Donegan v. Town of Middlebury

Jean DONEGAN v. TOWN OF MIDDLEBURY

No. CV156026920S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

March 9, 2018

UNPUBLISHED OPINION

OPINION

RORABACK, J.

On July 8, 2015, the plaintiff, Jean Donegan, filed a one-count revised complaint against the defendant, Town of Middlebury alleging that she was subjected to unlawful discrimination based on age and gender in violation of the Connecticut Fair Employment Practices Act (" CFEPA" ), General Statutes § 46a-60(a), et seq. According to the revised complaint, the plaintiff, a 67-year old female, was terminated from her position as the defendant’s zoning enforcement officer, and replaced by a male at least ten years younger than her. The plaintiff was singularly and improperly subjected to changes in her job requirements and duties, increased scrutiny, unreasonable and illegal demands false allegations and criticism, and improper discipline. The plaintiff was also assigned additional responsibilities even though her compensated hours were reduced. The plaintiff alleges that she " was subjected to discipline and ultimately terminated in part because she complained about these job changes as her concerns were wrongly characterized by defendant as ‘insubordination’ and ‘dereliction of duty.’

On August 31, 2017, the defendant filed a motion for summary judgment along with a supporting memorandum of law, arguing that there is no genuine issue of material fact that the plaintiff cannot establish the prima facie elements of an age or gender discrimination claim. The defendant further argues that, even if the plaintiff satisfies her prima facie burden it had a legitimate, non-discriminatory reason for her termination, which the plaintiff cannot show to be pretextual. The plaintiff filed an objection on October 23, 2017, arguing that summary judgment is inappropriate because there are genuine issues of material fact as to whether the defendant’s reason for her termination is pretextual. The defendant filed a reply on November 8, 2017. This matter came before the court at the November 13, 2017 short calendar. For the following reasons, the defendant’s motion for summary judgment is granted.

The record supports the following undisputed facts. In 2000, the planning and zoning commission (" commission" ) appointed the plaintiff to the position of zoning enforcement officer for the defendant. The zoning enforcement officer is the only position supervised by the commission. In March 2010, Mr. Curtis Bosco was elected chairman of the commission and, as such, was the plaintiff’s supervisor. On March 11, 2011, Bosco instructed the plaintiff not to issue a certificate of zoning compliance to a proposed liquor store until after the commission met to work through some necessary issues. Notwithstanding Bosco’s instruction, the plaintiff issued the certificate to the liquor store on April 4, 2011, before the commission’s scheduled meeting on April 7, 2011. Thereafter, in December 2011, Bosco became aware that the plaintiff had, in October 2011, granted a certificate of zoning compliance to a café without requiring the operators to submit a detailed site plan. As a result, in January 2012, Bosco requested that the plaintiff contact the attorney for the cafe to facilitate the cafe coming before the commission to provide a detailed site plan. The plaintiff did not comply with this instruction.

As part of a reduction in the budget for the 2011-2012 fiscal year, the commission reduced the plaintiff’s hours from 55 to 40 per month. In order to facilitate that reduction, the commission relieved her of the requirement that she attend the commission’s monthly meetings. The plaintiff was also directed to submit a detailed monthly report to the commission to improve communication and facilitate supervision. Despite the reduction of hours, the plaintiff submitted a timesheet for 55 hours for December 2011. As a direct result of the plaintiff’s unauthorized hours, Bosco issued the plaintiff a letter documenting her performance deficiencies and advising that she needed to correct those deficiencies immediately. Shortly thereafter, on January 12, 2012, Bosco sent the plaintiff an official notification that sufficient evidence existed to demonstrate that certain aspects of her conduct during the prior year were insubordinate and constituted a dereliction of duty. The official notification referenced the issues outlined above, and instructed the plaintiff to immediately familiarize herself with all commission minutes and directives regarding her zoning enforcement officer position, to comply with the directives regarding the reduction of her hours, and to make certain that her actions coincided with the word " qualified" as used in the town charter.

As part of the budget for fiscal year 2012-2013, the line item for the zoning enforcement officer position was further reduced. As a result, the plaintiff was informed that her hours should be split as follows: 33 hours per month for planning and zoning, and 5 hours per month for the zoning board of appeals. At an April 5, 2012 commission meeting, the commission stressed the importance of the zoning enforcement officer submitting a detailed monthly report for all items receiving administrative approval, which was intended to improve communication and facilitate supervision. The plaintiff was presumed to be aware of this directive because she had been previously tasked with reviewing all commission meeting minutes and familiarizing herself with the commission’s directives. Around that same time, Bosco instructed the plaintiff that she was to submit her monthly timesheets to him for approval prior to submitting them to payroll in order to ensure that the plaintiff did not exceed her budgeted hours. The plaintiff submitted her monthly timesheets to Bosco for a brief period, but then failed to do so for several months until November 2012. The plaintiff also failed to submit any report of her activities to the commission for June, July, and August 2012, despite instructions from the commission to do so.

In September 2012, Bosco discovered that the plaintiff had, for several years, failed to comply with statutory requirements with regard to the filing of zoning applications and site plans. Bosco attempted to speak with the plaintiff about this issue over the phone but the call abruptly ended.^[1] On October 12, 2012, Bosco sent the plaintiff official notice that the commission would have a special meeting on October 16, 2012, to discuss the zoning enforcement officer’s duties. Although invited, the plaintiff did not attend. At that special meeting, the commission passed a motion to proceed with a Loudermill hearing^[2] to determine whether the plaintiff’s conduct warranted discipline. On November 5, 2012, the plaintiff was provided official notice of the Loudermill hearing, detailing the issues that would be addressed: the plaintiff’s failure to familiarize herself with Connecticut statutes regarding planning and zoning; her failure to properly document her activities as zoning enforcement officer and submit a monthly report to the commission on a regular basis; her failure to submit monthly timesheets to Bosco for approval before submission to payroll; and the plaintiff’s insubordination in September 2012 when she hung up on Bosco.

At the Loudermill hearing on November 26, 2012, the plaintiff was present and represented by counsel. At that hearing, the plaintiff submitted a timesheet for November 2012 that contained 37 hours, despite the fact that she was limited to 33 hours for planning and zoning matters. The plaintiff’s attorney spoke at the public and executive sessions of the Loudermill hearing. During the public session, the plaintiff’s attorney did not dispute that the plaintiff had committed the actions set forth in the Loudermill hearing notice, but rather opined that " it seems there have been greater responsibilities in terms of administration, tracking hours, preparing reports, and it seems that [the plaintiff] has been required to perform the duties in a way that she hasn’t been expected to before." The plaintiff’s attorney also stated that he believed this situation arose from the finance board’s expectations on how to fund the zoning enforcement officer position. At her deposition relative to the present lawsuit, the plaintiff testified that she agreed with her attorney’s statements. After the Loudermill hearing’s public session, there was an executive session at which the plaintiff’s attorney participated. Following the executive session, the commission passed a resolution to suspend the plaintiff without pay for one month beginning on December 1, 2012. The resolution further provided that the commission and the plaintiff would enter into a " Last Chance Employment Agreement" (" agreement" ) to be drafted by both the plaintiff’s attorney and the town’s attorney.

The plaintiff did not return to work after her suspension ended on January 1, 2013, because she did not want to return until she had a draft of the agreement. Bosco informed the plaintiff, by email, that she was expected to return to work, regardless of whether the agreement had been drafted. Bosco also reminded the plaintiff that her hours were limited to 33 per month for planning and zoning matters and that she was required to submit a detailed report of her activities to the commission three days prior to the monthly meeting. Nevertheless, the plaintiff failed to fully comply with either requirement. The plaintiff also failed to comply with Bosco’s instruction that zoning referrals to the Council of Governments be sent by email, not certified mail.

On May 2 and 7, 2013, the plaintiff’s attorney informed the town’s attorney that the plaintiff no longer wanted to sign...