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Kelly v. Covenant Homes, Inc.

United States District Court, D. Connecticut

July 18, 2018

MARY KELLY, Plaintiff,


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

         Plaintiff Mary Kelly ("Kelly" or "Plaintiff) brings this claim for retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and discriminatory termination in violation of the Age Discrimination in Employment Act ("ADEA") against her employer Covenant Home, Inc., [1] having abandoned her claims of sexual harassment and gender discrimination under Title VII and the Connecticut Fair Employment Practices Act. Kelly alleges that she was terminated on the basis of age and in retaliation for her having complained of sexual harassment. Defendant Covenant Homes, Inc. contends that it terminated Kelly after she failed to verify and accurately enter a potential customer's financial information in an application, and moves for summary judgment on both remaining claims. For the reasons set forth below, the Court DENIES Defendant's motion on Plaintiffs remaining Title VII retaliation claim and ADEA discriminatory termination claim.

         I. Background

         Covenant Village initially hired Plaintiff in May 2013 to work as a Sales Representative. (Def.'s L.R. Stmt. [Doc. # 46-6] ¶ 1; Pl.'s L.R. Stmt. [Doc. #47-1] ¶ 1 (collectively referred to as "Parties' L.R. Stmts.").) Covenant Village of Cromwell describes itself as a Covenant Retirement Community, which is a "faith-based senior living community." (Ex. B [Doc. # 46-2] to Def.'s Mot. Summ. J. at 50, 53.) In mid-2013, Chuck Kane, a sales consultant employed by the firm of Martino & Binzer, allegedly told Plaintiff she was attractive, complimented her eyes, and asked if she would be able to work with him "now that [he had] endeared [himself] to [her]." (Parties' L.R. Stmts. ¶ 3.) Although employed by another firm, Plaintiff testified that Kane was managing her and other sales representatives in his capacity as consultant to Covenant Village. (Ex. 3 (Pl.'s Dep.) [Doc. # 47-4] to Pl.'s Opp'n to Def.'s Mot. Summ. J. at 116.) Plaintiff did not tell anyone at Covenant Village about the incident at that time. (Parties' L.R. Stmts. ¶ 3.)

         In a second incident, which the parties now agree occurred on a day in August 2013, after 5 p.m., Kane put Plaintiff in "a strong embrace [, ]" "put his hand on [her] buttocks," ran his hand "up [her] back and then started going into [her] hair and breathing heavily." (Pl.'s Dep. [Doc. # 47-4] at 110.) Plaintiff pushed him way and said "Get away. Just don't touch me." (Id.) From then on, Plaintiff made sure never to be in a room alone with Kane and locked her office door to prevent him from coming in. (Id. at 111.)

         The next day, Plaintiff told Lisa Roy, an administrative assistant, about the incident. (Parties' L.R. Stmts. ¶ 4.) Neither Plaintiff nor Ms. Roy reported Mr. Kane's behavior to management or to Human Resources at that time. (Id.)

         Finally, on June 19, 2014, Plaintiff was in her office around 3:30 or 4:00 p.m., talking on the phone with a sales prospect, when Kane "c[ame] barreling in[, ]" ignoring Plaintiffs requests that he leave because she was on the phone. (Pl.'s Dep. [Doc. # 47-4] at 119.) Kane maneuvered around the length of Plaintiff s L-shaped desk and kissed her on the neck. (Id. at 120.) Kane had closed the door behind him. (Id.) Plaintiff reacted by swinging her left arm at him, but the hit did not land "because he ran." (Id. at 121.) Plaintiff immediately reported the incident to Margaretann Foster, Sales Director. (Parties' L.R. Stmts. ¶ 5.)

         Foster testified that because at the time Defendant did not have a human resources director, Foster escalated the matter to Defendant's Executive Director, Pamela Klapproth. (Ex. C (Foster Dep.) [Doc. # 46-3] to Def.'s Mot. Summ. J. at 115-16.) Klapproth and Foster called Rob Young, the Vice President of Sales, to inform him and also spoke with Dave Martino, whose consulting firm employed Kane. (Id. at 116-17.)

         The next day, June 20, 2014, Deb Tate, Vice President of Human Resources for Covenant Retirement Communities, undertook an investigation of plaintiffs complaint about Mr. Kane. (Parties' L.R. Stmts. ¶ 6.) The investigation included interviews of Plaintiff, Ms. Foster, and several other witnesses, as well as communications with Mr. Kane's employer. (Id.)

         After the investigation was completed, Defendant changed Kane's role so that he would no longer be coming to the campus at which Plaintiff worked, and would no longer be responsible for coaching Plaintiff or other sales representations. (Ex. E (Klapproth Dep.) [Doc. # 46-4] to Def.'s Mot. Summ. J. at 35-37.) Defendant and Kane's employer subsequently decided, however, not to remove Kane from his role as a consultant for Defendant. (Id. at 37-39.) Klapproth explained to Plaintiff that "Kane was still going to have involvement with the Connecticut campus; however, his role had changed where he remotely would be tracking sales metrics data, that he would not be visiting the campus, and most of his interaction would be with [Foster] and [Klapproth]." (Id. at 67.)

         According to Plaintiff, Foster told Plaintiff that Kane was continuing to listen to Plaintiffs recorded calls with sales prospects and providing feedback to Foster. (Ex. A (Pl.'s Dep.) [Doc. # 46-2] to Def.'s Mot. Summ. J. at 130-31, 142-44.) Plaintiff says she later learned from Foster that Kane was providing "false and negative" feedback about Plaintiffs performance on these calls. (Kelly Aff. ¶ 27.) Plaintiff says she "went to Gail Fancher, the [Covenant Village of Cromwell] Human Resources director, to complain that Mr. Kane was still monitoring my calls and providing feedback on my job performance; Ms. Fancher told me she would look into it, but never got back to me about it." (Id. ¶ 28.)

         While Plaintiff never saw Kane at the Covenant Village campus again, she cites Kane's July 2014 expense report as evidence that he did in fact come back to the Connecticut campus, despite the assurances she had received. (Ex. 25 to Pl.'s Opp'n.)

         During the summer of 2014, Plaintiff began working with a prospect named Fran. (Parties' L.R. Stmts. ¶ 9.) Over a period of several months, Plaintiff spoke to or met with Fran on multiple occasions. (Id.) On January 12, 2015, Fran's financial application was submitted to FinAid, listing a house in Lebanon valued at $300, 000. (Parties' L.R. Stmts. ¶ 10.) With respect to real estate holdings, the applicant is instructed on the application to provide her "share of the market value minus expected selling costs." (Id.) The Routing Sheets accompanying the application list Plaintiff as the Campus Sales Representative under the statement, "I have reviewed the financial application provided by the applicant(s) and it is complete." (Id.)

         Plaintiff testified, however, that she did not have any responsibility for ensuring that the information the applicant provided was accurate, because as part of the application process, the applicant was required to provide proof substantiating the financial information, which Plaintiff would not collect. (Pl.'s Dep. [Doc. # 47-4] at 84-85.) According to Plaintiff, this role fell to the sales director, who in 2014 became Margaretann Foster. (Id.)

         While the parties dispute whose job it was to ensure that the form was filled out correctly, they agree that the form did not make clear that Fran owned only a share of the $300, 000 value of the house listed on her application. (Parties' L.R. Stmts. ¶ 11.)

         Defendant contends that during Fran's visit to Covenant Village on January 22, 2015, Ms. Foster came to realize that, contrary to the way it was portrayed on the application form, Fran's ownership interest in the house was only $100, 000. (Def.'s L.R. Stmt. ¶ 13.) Plaintiff denies this statement to the extent that Defendant suggests Foster was unaware of Fran's partial ownership of the house prior to January 22, 2015. (Pl.'s L.R. Stmt. ¶ 13.) Plaintiff argues that Foster knew of Fran's partial home ownership of the house as early as December 19, 2014, citing a note in the "Answers on Demand" ("AOD") system that Plaintiff had entered regarding Fran's concern that she could not afford Covenant Village, which Plaintiff believes Foster would have seen when Foster put her own notes into the system regarding Fran. (Id.) Foster testified that she did not review Plaintiffs AOD entries about Fran, despite knowing that Fran had concerns about affording the community. (Ex. 6 (Foster Dep.) to Pl.'s Opp'n at 233-34.)

         The parties agree that Foster went to Klapproth to inform Klapproth about problems with Fran's financial qualifications, but dispute whether Foster had just become aware of the issue or had known all along. (Parties' L.R. Stmts. ¶ 14.) Neither party directs the Court to record evidence that definitively establishes when Foster became aware of the actual value of Fran's share of the house, but Plaintiff argues that Foster was on notice of the issue given her awareness of Fran's financial concerns and the fact that Foster was making entries about Fran in the same AOD system where Plaintiff was recording information about the house. (Id.)

         The following Monday morning, January 26, 2015, after Fran's visit, Foster advised Plaintiff that she was being placed on suspension pending further investigation. (Parties' L.R. Stmts. ¶ 15.)

         Klapproth ultimately determined that Plaintiff had used poor judgment both in neglecting to question Fran's valuation of her ownership interest in the Lebanon property and in failing to come forward with any of the troubling information she learned about Fran's finances, including not only the fact that Fran did not own 100% of the house valued on the application form as a $300, 000 asset but also Fran's doubts about her ability to afford a residence at Covenant Village. (Parties' L.R. Stmts. ¶ 16.)

         The parties also dispute the results of a FinAid report with the corrected $100, 000 figure for Fran's share of the value of the house. Defendant contends that the report that was processed subsequently using the correct figure projected an expected subsidy (that Defendant expected, actuarially, to incur) of $369, 686, which would not have been approved by Defendant's VP of Operations. (Def.'s L.R. Stmt. ¶ 17.) Plaintiff, however, argues that contemporaneous notes of a conversation between Fancher and Klapproth show that the expected subsidy was actually $185, 000. (Pl.'s L.R. Stmt. ¶ 17.) At oral argument, Plaintiff argued that the issue of whether Fran could have afforded to live at Covenant Village is an issue of fact for the jury to determine.

         On Wednesday afternoon, January 28, 2015, Fancher and Foster called Plaintiff at home and informed her that due to her mishandling of Fran's application, Klapproth had made the decision to terminate her employment. (Parties' L.R. Stmts. ¶ 18.)

         II. Discussion

         Legal Standard Summary judgment is appropriate where, "resolv[ing] all ambiguities and draw[ing] all permissible factual inferences in favor of the party against whom summary judgment is sought," Holcomb v. Iona Coll.,521 F.3d 130, 137 (2d Cir. 2008), "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(a). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Williams v. Utica Coll. of Syracuse Univ.,453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). "The substantive law governing the case will identify those facts that are material, and '[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty ...

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