Ralph Williams v. Hy's Livery Service (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 123)

FACTS

On March 25, 2009, the plaintiff, Ralph Williams, filed a one-count complaint in this action against the defendant, Hy's Livery Service, Inc. In the complaint, the plaintiff alleges the following facts.   The plaintiff, an African–American, was employed for approximately sixteen years as a dispatcher for the defendant's livery service business.   Throughout this time, his job ratings were satisfactory or better.   On June 4, 2003, as a result of another employee's scheduling error, when one of the defendant's customers arrived at an airport neither a car nor a driver was there to meet him.   The next day, the defendant terminated the plaintiff from his position, stating that it was doing so because he had not responded adequately to the situation caused by this error.   No other employees were disciplined in connection with this matter.

The plaintiff further alleges that the real reason that the defendant terminated him was on account of the plaintiff's race and color, and because the plaintiff opposed what he regarded as the defendant's racially discriminatory policy of permitting only white drivers to drive its vehicles at funerals.   The plaintiff believes that the defendant became aware of his opposition to this policy and his intent to challenge it when it learned of a conversation he had with his coworkers in May 2003, in which he stated as much.

The following procedural history is also relevant.   As the court stated in its memorandum of decision denying the defendant's motion to dismiss:  “On August 14, 2003, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities (CHRO), alleging the defendant had wrongfully terminated him due to his opinion on its alleged racially discriminatory policies.   On January 12, 2004, the CHRO dismissed the plaintiff's complaint after conducting a Merit Assessment Review.   On August 18, 2004, the CHRO issued a release of its jurisdiction to the plaintiff.   Subsequently, on November 8, 2004, the plaintiff commenced the original action against the defendant, Williams v. Hy's Livery Service, Inc., Superior Court, judicial district of New Haven, Docket No. CV–04–4004511.   In the original action the plaintiff alleges the same facts and cause of action as he does in this action.   The original action was scheduled for trial on September 3, 2008.   Instead, however, the court granted the defendant's motion for nonsuit and entered a judgment of dismissal on that date.   The plaintiff commenced this action on March 17, 2009.”   Williams v. Hy's Livery Service, Inc., Superior Court, Judicial District of New Haven, Docket No. CV–09–5027762–S (October 16, 2012, Wilson, J.) [54 Conn. L. Rptr. 832].

The plaintiff brings the action pursuant to the Connecticut Fair Employment Practices Act, General Statutes § 46a–60, and the Accidental Failure of Suit Act, General Statutes § 52–592a.   In his prayer for relief, the plaintiff seeks compensatory and punitive damages, an injunction requiring the defendant to reinstate him in his employment, attorneys fees, and costs.

On March 21, 2012, the defendant filed an amended answer and special defenses.   In its answer, the defendant admits that the plaintiff is African–American and that it employed him for sixteen years, but denies or claims lack of sufficient knowledge regarding most the plaintiff's other allegations.

On September 5, 2013, the defendant filed a motion for summary judgment as to the claims set out in the complaint on the grounds that the plaintiff has not provided any evidence to satisfy one of the elements of a prima facie case for unlawful discrimination or retaliation or to show that the defendant's real reason for terminating the plaintiff was his race or to retaliate against him.   In support of the motion, the defendant filed a memorandum of law and supporting documents, including documents pertaining to the plaintiff's CHRO complaint and an affidavit by Robert Levine, the president of Hy's Livery Service.   In response, on October 15, 2013, the plaintiff filed a brief in opposition to the motion for summary judgment and supporting documents, including sworn statements that the plaintiff made as part of his CHRO complaint, and his responses to the defendant's interrogatories in the current action.   On October 24, 2013, the defendant in turn filed a reply to the plaintiff's opposition with a supporting memorandum of law.   The court heard oral argument on the matter at short calendar on November 4, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․, of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

“A party moving for summary judgment is held 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.

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].”  (Citation omitted;  internal quotation marks omitted.)  Marinos v. Poirot, 308 Conn. 706, 711–12, 66 A.3d 860 (2013).

In the present case, the defendant argues that it is entitled to summary judgment because the plaintiff fails to provide any evidence as to one of the elements required to establish a prima facie case of employment discrimination or retaliation, and fails to produce sufficient evidence to show that the real reason for his termination was because of his race or in retaliation for his opposition to the company's allegedly discriminatory conduct.   According to the defendant, the plaintiff premises his claims solely on his belief that the defendant terminated him out of a motivation to discriminate and retaliate against him.   This, the defendant argues, is not sufficient to create a genuine issue of fact to survive a motion for summary judgment.¹  In response, the plaintiff contends that the factual assertions he has made in affidavits in the past constitute sufficient evidence to persuade a jury that the defendant's stated reason for terminating him was in reality a pretext for its unlawful discrimination and retaliation.   Thus, the plaintiff contends that genuine issues of material fact exist, and the defendant is not entitled to judgment as a matter of law.

Under Connecticut law, a plaintiff may bring employment discrimination and retaliation claims under the Connecticut Fair Employment Practices Act (CEEPA), General Statutes § 46a–60 et seq.  Section 46a–60(a)(1) makes it an illegal discriminatory practice “[for an employer ․ to discharge from employment any individual ․ because of the individual's race [or] color ․” Similarly, § 46a–60(a)(4) makes it illegal for an “employer ․ 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 ․ In analyzing a discrimination claim of disparate treatment, Connecticut courts may “look to federal law for guidance on interpreting state employment discrimination law, and the analysis is [generally] the same under both.”   Craine v. Trinity College, 259 Conn. 625, 637 n.6, 791 A.2d 518 (2002) (court equated analysis of § 46a–60 of CFEPA and federal Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)).  “When 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.”  Id., 636–37.   The same McDonnell Douglas burden-shifting approach and analysis is applied to retaliation claims in the employment context.  Kaytor v. Electric Boat Corp., 609 F.3d 537, 552–53 (2d Cir.2010);  Fore v. Tunxis Community College, Superior Court, Judicial district of New Britain, Docket No. CV–07–4014410 (April 25, 2012, Pittman, J.).

I

Retaliation

“To establish a prima facie case of retaliation, a plaintiff must show four elements:  (1) that he participated in a protected activity;  (2) that the defendant knew of the protected activity;  (3) an adverse employment action [was taken] against him;  and (4) a causal connection between the protected activity and the adverse employment action.”  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).   As the Supreme Court has stated in the related context of employment discrimination, “[t]he burden of establishing a prima facie case is a burden of production, not a burden of proof, and involves no credibility assessment by the fact finder ․ 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.”  Craine v. Trinity College, supra, 259 Conn. 638.

The defendant attempts to concede that the plaintiff has established the first three elements of a prima facie case for retaliation.   Specifically, the defendant states, “(1) [the plaintiff submitted a CHRO complaint;  (2) Defendant was aware of the complaint;  and (3) plaintiff was subject to an adverse employment action when he was terminated.”   Clearly, these statements regarding the basis for the retaliation claim are not accurate.   According to the complaint, the retaliation claim is premised on the plaintiff's opposition to the defendant's funeral driver policy, and not on his CHRO complaint.   Moreover, the plaintiff's claim could not be premised on the plaintiff's CHRO complaint because the plaintiff did not file his CHRO complaint until after he was fired.

The evidence submitted by the plaintiff provides sufficient support for the first three elements as follows:  the plaintiff participated in a protected activity when he told his coworkers that he intended to challenge the policy regarding the assignment of drivers for funerals on the ground that it was discriminatory;  see Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir.1990) (federal anti-retaliation provisions protect employees who informally protest discriminatory policies);  the defendant may have been made aware of the plaintiff's statements;  and the defendant thereafter subjected the plaintiff to a materially adverse employment action when it terminated him on June 5, 2003.

The issue then is the defendant's argument that the plaintiff has not established the fourth element of the prima facie case, i.e. whether there was a causal connection between the plaintiff's protected activity and the termination.   The defendant contends that “the termination was not retaliatory,” and denies that it knew about any allegations that it discriminated against its drivers.   In a spirit of leniency, courts have determined that as to this element of a retaliation claim, “[a] causal connection can be established indirectly by showing that the protected activity was followed close in time by adverse action ․ The trier of fact, using the evidence at its disposal and considering the unique circumstances of each case ․ [may] make an individualized determination of whether the temporal relationship between an employee's protected activity and an adverse action is causally significant.”  Ayantola v. Board of Trustees of Technical Colleges, supra, 116 Conn.App. 539.

The plaintiff here relies on circumstantial evidence to support the last element of his prima facie retaliation claim.   He refers to his testimony that for sixteen years his work record was favorable, and that the defendant terminated his employment approximately three weeks after his conversation with his coworkers in which he revealed his intention to challenge what he perceived as a racially discriminatory company policy.   Because the plaintiff is permitted to show a causal connection between his termination and the protected activity of planning to challenge a perceived discriminatory policy by way of “temporal relationship” between the two;  see Ayantola v. Board of Trustees of Technical Colleges, supra, 116 Conn.App. 539;  the plaintiff's sworn statements showing that temporal proximity suffice to establish the fourth element.   Moreover, as with the first three elements of the prima facie case, the plaintiff is required to meet only a minimal burden of production.   See Craine v. Trinity College, supra, 259 Coma. 638.   Thus, in light of the particularly lenient standards, the plaintiff has successfully established his prima facie retaliation claim.

“[I]f the plaintiff presents at least a minimal amount of evidence to support the elements of the [retaliation] claim, the burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action.”  Kaytor v. Electric Boat Corp., supra, 609 F.3d 552–53;  Fore v. Tunxis Community College, supra, Superior Court, Docket No. CV–07–4014410.   The defendant attempts to meet its burden with the affidavit from Robert Levine, the company's president, in which he states that he directed Archie Logan, the plaintiff's supervisor, to terminate the plaintiff, and that the plaintiff was terminated solely on account of his inadequate job performance.   He also specifically attests that he had “no knowledge of any allegation that [defendant] discriminated against any of its drivers in any matter, including matters involving funerals”;  and the plaintiff was terminated due to his conduct on June 4, 2003, which caused the defendant a loss of income.

As previously noted, because the defendant's burden is one of production, it is not required to show any persuasive or credible proof affirming its purported reason for the termination.   Its stated ground is a legitimate reason for the plaintiff's termination and implicates no improper retaliatory motive to the defendant.   Accordingly, the defendant's rebuttal suffices to meet the shifted burden.

After the defendant has rebutted the plaintiff's prima facie case, the burden of proof shifts back onto the plaintiff.  “[I]n order to avoid summary judgment, [the plaintiff must] point to evidence sufficient to permit an inference that the employer's proffered non-retaliatory reason is pretextual and that retaliation was a substantial reason for the adverse employment action.”  Fore v. Tunxis Community College, supra, Superior Court, Docket No. CV–07–4014410;  Kaytor v. Electric Boat Corp., supra, 609 F.3d 553.

In discussing the plaintiff's renewed burden in the closely related context of discrimination claims, the courts have stated the following.  “[The plaintiff] now must have the opportunity to demonstrate that the [defendant's] proffered reason was not the true reason for the employment decision.   This burden now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination ․ Employment discrimination ․ can be proven either directly, with evidence that the employer was motivated by a discriminatory reason, or indirectly, by proving that the reason given by the employer was pretextual ․ [E]vidence establishing the falsity of the legitimate, nondiscriminatory reasons advanced by the employer may be, in and of itself, enough to support the trier of fact's ultimate finding of intentional discrimination.”  (Citations omitted;  internal quotation marks omitted.)  Jacobs v. General Electric Co., 275 Conn. 395, 400–01, 880 A.2d 151 (2005);  see also Jackson v. Water Pollution Control Authority, 278 Conn. 692, 706, 900 A.2d 498 (2006).

The law permits “the plaintiff [to] rely upon the evidence used in establishing the prima facie case to prove the ultimate issue.”  Craine v. Trinity College, supra, 259 Conn. 644.   Even the plaintiff's own testimony may be sufficient evidence to defeat a defendant's motion for summary judgment as to his claim.   See Kaytor v. Electric Boat Corp., supra., 609 F.3d 556 (court credited plaintiff's deposition testimony in deciding to vacate trial court ruling granting the defendant's motion for summary judgment as to one of plaintiff's retaliation claims).

“Certainly [however] there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.   For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created 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.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, 304 Conn. 483, 516, 43 A.3d 69 (2012).   Moreover, “[i]n order [for the plaintiff] to prevail, a fact finder must conclude that this evidence gives rise to the inference of actual discrimination ․ not merely speculation of discrimination ․ The factors to be weighed when considering whether judgment as a matter of law will be appropriate in such cases are the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false ․ and any other relevant evidence.”  (Citations omitted;  internal quotation marks omitted.)  Craine v. Trinity College, supra, 259 Conn. 644–45.

In this case, the plaintiff's prima facie case of retaliation is not very strong.   He does not offer any direct evidence that the defendant's stated reason for terminating him is false or any evidence of how other similarly situated employees were treated.   His sole evidence is predicated upon the possibility that the defendant was aware of his intent to challenge its driver policy and terminated him in an act of retaliation.   To this end, the plaintiff alleges in his complaint that he has information and believes the defendant became aware of his plans to challenge the company policy.   In addition, the plaintiff submits a sworn personal statement in which he states that “a white driver might have over heard the conversation [in which the plaintiff revealed his intention to challenge the defendant's funeral policy] and told the [defendant] about it.”

Nevertheless, in the context of a motion for summary judgment, it is the defendant's burden to establish that there is no genuine issue as to this material fact.   The plaintiff's burden is to provide evidence which, if believed, “could persuade a rational factfinder that there was a discriminatory pretext to the defendant's assertion” of its stated reason for terminating the plaintiff.  Callender v. Reflexite Corp., 143 Conn.App. 351, 375, 70 A.3d 1084 (2013) (discussing issue in context of claim of discrimination in violation of General Statutes § 31–290a) cert. denied, 310 Conn. 905, 75 A.3d 32.   The plaintiff has done so.

For this reason, the defendant's motion for summary judgment as to the plaintiff's claim of retaliation is denied.

II

Race Discrimination

The defendant also seeks summary judgment as to the plaintiff's claim that the defendant discriminated against him on the basis of his race and color.   Again, this is a one-count complaint, and these allegations are intertwined with his allegations of retaliation.   Therefore, the court denies the defendant's motion as to the plaintiff's claim that the defendant discriminated against him on the basis of his race and color for the following reason.

As this court has previously noted:  “There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   The court's review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment ․ [S]ome courts have found that the language of Practice Book § 17–57 authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim ․ Nonetheless, the majority rule ․ is that Connecticut procedure does not allow entry of judgment on one part of an allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore will not allow entry of judgment on that claim.”  (Citation omitted;  internal quotation marks omitted.)   Ranciato v. Apostles of Sacred Heart, Superior Court, judicial district of New Haven, docket No. CV–09–5032877–S (May 2, 2012, Wilson, J.).   In that case, the court noted:  “All of the allegations in count one ․ assert a single claim of employment discrimination based on age, race and disability.   This claim is a single claim of employment discrimination and final judgment cannot be entered on any part of the allegations which would allow those portions to be severed from the rest of the discrimination claim.   This court sides with the majority of the Superior Court decisions and will not enter judgment against individual allegations in one count.   Because ․ summary judgment is inappropriate as to the claim for disability discrimination, this court therefore does not consider the [defendant's] motion for summary judgment with regards to the other allegations in count one.”   Id.

Similarly, in the present case, the plaintiff's complaint contains a single claim of employment discrimination based on unlawful retaliation and race.   Because summary judgment is inappropriate as to the allegations of unlawful retaliation, the court does not consider the defendant's contention that it is entitled to summary judgment as it relates to the allegations of race discrimination.

CONCLUSION

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

Wilson, J.

FOOTNOTES

FN1. The defendant also continually refers to the CHRO proceedings and the agency's decision, implying that they should have an impact on this action.   As noted, the CHRO dismissed the plaintiff's complaint following a merit assessment review.   The Appellate Court has disagreed with the suggestion that this process implicates res judicata, stating:  “To the extent that the argument suggests that the state commission's preliminary merit assessment review, which is conducted without a hearing, presentation of evidence or opportunity for crossexamination, operates as res judicata, precluding subsequent litigation, the defendant wisely has not pursued such a claim on appeal.”  Tellar v. Abbott Laboratories, Inc., 114 Conn App. 244, 248 n.4, 969 A.2d 210 (2009)..  FN1. The defendant also continually refers to the CHRO proceedings and the agency's decision, implying that they should have an impact on this action.   As noted, the CHRO dismissed the plaintiff's complaint following a merit assessment review.   The Appellate Court has disagreed with the suggestion that this process implicates res judicata, stating:  “To the extent that the argument suggests that the state commission's preliminary merit assessment review, which is conducted without a hearing, presentation of evidence or opportunity for crossexamination, operates as res judicata, precluding subsequent litigation, the defendant wisely has not pursued such a claim on appeal.”  Tellar v. Abbott Laboratories, Inc., 114 Conn App. 244, 248 n.4, 969 A.2d 210 (2009).

Wilson, Robin L., J.