June C. Gallucci v. Save the Children Federation, Inc. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 122.00)

I. Background

In this case the plaintiff June Gallucci claims that the defendant Save The Children Federation, Inc.'s termination of her employment violated her rights under the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-51 et seq., specifically by discriminating against her on the basis of gender in violation of General Statutes § 46a-60(a)(1) and by illegally retaliating against her for making a sexual harassment complaint against a co-employee in violation of General Statutes § 46a-60(a)(4).

In brief, the plaintiff's employment in Westport, Connecticut as Executive Assistant to the defendant's Chief Financial Officer was terminated officially on March 26, 2007.   She was notified of the termination on January 25, 2007 by the CFO, Ms. Barrow-Klein.   The plaintiff claims, in essence, that she was fired because she made a complaint on January 8, 2007 about a fellow employee's advances occurring when the plaintiff was in Turkey at an intra-company audit conference.   The defendant, responds, in essence, that the decision to terminate the plaintiff's employment was made by Barrow-Klein prior to knowing about the harassment incident in Turkey.

The defendant has moved for summary judgment dismissing the two-count complaint.   The court notes its appreciation of the excellent memoranda of law submitted for and in opposition to the motion.

II. Standard of Review

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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “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 judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the cases.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact. [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

It is well accepted that employment discrimination claims either under federal law or Connecticut law are governed by a rather involved burden shifting analysis set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973) wherein the plaintiff has the initial burden of establishing a prima facie case of discrimination which, if satisfied, creates a presumption of discrimination and imposes on the defendant the burden of producing a legitimate non-discriminatory reason for the action.   If that burden of production is satisfied the presumption is rebutted and the plaintiff has the burden of persuading the trier of fact that intentional discrimination occurred.   See Jackson v. Health Resources of Rockville, Inc., 357 F.Sup.2d 507, 514-15 (D.Conn.2005);  Hebrew Home and Hospital v. Brewer, 92 Conn.App. 762, 768-69 (2005)[citing Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied 474 U.S. 829 (1985).¹

In any employment discrimination case a prima facie case can be fairly easy to establish.   See Jackson, supra, 357 F.Sup.2d 514 (“initial burden is not onerous”);  Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d.   Cir.1994) (“burden ․ is de minimis”).   The court begins its analysis with the plaintiff's claim of retaliation.   A prima facia case of retaliation can be established by showing that (1) the plaintiff was engaged in an activity protected by law, (2) the defendant was aware the plaintiff was engaged in a protected activity, (3) the plaintiff suffered an adverse employment action, and (4) a causal connection existed between the protected activity and the adverse action.  Christy v. Ken's Beverage, Inc., 660 F.Sup.2d 267, 276 (D.Conn.2009);  Krahm v. Town of Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, CV 04 4000006 (October 1, 2009, Doherty, J.)

The defendant contends that the plaintiff cannot establish a prima facie case.   The plaintiff responds that the timing of the decision to terminate her employment (no citation needed to support that termination is an adverse employment action) coming as she contends on January 25, 2007, shortly after her sexual harassment complaint made in Turkey and put into writing at the defendant's request upon return to the United States gives rise to an inference of a causal connection between the two.   The defendant does not dispute the complaint was a protected activity or that the defendant knew of the complaint.   However, it does dispute very seriously that there was any causal connection between the firing and the complaint.   Defendant contends that plaintiff's supervisor, Barrow-Klein had decided on termination before learning of the harassment incident in Turkey and such a decision had “crystallized” in December 2006.   Pl. Memorandum, 1. There is support for the proposition that where timing is the only basis for claim of retaliation and the adverse action started before the protected activity no inference of retaliation can arise.   Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2001).

The plaintiff counters that there are unresolved fact questions as to when a decision to fire the plaintiff was made.   Timing of events can be evidence of causation.   In the august words of the Second Circuit “temporal proximity can demonstrate a causal nexus.”  Id. See also Gooden v. Department of Correction, Superior Court, judicial district of Hartford, CV 02 0813590 (June 23, 2008, Elgo, J.).   The papers before this court reveal an unresolved question of fact as to when the decision was made to terminate the plaintiff's employment.   In her deposition Barrow-Klein stated that in December 2006 she considered, and discussed with others, the possibility of putting the plaintiff on a “work improvement plan” but a decision not to do so was not made until early January 2007.   According to her deposition, Barrow-Klein spoke to her supervisor, Carolyn Miles the defendant's chief operating officer about the plaintiff in early January after deciding not to do a work improvement program with the plaintiff and informed Miles of her decision to terminate the plaintiff's employment.   December and January was a very stressful time for Barrow-Klein for a number of reasons including a restructuring of the finance department, personnel evaluations, end of the year financial reports and a family crisis and therefore Barrow-Klein stated she was not sure of dates including when she talked to Miles.   However, she defined her use of “early January” to mean January 1 through 15, 2007.   The plaintiff returned from Turkey to work in Westport on January 17, 2007 and although stating she wanted to inform her of her termination as soon as possible after her return Barrow-Klein did not inform her until January 25 for reasons she could not recall.   Barrow-Klein Deposition Tr. 170-82, Ex. C to Defendant's Memorandum (Dkt Entry 123.00).

In her deposition, Miles said the meeting with Barrow-Klein took place on January 11.   On three different occasions in her deposition Miles stated, or clearly indicated that Barrow-Klein had not made a decision about firing the plaintiff and at the end of the meeting Miles did not know that the final decision would be termination.   Miles Deposition Tr. 49-52, 59, Ex. D to Defendant's Memorandum (Dkt Entry 124.00).   Miles stated that she learned of the final decision “about a week after that conversation, so somewhere in the last week of January.”  Id., 54.

Therefore, there is more than a little evidence to rebut the assertion that the decision to fire the plaintiff “crystallized” in December 2006 and evidence to rebut the defendant's contention that the decision was made before Barrow-Klein heard about the sexual harassment complaint.   Plaintiff appears to contend that Barrow-Klein likely heard about the incident from employees while plaintiff was still in Turkey.   Even if that is not the case she certainly heard it when the leader of the conference Mr. Ranaswanny returned from Turkey on January 16.   Barrow-Klein Deposition Tr. 219.

There is also evidence supporting the defendant's position that the decision to fire plaintiff had been made before the decision maker, Barrow-Klein had heard about the incident in Turkey and a reasonable person could very well conclude that this evidence is stronger than plaintiff's evidence to the contrary.   Nevertheless, because an inference of causation can be drawn from the timing of an adverse action vis-a-vis the exercise of a protected action and there are unresolved fact questions about the time relationship, which this court may not resolve, summary judgment is denied on the retaliation claim.   A court “must be cautious” about granting summary judgment in the employment context where intent is at issue.  Jackson, supra, 357 F.Sup.2d 513;  see Gallo v. Prudential Residential Services, 22 F.3d 1219, 1221 (2d Cir.1994).

Turning to the plaintiff's claim of gender discrimination under Section 46a-60(a)(a), a prima facie case for such a claim involves showing (1) that she belongs to a protected class, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.  United Technologies v. CHRO, 72 Conn.App. 212, 225-26, cert. denied 262 Conn. 920 (2002).

At first blush, as the defendant points out, there seems little basis for this claim.   It appears to be undisputed that plaintiff's replacement was female as was the person who fired the plaintiff and a number of cases have observed upon the extreme difficulty of proving discrimination when a woman hires and then fires a female employee and replaces her with another female.   E.g. Stouter v. Smithtown Center School District, 687 F.Sup.2d 224, 233 (2010) (and cases cited therein).

However, the United States Supreme Court has held that “[r]etaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination ․ Moreover, retaliation is discrimination ‘on the basis' of sex ․” Jackson v. Birmingham Board of Education, 544 U.S. 167, 168 (2005);  see also Gooden v. Department of Correction, supra.   The defendant contends there is not enough strength in plaintiff's retaliation claim to support a gender discrimination claim and points to a recent decision in which a gender discrimination claim was dismissed on summary judgment, but a retaliation claim was allowed to go forward.  Lee v. City of Syracuse, 603 F.Sup.2d 417 (N.D.N.Y.2009).   The reason for that outcome was based on the plaintiff's own statement that her suit was not one for sexual harassment and the federal court found she “all but concedes the defendants were motivated by retaliation instead of gender discrimination”;  id., 435;  and the court determines that Lee is not applicable to this case.

Therefore, the court denies summary judgment dismissing the gender discrimination claim.   While the plaintiff's evidence of gender discrimination, other than retaliation is slight indeed, a fact finder must make a determination of the merits of the claim.

BY THE COURT

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. The parties and this court agree that in determining employment discrimination claims under Connecticut law Connecticut courts look to and employ federal precedent under Title VII of the Civil Rights Act of 1964.   See Board of Education v. CHRO, 266 Conn. 492, 505 n.18 (2003)..  FN1. The parties and this court agree that in determining employment discrimination claims under Connecticut law Connecticut courts look to and employ federal precedent under Title VII of the Civil Rights Act of 1964.   See Board of Education v. CHRO, 266 Conn. 492, 505 n.18 (2003).

Adams, Taggart D., J.