United States District Court, D. Connecticut
December 15, 2016
JOHN SCHNEIDER, Plaintiff,
REGENCY HEIGHTS OF WINDHAM, LLC, REGENCY HEALTHCARE MANAGEMENT, LLC, and CIENA HEALTHCARE MANAGEMENT, INC., Defendants.
RULING ON DEFENDANTS' MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE
John Schneider, brought this action against his former
employers, Defendants Regency Heights of Windham, LLC and
Regency Healthcare Management, LLC, and Ciena Healthcare
Management, Inc., a company that provided management services
to the other Defendants. Mr. Schneider alleges that
Defendants discriminated against him on the basis of his age,
in violation of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. §§ 621, et
seq. (“the ADEA”) and the Connecticut
Fair Employment Practices Act, Connecticut General Statutes
§ 46a-60, et seq. (“CFEPA”).
Defendants move for summary judgment on all of Mr.
Schneider's claims. For the reasons that follow, their
motion is DENIED.
Factual Allegations 
Regency Heights of Windham, LLC (“Regency
Heights”) is the former operator of a skilled nursing
facility located at 595 Valley Street in Willimantic,
Connecticut (the “Windham Facility” or
“Facility”). Def.'s L. R. 56(a) Stmt., ECF
No. 63-2, ¶1. Regency Heights began operating the
Windham Facility in September 2009. Id. In December
2014, after this case was filed, JACC Healthcare Center of
Windham, LLC d/b/a Vanderman Place, acquired ownership of the
Windham Facility. Id. During the period of time that
is relevant to this dispute, defendant Regency Healthcare
Management, LLC (“Regency Healthcare”) provided
management services to Regency Heights, along with three
other facilities in Connecticut. Id. at ¶2. The
third Defendant, Ciena Healthcare Management, Inc.
(“Ciena”) is a Michigan corporation that provides
management services to skilled nursing facilities, including
Regency Healthcare. Id. at ¶3. Ciena also
provided limited human resource services to the Windham
began working at the Windham Facility on May 11, 1998 and
worked there until he was terminated on November 9, 2012.
Def.'s L. R. 56(a) Stmt., ¶4. The parties dispute
whether his title was Maintenance Director or Maintenance
Supervisor. See L. R. 56 Stmts., ¶7-8. See
also Pl.'s Opp. Mem., Ex. ZZ, ECF No. 66-14,
Schneider Dep., 15:23-16:9. Mr. Schneider supervised Windham
Facility's maintenance services and preventative
maintenance program and was “responsible for upkeep of
the Facility's physical plant, equipment and
supplies.” Id. at ¶7. Plaintiff sometimes
used the e-mail address
email@example.com. Pl.'s Opp.
Mem., Ex. 15, ECF No. 66-15, Deposition Exhibits, 60 (Ex. 10,
Oct. 25, 2012 e-mails).
Schneider's direct supervisor was Mr. Thomas Harris, the
Facility's Administrator, who began working in that
position when he replaced John Hooker in March 2012.
Def.'s L. R. 56(a) Stmt., ¶5. As the Administrator,
Mr. Harris was responsible for the overall management,
leadership, growth, and profitability of the Windham Facility
and was “expected to supervise management staff,
” including department heads like Mr. Schneider.
Id. at Ex. B, Harris Aff., ECF 63-3, ¶4. Mr.
Harris worked for Regency Heights of Windham, LLC, but used
the e-mail address firstname.lastname@example.org. See
Pl.'s Opp. Mem., Ex. QQ, ECF No. 66-5, Def.'s Initial
Responses, 6 (n. c.); Def.'s L.R. 56(a) Stmt. at Ex. B
Harris consulted with Mr. Steven Vera and was Mr. Vera's
“direct report.” Pl.'s Opp. Mem., Ex. YY, ECF
No. 66-13, Harris Dep., 80:6. Mr. Vera began working as
Regional Director of Operations (“RDO”) for
Regency Healthcare in September 2011. As RDO, Mr. Vera
“provided leadership, support, and guidance to
management and staff at each Facility, including the
Administrator.” Def.'s L.R. 56(a) Stmt., Ex. A, ECF
No. 63-3, Vera Aff. ¶6. Mr. Vera reported to Kristine
Halsey, Chief Operating Officer at Ciena Healthcare
Management, Inc. Id. at ¶5.
Harris and Mr. Vera would sometimes have “conversations
about [Mr. Schneider's] performance.” Pl.'s
Opp. Mem., Ex. YY, Harris Dep., 78:1-4. At one point, Mr.
Vera told Mr. Harris “that the building [was] still was
not up to acceptable standards and that it was likely a
result of John [Schneider]'s leadership in the
maintenance department.” Id. at 75: 6-11.
Later, Mr. Harris consulted with Mr. Vera concerning specific
incidents that made him concerned about Mr. Schneider's
performance. He also consulted with Mr. Vera when he decided
to terminate Mr. Schneider in late October 2012. Id.
at ¶45. See also Pl.'s Opp. Mem., Ex. YY,
Harris Dep., 80:6. However, Mr. Vera testified that a
decision about discipline-including whether to issue warnings
to staff that he supervised or to place people on performance
plans-would be Mr. Harris's “decision, not
mine.” Pl.'s Opp. Mem., Ex. WW, ECF No. 66-11, Vera
November 2012, Defendants terminated Mr. Schneider's
employment and replaced him with a younger employee. Mr.
Harris proposed the termination to other employees of the
Defendants. In an e-mail to Kristine Halsey, Chief Operating
Officer at Ciena; Nancy Erwin, Director of Human Resources at
Ciena, and Mr. Vera, Mr. Harris suggested that Mr. Schneider
be terminated. Def.'s L. R. 56(a) Stmt., ¶45. In the
e-mail he described two incidents that caused him to be
concerned about Mr. Schneider's performance. Id.
at Ex. B-5. He also indicated Mr. Schneider's age.
Id. (“John's DOH is 05/11 /1998. DOB is
08/07/1949 (63 y.o.)”). In subsequent emails, Ms.
Halsey, Ms. Erwin and Mr. Vera all agreed to the termination
decision. Id. The record contains evidence
explaining the two incidents in detail. Both incidents are
further described below.
Mr. Schneider's Handling of Maintenance
Requests over the Weekend of July 21 and July 22,
24, 2012, Mr. Harris issued a Notice of Corrective Action -
Final Written Warning to Mr. Schneider because of two
maintenance-related incidents that occurred over the course
of one weekend in July 2012. Def.'s L. R. 56(a) Stmt.,
¶12, ¶¶27-28. Mr. Schneider had no
disciplinary notices in his file until this date. See
Id. at Ex. B-1, Notice of Corrective Action.
parties seem to agree that Mr. Schneider's position
involved some type of weekend availability. While there is no
reference to a requirement to be on call in Mr.
Schneider's job description, he testified that he was
aware of an expectation that he “be available outside
of [his] regular working hours.” See
Def.'s L. R. 56(a) Stmt., Ex. D, ECF No. 70, Schneider
Dep., 78:3-7; Pl.'s Opp. Mem. Ex. YY, Harris Dep.,
Benedict, the Facility's Maintenance Assistant, was also
available after hours. Def.'s L.R. 56(a) Stmt., ¶9.
Mr. Schneider and Mr. Benedict both suggested on the record
that they either alternated weekends or shared responsibility
for weekend call, depending on the weekend's plans.
See Pl.'s Opp. Mem., Ex. 4, Benedict Aff.
¶¶8-10; Id. at Ex. 2, Schneider Aff.,
¶8. Mr. Harris also indicated that he had learned early
in his tenure as Administrator that Mr. Benedict was on call
most weekends and “had a conversation” with Mr.
Schneider about the two employees sharing call duties more
equally. Pl.'s Opp. Mem., Ex. YY, Harris Dep. 101:7-12.
After this conversation, Mr. Harris made an “on call
schedule” with the two employees, but the schedule
“was never really adhered to.” Id. at
155: 19-22. Instead, Harris said, “Dave Benedict was
close to and was comfortable taking call every
weekend.” Id. Mr. Harris also instructed both
Mr. Benedict and Mr. Schneider to provide contact phone
numbers to shift supervisors so that they would be reachable
in case of after-hours maintenance emergencies. Id.
at 168:21-25, 160: 1-6.
p.m. on the afternoon of Saturday, July 21, 2012, a staff
member at the Windham Facility called Mr. Harris on his
cellphone to report a maintenance issue relating to the
Facility's heating system. Def.'s L.R. 56(a) Stmt.,
¶14. The record does not make clear the exact nature of
the problem, but the parties suggested at oral argument that
it resulted in a patient's room becoming uncomfortably
hot. Mr. Harris left a voicemail on Mr. Schneider's
cellphone about the issue. Id. Mr. Schneider had
kept his phone in his truck while helping his son with an
errand and did not hear the voicemail until approximately
7:30 p.m., over four hours later. Id. at ¶17.
At 7:54 p.m. Mr. Harris contacted the Facility and learned
that Mr. Schneider had neither communicated with any Facility
staff nor otherwise addressed the problem. Id. at
¶15. Mr. Harris also called Mr. Benedict around this
time. Id. at ¶45; Id. at Ex. B, Harris
Aff., ECF 63-3, ¶9. Shortly thereafter, Mr. Benedict
went to the Facility to fix the broken heater. Id.
At 8:46 p.m., more than an hour after hearing Mr. Harris'
voicemail, Mr. Schneider sent a text message to Mr. Harris,
stating that he was “on his way in” to the
Facility. Def.'s L.R. 56(a) Stmt., ¶16. Mr. Harris
responded that Mr. Benedict had resolved the issue.
Harris tried to reach Mr. Schneider for another maintenance
issue on Sunday, July 22, 2012. Shortly before 7:00 p.m. that
day, the Windham Facility's Director of Nursing contacted
Mr. Harris about a ceiling leak. Def.'s L.R. 56(a) Stmt.,
¶19. Mr. Harris instructed the Facility staff to
“monitor” the leak by putting a bucket beneath it
to catch the water. Pl.'s L.R. 56(a) Stmt., ¶20,
citing Harris Dep., Ex. YY, 145:11-23. A couple of hours
later, Mr. Harris called Mr. Schneider's cell phone
twice-at 9:35 p.m. and 9:37 p.m.-and Mr. Schneider did not
answer either time. Def.'s L.R. 56(a) Stmt., ¶21.
Mr. Harris left a voicemail for Mr. Schneider about the
incident. Id. Mr. Schneider did not respond to Mr.
Harris's voicemail about the leak until the next day
because he again had left his cell phone in his truck from
8:00 a.m. Sunday morning until Monday morning. Def.'s
L.R. 56 Stmt., ¶¶24-25; Pl's L.R. 56 Stmt.,
¶25, citing Ex.3, Schneider Aff., ¶16.
Harris also tried to contact Mr. Benedict on July 22.
Id. at ¶22. The record does not establish when
he attempted to contact Mr. Benedict or whether he left a
message for Mr. Benedict. Pl.'s L.R. 56(a) Stmt.,
¶22. Mr. Harris testified that he does not believe he
heard from Mr. Benedict on that day. Id. at Ex. YY,
Harris Dep., 167:14-18.
Harris testified that he called Mr. Schneider before calling
Mr. Benedict on July 21 and 22 because he knew that Mr.
Benedict had to attend a family funeral and was “not
going to be able to take call on that particular
weekend.” Pl.'s Opp. Mem., Ex. YY, Harris Dep.,
140: 12-14. In his deposition, he stated:
I recall going back a day or two before the weekend. [Mr.
Schneider's] assistant, David Benedict, lost his step
father, passed away. Based upon what [Mr. Benedict] said he
had to do and responsibilities that he had up to and
including the weekend, that he was not going to be able to
take call on that particular weekend. I recall having a
conversation with [Mr. Schneider] specifically, and I
can't said that it was the Thursday or Friday before, and
that conversation was about the need to have John take call,
be responsible to the building because [Mr. Benedict] had
other personal matters that he had to attend to.
Id. at 140: 8-20. Mr. Schneider claims that Mr.
Harris created this justification after the fact, citing an
affidavit from Mr. Benedict stating that he “did not
have any conversations with Mr. Harris regarding my
stepfather's passing impacting that upcoming
weekend's on-call coverage.” Pl.'s Opp. Memo,
13, citing Ex. 4, Benedict Aff., ¶14. It is unclear from
Mr. Harris's testimony and Mr. Benedict's affidavit
whether the two men present conflicting versions of their
conversation or whether Mr. Harris's statement implies
only that Mr. Harris decided that the passing of Mr.
Benedict's stepfather would impact Mr. Benedict's
weekend availability, even if Mr. Benedict did not himself
suggest that in conversation.
24, 2012, Mr. Harris issued a Notice of Corrective Action -
Final Written Warning to Mr. Schneider regarding his
unavailability over the weekend. In the Notice, Mr. Harris
specified that “[o]n both 7/21 (Sat) and 7/22 (Sun)
John either did not respond, or did not respond timely to
telephone calls made to both his home phone & cell phone
when conditions at the facility necessitated his response and
subsequent presence at the facility.” Def.'s L.R.
56(a) Stmt., Ex. B-1, Not. of Corrective Action. He added
As the supervisor of the maintenance department, John must be
responsive to the needs of the facility. Home & Cell
phone #'s must be available to nursing supervisors, and
VM messages must be responded to timely.
Id. In the Notice, Mr. Harris also indicated that
there were no “Prior Disciplinary Notices on
File” for Mr. Schneider. Id. He added that Mr.
Schneider would be terminated if “the same violation
occurr[ed] again.” Id. Mr. Harris then
presented Mr. Schneider with the warning and Mr. Schneider
signed it on July 28, 2012. Id., see also Def.'s
L.R. 56(a) Stmt., ¶28.
Monday, July 23, before issuing the warning, Mr. Harris spoke
with Mr. Vera about the incidents. Mr. Vera remembered at
deposition that Mr. Harris merely expressed “his
frustration with his inability to reach” Mr. Schneider
and did not ask for guidance about what to do. Pl.'s Opp.
Mem., Ex. XX, Vera Dep., 14: 9-14. Because Mr. Harris was Mr.
Vera's “direct report, ” Mr. Harris testified
that he wanted to “inform him of the circumstances and
what [his] decision was.” Id. at 80: 7-8. Mr.
Harris added that the decision to issue a Final Written
Warning was Mr. Harris's although Mr. Vera
“concurred.” Pl.'s Opp. Mem. Ex. YY, Harris
Dep., 80: 10.
Mr. Schneider's Preparation for Hurricane Sandy
October 2012, the Facility began preparations in advance of
Hurricane Sandy, which was expected to make landfall in the
area on the afternoon of Monday, October 29, 2012. Def.'s
L.R. 56(a) Stmt., ¶31. On Thursday, October 25, 2012,
Mr. Schneider checked the fuel level in the Facility's
five 125-gallon propane tanks, which fueled the
Facility's generator. Id. at ¶31. He
contacted the Facility's propane fuel provider, AmeriGas,
in order to “top off” the Facility's propane
tanks in advance of the storm. Id. Later that day,
Mr. Schneider informed Mr. Harris that the Facility was on
AmeriGas's “priority list, ” and should
receive the gas delivery the following day. Id. at
¶33. See also Id. at Ex. B-3, 10/25/2012 e-mail
Schneider worked at the Facility on both Friday, October 26
and Saturday, October 27, 2012. Def.'s L.R. 56(a) Stmt.,
¶¶34-36. While he was on site, he did not check the
propane tanks to determine whether the fuel had been
delivered. Pl.'s L.R. 56(a) Stmt., ¶31. He assumed
that AmeriGas delivered the fuel, because the company had
always completed deliveries as scheduled in his 14 years of
experience at the Facility. Id., citing Ex. 3,
Schneider Aff., ¶33; Id. at Ex. ZZ, Schneider
Dep., 189: 11-17; 177: 13-16.
Monday, October 29, at approximately 6:00 a.m., Mr. Schneider
checked the generator's tanks and realized that AmeriGas
had not refilled them. Pl.'s L.R. 56(a) Stmt., ¶36.
He contacted AmeriGas using both the company's local and
national numbers. Id. He continued to call the local
number until the morning meeting. Id. He informed
Mr. Harris about the gas shortage upon Mr. Harris's
arrival to the Facility at approximately 8:00 a.m.
Harris and Mr. Schneider met privately after a scheduled
Monday morning meeting, and Mr. Harris “expressed [his]
disappointment” with the situation. Pl.'s Opp.
Mem., Ex. YY, Harris Dep., 207: 13-19. He also asked Mr.
Schneider for AmeriGas's contact information.
Id. He then dismissed Mr. Schneider from his office
and began calling the company. Id. at 207: 1-4,
25. See also Def.'s L.R. 56(a) Stmt.,
¶¶36-38. Mr. Harris learned that AmeriGas was
taking its trucks off the road in advance of the storm and
would not be able to deliver fuel to the Windham Facility
before the hurricane. Id. at ¶39. With the
assistance of other staff-members, but not Mr. Schneider, Mr.
Harris secured a propane delivery to the Windham Facility
from another provider. Id. at ¶40.
Harris felt that Mr. Schneider had not been “part of
the effort to secure a propane provider to deliver propane to
the Windham Facility before the hurricane.” Def.'s
L.R. 56(a) Stmt. ¶41. He was especially
“concerned” by Schneider's “lack of
urgency.” Id. at ¶42. He also thought
that Mr. Schneider was “aloof” when the two men
spoke in his office on Monday. Pl.'s Opp. Mem., Ex. YY,
Harris Dep., 209: 2. When he remembered the incident, Mr.
Harris said that he “would have liked to have seen some
emotion, some acknowledgement that we were in crisis …
[he] wanted to see concern, and [he] didn't see
it.” Id. at 233: 1-5. Mr. Harris felt that Mr.
Schneider's “fourteen years of exemplary
performance [did] not negate the seriousness of [the
weekend's] incidents.” Id. at 230: 21-22.
Schneider questions the urgency of the situation that Mr.
Harris described. He claims that, even without the additional
propane delivery, there would have been enough fuel in the
tanks on Monday morning to power the Facility through 5:00
p.m. on Tuesday. Pl.'s L.R. 56(a) Stmt, ¶43, citing
Ex. ZZ, Schneider Dep., 190: 5-191: 3. He adds that the
Facility was part of a “mutual aid group, ” which
ensured its access to thirty fuel vendors in case of
Mr. Schneider's Termination
Hurricane Sandy, Mr. Harris spoke with Mr. Vera about Mr.
Schneider's behavior during the preparation for the
storm. Pl.'s Opp. Mem., Ex. YY, Harris Dep., 82: 1-6. In
this conversation, he told Mr. Vera that his
“recommendation was termination.” Id.
Mr. Vera suggested that Mr. Harris write an e-mail to certain
Ciena staff members, but otherwise did not ask questions
about Harris's recommendation. Id. at 83: 1-6.
Mr. Harris wrote an e-mail to Mr. Vera, Ms. Halsey, Chief
Operating Officer at Ciena, and Ms. Erwin, VP of Human
Resources at Ciena. See Def.'s L. R. 56(a)
Stmt., Ex B-5.
e-mail, he said that Mr. Schneider “was negligent in
assuring the safety and well-being of our building and our
residents by not following up on the fuel delivery” and
suggested that Mr. Schneider be terminated. Id. All
of these higher-level executives agreed in response e-mails
that termination was appropriate. Id. Mr. Harris
then wrote another e-mail suggesting that the company pay Mr.
Schneider for his accrued Paid Time Off (“PTO”),
despite the fact that this was not required by company
policy. Id. He noted that “other than the
warning from July, a recent event, [Mr. Schneider's]
personnel file is clean.” Id. Mr. Vera
responded to say that this would be “appropriate given
[Schneider's] longevity” and because another
employee had been given a similar payoff when she was
noted above, Mr. Harris also indicated Mr. Schneider's
age and date of hire in the e-mail. He testified that he was
“simply trying to provide some background and some
demographic information, ” and that he had “no
idea” of Mr. Schneider's age before writing the
email. Pl.'s Opp. Mem., Ex. YY, Harris Dep., 232: 14-17.
November 9, 2012, Mr. Harris formally terminated
Plaintiff's employment at Regency Heights. Def.'s
L.R. 56(a) Stmt., ¶47. Mr. Harris then offered Mr.
Schneider's position to David Benedict (age 48), who
declined, and then to Thomas Stratton (age 52). Id.
at ¶48; Pl.'s L. R. 56(a) Stmt., ¶48, citing
Ex. YY, Harris Dep., 244:3-7. See also Id. at Ex. 4,
Benedict Aff., ¶¶19-20. Mr. Stratton accepted Mr.
Harris's offer and began working as the Maintenance
Director at Regency Heights on December 3, 2013. Id.
record contains a chart entitled “Regency Heights of
Windham -Terminated Employees: 1/1/2011-4/30/2013.”
Pl.'s Opp. Mem., Ex. 15, Hooker Dep. Exhibits in
3:13-CV-00121-AVC at Ex. 15 (chart). The chart suggests that
the Facility terminated a number of employees in the two-year
period surrounding Mr. Schneider's firing. Based on the
information contained in the chart, the mean age of the
terminated employees was 38 years old and the majority of the
terminated workers were under 40. However, when limited to
employees terminated due to “job performance”
like Mr. Schneider, the mean age of termination was 51.5
years. Id. Among this group, all of the terminated
employees were younger than Mr. Schneider but none was under
Progressive Discipline at Regency
Schneider argues that the Facility's employee manual
“called for” progressive discipline of employees
whose work performance was unsatisfactory. See
Pl.'s Opp. Mem., 17; Id. at Ex. 16, ECF No.
66-15, Schneider Dep. Exhibits (Ex. 4: Regency Heights of
Windham Employee Handbook), p. 10-28. He claims that Mr.
Schneider's supervisors did not afford him the
opportunity to reform his alleged misbehaviors, despite the
company's stated interest in progressive discipline.
specifically, the Manual confirms that supervisors have the
discretion to institute corrective action, including
counseling and warnings, after an employee's misbehavior.
It also allows employees to dispute a supervisor's
disciplinary action. The Manual states that:
If a supervisor concludes that any improper conduct or
deficient work performance has occurred, corrective or
disciplinary action may be taken. Whether the action involves
counseling, the issuance of a warning, or dismissal is within
the facility's discretion. If you believe that any
disciplinary action, up to and including discharge, is
improper, you should use our complaint resolution procedure.
Id. at Sec. 6, p. 17. While the Manual does not
require progressive discipline, many supervisors, including
Mr. Schneider's, employed progressive disciplinary
measures in many cases. Mr. Vera stated that a performance
improvement plan (“PIP”) “was a tool that
was used at [Ciena].” Pl.'s Opp. Mem., Ex. WW, Vera
Dep. in 13-cv-00121-AVC, 465: 11-12.
example, Mr. Vera placed Jarret McClurg, then-Administrator
of a Regency Heights Facility in Norwalk, on a 30-day PIP
because of Mr. McClurg's unresponsiveness to various
maintenance issues. Mr. McClurg's PIP states that he,
among other things, did not give “clear direction
[during] recent storm Sandy” and “lacked a sense
of urgency.” Pl.'s Opp. Mem., Ex.16, Hooker Dep.
Exhibits in 3:13-CV-00121-AVC (Ex. 56: McClurg Performance
Improvement Plan). Mr. McClurg was 44 years old. Id.
of 2012, Mr. Harris placed Ms. Louise Couch, then Dietary
Service Manager at the Facility, on a PIP. Pl.'s Opp.
Mem., Ex. RR, Couch PIP. The PIP identified Ms. Couch's
lack of “follow through.” Id. A follow
up report indicated that she had, among other things, left
the Facility at 3:00 p.m. on a day when the dining room was
unexpectedly closed and allowed the kitchen to run out of
milk. Id. Ms. Couch was then 46 years old.
Mr. Vera's Alleged Statements about Age
Mr. Harris initiated the termination of Mr. Schneider, Mr.
Schneider points to several pieces of evidence concerning Mr.
Vera's animus towards older workers in his brief opposing
summary judgment. All of these allegations arise from
disputed testimony provided by John Hooker, a former employee
of the Facility who filed an age discrimination case against
the same Defendants also pending before this Court (Covello,
J.). See Ruling on Def.'s Mot. Sum. J.,
3:13-CV-00121(AWC), ECF No. 73. Mr. Hooker worked as the
Administrator of the Facility in 2009, when Regency Heights
became the operator, until January 12, 2012, when he was
terminated. Id. at 8.
Schneider submits an affidavit from Mr. Hooker alleging that
Mr. Vera made several statements about Mr. Hooker's age
before Mr. Hooker was fired. See Pl.'s Opp.
Mem., Ex. 5, Hooker Aff., ¶14. Mr. Hooker had known Mr.
Vera for over twenty years because Vera once completed an
administrator-in-training program under Hooker. Ruling on
Def.'s Mot. Sum. J., 3:13- CV-00121(AWC), 6. The two had
also attended various conferences and seminars together.
Id. Mr. Hooker states that Mr. Vera, upon meeting
Mr. Hooker in September 2011, remarked that he was surprised
that Hooker had not already retired. Pl.'s Opp. Mem., 19,
citing Ex. SS, Hooker Dep. in 3:13-CV-00121-AVC, 71: 16-18;
Id. at Ex. 5, Hooker Aff. ¶14. According to
Hooker, Mr. Vera also boasted about his termination of
long-term employees at another company and referred to older
workers as “deadwood.” Id. Mr. Vera does
not recall saying to Hooker that he was surprised that Hooker
had not yet retired. Id. at Ex. XX, Vera Dep., 57:
Schneider also cites Mr. Vera's treatment of Grace
Flight, former Administrator of the Regency Heights facility
in Stamford. In December, 2014, Ms. Flight filed an internal
complaint with Regency Heights/Ciena alleging age
discrimination. Pl.'s Opp. Mem., 21. In this complaint,
Ms. Flight alleged that Mr. Vera asked her about her
retirement plans in November 2014. After Flight said that she
had no plans to retire, Mr. Vera allegedly
“pressured” her to leave. Id. at
Schneider provides far less evidence that suggesting that Mr.
Harris was biased against older workers, with the exception
of an affidavit from Mr. Benedict claiming that “[w]hen
Mr. Harris informed me that Mr. Schneider was terminated, Mr.
Harris said that Mr. Schneider ‘has been here too long,
' and ‘got too comfortable.'” Pl.'s
Opp. Mem. Ex. 4, Benedict Aff. ¶19.
Decision-making Responsibilities at the Facility
list Mr. Harris, Mr. Vera, Ms. Erwin and Ms. Halsey as the
“persons known to the Defendants who were involved in
making the decision” to fire Mr. Schneider. Pl.'s
Opp. Mem., Ex. QQ, Def.'s Initial Responses, 6 (n.b.).
Mr. Harris communicated with all three people about the
decision, despite the formal distinctions between their
employers. Mr. Harris also said that he understood that
“approval needed to be gained by Ciena in order to make
any decision” concerning employment. Pl.'s Opp.
Mem., Ex. YY, Harris Dep., 84: 14-16. Mr. Harris
“didn't see [Ms. Halsey] as being from a different
company.” Id. at 83:25. About Ms. Erwin, Mr.
Harris only confirmed that she, as the Vice President of
Human Resources for Ciena, “also weigh[ed] in on the
decision to terminate John Schneider.” Id. at
three companies shared many responsibilities for managing the
Facility's staff. Some of Defendants' workplace
documents were managed jointly. For example, Mr. Vera
testified that Ciena and Regency Healthcare Management used
the same document to state both companies' workplace drug
and alcohol policies, which were the same. Pl.'s Opp.
Mem., Ex. WW, Vera Dep. in 13-cv-00121, 43: 17-18
(“It's one and the same policy … for both
entities.”). Many of Regency Healthcare
Management's files were stored at Ciena's home office
in Michigan. Id. at 461: 16-25.
Standard of Review
motion for summary judgment, the burden is on the moving
party to establish that no genuine issues of material fact
remain in dispute and that it is thus “entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is “material” if it “might affect the
outcome of the suit under the governing law” and a
factual issue is “genuine” if “a reasonable
jury could return a verdict for the nonmoving party”
based on it. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
reviewing the record, this Court must “construe the
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.”
Gary Friedrich Enters., L.L.C. v. Marvel Characters,
Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citations
omitted). If there is any evidence in the record from which a
reasonable factual inference could be drawn in favor of the
opposing party on the issue on which summary judgment is
sought, summary judgment is inappropriate. See Sec. Ins.
Co. of Hartford v. Old Dominion Freight Line Inc., 391
F.3d 77, 83 (2d Cir. 2004); Anderson, 477 U.S. at
250 (summary judgment is proper only when “there can be
but one reasonable conclusion as to the verdict”).
determining whether summary judgment is appropriate, the
Court must consider only admissible evidence. See Spiegel
v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (“It
is well established that in determining the appropriateness
of a grant of summary judgment, [the court] ... may rely only
on admissible evidence”) (citation and internal
quotation marks omitted); Fed.R.Civ.P. 56(e).
Schneider claims that Defendants discriminated against him
based on his age, in violation of ADEA and CFEPA. The Court
addresses each of these claims in turn. As a preliminary
matter, the Court addresses whether the claims of age
discrimination should remain against all three Defendants.
Obviously, if there is no basis for a claim against one or
more of the Defendants, then any such defendant should be
dismissed from the case now. For now, the answer to that
question is yes. If the claims of age discrimination proceed
against any of the Defendants, they should proceed against
all of them.
Joint Liability of the Three Defendants
Schneider alleges that all three Defendants are jointly
liable for discriminating against him. At this stage of the
proceeding, defendants have not contested this fact. The
three companies are formally separate entities. Mr. Schneider
was employed by defendant Regency Heights. Mr. Vera and Mr.
Harris were employees of Regency Healthcare Management, a
management consultant employed by Regency Heights. Ms. Erwin
and Ms. Halsey were employed by Ciena.
in the Second Circuit have used the “single
employer” or “integrated employer” test,
which was originally developed by the National Labor
Relations Board, to assess whether two employers can be
jointly liable for an allegedly discriminatory employment
decision. Cook v. Arrowsmith Shelburne, Inc., 69
F.3d 1235, 1237 (2d Cir. 1995) (“We believe that the
appropriate test under Title VII for determining when parent
companies may be considered employers of a subsidiary's
employees is the four-part test adopted by the Fifth, Sixth,
and Eighth circuits”); Woodman v. WWOR-TV,
Inc., 411 F.3d 69, 89 (2d Cir. 2005) (using the
“joint-employer” theory in an ADEA case). This
test requires an analysis of four factors: “(1)
interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common ownership or
financial control.” Cook, 69 F.3d at 1237.
two companies collaborated in employment decisions, they may
be considered a joint enterprise for the purposes of
discrimination liability. Brown v. Daikin Am., Inc.,
756 F.3d 219, 227 (2d Cir. 2014). In other words, as the
Second Circuit has stated, centralized control over labor
relations is “the most important prong in the four-part
test.” Id., citing Cook, 69 F.3d at
1240. To determine whether two companies shared
“centralized control over labor relations, ” a
court must assess “what entity made the final decisions
regarding employment matters related to the person claiming
discrimination.” Id. “Day-to-day control
over labor relations” is not required. Turley v.
ISG Lackawanna, Inc., 774 F.3d 140, 156-57 (2d Cir.
2014) (internal quotation marks omitted). Rather, the
plaintiff “must show only that the corporate
parent's involvement is sufficient and necessary to the
total employment process, even absent total control or
ultimate authority over hiring decisions.” Id.
In Turley, the Second Circuit held that plaintiff
had made a sufficient showing of an integrated enterprise
when there was “some evidence that the parent company
was directly and necessarily involved in decisions relating
to the plaintiff's employment .... and [that] complaints
about harassment [at defendant subsidiary] were reported to
the corporate [parent's] human resources
stage, the three Defendants should be considered joint
employers because individuals from the three corporations
played integral roles in Mr. Schneider's termination and
in employment decisions more generally. Mr. Harris testified
that he didn't see Ms. Halsey and Ms. Erwin, who were
both employees of Ciena, “as being from a different
company” and that he understood that “approval
needed to be gained by Ciena in order to make a
decision” to terminate an employee. Mr. Harris
frequently consulted with Mr. Vera, an employee of Regency
Healthcare Management, about management decisions. At one
point, he was told by Mr. Vera that Mr. Schneider's work
had been unsatisfactory. Finally, both Schneider and Harris
had access to e-mail addresses at “regencyhc.com,
” much like Mr. Vera did. See Echevarria v. Insight
Med., P.C., 72 F.Supp.3d 442, 462 (S.D.N.Y. 2014)
(concluding that two corporate entities were “a single
integrated employer” when plaintiff was given email
addresses for both entities). There is also some suggestion
that the companies were jointly owned.
Mr. Schneider has presented evidence that representatives of
all Defendants knew of his age when he was terminated. The
Second Circuit has maintained that two separate employers
cannot be jointly liable unless the plaintiff can show that
the employer that “actually made the discharge
decision” was aware of the plaintiff's age.
Woodman, 411 F.3d at 89. In Woodman the
Second Circuit required proof that plaintiff's formal
employer communicated that information about plaintiff's
age to the subsidiary who actually made the discharge
decision or proof that the parent company had “itself
played a decision-making role in that
discharge.” Id. The record here makes
clear that employees of both Regency Healthcare and Ciena
knew of Mr. Schneider's age when they read Mr.
Harris's e-mail suggesting termination. The record also
establishes that these decision-makers all concurred in the
decision to terminate Mr. Schneider.
purposes of deciding this motion, the Court concludes that
the three entities were “joint employers” for the
purposes of Mr. Schneider's discrimination suit. It is
entirely possible that the evidence presented at trial will
reveal an insufficient degree of integration between the
three Defendants, but at this stage in the litigation, the
Court presumes that all of three Defendants must face trial
on Mr. Schneider's claims, if any of them have to face
The Burden Shifting Framework for Mr. Schneider's ADEA
and CFEPA Claims
ADEA, it is unlawful for an employer to “discharge any
individual because of such individual's age [or] to
limit, segregate, or classify his employees in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's age[.]” 29
U.S.C. § 623(a). The CFEPA is generally
“coextensive” with federal anti-discrimination
statutes and similarly prohibits employers from
discriminating or retaliating against individuals because of
their age. See Brittell v. Dep't of Corr., 247
Conn. 148, 164 (1998); Conn. Gen. Stat. Ann. §
in the Second Circuit analyze claims for age discrimination
under both ADEA and CFEPA using the burden shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 106 (2d Cir. 2010) (using the
McDonnell Douglas approach for an ADEA claim);
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 556 (2d
Cir. 2010) (“The analysis of discrimination and
retaliation claims under CFEPA is the same as under Title
VII”); Rubinow v. Boehringer Ingelheim Pharms.,
Inc., 496 F. App'x 117, 118 (2d Cir. 2012)
(“Summary judgment motions in age discrimination cases
under the ADEA and CFEPA are decided using the McDonnell
Douglas burden-shifting test.”).
the McDonnell Douglas burden-shifting framework, the
plaintiff “bears the initial burden of establishing a
prima facie case of discrimination.”
Gorzynski, 596 F.3d at 106. This creates a
presumption that the employer unlawfully discriminated
against the employee, thus placing upon the defendant
“the burden of producing an explanation to rebut the
prima facie case-i.e., the burden of
‘producing evidence' that the adverse employment
actions were taken ‘for a legitimate, nondiscriminatory
reason.'” St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506-07 (1993) (quoting Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
defendant carries this burden of production, the presumption
raised by the prima facie case is rebutted and the burden
shifts back to the plaintiff to present evidence that
employer's proffered reason was a pretext for
discrimination” or “by presenting facts, which
taken in his favor, suffice to show that a triable issue
exists as to whether his age was a ‘but for' cause
of his termination.” Delaney v. Bank of Am.
Corp., 766 F.3d 163, 168 (2d Cir. 2014) (internal
quotation marks and citations omitted). To show that age was
the “but for” cause of the employer's action,
a plaintiff must show that age was “an antecedent but
for which the result in question would not have
occurred.” Burrage v. United States, 134 S.Ct.
881, 888 (2014). A plaintiff can meet this burden even if age
“combines with other factors to produce the result,
” as long as “the other factors alone would not
have done so.” Id. The plaintiff must, in
other words, show that age was “the straw that broke
the camel's back.” Id.
Mr. Schneider's Prima Facie Case
order to survive summary judgment, Mr. Schneider first must
make out a prima facie case of discrimination.
Gorzynski, 596 F.3d at 107. Specifically, he must
show that (1) he was within the protected age group, (2) he
was qualified for the Maintenance Supervisor position, (3) he
experienced an adverse employment action and (4) such action
occurred under circumstances giving rise to an inference of
discrimination. Id. This burden is “not a
heavy one” and Mr. Schneider has met it. Id.
Schneider was sixty-three when he was fired by Defendants. He
had worked as Maintenance Supervisor from 1998 to 2012 and
was generally qualified for that work. Defendants fired him
and offered his job to Mr. Stratton and Mr. Benedict, who
were 11 and 18 years younger than Mr. Schneider,
respectively. These age differences are “not
insignificant.” Tarshis v. Riese Organization,
211 F.3d 30, 38 (2d Cir. 2000) (sixty-seven year old
plaintiff made a prima facie case when he was eight years
older than his replacement); Byrnie v. Town of Cromwell
Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001) (holding
that rejection of plaintiff in favor of significantly younger
applicant, who was also over forty, can support an inference
of age discrimination). Mr. Harris included Mr.
Schneider's age in an email regarding his termination, so
a fact-finder could reasonably infer that Mr. Vera and the
other decision-makers at issue were aware of Mr.
Schneider's age and surmised that he was older than his
replacements. See Woodman, 411 F.3d at 81
(“Without some evidence that an employer knew that it
was replacing an older worker with a younger one, intentional
discrimination cannot be the ‘required
Defendants' Legitimate, Nondiscriminatory Reason
assert that “there was a legitimate, nondiscriminatory
reason for terminating [Mr. Schneider's] employment: his
demonstrated poor job performance.” Def.'s Mot. for
Summ. J., 9. Specifically, they argue that Mr. Schneider
failed to fulfill his job duties with appropriate urgency on
the weekend of July 21, 2012 and on the weekend before
Hurricane Sandy's expected landfall. Id. As Mr.
Schneider concedes, “an employer's dissatisfaction
with an employee's work performance can be a legitimate,
nondiscriminatory reason for terminating employment.”
Pl.'s Opp. Mem., 27, referencing Jarnutowski v. Pratt
& Whitney, 103 F.Supp.3d 225, 237 (D. Conn. 2015).
Defendants therefore have successfully rebutted Mr.
Schneider's prima facie case.
Mr. Schneider's Evidence of Pretext
McDonnell Douglas's final step, the burden
shifts once again to Mr. Schneider. For his case to continue,
Mr. Schneider must offer admissible evidence that would lead
a reasonable factfinder to conclude by a preponderance of the
evidence that his age was the “but for” cause of
the Defendants' decision to fire him. See
Gorzynski, 596 F.3d at 107. Mr. Schneider “may
prevail only if [his] employer's proffered reasons are
shown to be a pretext for discrimination, either because the
pretext finding itself points to discrimination or because
other evidence in the record points in that direction-or
both.” Fisher v. Vassar Coll., 114 F.3d 1332,
1339 (2d Cir. 1997). Mr. Schneider points to several pieces
of evidence in the record to raise the inference that
Defendants discriminated against him because of his age.
While there are admissibility issues with much of Mr.
Schneider's proffered evidence, on the whole, it is
sufficient to survive judgment, even if some or all of it may
later be ruled inadmissible following a motion in
limine or in the context of a trial.
Use of Mr. Schneider's Age in the Termination
Harris indicated Mr. Schneider's age in the e-mail
regarding his termination. While age notations alone are not
enough to suggest discriminatory intent, a jury could find
that this notation, with more information, suggested
Defendants' animus towards older workers. See
Armbruster v. Unisys Corp., 32 F.3d 768, 781-82 (3d Cir.
1994) (holding that handwritten age notations in employer
documents alone are not sufficient evidence of discriminatory
animus, but admitting the notations in that they “may
be related to the adverse employment decision [and] they may
be introduced as evidence of pretext, so long as they are
Inconsistencies in Mr. Harris's Reasoning
Schneider also argues that Mr. Harris's responses to his
two 2012 missteps were “extreme, ”
“implausible” and “inconsistent.”
Pl.'s Opp. Mem., 29. First, Mr. Schneider claims that Mr.
Harris was inconsistent when he testified that he thought
that Mr. Benedict was at a funeral on the weekend of July 21.
Mr. Harris referenced the family funeral in his testimony to
justify his insistence that Mr. Schneider, and not Mr.
Benedict, respond to the weekend calls. However, Mr.
Schneider has put forth evidence-Mr. Benedict's
affidavit-that Mr. Harris did not know of the funeral until
after the incident occurred, suggesting that Mr. Harris could
have targeted Mr. Schneider for discipline and then created
an explanation afterwards.
Mr. Schneider calls into question Mr. Harris's stated
motivation for disciplining Mr. Schneider so harshly. Mr.
Harris claimed that urgency was of the utmost importance when
the Facility heating system malfunctioned on July 21, 2012.
However, he waited for four hours to check on the facility
after calling Mr. Schneider. Id. at 6. Similarly, he
waited several hours before calling Mr. Schneider after he
learned about the leak in the ceiling on July 22, 2012.
Id. Mr. Schneider argues that Mr. Harris's
delays call into question his proffered reason for
disciplining Mr. Schneider.
this evidence is limited, it could lead a jury to question
Defendants' reasons for Mr. Schneider's termination.
A defendant's explanation for a particular employment
decision is pretextual if it is internally inconsistent or
shifts over time. In Byrnie, the Second Circuit
denied summary judgment because a jury could believe that
defendant's proffered reason for not hiring plaintiff
Byrnie “was the result of an attempt to salvage an
earlier explanation that was collapsing.”
Byrnie, 243 F.3d at 106. See also DeMarco v.
Holy Cross High School, 4 F.3d 166, 171 (2d Cir. 1993)
(the pretext inquiry takes into consideration “whether
the putative non-discriminatory purpose was stated only after
the allegation of discrimination”). While judges should
not “second guess” the reasonableness of business
judgments, the Byrnie court explained, an
employer's “subjective explanation, besides being
clear and specific, must be honest.” Byrnie,
243 F.3d at 105. By pointing to irregularities in Mr.
Harris's testimony-and thus calling into question Mr.
Harris's motives-Mr. Schneider raises a genuine issue
about whether Mr. Harris's asserted reason for firing him
Statements by Mr. Vera and Mr. Harris
Schneider points to statements made by Mr. Vera and Mr.
Harris that arguably could help a reasonable finder of fact
infer that age was the “but for” cause of his
dismissal. “[S]tray remarks, even if made by a
decision-maker, do not constitute sufficient evidence to make
out a case of employment discrimination.” Danzer v.
Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998). However,
when combined with other “indicia of discrimination,
… the remarks can no longer be deemed ‘stray,
' and the jury has a right to conclude that they bear a
more ominous significance.” Id.
Schneider presents evidence of several remarks that could
suggest to a reasonable fact finder the “ominous”
intentions of Mr. Harris. Most importantly, Mr. Harris
allegedly told Mr. Benedict that Schneider “ha[d] been
here too long” after he was fired. He also included Mr.
Schneider's age in the email suggesting his termination.
Schneider also points to several of Mr. Vera's statements
to suggest his animus towards older workers. All of these
statements arise from disputed testimony provided by John
Hooker, a former employee at the Facility who filed an age
discrimination claim against the same Defendants in 2013. Mr.
Schneider submits an affidavit from Mr. Hooker alleging that
Mr. Vera, upon meeting Mr. Hooker, remarked that he was
surprised Hooker had not already retired. He further alleges
that Mr. Vera boasted about his termination of long-term
employees at another company and referred to older workers as
“dead wood.” Mr. Vera does not recall whether he
had said to Hooker that he thought Hooker would have retired.
If Plaintiff succeeds in proving that Mr. Vera made these
remarks, a jury could find that the remarks suggest that Mr.
Vera-an arguably key decision-maker in Mr. Schneider's
termination-acted with a discriminatory motive. The Court,
however, notes that the admissibility of this evidence is
uncertain, as discussed below.
“Me too” Evidence
Schneider also presents evidence of Ciena's and Mr.
Vera's treatment of two other employees, Mr. Hooker and
Ms. Flight, to suggest Mr. Vera's discriminatory motive.
The parties describe this evidence as “‘me
too' evidence.” See Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 386-88 (2008). In
Mendelsohn, the Supreme Court considered the
admissibility of non-party co-worker testimony-or
“‘me too' evidence”-in an employment
discrimination case, holding that such evidence was neither
per se admissible nor per se inadmissible,
but rather should be admitted on a case-by-case basis.
are a number of factors that courts should consider when
determining the admissibility of “me too”
evidence, including “(1) whether the evidence is
logically or reasonably tied to the decision made with
respect to the plaintiff; (2) whether the same ‘bad
actors' were involved in the ‘other' conduct
and in the challenged conduct; (3) whether the other acts and
the challenged conduct were in close temporal and geographic
proximity; (4) whether decision makers within the
organization knew of the decisions of others; (5) whether the
other affected employees and the plaintiff were similarly
situated; and (6) the nature of the employees'
allegations.” See Murray v. Miron, No. 3:11 CV
629 (JGM), 2015 U.S. Dist. LEXIS 135311, at *11-12 (D. Conn.
Oct. 5, 2015). Furthermore, even when “me too”
evidence is relevant under Rule 401, the district court
retains discretion to exclude that evidence, under Rule 403,
if it is “unduly prejudicial, confusing, misleading, or
cumulative.” Adams v. Austal, U.S.A., LLC, 754
F.3d 1240, 1258 (11th Cir. 2014).
Court notes that Mendelsohn primarily concerns
“testimony by nonparties alleging discrimination at the
hands of persons who played no role in the adverse employment
decision challenged by the plaintiff.”
Mendelsohn, 553 U.S. at 383. Most of the material
that the parties describe as “me too” evidence
concerns Mr. Vera. Mr. Vera allegedly played a role in Mr.
Schneider's termination by counseling Mr. Harris, which
might make the Mendelsohn inquiry unnecessary.
Mendelsohn, however, requires courts to consider
factors that are important in every evidentiary question,
including the prejudicial, misleading or cumulative nature of
the proposed evidence. Whether or not Mendelsohn
strictly applies, these questions will be essential to this
Court's evaluation of Mr. Schneider's evidence.
“me too” evidence that Mr. Schneider presents may
be relevant because it concerns Mr. Vera, who was allegedly a
key player in the decision to terminate Mr. Schneider.
However, while Mr. Vera supported Mr. Harris's decision
to terminate Mr. Schneider, Schneider's “me
too” evidence concerns decisions made by Mr. Vera
alone. While Mr. Vera played a role in Mr. Schneider's
termination, he played a greater role in supervising Mr.
Hooker and Ms. Flight. As a result, Mr. Schneider was not
similarly situated to Hooker and Flight with respect to Mr.
Vera, making the evidence of their treatment less relevant to
importantly, the “me too” evidence that Mr.
Schneider presents is conclusory, based mostly on allegations
that Mr. Hooker and Ms. Flight made in preparation for filing
internal or external age discrimination complaints. It is
also disputed: Mr. Vera denies making many of the age-related
statements that Hooker and Flight describe. While a
reasonable jury could conclude that Mr. Vera did make these
statements, the risk of prejudice against Defendants must be
balanced against the potential probative value of the
statements themselves. Mr. Hooker's testimony about Mr.
Vera's alleged statements therefore may not be admissible
the Court is not inclined to admit this evidence at trial, at
this stage of the case, the Court cannot properly make an
admissibility determination and therefore will revisit this
issue, if raised in a motion in limine or in the
context of a trial. See Henry v. Wyeth Pharms.,
Inc., 616 F.3d 134, 152 (2d Cir. 2010) (reviewing
district court's assessment of “me too”
evidence in a motion in limine, referencing the
requirement of an “intensive context-specific
inquiry”) (internal citations omitted).
Individuals Similarly Situated to Mr. Schneider
Schneider also argues that Defendants treated him more
harshly than they did younger employees, first by
disciplining him, and not Mr. Benedict, for failing to
respond while “on call, ” and second by denying
him the benefit of progressive discipline policies that were
offered to younger workers. In order to raise the inference
of discrimination, Mr. Schneider must point to evidence that
suggests that these employees were similar to him in all
material respects and that Defendants still disciplined them
considering whether a plaintiff has raised an inference of
discrimination by showing that she was subjected to disparate
treatment, the plaintiff must show she was similarly situated
in all material respects to the individuals with whom she
seeks to compare herself.” Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000). “Similarly
situated” employees are “subject to the same
performance evaluation and discipline standards” and
“engaged in comparable conduct.” Id. at
40 (internal citations omitted). “Whether two employees
are similarly situated ordinarily presents a question of fact
for the jury.” Id. at 39.
deciding whether two employees are similarly situated, the
finder of fact should focus on the standards and expectations
of the employer as well as the employees' formal titles
and ranks. Although the relative position of employees in a
company is “relevant to the analysis, employees need
not be of the exact same rank to be considered
‘similarly situated.'” Gorzynski,
596 F.3d 93 at n.7. For example, while “[s]upervisors
are not similarly situated employees, ” a supervisor
could be similarly situated to her subordinates if they were
subject to the same workplace standards. Prescod v. Am.
Broad. Co., 1985 U.S. Dist. LEXIS 21640, 1985 WL 430, at
*14 (S.D.N.Y. Mar. 19, 1985). The only viable employees
identified by Mr. Schneider as similarly situated, Mr.
Benedict, Mr. McClurg and Ms. Couch, are not particularly
strong comparators, but the Court believes that, at least,
two of these comparisons are sufficient at this stage of the
litigation to assist in surviving summary judgment. The
admissibility of any such evidence at trial, however, is not
guaranteed, but is best viewed in the context of a motion
in limine or during a trial.
Schneider argues that Mr. Harris and his co-defendants
treated Mr. Schneider more harshly than Mr. Benedict when
both employees failed to promptly respond to requests for
maintenance on July 21 and 22, 2012. The record suggests that
both Mr. Benedict and Mr. Schneider were expected to be
“on call” during weekends. Mr. Harris's
testimony suggested that he relied on Mr. Benedict for
“on call” requests as much as he did on Mr.
Schneider. The record does not establish which of the two men
Mr. Harris believed would be on call on the weekend of July
21 and 22, 2012. Mr. Harris testified that he believed Mr.
Benedict should not be on call because he was at a family
funeral, but Mr. Schneider put forth evidence that calls this
testimony into question. Generally, Mr. Harris wanted Mr.
Schneider to be responsible for a greater number of on call
requests and believed that Mr. Schneider was not sufficiently
sharing “on call” duties with Mr. Benedict.
Schneider and Mr. Benedict each failed to respond to one of
Mr. Harris's maintenance calls on the weekend of July 21
and 22, 2012. Mr. Schneider took five hours to respond to Mr.
Harris's voicemail concerning the malfunctioning heater
on July 21, 2012. Mr. Harris contacted Mr. Benedict later
that evening. While the record does not establish when Mr.
Benedict learned about the maintenance issue, it is clear
that he responded before Mr. Schneider did. On July
22, Mr. Harris left a voicemail for Mr. Schneider concerning
a ceiling leak. Mr. Schneider did not respond until the next
day. Mr. Harris also tried to contact Mr. Benedict on that
day. The record does not establish when he attempted to
contact Mr. Benedict or whether he left a message for Mr.
Benedict, but the parties agree Mr. Harris did not hear from
Mr. Benedict on that day. After the weekend, Mr. Harris
issued a warning notice for Mr. Schneider because of his
failure to promptly respond to maintenance requests while on
call. He did not discipline Mr. Benedict.
the two employees may have been similarly situated when it
came to being on call, it would be difficult for a reasonable
factfinder to conclude that Mr. Schneider and Mr. Benedict
engaged in comparable conduct. While each employee failed to
respond to Mr. Harris' phone call on July 22, Mr.
Schneider was also untimely in his response to Harris'
July 21 phone call. Both employees were unresponsive, but Mr.
Schneider was more unresponsive and expected to be more
responsible, since he was Mr. Benedict's supervisor.
Comparing Mr. Schneider and Mr. Benedict would not aid the
jury in establishing whether Defendants disciplined Mr.
Schneider for discriminatory or pretextual reasons.
Younger Employees who Received PIPs
brief, Mr. Schneider argues that Defendants treated him less
favorably than they did younger employees because they did
not offer him the opportunity to reform his behavior using a
“Performance Improvement Plan, ” or PIP.
Pl.'s Opp. Mem., 30. While supervisors at the Facility
were not required to use PIPs, some supervisors, including
Mr. Vera, used them as “a tool” to reform
employee behavior. The record contains some evidence
suggesting that Mr. Schneider's supervisors used PIPs
with other employees. Mr. Harris offered a PIP to Ms. Couch
and Mr. Vera offered a PIP to Mr. McClurg.
Second Circuit, whether or not co-employees report to the
same supervisor is an important factor in determining whether
two employees are subject to the same workplace standards for
purposes of finding them similarly situated.”
Conway v. Microsoft Corp., 414 F.Supp.2d 450, 465-66
(S.D.N.Y. 2006) (collecting cases); but see Graham
at n. 1 (noting that the Second Circuit has not expressly
adopted “the language of the Mitchell test,
” which requires, among other things, that “the
individuals with whom the plaintiff seeks to compare his/her
treatment must have dealt with the same supervisor”)
(citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583
(6th Cir. 1992)).
Schneider has put forth sufficient evidence for a jury to
conclude that Mr. McClurg was similarly situated to Mr.
Schneider but was disciplined differently by Mr. Vera and Mr.
Harris. Mr. Vera offered Mr. McClurg a PIP after McClurg,
among other things, did not give “clear direction
[during] recent storm Sandy” and generally
“lacked a sense of urgency” regarding his duties.
Both Mr. McClurg and Mr. Schneider were disciplined because
they were inattentive or unhurried in their response to
problems at the Facility, so a reasonable jury could find
that the two engaged in “comparable conduct.”
Furthermore, despite the fact that Mr. McClurg's duties
were, as defendant suggests, “far more expansive”
than Mr. Schneider's, Harris and Vera had the same
expectations of the two when it came to urgency and
responsiveness. See Def.'s Reply, 5. To the
extent that Mr. McClurg's duties were more expansive than
Mr. Schneider's, one would expect Mr. Vera to discipline
McClurg more harshly. Finally, Mr. Vera disciplined Mr.
McClurg and also supervised the discipline of Mr. Schneider.
The Court recognizes, though, that Mr. McClurg is not
entirely similarly situated for the purposes of this
analysis, since Mr. Vera directly supervised Mr. McClurg and
only indirectly supervised Mr. Schneider. Mr. Schneider's
evidence about Mr. Vera's treatment of Mr. McClurg may
end up being inadmissible, but this determination would be
best addressed in a motion in limine or at trial,
when this evidence can be placed in its proper context.
could also find that Ms. Couch was similarly situated to Mr.
Schneider. In 2014, Mr. Harris criticized Ms. Couch's
lack of “follow through” and disciplined her for
many infractions, including not being on at work during an
emergency at the Facility's dining hall. Mr. Harris was
concerned about Ms. Couch and Mr. Schneider for similar
reasons. A reasonable jury could use Ms. Couch as a
comparator while evaluating Mr. Schneider's claims of
Mr. McClurg and Ms. Couch, Mr. Schneider did not receive the
benefit of a PIP or any performance improvement measures.
Despite Defendants' suggestion that the PIP is
discretionary and therefore should not figure into the
analysis of discrimination, a defendant's denial of a
discretionary benefit can amount to different treatment.
See Def.'s Reply, 4. A reasonable jury could
find that, while the PIP process is discretionary, the fact
that other employees received the benefit of a PIP, when Mr.
Schneider did not, could be evidence of a discriminatory
animus against Mr. Schneider.
all, the Court finds that a reasonable jury could decide to
find for Mr. Schneider under ADEA and the Court therefore
denies summary judgment on Mr. Schneider's ADEA claim.
Age Discrimination under the CFEPA
Schneider also claims that Defendants violated the age
discrimination provisions in CFEPA. While courts agree that
discrimination claims under CFEPA should be analyzed using
McDonnell Douglas's burden-shifting framework,
as discussed above, there is some uncertainty concerning the
CFEPA claimant's burden after the defendant has
articulated a legitimate, non-discriminatory reason for the
adverse employment action at issue. Weisenbach v. LQ
Management, No. 3:13-cv-01663 (MPS), 2015 WL 5680322, at
*7 (D. Conn. Sept. 25, 2015) (collecting cases).
the U.S. Supreme Court's decision in Gross v. FBL
Fin. Servs., Inc, a plaintiff who brought a claim under
the ADEA could survive a motion for summary judgment by
demonstrating that her age was a “motivating
factor” in the adverse employment action.
Gorzynski, 596 F.3d at 105-6, referencing
Gross, 557 U.S. 167, 176 (2009). In Gross,
the Court held that an ADEA plaintiff must prove by the
preponderance of the evidence that age was a “but
for” cause of the adverse employment action and not
merely a contributing or motivating factor. Id.
in Connecticut have not conclusively decided whether the
motivating factor test still applies to age discrimination
claims under CFEPA, or whether CFEPA decisions should follow
post-Gross ADEA case law. See Weisenbach at
*7 (“[N]either the Connecticut Supreme Court nor the
Appellate Court has expressly addressed whether the
‘motivating factor' standard still applies to CFEPA
claims”) (footnote omitted). See also Vale v. City
of New Haven, No. 3:11-cv-00632 (CSH), 2016 U.S. Dist.
LEXIS 93635, at *16-*20 (D. Conn. July 19, 2016) (collecting
cases to “emphasize the lack of clarity in Connecticut
law as to this question”). In Weisenbach,
Judge Shea concluded that the “motivating factor”
standard still applied to the CFEPA because Connecticut's
trial courts continued to apply the standard under the CFEPA
and no Connecticut appellate court had spoken on the
question. Id. at *8 (“I follow Connecticut
trial courts in predicting that the Connecticut Supreme Court
will continue to apply the more lenient ‘motivating
factor' standard to CFEPA discrimination claims.”).
case, however, because the Court concludes that summary
judgment is inappropriate even when applying the higher
standard of “but for” causation under the ADEA,
the Court need not determine whether the Connecticut Supreme
Court would apply the “motivating factor”
standard for CFEPA claims. Because Mr. Schneider has
satisfied the higher standard, the Court accordingly denies
summary judgment on his CFEPA claim.
of the reasons discussed above, Defendants' Motion for
Summary Judgment [Doc. No. 63] is
 The relevant facts are taken from
Defendants' Local Rule 56(a)(1) Statement and Exhibits
attached to the Local Rule 56(a)1 Statement, ECF Nos. 63-2
and 63-3, and Plaintiff's Local Rule 56(a)(2) Statement,
ECF No. 66-2 and 66-3 to 66-16. See D. Conn. L. Civ. R.
 Specifically, 29 of the 63 employees
were over 40, and the average age of the terminated employees
was 38.25 years.
 Ms. Erwin, the Ciena V.P. for Human
Resources, allegedly investigated her complaint and concluded
that Mr. Vera had not discriminated against Ms. Flight on the
basis of her age. Id. at Ex. UU, Erwin Dep.,
54:1-16. At his deposition in Hooker, Mr. Vera
denied asking Ms. Flight about her retirement plans and
stated that he did not know about her internal complaint.
Pl.'s Opp. Mem., 20. Ms. Flight left her position
voluntarily in July 2015. Id. at n.
 In a footnote in his brief, Mr.
Schneider adds that Mohammed Qazi owned all of the Defendants
and all financial and budgetary decisions were made by Ciena.
Defendants have not responded to this statement.
 Defendant argues that Mr. Hooker's
testimony about Mr. Vera's statements is
“inadmissible hearsay.” Federal Rule of Evidence
801(d)(2) specifically provides that a statement is not
hearsay if it is offered against a party and is either
“(A) the party's own statement, in either an
individual or a representative capacity or ... (D) a
statement by the party's agent or servant concerning a
matter within the scope of the agency or employment, made
during the existence of the relationship.” The speaker
does not have to be the “final decision-maker, ”
but simply “an advisor or significant participant in
the decision-making process that is the subject matter of the
statement.” U.S. v. Rioux, 97 F.3d 648, 661
(2d Cir. 1996).
 This determination may change
depending on the form that Mr. Schneider's “me
too” evidence takes at trial. In DeMarco, the
Second Circuit held that it was not an abuse of discretion to
preclude plaintiff from testifying as to her co-workers'
statements about their interactions with defendant employer,
holding that the danger of undue prejudice was too great when
“one of these employees testified at trial, and
[plaintiff] did not witness any of the alleged events
herself.” DeMarco v. W. Hills Montessori, 350
F. App'x 592, 594 (2d Cir. 2009).
 In this case, because the imposition
of progressive discipline is a discretionary remedy, Mr.
Schneider must show that his co-workers had the same
supervisors-Mr. Vera and Mr. Harris-in order to suggest that
they were similarly situated to him. In his Opposition Memo,
Mr. Schneider identifies several employees who received PIPs
from various employees of defendants. Pl.'s Opp. Mem., 18
and 30 (noting that Ms. Couch, Ms. Doyle, Mr. McClurg, and
“Tim, ” the Maintenance Director in Norwich, all
had the opportunity to create a PIP). Besides Mr. McClurg and
Ms. Couch, the other employees whose PIPs Mr. Schneider
references were not under the purview of the decision-makers
who disciplined Mr. Schneider: Doyle was managed and
disciplined by Mr. Hooker, former Administrator at the
facility and “Tim” was managed by Mr. McClurg.
Mr. Schneider therefore has not pointed to sufficient
evidence to suggest that the other employees who received
PIPs-Doyle and “Tim”-were similarly situated to