United States District Court, D. Connecticut
AMENDED RULING AND ORDER
N. Chatigny United States District Judge
Louis Pierro brings this action alleging age discrimination
in hiring in violation of the Connecticut Fair Employment
Practices Act (“CFEPA”), Conn. Gen. Stat. §
46a-60(a)(1). Defendant Bimbo Bakeries USA, Inc.
(“Bimbo”) has moved for summary judgment. Whether
plaintiff must prove that his age was the “but
for” cause of the adverse action, as would be necessary
if the claim were brought under the Age Discrimination in
Employment Act, (“ADEA”), 29 U.S.C. § 621,
see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
1876 (2009), or may prevail by showing that his age was a
“motivating factor, ” the standard under the ADEA
until the Supreme Court's decision in Gross, has
not been authoritatively decided. Judge Shea has predicted
that the Connecticut Supreme Court will continue to apply the
more lenient “motivating factor” standard to age
discrimination claims under the CFEPA. See Weisenbach v.
LQ Management, No. 3:13-cv-1663(MPS), 2015 WL 5680322,
at *7 (D. Conn. Sept. 25, 2015). In this case, assuming the
“motivating factor” standard applies, the
evidence in the record is insufficient to sustain
plaintiff's claim that the adverse action was motivated
by the plaintiff's age. Bimbo has provided a legitimate,
nondiscriminatory explanation for the adverse action, one
that is well-supported by the record, and plaintiff has not
shown that the explanation is a pretext for discrimination.
Accordingly, the motion for summary judgment is granted.
parties' submissions show the following. Plaintiff was
born in 1953 and worked in the “route sales
industry” for multiple food companies from 1972 to
2012. Am. Compl. (ECF No. 15) ¶¶ 8-10. Most
recently, he worked for Hostess Foods from 2002 until
2012. Pl.'s Resume, Cover Ltr. (ECF No.
40-1) at 76, 77. He was laid off in November 2012 when
Hostess filed for bankruptcy. Am. Compl. (ECF No. 15) ¶
10; Pl.'s Opp'n (ECF No. 40) at 1. As a route sales
representative, plaintiff was responsible for delivery and
sales of bakery products. Lundy Dep. (ECF No. 40-1) at 74.
The work required lifting boxes of up to fifty pounds and
communicating clearly with customers. Id. at 75.
Plaintiff was also a union steward for many years. Pl.'s
Dep. (ECF No. 36-2) at 37:23-25.
plaintiff was laid off at Hostess, he attended a job fair and
subsequently sought employment with Bimbo. Between January
and June 2013, he applied for route sales representative jobs
with Bimbo through an online job application portal.
Id. ¶ 13; Pl.'s Local Rule 56(a)(2)
Statement (ECF No. 40-7) ¶ 40. His application contained
a one-line resume (“TABLE TALK PIES 1974-1979 HOSTESS
CAKE 1979-1982 DRAKES 1983-2002 IBC 2002-2012”) and a
short cover letter explaining that he had worked for forty
years in the industry. Pl.'s Resume, Cover Ltr. (ECF No.
40-1) at 76, 77. Plaintiff's friend, Kevin O'Toole,
who was well-known in the industry, called Bimbo to recommend
him. Pl.'s Local Rule 56(a)(2) Statement (ECF No. 40-7)
was interviewed at Bimbo for two route sales representative
positions. The individuals responsible for filling these
positions at Bimbo, Brian Lundy and Jeannette Depew, have
stated that they were looking for three qualities in a
candiDated: entrepreneurial spirit, ability to sell, and
desire to grow the business. Lundy Dep. (ECF No. 40-1) at
23:14-18. Plaintiff was interviewed but he received no
offer. He was informed that “the company
decided to go in a different direction.” Am. Compl.
(ECF No. 15) ¶ 14. He then learned that the company had
hired younger people for the jobs. Id. ¶ 16.
Plaintiff did not seek other employment; instead he collected
his pension early and retired in July 2013. Pl.'s Local
Rule 56(a)(2) Statement (ECF No. 40-7) ¶¶ 8-10.
plaintiff's deposition, he was asked why he thinks Bimbo
preferred the successful applicants. Pierro Dep. (ECF No.
36-2) at 30:14-16. He answered: “I guess they were
younger than me.” Id. He has testified that no
one made any comments about his age. Pierro Dep. (ECF No.
36-2) at 31:12-20. And he recognizes “it's
possible” he wasn't hired because he was a shop
steward. Id. at 37:18-38:22.
claims he should have been hired because he was one of the
top sellers in his former route. Mr. Lundy stated that there
is “usually a bidding process [for routes], and those
with more experience or seniority usually can bid on better
routes.” Id. at 25:3-5; 59:25-60:4. Thus,
plaintiff's sales record was not a compelling indication
of his sales skills.
also points to his decades of on-the-job experience. It is
undisputed, however, that the successful candidates had more
than enough experience to qualify for the position. Pl.'s
Resp. (ECF No. 40) at 3 (Trevor Wright had 12 years'
experience); Lundy Dep. (ECF No. 40-1) at 20:13-16; 31:1-18
(Nick Conklin had five years of experience); id. at
43:12-23 (Edwin Nunez had sixteen years of experience);
Rodriguez Resume (ECF No. 40-1) at 103 (Angel Rodriguez had
over three years of experience). Both parties agree there is
no linear relationship between amount of time on the job and
competence. Lundy Dep. (ECF No. 40-1) at 58:4-7 (noting that
a candidate with 43 years of experience would not necessarily
be more qualified than Mr. Pierro); Pierro Dep. (ECF No.
36-2) at 17:13-18:4 (stating that he could do the job better
after a few months than other people who had been there
and Depew have testified that the candidates who were hired
submitted better applications. Plaintiff's application
provided relatively little detail. Ms. Depew stated that
plaintiff provided only a “bare” resume without
any “detail in it, ” and when there are
“that many candidates and that many resumes, you have
to be distinctive to have yourself stand out.” Depew
Dep. (ECF No. 40-3) at 60:18-61:17.
and Depew have testified that the successful applicants had
strong references and plaintiff submitted no references.
Moreover, when they contacted others to gain information
about the plaintiff, they received negative feedback about
him. The feedback specifically noted problems with his
“overall work and demeanor.” Lundy Dep. (ECF No.
40-1) at 25:5-16. Mr. Lundy learned that there might be
“some trouble” if plaintiff were hired, and he
was concerned about maintaining a productive work
environment. Id. at 58:18-24 (“Basically, [I
was told] to kind of stay away from him. . . . It would be
like having another shop steward in the building and probably
create some tension or concerns.”); id. at
64:10-19 (“The concern was that he was a troublemaker.
Not that he was a union guy, that he was a
troublemaker.”). Regarding feedback from others, Ms.
Depew has testified, “I got some good. I got some bad.
And really with the amount of candidates we had, any bad kind
of knocked him out of the pool because we had so many. So I
got some negative feedback from my shop stewards in the
building that have worked alongside Mr. Pierro in the
market.” Depew Dep. (ECF No. 40-3) at 45:18-23.
did receive a positive reference from Mr. O'Toole. Depew
testified that O'Toole called “and really asked me
to consider him for the position.” Depew Dep. (ECF No.
40-3) at 46:10-18. O'Toole stated that he “was only
going to send them [his] best guys.” O'Toole Dep.
(ECF No. 40-5) at 9:15-24. According to O'Toole,
plaintiff had never missed a day of work in over thirty years
and would always volunteer for more work. Id. at
10:19-23. However, O'Toole never worked with the
plaintiff; he was simply a social friend. Def.'s Reply
(ECF No. 41) at 15:9-16.
and Depew have testified that the successful candidates also
performed better in interviews. Edwin Nunez
“interviewed much better” than the plaintiff and
had extensive familiarity with the route he would be hired to
drive. Id. at 43:22-44:10. Trevor Wright was hired
because he “came in with a very outgoing attitude,
talked safety.” Depew Dep. (ECF No. 40-3) at 43:18-25.
Angel Rodriguez had previously worked closely with Lundy, so
he did not feel it was necessary to bring Mr. Rodriguez in
for a second interview as he did for the plaintiff.
Id. at 48:25-49:24.
and Depew have testified that they were not impressed with
plaintiff's interview responses. Lundy testified,
“I felt that Lou seemed to feel like he was a shoe-in
and was entitled and basically a guarantee for the
role.” Lundy Dep. (ECF No. 40-1) at 22:22-23:18. Depew
stated that the plaintiff seemed “disinterested”
and had a “laid back entitled persona, I guess, because
he's been in the business so long he thought that he just
had an entitlement.” Depew Dep. (ECF No. 40-1) at
40:25-41:5. Lundy stated that plaintiff did not provide
satisfactory answers about his interest in growing the
business. Id. ...