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Pierro v. Bimbo Bakeries USA, Inc.

United States District Court, D. Connecticut

October 3, 2017

LOUIS PIERRO, Plaintiff,
v.
BIMBO BAKERIES USA, INC., Defendant.

          AMENDED RULING AND ORDER

          Robert N. Chatigny United States District Judge

         Plaintiff 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.

         I. Background

         The 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.[1] 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.

         After 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.[2] 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) ¶ 33.

         Plaintiff 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.[3] 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.

         At 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.

         Plaintiff 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.

         Plaintiff 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 longer).

         Lundy 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.

         Lundy 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.

         Plaintiff 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.[4] 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.

         Lundy 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.[5]

         Lundy 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. ...


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