United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Vanessa L. Bryant United States District Judge.
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.
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. . . .”).
is a rehabilitative center in New Canaan, Connecticut,
devoted to care for elderly patients, and it provides
inpatient, outpatient, home-based services. 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.
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.
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.
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.
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.
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.
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
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].
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.
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.
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.
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).
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.
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 ...