United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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." 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.,
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.
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. Id. Thurston now moves for
summary judgment on all remaining claims in Plaintiff's
Complaint. The Court resolves the motion herein.
STANDARD FOR SUMMARY JUDGMENT
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). "[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).
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).
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).
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)).
the Local Rule 56(a)(1) Statements of the Parties [Doc. 33-2
and Doc. 37-2], the Court derives the following
facts. The Court details the facts for purposes
of completeness regarding the record presented.
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., ¶¶
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.
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.
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. 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.
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. 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. Jakiela also testified that
Plaintiff had raised complaints about not having enough
trucks and employees. Jakiela Depo., at 23.
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. Id., at 74.
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.
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.
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]."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 &