Amato v. Hearst Corp. , 149 Conn. App. 774 ( 2014 )

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ANNE M. AMATO v. THE HEARST CORPORATION
(AC 35803)
Gruendel, Alvord and Bear, Js.
Argued February 21—officially released April 29, 2014
(Appeal from Superior Court, judicial district of New
Haven, Frechette, J.)
John R. Williams, for the appellant (plaintiff).
Aryn J. Sobo, pro hac vice, with whom were Tal A.
Kadar and, on the brief, A. Robert Fischer, for the
appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Anne M. Amato, appeals
from the judgment of the trial court rendered in favor
of the defendant, The Hearst Corporation, following
the granting of the defendant’s motion to strike her
complaint. The complaint alleged that the defendant
discriminated against the plaintiff on the basis of age,
in violation of General Statutes § 46a-60 of the Connecti-
cut Fair Employment Practices Act (act), General Stat-
utes § 46a-51 et seq. On appeal, the plaintiff claims that
the court improperly (1) concluded that it was bound
by federal precedent in interpreting the provisions of
the act, and (2) struck the complaint because she had
alleged a valid cause of action. We affirm the judgment
of the trial court.
The following procedural history and facts, as alleged
in the complaint, are relevant to our resolution of the
issues on appeal. The plaintiff was born in 1948 and
had worked at The Connecticut Post, a newspaper then
owned by the defendant, for more than twenty years.
She had been employed by the defendant for ten years,
most recently as a senior reporter covering the valley
area of the state. The plaintiff’s job evaluations consis-
tently characterized her performance as satisfactory or
better than satisfactory.
On October 7, 2011, the defendant informed the plain-
tiff that she ‘‘had been placed on a Performance
Improvement Plan subjecting her to termination on
December 7, 2011.’’ It is also alleged in the complaint
that between October 7, and December 31, 2011, three
additional senior reporters with outstanding employ-
ment records and twenty or more years of service
received similar threats of termination. The defendant,
by this conduct, was attempting to remove the older
employees from its workforce without regard for their
skill or performance history. In response to the defen-
dant’s actions, the plaintiff filed a complaint of age
discrimination with the Connecticut Commission on
Human Rights and Opportunities (commission) on
December 1, 2011. After the complaint had been filed
with the commission, the defendant ended or sus-
pended its actions against older employees, and neither
the plaintiff nor any of the three other senior reporters
were terminated from employment.
On September 7, 2012, the plaintiff commenced this
age discrimination action against the defendant, alleg-
ing that its conduct ‘‘placed the plaintiff in great fear of
losing her employment and caused her to suffer severe
emotional distress.’’1 On November 8, 2012, the defen-
dant filed a motion to strike the plaintiff’s complaint
in its entirety for its failure to state a claim upon which
relief could be granted. The court heard argument on
March 18, 2013, and granted the defendant’s motion in
a memorandum of decision issued on May 8, 2013. In
the court’s decision, it concluded that the plaintiff failed
to allege that she suffered an adverse employment
action as a result of being placed on a performance
improvement plan and, accordingly, failed to plead the
elements of a prima facie case of age discrimination.
The plaintiff did not file a new pleading; see Practice
Book § 10-44; and the court rendered judgment in favor
of the defendant. This appeal followed.
The standard of review in an appeal from the granting
of a motion to strike is well established. ‘‘Because a
motion to strike challenges the legal sufficiency of a
pleading and, consequently, requires no factual findings
by the trial court, our review of the court’s ruling . . .
is plenary. . . . It is fundamental that in determining
the sufficiency of a complaint challenged by a defen-
dant’s motion to strike, all well-pleaded facts and those
facts necessarily implied from the allegations are taken
as admitted. . . . For the purpose of ruling upon a
motion to strike, the facts alleged in a complaint, though
not the legal conclusions it may contain, are deemed
to be admitted. . . . A motion to strike is properly
granted if the complaint alleges mere conclusions of law
that are unsupported by the facts alleged.’’ (Citations
omitted; internal quotation marks omitted.) Metcoff v.
Lebovics, 123 Conn. App. 512, 516, 2 A.3d 942 (2010).
I
The plaintiff’s first claim is that the trial court ‘‘erred
in holding that it is bound by federal case law in interpre-
ting the [act].’’ The plaintiff argues that the court
improperly relied on federal cases in determining
whether being placed on a performance improvement
plan constituted an adverse employment action.
Acknowledging that there is no Connecticut appellate
case law on this precise issue, the plaintiff claims that
the court was ‘‘not locked into interpretations by lower
federal appellate courts of different, albeit similarly
worded, federal statutes when defining for the first time
the meaning of [the act].’’2
We first note that the court did not state that it was
bound by federal case law in reaching its determination
as to the meaning of the term ‘‘adverse employment
action.’’3 The court, quoting from our Supreme Court’s
decision in Patino v. Birken Mfg. Co., 304 Conn. 679,
689, 41 A.3d 1013 (2012), stated that ‘‘Connecticut anti-
discrimination statutes should be interpreted in accor-
dance with federal antidiscrimination laws.’’ (Internal
quotation marks omitted.) The court accurately quoted
from Patino, and there is no indication in its decision
that the court felt constrained to follow federal prece-
dent in this case. It is apparent from the decision that
the court was guided by federal case law in reaching
its conclusion that the placement of the plaintiff on a
performance improvement plan did not constitute an
adverse employment action under the circumstances
alleged in the complaint, and we conclude that it was
appropriate that the court followed federal precedent.
‘‘In interpreting our antidiscrimination and antiretali-
ation statutes, we look to federal law for guidance. In
drafting and modifying the Connecticut Fair Employ-
ment Practices Act . . . our legislature modeled that
act on its federal counterpart, Title VII [of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.]
. . . and has sought to keep our state law consistent
with federal law in this area.’’4 (Internal quotation marks
omitted.) Eagen v. Commission on Human Rights &
Opportunities, 135 Conn. App. 563, 579, 42 A.3d 478(2012).
In order to prevail on a claim of age discrimination
based on disparate treatment,5 the plaintiff first must
establish a prima facie case of discrimination.6 ‘‘To
establish a prima facie case of discrimination, the com-
plainant must demonstrate that (1) he is in the protected
class; (2) he was qualified for the position; (3) he suf-
fered an adverse employment action; and (4) that the
adverse action occurred under circumstances giving
rise to an inference of discrimination. . . . The level
of proof required to establish a prima facie case is
minimal and need not reach the level required to sup-
port a jury verdict in the plaintiff’s favor.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Vollemans v. Wallingford, 103 Conn. App. 188,
220, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d
579 (2008).
In the present case, the court determined that the
plaintiff failed to plead the elements of a prima facie
case because she failed to allege that she suffered any
adverse employment action as a result of being placed
on a performance improvement plan. In reaching that
conclusion, the court looked to federal court decisions
that have considered whether a particular action or
conduct by an employer would constitute an adverse
employment action. ‘‘A plaintiff sustains an adverse
employment action if he or she endures a materially
adverse change in the terms and conditions of employ-
ment. . . . To be materially adverse a change in work-
ing conditions must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.’’
(Citation omitted; internal quotation marks omitted.)
Brown v. American Golf Corp., 99 Fed. Appx. 341, 343
(2d Cir. 2004). ‘‘[A]n adverse employment action [has
been defined] as a significant change in employment
status, such as hiring, firing, failing to promote, reas-
signment with significantly different responsibilities, or
a decision causing a significant change in benefits.’’
(Internal quotation marks omitted.) Reynolds v. Dept.
of the Army, 439 Fed. Appx. 150, 153 (3d Cir. 2011).
Referencing Brown and Reynolds in its decision, the
trial court determined that placement of an employee
on a performance improvement plan in and of itself
would not constitute an adverse employment action as
that term is defined in federal case law. We conclude
that the court’s decision to follow the federal courts’
interpretation in this case was not improper because,
as previously discussed, Connecticut case law clearly
provides that our courts may look to federal court prec-
edent for guidance in enforcing Connecticut’s antidis-
crimination statutes.7 See, e.g., Patino v. Birken Mfg.
Co., supra, 304 Conn. 689; Brittell v. Dept. of Correction,
247 Conn. 148, 164, 717 A.2d 1254 (1998); Levy v. Com-
mission on Human Rights & Opportunities, 236 Conn.
96, 103, 671 A.2d 349 (1996); State v. Commission on
Human Rights & Opportunities, 211 Conn. 464, 470,
559 A.2d 1120 (1989); Eagen v. Commission on Human
Rights & Opportunities, supra, 135 Conn. App. 579.
Accordingly, the plaintiff’s first claim fails.
II
The plaintiff’s next claim is that, even applying federal
law to the facts alleged in this case, her complaint
states a valid cause of action for age discrimination.
The plaintiff focuses on the following allegations in
her complaint: (1) she was placed on a performance
improvement plan; (2) she was told she was subject to
termination on a specific date; (3) the defendant had
established a pattern of terminating or threatening to
terminate its older employees; and (4) the defendant’s
conduct placed her in fear of losing her employment
and caused her to suffer emotional distress. She argues
that those allegations, collectively, were sufficient to
state a claim for age discrimination. We disagree.
As discussed by the court in its memorandum of
decision, the federal cases of Reynolds and Brown spe-
cifically addressed performance improvement plans in
the context of age discrimination claims. In Reynolds,
the United States Court of Appeals for the Third Circuit,
in agreeing with other federal circuit courts, concluded
that being placed on a performance improvement plan
is not an adverse employment action absent accompa-
nying changes to pay, benefits or employment status.
Reynolds v. Dept. of the Army, supra, 439 Fed. Appx.
153–54 In reaching that conclusion, the court in Rey-
nolds reasoned: ‘‘[Performance improvement plans] are
typically comprised of directives relating to an employ-
ee’s preexisting responsibilities. In other words, far
from working a change in employment status, a [perfor-
mance improvement plan] is a method of conveying to
an employee the ways in which that employee can better
perform the duties that he or she already has.’’ Id., 153.
The plaintiff’s claim in Reynolds failed because he did
not demonstrate that his performance improvement
plan was accompanied by an adverse change in the
conditions or terms of his employment. Id.
Here, the trial court reasonably could have found that
the holdings in the federal cases, which addressed the
precise issue in this case, were persuasive. In reviewing
the allegations in the plaintiff’s complaint, the court
correctly determined that she failed to allege any
adverse material changes in the terms or conditions of
her employment as a result of being placed on the
performance improvement plan. She did not allege that
her salary decreased or that she had fewer benefits
or that her employment status changed. Although she
argues that she was given a specific termination date,
she acknowledged that she was not discharged from
employment.8 In the absence of such allegations, the
plaintiff failed to allege an adverse employment action
and, accordingly, failed to plead all of the requisite
elements of a prima facie case of age discrimination.
The judgment is affirmed.
1
The commission issued a release of jurisdiction on June 26, 2012.
2
General Statutes § 46a-60 (a) (1) provides in relevant part: ‘‘It shall be
a discriminatory practice . . . [f]or an employer . . . 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 . . . age . . . .’’
The relevant federal provision in the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq., provides in relevant part: ‘‘It shall be unlawful
for an employer . . . to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his compen-
sation, terms, conditions, or privileges of employment, because of such
individual’s age . . . .’’ 29 U.S.C. § 623 (a) (1) (2012).
3
Connecticut courts are not bound by federal law regarding discriminatory
employment practices when interpreting Connecticut’s antidiscrimination
statutes. State v. Commission on Human Rights & Opportunities, 211
Conn. 464, 470, 559 A.2d 1120 (1989); Vollemans v. Wallingford, 103 Conn.
App. 188, 199–200, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d 579(2008).
4
Title VII claims and Age Discrimination in Employment Act claims are
analyzed under the same framework. See Scaria v. Rubin, 117 F.3d 652,
653 (2d Cir. 1997).
5
‘‘[D]isparate treatment simply refers to those cases where certain individ-
uals are treated differently than others. . . . The principal inquiry of a
disparate treatment case is whether the plaintiff was subjected to different
treatment because of his or her protected status.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Levy v. Commission on Human
Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).
6
‘‘[T]he analytical framework set forth 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) (McDonnell Douglas), and its progeny is used
to determine whether a complainant may prevail on a claim of disparate
treatment under our state law. See, e.g., Craine v. Trinity College, 259
Conn. 625, 636–37, 791 A.2d 518 (2002). ‘McDonnell Douglas and subsequent
decisions have established an allocation of the burden of production and
an order for the presentation of proof in . . . discriminatory-treatment
cases. . . . First, the [complainant] must establish a prima facie case of
discrimination. . . . In order to establish a prima facie case, the complain-
ant must prove that: (1) he is 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.’ . . . Board of Education v. Commission on Human
Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003). Once the
prima facie case has been established, the employer must then produce
legitimate, nondiscriminatory reasons for its adverse employment action.
See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142,
120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). ‘This burden is one of production,
not persuasion; it can involve no credibility assessment.’ . . . Id. Once the
employer produces legitimate, nondiscriminatory reasons for its adverse
employment action, the complainant then must prove, by a preponderance
of the evidence, that the employer intentionally discriminated against him.
See, e.g., id., 143. ‘Although intermediate evidentiary burdens shift back and
forth under this framework, [t]he ultimate burden of persuading the trier of
fact that the [employer] intentionally discriminated against the [complainant]
remains at all times with the [complainant]. . . . [I]n attempting to satisfy
this burden, the [complainant]—once the employer produces sufficient evi-
dence to support a nondiscriminatory explanation for its decision—must
be afforded the opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the [employer] were not its true
reasons, but were a pretext for discrimination.’ . . . Id.’’ Dept. of Transpor-
tation v. Commission on Human Rights & Opportunities, 272 Conn. 457,
463 n.9, 863 A.2d 204 (2005).
7
‘‘In construing a Connecticut statute that is similar to federal law, we
often turn to decisions construing the federal law for guidance.’’ Commis-
sion on Human Rights & Opportunities v. Savin Rock Condominium
Assn., Inc., 273 Conn. 373, 386, 870 A.2d 457 (2005). The antidiscrimination
on the basis of age provision in the act and the provision in the Age Discrimi-
nation in Employment Act are nearly identical. See footnote 2 of this opinion.
8
‘‘[I]n the nonacademic setting termination of employment does not ensue
inevitably once notification of termination has been given.’’ (Internal quota-
tion marks omitted.) Vollemans v. Wallingford, supra, 103 Conn. App. 214.