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Schneider v. Regency Heights of Windham, LLC

United States District Court, D. Connecticut

December 15, 2016




         Plaintiff, 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.

         I. Factual Allegations [1]

         Defendant 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 Facility. Id.

         Plaintiff 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 Pl.'s Opp. Mem., Ex. 15, ECF No. 66-15, Deposition Exhibits, 60 (Ex. 10, Oct. 25, 2012 e-mails).

         Mr. 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 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 (emails).

         Mr. 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.

         Mr. 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 Dep., 15:1-6.

         In 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.

         1. Mr. Schneider's Handling of Maintenance Requests over the Weekend of July 21 and July 22, 2012

         On July 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.

         The 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., 99:9-100:5.

         David 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.

         At 3:21 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. Id.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         On July 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 that:

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.

         On 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.

         2. Mr. Schneider's Preparation for Hurricane Sandy

         In late 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 correspondence.

         Mr. 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.

         On 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. Id.

         Mr. 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.

         Mr. 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.

         Mr. 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 emergency. Id.

         3. Mr. Schneider's Termination

         After 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.

         In the 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 terminated. Id.

         As 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.

         On 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.

         The 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.[2] 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 40. Id.

         4. Progressive ...

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