United States District Court, D. Connecticut
ORDER RE MOTION FOR SUMMARY JUDGMENT
W. Thompson United States District Judge
plaintiff's eight-count complaint against the defendants
contains the following claims: in the First Count, a claim
against the New Canaan Board of Education (the
“Board”) for disparate treatment based on gender
in violation of Title VII of the Civil Rights Act, as
amended, 42 U.S.C. § 2000e et seq. (“Title
VII”); in the Second Count, a claim against the Town of
New Canaan (the “Town”) for disparate treatment
based on gender in violation of Title VII; in the Third
Count, a claim against the Board for hostile work environment
based on sexual harassment in violation of Title VII; in the
Fourth Count, a Title VII hostile work environment claim
against the Town; in the Fifth Count, a claim against Bruce
Gluck (“Gluck”) for intentional infliction of
emotional distress; in the Sixth Count, a claim against the
Board pursuant to Conn. Gen. Stat. § 10-235 for
indemnification; in the Seventh Count, a claim against the
Board for negligent supervision; and in the Eighth Count, a
claim against the Town for negligent supervision. The court
previously dismissed the Seventh and Eighth Counts. See Doc.
No. 54. The defendants have moved for summary judgment as to
all remaining counts, and in her opposition to the motion for
summary judgment, the plaintiff withdrew the Second and
Fourth Counts. For the reasons set forth below, the Motion
for Summary Judgment (Doc. No. 104) is hereby GRANTED with
respect to the Second and Fourth Counts, and DENIED with
respect to the First, Third, Fifth and Sixth Counts.
Disparate Treatment Against the Board (First Count)
plaintiff has the initial, de minimus burden to establish a
prima facie case that: (1) she is a member of a protected
class; (2) she was qualified for the job or was performing
her duties in a satisfactory manner; (3) she was subjected to
an adverse employment action; and (4) the adverse employment
action occurred under circumstances giving rise to an
inference of discrimination on the basis of her membership in
that class. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Although the plaintiff has the
burden of proof at this stage, the burden is
“minimal.” Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001).
plaintiff meets her initial burden, then the defendant has
the burden to produce a non-discriminatory, legitimate reason
for the employment decision “to defeat a rebuttable
presumption of discrimination.” Id. at 102.
“[S]hould the defendant meet this burden of production,
the plaintiff must then prove by a preponderance of the
evidence that the legitimate reason offered by the employer
is merely a pretext for discrimination." Proctor v.
MCI Comm. Corp., 19 F.Supp.2d 11, 14 (D. Conn. 1998)
(citing McDonnell Douglas, 411 U.S. at 804).
support of their motion for summary judgment, the defendants
argue, with respect to the third element, that the plaintiff
was not subjected to an adverse employment action, and with
respect to the fourth element, that the plaintiff was not
treated differently than similarly situated male employees.
The plaintiff contends that she suffered an adverse
employment action when she took an unpaid leave of absence as
a result of Gluck's intentional misconduct. “In the
discrimination context courts find that being required to
take unpaid leave can be an adverse employment action.”
St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d
287, 318 (E.D.N.Y. 2014).
defendants argue that the unpaid leave was not an adverse
action because Torcasio requested the leave. Torcasio
concedes she requested the leave, but argues she did so
“involuntarily, ” “as a result of
Gluck's intentional misconduct, ” and thus the
unpaid leave amounts to an adverse employment action.
Pl.'s Mem. (Doc. No. 122) 14. Torcasio's argument is
analogous to one based on constructive termination.
“Adverse employment actions include . . . .
‘constructive' discharge.” Fitzgerald v.
Henderson, 251 F.3d 345, 357 (2d Cir. 2001) (citations
omitted). “Constructive discharge of an employee occurs
when an employer, rather than directly discharging an
individual, intentionally creates an intolerable work
atmosphere that forces an employee to quit
involuntarily.” Id. at 357-58.
review of the record, the court concludes that genuine issues
of material fact exist as to whether Torcasio suffered an
adverse employment action by virtue of the fact that her
request for unpaid leave was involuntary.
respect to the fourth element, the defendants argue that any
adverse employment action did not occur under circumstances
giving rise to an inference of discrimination because
Torcasio was not treated differently than similarly situated
male employees. However, showing she was treated less
favorably than similarly situated employees is not the only
way a plaintiff can establish this element. Rather,
“the inference of discriminatory intent could be drawn
in several circumstances including, but not limited to: . . .
‘the employer's criticism of the plaintiff's
performance in . . . degrading terms; or [his] invidious
comments about others in the employee's protected group;
or the more favorable treatment of employees not in the
protected group; or the sequence of events leading to the
[adverse employment action].'” Abdu-Brisson v.
Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001)
(quoting Chambers v. TRM Copy Ctrs Corp., 43 F.3d
29, 37 (2d Cir. 1994)).
evidence shows Gluck mistreated many or all of his employees,
but the plaintiff has created a genuine issue of material
fact as to whether Gluck mistreated female employees to a
greater extent than males, even when taking into account the
gender demographics of the staff, which was
disproportionately female. This evidence is also sufficient
to create a genuine issue of material fact with respect to
the third step of the McDonnell Douglas analysis, i.e.
whether the legitimate reason given by the employer is merely
a pretext for discrimination.
Hostile Work Environment (Third Count)
plaintiff must show “not only that she subjectively
perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive.”
Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.
2006). In determining whether a hostile work environment
exists, courts look to several factors, including “the
frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.”
Harris v. Forklift Sys., 510 U.S. 17, 23 (1993).
“Isolated incidents or episodic conduct will not
support a hostile work environment claim.”
Richardson v. NYS Dep't. Corr. Serv., 180 F.3d
426, 437 (2d Cir. 1999). “Rather, the plaintiff must
demonstrate either that a single incident was extraordinarily
severe, or that a series of incidents were sufficiently
continuous and concerted to have altered the conditions of
her working environment.” Alfano v. Costello,
294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v. Coach
Stores, Inc., 202 F.3d 560 (2d Cir. 2000)). Thus,
“to prevail on a hostile work environment claim, the
plaintiff must show that the workplace was permeated with
discriminatory intimidation, ridicule, or insult that was
sufficiently severe or pervasive to alter the conditions of
her employment.” Newtown v. Shell Oil Co., 52
F.Supp.2d 366, 372 (D. Conn. 1999).
the crucial inquiry focuses on the nature of the workplace
environment as a whole, a plaintiff who herself experiences
discriminatory harassment need not be the target of other
instances of hostility in order for those incidents to
support her claim.” Cruz, 202 F.3d at 570. “[O]ne
of the critical inquiries in a hostile environment claim must
be the environment. Evidence of a general work atmosphere . .
.-as well as evidence of specific hostility directed toward
the plaintiff- is an important factor in evaluating the
claim.” Perry v. Ethan Allen, Inc., 115 F.3d
143, 149 (2d Cir. 1997). “Evidence of the harassment of
women other than [the plaintiff], if part of a pervasive or
continuing pattern of conduct, was surely relevant to show
the existence of a hostile environment . . . .”
Id. at 151.
the record in the light most favorable to the plaintiff and
drawing all reasonable inferences in her favor, the court
concludes that the plaintiff created a genuine issue of
material fact with ...