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Blake v. Developmental Services

United States District Court, D. Connecticut

September 29, 2017

NICOLE BLAKE, Plaintiff,
v.
DEVELOPMENTAL SERVICES, Defendant.

          RULING GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Jenet Bond Arterton, U.S.D.J.

         Plaintiff Nicole Blake brought this action against her former employer, Defendant State of Connecticut Department of Developmental Services ("DDS"), alleging in Count One that she was subjected to a hostile work environment, suspended, and given a poor evaluation because of her race and color, and in Count Two that she was discharged in retaliation for her having filed discrimination complaints, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and the Civil Rights Act of 1991. Defendant now moves [Doc. # 54] for summary judgment. Oral argument was held April 7, 2017. For the following reasons, Defendant's Motion is granted.

         I. Background[1]

         Plaintiff began working for DDS beginning in 1997 at the Lower Fairfield Center, one of Defendant's residential facilities, first as a cook attendant and then a Mental Retardation Worker 1. (Def.'s Local Rule 56(a) 1 Statement. ("Def.'s LR 56") [Doc. # 54-2] ¶ 3-4; Pl.'s Local Rule 56(a)2 Stmt ("Pl.'s LR 56") [Doc. # 62].) In 2007 Plaintiff applied for and received the position of Developmental Services Worker 2, and began working at DDS's Hilltop Group Home in Trumbull, CT. (Def.'s LR 56 f 5.) In 2010 the Hilltop Facility closed as part of DDS program closures and conversions to private operation. In April 2010 Plaintiff bid on and received a position at the Ella Grasso Center, a DDS residential care facility housing lower functioning clients requiring a high level of care. Vanessa Alvarez was the program manager at the Ella Grasso Center. (Def.'s LR 56 55 6, 8.)

         After making her schedule selection, Plaintiff wrote to Ms. Alvarez to request a change of schedule, but Ms. Alvarez did not make any change. (Def.'s LR 56 5 10; Pl.'s LR 56 5 10.)[2]Subsequently, during the course of her employment at the Ella Grasso Center Plaintiff was investigated on three occasions for client neglect and ultimately terminated.[3] (Def.'s LR 56 5 14; Pl.'s LR 56 f 14.)

         The first incident occurred on January 4, 2012 in Unit D and was reported by Mary Sheehan (Def.'s LR 56 J 20; Pl.'s LR 56 J 20), a Per Diem Occupational Therapist at the Ella Grasso Center responsible for developing, implementing, and monitoring client safety protocols for residents. (Def.'s LR 56 f 12; Pl.'s LR 56 J 12). Ms. Sheehan found a client who was under Plaintiffs care belted to a toilet without supervision from approximately 6:00 A.M. to 7:15 A.M., which Ms. Sheehan believed was a clear violation of client care protocols by Plaintiff and therefore reported the incident to the Office of Protection and Advocacy. (Def.'s LR 56 f 20; Pl.'s LR 56 5 20.)[4]

         The incident was investigated by the DDS Investigations Unit and neglect was substantiated. (Def.'s LR 56 f 22; Pl.'s LR 56 5 22.) The pool investigator, Cynthia Stevenson, followed standard practices and procedures in conducting her investigation, including interviewing witnesses, among them Plaintiff, and considered the toileting guidelines and level of support which were in place for the client. (Def.'s LR 56 5 23; Pl.'s LR 56 5 23.)

         The neglect allegation was found substantiated because Plaintiff did not follow the client's level of support guidelines-she did not visually see the client until after 7:00 a.m., an hour after her shift started, nor had she properly transferred supervision of the client to another staff member. (Def.'s LR 56 5 26; Pl.'s LR 56 5 26.)[5] Matters of substantiated client neglect are referred to Human Resources for disciplinary action, which first involves a pre-disciplinary Loudermill hearing at which the staff member and a union representative are present. (Id. J J 17, 19.) At the Loudermill hearing Plaintiff "admitted to violating the levels of supervision for this consumer. Additionally, [Plaintiff] admitted that [she] did not do a formal transfer of supervision, nor did [she] properly complete the sleep/data sheet for the consumer." (Ex. F (Suspension Letter re: January 2012) to Harnick Aff.) The Regional Director suspended Plaintiff for five days for substantiated neglect.[6](See id.) Following the January 4, 2012 report of client neglect Plaintiff was temporarily reassigned to Unit E pending completion of the investigation, but her shift and duties remained the same.[7](Def.'s LR 56 J 29; Pl.'s LR 56 J 29.)

         The second incident of neglect occurred on June 21, 2012 when Plaintiff and another staff member took three clients on a community outing. (Id. J 39.) Plaintiff was responsible for a client who required one-to-one supervision and the other staff member was responsible for two clients who required continuous supervision. (Ex. A to Innamorato Aff. (Investigation Report)).)[8]Plaintiff, dissatisfied with the amount of money issued for the outing, left all three clients in the care and supervision of the one other staff member in the van while she went inside the unit to complain to Program Supervisor Duane Dyer, who believed her conduct was a clear violation of client supervision and made a report to the Office of Protection and Advocacy.[9] (Id.) Plaintiff does not deny that she had just been in-serviced on the day of the incident regarding one of the client's level of supervision and behavior program and had earlier been in-serviced on May 11, 2012 regarding the levels of supervision and behavior programs for the other two clients. She states that she "was working an overtime shift in a unit which was not her regular unit and therefore was not familiar with the client." (Pl.'s LR 56 J 41.)

         After the June 21, 2012 report of client neglect, Plaintiff was temporarily prohibited from working overtime in Unit B pending completion of the investigation. (Def.'s LR 56 5 42; Pl.'s LR 56 J 42.) Plaintiffs shift and duties remained the same and she was not prevented from working overtime in any other unit. (Id.) The DDS Investigation was conducted by Lead Special Investigator Joe Innamorato, and neglect was again substantiated. (Id. f 44-45.) Investigator Innamorato found that Plaintiff left her co-worker in the van with all three residents for a period of approximately five minutes, which violated the levels of support of two of the three residents because two required continuous supervision and one required one-to-one support, which was being provided by the co-worker, thereby leaving the other two clients without continuous supervision. (Innamorato Aff., J7 and attached Exhibit A.) Plaintiff admitted she was supposed to be with one of the residents one-to-one and left her co-worker on the van alone with the three residents. (Pl.'s Tr. at 82:6-12.)

         On October 5, 2012 Plaintiff filed her initial CHRO Complaint. (Pl.'s Tr. at 25:18-25 and attached Deposition Exhibit 4). The CHRO made a finding of "No Reasonable Cause" and administratively dismissed Plaintiffs case on December 11, 2014. (Pl.'s Tr. at 209:7-210:9 and attached Deposition Exhibit 32).

         In the meantime, the Loudermill hearing for the second incident was conducted November 20, 2012, and Human Resources subsequently sent the matter to DDS Central Office for disciplinary action. (Def.'s LR 56 f 52; Pl.'s LR 56 J 52.) On December 24, 2012, Plaintiff received a ten-day suspension for substantiated neglect (id. f 57), which was standard progressive discipline (Harnick Aff., }35 and attached Exhibit J).

         Plaintiffs performance appraisal for the period of September 1, 2011 through August 31, 2012, issued September 20, 2012, was an overall rating of unsatisfactory based in part on the five-day suspension she received during that rating period for client neglect.[10] (Harnick Aff. f39 and attached Exhibit L (Performance Appraisal).) Plaintiff has no examples of an employee who was suspended and did not receive an unsatisfactory rating or have it placed on his or her record. (Pl.'s Tr. at 105:10-106:6.)

         The third incident of neglect occurred on January 21, 2013. (Def.'s LR 56 J 61; Pl.'s LR 56 J 61.) Ms. Sheehan observed a client with significant mental and physical needs, for whom Plaintiff was responsible, drinking out of a cup while seated in her wheel chair away from a table (Plaintiff states that the table was next to the client) in violation of the client's mealtime guidelines and protocols. (Id. 55 61-62.) She reported Plaintiff to the Office of Protection and Advocacy. (Sheehan Aff, 55 9-10.) Plaintiff does not believe that Ms. Sheehan reported neglect in retaliation for her CHRO complaint or because of her race or color. (Pl.'s Tr. at 119:11-120:17.)

         Once again, after the January 21, 2013 report of client neglect Plaintiff was temporarily reassigned to Unit E pending completion of the neglect investigation. (Def.'s LR 56 5 65; Pl.'s LR 56 5 65.) Plaintiff claims that at this time Ms. Alvarez told another employee Jose Ayala "to watch her (the Plaintiff), " which was not something done with other employees, but she fails to offer any factual support for this allegation. (See Ex. A (Pl.'s Aff.) to Pl.'s Opp'n 5 42.)

         This third neglect allegation was investigated by the DDS Investigations Unit by pool Investigator Janet Laudati, and for a third time client neglect was substantiated. (Id. tf 68-69.) Plaintiff had been in-serviced on the client's Mealtime Guidelines and Level of Supervision, which required that the client consume chopped food and thin liquids at a table. (Laudati Aff., 56 and Exhibit A, Investigation Report attached thereto; Pl.'s Tr. at 130:12-132:12 and Deposition Exhibit 18.) Plaintiff does not believe that Investigator Laudati discriminated against her because of her race or color but specualtes that it is "possible" that Investigator Laudati retaliated against her for filing a CHRO complaint. (Pl.'s Tr. at 125:2-127:22). Investigator Laudati maintains she was unaware during her investigation that Plaintiff had filed a CHRO complaint. (Laudati Aff, 5 10.)

         Human Resources conducted a third Loudermill hearing on April 15, 2013 and sent the matter to DDS Central Office for disciplinary action. (Harnick Aff., 5 43). On May 20, 2013, Plaintiff received a fifteen-day suspension in accordance with progressive discipline. (Harnick Aff., J 44 and attached Exhibit O.) Ms. Alvarez had no decision making authority in determination of client neglect or in the imposition of the discipline (Harnick Aff., J 47, Pl.'s Tr. at 137:21-138:5).[11]

         Plaintiff grieved each of her three suspensions as well as the written warning but raised no claim of discrimination with any of the suspensions. (See Def.'s LR 56 JJ 35, 56, 77, 84.)

         In addition to the above discipline, DDS issued Plaintiff a letter of warning on March 20, 2013 because she removed and disclosed confidential client information as part of her CHRO complaint. (Harnick Aff., f48 and attached Exhibit Q.) DDS has clear policy and work rules regarding the confidentiality of client records and Plaintiff was on notice of those rules (Harnick Aff., f 49 and Exhibit R attached thereto), as demonstrated by the written counseling she received in August 2012 for inappropriately obtaining client records for a grievance (Pl.'s Tr. at 160:15-21). Also, on February 13, 2013 Program Supervisor Michele Crapo issued Plaintiff a memorandum memorializing the directive to Plaintiff to stop writing question marks instead of her signature on in-service signature sheets.[12] (Def.'s LR 56 } 85; Pl.'s LR 56 f 85.)

         Plaintiffs service rating for the period of September 1, 2012 through August 31, 2013, dated September 16, 2013, was an overall rating of unsatisfactory based in part on the ten and fifteen day suspensions she received during that rating period for client neglect. (Harnick Aff., J 53 and attached Exhibit V). State Personnel Regulation 5-240-la (c) (5) provides that two consecutive unsatisfactory service ratings is just cause for dismissal. In accordance with the collective bargaining agreement, at that point Human Resources must conduct a Loudermill hearing, after which the matter is transferred to Central Office for review and discipline determination. (Harnick Aff., J 55).

         Accordingly, a Loudermill hearing was held on September 16, 2013 and the matter was sent to Central Office. (Harnick Aff., f 56 and Exhibit W attached thereto). DDS Central Office then made the decision to terminate Plaintiff and issued her a letter of dismissal on October 31, 2013 with an effective termination date of November 5, 2013. (Harnick Aff, f 57 and attached Exhibit X.)[13]

II. Discussion[14]

         Title VII prohibits an employer from discriminating "against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff claims discrimination in the form of disparate treatment, hostile work environment, and retaliation.[15]

         A. Retaliation

         Title VII's anti-retaliation protections make it unlawful "for an employer to discriminate against any .. . employee [ ] . . . because [that employee] opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). As interpreted by the Supreme Court, that provision makes acts unlawful when they are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

         "Retaliation claims under Title VII ... are . . . analyzed under the McDonnell Douglas burden-shifting test." Gorzynski v. JetBlue Airways Corp.,596 F.3d 93, 110 (2d Cir. 2010). In setting forth the prima facie case, a plaintiffs burden is de minimis, and if the plaintiff satisfies this initial burden, "a presumption of retaliation arises. The defendant must then articulate a legitimate, non-retaliatory reason for the adverse employment action." Hicks v. Baines,593 F.3d 159, 164-65 (2d Cir. 2010). Where the defendant successfully shows a legitimate, non-retaliatory reason, "the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action." Id. However, the Second Circuit has observed that under the McDonnell-Douglass framework, the prima facie showing for retaliation "tend[s] to collapse as a practical matter" into analysis of the later requirement that the plaintiff show the legitimate reason to be mere pretext. Collins v. N.Y. City Transit Auth., 305 F.3d 113, 119 n.1 (2d Cir. 2002); see also Wilson v. Emhart Teknologies LLC,566 F.Supp.2d 120, ...


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