Opinion
No. FST CV 07 6000743 S
April 21, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #111
FACTS
On October 18, 2007, the plaintiff, Felix Andreoni, filed a complaint against the defendants Forest Enterprises, Inc. (Forest) and Sterling Glen Assisted Living Services Agency, LLC (Sterling Glen). The complaint alleges the following facts.
The defendants operate assisted living residences for the elderly. Sterling Glen is a subsidiary of Forest, and per the plaintiff's allegations, Sterling Glen is under Forest's ownership, possession, and control. On July 5, 2005, the plaintiff began working as a maintenance director for the defendants.
Two maintenance workers, James O'Rourke and Al Coney, reported to the plaintiff in his capacity as maintenance director. Beginning in September 2005, one of the maintenance workers, Coney, began to curse, throw things at, and threaten to seriously harm the plaintiff and O'Rourke. When the plaintiff confronted Coney about his behavior, Coney admitted that he had cursed at O'Rourke and stated "Yes I did and I don't give a f**** how I talk to him. F*** you, deal with it dude."
Pursuant to the defendant's handbook, abusive language and conduct are grounds for termination. The plaintiff reported Coney's conduct to the defendants. Additionally, at a meeting held by the defendants, Coney admitted that he cursed at the plaintiff and O'Rourke, however, the defendants did not take disciplinary action against Coney. Further, the defendants refused to accept the plaintiff's written incident report.
The plaintiff alleges that Coney's threatening behavior continued from September 2005 through May 2006. The behavior included Coney warning the plaintiff that he would come to the plaintiff's house and "f**** him up," repeatedly cursing at the plaintiff and O'Rourke, throwing tools and kicking garbage cans at the plaintiff and O'Rourke. And calling the plaintiff and O'Rourke "white devils" and "snakes" in front of the defendants' managers without response from the managers. The plaintiff and O'Rourke are Caucasian, and Coney is African-American.
The executive staff at the defendants' Stamford facility also made racially demeaning statements toward the plaintiff and O'Rourke, according to the plaintiff's allegations. For example, the plaintiff heard the Stamford director of human resources tell Coney that "he should be careful of these whities, they all stick together." Coney then stated "Yes, I know all about how those f*****g whities are."
The plaintiff and O'Rourke continued to report their fears about Coney's curses and threats, and at a meeting with the defendants in January 2006, the plaintiff complained about Coney's behavior and asked the defendants again to transfer Coney. The defendants did not take disciplinary action against Coney. Shortly before May 12, 2006, the plaintiff lodged his last complaint about Coney, and on May 12, 2006, the defendants fired the plaintiff for "dissent on the team which has affected the morale and performance of the maintenance department."
The plaintiff alleges that his predecessor, Peter Moshovitis, was also discharged after lodging complaints about Coney. Coney allegedly referred to O'Rourke and Moshovitis as "you white boys" multiple times per week. Additionally, Coney threatened to "blow [Moshovitis] up in his car" if he did not change a negative evaluation about Coney. Although Moshovitis complained about Coney's abusive language and conduct to the defendants repeatedly, the defendants did not take action against Coney. Additionally, after the defendants ordered Moshovitis to change the negative evaluation about Coney, they fired Moshovitis.
On the basis of these facts, the plaintiff alleges in count one that the defendants racially discriminated against him in violation of General Statutes § 46a-60(a)(1). In count two, the plaintiff claims that the defendants unlawfully retaliated against the plaintiff after he protested racial discrimination. In count three, the plaintiff alleges that the defendants negligently supervised Coney and the executive staff by failing to properly train, supervise, or take action to prevent their inappropriate conduct or behavior. Finally, in count four, the plaintiff alleges that the defendants negligently retained Coney and the executive staff when they knew or should have known of the harmful and inappropriate conduct and behavior. The plaintiff states that he has suffered fear, anxiety, embarrassment, and humiliation as a result of these circumstances. Further, he has suffered lost earnings and earning capacity.
On December 16, 2009, the defendants filed a motion for summary judgment on the grounds that there is no genuine issue of material fact. The defendants argue that the termination of the plaintiff's employment was based on the plaintiff's poor performance and not on a discriminatory or retaliatory motive. In support of the defendants' motion, the defendants submitted a memorandum. Additionally, the defendants attached the plaintiff's complaint and excerpted copies of transcripts from the depositions of the plaintiff's supervisor, O'Rourke, the plaintiff, and the business office manager. They submitted a copy of an affidavit by the former human resource director of Sterling Glen and a copy of the job description provided to the plaintiff on his start date. The defendant attached emails from the business office manager to the plaintiff, between the plaintiff and his supervisor, from the business office manager to the plaintiff's supervisor, from the corporate facilities technician to the plaintiff's supervisor, and between the corporate facilities technician and the plaintiff. The defendants also submitted corrective action for self-improvement forms, which were issued to the plaintiff from his supervisor, a memo from the former human resources director of Sterling Glen to the human resources coordinator of Forest, letters from the plaintiff and O'Rourke to Forest's former chief executive officer Albert Ratner, investigation statements from Forest's investigation into the plaintiff and O'Rourke complaints, and a memo from the corporate facilities technician to the former human resources director.
The plaintiff submitted an objection to the motion and attached excerpts from the depositions of the plaintiff, the plaintiff's supervisor, and O'Rourke. Additionally, the plaintiff submitted a letter from an independent contractor concerning Sterling Glen's unpaid invoices.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In ruling on a motion for summary judgment the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id., 11.
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code of Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citations omitted; internal quotation marks omitted.) Gianetti v. Anthem Blue Cross Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008) cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).
In the present case, the complaint is admissible as a court document, and an affidavit submitted by the former human resources director of Sterling Glen was properly sworn and signed. All other documents were not properly authenticated. Accordingly, only the complaint and affidavit are admissible. Because the parties fail to object to any of the evidence presented, however, any objection as to those is deemed waived. The other documents are admissible within the court's discretion whether authenticated or not. See Holmes v. John M. Glover Agency, Inc., Superior Court, judicial district of Fairfield, Docket No. 07 5006575 (January 29, 2009, Bellis, J.); Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
Pursuant to General Statutes § 46a-60(a)(1), "[i]t shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race . . ." The Connecticut Supreme Court has clarified that `[i]n order to establish a prima facie case [of discrimination], the complainant must prove that: (1) he [was] in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination." Jackson v. Water Pollution Control Authority, 278 Conn. 692, 705-06, 900 A.2d 498 (2006).
"Under [the burden shifting analysis set forth in by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and adopted by the Connecticut Supreme Court in Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990)], the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias." Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002).
The defendants argue that they are entitled to summary judgment on count one, because the plaintiff cannot establish a prima facie case of race discrimination. They aver that the circumstances of the plaintiff's firing did not give rise to an inference of discrimination and that there are legitimate, nondiscriminatory justifications for the firing. The defendants assert that they fired the plaintiff because he performed poorly at his job. The defendants argue that the plaintiff failed to submit vendor invoices for payment, failed to properly maintain the Sterling Glen facility and failed to properly manage members of the maintenance department. The plaintiff counters that he was fired for racial abuse and disputes the defendant's assertion that he performed poorly at his job.
In support of their justification for the plaintiff's firing, the defendants submitted the plaintiff's job description. According to the policy, one of the requirements of the job is to "[s]ubmit invoices for repairs, contractual agreements, [and] supplies according to policy." The defendants aver that the plaintiff failed to submit vendor invoices for payment, and they submitted excerpts from the deposition of the business manager, Carmen Cox, in support. In her deposition, Cox stated that during the period of time that the plaintiff worked for the defendants, several vendors contacted her because they had not been paid. Additionally, the defendants submitted an email from the plaintiff to his supervisor, Lisa Kinsella, which stated that several vendors refused to supply material to Sterling Glen because they had not been paid. The defendants also submitted that he failed to submit seven invoices to Cox for payment. In the portion of the plaintiff's deposition cited by the defendants, the plaintiff is asked about an email from Cox. In her email, which the plaintiff did not remember receiving, she indicates that in February 2006, she received seven overdue invoices from December 2005. In the deposition, the plaintiff indicates that he did not recall receiving the seven invoices in December 2005, nor did he recall forwarding the invoices to Cox. The plaintiff's inability to recall the receipt of specific invoices three years prior is not the same as an admission of failure to submit invoices for payment.
In response to the defendants' claim, the plaintiff submitted deposition testimony in which he states that upon receipt of the invoices, he submitted them to Cox, who was required to pay the bills. In his deposition, the plaintiff argues that Cox was not paying the invoices, and he requested to submit the invoices directly to his supervisor Kinsella because of Cox's failure to pay them. According to his deposition testimony, the plaintiff told Kinsella that he was submitting the bills and that they were not getting paid. The plaintiff also submitted a letter from an independent contractor arguing that Sterling Glen had not paid its bills despite repeated attempts to procure payment from Cox via invoices, voice mail messages left on Cox's phone, and faxed invoices and letters sent to Cox's attention.
The defendants state that the plaintiff failed to maintain properly the Sterling Glen facility. In support of this assertion, the defendants provide an email from the corporate facilities technician, Justin Turpin, to the plaintiff's supervisor. In the email, Turpin states that the plaintiff called a locksmith to repair a loose screw, failed to repair exterior lights, purchased toilet valves for $350 each when the maintenance department already had most of the parts necessary to fix them, called contractors to fix equipment that someone at Sterling Glen should have fixed, and left the building to get buckets of water even though there was an area within the facility where he could have obtained the water. Additionally, in her deposition testimony, Kinsella stated that the housekeeping staff didn't have confidence that "the [plaintiff] slash maintenance department was doing things to the extent that our residents . . . would expect."
The plaintiff counters with excerpts from his deposition testimony. In his deposition, the plaintiff stated that he did not call a locksmith to fix a loose screw and that he wouldn't have. In response to the accusation that the plaintiff failed to repair exterior lights, he stated that there was one exterior light that was broken and he had to order the fixture in order to repair it. According to the plaintiff's deposition, the fixture was not something they had in the shop. Further, he admits that he did purchase the toilet valves but asserts that they did not already have most of the parts necessary to fix the toilets when he purchased the valves.
The defendants aver that the plaintiff failed to properly manage members of the maintenance department. In her deposition, Kinsella stated that Coney believed that the plaintiff gave preferential treatment to O'Rourke. In Cox's deposition, she stated that Coney complained that the plaintiff did not foster a team environment. Additionally, Kinsella stated in her deposition that the plaintiff could not supervise the night guards. In response, the plaintiff states that he could not have brought his team together in light of Coney's behavior. In his deposition testimony, he argues that he informed the defendants about Coney's behavior and that nothing was done in response.
Based on the evidence submitted by the plaintiff, there are disputed factual issues related to the circumstances of the plaintiff's firing, however, in order to fall within the purview of § 46a-60(a)(1), the plaintiff's firing must have occurred under circumstances giving rise to an inference of discrimination. The defendants argue that there is no evidence of racial discrimination towards the plaintiff by the defendants, however, the plaintiff argues that the discrimination arises from the defendants' handling of the plaintiff's work abuse complaints.
In Brittell v. Dept. of Corrections, 247 Conn. 148, 717 A.2d 1254 (1998), the court addressed General Statutes § 46a-60(a)(8) and stated that "once an employer has knowledge of a racially [or sexually] combative atmosphere in the work-place, he [or she] has a duty to take reasonable steps to eliminate it." (Internal quotation marks omitted.) CT Page 9708 Id., 168. Further, "[t]he law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . harassment by co-workers . . ." (Internal quotation marks omitted.) Id., 167.
In support of the plaintiff's assertion that he was fired for complaining about racial abuse, the plaintiff submitted excerpts from his own deposition testimony. In his testimony, the plaintiff stated that Coney called him a "white devil" in front of Kinsella and Cox. He stated that Kinsella made no reply, and Cox told Coney to "realize what you're saying." Additionally, in his deposition, the plaintiff asserted Coney referred to the plaintiff as "white boy," that he reported it to his supervisor, and that she responded "Okay." The plaintiff also stated that "[t]hey allowed [Coney] to abuse me racially . . . I reported it — every single incident I reported to [Kinsella] the day it happened. Nothing was done . . . [Kinsella] did nothing about the abuse that was reported." The plaintiff also submitted O'Rourke's deposition testimony in which O'Rourke asserted that when he and the plaintiff complained to Kinsella about Coney's cursing, she stated "[i]f either one of you come to me with this problem again, I will fire you."
The evidence submitted by the plaintiff raises the question of whether the plaintiff's firing occurred under circumstances giving rise to an inference of discrimination. Accordingly, there is a genuine issue of material fact in the plaintiff's race discrimination claim.
In count two, the plaintiff claims that the defendants unlawfully retaliated against him. Pursuant to § 46a-60(a)(4), "[i]t shall be discriminatory practice in violation of this section: (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . ." "To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against him; and (4) a causal connection between the protected activity and the adverse employment action." Ayantola v. Bd. of Trustees of Tech Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009).
"A protected activity is an action taken to protect or oppose statutorily prohibited discrimination. These actions can include the filing of formal charges of discrimination, as well as, informal protests of discriminatory employment practices, including complaints to management, writing critical letters to customers, protecting against discrimination by industry and expressing support of co-workers who have filed formal charges . . . The objective is to forbid employers from retaliating against employees because of employees' opposition to unlawful employment practices [ . . . ]" (Internal quotation marks omitted.) Poach v. Doctor's Associates, Inc., Superior Court, judicial district of New Haven, Docket No. CV 0740233906 (Sept. 22, 2008, Zoarski, J.T.R).
In their memorandum in support of their motion for summary judgment, the defendants argue that the plaintiff cannot establish that he participated in a protected activity or that the defendants knew of the protected activity. The defendants argue that even if the plaintiff complained about Coney to the defendants, the complaints were not concerning a statutorily protected act. The defendants submit evidence from the plaintiff's deposition in which he stated that he "report[ed] for ten months [Coney] cursing at me, threatening me, throwing objects, and nothing was absolutely done to this man." The defendants aver that the plaintiff has not produced evidence that he reported racially discriminatory behavior to the defendants.
The plaintiff argues that he complained about Coney's discriminatory conduct to Kinsella and then she fired him. In support, the plaintiff submitted excerpts from his own deposition in which he states that Coney called the plaintiff a "white devil" in front of Kinsella and Cox; Kinsella made no reply; and Cox told Coney to "realize what you're saying." Further, the plaintiff asserted in his deposition that Coney referred to the plaintiff as "white boy," that he reported it to his supervisor, and that she responded "Okay." Additionally, the plaintiff submitted deposition testimony in which he stated that "[t]hey allowed [Coney] to abuse me racially . . . I reported it every single incident I reported to [Kinsella] the day it happened. Nothing was done . . . [Kinsella] did nothing about the abuse that was reported." The plaintiff also submitted O'Rourke's deposition testimony in which O'Rourke stated that he and the plaintiff complained to Kinsella about Coney's cursing, and she stated "[i]f either one of you come to me with this problem again, I will fire you."
Based on the evidence submitted by the plaintiff, there is a genuine issue of material fact as to whether the plaintiff participated in a protected activity and whether the defendants knew of the protected activity.
"Under Connecticut law, an employer may be liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 84 A.2d 224 (2004). "In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." (Internal quotation marks omitted.) Doe v. Nelson, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000575S (Apr. 25, 2008, Alvord, J.) [ 45 Conn. L. Rptr. 428]. Similarly, in order to plead a negligent retention claim, the plaintiff must allege that "during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicates his unfitness and the employer fails to take further action." Doe v. Abrahante, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 97 043115 (April 28, 1998, Licari, J.) [ 22 Conn. L. Rptr. 65].
The defendants argue that the plaintiff cannot base his negligent supervision claim in count three or his negligent retention claim in count four on an employer's failure to prevent an alleged violation of a discrimination statute. The defendants assert that the claims must be based on a tortuous act by another employee, rather than an alleged injury from unlawful discrimination. In their argument, the defendants assume that the injury pled by the plaintiff for the purpose of counts three and four is the injury of unlawful discrimination. The plaintiff counters, however, that the claim arises from the defendant's failure to discipline Coney for his verbal threats and physical assaults.
In support of the plaintiff's assertion that he suffered an injury by an employee whom the defendants had a duty to supervise, the plaintiff submitted excerpts from O'Rourke's deposition in which O'Rourke testifies that he informed the defendants that Coney was "throwing stuff" over his head and kicking the garbage can. In his deposition, the plaintiff states that after Coney told him "I'll come to your house and I'll f**** you up," the plaintiff reported the incident to Kinsella. Further, throughout their deposition testimonies, the plaintiff and O'Rourke allege that the defendants themselves submitted evidence from the plaintiff's deposition in which he stated that he "report[ed] for ten months [Coney] cursing at me, threatening me, throwing objects, and nothing was absolutely done to this man."
The defendants' argument that the plaintiff did not allege an injury sufficient for the purpose of negligent supervision and negligent retention claims is thus without merit.
CONCLUSION
There are issues of material fact as to whether the plaintiff was fired under circumstances giving rise to an inference of discrimination, whether the plaintiff engaged in a protected activity of which the defendants knew, and whether the plaintiff sustained an injury for the purposes of his negligent supervision and negligent retention claims. Accordingly, the defendants' motion for summary judgment is denied.