Rubin v. ADT, LLC

          MEMORANDUM OF DECISION

          KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE

         This employment discrimination action arises out of the termination of Michael Rubin (“Rubin”) during a reduction in force (“RIF”) at ADT, LLC (“ADT”) in 2016. Rubin asserts claims for disability and age discrimination under the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-51 et seq. (“CFEPA”). ADT has moved for summary judgment as to both claims. For the reasons set forth in this decision, ADT's motion for summary judgment is GRANTED in part and DENIED in part.

         Factual Background^[1]

         Rubin initially worked as a service technician and supervisor for a series of companies that were ultimately acquired by ADT's former parent company in 1998. (Def.'s SMF at ¶ 2.) Prior to this acquisition, Rubin was counseled for performance deficiencies and demoted from a supervisor position back to a technician position. (Id. at ¶ 3.) Rubin was later promoted back to a supervisor position shortly before ADT's acquisition of the predecessor company. (Id.)

         On April 25, 2012, Rubin (then age 54) was promoted to the position of Installation Team Manager in the Shelton office of ADT's Connecticut/Western Massachusetts market area. (Id. at ¶¶ 8-9.) During 2012, Rubin began to experience balance issues. (Id. at ¶ 12; see also Plf.'s Response to Def.'s SMF at ¶ 12.) Rubin recalls one episode in the summer of 2012 when he fell, but it was not at work. (Def.'s SMF at ¶ 13.)

         On July 15, 2013, Rubin received a written warning because his technicians were refusing to pick up additional work, and Rubin could not be reached to address the problem. (Id. at ¶ 14.) In response, Rubin filed a rebuttal in which he explained that the telephone call at issue occurred on a Saturday while he was having a serious conversation with his father. (Plf.'s Dep. at 59-60.) He maintains that he called back as soon as his conversation with his father was over, which was approximately an hour after receiving the initial call. (Id.)

         The following month, on August 9, 2013, Rubin was coached for below standards mobility utilization, not fulfilling his administrative requirements, and not updating safety websites on a monthly basis. (Def.'s SMF at ¶ 15; Def.'s Ex. 13.) On October 11, 2013, Rubin was placed on a Performance Improvement Plan (“PIP”) due to his continued failure to meet the job requirements of an Installation Team Manager. (Def.'s SMF at ¶ 16; Def.'s Ex. 14.) In the PIP, Rubin's supervisor noted that he had previously communicated with Rubin concerning “stranded capacity jobs, techs schedules not being full and backlog management.” (Def.'s Ex. 14.) He further noted that although Rubin had received coaching regarding his response to an injured employee in July, Rubin had recently failed to report another injury in a timely fashion. (Id.)

         In 2013, Rubin was also misdiagnosed with multiple sclerosis before being re-diagnosed with isolated myelitis. (Def.'s SMF at ¶ 17.) Rubin did not receive any medication for his condition. (Id.) Although Rubin never reported his medical condition to human resources, he did tell his colleagues at ADT about his health issues and began using a cane while in the field. (Def.'s SMF at ¶¶ 18-19; Plf.'s Dep. at 30-35.)

         On January 22, 2015, one of Rubin's team members was injured while using a personal knife in violation of company policy. (Def.'s SMF at ¶ 24.) During a review of this incident on March 19, 2015, Rubin was reminded that personal tools, such as knives or box cutters, were not approved for use by technicians. (Id. at ¶ 25; Def.'s Ex. 17.)

         In May 2015, Anthony Peluso became the Area General Manager and Rubin's supervisor. (Def.'s SMF at ¶ 29.) Thereafter, on May 19, 2015, another team member under Rubin's supervision was injured while using an unauthorized knife. (Id. at ¶ 27.) The injury occurred during a safety audit and in front of the safety director. (Peluso Dep. at 39; see also Plf.'s Dep. at 82; Stewart Dep. at 22.) In response, Peluso issued Rubin a “final warning” and admonished him concerning the need to improve. (Def.'s SMF at ¶ 28; Def.'s Ex. 17.)

         Around this time, Susan Masella, an installation coordinator in the Shelton office, heard Rubin discuss his doctor's appointments and treatment plan with Peluso. (Masella Dep. at 33.) She further heard Peluso make comments to Rubin and others in the office regarding Rubin's gait and instability “in a joking fashion” or in a “condescending manner.” (Id. at 13, 31; see also Id. at 25.) Masella thought that Peluso seemed “very agitated with the fact that [Rubin] was unsteady on his feet” and his comments about Rubin made her uncomfortable. (Id. at 31-32.) Peluso denies making these remarks or ever talking with anyone about Rubin's gait or health, in a joking manner or otherwise. (Peluso Dep. at 53, 128-29.)

         In November 2015, Masella was terminated as part of a RIF. (Def.'s SMF at ¶ 32.) The following month, in December 2015, Peluso (then age 29) swapped Rubin (then age 57) and Edwin Sepulveda, a Service Team Manager, (then age 51) in their respective managerial roles. (Def.'s SMF at ¶¶ 52-54, 71; Peluso Dep. at 13; Plf.'s Ex. K at 15.)

         In approximately August 2016, ADT decided to eliminate one of its seven manager positions in the Connecticut/Western Massachusetts area market as a necessary reduction in force. (Def.'s SMF at ¶ 55.) Similar RIFs were occurring in other regions across the country. (Id. at ¶ 56.) Consistent with ADT's standardized RIF process, Michael Stewart (then approximately age 54), from human resources, collected information and data on the seven eligible managers, including Rubin. (Id. at 58.) Stewart collected each of the manager's last two performance appraisals and looked for disciplinary actions in the previous five years.^[2] (Stewart Dep. at 24, 32- 33.) He then provided this information and a RIF worksheet to Peluso (then age 30), who rated the managers on a scale of 1 to 5 on four key competencies or skills with a possible high score across all categories of 20. (Def.'s SMF at 59-60; see also Def.'s Ex. 19; Plf.'s Ex. L.)

         The completed RIF worksheet contained the following relevant information:

Last Name	First Initial[3]	Title	2015 Performance	Leadership	Talent Management	Customer Focus	Total Score
Gajewski	J.	Mgt Team Install	2	3	3	5	13
Lamonica	A.	Mgt Team Service	2	1	1	4	8
Ortega	J.	Mgt Team Install	2	2	2	5	11
Rubin	M.	Mgt Team Service	2	1	1	5	9
Sepulveda	E.	Mgt Team Install	2	3	3	5	13
Shea	P.	Mgt Team Service	4	3	4	4	15
White	D.	Mgt Team Install	4	3	3	5	15

         (Def.'s Ex. 19; Plf.'s Ex. L.)

         The RIF worksheet further noted that none of the managers had any corrective action in the past twelve months. (Id.) In the notes section, however, Peluso highlighted Rubin's older disciplinary history and other performance shortcomings.^[4] (Id.) He similarly noted that another manager, J. Ortega, was given a final warning the prior year for improper use of a company credit card but had since been in compliance. (Id.) Overall, Rubin received the second lowest score of the seven managers on the RIF worksheet. (Id.; Def.'s SMF at ¶ 66.) The only manager to receive a lower score, A. Lamonica (then age 48), was also the only female manager and had no disciplinary record. (Def.'s SMF at ¶ 66.)

         Peluso provided the completed worksheet to Stewart, who forwarded it to the ultimate decision-makers in ADT's legal and human resources departments. (Stewart Dep. at 24, 60-61.) Stewart testified that he knew Rubin would be selected even before the official decision was made based on Rubin's ranking. (Id. at 61.)

         In October 2016, and prior to his termination, Peluso allegedly “made a crack about me, my abilities with my walk.” (Rubin Dep. at 39.) Rubin responded by asking, “Do I need to go to the ethics line?” (Id.) Peluso allegedly retorted, “You wouldn't dare, ” and walked ...