United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [DKT. 23]
Vanessa L. Bryant United States District Judge.
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
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.
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.
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].
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].
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.
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 ¶¶
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 ¶
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).
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)).
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)).
Count One - Retaliation
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.
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.
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.
Prima Facie Case
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. [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.
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.
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