Julia Belanger v. 677 (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, # 111

The defendant, International Brotherhood of Teamsters, Local 677 Health Services and Insurance Plan (the “Plan”), moves for summary judgment with regard to the plaintiff's claims of discrimination made pursuant to General Statutes §§ 46a–60(a)(1), 46a–60(a)(4), 46a–60(a)(5) and 46a–60(a)(8) in her complaint dated May 7, 2010.   The defendant contends that it is entitled to judgment as a matter of law because the plaintiff cannot establish a prima facie case that her selection for layoff was discriminatory nor can she demonstrate any causal connection between her layoff and the conduct of John Capobianco, an employee of a related organization.

I

FACTS

The defendant is a multi-employer health and welfare fund governed by a Board of Trustees which is comprised of two representatives from Teamsters Local 677 (the “Union”) and two employer representatives.   Dennis Raymond is the Chairman of the Board of Trustees and has responsibility for the Plan and its personnel.   The Plan occupies one-half of a building for its office and personnel, and the other side of the building is occupied by the Union.

The daily supervision of the Plan is the responsibility of Fund Administrator, Gail LaFrance, and she is supported by three claims analyst.   The Plan provides medical and dental benefits to participants who are members of the Union, and the workload is divided among the three analysts.   Sometime in 2004, because of a backlog in claims, the plaintiff was hired as an administrative assistant, with a salary of approximately $450 per week, with typical clerical functions.

John Capobianco was an employee of the Union, and worked on the Union side of the building.   He would, however, on occasion visit the Plan side of the building, spending time “visiting” with Ms. LaFrance and the plaintiff.   Beginning in the summer of 2005, Capobianco began to make comments directed towards the plaintiff that she found to be offensive.   In addition to telling her that she looked beautiful, and could run the office, he also commented that her shoes looked like “fuck me shoes.”   The plaintiff mentioned this incident to Ms. LaFrance, who told the plaintiff she would speak to Mr. Raymond about the comments.   Throughout 2005, Capobianco continued to visit the Plan's office and made comments to the plaintiff about her appearance, the clothes she was wearing and asked her to go out with him to shoot pool.

In January 2006, the plaintiff and Capobianco went out after work and had a consensual sexual encounter.   Capobianco continued to make flirtatious comments to the plaintiff about her appearance, which comments were made in the presence of Ms. LaFrance and co-workers.   In February 2006, after a failed sexual attempt by Capobianco, their encounter ended abruptly, and Capobianco did not visit the Plan side of the building as often.   In the summer of 2006, he began to frequent the Plan's offices again, and started to make suggestive comments to the plaintiff again.   On one occasion, in the presence of Ms. LaFrance and Mr. Raymond, Capobianco commented on the plaintiff's appearance, and the plaintiff asked LaFrance and Raymond if they could tell Capobianco to leave her alone.   But their response was to laugh it off, and commented that Capobianco was the “sexual harassment representative.”

There were exchanges between the plaintiff and Capobianco also done through email.   Late in 2007, Capobianco continued to make inappropriate comments to the plaintiff, such as offering to adjust her bra strap.   At one point the plaintiff sought Capobianco's assistance in setting up a home page for her computer.   When she went into his office, he had displayed on his computer a picture of a nude woman.   The plaintiff called him an asshole, left his office, and mentioned the incident to LaFrance, who told her she would relay it to Raymond.   Around the holidays, Capobianco was physical with the plaintiff, pushing her up against a desk and trying to kiss her, as well as pulling her onto his lap.

The plaintiff also had some issues with various other staff members at the Plan. In March 2008, she advised LaFrance that she intended to go to Teamsters Family Services, a benefit provided to all participants of the Plan, concerning the issues at the office with Capobianco and one other staff member.   LaFrance encouraged her to do so.   Although there is no indication that LaFrance reported the plaintiff's intentions to go to Teamsters Family Services to Raymond, she did report an incident that the plaintiff had with one other staff person.   She had a discussion with Raymond about the incident, but the topic of Capobianco's conduct did not come up in their conversation.

On March 10, 2008, Raymond informed LaFrance of his decision to lay off the plaintiff and reorganize the Plan. Four days later, the plaintiff was laid off.   She was told that other people could do her job, and that she could not get along with anyone.   The plaintiff called Capobianco after she left the building and accused him of being responsible for her lay off.¹

Following her layoff, the workload at the Plan was reorganized as proposed by Raymond.   Since her layoff, although the number of claims has increased, there has been no additional hiring of staff.

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.”  (Internal quotation marks omitted.)  Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his 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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

“[Practice Book § 17–46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must (1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  (Internal quotation marks omitted.)  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 6454 A.2d 748 (1995).

“When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ 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, however, 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].”  Id.

“Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ․ a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ․ A party opposing a motion for 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.”  (Internal quotation marks omitted.)  Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008).

III

DISCUSSION

The complaint is brought in one count against the Plan under General Statutes §§ 46a–100, et seq., for violations of §§ 46a–60(a)(1), 46a–60(a)(4), 46a–60(a)(5), and 46a–60(a)(8).²  The plaintiff is claiming that her termination is a result of retaliation for her complaints made about Capobianco's conduct, and that she was subjected to a hostile work environment due to the sexual harassment by Capobianco.

In order to prevail on a claim of hostile work environment, the plaintiff must establish the following five criteria to prove the defendant should be held liable:  “(1) she belongs to a protected class;  (2) she was subject to unwelcome sexual harassment;  (3) the harassment was based on sex;  (4) the harassment affected a term, condition, or privilege of employment ․ and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.”  Hirras v. National R.R. Passenger Corp., 85 F.3d 396, 399 (5th Cir.1996), citing Jones v. Flagship International, 793 F.2d 714, 719–20 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987).

It is a discriminatory practice for an employer to harass an employee on the basis of sex.  General Statutes § 46a–60(a)(8) defines sexual harassment as “any unwelcome sexual advance or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile or offensive working environment.”

“To establish a claim of hostile work environment, 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 ․ In order to be actionable ․ a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim 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).   Where the alleged harassment is attributable to a co-worker and not a supervisor, a plaintiff must show that her employer “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.”  Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996).   A plaintiff can establish a hostile work environment by showing “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.”  Cruz v. Coach Stores, Inc., 202 F.2d 560, 570 (2d.   Cir.2000).

The plaintiff has asserted a sufficient number and severity of sexually harassing events.   Not only did those events consist of frequent comments to the plaintiff about her appearance, declarations of love, and requests for kisses, but they also consisted of five or six incidents of involuntary physical contact and forced attempts at kissing and physical contact.   She found his physical conduct both intimidating and frightening, and reported this to her immediate supervisor, Ms. LaFrance.   A trier of fact could find that the allegations made by the plaintiff rise to the level of a workplace permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to constitute the creation of a hostile work environment.

The one-count complaint also makes a claim of retaliation under General Statutes § 46a–60(a)(4).   The established analysis of a retaliation claim is as follows.  “First, the plaintiff must establish a prima facie case.   That is, an employee must show (1) participation in a protected activity;  (2) that the defendant knew of the protected activity;  (3) an adverse employment action;  and (4) a causal connection between the protected activity and the adverse employment action ․ The burden of proof that must be met to permit a ․ plaintiff to survive a summary judgment motion at the prima facie stage has been characterized as minimal and de minimis ․ In determining whether this initial burden is satisfied in a ․ retaliation claim, the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive ․

“If a plaintiff sustains the initial burden, a presumption of retaliation arises.   In turn, under the second step of the burden-shifting analysis, the onus falls on the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action ․ Finally, as for the third step, once an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action ․ In this regard, a retaliation claim follows the familiar burden-shifting framework developed to evaluate allegations of disparate treatment.”  (Citations omitted;  internal quotation marks omitted.)  Jute v. Hamilton Sundstrand Corp., 430 F.3d 166, 173 (2nd Cir.2005).

The defendant concedes that the first two elements of the plaintiff's prima facie retaliation claim have been satisfied.   As to the third prong, the plaintiff was terminated on March 14, 2008, four days after the plaintiff sought out Mr. Raymond with the intention of discussing with him her difficulties with a co-worker as well as with Capobianco.   When she used the word “harassment” in describing the situation, Raymond became infuriated, and cautioned her to “be careful about how [she uses] that word harassment.”   Two days later, after an offer by Capobianco to give her “mouth to mouth,” the plaintiff complained again to Ms. LaFrance, reminded LaFrance of the pornographic incident, and stated that she believed “she could get Capobianco for sexual harassment.”   Two days later she was laid off.

The plaintiff has established the causal connection between the protected activity and the adverse action.   The causal connection can be shown through a “close temporal proximity” between the plaintiff's protected action and her termination.  Kaylor v. Electric Boat Corp., 609 F.3d 537, 552 (2nd Cir.2010).   Her repeated but unheeded complaints finally culminated in threats by the plaintiff to raise the issue of sexual harassment outside of the defendant's organization itself.   The complaints immediately preceding her termination were of a substantively different nature from those which the defendant asserts were made in preceding years and provide sufficient evidence from which to find a direct temporal proximity, and sufficient evidence of a causal connection between her statutorily protected activity and her termination.

The plaintiff has raised a triable issue of fact as to whether the Plan's offered explanation is pretextual.   Summary judgment is appropriate where the “plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 147 L.Ed.2d 105, 120 S.Ct. 2097 (2000).

IV

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied.

Swienton, J.

FOOTNOTES

FN1. The plaintiff gave conflicting accounts of her conversation with Capobianco at her CHRO fact finding hearing and her deposition.   At her deposition, she testified that she told him “You got me fired.”.  FN1. The plaintiff gave conflicting accounts of her conversation with Capobianco at her CHRO fact finding hearing and her deposition.   At her deposition, she testified that she told him “You got me fired.”

FN2. As previously noted, all claims are included in one count..  FN2. As previously noted, all claims are included in one count.

Swienton, Cynthia K., J.