Nehemias Bracey v. Northeast Utilities Service Co. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The plaintiff, Nehemias Bracey, brought this action against his former employer, the defendant Northeast Utilities Service Company, in three counts.   In the first count, he claims that the defendant violated General Statutes § 31–51t et seq. by requiring him to submit to a urinalysis drug test without reasonable cause.   In the second count, he alleges that he was subjected to sexual harassment and gender discrimination in violation of General Statutes § 46a–60(a)(1) and (8), and in the third count, he alleges that he was subject to retaliation, in violation of General Statutes § 46a–60(a)(4), for complaints he made regarding the alleged harassment.   The defendant has moved for summary judgment on all three counts of the plaintiff's complaint.   For the reasons stated below, summary judgment is denied as to count one and granted as to counts two and three.

STANDARD FOR SUMMARY JUDGMENT

The standard for summary judgment is well established.  “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.’  “ LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”  (Citation omitted;  internal quotation marks omitted.)   Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000).

Furthermore, on summary judgment all inferences from the facts must be construed in the light most favorable to the party opposing the motion.   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).

“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.”  (Citations omitted;  internal quotation marks omitted.)  Id., 550.   It is not enough for the opposing party merely to assert the existence of 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 [in support of a motion for summary judgment].”  (Citation omitted;  internal quotation marks omitted.)  Schilberg Integrated Metals, Inc. v. Continental Casualty Co., 263 Conn. 245, 253, 819 A.2d 773 (2003).  “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.”  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 558.

UNDISPUTED FACTS

The plaintiff was employed by the defendant as a customer service representative in December 2005.   The customer service call center where he worked was predominantly staffed and supervised by women.

The defendant had a company policy prohibiting discrimination and sexual harassment in the workplace.   It defined sexual harassment as “unwelcome behavior that is sexual nature” and provided examples of such behavior.   The policy provided a procedure for reporting any harassing or discriminatory conduct.

Beginning in 2006, the plaintiff had an on-again, off-again consensual sexual relationship with a coworker, Mary Metevier, who was a customer service representative on the same customer service team as the plaintiff.   The plaintiff moved into and out of Metevier's home a number of times, and during the periods when they were not living together, the plaintiff would have sexual relations with other women.   In 2008, the plaintiff voluntarily resigned from his job to move out of state.   He learned shortly thereafter that Metevier was pregnant with his child, and he returned to Connecticut.   He was rehired by the defendant in July 2008.   Shortly after his reemployment, he was assigned to a bilingual team, which was supervised by Jacqueline Reyes.   Reyes was the only supervisor for the bilingual team, but her work hours did not always overlap with the plaintiff's hours.   Reyes reported to the customer call center manager, Kristen Mahan.

The plaintiff and Metevier were never on the same team after the plaintiff was placed on the bilingual team in 2008.   Metevier became a “team lead” in September 2010.   A “team lead” has limited supervisory responsibilities such as coaching and counseling team members as to company policy, but does not have authority to issue discipline.   Metevier was never the plaintiff's team lead.

In December 2008, Metevier gave birth to the plaintiff's child.   The plaintiff's sporadic relationship with Metevier soon deteriorated.   He moved into her home for periods of a few months at a time in 2009, 2010, and 2011.   The plaintiff's romantic relationship with Metevier ended for the last time in February or March 2011.   Both the plaintiff and Metevier had Facebook accounts, and Metevier sometimes expressed derogatory opinions about the plaintiff on Facebook that were seen by some of their coworkers and some supervisors.   The plaintiff's relationship with Metevier was sometimes a topic of discussion among their coworkers.

The plaintiff's supervisors documented certain inadequacies in the plaintiff's job performance soon after his re-employment in July 2008.   His two-month review in September 2008, indicated that he was frequently wandering around rather than at his workstation answering customers' calls.   His five-month review in December 2008, documented concerns about his roaming around and about his too-frequent absences from work.   In August 2009, and in April 2010, he received written warnings about his absenteeism.   He received a two-day suspension on May 26–27, 2010, for insubordination as a result of a disagreement he had with his supervisor, Reyes, regarding a customer service issue.

The plaintiff also spent excessive amounts of time on the internet.   The defendant allowed company employees to use the internet for personal purposes during their breaks, but they were not supposed to exceed 300 minutes of personal use in any two-week period.   The company monitored such internet use electronically and generated reports about it for supervisors.   Monitoring reports offered by the plaintiff show that the plaintiff used the internet for 300 minutes in one two-day period (February 1–2, 2010) and 1,259 minutes in one two-week period (January 20–February 2, 2010).   On the two-day report, the plaintiff's usage was the highest of all individuals reported, and only two other employees exceeded 200 minutes in the same two-day period;  on the two-week report, one other employee, a male, exceeded the plaintiff's usage by 123 minutes, and a total of six employees, including the plaintiff, exceeded 1000 minutes of usage.   The plaintiff was repeatedly counseled about his overuse of the internet during work.

In August 2010, the plaintiff was suspended for ten days as a result of his excessive internet use and excessive tardiness.   He was warned that any further violations of company policy would result in his immediate termination.   He received an overall “improvement needed” rating for 2010 and was placed on a “performance improvement plan” in February 2011.

Other employees also exceeded the permitted internet usage, but no other employees were suspended for such excessive usage.   The plaintiff's supervisor, Reyes, testified at her deposition that she had given verbal warnings to other employees for excessive internet usage and that they had reduced their usage.   She further testified that quality monitoring was done to determine whether any employee was using the internet while on a call with a customer, and that such usage would result in an automatic “zero” for the call, which affected the employee's quality goals.   She identified a female employee who had received a “zero” as a result of using the internet while on a call.   The plaintiff had received a “zero” on two occasions for using the internet while on a customer call.

A number of the issues with the plaintiff's performance were reported by email to Reyes by Meaghan Durfee, another call center supervisor who generally worked second shift, when the plaintiff was working.   Although Durfee was not the plaintiff's supervisor, she would serve as Reyes's “eyes and ears” when Reyes was not present.   Durfee and Metevier were close friends.   Durfee was aware of Metevier's relationship with the plaintiff.   Metevier thought the plaintiff was a neglectful father who would not see his son for months at a time, and she shared her views about his parenting with her friends at work, including Durfee.

On or about May 4, 2010, Metevier became angry about the plaintiff's new relationship with a young woman that Metevier deemed inappropriate to be around her child.   She had communicated with the plaintiff's new girlfriend through Facebook and received a response from her that Metevier perceived as disrespectful.   She angrily confronted the plaintiff at his workstation, showing him the Facebook message, cursing and criticizing him for being a neglectful and selfish father.   After the confrontation, which was witnessed by coworkers, the plaintiff complained to his supervisor, Reyes, and the call center manager, Mahan.   Mahan immediately called both the plaintiff and the defendant into a conference room and interviewed them concerning the incident.   She cautioned them that they should keep personal matters out of the workplace and that they should have no contact with each other while at work.   Mahan spoke separately with Metevier and warned her that any further incidents would be referred to human resources.   Mahan then advised the plaintiff that he should inform Mahan if Metevier initiated contact with him at work again.

Metevier was not disciplined for the May 2010 incident.   However, at the time of the incident, she was being considered for a team lead position.   She was not given the position because of the incident.   She reapplied for another team lead position and was promoted to team lead in September 2010.

No further workplace incidents involving Metevier and the plaintiff occurred until March 2011.   At that time, Metevier and the plaintiff had a disagreement outside of work about a car that he was using but that was owned and insured by Metevier.   Metevier contacted the local police department about the plaintiff's refusal to return the car to her, and police officers approached the plaintiff in the workplace to ask him for the keys to the car.   Metevier was in the parking lot, not the building, when the police spoke with the plaintiff.   Metevier did not interact directly with the plaintiff concerning the car while at work.

The plaintiff complained to Mahan about Metevier's action, claiming that he felt harassed by Metevier.   Mahan advised him that the company could not prevent Metevier from contacting the police over a property dispute but again reiterated that Metevier and the plaintiff should have no personal contact at work.

A week later, on March 21, 2011, the plaintiff called the company's “Beacon Line” to complain of Metevier's “harassment” and what he viewed as Mahan's inadequate response.   He reported the May 2010 and March 2011 incidents involving Metevier.   He said that Metevier's cursing at him at work in May 2010 violated company policy and created a hostile work environment.   He reported that Mahan had cautioned Metevier not to repeat the behavior or bring personal issues to work, but that Metevier had not been otherwise disciplined.   The plaintiff believed that he would have been disciplined if he had cursed at Metevier, and he suggested that Mahan “possibly” violated the company policy against racial discrimination by not disciplining Metevier.   With respect to the second incident in March 2011, he reported that he felt humiliated by Metevier's action in calling the police, and that when he reported it to Mahan, she told him to remain professional and said that she could not do anything.

The defendant's ethics office investigated the plaintiff's complaint by interviewing both the plaintiff and Metevier separately within days of the complaint.   The plaintiff reported that he believed that Metevier was trying to ruin his career, and Metevier reported that the plaintiff had said he would ruin her career.

The ethics investigator concluded that both the plaintiff and Metevier had been advised to have no further contact at work unless it was work-related.   The investigator noted that the plaintiff and Metevier did not work on the same schedule or on the same team and therefore that they should be able to operate separately at work.   Both were put on notice that improper conduct would not be tolerated.   The investigator closed the investigation on April 1, 2011, reporting that she saw no need to take it further unless another incident occurred.   No further incidents between Metevier and the plaintiff occurred.

At approximately 9:35 a.m. on September 5, 2011, the call center was on “storm duty” as a result of a hurricane that had caused massive power outages for the defendant's customers.   The plaintiff was called in to work that morning.   When he arrived, he walked past a supervisor, Beatrice Simmons, and a team lead, James Lewis, both of whom believed they smelled an odor of alcohol on the plaintiff's person.   Simmons reported her impression to another supervisor, Janice Rousseau, and together they reported it to Mahan, the call center manager.   Mahan summoned the plaintiff to her office at about 9:45 a.m. and questioned him for a period of time, in Simmons's presence, about whether he had used alcohol that morning or in the preceding twenty-four hours.   He admitted having a drink the night before but denied that he had been drinking that morning.   Mahan testified at her deposition in this case that she did not notice any odor of alcohol on the plaintiff's person, but observed that he had bloodshot, glossy eyes, did not make eye contact, was “giggly,” and slouched in his chair.   She testified that this was unusual behavior for him.   She did not question him regarding the use of drugs at the time, but later testified that she had suspected he had been using marijuana.

At approximately 10 a.m., Mahan advised the plaintiff that she would require him to submit to testing under the company's “fitness for duty” policy.   The plaintiff did not object, asserting that he would pass a Breathalyzer test.   At Mahan's direction, Simmons contacted the outside vendor who conducted drug testing for the defendant.   The plaintiff was allowed to go to his workstation and work while waiting for the vendor to arrive.   No problems regarding the plaintiff's work performance were reported during the period while he was waiting for the vendor to arrive.   The vendor arrived sometime after 11:30 a.m. and administered a breath alcohol test, which the plaintiff passed with a 0.00 reading.   Mahan then consulted with other managers and, at about 12:15 p.m., advised the plaintiff that he would also be required to submit to urinalysis drug testing pursuant to the defendant's “fitness for duty” policy.   The plaintiff became upset and refused to take the test.   Mahan advised him that a refusal to take the test would be considered a positive test.   The plaintiff still refused, saying that the test was intrusive and a violation of his privacy, and that he was going to get a lawyer.   He was then suspended and sent home.   Mahan asked Simmons, who was present, to document the incident, which she did late that afternoon.   The next day, Mahan participated in a teleconference with Reyes, Simmons, a legal counsel, and other management personnel.   After reviewing the plaintiff's refusal to submit to the urinalysis drug test and his disciplinary history, the defendant's managers decided to terminate his employment.

The defendant's “fitness for duty” policy prohibits employees from reporting for work while impaired.   With regard to “for cause” testing of employees, it provides in relevant part as follows:

When a supervisor or company medical or security personnel suspect, through personal observation, that an employee may be under the influence of alcohol or drugs (e.g., odor of alcohol, unsteady gait, bloodshot eyes, slurred speech, etc.) the following actions are to be taken:

․ Ask the employee for his/her explanation for the observed findings or behavior that suggest that the employee is presently unfit for duty.

․ Record, immediately, all actions, observations, statements, and other pertinent facts, including date, time, location, and witnesses of the incident ․

Screening methods:

․ The Company will drug screen urine for the following substances except where constrained by federal regulations:  Marijuana, Cocaine, Opiates, Phencyclidine, Amphetamines.

․ The Company will drug screen for alcohol using an evidential breath testing device approved by the National Highway Traffic Safety Administration.   A positive test for alcohol is a confirmation test equal to or greater than .04 BAC (blood alcohol content) ․

After Testing

․ If the “For Cause” testing was done for the odor of alcohol only with no aberrant behavior and the breath test is negative the individual may be returned to work, after a urine specimen is collected.

COUNT ONE—VIOLATION OF DRUG TESTING STATUTE

Count one alleges that the defendant violated General Statutes § 31–51t et seq., a statute that limits the ability of private employers to require employees to submit to urinalysis drug testing.  General Statutes § 31–51x(a) provides in relevant part as follows:  “No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance.”

In enacting § 31–51x, “the Connecticut legislature intended to adopt the fourth amendment standard of individualized suspicion in order to protect the privacy interests of employees.”  (Citation omitted;  internal quotation marks omitted.)  Imme v. Federal Express Corp., 193 F.Sup.2d 519, 524 (D.Conn.2002).   Under fourth amendment jurisprudence, “reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence,” but it nevertheless requires “at least a minimal level of objective justification.”  Id., citing Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

The plaintiff's supervisor, Kristen Mahan, testified at her deposition that she had suspected that the plaintiff was under the influence of marijuana because of his “giggly” and unusually relaxed conduct when she interviewed him about his alcohol use.   However, she neither asked him to explain those observed findings nor questioned him about possible marijuana use;  instead, her interview focused only on his possible alcohol use, although she herself did not perceive an odor of alcohol about him.   When the plaintiff passed the alcohol breath test, she did not further observe his conduct to determine whether any further testing was necessary or question him about the conduct that she later testified was the basis for her suspicion of marijuana use.   Nor does it appear that she considered his work performance over the two-hour interval between her initial observations and the point at which she insisted on the urinalysis.   Finally, the observations regarding his out-of-character appearance and behavior were not documented until late the same day, after he had refused the drug test and had said he would hire a lawyer.

At her deposition, Mahan testified that when she was informed that the plaintiff had passed the alcohol breath test but was refusing to submit to urinalysis, she called a company director for advice and was told that it was company policy to require both the alcohol breath test and the urinalysis test.   In support of the summary judgment motion, the defendant's counsel argued that the defendant's policy reasonably requires urinalysis testing when an employee has presented with unusual behavior.   The policy, however, requires urinalysis testing when the only ground for suspicion of drug or alcohol use is the odor of alcohol with no aberrant behavior, even after an employee has passed an alcohol breath test.   The defendant further argues that Mahan and Simmons did not immediately document their observations of the plaintiff's allegedly unusual appearance and behavior (bloodshot eyes, slouched posture, “giggly” demeanor, et cetera) because they were extremely busy dealing with customer issues arising from the power outages.   A jury may well credit their testimony to that effect and find that their observations gave them the reasonable suspicion as required by the statute.   But the standard for summary judgment requires the court to construe all the evidence, and all inferences that may be drawn from the evidence, in the light most favorable to the nonmoving party.   Applying that standard, the court concludes that there are disputed issues of material fact as to whether the defendant had a reasonable suspicion that the plaintiff was under the influence of drugs after he passed the alcohol breath test and had worked for nearly two hours without any reported impairment in his job performance.   Accordingly, summary judgment is denied as to count one.

COUNTS TWO AND THREE—SEXUAL HARASSMENT, DISCRIMINATION, AND RETALIATION

In count two, the plaintiff alleges that he was subjected to “sexual harassment in violation of General Statutes § 46a–60(a)(1) and (a)(8).”   He alleges, as the factual basis for this claim, that Metevier was a “supervisor” with whom he had previously had sexual relations and with whom he had a child.   He claims that he made a complaint about her for “sexual harassment, discrimination, retaliation, and hostile work environment” (Compl.¶ 6) after the incident in May ¹ 2010, and that several weeks later he was disciplined for excessive internet use even though the defendant's policy concerning non-work use of websites is not strictly enforced (Compl.¶ 9).   He then alleges that he made another complaint against her in or about April ² 2011, using the “Beacon Line.” Finally, he alleges that on September 5, 2011, he was questioned about alcohol use, required to submit to alcohol testing, and then required to submit to urinalysis drug testing after passing the breath alcohol test, all as a false pretext for “opposing and complaining about inappropriate sexual behavior in the workplace and sexual harassment towards him.”  (Compl., count two, ¶¶ 11–24.)   He asserts that the foregoing alleged conduct violated “General Statutes § 46a–60(a)(1)(4) and (8).”  (Compl.¶ 25.)

In paragraphs 24 through 25 of count three, the plaintiff alleges that he engaged in a protected activity by complaining about improper employment activity, and that the defendant retaliated against him for that protected activity in violation of General Statutes § 46a–60(a)(4).

The Connecticut Fair Employment Practices Act (“CFEPA”) governs these claims.  General Statutes § 46a–60 provides in relevant part:

(a) It shall be a discriminatory practice in violation of this section:

(1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness;  ․

(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a–82, 46a–83, or 46a–84;  ․

(8) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex or gender identity or expression.  “Sexual harassment” shall, for the purposes of this section, be defined as any unwelcome sexual advances 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 an individual's work performance or creating an intimidating, hostile or offensive working environment ․

Sexual Harassment

“Subdivisions (1) and (8) of § 46a–60(a) prohibit an employer or its agents from discharging, discriminating against or harassing an employee on the basis of sex.”  Brittell v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998).  “In defining the contours of an employer's duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart of § 46a–60.”  Id.

As our Supreme Court stated in Brittell, a claim of sexual harassment under federal law has traditionally proceeded under one of two theories:  “quid pro quo” or “hostile work environment.”   See id., 165–66.   A “quid pro quo” claim arises when an employee is required to submit to sexual demands as a condition to obtain employment or to maintain employment or to obtain promotions.  Meritor Savings Bank v. Vinson, 477 U.S. 57, 68, 106 S.C. 2399, 91 L.Ed.2d 49 (1986).   In such cases, discrimination is “explicit.”   Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).   To establish a “hostile work environment” claim, 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.”  (Citation omitted;  internal quotation marks omitted.)  Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).   The distinction between the two kinds of cases was reduced in Burlington Industries, Inc. v. Ellerth, supra, 742, and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), a pair of cases in which the Supreme Court addressed the circumstances under which an employer could be held vicariously liable for sexual harassment by supervisors.  Ellerth and Faragher, however, did not modify the standard for imposing liability on an employer for sexual harassment by coworkers.  Brittell v. Dept. of Correction, supra, 247 Conn. 166 n.30. “[A]n employer will be held liable for harassment perpetrated by its employees if ‘the employer provided no reasonable avenue for complaint, or ․ the employer knew (or should have known) of the harassment but unreasonably failed to stop it.’  “ (Emphasis in original.)  Id., 167.   The standard is essentially a negligence standard that depends upon the gravity of the harassment alleged, the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.  Id., 168.

It is fundamental to a claim of sexual harassment that the conduct at issue must be sexual in nature.   Under § 46a–60(a)(8), “sexual harassment” is defined as involving “unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature.”  (Emphasis added.)   As the Supreme Court observed in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the “challenged conduct typically involves explicit or implicit proposals of sexual activity,” but it may also include the use of “sex-specific and derogatory terms.”   Sexual harassment can take many forms, including but not limited to verbal abuse of a sexual nature, unwelcome touching, the use of sexually degrading language to describe an individual, the display of sexually suggestive objects or pictures, or other demeaning activity related to sex.   See, e.g., Brittell v. Dept. of Correction, supra, 247 Conn. 154 n.11.

The plaintiff in this case has not produced any evidence of conduct of a sexual nature that affected the conditions of his workplace.   He has offered no evidence that Metevier or anyone else made any unwelcome sexual advances toward him, made any comments of a sexual nature, or engaged in any other sort of unwelcome sexual conduct toward him.   In opposing summary judgment, the plaintiff relied on a “quid pro quo” theory that can best be described as indirect.   He claimed that Metevier was angry with him for ending their sexual relationship and that Durfee, Metevier's friend, used her position as a supervisor to report the plaintiff's misconduct on the job (for example, his excessive internet use and his frequent tardiness) to retaliate against him for ending his sexual relationship with Metevier.   Viewed in the light most favorable to the plaintiff, and drawing all inferences that might be drawn in the plaintiff's favor, the most that can be shown from the evidence is that Durfee disapproved of the plaintiff because she thought that he was a neglectful parent and had treated Metevier badly.

Neither of the two workplace incidents upon which the plaintiff relies concerns sexual conduct.   The incident in March 2011, involved a property dispute about a car.   The earlier incident, in May 2010, occurred when Metevier received a Facebook communication from the plaintiff's new girlfriend that angered her.   Viewed in the light most favorable to the plaintiff, a jury could infer that Metevier's outburst was motivated by jealousy.   But the various accounts of the incident indicate that Metevier's outburst focused on the plaintiff's role as a parent, that is, his association with a person whom Metevier thought was unsuitable to be around her child, and the plaintiff complained to his supervisors that he did not appreciate having his parental role discussed in front of his coworkers.

In cases arising from the break-up of a consensual sexual relationship between coworkers, courts have repeatedly observed that there is a distinction between personal animosity arising from a failed relationship, which is not actionable sexual harassment, and animosity based on a person's gender, which can be.   See, e.g., Novak v. Waterfront Commission of New York Harbor, 928 F.Sup.2d 723, 730–31 (S.D.N.Y.2013) (mistreatment by former supervisor following breakup of consensual sexual relationship, and mistreatment by other supervisors whose attitudes were affected by former supervisor's, “while unfair and unfortunate, does not constitute Title VII sex discrimination under existing law”);  Conklin v. Suffolk, 859 F.Sup.2d 415, 428 (E.D.N.Y.2012) (“Courts often find that harassment by a co-worker is not considered to be ‘based on sex’ when it arises from a failed relationship” (citing cases));  Stepheny v. Brooklyn Hebrew School for Special Children, 356 F.Sup.2d 248, 263 (E.D.N.Y.2005) ( “Conduct motivated by personal animosity does not run afoul of Title VII's prohibition against altering the terms and conditions of employment because of sex”);  West v. MCI Worldcom, Inc., 205 F.Sup.2d 531, 545 (E.D.Va.2002) ( “Courts have consistently drawn the distinction between ‘actions based on discriminatory animus and those based on personal animosity resulting from failed consensual relationships,’ “ quoting Pipkins v. City of Temple Terrace, Florida, 267 F.3d 1197, 1199 (11th Cir.2001));  Campbell v. Masten, 955 F.Sup. 526, 530 (1997) (“[N]egative employment actions which follow on the heels of a consensual relationship gone sour do not constitute quid pro quo sexual harassment unless they are linked in some way to other or further ‘unwanted’ sexual advances”);  Corley v. Detroit Board of Education, 470 Mich. 274, 280, 681 N.W.2d 342 (2004) (“In summary, what may have been sexual in this case did not involve harassment, while what did involve harassment was not sexual”).

Even if there had been a sexual element in Metevier's outburst, moreover, the defendant could only be held liable for sexual harassment on the basis of Metevier's conduct if it failed to address it.   See Brittell v. Dept. of Correction, supra, 247 Conn. 167–69;  see also Perry v. Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir.1997) (employer is liable for coworker harassment only if it has “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it”).   Despite the claim in the complaint that Metevier was a “supervisor,” the plaintiff admitted at his deposition, and it is undisputed, that at the time of the May 2010 incident, Metevier and the plaintiff were both customer service representatives and were peers within the company.   Metevier had no supervisory authority of any sort at that time.   Immediately upon the plaintiff's complaint about the incident, the defendant's call center manager, Mahan, called Metevier into a meeting, cautioned her to keep personal business out of the workplace, and warned her that any further conduct of that nature would result in a referral of the matter to the human resources department.   Moreover, Metevier was passed over for a promotion she was seeking as a result of the incident, and there were no further incidents in which Metevier personally engaged with the plaintiff in the workplace.   In sum, the undisputed evidence demonstrates that the defendant's response to Metevier's workplace misconduct was immediate and effective.   There is, therefore, no basis for the defendant's vicarious liability under the defendant's quid pro quo theory of sexual harassment, and summary judgment is granted as to the sexual harassment claim in count two.

Discrimination

Count two of the plaintiff's complaint is captioned “Sexual Harassment in Violation of Connecticut General Statutes § 46a–60(a)(1) and (8).”   General Statutes § 46a–60(a)(1) prohibits discrimination based on sex.   The complaint does not clearly articulate the plaintiff's discrimination theory other than as it derives from the plaintiff's allegations of sexual harassment.   As articulated in the plaintiff's deposition testimony and brief in opposition to summary judgment, the plaintiff's discrimination claim is, in essence, that some of the defendant's women supervisors, who were Metevier's friends, disliked him because of his treatment of Metevier and discriminated against him by (1) not disciplining or terminating Metevier after the May 2010 incident, and (2) disciplining him for internet usage for which other employees were not disciplined.

To determine whether a plaintiff has established a prima facie claim for discrimination based on gender under General Statutes § 46a–60(a)(1), the court employs the burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).   See Perez–Dickson v. Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012).  “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 was actually motivated by illegal discriminatory bias.”  Perez–Dickson v. Bridgeport, supra, 513, quoting McDonnell Douglas Corp. v. Green, supra, 802–04.  “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.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, supra, 513.

To establish a prima facie case of discrimination in the employment context, the plaintiff must present evidence that:  (1) he belongs to a protected class;  (2) he was subject to an adverse employment action;  and (3) the adverse action took place under circumstances permitting an inference of discrimination.  Id., 514.   Where the claim is one of gender discrimination, the “proscribed differentiation ․ must be a distinction based on a person's sex, not on his or her sexual affiliations.”  DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306–07 (2d Cir.1986), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 50 (1987) (rejecting gender discrimination claim that employer had discriminated against male employees by promoting a woman with whom he had a consensual sexual relationship).   See also Kahn v. Objective Solutions, Intl., 86 F.Sup.2d 377, 382 (S.D.N.Y.2000) (“Participation in a consensual office affair does not constitute actionable gender discrimination when the termination of the affair results in discharge”).

The plaintiff has established the first two prongs of his prima facie case by showing that he belongs to a protected class and that he was subject to certain adverse employment actions, including suspensions and termination.   To establish the third prong, however, the plaintiff has offered no direct evidence of discrimination, but has argued that similarly situated employees were treated more favorably than he was, purportedly because he had ended his relationship with Metevier.

As our Supreme Court observed in Perez–Dickson, a plaintiff may rely on such circumstantial evidence to establish the third prong of a prima facie case of discrimination.   See Perez–Dickson v. Bridgeport, supra, 304 Conn. 514.   To be probative, however, this evidence must establish that the plaintiff and the individuals to whom he seeks to compare himself were “similarly situated in all material respects.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 514.  “[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.”  (Citation omitted;  internal quotation marks omitted.)  Paylan v. St. Mary's Hospital Corp., 118 Conn.App. 258, 269, 983 A.2d 518 (2009);  see also Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir.1997).

In this case, the plaintiff makes two essential claims of discrimination.   First, he claims that he would have been terminated or severely disciplined if he had cursed at Metevier in the workplace, and that he was discriminated against because Metevier was not fired.   Second, he claims that he was subject to discipline for conduct, such as violating the company's internet policy, while others were not so disciplined.   He claims that he was disciplined when others were not because he ended his relationship with Metevier.

In support of his claim that it was discriminatory against him not to terminate Metevier for the May 2010 incident, he testified that a male employee had been terminated for throwing something at a female coworker's car in the parking lot because the female employee had felt unsafe as a result of the male employee's action.   The plaintiff admitted that he had no firsthand knowledge of that incident and had only heard a rumor about it.   Moreover, there is an obvious distinction between cursing at a coworker and throwing something at a coworker's car.   The plaintiff provided no details about the incident, such as whether the male employee damaged his coworker's car or threatened the coworker's physical safety during the incident.   He made no claim that Metevier's conduct made him feel unsafe.   He offered no evidence to show that Metevier and the male employee who was allegedly terminated had otherwise similar disciplinary histories.   Such information would be essential to assessing whether Metevier and the male employee were similarly situated with respect to the seriousness of the conduct that had allegedly led to the male's termination.   See Shumway v. United Parcel Service, Inc., supra, 118 F.3d 64 (affirming summary judgment in discrimination case where plaintiff failed to make prima facie case because she presented no evidence that comparators were similarly situated with regard to the seriousness of the conduct at issue).   The plaintiff's lack of firsthand knowledge of the alleged incident involving the male, and his failure to produce admissible evidence concerning the incident, leaves the court without any means to compare the seriousness of the male's conduct with the seriousness of Metevier's conduct.   Accordingly, the plaintiff's reliance on a rumor about an incident in which a male employee was terminated for throwing something at a coworker's car does not establish a basis for inferring gender discrimination.

The plaintiff also claims that he was suspended for his excessive internet usage even though other individuals also made excessive use of the internet and were not suspended.³  Again, however, he has failed to produce evidence showing that the comparators were similarly situated to him in all material respects.   The letter documenting the plaintiff's suspension indicates that he was being suspended for excessive internet use and excessive tardiness.   He produced no evidence that other employees who were not suspended for excessive use were similarly situated with respect to tardiness.   Moreover, the lists of other employees with excessive internet use included both men and women.   The fact that other men were not disciplined does not support the plaintiff's claim that he was disciplined because of his gender.

Although the burden of establishing a prima facie case of discrimination is a “minimal” one, it is not nonexistent.   The plaintiff presented no evidence of discriminatory comments and attempted to create an inference of discrimination solely from comparisons with other employees.   He did not show that the individuals with whom he attempted to compare himself were similarly situated in all material respects, and therefore did not produce evidence that could give rise to an inference of discrimination.

Finally, to the extent that the plaintiff's claim is that he was subjected to discipline because he broke off his relationship with Metevier, it is insufficient to state a claim of gender discrimination.   Courts have consistently distinguished between employment actions based on consensual sexual relationships and employment actions taken on the basis of gender.   See, e.g., DeCintio v. Westchester County Medical Center, supra, 807 F.2d 306–08 (preferential treatment of paramour does not constitute gender discrimination);  Novak v. Waterfront Commission of New York Harbor, supra, 928 F.Sup.2d 729–30 (no actionable Title VII violation based on harassment following failed relationship);  Nelson v. Knight, 834 N.W.2d 64, 70 (Iowa 2013) (“[A] distinction exists between (1) an isolated employment decision based on personal relations ․ and (2) a decision based on gender itself.   In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person.   Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender”).   As courts around the country have recognized, the law prohibiting gender discrimination is intended to protect individuals from discriminatory treatment based on gender as a status;  it is not intended to protect individuals from the fallout that may result when consensual sexual relations between coworkers come to an unhappy conclusion.

Accordingly, summary judgment is granted as to the gender discrimination claim in count two.

Retaliation

Because Connecticut's courts look to federal precedent in interpreting CFEPA, claims of retaliation under § 46a–60(4) are evaluated under the McDonnell Douglas burden-shifting paradigm.   See Zboray v. Wal–Mart Stores East, L.P., 650 F.Sup.2d 174, 179 (D.Conn.2009).   To establish a prima facie case of retaliation in violation of § 46a–60(4), a plaintiff must show that:  (1) he engaged in a protected activity by opposing a practice made unlawful by § 46a–60;  (2) that the employer was aware of that protected activity;  (3) that the plaintiff suffered an adverse employment action;  and (4) that there was a causal connection between the protected activity and the adverse action.   Id.;  see also Galdieri–Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 292 (2d Cir.1998).   With respect to the first element, the plaintiff is not required to establish that the conduct he opposed was actually a violation of the statute, but only that he possessed a good faith, reasonable belief that the underlying employment practice was unlawful under the statute.  Id. The reasonableness of the plaintiff's belief is to be assessed in light of the totality of the circumstances.  Id.

In this case, the plaintiff claims that he made three complaints about workplace conduct that constitute “protected activity”:  the first, to Reyes and Mahan, concerning Metevier's outburst on May 4, 2010;  the second, to Reyes and Mahan in early March 2011, concerning Metevier's conduct in calling the police about the dispute over the car;  and the third, to the defendant's “Beacon Line” in mid-March 2011, concerning the two earlier issues with Metevier and what the plaintiff perceived as Mahan's inadequate response to his complaints.

The May 2010 and March 2011 complaints to Reyes and Mahan do not establish that the plaintiff engaged in a protected activity.   Whatever the defendant's subjective belief might have been, he had no objectively reasonable basis to believe that Metevier's conduct in (1) swearing at him about his new girlfriend's Facebook message and his parental deficiencies or (2) calling the police over a property dispute constituted sexual harassment or discrimination.   Neither incident involved conduct of a sexual nature.   As discussed above, it is generally recognized that personal animosity arising from a failed consensual relationship does not constitute sexual harassment or discrimination based on sex.   See Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C., 716 F.3d 10, 14–17 (2d Cir.2013) (affirming dismissal of retaliation claims for failure to make prima facie case where plaintiff could not have had a reasonable basis for believing that preferential conduct complained of constituted discrimination under Title VII);  Novak v. Waterfront Commission of New York Harbor, supra, 928 F.Sup.2d 730–31 (mistreatment by supervisors based on failed personal relationship, while “unfair and unfortunate, does not constitute Title VII sex discrimination under existing law”).

Nor did the plaintiff's use of terms like “harassment” or “discrimination” give Reyes or Mahan reason to believe that the plaintiff was complaining of unlawful activity rather than merely an uncomfortable airing of his personal life at work.   See Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C. supra, 716 F.3d 17 (“continual repetition of the words ‘discrimination’ and ‘harassment’ “ did not suggest that plaintiff “believed her sex had anything to do with her treatment or that defendants could have understood her statements as such”).

The third complaint, to the Beacon Line, repeated the claims that the plaintiff had previously made regarding the May 2010 and March 2011 incidents involving Metevier.   Those claims fail to constitute protected activity for the reasons discussed above.⁴  Because the plaintiff has failed to show that he had a reasonable belief that he was opposing any practice by the defendant that is unlawful under § 46a–60, he has failed to establish a prima facie case of retaliation.   Summary judgment is granted as to count three.

CONCLUSION

Summary judgment is denied as to count one because there are disputed issues of material fact with regard to the defendant's reasonable suspicion when it required the plaintiff to submit to urinalysis drug testing.   Summary judgment is granted as to counts two and three because there are no disputed issues of material fact with regard to the plaintiff's claim of sexual harassment or discrimination (count two) or retaliation (count three) and the defendant has shown that it is entitled to judgment as a matter of law.

BY THE COURT,

Date:  November 1, 2013

Sheila A. Huddleston, Judge

FOOTNOTES

FN1. In the complaint, the plaintiff alleges that the incident took place in August 2010, but at his deposition agreed that the complaint was mistaken as to the date and that the incident to which he was referring was the incident in May 2010..  FN1. In the complaint, the plaintiff alleges that the incident took place in August 2010, but at his deposition agreed that the complaint was mistaken as to the date and that the incident to which he was referring was the incident in May 2010.

FN2. At his deposition, the defendant agreed that the second incident mentioned in the complaint was the incident involving the car, which occurred in mid-March 2011..  FN2. At his deposition, the defendant agreed that the second incident mentioned in the complaint was the incident involving the car, which occurred in mid-March 2011.

FN3. At his deposition, the plaintiff denied recalling that he had received multiple warnings about his internet use.   The defendant, however, presented properly authenticated documents supporting its position that the plaintiff had received numerous warnings about his internet use.   His conclusory testimony denying a memory of the warnings is not sufficient to raise a triable issue of fact in response to the defendant's submissions.   See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 557 (conclusory affidavits insufficient to defeat summary judgment)..  FN3. At his deposition, the plaintiff denied recalling that he had received multiple warnings about his internet use.   The defendant, however, presented properly authenticated documents supporting its position that the plaintiff had received numerous warnings about his internet use.   His conclusory testimony denying a memory of the warnings is not sufficient to raise a triable issue of fact in response to the defendant's submissions.   See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 557 (conclusory affidavits insufficient to defeat summary judgment).

FN4. In his initial telephone call to the Beacon Line, the plaintiff also suggested that Mahan's failure to discipline Metevier might “possibly” have violated the company's policy against racial discrimination.   While a good faith, reasonable complaint about racial discrimination would clearly constitute protected activity, the plaintiff has not pursued a claim that he was retaliated against for complaining about “possible” racial discrimination.   The operative complaint in this case does not even identify the plaintiff's race or that of any of the defendant's agents.   It contains no allegations about race.   The plaintiff specifically alleges that he was retaliated against for complaining about “sexual behavior in the workplace and sexual harassment against him.”   Compl. count two, ¶ 24.   He did not repeat his suggestion of “possible” racial discrimination in his follow-up interview with the investigator who followed up on his Beacon Line call, and in opposing summary judgment, he produced no evidence of any sort suggesting that any action by the defendant involved any racial consideration.   The court concludes that the plaintiff's passing mention of race in his initial Beacon Line call, unsupported by any further allegations or evidence about race, does not suffice to establish that he had a good faith, reasonable belief that he was opposing or complaining about any practice involving race..  FN4. In his initial telephone call to the Beacon Line, the plaintiff also suggested that Mahan's failure to discipline Metevier might “possibly” have violated the company's policy against racial discrimination.   While a good faith, reasonable complaint about racial discrimination would clearly constitute protected activity, the plaintiff has not pursued a claim that he was retaliated against for complaining about “possible” racial discrimination.   The operative complaint in this case does not even identify the plaintiff's race or that of any of the defendant's agents.   It contains no allegations about race.   The plaintiff specifically alleges that he was retaliated against for complaining about “sexual behavior in the workplace and sexual harassment against him.”   Compl. count two, ¶ 24.   He did not repeat his suggestion of “possible” racial discrimination in his follow-up interview with the investigator who followed up on his Beacon Line call, and in opposing summary judgment, he produced no evidence of any sort suggesting that any action by the defendant involved any racial consideration.   The court concludes that the plaintiff's passing mention of race in his initial Beacon Line call, unsupported by any further allegations or evidence about race, does not suffice to establish that he had a good faith, reasonable belief that he was opposing or complaining about any practice involving race.

Huddleston, Sheila A., J.