United States District Court, D. Connecticut
THEODORE J. HUMINSKI, Plaintiff,
v.
THE STOP & SHOP SUPERMARKET COMPANY LLC, Defendant.
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 ...