for summary judgment on all four counts of Plaintiff Linell Bragg’s complaint: first count: discrimination for exercising rights under the Connecticut Workers’ Compensation Act, second count: discrimination based on race in violation of Title VII of the Civil Rights Act of 1964 as amended, third count: discrimination based on color in violation of Title VII, and fourth count: hostile work environment in violation of Title VII. The plaintiff opposes that motion.
MATERIAL FACTS
The plaintiff is African-American. (Compl. Count 2, ¶ 2.) She worked as a certified nursing assistant ("CNA") for the defendant from May 10, 2005 until January 5, 2017. (Pl.’s Dep. 27-28; Roman Aff.) On September 9, 2015, the plaintiff fell at work and injured her left knee. (Bragg Aff.; Pl.’s Dep. 43.) She made a claim for workers’ compensation benefits for this injury. (Compl. Count 1.) She was out on leave until December 28, 2015, when she was cleared to return to work with no restrictions. (Pl.’s Dep. 65-66; Ex. 11.) While she was out on leave, the defendant treated the time out as leave pursuant to the Family Medical Leave Act ("FMLA"). (Pl.’s Dep. 54-55; Ex. 9; Pl.’s Ex. I & K.) No one at the defendant made any discriminatory remarks about the plaintiff’s injury or her use of workers’ compensation benefits. (Pl.’s Dep. 70.)
The plaintiff’s deposition transcript and exhibits and the affidavits of the representatives of the defendant are in Filing No. 124.00.
The Bragg Affidavit and the plaintiff’s exhibits in support of its objection are in Filing No. 128.00.
After her return to work, the plaintiff worked full-time, but her left knee gradually got worse, and she took another leave starting on June 23, 2016. (Pl.’s Dep. 78-79; Ex. 12; Pl.’s Ex. B.) The plaintiff filed again for workers’ compensation benefits. (Pl.’s Ex. M.) The defendant sent a letter to the plaintiff on July 13, 2016, notifying her that she had used up her last sixteen hours of FMLA leave and that the defendant had placed her on inactive status for six months until December 23, 2016. (Pl.’s Dep. 90-91 and Ex. 14; P. Ex. C.) The plaintiff states that on or about July 21, 2016, she was released back to work, but with restrictions, and at that time, "Liz the HR person" told her that there was no work for her with restrictions and that the plaintiff needed to look elsewhere for work. (Bragg Aff.) The defendant sent another letter to the plaintiff on August 3, 2016 to inform her that inactive status meant that the plaintiff was on a per diem basis with no guaranteed hours. (Pl.’s Dep. 101; Ex. 15; P. Ex. F.) Per diem status required the plaintiff to work a minimum of eight hours per month. (Ex. 17 to Pl’s. Dep.) In both letters sent to the plaintiff, the defendant informed the plaintiff that the defendant would make every effort to accommodate her return. (Exs. 14 & 15 to Pl.’s Dep.)
The plaintiff was released to full duty effective August 30, 2016. (Pl.’s Dep. 115-16; Ex. 16; Bragg Aff.; Pl.’s Ex. G.) The plaintiff asserts that at that time, representatives of the defendant told her that she had been replaced and that she needed to look online for per diem work. (Bragg Aff.) On December 15, 2016, the defendant sent the plaintiff another letter, telling her that she had not met the per diem requirements, and warned her that if she did not pick up shifts by January 4, 2017, the defendant would consider her to have voluntarily resigned. (Pl.’s Dep. 121-22; Ex. 17; Pl.’s Ex. H.) The parties agree that the plaintiff accessed the online shift scheduling program and that she did not pick up any shifts. They dispute whether there were any shifts available. (Compare Angela Serrano Aff. and Bragg Aff.) Thereafter, the defendant terminated the plaintiff on January 5, 2017. (Roman Aff.)
In December 2014, the plaintiff spoke with her supervisor about concerns she had about a coworker, Sheila Craft. (Pl.’s Dep. 197.) Ms. Craft is African-American. (Pl.’s Dep. 161.) The supervisor asked the plaintiff to provide a written statement with her concerns. (Pl.’s Dep. 197.) The plaintiff complied. (Ex. 23 to Pl.’s Dep.) The plaintiff provided a second written statement on or about January 15, 2015. (Ex. 24 to Pl.’s Dep.) The plaintiff made the following complaints about Ms. Craft:
Ms. Craft stuck her tongue out at the plaintiff;
Ms. Craft said she works with "animals" when the plaintiff and her coworker entered the elevator;
Ms. Craft called the plaintiff and her co-worker "bitches";
Ms. Craft stuck out her tongue, rolled her eyes and said, "my daughter would not be a whore, like some people around here" and "I have one daughter. She will never be on welfare and was not raised on welfare. These CNAs are nasty."
Ms. Craft laughed and said, "Don’t hate me because I’m beautiful."
A co-worker overheard Ms. Craft saying she hates Level 2 CNAs and they "suck d*";
Ms. Craft bumped the plaintiff with a supply cart; and
When the plaintiff wore white pants, Ms. Craft would look at the plaintiff, laugh, and say to her friend, "we would look good in those white pants because our butts are big and we don’t have flat asses."(Bragg Aff.; Exs. 23, 24 & 25 to Pl.’s Dep.) After the plaintiff’s request for a mediation, the defendant held a meeting with the plaintiff, Ms. Craft, the Director of Nursing, Dolores Campo, the Administrator, Dane Walton, and the defendant’s parent company’s Regional Specialist, John Anantharaj. (Pl.’s Dep. 225.) None of the plaintiff’s supervisors were African-American. (Pl.’s Ex. A.) The plaintiff did not tell anyone at the defendant’s office that she believed that Ms. Craft’s statements and actions were motivated by her race or color. (Pl.’s Dep. 242.) The plaintiff states in her Affidavit that no one remedied the situation with Ms. Craft, and that her supervisor warned her to stop raising issues concerning Ms. Craft. (Bragg Aff.)
In June 2015, the plaintiff told Ms. Roman that someone had scratched out her picture on a company bulletin board. (Pl.’s Dep. 233-35.) The plaintiff states in her affidavit that the defendant failed to investigate or remedy the matter. (Bragg Aff.) Ms. Roman states in her affidavit that she conducted an investigation, but was unable to determine what happened. (Roman Aff.)
On or about August 4, 2015, the plaintiff filed a charge with the EEOC. (Ex. B to Aff. of Sarah Baskin (No. 130.00)). In that charge, the plaintiff detailed the issues set forth above regarding Ms. Craft and checked the boxes for race discrimination, color discrimination and hostile work environment. Id. In her complaint, the plaintiff alleged that she sought and obtained a release of jurisdiction from the proper administrative agencies. In its answer, the defendant denied this allegation but admitted that the EEOC issued a right to sue letter. (No. 105.00.)
LEGAL ANALYSIS
I. Exhaustion of Remedies
Preliminarily, the court will address the issue of exhaustion of remedies raised by the defendant in its reply memorandum with respect to the second, third and fourth counts. The defendant did not plead failure to exhaust remedies as a special defense in its answer. Indeed, it specifically admitted in response to allegations in each of these counts in the plaintiff’s complaint that the plaintiff had received a right to sue notice from the EEOC. (No. 105.00.) The defendant did not raise the issue in a motion to dismiss pursuant to Practice Book § 10-30. Moreover, the defendant did not raise the issue of exhaustion of remedies in its original motion and supporting memorandum. The first time the issue of exhaustion was raised by the defendant was in its reply memorandum.
"A claim for Title VII violations raises a question of federal law rather than state law. Schnable v. Tyler, 230 Conn. 735, 742, 646 A.2d 152 (1994) (interpretation of federal statute question of federal law). Therefore, in reviewing these claims ... [the court is] bound by federal precedent ... Furthermore, in applying federal law in those instances where the United States Supreme Court has not spoken, [our Supreme Court] generally give[s] special consideration to decisions of the Second Circuit Court of Appeals ... Id., 742-43; see also Tedesco v. Stamford, 24 Conn.App. 377, 385, 588 A.2d 656 (1991), rev’d on other grounds, 222 Conn. 233, 610 A.2d 574 (1992) (The decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute). Nevertheless, the decisions of the Second Circuit, while often persuasive, do not bind the decisions of Connecticut courts. Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 646, 657, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007). Thus, this court is bound by decisions of the appellate courts of this state, and will afford great weight to decisions of the Second Circuit Court of Appeals." (Internal quotation marks omitted.) Lennon v. Dolce Vida Medical Spa, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6017172-S (February 10, 2015, Kamp, J.) (59 Conn. L. Rptr. 739).
The United States Court of Appeals for the Second Circuit recently ruled that the burden falls on the defendant to plead and prove failure to exhaust administrative remedies for a Title VII claim. Hardaway v. Hartford Public Works Dept., 879 F.3d 486, 491 (2d Cir. 2018). It observed that the Courts of Appeals for the Third, Sixth, Seventh, Ninth, Eleventh and District of Columbia Circuits also had ruled that the burden is on the defendant to plead and prove failure to exhaust in Title VII cases. Id., 490. The Second Circuit also grounded its holding on the ruling by the United States Supreme Court that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like the statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id., 491, quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). In reaching that conclusion in Zipes, the U.S. Supreme Court reasoned that the filing requirement is in a different section of the statute from the jurisdiction section and that subjecting the exhaustion requirement to waiver and other defenses is consistent with the remedial nature of the statute. Id. That U.S. Supreme Court holding and reasoning has been acknowledged by our Appellate Court. Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 743, 84 A.3d 895, 903 (2014).
The Hinde plaintiff argued that the exhaustion requirement ought to be waived based on the U.S. Supreme Court holding in Zipes, but the Appellate Court held that the record was not complete enough for it to grant that relief. Hinde v. Specialized Education of Connecticut, Inc., supra, 147 Conn.App. 744-45, 84 A.3d at 904.
The issue of whether the Connecticut state courts should treat exhaustion of administrative remedies as an issue that can be waived in Title VII cases appears to be an issue of first impression. This court holds that the defendant has, at least on the present state of the pleadings, waived the issue of whether the plaintiff has failed to exhaust her administrative remedies as to the second, third and fourth counts. As set forth above, the defendant did not plead failure to exhaust and, indeed, affirmatively admitted that the plaintiff had exhausted her administrative remedies in response to each of these counts. Moreover, the defendant did not move to dismiss, which is the proper procedure to raise a failure to exhaust administrative remedies. Finally, the defendant waited until its reply memorandum to raise the issue, which is not proper. Reardon v. Zoning Board of Appeals, 311 Conn. 356, 367 n.10, 87 A.3d 1070, 1077 (2014) ("we note the general rule that claims may not be advanced for the first time in a reply brief"); Limberger v. Burke Ridge Construction, LLC, Superior Court, judicial district of Hartford, Docket No. CV-12-6037168-S (December 3, 2015, Huddleston, J.) (noting the procedural impropriety of raising new arguments in a reply memorandum in support of a summary judgment motion). Therefore, the court will address the merits of the second, third and fourth counts.
II. The Summary Judgment Standard
"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 ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312, 77 A.3d 726, 731 (2013). "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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079, 1084 (2016). The opposing party must demonstrate that she has sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of her causes of action. See Stuart v. Freiberg, 316 Conn. 809, 823-24, 116 A.3d 1195, 1204-05 (2015).
The United States Supreme Court has created a burden shifting analysis for employment discrimination claims when they are subject to summary judgment motions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 668 (1973). That analysis applies here. See, e.g., Feliciano v. Autozone, Inc., 316 Conn. 65, 73-74, 111 A.3d 453, 459 (2015) (disparate treatment discrimination claims); Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054, 1060 (1990) (discrimination in violation of General Statutes § 31-290a(a)). That burden shifting analysis requires the plaintiff to make out a prima facie case of discrimination. Id., 53, 578 A.2d at 1060. The employer may then rebut that prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision. Id. 53-54, 578 A.2d at 1060. Then, the plaintiff employee must demonstrate that the proffered reason is just a pretext and that the actual motivation for the employment decision was illegal discriminatory bias. See, e.g., Feliciano v. Autozone, Inc., supra, 73-74, 111 A.3d at 459.
Here, the defendant argues that the plaintiff has not even made out a prima facie case for the first part of this burden-shifting analysis on her four claims. The plaintiff’s burden for "a prima facie case is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder." Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518, 531 (2002). "The level of proof 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." Id.
III. First Count: Discrimination in Violation of the Workers’ Compensation Act
In the first count, the plaintiff alleges that the defendant violated § 31-290a(a). That statute provides:
No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
As noted above, the burden-shifting analysis applies specifically to § 31-290a claims. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53, 578 A.2d at 1060. That analysis initially places on the plaintiff the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Id. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Id. The plaintiff must prove that: (1) she filed a claim for workers’ compensation benefits, (2) she experienced an adverse employment action, and (3) there was a causal connection between her exercise of rights under the statute and the adverse employment action she experienced. Martin v. Westport, 108 Conn.App. 710, 717-18, 950 A.2d 19, 24 (2008). While the parties agree that the plaintiff filed a claim for workers’ compensation benefits, they disagree that the plaintiff has enough evidence to raise a genuine issue of material fact as to an adverse employment action or a causal connection.
A. Adverse Employment Action
The plaintiff alleges and argues that the following adverse employment actions occurred:
(1) after the plaintiff injured her knee on September 9, 2015, and she was out of work from September 10, 2015 to December 28, 2015, the defendant placed her on FMLA leave (Pl.’s Exs. K & L);
(2) after the plaintiff reinjured her knee on June 23, 2016, the defendant deemed her to have exhausted her FMLA leave after sixteen hours and then placed her on "inactive status" until December 23, 2016 (Pl.’s Ex. C), which meant that she had no guaranteed hours and would have to work on a per diem basis; and
(3) the defendant discharged the plaintiff from her employment on December 15, 2016 by sending her a letter notifying her that she had not met her per diem requirements of working eight hours a month and that, therefore, the defendant considered her to have voluntarily resigned (Pl.’s Ex. H).
The defendant argues that its application of FMLA to the plaintiff’s initial time out of work and inactive status to her remaining time out of work were not adverse employment actions.
As to the application of FMLA leave to the plaintiff’s initial periods of time out of work after her injury and reinjury to her knee, the court agrees with the defendant that this was not an adverse employment action. The plaintiff argues that there is an issue of fact because she did not consent to using FMLA leave, but this is not material. As the defendant points out, even if the plaintiff was forced to use FMLA leave, that is not wrongful. Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 175 (2d Cir. 2006).
The defendant argues that placing the plaintiff on inactive status was not an adverse employment action. The defendant asserts that this was a grant of leave under a neutral policy that preserved the plaintiff’s employment, maintained her seniority and allowed her to apply for open positions. (Roman Aff. (No. 124.00) and Roman Aff. attached as Ex. 2 to Reply Memorandum (No. 129.00)). The plaintiff argues that because the inactive status did not guarantee any hours and there were no hours available when she inquired, there are genuine issues of material fact for trial as to whether this was an adverse employment action.
Preliminarily, this court holds that the mere fact that the defendant had an inactive status policy that did not guarantee hours was not a violation of § 31-290a. Our Appellate Court has held that § 31-290a does not require an employer to retain an employee who is unable to perform their job duties, even if that inability resulted from a work-related injury. Erisoty v. Merrow Machine Co., 34 Conn.App. 708, 713, 643 A.2d 898, 901, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994) (holding that plaintiff was discharged because employer could not accommodate her medical condition and that plaintiff had not shown an inference of discriminatory intent); Chiaia v. Pepperidge Farm, Inc., 24 Conn.App. 362, 365, 588 A.2d 652, 654, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991) (holding that an employer’s absence control policy that limited the amount of time a job would be held open to twelve months did not violate § 31-290a).
If the plaintiff could establish that the defendant intended to discriminate against her for having filed a workers’ compensation claim, she applied for and was qualified for jobs the defendant was seeking to fill, she was rejected for available work at the defendant, and positions at the defendant remained available for which the defendant sought applicants, then she would be able to make out a prima facie case. Erisoty v. Merrow Machine Co., supra, 34 Conn.App. 712, 643 A.2d at 901. As to one of those elements, the parties dispute whether there were per diem shifts available to the plaintiff while she was on inactive status. The defendant has submitted records showing hundreds of shifts available between the plaintiff’s release to return to work in August 2016 and her termination in January 2017. (Serrano Aff. and Ex. B (No. 124.00)). The plaintiff states in her affidavit "I attempted to comply with Northbridge’s policy for inactive employees but there were never any hours available for me." (Bragg Aff. (No. 124.00)).
The defendant argues that the plaintiff’s statement in her affidavit contradicts her deposition testimony and that this court should hold that it does not create a genuine issue of material fact. In support of this argument, the defendant cites a Second Circuit decision affirming the entry of summary judgment in a 42 U.S.C. § 1983 case, Jeffreys v. New York, 426 F.3d 549, 555 (2d Cir. 2005). In Connecticut state court practice, "[a] genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence ... Hence, the genuine issue aspect of summary judgment procedure 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." (Citations omitted; internal quotation marks omitted.) United Oil Co., Inc. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596, 604 (1969). This court is not prepared to disregard the plaintiff’s testimony in her affidavit, and the court finds that there is a genuine issue of material fact as to whether there were per diem hours available to the plaintiff when she was on inactive status.
Finally, the court concludes that when the defendant notified the plaintiff that it considered her to have voluntarily resigned, there is a genuine dispute of material fact as to whether this was an adverse employment action.
B. Causal Connection
Even though the court holds that there is a genuine issue of material fact that the plaintiff suffered an adverse employment action, she also must show that there is a causal connection between her application for workers’ compensation benefits and that adverse employment action. Martin v. Westport, supra, 108 Conn.App. 717-18, 950 A.2d at 24 (affirming the grant of summary judgment based on the plaintiff’s failure to demonstrate a genuine issue of material fact regarding a causal connection). To establish that causal connection, the plaintiff must show "that a retaliatory motive played a part in the adverse employment action." Id., 718, 950 A.2d at 25. "A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant." (Emphasis in original; internal quotation marks omitted.) Id., 719, 950 A.2d at 25 (citing Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). The plaintiff has not set forth any facts that would directly establish a causal connection, so the court will analyze whether there is a genuine issue of material fact as to whether she can establish a causal connection indirectly.
The defendant argues that there is no causal connection between the application for workers’ compensation benefits and the placement on inactive status because the defendant reinstated the plaintiff to her full-time CNA position after two previous lengthy leaves of absence occasioned by work-related injuries (Pl.’s Dep. 44, 65-70; Roman Aff.); the defendant offered to "make every effort to accommodate your return" in its letters to the plaintiff during the 2016 leave (Pl.’s Dep. 101; Exs. 14 & 15); and no one made any discriminatory remarks to her about her injuries or leaves of absence (Pl.’s Dep. 46, 70-71.) The plaintiff argues that there is a causal connection between the plaintiff’s workers’ compensation claim and the defendant placing her on inactive status because the defendant’s July 13, 2016 letter explicitly told the plaintiff that "[d]ue to your workers’ compensation claim, we have placed you on inactive status until 12/23/2016 which will mark six months since you will have been out of work." (Pl.’s Ex. C (No. 128.00)). The plaintiff also points out that the defendant’s August 3, 2016 letter stated that "[b]ecause your inability to return to work is related to an injury on the job, as you are already aware, we have place[d] you on an inactive status until 12/23/2016 ..." (Pl.’s Ex. F. (No. 128.00)). The court agrees that these quoted sentences do attribute the inactive status to the plaintiff being out with a work-related injury, but that is not sufficient.
The plaintiff does not appear to make any other effort to show "that a retaliatory motive played a part in the adverse employment action." Martin v. Westport, supra, 108 Conn.App. 718, 950 A.2d at 25. As set forth above, the Appellate Court has held that terminations do not violate § 31-290a if there is no inference of discrimination. See, e.g., Erisoty v. Merrow Machine Co., supra, 34 Conn.App. 712-13, 643 A.2d at 900-01. "[T]he plaintiff must present evidence that gives rise to an inference of unlawful discrimination." Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53, 578 A.2d at 1060. She has not done that here.
The plaintiff goes on to argue that the defendant’s stated reasons for its actions might be pretextual, based on questions as to whether there actually was a policy for inactive status. Based on the Roman Affidavit and a copy of that policy that are attached to the defendant’s reply memorandum (No. 129.00), the court finds that there is no genuine issue of material fact that the policy exists.
As for the actual termination of the plaintiff in January 2017, the defendant argues that that termination occurred more than a year after she suffered her work-related injury and filed a claim for workers’ compensation benefits and more than six months after she went out on another leave of absence for that injury. The defendant argues that too much time went by for there to be any causal connection, citing two Title VII retaliation cases outside of the workers’ compensation context, Housel v. Rochester Institute of Technology, 6 F.Supp.3d 294, 308 (W.D.N.Y. 2014) and Garrett v. Garden City Hotel, Inc., United States District Court, Docket No. 05-CV-0962 (JFB) ((E.D.N.Y. April 19, 2007). In addition, the defendant points out that when the plaintiff was terminated, the defendant left open the possibility that she could be rehired. Although the court is not prepared to grant summary judgment merely because of the passage of time, the plaintiff has failed to present any evidence that would give rise to an inference of unlawful discrimination when she was terminated. Judgment should enter in favor of the defendant on the First Count.
IV. Second and Third Counts: Violation of Title VII Based on Race and Color
In the second count of her complaint, the plaintiff alleges that the defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e and the Civil Rights Act of 1991 ("Title VII"), based on her race. She makes a nearly identical claim in the third count, but she alleges that that violation was based on her color.
In her Objection Memorandum (No. 128.00), the plaintiff refers to General Statutes § 46a-60, but she has not referred to that statute in her complaint, and accordingly, this court will analyze these counts only under Title VII. See Practice Book § 10-3.
The test for a prima facie case of race or color discrimination based on disparate treatment requires the plaintiff to show that (1) she was a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action; and (4) the circumstances gave rise to an inference of unlawful discrimination. McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802; Feliciano v. Autozone, Inc., supra, 316 Conn. 73-74, 111 A.3d at 459. The defendant argues that the plaintiff cannot prove that she suffered an adverse employment action or that the circumstances gave rise to an inference of discrimination.
A. Adverse Employment Action
The plaintiff argues that there were two adverse employment actions-the reduction of her hours that accompanied her placement on inactive status and her termination. The problem with this argument is that the second and third counts do not allege these adverse employment actions. Indeed, the only allegation of an employment action in those counts was the failure of the defendant to administer an official disciplinary action against the plaintiff’s co-worker, Sheila Craft, who allegedly harassed the plaintiff, or against whoever defaced the plaintiff’s picture on the defendant’s bulletin board. Moreover, the second and third counts allege that the plaintiff has sought and obtained a release of jurisdiction from the proper administrative agencies. Based on the evidence provided to the court, that was a claim filed with the EEOC in August 2015, which predated both the placement of the plaintiff on inactive status (June 2016) and the termination of the plaintiff (January 2017). Accordingly, the court finds that the plaintiff has not alleged, much less raised a disputed issue of material fact, that she was placed on inactive status or terminated because of her race or color.
As to the defendant’s failure to discipline Ms. Craft or the person who defaced the plaintiff’s picture, the court agrees with the defendant that that was not an adverse employment action. "A failure to investigate can be considered an adverse employment action only if the failure is in retaliation for some separate, protected act by the plaintiff." (Internal quotation marks omitted.) Brayboy v. O’Dwyer, 633 Fed.Appx. 557, 558 (2d Cir. 2016). The plaintiff has not put forth evidence that she engaged in separate, protected conduct or that the defendant retaliated against her for such conduct. Accordingly, the court holds that there is no disputed issue of material fact as to an adverse employment action in the second and third counts.
B. Inference of Discrimination
Although summary judgment could enter based on the absence of an adverse employment action and the resulting failure to make out a prima facie case, the court also will address the final required element of inference of discrimination. The plaintiff claims that she complained about her treatment by Ms. Craft to her supervisors, none of whom were African American as she and Ms. Craft were. In her affidavit, the plaintiff states:
By the actions of Sheila Craft and my perceptions of the action, I had hoped that they weren’t racially motivated but in my opinion they were. The company’s reactions I don’t believe is appropriate and I believed NB condoned the action of Sheila Craft. I believe that this was a consideration the company used to eventually make me a per diem employee and terminate me.
My co-worker would physically hit me by pushing a supply cart into me, called me an "animal," referred to me as a "bitch" and "whore," made sexually derogatory comments about me. In response, I complained to my supervisors, but no remedial action was taken and instead I was warned to stop raising issues concerning the conduct of the co-worker against me. The supervisor who was not African-American or Black, instead of remedying the conduct of the co-worker, informed me not to continue to complain about the conduct of the co-worker.
In addition, the defendant was aware that a photograph of myself which was on the defendant’s bulletin board was defaced and the defendant failed to investigate or remedy the matter. Third parties co-workers provided written statements confirm harassing conduct directed towards me.(Pl.’s Ex. A attached to Objection (No. 128.00)).
At her deposition, the plaintiff testified that she believed that the defendant discriminated against her because of her color. (Pl.’s Dep. 162). She is lighter skinned than Ms. Craft. (Id., 164). A belief, without more, does not overcome a motion for summary judgment. See, e.g., Spaulding v. Rovner, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-04-4001232-S (April 3, 2009, Jennings, J.) (47 Conn. L. Rptr. 544) (refusing to consider statement that the plaintiff had an "understanding"); Butler v. McIntosh, Superior Court, judicial district of Hartford, Docket No. CV-95-0555751-S (February 21, 1997, Levine, J.) (19 Conn. L. Rptr. 47) (rejecting statements in affidavit that were opinions rather than statements based on personal knowledge). More specifically, under Title VII, an inference of discrimination may not be based on "mere conjecture or surmise." Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 517, 832 A.2d 660, 675 (2003).
The plaintiff has not set forth the evidence necessary to raise a genuine issue of material fact that even if there was an adverse employment action, it occurred under circumstances that give rise to an inference of discrimination. "Circumstances contributing to a permissible inference of discriminatory intent may include [1] the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff’s qualifications to fill that position ... or [2] the employer’s criticism of the plaintiff’s performance in ethnically degrading terms ... or its invidious comments about others in the employee’s protected group ... or [3] the more favorable treatment of employees not in the protected group ... or [4] the sequence of events leading to the plaintiff’s discharge ... or the timing of the discharge ..." Agosto v. Premier Maintenance, Inc., 185 Conn.App. 559, 583-84 (2018) (quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). This plaintiff has not submitted evidence of any of these circumstances.
In Feliciano, even though our Supreme Court observed that the plaintiff’s manager treated her "in a despicable manner because of her perceived national origin, religion or race," the court concluded that she had presented no evidence of a causal connection to her termination from employment. Feliciano v. Autozone, Inc., supra, 316 Conn. 78, 111 A.3d at 462. Without that affirmative evidence of a causal connection, the court held that there could be no inference of discriminatory intent. Here, the plaintiff also has failed to come up with evidence of a nexus between her interactions with Ms. Craft and any adverse employment action.
The plaintiff has not raised a genuine issue of material fact regarding two essential elements of the claims asserted in the second and third counts: an adverse employment action and circumstances giving rise to an inference of discrimination. Therefore, summary judgment should enter for the defendant on the second and third counts.
V. Fourth Count: Hostile Work Environment in Violation of Title VII
The plaintiff’s final claim is that the defendant created a hostile work environment in violation of Title VII. To prove that violation, the plaintiff must produce evidence sufficient to show that her workplace was "permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment." (Citation omitted; internal quotation marks omitted.) Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Howley v. Stratford, 217 F.3d 141, 153 (2d Cir. 2000); Feliciano v. Autozone, Inc., supra, 316 Conn. 85, 111 A.3d at 465; Patino v. Birken Mfg. Co., 304 Conn. 679, 699, 41 A.3d 1013, 1023 (2012). See also Brittell v. Dept. of Correction, 247 Conn. 148, 166-67, 717 A.2d 1254, 1265 (1998). Where the statements and actions are by a fellow employee, the plaintiff also must show "a specific basis exists for imputing the conduct that created the hostile environment to the employer." (Internal quotation marks omitted.) Howley v. Stratford, supra, 154. In order to be actionable, an objectionable workplace must be "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so ..." Feliciano v. Autozone, Inc., supra, 85, 111 A.3d at 465. "Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it reasonably interferes with an employee’s work performance." Id. The defendant argues that the plaintiff cannot prove that (1) she was harassed because of her race or color, (2) what was said and done rose to the level of a hostile work environment, or (3) those statements or actions altered the conditions of her employment.
A. Harassment Because of Race or Color
A plaintiff must also produce evidence that the hostility occurred because of the plaintiff’s protected characteristic. Rivera v. Rochester Genesee Regional Transportation Authority, 743 F.3d 11, 20 (2d Cir. 2014). "[I]t is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through [other means], is actionable under Title VII only when it occurs because of an employee’s ... protected characteristic, such as race or national origin." (Emphasis in original; internal quotation marks omitted.) Id. "[T]he plaintiff is required to establish that the harassment complained of was based on her gender [or race]." (Internal quotation marks omitted.) Martires v. Connecticut Dept. of Transportation, 596 F.Supp.2d 425, 442 (D.Conn. 2009) (granting summary judgment for defendant on hostile workplace claim because plaintiff failed to establish a connection between her working conditions and her race or gender); Kwentoh v. Connecticut Dept. of Children & Families Juvenile Training School, 588 F.Supp.2d 292, 295, 302 (D.Conn. 2008) (denying defense motion for summary judgment on hostile workplace claim brought by "a dark skinned native of Nigeria" who complained that her supervisor called her nursing practices "primitive").
The statements and actions attributed to Ms. Craft and directed toward the plaintiff were insulting, but they are not clearly based on race or color. According to the plaintiff,
Ms. Craft stuck her tongue out at the plaintiff;
Ms. Craft said she works with "animals" when the plaintiff and her co-worker entered the elevator;
Ms. Craft called the plaintiff and her co-worker "bitche";
Ms. Craft stuck out her tongue, rolled her eyes and said, "my daughter would not be a whore, like some people around here" and "I have one daughter. She will never be on welfare and was not raised on welfare. These CNAs are nasty."
Ms. Craft laughed and said, "Don’t hate me because I’m beautiful."
A co-worker overheard Ms. Craft saying she hates Level 2 CNAs and they "suck d*";
Ms. Craft bumped the plaintiff with a supply cart; and
When the plaintiff wore white pants, Ms. Craft would look at the plaintiff, laugh, and say to her friend, "we would look good in those white pants because our butts are big and we don’t have flat asses."
In addition, a photograph of the plaintiff was defaced, but it is not clear who did that.
While they clearly reflect animosity, none of these statements or actions, with the possible exception of the "welfare" comment, refer to race or color. Furthermore, Ms. Craft, like the plaintiff, is African American, albeit darker skinned than the plaintiff. (Pl.’s Dep. 162-64.) By contrast, in Schwapp v. Avon, 118 F.3d 106 (2d Cir. 1997), the Second Circuit reversed the grant of a defense motion for summary judgment in a hostile workplace claim where the plaintiff, the only African-American police officer in town, was subjected to repeated race-based comments, including numerous uses of the n-word. The plaintiff here has not raised a genuine issue of material fact that any hostility was based on race or color.
B. Hostile Work Environment
If they were based on race or color, the statements and actions described above could be enough to raise a genuine issue of material fact that Ms. Craft had created a hostile workplace under the standards articulated above. See Feliciano v. Autozone, Inc., supra, 316 Conn. 80-89, 111 A.3d at 463-68 (reversing grant of summary judgment); Patino v. Birken Mfg. Co., supra, 304 Conn. 699-704, 41 A.3d at 1027-30 (refusing to set aside jury verdict in favor of plaintiff).
The plaintiff also alleges in her affidavit that when she complained to her supervisors, "no remedial action was taken and instead I was warned to stop raising issues concerning the conduct of the coworker against me. The supervisor who was not African-American or Black, instead of remedying the conduct of the co-worker, informed me not to continue to complain about the conduct of the coworker." (Pl.’s Ex. A. (No. 128.00)). As to the defacement of the photograph, she states in her affidavit that the defendant failed to investigate or remedy the matter. Id. These statements in the plaintiff’s affidavit could be enough to raise a genuine issue of material fact as to whether the hostile workplace could be imputed to the defendant. Kemp v. CSX Transportation, Inc., 993 F.Supp.2d 197, 212-13 (N.D.N.Y. 2014). However, as set forth above, the conduct here was not demonstrably based on race or color, and therefore, they are not actionable under Title VII.
Alteration of the Conditions of Employment
The defendant argues that Ms. Craft’s conduct did not tangibly affect the plaintiff’s ability to perform her job, and therefore, summary judgment should enter on her hostile workplace claim. "[I]t is fundamental to a hostile work environment claim that the terms of the plaintiff’s employment are alleged to have been altered not by any change in benefits or employment status, but rather by discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive." (Internal quotation marks omitted.) Fairbrother v. Morrison, 412 F.3d 39, 50 (2d Cir. 2005), abrogated on other grounds, Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed. 345 (2006) (reversing grant of a new trial because it was not necessary for plaintiff to prove that she was terminated or lost compensation). In Patino v. Birken Mfg. Co., supra, 304 Conn. 703-04, 41 A.3d at 1029-30, our Supreme Court rejected a defense argument that the plaintiff should not prevail on his hostile workplace claim because he did not take all of the paid vacation days available to him but stayed on the job instead. The court noted that it could not find "authority for the proposition that employees must take every opportunity offered to them to avoid their workplace in order to assert a hostile work environment claim." Id., 704, 41 A.3d at 1030. This court will not grant summary judgment on this basis. Summary judgment, however, shall enter for the defendant on the hostile workplace claim because the plaintiff here has not raised a genuine issue of material fact that any hostile conduct was based on her race or color.
CONCLUSION
For the foregoing reasons, summary judgment shall enter in favor of the defendant on all four counts of the complaint.