United States District Court, D. Connecticut
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