Brauer v. MXD Group, Inc.

          MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT. 23]

          Hon. Vanessa L. Bryant United States District Judge.

         Plaintiff Teresa Brauer ("Plaintiff" or "Ms. Brauer") brought this action against Defendant MXD Group, Inc. ("Defendant" or "MXD") in Connecticut Superior Court on November 28, 2017, alleging retaliation, gender discrimination, quid pro quo sexual harassment, and aiding and abetting discriminatory employment practices in violation of the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. §§ 46a-60(b)(1), (b)(4), (b)(5), (b)(8). See generally [Dkt. 1-1 (Compl.)]. Plaintiffs claims arise out of her temporary employment with MXD, interactions during her employment with a supervisory employee, Allen Martin, and termination of her temporary employment on March 12, 2018. Id. MXD removed the case to federal court on December 20, 2017. [Dkt. 1 (Notice of Removal)]. Before the Court now is Defendant's Motion for Summary Judgement on all four counts of the Complaint. See [Dkt. 23 (Mot. Summ. J.)]. For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED in full.

         I. Factual Background

         MXD is a corporation that provides logistics services. [Dkt. 23-3 (Def.'s R. 56(a) Statement) at ¶ 1]. MXD was a client of Randstad US, LP ("Randstad"), a temporary staffing agency that finds candidates for clients in various types of placements, including permanent hires, temporary placements, and "temp-to-hire" placements. Id. at ¶¶ 3-5. A "temp-to-hire" placement is a temporary placement wherein the client has the option of hiring the temporary worker as a regular employee. Id. at ¶ 4.

         Through Randstad, MXD interviewed and hired Plaintiff as a temporary worker for a dispatch position. Id. at ¶ 6. Plaintiff's "temp-to-hire" placement with MXD began on October 27, 2015. Id. at ¶¶ 7-8. MXD contends that Plaintiff was at all times relevant an employee of the temporary staffing agency Randstad US, LP, and was never an employee of MXD as defined by the CFEPA, Conn. Gen. Stat. § 46a-51(9). Id. at ¶ 9; [Dkt. 23-2 at 2 n.2]. Plaintiff contends that MXD employed her. [Dkt. 26-2 (Plf.'s R. 56(a) Statement) at ¶ 9]. Exclusively for purposes of its motion for summary judgment, MXD presented the facts in the light most favorable to Plaintiff and assumed that she was an employee of MXD. Id. The Court does the same in this decision.

         When Plaintiff began her placement in October 2015, Tom Hunt supervised the MXD Newington, Connecticut facility where she worked. [Dkt. 23-3 at ¶ 10]. Allen Martin took over as supervisor during Plaintiffs placement. Id. at ¶ 11. During Plaintiff's placement, Martin and Hunt both expressed general satisfaction with her job performance. Id. at ¶ 13. Plaintiff was informed at some point that MXD was considering hiring her as a regular employee. Id. at ¶ 16. While Plaintiff did not receive a formal sit-down performance review while at MXD, her personnel file includes records of her performance. Id. at 17; [Dkt. 26-2 at ¶ 17].

         At some point, Martin became unsatisfied with Plaintiff's job performance. Id. at ¶ 18; [Dkt. 26-2 at ¶ 18]. Plaintiff contends that Martin only became dissatisfied with Plaintiff after she rebuffed his advances. Id. On February 19, 2016, Martin requested that Randstad find a temporary worker to replace Plaintiff. [Dkt. 23-3 at ¶ 19]. Martin reported to Randstad employee Roxanne Jackson that MXD sought to terminate Plaintiffs placement because she had made mistakes, was unable to master her job responsibilities, and developed a poor attitude. Id. at ¶ 20; [Dkt. 26-2 at ¶ 20]. Hunt contacted Randstad on February 23, 2016 to reiterate MXD's desire to replace Plaintiff as soon as possible, explaining that Plaintiff had "completely changed" since MXD expressed interest in "taking her on." Id. at ¶¶ 22, 23. Details of these communications were recorded in the Randstad Client Portal. Id. at ¶¶ 21, 24. Plaintiff contends that these representations were false. [Dkt. 26-2 at ¶¶ 22, 23]. MXD requested that Plaintiff not be informed of her replacement until one was found. [Dkt. 23-3 at ¶ 25].

         During her placement with MXD, Martin regularly referred to Plaintiff as "sunshine" or "ray of sunshine." [Dkt. 23-3 at ¶ 14]. Eight days after Martin asked that Plaintiff be replaced, Martin and Plaintiff had a discussion about work matters, during which Plaintiff sensed that Martin was depressed and flustered. Id. at ¶¶ 26-27. Plaintiff asked Martin if he was alright, and Martin stated that he and his wife were having issues and he did not think the marriage would survive. Id. at ¶ 28. Plaintiff, who had previously been married and divorced, told Martin that if he needed to talk, she was there. Id. at ¶¶ 29-30. Martin indicated that he knew Plaintiff was single and that he thought she was attractive. Id. at ¶ 31. He asked whether she might want to go to dinner with him sometime. Id. at ¶ 32. Plaintiff interpreted these comments, as well as Martin's use of pet names for her, as an expression of his romantic and sexual interest in her. Id. at ¶ 33; [Dkt. 26-2 at ¶ 33]. Plaintiff declined the invitation, stating that she does not mix business with pleasure. [Dkt. 23-3 at ¶ 34]. Martin apologized and did not make further comments of a personal or romantic nature. Id. at ¶ 35. Martin and Plaintiff were alone during the conversation. Id.

         Martin did not offer or state, either explicitly or implicitly, that Plaintiff would receive any employment benefit or preferential treatment if she engaged in any romantic or sexual conduct with him. Id. at ¶¶ 41-43. Nor did Martin ever state or threaten, either explicitly or implicitly, that Plaintiff would be penalized or subject to adverse action if Plaintiff declined to engage in romantic or sexual conduct with him. Id. at ¶¶ 44-46. However, Plaintiff claims that, after she rejected Martin's advances, the workplace atmosphere was "horrible," and Martin grew dissatisfied with Plaintiff's performance. [Dkt. 26-2 at ¶¶ 41-46].

         Plaintiff's Complaint and interrogatory response indicate, and Defendant agrees, that this encounter took place on February 27, 2016, more than a week after Martin sought to replace Plaintiff. [Dkt. 1-1 at¶ 14; Dkt. 23-10 (Def.'s Mot. Summ. J., Ex. G Discovery Requests) at p. 5; Dkt. 26-2 at ¶¶ 27, 41-46]. At her deposition, Plaintiff said it happened on a Saturday but could not recall the exact date. See [Dkt. 26-2 at ¶ 47]. Plaintiff contends that Martin grew dissatisfied with Plaintiff only after she declined his advances. Shortly before the end of Plaintiff's placement, Randstad placed another temporary worker, a female, at MXD to replace Plaintiff. [Dkt. 23-3 at ¶ 51].

         After Plaintiff was notified that her placement at MXD was ending on March 12, 2016, Plaintiff reported allegations of sexual harassment and discrimination to MXD and Randstad representatives. [Dkt. 23-3 at ¶¶ 48-49, 53]. Plaintiff did not report the allegation sooner because she was afraid any complaints would decrease her likelihood of becoming a permanent MXD employee. [Dkt. 26-2 at ¶¶ 48-50]. Martin denied the allegations when Randstad employee Crystal Petroski reported them to him. [Dkt. 23-3 at ¶¶ 54-55]. II. Standard of Review 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 factual issues exist. 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)). "If 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. Property Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (quotation omitted). In addition, the court should not weigh evidence or assess the credibility of witnesses" on a motion for summary judgment, as "these determinations are within the sole province of the jury." Hayes v. New York City Dep't of Corn, 84 F.3d 614, 619 (2d Cir. 1996).

         "A party opposing summary judgment 'cannot defeat the motion by relying on the allegations in [her] pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.' At the summary judgment stage of the proceeding, [p]laintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient." Welch-Rubin v. Sandals Corp., No. 3:O3-cv-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (quoting Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996). "Summary judgment cannot be defeated by the presentation ... of but a 'scintilla of evidence' supporting [a] claim." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)).

         III. Discussion

         Plaintiff asserts her claims for retaliation, gender discrimination, quid pro quo sexual harassment, and aiding and abetting a discriminatory employment practice under the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq. ("CFEPA"). CFEPA prohibits employers from, inter alia, discriminating against an employee "because of the individual's . . . sex" or "because such person has opposed any discriminatory employment practice," and prohibits aiding and abetting "the doing of any act declared to be a discriminatory employment practice," or "harassing] any employee, person seeking employment or member on the basis of sex." Conn. Gen. Stat. § 46a-60(b)(1), (b)(4), (b)(5), (b)(8). The analysis of these claims under CFEPA is the same as under the federal statute, Title VII, and the Court accordingly relies on the case law analyzing and interpreting both statutes. See Kaytor v. Electric Boat Corp., 609 F.3d 537, 556 (2d Cir. 2010) (citing Craine v. Trinity College, 791 A.2d 518, 531 n.6 (Conn. 2002)); Williams v. Quebecor World Infiniti Graphics, 456 F.Supp.2d 372, 383 (D. Conn. 2006) ("The Connecticut Supreme Court looks to federal precedent when interpreting and enforcing the CFEPA.") (citing Levy v. Comm'n of Human Rights and Opportunities, 236 Conn. 96, 103 (1996)).

         A. Count One - Retaliation

         The CFEPA forbids an employer from retaliating against an employee who opposes any discriminatory employment practice. Conn. Gen. Stat. § 46a-6O(b)(4). In Count One of her Complaint, Plaintiff alleges that MXD retaliated against her for rejecting Martin's sexual advances by terminating her temporary placement with MXD in violation of the CFEPA, Conn. Gen. Stat. § 46a-6O(b)(4). [Dkt. 1-1 at ¶¶ 28-31]. Defendant argues that this count fails on summary judgment because Plaintiff cannot present any evidence suggesting that she engaged in protected conduct under Connecticut law or that she was subject to adverse action for doing so. [Dkt. 23-2 (Def.'s Mem. of Law) at 7]. Defendant contends that the evidence shows that the decision to take the alleged adverse action was made, and documented, more than a week prior to any purported protected conduct such that no reasonable jury could find the necessary causal connection. Id. at 7-8.

         Retaliation claims are evaluated under a three-step burden shifting analysis. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). First, in order to establish a prima facie case of retaliation, a plaintiff must show that: (1) she is engaged in protected participation or opposition under the CFEPA; (2) that the employer was aware of this activity; (3) that the employer took adverse action against the plaintiff; and (4) that a causal connection exists between the protected activity and the adverse action, "i.e., that a retaliatory motive played a part in the adverse employment action." Byra-Grzegorczyk v. Bristol-Myers Squibb Co., 572 F.Supp.2d 233, 24 (D. Conn. 2008) (quoting Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)). The burden of proof a plaintiff must meet to survive a summary judgment motion at the prima facie stage "has been characterized as 'minimal and de minimis.'" Jute, 420 F.3d at 173 (quoting Woodman v. WWOR-TV, 411 F.3d 69, 76 (2d Cir. 2005)). "In determining whether this initial burden is satisfied in a [CFEPA] retaliation claim, the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive." Id. (citing Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d54, 58(2dCir. 1987)).

         If the plaintiff sustains its initial burden, a presumption of retaliation arises. Id. The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. Id. Finally, if the employer offers such proof, "the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action." Id.

         1. Prima Facie Case

         Defendant argues that Plaintiffs retaliation claim fails at the first step of the analysis because Plaintiff's rejection of Martin's invitation does not constitute protected conduct, and because there is no causal connection between Plaintiff's rejection of Martin's invitation and her termination.^[1] [Dkt. 23-2 at 8-9]. For the reasons set forth below, the Court holds that Plaintiff has not established those two essential elements, and her retaliation claim therefore fails.

         a. Protected Activity

         "The term 'protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). "An employee is privileged to report and protest workplace discrimination, whether that discrimination be actual or reasonably perceived." Matima v. Celli, 228 F.3d 68, 78 (2d Cir. 2000). Indeed, a plaintiff making a retaliation claim need not successfully prove the merits of the underlying discrimination claim, in this case sexual harassment. Sumner v. United States Postal Serv., 899 F.2d 203, 208-09 (2d Cir. 1990); see also Harper v. Metro. Dist. Com'n, 134 F.Supp.2d 470, 487 (D. Conn. Mar. 16, 2001). Rather, she need only demonstrate that she had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia Univ. Coll. Of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).

         Defendant asserts that Martin's conduct does not rise to the level of sexual harassment, but does not make any arguments concerning the presence or absence of Plaintiffs good faith belief. See [Dkt. 23-2 at 9]. Instead, Defendant proceeds to argue a lack of protected activity, assuming arguendo that a jury could find that Martin's conduct led to a good faith belief of illegal conduct by Plaintiff. Id. As Defendant did, the Court assumes argu ...