Huminski v. The Stop & Shop Supermarket Co. LLC

          RULING AND ORDER

          Robert N. Chatigny United States District Judge

         Plaintiff Theodore J. Huminski brings this disparate treatment action against his former employer, The Stop & Shop Supermarket Company LLC (“Stop & Shop”), alleging that his termination was unlawfully motivated by his age and race. He also alleges that he was discharged in retaliation for complaints that he lodged about age-based and racial discrimination. Plaintiff asserts claims under the Age Discrimination in Employment Act (“ADEA”); Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981; and the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. 46a-60 (“CFEPA”). Defendant moves for summary judgment. For reasons that follow, the motion is granted.

         I. Background

         Except as otherwise stated, the following facts are either undisputed, or, where disputed, taken in the light most favorable to the plaintiff.

         Plaintiff is white, and was 62 years old when he filed this action. He began working at a supermarket called First National in December 1969 and became a manager five years later. He became an employee of Stop & Shop as a result of its 1996 merger with First National. He remained a store manager until his employment was terminated on August 27, 2015. Earlier that year, plaintiff had gotten into an argument with an employee, Megan Moore-Burrs (“Moore”). Moore told plaintiff that she felt disrespected, and plaintiff instructed her to clock out. Moore, who is African-American, filed a racial discrimination complaint against plaintiff with the Connecticut Commission on Human Rights and Opportunities and lodged a complaint with her union. Julie Pinard, the human resources (HR) director for the district that included plaintiff’s store, was also told about Moore’s complaint. Moore ultimately transferred to a different store.

         Brittany Roach also worked at plaintiff’s store, and is also African-American. Roach was friendly with Moore and knew about her complaint against plaintiff. Roach asked plaintiff if she could transfer in order to accommodate her school schedule.

         Roach then spoke with Julie Sabo, who worked at a different Stop & Shop store, about her desire to transfer.

         The Stop & Shop Equal Employment Opportunity Policy (EEOP) prohibits unlawful discrimination or harassment of any kind, and provides that any person who engages in harassment “will be subject to disciplinary action up to and including termination of employment.” Stop & Shop employees may make anonymous reports of harassment to a toll-free telephone line known as Global Compliance, which are then sent to HR managers.

         On August 3, 2015, an anonymous complaint was submitted to Global Compliance containing allegations against plaintiff. The anonymous report stated that plaintiff had made inappropriate and sexual comments to female employees. In one instance, when a female employee was bent over, plaintiff told her, “You are going to have to spread your legs a lot farther to take what I’ve got to give you.” The anonymous complainant also alleged that an associate had recently resigned after plaintiff asked her to go to his house.

         After receiving the anonymous report, Pinard interviewed a number of employees at plaintiff’s store, specifically, Sabo, Roach, and assistant store manager Adriana Lokko. She also interviewed plaintiff. She then completed a draft report, which is dated August 15, 2015. The report was discussed during telephone calls involving plaintiff’s supervisor Cindy Flannery, Regional Vice President John Stobierski, HR Director Ann Nichols, and HR Vice President Bob Spinella. Following those discussions, plaintiff was terminated on August 27, 2015. On October 2, 2015, Pinard completed a final report, which discusses the resolution of plaintiff’s case.

         Pinard’s draft report summarized the results of Pinard’s interviews as follows. Lokko recalled that plaintiff had asked an associate to come to his house and go in his pool, and plaintiff had touched associates, including grabbing their shoulders, rubbing their backs, and hugging them. Sabo reported that Roach had told her that plaintiff had made inappropriate comments and advances toward her, including the remark reported by the anonymous caller. Sabo reported that Roach told her plaintiff asked if he would have a chance with her if he bought her a house or a car prompting Roach to try to transfer to a different store. Consistent with Sabo’s report to Pinard, Roach told Pinard that plaintiff had been making inappropriate comments for several months, including the comment reported by the anonymous caller, and had invited her to his house. Roach also stated that plaintiff had teased her for having a crush on another colleague and said that he was jealous; that he offered to buy her a house and a car if she would divorce her husband; and that another female associate had quit because plaintiff had invited her to his house.

         The August 15, 2015 draft report also set forth plaintiff’s disciplinary history as follows. In December 2003, plaintiff was counseled “on not touching associates.” In April 2005, Spinella and two others gave him a final warning for inappropriate behavior. In October 2005, he received another final warning for inappropriate behavior from Spinella and his district manager. In March 2013 he was given a written warning for receiving an unsatisfactory score on a store audit.

         Following his termination, plaintiff’s position was taken over temporarily by Art Sousa, who was in his 50s. Sousa was briefly replaced by Ray Young, who was 50 or 51. After a few months, Young’s position was briefly taken over by Reginald Dormevil, who was approximately 37. Dormevil was then replaced by Vince Damato, who was approximately 30. Sousa, Young and Damato are white. Dormevil is African-American.

         II. Legal Standard

         Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether the moving party is entitled to judgment as a matter of law, the Court must review all the evidence in the record in the light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment may not be granted if the non-moving party can point to evidence that would permit a jury to return a verdict in his or her favor. Id. at 252.

         “A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). However, it is “beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Conclusory allegations, conjecture, and speculation are insufficient to create a genuine dispute of material fact. Shannon v. New York City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).

         III. Discussion

         Plaintiff alleges that his termination was unlawfully motivated by his age and race.^[1] He first invokes the “cat’s paw” theory of liability, which applies when “a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006). According to plaintiff, Pinard’s report was full of falsehoods motivated by discriminatory or retaliatory intent, and, in terminating his employment, defendant became a conduit for unlawful prejudice. As discussed below, the evidence in the record is insufficient to sustain liability based on this theory.

         Plaintiff also seeks to show that defendant’s stated justification for his termination – the allegations documented by Pinard – is mere pretext for its true, discriminatory motive. However, plaintiff has not adduced sufficient evidence to raise a triable issue of fact regarding whether defendant’s reason for firing him was pretextual.

         Finally, plaintiff argues that he suffered retaliation for making complaints of age and racial discrimination. Plaintiff’s evidence would not permit a jury to find for him on this claim. Defendant’s motion for summary judgment will therefore be granted.

         A. Age Discrimination

         The ADEA makes it “unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). “The ADEA covers the class of individuals who, like [plaintiff], are over the age of 40.” Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) (citing 29 U.S.C. § 631(a)), abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000). “‘[A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action’ and not just a contributing or motivating factor.” Gorzysnki v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (quoting Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 180 (2009)).

         i. Cat’s Paw

         Under the “cat’s paw” theory of liability, “an employee’s retaliatory [or discriminatory] intent may be imputed to an employer where . . . the employer’s own negligence gives effect to the employee’s retaliatory [or discriminatory] animus and causes the victim to suffer an adverse employment decision.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 269 (2d Cir. 2016). The Second Circuit has recognized the availability of this theory of liability under Title VII. See id. Although the Second Circuit has not so held, it follows that the theory should be available in cases arising under the ADEA. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (noting “the lack of any meaningful textual difference between the text in” Title VII’s antiretaliation provision and the ADEA).

         However, plaintiff cannot prevail under the “cat’s paw” theory, because he cannot show that Pinard harbored “discriminatory or retaliatory intent.” Vasquez, 835 F.3d at 275. Plaintiff points to two comments as evidence of Pinard’s alleged age bias. First, about a year before plaintiff’s termination, Pinard remarked that “we need to develop young and upcoming people to replace our older associates.” ECF No. 72-3 at 24. Second, when Lokko transferred to plaintiff’s store, Pinard told him that “[s]he’s an up-and-coming high flier to become a manager and I just want you to, you know, do what you have to do, take care of her.” Id. at 23. These comments cannot support an inference that Pinard was motivated by plaintiff’s age when investigating his alleged misconduct or writing her report. See Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).^[2]

         The Second Circuit has identified four factors to consider in determining whether a remark is probative of discriminatory intent: “(1) who made the remark . . .; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).” Id. That Pinard made the remarks is relevant insofar as plaintiff seeks to show that she was biased. The remaining factors weigh against plaintiff. He testified that the first remark was made about a year before his termination, ECF No. 72-3 at 24, and the record is silent as to the timing of the second remark or when Lokko transferred to plaintiff’s store. While the first comment speaks of “replac[ing]” older associates, the most reasonable inference is that Pinard was referring to the need to plan for older employees’ retirement. The second cannot reasonably be viewed as discriminatory; if anything, Pinard’s request that plaintiff “take care of” Lokko assumed that he would be store manager for the foreseeable future. Finally, neither remark was related to the decision to fire plaintiff. Even taken together, they cannot demonstrate age-related animus. See Henry, 616 F.3d at 149 (“[T]he more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.”) (internal citation omitted); Delgado v. City of Stamford, No. 11-CV-01735 (VAB), 2015 WL 6675534, at *19 (D. Conn. Nov. 2, 2015) (finding that “a stray remark removed approximately 10 months from the decision to transfer [p]laintiff, and . . . not made in relation to that decision” failed to create a triable question of discriminatory intent).

         Plaintiff also disputes Pinard’s factual findings. “In a discrimination case, however, we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer.’” McPherson v. NYC Dept of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (emphasis in original) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens,460 U.S. 711, 716 (1983)). “[T]he factual validity of the underlying imputation against the employee is not at issue.” Id. Additionally, plaintiff attacks the process by which Pinard investigated the complaints against him, but “[t]he ADEA, of course, does not mandate that employers use any particular procedures for investigating allegations of employee misconduct. Defendant’s investigatory procedures are only relevant if they give rise to an inference that the investigation was a sham designed to mask [d]efendant’s discriminatory agenda.” Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 515 (S.D.N.Y. 2010). “Put simply, an employer can still ‘just get it wrong’ without incurring liability . . . but it cannot ‘get it wrong’ without recourse if in ...