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Rogers v. City of New Britain

United States District Court, D. Connecticut

May 17, 2016

VINCENT ROGERS, Plaintiff,
v.
CITY OF NEW BRITAIN, et al., Defendants.

          RULING AND ORDER

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         Vincent Rogers (or Rodgers)[1] is an African American employee of the City of New Britain who has worked for over a decade in its Water Department. He brings this lawsuit against his employer and several supervisors. He pleads a variety of claims, as discussed below, but they are principally claims of a racially hostile work environment and unlawful retaliation under Title VII of the Civil Rights Act and 42 U.S.C. § 1983. The defendants filed the present motion for summary judgment. For the reasons that follow, that motion is granted in part and denied in part.

         I. Standard of Review

         Summary judgment is appropriate when the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).

         When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d Cir.), cert. denied, 506 U.S. 965 (1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

         “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is “merely colorable, ” or is not “significantly probative, ” summary judgment may be granted. Anderson, 477 U.S. at 249-50.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Id. at 247-48. To present a “genuine” issue of material fact, there must be contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.

         If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to any material fact, ’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.

         II. Background

         The plaintiff, Vincent Rogers, is an African American man who has worked for the New Britain Water Department since 2003. At relevant times, Mark Zenobi and Ken Marzi[2] were his supervisors (Zenobi is identified as Rogers’s immediate supervisor), and Gilbert Bligh was the director of the Water Department. Rogers brings suit against all three of them in their individual and official capacities, along with the City of New Britain, the New Britain Water Department, and “Jane Doe, John Doe, and other unnamed individuals.” The precise nature of all of the claims (and the differences between some of the counts as they are enumerated in the complaint) is less than clear, because the complaint (as well as the briefing on both sides) makes extensive use of boilerplate recitations, with some repetitions and what appear to be occasional copy/paste errors. It is clear, however, that the essential allegations are of a racially hostile work environment-or, perhaps more accurately, of a generally and indiscriminately hostile work environment, frequently anti-gay (Rogers does not allege that he is gay nor that he was ever the target of anti-gay hostility, though he found it inappropriate), and of a few specific racial incidents.

         Rogers alleges that one day in 2004, on a Friday while he was clocking out at the end of the day, a co-worker named Dean Sasso (who is not a defendant, and is white) said something to the effect of “What’s up, my nigga?”[3] Rogers was shocked and offended by this, and he left. Shortly thereafter, he wrote a letter to management complaining of the incident, but he alleges that Sasso was never disciplined. A fact-finding proceeding occurred, at which Sasso denied using the slur (and Rogers was not asked to testify).[4] Sasso admitted no fault but agreed to attend sensitivity training. Rogers was not satisfied by that outcome, but he does not allege any further problems with Sasso or any concrete problems at work for a number of years, during which time he received satisfactory job evaluations.

         In September 2010, he was at a job site in the field and mistakenly turned a valve the wrong way, which caused water to flow into a trench where another worker was standing. That worker was not injured (the complaint says the mistake “almost caused injury” and the summary judgment briefs suggest the worker was forced against a building foundation by the water), but Rogers alleges that the worker got in his face, cursed at him, and threatened to kill him. That worker was “Mario” (last name unknown to Rogers) and apparently an independent contractor with whom Rogers did not regularly work. Rogers was found at fault for turning the valve the wrong way in a fact-finding proceeding. It is not clear whether he ever saw “Mario” before or since (but he names him as a “Doe” defendant).

         In January 2011, Rogers repeatedly received an undesirable work assignment (“pipe gang”). Such an assignment was supposed to go through a rotation with other employees (who are white), and Rogers alleges that he unfairly received the assignment several times consecutively, out of the rotation. He complained to Marzi, who did not acknowledge the problem to Rogers’s satisfaction. It happened again, and he accused Marzi of racial discrimination. He says that Marzi was angered by that accusation, slammed his seat angrily backward, walked over to Rogers, pointed his finger at him, and got in his face. A request for sick leave that Rogers had previously requested was subsequently denied.

         The following month, on February 11, 2011, Rogers arrived at work and saw that on the loading dock area there was a stuffed gorilla wearing Rogers’s work shirt (which has his name on it). He says that Zenobi and others laughed, and that he believed Zenobi had placed it. He took photos to document the incident and complained that the gorilla was a racist display that was intended to mock him. Marzi told him not to take it personally, that it was the work of a “sick person” who “needed counseling, ” and told Zenobi to throw the gorilla in the dumpster. Bligh undertook an investigation into the incident, and Zenobi denied placing the gorilla. There was security camera footage of the person placing the gorilla, but it was apparently of low quality, and the results of the investigation were inconclusive. Bligh recommended to the personnel director that diversity training be arranged for all Water Department staff at that location. It is not clear whether that training ever took place.

         Rogers filed an administrative complaint claiming employment discrimination, received a right-to-sue letter, and then filed the present complaint. He pleads thirteen counts, but the complaint is somewhat unclear and redundant, with apparent overlap among claims. It appears that some claims might not have been pursued or might have been included only as a result of sloppy copying and pasting. For instance, Rogers alleges age discrimination under the Age Discrimination in Employment Act (Compl. ¶ 26) (he is in his 40s) but does not appear to plead any facts to support such a claim nor to have pursued it in discovery.[5]

         Rogers enumerates his claims as follows:

• Count 1, pleading Monell/supervisory liability against New Britain;
• Count 2, pleading Title VII disparate treatment against New Britain and the Water Department;
• Count 3, pleading claims against Bligh, Marzi, and Zenobi under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988;
• Count 4, pleading claims against Bligh under Sections 1981, 1983 and 1988;
• Count 5, pleading claims against Bligh, Marzi, and Zenobi under Sections 1985(3) and 1988;
• Count 6, pleading claims against Bligh, Marzi, and Zenobi under Sections 1986 and 1988;
• Count 7, pleading claims against Bligh, Marzi, and Zenobi for intentional & negligent misrepresentation (specifically: the representation that Rogers would be treated fairly and without discrimination);
• Count 8, pleading an assault claim against Marzi for putting Rogers under the “apprehension of harmful or offensive contact” in the January 2011 incident when Marzi allegedly responded angrily to Rogers’s accusation of racial discrimination;
• Count 9, pleading an assault claim against “Mario” the contractor over the incident when Rogers ...

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