James Shenking v. Leo Antonio dba Michael Chrysler Plymouth et al. (2009)

MEMORANDUM OF DECISION

This wrongful termination suit arises out of the termination of the plaintiff's employment as a mechanical technician on September 16, 2005.   In his one-count complaint, the plaintiff alleges that from August 1987 until September 2005 he worked for the defendants in automobile dealerships owned by them in Waterford, Connecticut.   During his employment, he consistently received favorable reviews and pay raises.   On March 31, 2005, the plaintiff was told by the service director of the dealership that his wage was being reduced from $21.50 per hour to $19 per hour because he was too costly to the company.   At the time of the plaintiff's reduction in wage, other technicians who were younger than the plaintiff were earning between $25 and $28 per hour.   During this time, the service director also mentioned to the plaintiff that it might be time to retire.

On September 16, 2005, the plaintiff returned from vacation and found that he had been replaced by a man some thirty years his junior.   The plaintiff was informed by the general manager of the dealership that he was being terminated because he was costing the company too much money.   The plaintiff timely filed a charge of discrimination with the Connecticut Commission on Human Rights and Opportunities and received a release of jurisdiction to file this lawsuit on February 27, 2007.   On May 9, 2007, the plaintiff filed the operative one-count complaint against the defendants, the car dealership and its owners, seeking legal and equitable relief pursuant to General Statutes § 46a-104 of the Connecticut Fair Employment Practices Act (CFEPA).

On April 20, 2009, the plaintiff filed a motion for summary judgment on the ground that the defendants have not been able to provide admissible evidence of a clear and specific reason to terminate the plaintiff's employment that was not in violation of General Statutes § 46a-104.   On May 4, 2009, the defendants filed a motion for summary judgment on the ground that there is no admissible evidence that the plaintiff's age was a factor in his termination and that the evidence demonstrates that the plaintiff's poor work performance was the cause of his termination.   In addition, both parties have filed lengthy memoranda extensive exhibits including affidavits, deposition transcripts and other documentary evidence in support of or in response to their respective motions.   The court heard oral argument the motions on July 20, 2009.

Our Appellate Court recently reiterated the standards for considering motions for summary judgment in age discrimination cases brought under the CFEPA in Vollemans v. Wallingford, 103 Conn.App. 188, 928, A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).   The court described the appropriate standard as follows:  “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard.  [The moving party] must make a showing that it is quite clear what the truth is ․ that excludes any real doubt as to the existence of any genuine issue of material fact ․ A material fact is a fact that will make a difference in the result of the case ․ [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment ․ It is not enough for the moving party merely to assert the absence of any disputed factual issue;  the moving party is required to bring forward ․ evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute ․ The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact ․ Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate.”

“The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Citations omitted;  internal quotation marks omitted.)  Id., 193.

Further, in describing the relevant burdens of proof under the CFEPA, the court stated:  “As our Supreme Court explained, [w]hen a plaintiff claims disparate treatment under a facially neutral employment policy, this court employs the burden-shifting analysis set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).   Under this analysis, the employee must first make a prima facie case of discrimination.   The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question.   The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias ․ That test is a flexible one ․ To establish a prima facie case of discrimination, the complainant must demonstrate that (1) he is in the protected class;  (2) he was qualified for the position;  (3) he suffered an adverse employment action;  and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination ․ 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 ․” (Citations omitted, emphasis added.)  Id.

In the present case, the plaintiff has sufficiently met the decidedly low hurdle required to establish a prima facie case of age discrimination under CFEPA.   The plaintiff's affidavit in support of his motion for summary judgment demonstrates that (1) he was a person of sixty-six years who was terminated and replaced by a thirty-five-year-old;  (2) as a long time automotive technician employed by the defendant, he was qualified for the position of automotive technician;  (3) he was terminated from his employment;  and, (4) the circumstances surrounding his termination give rise to an inference of age discrimination in that comments were made regarding his age by his superiors and he was replaced by a significantly younger man.¹

Having established a prima facie case of age discrimination, the burden then shifts to the defendant to offer a non-discriminatory reason for the plaintiff's termination.   However, “because the plaintiff's initial prima facie case does not require proof of discriminatory intent ․ the burden of persuasion [does not shift] to the defendant.   Therefore, [t]he defendant need not persuade the court that it was actually motivated by the proffered reasons ․ It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights, 237 Conn. 209, 225-26, 676 A.2d 844 (1996).   By way of the various affidavits and deposition testimony used in support of their motion for summary judgment and in opposition to the plaintiff's motion for summary judgment, the defendants have proffered that the plaintiff was terminated because of an excessive number of vehicle “combacks” that resulted in excessive cost to the company.   While the plaintiff has alleged that the chain of command at the defendant's business is muddled and the history of combacks is poorly kept, the defendants have advanced a valid non-discriminatory reason for terminating the plaintiff's employment.   Therefore, they have met their burden of raising an issue of fact as to the reasons for the plaintiff's discharge.

Upon an acceptable showing of a non-discriminatory reason for discharge, the burden of proof then shift's back to the plaintiff to show that the non-discriminatory reason proffered by the defendant is merely a pretext for unlawful discrimination.  “An employee may demonstrate pretext by reliance on the evidence that established her prima facie case, without any additional evidence being required.”  (Citation omitted;  internal quotation marks omitted.)  Vollemans v. Wallingford, supra, 103 Conn.App. 223.   In the present case, the plaintiff alleges that the deposition testimony and other evidence indicates that the plaintiff was, despite the claims of the defendants, a qualified mechanic and that the explanation of excessive combacks proffered by the defendants was a pretext fabricated after the plaintiff's termination to avoid liability in a discrimination suit.   In Vollemans v. Wallingford, supra, 224, the court held that whether the defendant's proffered non-discriminatory reasons for terminating employment was merely a pretext for discharging an employee on the basis of age raises issues of fact that renders summary judgment inappropriate.

As our Supreme Court has remarked, “[t]here are situations ․ which do not lend themselves to summary disposition.   It is ․ well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Citations omitted, internal quotation marks omitted.)  Batick v. Seymour, 186 Conn. 632, 646-47, 443 A.2d 471 (1982).   In the present case, the plaintiff's and defendants' essential dispute is over the defendants' true motives with regard to terminating the plaintiff's employment.   As such, the plaintiff's allegations and the defendants' responses and counter allegations raise several issues of fact that will require credibility determinations to be made by the trier of fact with regard to the defendants' motives and intent.

CONCLUSION

For the foregoing reasons, summary judgment is inappropriate.   Accordingly, the cross motions for summary judgment are hereby denied.

Peck, J.

FOOTNOTES

FN1. In their objection to the plaintiff's motion for summary judgment, the defendants also challenge the plaintiff's motion for summary judgment on the ground that he has failed to properly authenticate the documents he's used to support his motion for summary judgment.   However, while some of the plaintiff's documents have not been certified, his affidavit is sworn and certified by a notary public and likely meets the requirements of Practice Book § 17-46.   Further, several of the transcripts of deposition relied upon by the plaintiff are properly certified.   However, because the plaintiff's motion for summary judgment must be denied on other grounds, there is no need to further address the issue of authentication..  FN1. In their objection to the plaintiff's motion for summary judgment, the defendants also challenge the plaintiff's motion for summary judgment on the ground that he has failed to properly authenticate the documents he's used to support his motion for summary judgment.   However, while some of the plaintiff's documents have not been certified, his affidavit is sworn and certified by a notary public and likely meets the requirements of Practice Book § 17-46.   Further, several of the transcripts of deposition relied upon by the plaintiff are properly certified.   However, because the plaintiff's motion for summary judgment must be denied on other grounds, there is no need to further address the issue of authentication.

Peck, A. Susan, J.