United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING MOTION FOR SUMMARY
JUDGMENT [DKT. 49]
Vanessa L. Bryant United States District Judge
case involves an employment discrimination action brought by
Plaintiff Dyanna Green (“Plaintiff” or
“Green”) who served as a records attendant for
the East Haven Police Department (“EHPD”) for
approximately 13 years. Plaintiff contends Defendant Town of
East Haven (“Defendant” or “Town”)
discriminated against her on the basis of age in violation of
the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq.,
and Conn. Gen. Stat. § 46a-60, et seq.
Defendant moves Motion for Summary Judgment, arguing that
certain alleged discriminatory acts are time-barred and that
Plaintiff fails to establish a prima facie case for relief.
[Dkt. 49]. For the foregoing reasons, this motion is GRANTED.
following facts are derived from the parties' undisputed
Local Rule 56(a)(1) and 56(a)(2) statements and evidence on
the record. In May 2001 at the age of 47, Plaintiff Green
began her employment with East Haven Police Department, where
she worked as a records attendant for approximately 13 years.
[Dkt. 49-2 (D. Conn. Civ. L. R. 56(a)(1) Stmt.) ¶ 1;
Dkt. 54-10 (D. Conn. Civ. L. R. 56(a)(2) Stmt.) ¶ 1].
Her duties included processing arrest and accident reports,
typing search and arrest warrants as well as misdemeanor and
infraction tickets, and entering data into the EHPD system.
[Dkt. 49-2 ¶ 2; Dkt. 54-10 ¶ 2]. Plaintiff and
Sandy Depoto worked together as the sole full-time records
attendants from her start date to Ms. Depoto's retirement
in 2012. [Dkt. 54-9 (Pl.'s Aff.) ¶6]. Denise
Spallone also joined the team as a part-time records
attendant in approximately 2007. Id. After Ms.
Depoto retired in 2012, Jennifer Ward was hired as her
replacement. [Dkt. 49-2 ¶ 6; Dkt. 54-10 ¶ 6].
Plaintiff contends Ms. Ward was approximately 30 years old at
the time she was hired. See [Dkt. 54-9 ¶ 7]. At
no time relevant to this decision was there a position titled
“senior” records attendant. [Dkt. 49-2 ¶ 5;
Dkt. 54-10 ¶ 5].
EHPD underwent senior managerial and policy changes beginning
in 2012 that impacted the Records Department. Brent Larrabee
was appointed Chief of Police in 2012, [Dkt. 54-9 ¶ 7],
and he appointed Lieutenant David Emerman as Supervisor of
the Records Division to replace Captain Joe Slane, [Dkt. 49-2
¶ 3; Dkt. 54-10 ¶ 3; see Dkt. 49-4
(Emerman Dep.) at 10:7-:11-5]. Officer James Naccarato joined
the EHPD in 2012, [Dkt. 49-8 (Mot. Summ. J. Ex. 6, Naccarato
Dep.) at 6:1-12], and was the Internal Affairs Officer at all
times relevant to this case. [Dkt. 49-2 ¶ 10; Dkt. 54-10
EHPD had formal policies and procedures governing internal
affairs, including a Code of Conduct and an internal affairs
investigation process. [Dkt. 49-2 ¶¶ 11-12; Dkt.
54-10 ¶¶ 11-12]. Part of Officer Naccarato's
role entailed investigating violations of these policies and
procedures. [Dkt. 49-2 ¶ 13; Dkt. 54- 10 ¶ 13].
EHPD's policy on Internal Affairs Officer and Complaints
provides, “[t]he Police Chief has the authority to
determine the merits of an investigation” and
discipline an employee accordingly. [Dkt. 49-9 (Mot. Summ. J.
Ex. 7 (Policy 208.2) at 14 of PDF; see Dkt. 49-2
¶¶ 29-30; Dkt. 54-10 ¶¶ 29-30].
was a multi-step process. After an internal affairs
investigation the Police Chief had the authority to issue a
“verbal reprimand, written reprimand (warning),
suspension, [and to] enter into negotiation with the Union
regarding alternate types of discipline or corrective
alternatives.” [Dkt. 4-4 at 14 of PDF]. But if
allegations were more serious, the Police Chief could then
refer the investigation to the Board of Police Commissioners
(“BPC”). [Dkt. 49-9 at 14 of PDF; see
Dkt. 49-2 ¶¶ 30-32; Dkt. 54-10 ¶¶ 30-32].
The BPC had “authority to suspend without pay for an
unlimited period of time, dismiss, reduce the charges, or
terminate the employee” and was to conduct a
“full Board hearing during which evidence [would be]
presented.” [Dkt. 49-9 at 14 of PDF; see Dkt.
49-2 ¶¶ 33-34; Dkt. 54-10 ¶¶ 33-34].
also experienced a few changes to her employment over the
couple of years after Ms. Depoto's retirement and prior
to her own retirement. In April 2013, Plaintiff's hours
were altered; her start time was moved back one hour from
7:00 am to 8:00 am and her end time moved back from 3:00 pm
to 4:00 pm. [Dkt. 49-2 ¶ 7; Dkt. 54-10 ¶ 7]. On
September 29, 2014, the job responsibilities of Plaintiff and
Ms. Ward were switched. [Dkt. 49-2 ¶ 8; Dkt. 54-10
¶ 8]. On October 10, 2014, Plaintiff requested to come
into work early after a long weekend, [Dkt. 49-2 ¶ 9;
Dkt. 54-10 ¶ 9; Dkt. 49-7 (E-mail 10/10/14)], and she
stated the following reasons:
Dave, past practice in the records room since I have been
here, 13 years, and for the years before, the senior clerk
always had first choice of coming in early after a long
weekend. So, my question is if you would like me to first
organize the paperwork for Jen to begin processing when she
comes in and then attend to my other duties, or just work on
my regular duties instead?
[Dkt. 49-7]. Lieutenant Emerman instructed her to report
according to her regular duties. Id.
Incident Leading to Suspension
Friday, December 5, 2014, an incident occurred giving rise to
Plaintiff's placement on administrative leave with
[Dkt. 49-2 ¶ 14; Dkt. 54-10 ¶ 14]. Plaintiff took
without permission a can of biscuits from the refrigerator
and a basket from the kitchen area. [Dkt. 49-2 ¶¶
18-20; Dkt. 54-10 ¶¶ 18-20]. She believed the
biscuits were for communal use or were abandoned (she planned
to cook them for the office over the weekend), and she
intended to borrow the basket as she had previously done and
observed other employees do the same. [Dkt. 54-9 ¶¶
21-22]. In the early afternoon, Lieutenant Murgo sent an
email to the EHPD employees:
We had two (2) canisters of Buttermilk flavored Pillsbury
biscuits that was brought in on Thanksgiving by one of our
officers. There is now one canister left, which means one
canister grew legs and walked away. If YOU are in possession
of Pillsbury Grands Flaky layers Buttermilk biscuits, please
return them to their rightful owner. We work in a police
department people. Too many things grow legs here. Thank you.
[Dkt. 54-2 (Opp'n Ex. 1, E-mail 12/05/14)]. After
receiving this e-mail, Plaintiff asked Lieutenant Emerman if
there were cameras in the kitchen. [Dkt. 49-2 ¶ 21; Dkt.
54-10 ¶ 21].
attempted to return the biscuits to the refrigerator, but
when she arrived in the kitchen carrying the biscuits in a
bag she discovered the refrigerator covered with yellow tape
and a “crime scene” sign. [Dkt. 49-2 ¶ 22;
Dkt. 54-10 ¶ 22; Dkt. 54-3 (Opp'n Ex. 4,
Photographs); Dkt. 54-9 ¶ 27]. Chief Larrabee confronted
Plaintiff and inquired about the contents of her bag, to
which she responded that the bag contained her salad. [Dkt.
54-9 ¶ 29]. Plaintiff contends that Chief Larrabee
looked in the bag, saw the can of biscuits, and escorted her
back to her work station. Id. According to
Plaintiff, Chief Larrabee then noticed another bag near her
desk containing the wire basket, and Plaintiff explained that
she intended to use it over the weekend for a Hannukah party.
Id. She was then advised to leave the office and
contact her union representative. Id. Plaintiff
maintains that food and kitchen items are “regularly
borrowed, misplaced or taken from the EHPD's communal
refrigerator and breakroom” but never has anyone sent
e-mails or used crime scene tape and a sign in response.
Id. ¶ 26.
same day of the incident, Officer Naccarato visited
Plaintiff's home with forms documenting her suspension
with pay. [Dkt. 54-9 ¶ 30; Dkt. 54-7 (Opp'n Ex. 7,
Investigation Report) at 2 of PDF (“At approximately
1535 hours I went to Dyanna's home . . . to get her
department keys and have her sign her notice of
suspension.”); [Dkt. 49-11 (Mot. Summ. J. Ex. 9, Admin.
Leave Notice) (establishing suspension with pay during
pendency of internal investigation)]. He thereafter
interviewed Plaintiff on December 11, 2014, which uncovered
information about the December 5 incident as stated above.
[Dkt. 49-12 (Mot. Summ. J. Ex. 10, Interview Tr.)]. During
this interview, Plaintiff explained she felt “kind of
negative things” from Chief Larrabee within the first
few weeks of his joining the office. Id. at 13 of
PDF. She recognized she was “obviously not a JEN and .
. . not a MARCIA” but that she put in over 13 years of
work and no one had ever told her that officers could not
trust her. Id. Plaintiff referenced her volunteer
activities for the union and overall commitment to the EHPD
community. Id. Officer Naccarato ultimately
concluded that Plaintiff violated the Code of Conduct by
engaging in “unbecoming conduct, ” which is
defined as “[a]ny willful action or conduct which
impedes the Department's efforts to achieve its goals,
values, or beliefs as stated in the mission statement and
code of ethics, brings discredit on the Department, or
impairs the operation or efficiency of the Department or any
member.” See [Dkt. 49-8 at 115:1-116:8; Dkt.
49-10 (Mot. Summ. J. Ex. 8, Policy 203.1) at 8 of PDF].
Officer Naccarato believes discipline includes “up to
termination.” [Dkt. 49-8 at 116:4-5].
avers that she spoke with Officer Naccarato after the
interview and asked him “what was going to happen to
[her].” [Dkt. 54-9 ¶ 31]. Officer Naccarato
purportedly stated, (1) that she had stolen from the EHPD,
(2) that “Chief Larrabee and other members of the EHPD
no longer trusted [her] or wanted [her] to continue working
at the EHPD, (3) that her termination was likely, and (4) she
should retire or resign if it was possible. Id.
Officer Naccarato does not remember this conversation, but
stated in his deposition, “[I]f she asked me, I would
have told her what I thought.” [Dkt. 49-8 at 34:17-18].
He would have told her, “[I]t's stealing from a
police department, you have the potential to get fired for
it. We have a disciplinary matrix that we go by and
that's where it falls in ...