Dighello v. Thurston Foods, Inc.

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DOC. 33]

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In July of 2016, Plaintiff Judith Dighello commenced this employment discrimination action against her former employer, Defendant Thurston Foods, Inc. ("Thurston"), in the Connecticut Superior Court for the Judicial District of New Haven, at Meriden. See Dighello v. Thurston Foods, Inc., No. NNI-CV-16-6009441-S (Conn. Super. Ct. July 18, 2016). On August 8, 2016, Defendant removed the action to this Court, under 28 U.S.C. § 1441(a) and (c), on the grounds that Plaintiff's action "involves a federal question as Plaintiff seeks to recover damages pursuant to the FMLA [Family Medical Leave Act], 29 U.S.C. § 2612, et seq."^[1] Doc. 1 ("Notice of Removal"), ¶ 4. The Notice of Removal was filed in compliance with 28 U.S.C. § 1446(b), "within 30 days of Thurston's receipt of the Complaint." Id., ¶5.

         In her Complaint, Plaintiff alleges nine causes of action. In the first three counts of her Complaint, Plaintiff alleges violations under Connecticut's Fair Employment Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a-60(a)(1). These include the "First Count" for discrimination based on "sex/gender" and wrongful termination; the "Second Count" for disability discrimination, perceived disability discrimination, and wrongful termination; and the "Third Count" for failure to accommodate. In her fourth and fifth counts, Plaintiff includes two retaliation claims: the "Fourth Count" for retaliation in violation of Conn. Gen. Stat. § 46a-60(a)(4) and the "Fifth Count" for retaliation in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2612, et seq. Also, under the FMLA, Plaintiff pleads the "Sixth Count" for alleged interference in violation of the FMLA. Next, Plaintiff includes two state law tort claims as the "Seventh Count" and "Eighth Count": intentional infliction of emotional distress and common law wrongful discharge, respectively. Finally, Plaintiff sets forth a "Ninth Count," alleging that by terminating Plaintiff for exercising her federal and state constitutional rights to free speech, Thurston violated Conn. Gen. Stat. § 31-51q.

         Previously, the Court granted in part and denied in part Defendant's "Motion to Dismiss" [Doc. 16] under Rule 12(b)(6), Fed.R.Civ.P. In particular, the Court dismissed Plaintiff's claims under the FMLA in the Fifth and Sixth Counts of her Complaint with respect to her alleged illness of "walking pneumonia and respiratory infections," but allowed those FMLA claims to proceed as to her alleged "serious health condition" of asthma. Dighello v. Thurston Foods, Inc., 307 F.Supp.3d 5, 31 (D. Conn. 2018). The Court also denied the motion to dismiss on Plaintiff's two wrongful discharge claims in the Eighth and Ninth Counts.^[2] Id. Thurston now moves for summary judgment on all remaining claims in Plaintiff's Complaint. The Court resolves the motion herein.

         II. STANDARD FOR SUMMARY JUDGMENT

         The Second Circuit has repeatedly declared that, pursuant to Rule 56(a), Fed. R. Civ. P., "[s]ummary judgment is appropriate only if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 533 (2d Cir. 2016).^[3] "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         In deciding whether to award summary judgment, the court "constru[es] the evidence in the light most favorable to the [nonmoving party]' and 'draw[s] all reasonable inferences and resolv[es] all ambiguities in [its] favor.'" Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018) (quoting Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017)). "[A] fact is material if it 'might affect the outcome of the suit under the governing law,' and a dispute is genuine if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015) (quoting Liberty Lobby, Inc., 477 U.S. at 248).

         Under Rule 56(a), the moving party bears the initial burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013). Then, if the movant succeeds in carrying its burden, "the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011).

         In sum, the ultimate test "is whether the evidence can reasonably support a verdict in plaintiff's favor." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

         III. FACTS

         From the Local Rule 56(a)(1) Statements of the Parties [Doc. 33-2 and Doc. 37-2], the Court derives the following facts.^[4] The Court details the facts for purposes of completeness regarding the record presented.

         Thurston Foods is a wholesale food distributor that transports and distributes food to various customers. Doc. 33-2, ¶ 2. In March of 2012, Plaintiff was hired by Thurston as a router, with duties including, inter alia, assigning the orders for food products in Thurston's computer system to delivery trucks and scheduling the trucks for customer stops. Id., ¶ 9. Plaintiff was also required to determine whether the trucks were overweight and to be sure they were used efficiently (filled to capacity). Plaintiff routed more than 55 trucks per day. Id., ¶ 11. While employed by Thurston, Plaintiff's direct supervisor was Greg Kastukevich, the manager of the transportation department, who in turn reported to Robert "Bob" Thurston, the "Plant Manager" in charge of "Transportation." Id., ¶ 16. Plaintiff worked for Thurston in this router position continuously until May 7, 2015. Id., ¶¶ 52, 62.

         According to Plaintiff, she was informed that an employee named Art Lehne was hired to be a liaison between drivers, sales, and dispatch at Thurston Foods. Id., ¶ 18. He was trained as a "back-up router," but Plaintiff believes that he was actually trained to replace her in her job. Id., ¶ 19; Doc. 37-2, ¶ 19.

         During April of 2015, Plaintiff became ill with a bad respiratory infection or what she has termed "walking pneumonia." Id., ¶ 21. She requested two days off from work, in accordance with her doctor's recommendation. Id., ¶ 24. Sick leave was granted for these days. Id., ¶ 26.

         At one point during her employment, Plaintiff claims that she endured a confrontation with Kastukevich, sparked by his request for her to falsify information on drivers' daily logs. Doc. 33-2, ¶¶ 36- 37. Plaintiff alleges that the dispute was regarding her refusal to sign inaccurate drivers' logs, which omitted hours driven that were over the legal limit.^[5] Doc. 37-2, ¶ 37. Plaintiff states that in response to this refusal, Kastukevich advanced upon her, cornered her in her office, and leaned against her (with her chest touching his torso) and his hand balled into a fist. Doc. 33-2, ¶¶ 38-39. Following this incident, Plaintiff did not return to work the next day. Id., ¶ 42 When Plaintiff returned to the office to meet with Meg Jakiela, Thurston's Human Resources ("HR") representative, Jakiela took Plaintiff to lunch and then had Kastukevich apologize to Plaintiff. Id., ¶¶ 17, 44.

         As to safety issues, Plaintiff alleges that she complained to Jakiela about drivers being "over hours" and changing their logs. Doc. 37-2, ¶ 67; Plaintiff's Depo., at 17.^[6] She also testified that she complained to Thurston's CEO, Peter Malone, about drivers going over their allowed hours, not getting enough sleep between shifts, and falsifying their manifests. Plaintiff's Depo., at 73, 170-71. Greg Kastukevich and Bob Thurston both testified that Plaintiff raised concerns that more drivers were needed to make the allotted deliveries and that the current drivers were going over the permitted hours. Kastukevich Depo., at 20-21; Thurston Depo, at 21.^[7] Jakiela also testified that Plaintiff had raised complaints about not having enough trucks and employees. Jakiela Depo., at 23.^[8]

         Plaintiff testified that the drivers were responsible for maintaining their logs but they were pressured to change them to appear to be in compliance with DEP regulations. Plaintiff's Depo., at 73. Drivers who drove more than fourteen hours a day and/or sixty hours per week were not allowed to include these figures in their logs. Id., at 90, 171. In fact, according to testimony by Plaintiff, one driver named Jose was fined for being over hours and then reprimanded by Thurston.^[9] Id., at 74.

         Plaintiff maintains that, although asked to do so by Kastukevich, she did not falsify any documents because she refused to fill out a missing driver's log. Doc. 33-2, ¶ 73; Plaintiff's Depo., at 167. She also testified that she complained about drivers exceeding their time limits mandated by federal regulations. Doc. 37-2, ¶ 77; Plaintiff's Depo., at 171-73.

         Plaintiff was told when she started work not to send a truck on the road that was overweight. Doc. 33-2, ¶ 78. She testified, however, that she was later told that there was a "buffer" when it came to the weight of trucks and it was all right to send out an overweight truck, based on Thurston's needs or wants, if the truck was not routed to go near a weigh station. Doc. 33-2, ¶ 79; Plaintiff's Depo., at 85-86.

         With respect to additional job duties, Plaintiff has stated that she was assigned the task of maintaining fuel logs for Thurston's operation of on-site fueling stations. Doc. 33-2, ¶ 45. These logs were mandated by the Connecticut Department of Environmental Protection ("DEP"). Id. In preparing the reports, Plaintiff claims she was not given all of the pertinent information or raw data so that her report was not accurate. Id., ¶ 50. On May 7, 2015, Plaintiff submitted the inaccurate reports to Bob Thurston, who "started yelling at Jim Thurston and then . . . at [her]."^[10]Id., ¶¶ 51-52. Because of this yelling, Plaintiff informed Jakelia of HR, who was in the area, that she "need[ed] a break" or "a few minutes" and then Plaintiff exited the building. Id., ¶ 53. Upon entering the parking lot, Plaintiff got in her car, "drove down the street" to get a coffee and parked in the Stop & Shop ...