United States District Court, D. Connecticut
RULING AND ORDER
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
Rogers (or Rodgers) 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.
Standard of Review
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).
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).
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.
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.
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 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.
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?” 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). 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.
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”
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.
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.
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
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,
• 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