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DeLorco v. Waveny Care CTR, Inc.

United States District Court, D. Connecticut

August 27, 2018



          Hon. Vanessa L. Bryant United States District Judge.

         This action involves the alleged forced resignation of Kristina DeLorco (“Plaintiff” or “DeLorco”) from her temporary employment with Waveny LifeCare Network, Inc. (“Defendant” or “Waveny”). Presently before the Court is Defendant's motion for summary judgment on Plaintiff's claims of age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 626(e), et seq., and intentional infliction of emotional distress. For the following reasons, the Court GRANTS summary judgment on the age discrimination claim based on constructive discharge and hostile work environment. The Court also GRANTS summary judgment on the intentional infliction of emotional distress claim.


         The following facts are taken from the evidence as well as the facts in Defendant's Local Rule 56(a)(1) Statement supported by the evidence in light of Plaintiff's failure to file a Local Rule 56(a)(2) Statement. See D. Conn. Civ. L. R. 56(a)3 (“Failure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming admitted certain facts that are supported by the evidence in accordance with Local Rule 56(a)1. . . .”).

         Waveny is a rehabilitative center in New Canaan, Connecticut, devoted to care for elderly patients, and it provides inpatient, outpatient, home-based services.[2] In March of 2015, Waveny interviewed and hired Plaintiff for a temporary position while an employee was out on maternity leave. See [Dkt. 23-3 (Mot. Summ. J. Ex. B, Pl. Dep.) at 31:16-36:9]. Ms. DeLorco was approximately 53 years old when she was hired. See Id. at 127:7-10. Patricia Palpini (“Palpini”) interviewed, hired, and initially supervised Ms. DeLorco. See Id. at 63:21-25, 87:12-24. Ms. DeLorco testified that Palpini is approximately her age. See Id. at 65:22-66:3. Ms. DeLorco testified that her skillset was primarily clinical, and she did not have great administrative or computer skills. See Id. at 59:2-21. She made this clear to Ms. Palpini before being hired. See Id. at 127:24-28:7.

         Plaintiff testified she was told the woman on maternity leave would not return to her position for medical reasons, so the job would likely become permanent. See Id. at 31:9-32:23. She was also told that Waveny intended to put Martha Lipowicz (“Lipowicz”) in the position when it officially opened up because it was “one step up” for her. See Id. at 32:15-23.

         Ms. Lipowicz was assigned to be Plaintiff's preceptor during orientation. See Id. at 75:5-19. Ms. DeLorco testified that Ms. Lipowicz got frustrated with her each time they attempted to complete a task. She testified: “She would take the papers. She would slam the computer screen. She would pick up pens and throw them across the desk. She would abruptly get up, slam the drawers and the cabinets above my head.” Id. at 109:14-21. Ms. DeLorco testified that the only reason she knew of as to why Ms. Lipowicz was hostile toward her was because Lipowicz wanted her job. See Id. at 93:9-25.

         Ms. DeLorco acknowledged during her deposition that she was not the only person treated harshly by Ms. Lipowicz; rather, she felt “there was a lot of bullying going on, ” the problems “had nothing to do with [her], ” and that people were also verbally abusive toward Lenore Consiglio. See Id. at 90:4-91:25. Ms. DeLorco testified that Ms. Consiglio is older than her. See Id. at 66:5-8. Plaintiff offered no evidence to support her surmise. She also testified that Ms. Lipowicz was rude to clients, hospital discharge, and home care staff in general. See Id. at 124:3-18.

         One week after Ms. DeLorco's first day, she complained to the Human Resources Department (“HR”). See Id. at 96:1-13. Ms. DeLorco was later put in touch with the director of HR, Rebecca Albrecht, and did not have any difficulty getting in touch with her. See Id. at 97:9-25. She thereafter made several complaints to Ms. Albrecht. See Id. at 115:13-25.

         In response to “the incident where [Ms. Lipowicz] was slamming the computer screen, throwing pens and slamming the door above [her] head, ” Ms. DeLorco had a meeting with Chief Executive Officer Bill Piper and Ms. Albrecht in April 2015. See Id. at 112:5-20, 114:9-115:25. During this meeting, Ms. DeLorco implied but did not expressly state she was suffering from discrimination. See Id. at 125:2-16. She also testified that, after she finished describing the office environment, “Bill seemed agitated, and he was very stern and stated to me, his statement was ‘What you are describing here is grounds for a lawsuit,' and he was very angry, and I was taken aback.” See Id. at 128:18-25.

         When Ms. DeLorco asked whether she was treated differently because of her age, she testified, “I don't think I said age, but I know that I indicated to Bill that I was being treated differently for some reason, and I wasn't sure exactly what it was.” See Id. at 125:19-22. She then testified that she believed the treatment was related to her age, stating:

It started with [Ms. Palpini] as I would repeatedly express my frustration to [Ms. Palpini] that I'm not learning the computer. I'm not learning the system. I keep getting shut out of the system. I didn't understand why mechanically the computer system would shut down while I was using it and that I'm not real computer literate, and [Ms. Palpini], she didn't say explicitly that it is an age thing, but that the younger people are more in tune to the computer and that it is no big deal.

Id. at 126:7-19. When asked to clarify whether Ms. Palpini said anything else about Ms. DeLorco's lack of computer knowledge and that it was “no big deal, ” Ms. DeLorco responded: “She said ‘You will learn it.'” Id. at 126:22-24. Ms. DeLorco also testified to the following about Ms. Palpini: “she indicated that we are slower at learning the technology.” See [Dkt. 30-2 (Reply in Supp. of Mot. Summ. J. Ex. B, Pl. Dep.) at 166:14-22 (emphasis added)].

         Shortly after the meeting with Mr. Piper and Ms. Albrecht, Carol Smith (“Smith”) replaced Ms. Palpini as Ms. DeLorco's supervisor. See [Dkt. 29-2 (Obj. to Mot. Summ. J. Ex. B, Pl. Dep.) at 154:10-25]. Ms. DeLorco did not have any problems with Ms. Smith. See Id. However, problems with Ms. Lipowicz persisted. On May 1, 2015, Ms. Lipowicz got frustrated with Ms. DeLorco and threw papers, threw a pen across Ms. DeLorco's desk, and kicked over a chair. See [Dkt. 23-3 at id. at 155:19-157:25]. Ms. DeLorco went to Ms. Smith's office whereupon Ms. Lipowicz entered, sat at a round table in front of Ms. Smith, and shook her fist at Ms. DeLorco and pounded it on the desk. See Id. Ms. DeLorco subsequently called Ms. Albrecht. See [Dkt. 29-2 at 161:9-162:7].

         On May 20, 2018, Ms. DeLorco attended a meeting with Ms. Smith and Ms. Albrecht. See [Dkt. 23-2 at 176:15-177:13]. Ms. DeLorco heard a discussion regarding Ms. Palpini's arrival, and at that moment she decided to hand in her badge, saying, “I can't take it.” See Id. She did not know about the content of the meeting or those who would be in attendance ahead of time. See Id. Ms. DeLorco was never disciplined or alleged to have poor performance. See Id. at 106:8-23.

         Shortly thereafter, Ms. DeLorco applied for a position with Waverly. See Id. at 181:16-182:12. She was told she would not have any problems with Ms. Palpini or Ms. Lipowicz, but when she learned they were still employees she resigned a second time. See Id. at 182:1-25.

         Ms. DeLorco never sought treatment and never consulted a physician about her distress related to the employment situation. See Id. at 209:10-21. She claims to suffer from anxiety and fear, and described having these symptoms and an upset stomach when confronted by Ms. Lipowicz. See Id. at 209:22-210:19; 213:3:23. She acknowledged having a history of anxiety and had been diagnosed with PTSD in 2005 after experiencing an assault. See Id. at 210:20-211:20. Although she was put on medication, she had been taken off medication because it was not compatible with other medication she was taking. See Id. at 211:14-19. She did not seek therapy after resigning from Waveny and does not currently receive therapy or take medication. See Id. at 212:20-213:2.

         Legal Standard

         Summary judgment should be granted “if 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). The moving party bears the burden of proving that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp., No. 3:03-cv-00481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (“At the summary judgment stage of the proceeding, [the moving party is] required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.”) (citing Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. Conn. State Library, 817 F.Supp.2d 28, 37 (D. Conn. 2011). Put another way, “[i]f there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal quotation marks and citation omitted).

         A party who opposes summary judgment “cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb, 84 F.3d at 518. Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726-27 (2d Cir. 2010).


         I. ADEA Discrimination

         The ADEA prohibits an employer from discriminating against an employee “because of” her age. 29 U.S.C. § 623(a)(1). The statute protects employees who are ...

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