Wagner v. Osterman Propane, LLC

Patricia WAGNER v. OSTERMAN PROPANE, LLC

No. CV166028497

Superior Court of Connecticut, Judicial District of New London, New London

November 16, 2018

UNPUBLISHED OPINION

OPINION

Swienton, J.

The issue before the court is whether the defendant, Osterman Propane, LLC, is entitled to summary judgment on both counts of the plaintiff’s complaint alleging age discrimination and retaliation in violation of General Statutes § 46a-60(a)(1) and (4) because the plaintiff cannot (1) establish a prima facie case of age discrimination and retaliation, (2) the defendant had a legitimate nondiscriminatory reason for the plaintiff’s termination, and (3) the plaintiff lacks any evidence demonstrating that the defendant’s reason for termination was a pretext or that the plaintiff’s termination was motivated by or because of the plaintiff’s age.

I FACTS

This action arises from a dispute between the plaintiff, Patricia Wagner, and the defendant, Osterman Propane, LLC, regarding alleged discriminatory employment practices. The plaintiff alleges that she was subject to discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. On November 22, 2016, the plaintiff filed a complaint against the defendant. The complaint contains two counts. Count one alleges age discrimination in violation of § 46a-60(a)(1), while count two alleges retaliation in violation of § 46a-60(a)(4).

In the complaint, the plaintiff alleges the following facts. At the time of the filing of the complaint, the plaintiff was a sixty-year-old woman. On or about April 17, 2013, the plaintiff was hired by the defendant as a customer service representative at its Oakdale, Connecticut business location. The plaintiff’s direct supervisor was Dawn Guerra, who held the title of office supervisor.

In November of 2015, Dan Ochs became the plaintiff’s manager. Beginning in April of 2016 and on multiple occasions thereafter, the plaintiff witnessed Guerra openly kissing another employee in a sexual manner that made the plaintiff uncomfortable. Guerra engaged in this conduct in the women’s restroom, which was directly behind the plaintiff’s desk. Guerra also engaged in this conduct in the file room, which was to the left of the plaintiff’s desk.

Due to Guerra’s conduct, the plaintiff lodged a sexual harassment and hostile work environment complaint with the defendant’s human resources representative, Peter Iacobucci, that contained a complaint, amongst other complaints, about the use of foul language by fellow coworkers in the workplace. Upon receipt of the plaintiff’s complaint, the defendant did not appear to take any action because the conduct at issue continued unabated.

The plaintiff also alleges she was the oldest employee working for the defendant at its Oakdale business location throughout the tenure of her employment and was subjected to differential treatment because of her age. Ochs subjected the plaintiff to differential treatment as he generally ignored and disregarded the plaintiff in contrast to his frequent communication with the plaintiff’s younger coworkers.

The plaintiff was only issued two warnings, one verbal and one written, during her entire tenure with the defendant. Both warnings came on the same day in April of 2016 and were both issued by Ochs. One of the warnings was for failing to lock the safe in the manager’s office. The other employee responsible for the safe, who was approximately thirty years old at the time of the incident, was not disciplined for the same matter.

On August 15, 2016, the defendant terminated the plaintiff for poor work performance. The plaintiff alleges that the stated reason for her termination was a pretext for age discrimination and/or retaliation based on the plaintiff’s prior complaint of sexual harassment and hostile work environment. As a result of the defendant’s conduct, the plaintiff has suffered, inter alia, lost wages.

On approximately August 24, 2016, the plaintiff filed an administrative complaint with the Commission on Human Rights and Opportunities. Subsequently, the plaintiff received a release of jurisdiction letter from the commission dated October 21, 2016. In her prayer for relief, the plaintiff seeks, inter alia, money damages and reinstatement or front pay.

On February 21, 2017, the defendant filed an answer and special defenses to the complaint. In its answer, the defendant admits several of the allegations in the amended complaint claims insufficient knowledge to admit or deny others, and denies, inter alia, the allegation that its reason for terminating the plaintiff’s employment was a pretext for age discrimination and/or retaliation based upon the plaintiff’s prior complaint of sexual harassment and hostile work environment. On April 7, 2017, the plaintiff filed a reply denying the defendant’s special defenses.

On May 25, 2018, the defendant filed a motion for summary judgment with an accompanying memorandum of law on both counts of the complaint. In support of its summary judgment motion, the defendant submits, inter alia, the following documents: (1) the signed and sworn affidavit of human resources/risk manager Richard Donnell, (2) excerpts from the certified transcript of the plaintiff’s deposition, (3) the signed and sworn affidavit of Guerra, (4) the signed and sworn affidavit of Ochs, (5) documentation of the plaintiff’s performance issues, (6) the plaintiff’s warning report, (7) the signed and sworn affidavit of Iacobucci, (8) the plaintiff’s e-mail complaint dated May 23, 2016, (9) Donnell’s e-mail to the plaintiff dated May 31, 2016, and the plaintiff’s response, (10) the signed and sworn affidavit of coworker Jessica Cloutier, (11) the signed and sworn affidavit of coworker Jacqueline Jackson, (11) additional posting error documents, (12) the defendant’s employee handbook, (13) an e-mail from Donnell to the plaintiff dated August 16, 2016, and the letter of termination, and (14) excerpts from the certified transcript of Och’s deposition.

On July 27, 2018, the plaintiff filed an objection to the defendant’s motion for summary judgment with an accompanying memorandum of law. In support of her objection, the plaintiff submits inter alia, the following documents: (1) excerpts from the certified transcript of the plaintiff’s deposition, (2) excerpts from the certified transcript of Ochs, (3) the plaintiff’s 2014 performance review, (4) the plaintiff’s 2015 performance review, (5) the certified transcript of Iacobucci’s deposition, (6) the plaintiff’s e-mail to Iacobucci and Donnell dated May 23, 2016, and (7) the certified transcript of Guerra’s deposition. On August 16, 2018, the defendant filed a reply memorandum to the plaintiff’s objection. The defendant attached several items of documentary evidence to its reply memorandum. On September 17, 2018, oral argument regarding the motion for summary judgment was heard at short calendar.

II DISCUSSION

"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... 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 ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." Feliciano v. Autozone Inc., 316 Conn. 65, 72-73, 111 A.3d 453 (2015).

A. AGE DISCRIMINATION

The defendant argues that it is entitled to summary judgment on count one of the complaint alleging age discrimination in violation of § 46a-60(a)(1) because the plaintiff cannot establish a prima facie case of discrimination. In order to establish a prima facie case of discrimination, the plaintiff must show that: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position, (3) the plaintiff suffered an adverse employment action, and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. Feliciano v. Autozone, Inc., supra, 316 Conn. 73. "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." Amato v. Hearst Corp., 149 Conn.App. 774, 780, 89 A.3d 977 (2014).

In order to establish an inference of discrimination, the plaintiff "may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was. To be probative, this evidence must establish that the plaintiff and the individuals to whom she seeks to compare herself were similarly situated in all material respects ... [A]n employee offered for comparison will be deemed to be similarly situated in all material respects if (1) ... the plaintiff and those he maintains were similarly situated were subject to the same workplace standards, and (2) ... the conduct for which the employer imposed discipline was of comparable seriousness." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012).

The defendant contends that there is no evidence demonstrating that the plaintiff’s termination occurred under...