Opinion
CV186077098S
10-15-2019
Karen BUONOCORE v. YALE UNIVERSITY
UNPUBLISHED OPINION
Wilson, J.
FACTS
The plaintiff, Karen Buonocore, commenced this action against the defendant, Yale University, on January 8, 2018, by service of summons and a two-count complaint sounding in "harassment" and hostile work environment, respectively. The complaint alleges the following facts. The plaintiff, a woman of Native American descent, has been employed by the defendant at its School of Medicine since 1997, and is currently employed there as a billing and coding analyst. On or about May 2014, during a survey regarding the diversity in its departments, the defendant became aware of the plaintiff’s Native American ancestry, a fact which has been publicly known within the School of Medicine since that time. On or about May 24-25, 2016, the plaintiff’s manager, Jennifer Luther, sent a meeting notice to all staff, wherein the meeting was characterized as a "pow wow." Compl., Count 1, ¶7. The plaintiff complained to Jennifer Luther about the use of the term. At some point during the plaintiff’s employment, the defendant had provided the plaintiff with a flex hours work schedule of 7:00 a.m. to 3:00 p.m., due to the plaintiff’s obligations after work. In November 2016, the plaintiff’s supervisor, Ms. Dupee, took away the plaintiff’s flex hours for the stated reason that she "might want to have a meeting in the afternoon," however, no such afternoon meeting has taken place. Compl., Count 1, ¶8. On or about February 8, 2017, the plaintiff reported that her sister had passed away, and in response the plaintiff’s supervisor, Johanna Hartigan, asked whether she was a "tribal sister." Compl., Count 1, ¶9. Moreover, although Ms. Dupee typically informed staff when a relative of a staff member had died, and permitted the taking of a collection, she did not afford such treatment to the plaintiff when the plaintiff’s sister died. On March 3, 2017, the plaintiff complained to Ms. Dupee about comments being made in the workplace concerning Native Americans, to which, Ms. Dupee responded: "that was the way they talked and if the plaintiff did not like it she could quit." Compl., Count 1, ¶11.
Count one of the plaintiff’s complaint is entitled "Harassment," however, this count is comprised of two different causes of action: a race discrimination claim and a retaliation claim.
Prior to commencing this action, the plaintiff filed charges with the Connecticut Commission of Human Rights and Opportunities on April 27, 2017. On October 31, 2017, the plaintiff received a letter from the commission releasing jurisdiction over the action to the plaintiff.
The plaintiff further alleges the following in support of her claims. On or about March 9, 2017, the plaintiff filed a formal complaint of discrimination with the defendant’s equal opportunity program representative, but did not receive a response. On or about April 6, 2017, the plaintiff was removed from her office and into the basement of the building, where she was told she could have her desk either in an office with another analyst, or in the hall. The plaintiff asked to share the space with the other analyst, however, she was denied that space and placed into the hall. A different employee was moved into the office instead. For approximately two months after being moved into the hall, the plaintiff was not provided with a telephone. Although other employees had chairs next to their desks, Ms. Dupee removed the chair that was next to the plaintiff’s desk and placed it in a conference room.
The plaintiff further alleges in count one of the complaint that, in the manner described above, the defendant has retaliated against the plaintiff for opposing and complaining about its discriminatory practices. Moreover, in count two, the plaintiff alleges that, in the manner described above, the defendant has caused or permitted the plaintiff’s workplace to be permeated with discriminatory intimidation sufficiently severe or pervasive to alter the conditions of the plaintiff’s work environment. On March 7, 2019, the defendant filed a motion for summary judgment and a memorandum of law in support thereof, on the following grounds: (1) the plaintiff’s claims based on alleged conduct that occurred more than 180 days prior to the filing of the plaintiff’s complaint with the Connecticut Commission on Human Rights and Opportunities are time barred; (2) the plaintiff’s race discrimination claim fails because she cannot demonstrate that she suffered an adverse employment action or that any alleged adverse employment action occurred under circumstances giving rise to an inference of race discrimination; (3) the plaintiff cannot prevail on her retaliation claim because she did not suffer an adverse employment action and there is no causal connection for conduct that occurred prior to her complaints of discrimination; and (4) the plaintiff’s hostile work environment claim fails because the plaintiff cannot establish that her workplace is permeated with discrimination. On April 22, 2019, the plaintiff filed an objection to the defendant’s motion for summary judgment, which only addresses the defendant’s arguments on the retaliation claim. On May 23, 2019, the defendant filed a reply memorandum in response to the plaintiff’s objection. Oral argument was held on June 17, 2019.
DISCUSSION
"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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "To satisfy his [or her] 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 ... 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 ... 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).
Moreover, "[s]ummary judgment may be granted where the claim is barred by the statute of limitations Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). The burden remains "on the moving party to establish that a party did not act in a timely manner when the statute they are relying on specifically provides for tolling as an alternative method of timeliness." Id., 322. In such circumstances, "the party moving for summary judgment should not be able to prevail by showing the absence of a genuine issue of fact solely with respect to one part of the statute upon which it relies, while ignoring the statutory tolling provisions which provide an alternative means of commencing a timely action. Accordingly, defendants moving for summary judgment pursuant to [such a statute] should have the initial burden of demonstrating the nonexistence of a genuine issue of material fact with respect to both the [statutory] limitation period and the statute’s compulsory tolling provision." (Emphasis omitted.) Id., 323.
I.
SUMMARY JUDGMENT AS TO INDIVIDUAL CLAIMS WITHIN A SINGLE COUNT
Before addressing the parties’ arguments, the court notes that count one of the plaintiff’s complaint is entitled "Harassment," and alleges a race discrimination claim in violation of General Statutes § 46a-60(b)(1) as well as a retaliation claim in violation of General Statutes § 46a-60(b)(4). Because both of the plaintiff’s claims are contained in a single count, the court must first address the propriety of rendering summary judgment on individual claims within the same count.
Count one of the plaintiff’s complaint states that "[t]his is an action pursuant to the Connecticut Fair Employment Practices Act, [General Statutes] § § 46a-60(a)(1) and 46a-60(a)(4)." Complaint, Count One, ¶7. This appears to be a typographical error, and therefore, the court will assume that the plaintiff meant to state causes of action of action pursuant to General Statutes § § 46a-60(b)(1) and 46a-60(b)(4).
"In Connecticut, [t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." (Internal quotation marks omitted.) Glidepath, LLC v. Lawrence Brunoli, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6014624-S (December 21, 2012, Peck, J.). Despite the majority view on the issue, Practice Book § 17-51 provides, in the context of summary judgment, that "[i]f it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim." "[S]ome courts have found that the language of Practice Book § 17-51 authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." (Internal quotation marks omitted.) Glidepath, LLC v. Lawrence Brunoli, Inc., supra, Superior Court, Docket No. CV-10-6014624-S.
When confronted with circumstances similar to the present case this court, in Ferrigno v. Hamden Volunteer Fire Dept., Superior Court, judicial district of New Haven, Docket No. CV-10-6011263-S (May 2, 2012, Wilson, J.), followed the minority view, which allows for summary judgment on individual claims contained within the same count of a complaint, provided that the individual claims are distinct and severable. In so doing, the court adopted the reasoning of another Superior Court decision, and interpreted § 17-51 as "simply recogniz[ing] that some claims are really combinations of many claims, each of which, if pleaded separately, could afford the pleader a separate basis for relief. When such a combined claim is challenged by a motion for summary judgment, this rule merely permits the court to separate the claims from one another so that judgment can enter as to those as to which there is no genuine issue of material fact and only the remainder, which are still in dispute, can go to trial." (Internal quotation marks omitted.) Id., quoting Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford, Docket No. CV-00-0822116-S (August 1, 2003, Sheldon, J.) (35 Conn.L.Rptr. 347); see also Shelton Yacht & Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0075380-S (February 2, 2007, Stevens, J.) (acknowledging split in decisions and holding summary judgment appropriate in circumstances where subject cause of action severable from remaining claims in same count); Pelletier v. Sordoni/Skanska Construction Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-95-0155184-S (May 5, 2005, Alander, J.) (Conn.L.Rptr. 302), rev’d on other grounds, 286 Conn. 563, 945 A.2d 388 (2008) (holding [Practice Book] § 17-51 as authorizing entry of judgment on single severable claim within larger count). This court’s decision in Ferrigno, which is supported by the minority line of cases, is applicable here.
Count one of the complaint sounds in both race discrimination and retaliation. While both claims are forms of discrimination, and the allegations contained elsewhere in the complaint may serve to bolster either claim, it does not follow that these two claims cannot be split into separate causes of action and disposed of separately. This is not a situation necessitating the denial of the defendant’s motion because "the count contains multiple causes of action and all of them are not addressed as part of the judgment" or "an adjudication does not dispose of an entire cause of action." Shelton Yacht & Cabana Club, Inc. v. Voccola, supra, Superior Court, Docket No. CV-01-0075380-S; see also First American Title Ins. Co. v. 273 Water St., LLC, Superior Court, judicial district of Hartford, Docket No. CV-08-4041234-S (January 5, 2012, Peck, J.) (denying defendants’ motion seeking "partial summary judgment on a single issue that is only part of, and does not dispose of, a cause of action" as improper). Here, both claims within count one of the plaintiff’s complaint are distinct, and require proof of different elements to survive a motion for summary judgment. If a single count contains two or more distinct claims, and one of the claims is ripe for summary judgment, substance should prevail over form, and the court is permitted to dispose of the individual claim as if it was pleaded in a different count in the interests of judicial efficiency which results in cleaning up the issues prior to trial. Thus, it is appropriate to analyze the merits of summary judgment as to each of the plaintiff’s claims separately, despite the fact that both claims are contained within the same count.
II.
STATUTE OF LIMITATIONS PURSUANT TO GENERAL STATUTES § 46a-82(f)
The defendant first argues that the court should grant summary judgment on any claims of alleged discriminatory conduct that occurred prior to October 29, 2016, because they are time barred pursuant to the statute of limitations set forth in General Statutes § 46a-82(f). Specifically, the defendant argues that the alleged incident that occurred on or about May 24-25, 2016, wherein one of the plaintiff’s manager’s used the term "pow wow" to describe a meeting, is time barred because said incident took place more than 180 days prior to the plaintiff filing a complaint with the Commission on Human Rights and Opportunities (CHRO). In her objection to the defendant’s motion for summary judgment, the plaintiff fails to address this issue.
Section 46a-82 provides in relevant part that "(a) Any person claiming to be aggrieved by an alleged discriminatory practice ... may ... file with the commission a complaint in writing under oath ... (f) Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination ..." The 180-day filing requirement is mandatory and must be complied with; thus, "a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent, or some other compelling equitable tolling doctrine applies." Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001).
Turning to the complaint, the plaintiff alleges that "[o]n or about May 24-25, 2016, a manager ... called a meeting that she characterized as a ‘pow wow.’" Complaint, Count 1, ¶7. The evidence submitted in this matter indicates that a complaint was filed with the CHRO on April 27, 2017; see Dubin Aff., Ex. A (copy of plaintiff’s CHRO complaint); one hundred and eighty days prior to which is October 29, 2016. Accordingly, pursuant to § 46a-82(f), the court has subject matter jurisdiction over the discrimination claims alleged in the plaintiff’s complaint that occurred from October 29, 2016, and thereafter. Conversely, the court does not have subject matter jurisdiction over claims prior to October 29, 2016, as they are time barred, that is, unless the plaintiff can establish the existence of a genuine issue of material fact as to whether the continuing violation doctrine applies. See Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016) ("[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute" [internal quotation marks omitted]). In her memorandum of law in opposition, however, the plaintiff has not briefed the present issue, let alone assert that the continuing violation doctrine applies; and therefore, because the alleged incident that occurred on or about May 24-25, 2016, wherein one of the plaintiff’s manager’s used the term "pow wow" to describe a meeting, took place prior to October 29, 2016, it is time barred pursuant to the statute of limitations set forth in § 46a-82(f).
Importantly, however, our Appellate Court has held that "[t]he existence of past acts and the employee’s prior knowledge of their occurrence ... does not bar employees from filing charges about related discrete acts so long as the related discrete acts are independently discriminatory and charges addressing those acts are themselves timely filed." (Internal quotation marks omitted.) United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 229-30, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002). Moreover, the court held that "a statute of limitations that may bar a claim that is based on prior discriminatory acts does not bar an employee from using the prior acts as background evidence in support of a timely claim." (Internal quotation marks omitted.) Id., 230. Accordingly, the plaintiff may use the "pow wow" incident as background evidence in support of her remaining claims of allegedly discriminatory conduct that have occurred since October 29, 2016.
III.
THE PLAINTIFF’S RACE DISCRIMINATION CLAIM
The defendant next moves for summary judgment on the ground that the plaintiff cannot prove that the defendant discriminated against her on the basis of her race. Specifically, the defendant asserts that the plaintiff’s race discrimination claim fails because she cannot establish the third and fourth prongs of a prima facie case of race discrimination, in that she cannot demonstrate that she suffered an adverse employment action, or that any alleged adverse employment action occurred under circumstances giving rise to an inference of race discrimination. General Statutes § 46a-60(b)(1) provides in relevant part: "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color ..."
The legal standards governing discrimination claims involving adverse employment actions are well established. "[O]ur Supreme Court has held that we review federal precedent ... for guidance in enforcing our own antidiscrimination statutes." (Internal quotation marks omitted.) Phadnis v. Great Expression Dental Centers of Connecticut, P.C., 170 Conn.App. 79, 86, 153 A.3d 687 (2017); see also Tomick v. United Parcel Service, Inc., 157 Conn.App. 312, 325, 115 A.3d 1143 (2015), aff’d, 324 Conn. 470, 153 A.3d 615 (2016) ("[I]t is well settled that [w]e look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both" [internal quotation marks omitted]). Although the plaintiff has alleged violations of the Connecticut Fair Employment Practices Act (CFEPA), and not Title VII, her discrimination claims are analyzed under the McDonnell Douglas burden-shifting framework used for Title VII claims according to both federal and state law. See Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 87; see also Buster v. Wallingford, 557 F.Supp.2d 294, 298-99 (D.Conn. 2008).
First, under the McDonnell Douglas framework, the plaintiff carries the initial burden of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"). Second, if the plaintiff successfully establishes a prima facie discrimination case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corp. v. Green, supra, 802-03. Third, if the defendant meets this burden, "the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, supra, 253; see also McDonnell Douglas Corp. v. Green, supra, 804.
Following the McDonnell Douglas framework, the court first seeks to determine whether the plaintiff has met her burden of establishing a prima facie case of discrimination on the basis of her race. "The burden of establishing a prima facie case [of discrimination] is a burden of production, not a burden of proof, and therefore involves no credibility assessment by the fact finder ... 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." Perez-Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012).
"To establish a prima facie case of ... discrimination, [the plaintiff] must prove: (1) membership in a protected class; (2) qualification for her position; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination on the basis of her membership in the protected class." Buster v. Wallingford, supra, 557 F.Supp.2d 299; see also, McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802 (which originally established four-factor test in context of racial discrimination); Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 11 A.3d 453 (2015) (whereby Connecticut Supreme Court applied federal standard for establishing prima facie case of discrimination).
For purposes of its argument, the defendant does not contest that the plaintiff has met her burden on the first two elements of making a prima facie case. Instead, the defendant argues that the plaintiff has failed to provide evidence to satisfy the third and fourth prong of her prima facie case, which requires a showing that the plaintiff suffered an adverse employment action, and that the alleged adverse employment action occurred under circumstances giving rise to an inference of discrimination.
A. Adverse Employment Actions
"For the third element, a plaintiff must have endure[d] a materially adverse change in the terms and conditions of employment ..." (Internal quotation marks omitted.) Buster v. Wallingford, supra, 557 F.Supp.2d 299. "To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities ... [A]n adverse employment action [has been defined] as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." (Citation omitted; internal quotation marks omitted.) Amato v. Hearst Corp., 149 Conn.App. 774, 781, 89 A.3d 977 (2014).
In the present case, the defendant argues that the following alleged actions are not adverse because the plaintiff suffered no harm from them: the change in work hours; her relocation; and the delay in being provided with a telephone, an extra chair, and a name plate. The plaintiff has not contested that these are the alleged actions upon which she wishes to establish a basis of an adverse employment action.
1. Change In Work Schedule
In her complaint, the plaintiff alleges that she "had been given flex hours of 7:00 am to 3:00 p.m. by the defendant because she had obligations after work." Compl. Count 1, ¶8. The plaintiff further alleges that "[i]n November 2016, the plaintiff’s supervisor, Ms. Dupee, took away the plaintiff’s flex hours for the stated reason that she ‘might want to have a meeting in the afternoon.’ She [however] never since has conducted an afternoon meeting, but has not restored the plaintiff’s flex time." Compl., Count 1, ¶8. In her November 26, 2018 deposition, the plaintiff testified that when she was interviewed by her previous supervisor for the position in the coding and billing department, she stated that "I have to keep my flex time"; Dubin Aff., Ex. C, Buonocore Dep., 119:22-120:12; as it provided her the opportunity to pick up her grandchildren from school. See Dubin Aff., Ex. C, Buonocore Dep., 55:14-17. In addition, the plaintiff sent an e-mail to an individual in the human resources department regarding the new position, wherein she stated that her hours, "as discussed," were 7:00 a.m. to 3:00 p.m. See Dubin Aff., Ex. D (e-mail from plaintiff to human resources).
The plaintiff further testified to the following in her January 10, 2019 deposition. The supervisor who interviewed the plaintiff resigned in September 2016, and was replaced by Ms. Dupee. See Dubin Aff., Ex. B, Buonocore Dep., 218:8-21; 242:1-6. Ms. Dupee held a department meeting on September 21, 2016, during which she announced that as the new head of coding and billing she wanted core business hours for all manager and professional employees, which included the plaintiff, to be from 8:00 a.m. to 4:00 p.m. See Dubin Aff., Ex. B, Buonocore Dep., 225:13-20, 228:7-11. Although the plaintiff did not attend the meeting, due to illness, there was an e-mail exchange between the plaintiff and Ms. Dupee regarding the effective date for new core business hours. See Dubin Aff., Ex. B, Buonocore Dep., 218-19; see also Dubin Aff., Ex. E & F (e-mail between the plaintiff and Ms. Dupee). The plaintiff was granted an accommodation, she would be given until November 1, 2016, to switch to those mandated core business hours. See Dubin Aff., Ex. B, Buonocore Dep., 225:21-226:2. The plaintiff worked from 8:00 a.m. to 4:00 p.m. for some time and was then allowed to work her present hours of 7:00 a.m. to 3:30 p.m. See Dubin Aff., Ex. B, Buonocore Dep., 228:15-22, 229:16-23; see also Dupee Aff., Ex. F. Lastly, the plaintiff testified that she was able to secure other "daycare people" for her grandchildren. See Dubin Aff., Ex. B, Buonocore Dep., 249:25-250:6.
In citing Pacheco v. Presbyterian Hospital, 593 F.Supp.2d 599 (S.D.N.Y. 2009), the defendant argues that a thirty-minute change in the plaintiff’s work schedule is not an adverse employment action. In Pacheco, the district court concluded that there was no adverse employment action when the plaintiff alleged that his hours were changed from 8:00 a.m. to 4:00 p.m., to then 8:30 a.m. to 4:30 p.m., and then changed a week later to 9:30 a.m. to 5:30 p.m. The court noted that the plaintiff’s job description included flexible hours, that the work place was open and staffed seven days a week, that the plaintiff was never assigned to work weekends, and concluded that the slight change in the plaintiff’s work schedule, by itself, did not amount to an adverse employment action. See also Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th Cir. 2001) (holding that an employer’s decision to move an employee from a first shift to a second shift does not, without more, rise to the level of an adverse employment action in case of employment discrimination); Arroyo-Horne v. New York, United States District Court, Docket No. 16:CV03857 (MKB) (E.D.N.Y. September 5, 2018) (no adverse employment action when plaintiff alleged that because of schedule change, she had to arrange for her mother to be cared for and had to venture into "high-crime" neighborhood in dark, early morning hours, because plaintiff had not alleged that schedule change had impact on conditions of employment).
Thus, this court concludes that the evidence presented demonstrates that the change in the plaintiff’s work hours may have been inconvenient for the plaintiff, in that she was no longer able to pick up her grandchildren from school; nevertheless, the evidence also demonstrates that the plaintiff was able to obtain alternative care and that the plaintiff did not sustain any lost salary or diminution in salary. See Dubin Aff., Ex. B, Buonocore Dep., 214:17-20. Moreover, no evidence has been submitted which would suggest that the change in the plaintiff’s work hours altered the plaintiff’s job responsibilities, or that it caused a significant change in the status of the plaintiff’s employment. Accordingly, the change in work hours did not bring about a materially adverse change in the terms and conditions of the plaintiff’s employment such that it rises to the level of an adverse employment action.
2. Office Relocation and Delay in Being Provided Phone, Extra Chair, and Nameplate
In her complaint, the plaintiff alleges the following with regard to her office being relocated and with regard to the delay in receiving a phone and extra chair. On or about April 6, 2017, the plaintiff was removed from her office and placed into the basement; the plaintiff elected to move into the shared space, yet was told to go in the hallway; for approximately two months after being moved into the hall she was not provided with a telephone; and, although other employees had chairs next to their desks, Ms. Dupee removed the chair that was next to the plaintiff’s desk and placed it in a conference room. Compl., Count 1, ¶¶13-15.
Although the delay in receiving the nameplate was not alleged in the complaint, the court will consider the claim, as the defendant has addressed it in its motion for summary judgment, which shows that the defendant had notice of said claim.
In her January 10, 2019 deposition, the plaintiff testified to the following. She was told to move to the basement while her entire team was still upstairs. See Dubin Aff., Ex. B, Buonocore Dep., 315:7-14, 318:7-319:2. Two spots were offered, one being a shared office with another employee and one out in the hall where there were no people. Dubin Aff., Ex. B, Buonocore Dep., 315:18-21. She elected to move into the shared space, yet was told to go into the hallway. Dubin Aff., Ex. B, Buonocore Dep., 320:3-19. She was the only person put where no other people were. Dubin Aff., Ex. B, Buonocore Dep., 340:10-11. Despite stating in the complaint that she was without a phone for two months, she thinks it was longer than that, approximately five months. Dubin Aff., Ex. B, Buonocore Dep., 367:24-368:6. The plaintiff further testified that she "was the only person for five months with no [nameplate], no [extra] chair and facing a wall." See Dubin Aff, Ex. B, Buonocore Dep., 340:19-20; see also Pl.’s Obj. Mot. Summ. J., Ex. 6 (pictures of nameplate both before and after plaintiff’s name was added).
Although the plaintiff has not stated that an adverse employment action may also be based upon the allegation that she received no response to the formal complaint of discrimination she filed with the defendant’s equal opportunity program representative, Mr. Thomas; Compl., Count 1, ¶12; the court notes that at her deposition, the plaintiff testified that Mr. Thomas did respond to her complaint, that she met with him twice, that he stated he spoke with Ms. Dupee, and that despite his invitation to meet again, the plaintiff refused. See Dubin Aff., Ex. B, Buonocore Dep., 352:17-25; 356:16; 361:22; 362:14-19.
After reviewing the evidence submitted in this matter, the area where the plaintiff was relocated was not just a hallway in a basement, but rather, a designated work space. Indeed, when asked about the intended use of the area, the plaintiff testified that the area was a workspace. See Dubin Aff., Ex. B, Buonocore Dep., 333:17-25. Photographs of the area support such a conclusion, as numerous pieces of office furniture and equipment, such as desks, chairs, computers, monitors, and cabinets, are found throughout. See Dubin Aff., Ex. G and Ex. H. Moreover, the defendant has provided the affidavit of Joyce Dupee, the plaintiff’s former supervisor, wherein she attests that: (1) the area where the plaintiff was relocated was a new office space that had been recently renovated; see Dupee Aff., ¶38; and (2) that said area is not a "basement," as it is "above ground level" and is "the first floor of the building." See Dupee Aff., ¶23. Although perhaps inconvenient, the relocation of the plaintiff does not rise to the level of an adverse employment action. See McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994) (finding adverse employment action where plaintiff was transferred to position with fewer responsibilities, more menial tasks, and reduced opportunity for raises); Cunningham v. N.Y. State Department of Labor, United States District Court, Docket No. 1:05CV1127 (DNH) (N.D.N.Y. April 30, 2010) ("[a]lthough perhaps inconvenient, the relocation of plaintiff’s office does not rise to level of an adverse employment action. Even if the decision to move plaintiff to the first floor was the product of a retaliatory motive, plaintiff’s complaints about his new office fall squarely within the class of trivial harms ... Title VII was not intended to protect against"), aff’d, 429 Fed.Appx. 17 (2nd Cir. 2011); Klein v. New York University, 786 F.Supp.2d 830, 847 (S.D.N.Y. 2011) ("[u]ndesired office assignments are not adverse employment actions").
Likewise, the plaintiff’s delayed receipt of a phone, extra chair, and nameplate do not rise to the level of an adverse employment action, as they constitute minor annoyances. See Wilson v. Emhart Teknologies LLC, 566 F.Supp.2d 120, 124-25 (D.Conn. 2008) (plaintiff’s complaints of, among other things, relocation of office, installation of half-door, and her changed human-resources responsibilities constitute nothing more than "petty slights" or "annoyances," and no reasonable jury could find that they materially affected conditions of her employment); Durkin v. Verizon New York, Inc., United States District Court, Docket No. 05:CV957 (SCR) (S.D.N.Y. March 1, 2010) (upon plaintiff’s transfer to new office, "[a]ny delay in [d]efendant providing [p]laintiff with a desk, a phone, a computer, and training does not rise to the level of materially adverse required to constitute an adverse employment action"). Moreover, the record is devoid of any evidence that the absence of these items negatively affected the plaintiff’s ability to carry out her job responsibilities or materially affected conditions of her employment.
Accordingly, the evidence submitted in this matter establishes an absence of a genuine issue of material fact as to whether the aforementioned alleged actions were materially adverse for purpose of a race discrimination claim Summary judgment is therefore granted on the plaintiff’s claim of race discrimination.
B. Inference of Discrimination
Assuming arguendo that the plaintiff had suffered an adverse employment action, the defendant also argues that the plaintiff has failed to establish the fourth prong of the McDonnell Douglas test. In regard to the fourth element of a prima facie case of discrimination, our Appellate Court recently noted that a trial court addressing a motion for summary judgment must analyze "whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Martinez v. Premier Maintenance, Inc., 185 Conn.App. 425, 435, 197 A.3d 919 (2018).
Circumstances contributing to a permissible inference of discriminatory intent under the fourth McDonnell Douglas-Burdine factor include (1) the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff’s qualifications to fill that position; (2) the employer’s criticism of the plaintiff’s performance in ethnically degrading terms or invidious comments about others in the employee’s protected group; (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." Id., 439-40. "In the absence of any affirmative evidence of a causal connection between [the defendant’s agent’s] discriminatory animus toward the plaintiff and the defendant’s termination of her employment, no inference of the defendant’s discriminatory intent can be made." Id., 449-50.
"Because employers rarely leave a paper trail- or ‘smoking gun’ attesting to a discriminatory intent ... disparate treatment plaintiffs often must build their cases from pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer. Such determinations are, generally speaking, most competently and appropriately made by the trier of fact. So long as the plaintiff can present solid circumstantial evidence supporting his case ... he should have the opportunity to prove his case at trial." (Citations omitted; internal quotation marks omitted.) Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990); see also Phadnis v. Great Expression Dental Centers of Connecticut, P.C., supra, 170 Conn.App. 88 ("in addition to proffering direct evidence of discrimination with respect to the fourth prong [of the McDonnell test], a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was" [citations omitted; internal quotation marks omitted]).
In the present case, the plaintiff has not presented sufficient evidence, either direct or circumstantial, that allows the court to draw an inference of a casual connection between the defendant’s alleged discriminatory treatment toward the plaintiff on the basis of her race, and the employment actions that adversely affected her. Indeed, as the evidence demonstrates, for purposes of the work schedule change, the plaintiff was treated the same as everyone else. See Dubin Aff., Ex. B, Buonocore Dep., 238:13-16. Moreover, the plaintiff was actually granted additional time to switch to the mandated core business hours, and now, is permitted to leave at 3:30 p.m. instead of 4:00 p.m. See Dubin Aff., Ex. B, Buonocore Dep., 225:21-226:2; 228:18-19. For purposes of her relocation, in her January 10, 2019 deposition, the plaintiff testified that she was not the only person moved to the basement, just "the only one [moved] that day." See Dubin Aff., Ex. B, Buonocore Dep., 316:11. Indeed, the plaintiff indicated that other analysts in the coding and billing department were moved downstairs after her. See Dubin Aff., Ex. B, Buonocore Dep., 316:1-20; 318:5-6; 318:22-319:2; 343:22-344:2. For purposes of the internal complaint, the evidence demonstrates that Mr. Thomas did respond; he met with the plaintiff twice, after which the plaintiff declined to meet with him further. See Dubin Aff., Ex. B, Buonocore Dep., 352:17-25; 356:16; 361:22; 362:14-19. For purposes of the delay in receiving a phone, extra chair, and nameplate, the evidence provided in support of the defendant’s motion for summary judgment, supports the conclusion that any delay had nothing to do with the plaintiff’s race: the reason for the phone delay was that it takes four to six weeks to get a phone for a new office; the plaintiff’s supervisor removed the extra chair from the plaintiff’s office because she believed it belonged in a conference room and ordered a new chair thereafter; and the delay with the nameplate was due to staff moving into the new office space. See Dupee Aff. ¶¶23, 24-26, 33-34, 36-37, 38. Lastly, the evidence also demonstrates that the plaintiff is still employed for the defendant and that she is "satisfied" with her present working conditions. Indeed, the plaintiff indicated that even though she still works in the "basement," she is now on a new team, has a new manager, shares an office with another person, and has not experienced any alleged discrimination since moving to the new team. See Dubin Aff., Ex. B, Buonocore Dep.; 318:7-319:2; 343:22-344:2; 363:21-364:19.
Accordingly, the plaintiff has failed to demonstrate that a casual connection can be drawn between her allegations of discriminatory treatment on the basis of race, and the employment actions that adversely affected her. Because the plaintiff cannot make such a showing, summary judgment is proper. See Feliciano v. Autozone, Inc., sup ra, 316 Conn. 76. Thus, for the foregoing reasons, summary judgment is granted in favor of the defendant on the ground that the plaintiff has not met her burden of establishing a prima facie case of race discrimination.
IV.
THE PLAINTIFF’S RETALIATION CLAIM
The defendant next argues that the plaintiff cannot make a claim for retaliation under § 46a-60(b)(4) on the grounds that the plaintiff did not suffer an adverse employment action and lacks the requisite causal connection. The plaintiff responds that the close proximity in time between plaintiff’s initiation of her internal complaint and the subsequent changes to her work location, work resources, and the change in work schedule are sufficient to establish an adverse employment action as well as the casual connection element of the claim.
In her opposition to the defendant’s motion for summary judgment, the plaintiff attempts to allege, for the first time, that Ms. Dupee, in allowing the plaintiff to work from 7:00 a.m. to 3:30 p.m., essentially required the plaintiff to work thirty minutes longer every day than what is required by the defendant employer. See. Pl.’s Opp. To Def.’s Mot. For Summary Judgment, pp. 12, 10. This argument is without merit. Such an allegation is not included in the complaint, moreover, the plaintiff never mentioned, at either of her depositions, that she was required to work longer hours than what was required, or more hours than other employees.
A claim for retaliation is governed by General Statutes § 46a-60(b)(4), which provides in relevant part: "It shall be discriminatory practice in violation of this section ... [for 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 ..." Id. Connecticut has adopted the burden shifting analysis of McDonnell Douglas for examining retaliation claims, whereby the plaintiff must first show the elements of a prima facie case of retaliation, then the defendants have an opportunity to show a legitimate, nonretaliatory reason for the adverse action, which shifts the burden of proof back to the plaintiff to show that the defendants’ reason is a mere pretext to retaliation. Beizer v. Department of Labor, 56 Conn.App. 347, 355-56, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).
"To establish a prima facie case of retaliation, 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). At issue here are elements three and four of the plaintiff’s prima facie case, those of adverse employment action and causal connection.
A. Adverse Employment Actions
"For purposes of a retaliation claim, an adverse action need not be an action that affects the terms and conditions of employment, such as a hiring, firing, change in benefits, reassignment or reduction in pay ... Rather, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ... This standard speak[s] of material adversity because ... it is important to separate significant from trivial harms ... Nevertheless, a harm that may be a trivial one, may be significant for another. Put differently, [c]ontext matters ... For example, while a schedule change in an employee’s work schedule may make little difference to many workers, it may matter enormously to a mother with school-age children ... And, although a supervisor’s refusal to invite an employee to lunch is normally trivial, excluding an employee from a weekly training lunch that contributes significantly to [that] employee’s professional advancement may amount to adverse employment action if it deter[s] a reasonable employee from complaining about discrimination ... Further, in determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be actionable." (Citations omitted; emphasis in original; internal quotation marks omitted.) White v. Middletown, 45 F.Supp.3d 195, 217-18 (D.Conn. 2014). "Adverse actions for purposes of the antiretaliation provisions include denial of promotion ... threats, reprimands, negative evaluations, harassment, or other adverse treatment." (Internal quotation marks omitted.) Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 771, 886 A.2d 1248 (2005).
Turning to the complaint, the plaintiff alleges that on March 3, 2017, she complained to her supervisor, Ms. Dupee, about comments being made in the workplace concerning Native Americans. Compl., Count 1, ¶11. Additionally, the evidence submitted in this matter demonstrates that on March 9, 2017, the plaintiff filed a formal complaint of discrimination with the defendant’s equal opportunity program representative, Mr. Thomas. See Dubin Aff., Ex. A. It is important to note that, only alleged conduct that occurred after the plaintiff’s internal complaints in March of 2017, can form the basis of the plaintiff’s retaliation claim. These allegations include the following: on or about April 6, 2017, the plaintiff was removed from her office and placed into the basement; the plaintiff elected to move into the shared space, yet was told to go into the hallway; for approximately two months after being moved into the hall she was not provided with a telephone; although other employees had chairs next to their desks, Ms. Dupee removed the chair that was next to her desk and placed it in a conference room. Compl., Count 1, ¶¶12-15. As fully discussed in Section III(A)(2) of this opinion, none of this conduct constitutes an adverse employment action; therefore, summary judgment is granted on the plaintiff’s claim of race discrimination.
B. Inference of Discrimination
The defendant argues that in the event the court finds that the plaintiff suffered an adverse employment action, the plaintiff’s prima facie case still fails because she was unable to demonstrate with sufficient evidence any causal connection.
"The causation element can be proven (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant ... Alternatively, causation may be satisfied by showing a sufficiently close temporal connection between the protected activity and the adverse action ..." (Internal quotation marks omitted.) Jones v. Dept. of Children & Families, 172 Conn.App. 14, 35, 158 A.3d 356 (2017). "Courts have not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action ... Thus, a court may exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the cases ... Where there are longer gaps in time between protected activity and adverse employment action, the inference of causation may be inferred from the fact that the employer was waiting for the opportune time to retaliate." (Citations omitted; internal quotation marks omitted.) White v. Middletown, supra, 45 F.Supp.3d 218-19.
In the present case, it is undisputed that the plaintiff: (1) spoke with her supervisor, Ms. Dupee, on March 3, 2017, regarding comments made in the workplace concerning Native Americans and (2) filed an internal complaint of race discrimination on March 9, 2017. Compl., Count 1, ¶¶11-12. Moreover, the evidence in this matter shows that less than a month after the filing of the internal complaint, on April 6, 2017, the plaintiff was relocated to a different floor and placed into a workspace where no other people were. See Dubin Aff., Ex. B, Buonocore Dep., 315:7-21. The evidence further shows that the plaintiff was delayed in receiving a phone for at least two months, and that the plaintiff was delayed in receiving an extra chair and nameplate for approximately five months. See Dubin Aff., Ex. A; see also Dubin Aff., Ex. B, Buonocore Dep., 340:19-20. Accordingly, the close temporal proximity between the plaintiff’s protected activity and her relocation and delayed receipt of office supplies could be considered indirect evidence of a retaliatory action. See Zboray v. Wal-Mart Stores East, L.P., 650 F.Supp.2d 174, 182 (D.Conn. 2009) ("[w]ithin the time period of one year, there is no firm rule. In some cases, time periods ranging from twelve days to eight months have been found to show the necessary temporal proximity ... In other cases, time periods ranging from two-and-a-half months to eight months have been deemed insufficient to show the necessary temporal proximity"). The court notes, however, the plaintiff’s prima facie case of retaliation still fails because she has failed to demonstrate that she suffered an adverse employment action.
V.
THE PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIM
The final consideration before the court is the motion for summary judgment as to count two of the plaintiff’s complaint, which alleges a claim of hostile work environment. The court begins by setting forth the applicable legal framework. General Statutes § 46a-60(b)(1) provides in relevant part: "It shall be a discriminatory practice ... [for an employer, by the employer or the employer’s agent ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race ..." In order for the plaintiff to establish a claim of hostile work environment under § 46a-60(b)(1), "the workplace [must be] 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 ... [I]n order to be actionable ... [the working] environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the [plaintiff] in fact did perceive to be so ... [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances ..." (Citations omitted; internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 166-67, 717 A.2d 1254 (1998). "[T]here must be more than a few isolated incidents of racial enmity ... meaning that [i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments ... Thus, whether racial slurs constitute a hostile work environment typically depends on the quantity, frequency, and severity of those slurs ... considered cumulatively in order to obtain a realistic view of the work environment ..." (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., supra, 316 Conn. 85.
The defendant argues that the plaintiff’s hostile work environment claim fails because she was not subject to severe or pervasive discriminatory intimidation, ridicule, or insult, and "[e]ven assuming that the three comments made by three different individuals over the span of nearly three years were racially motivated, they are discrete and isolated statements which are insufficient to establish a claim for hostile work environment." See Def.’s Mem. Supp. Mot. For Summary Judgment, p. 25. Moreover, the defendant argues that to the extent the plaintiff alleges that the change in her work schedule, the relocation of her office, and the delay in obtaining a phone, extra chair, and name plate for her office created a hostile work environment, those claims fail as well. The plaintiff has not addressed this argument in her opposition to the defendant’s motion for summary judgment.
The plaintiff alleges that she complained to her supervisor about comments being made in the workplace concerning Native Americans, to which the supervisor responded "that was the way they talked and if the plaintiff did not like it [she] could quit." Compl., Count 1, ¶11. At her deposition, the plaintiff testified that the comments she complained of consisted of three separate remarks: (1) a comment made in May 2014 by Susan Dimeo, the plaintiff’s supervisor prior to the plaintiff being transferred to the coding and billing department; (2) a comment made in May 2016, whereby one of the plaintiff’s manager’s used the term "pow wow" to describe a meeting; and (3) a comment made in February 2017, whereby one of the plaintiff’s supervisors asked the plaintiff whether the plaintiff’s sister who had passed away was a "tribal sister." See Dubin Aff., Ex. C, Buonocore Dep., 307:14-17.
Regarding the May 2014 comment, the plaintiff testified that Susan Dimeo approached her and stated (a) she found out that the plaintiff was a minority from a survey that the plaintiff completed for the human resources department, and (b) that the plaintiff and one other employee were the only two minorities in the department. See Dubin Aff., Ex. C, Buonocore Dep., 15:7-23. Regarding the May 2016 "pow wow" comment, the plaintiff testified that even though the plaintiff told the manager that her use of the term was offensive, said manager "proceeded to do the war cry with her fingers over her mouth going woo-woo-woo." See Dubin Aff., Ex. B, Buonocore Dep., 133:3-13. Lastly, regarding the February 2017 "tribal sister" comment, a text exchange was sent from one of the plaintiff’s supervisors wherein she stated "I’m so sorry. Is this a tribal sister or your sister? Again I’m so sorry. Is there anything I can do?" which the plaintiff replied by stating: "This is my real blood sister." Dubin Aff., Ex. J, p. 2.
Additionally, the plaintiff alleges the following in support of her hostile work environment claim. Her hours were changed, she was removed from her office and into the basement where she was told she could have her desk either in an office with another analyst, or in the hall. While plaintiff asked to share the space with the other analyst, she was denied that space and placed into the hall. A different employee was moved into the office instead. Moreover, for approximately two months after being moved into the hall, the plaintiff was not provided with a telephone, her supervisor removed the chair that was next to the plaintiff’s desk and placed it in a conference room, and the defendant was delayed in providing the plaintiff a nameplate.
"Although not bound by it, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes." (Internal quotation marks omitted.) Thomson v. Dept. of Social Services, 176 Conn.App. 122, 131, 169 A.3d 256, cert. denied, 327 Conn. 962, 172 A.3d 800 (2017). The United States Supreme Court has held that the "mere utterance of an ... epithet which engenders offensive feelings in an employee ... does not sufficiently affect the conditions of employment to implicate Title VII [of the Civil Rights Act of 1964]." (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).
In the present case, the plaintiff has alleged, at most, three instances of racial remarks: the May 2016 comment whereby the plaintiff’s manager used the term "pow wow" to describe a meeting; a comment made in February 2017, whereby one of the plaintiff’s supervisors asked the plaintiff whether the plaintiff’s sister who had passed away was a "tribal sister"; and the March 2017 response by Ms. Dupee telling the plaintiff "that was the way they talked and that if the plaintiff did not like it she should quit." See Pl.’s Compl, ¶¶7, 9, 11. Furthermore, the plaintiff has provided evidence of an additional racial remark made in May 2014, whereby a co-worker notified her that she and one other employee were the only two minorities in the department. See Dubin Aff., Ex. C, Buonocore Dep., 15:7-23. Other courts, however, have held that as many as six or seven instances of inappropriate conduct over a three-year span do not meet the high standard of severe and pervasive.
For example, in Stembridge v. New York, 88 F.Supp.2d 276, 286 (S.D.N.Y. 2000), the plaintiff pointed to seven incidents in support of his hostile work environment claim: (1) a coworker told the plaintiff that he was different than other minorities in the office; (2) the same coworker referred to black youths as "animals" in a conversation about killings at a concert; (3) the same co-worker repeatedly referred to Mayor David Dinkins as a "washroom attendant"; (4) a different co-worker call the plaintiff an "uppity [n-word]"; (5) an anonymous note was left on his desk saying "dump the dink"; (6) a black doll was hung on a doorframe near plaintiff’s workstation; and (7) the plaintiff’s supervisor called him "boy." Id. The court noted that the first three comments, in addition to the hanging black doll and the anonymous note, were not anything more than offensive comments, whereas the "uppity [n-word]" and "boy" statements legitimately evince racial hostililty. The court went on to state that "[o]verall, seven instances over three years does not create a work environment permeated with racial hostility," and concluded that the plaintiff "simply failed to present evidence to support a finding that his workplace was objectively abusive and hostile." Id.; see also Carter v. Cornell University, 976 F.Supp. 224, 232 (S.D.N.Y. 1997) (holding that six racial remarks over three years did not constitute a hostile work environment: "[w]hile in no way condoning [the defendant’s] disparaging comments on the issue of race, they do not in themselves constitute a ‘hostile’ or ‘abusive’ environment because there were at most six such comments, and they were made over a period of years"), aff’d, 159 F.3d 1345 (2d Cir. 1998).
Additionally, some of the plaintiff’s allegations concern routine workplace matters. See Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752 (2002) ("individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like"); see also Heyward v. Judicial Dept., 178 Conn.App. 757, 766, 176 A.3d 1234 (2017) (plaintiff’s allegations concerning requests for time off, lunch breaks, performance evaluations, and favoritism, are not unreasonable conditions to be subjected to in employment context). While the plaintiff’s relocation and delay in obtaining a phone, extra chair, and nameplate for her workspace may have affected her work performance, the plaintiff has not produced proof demonstrating as much, nor has she produced evidence that the aforementioned conditions were the result of racial animus. Indeed, at her deposition, the plaintiff testified that for purposes of the work schedule change, she was treated the same as everyone else; see Dubin Aff., Ex. B, Buonocore Dep., 238:13-16; and is actually permitted to leave at 3:30 p.m. instead of 4:00 p.m. See Dubin Aff., Ex. B, Buonocore Dep., 228:18-19. Moreover, the plaintiff testified that she was not the only person moved to the basement, as other analysts had moved their offices down to the same area, and that she is satisfied in her present position despite still being in the "basement." See Dubin Aff., Ex. B, Buonocore Dep., 318:1-319:2; 363:21-364:19 ("I’m satisfied I got a new team, manager, and I share an office with another person"). As a result, the court concludes that no genuine issue of material fact exists as to whether the plaintiff suffered a hostile work environment, and therefore the defendants’ motion for summary judgment as to count two is granted.
CONCLUSION
For the foregoing reasons, there are no genuine issues of material fact with regard to the plaintiff’s retaliation, race discrimination, and hostile work environment claims. Accordingly, the defendant is entitled to judgment as a matter of law as to those claims, and therefore the defendant’s motion for summary judgment is granted in its entirety.