Andrade v. Lego Systems, Inc. , 188 Conn. App. 652 ( 2019 )

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APPENDIX
DREY ANDRADE v. LEGO SYSTEMS, INC.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed January 26, 2018
Proceedings
Memorandum of decision on defendant’s motion for
summary judgment. Motion granted.
James V. Sabatini, for the plaintiff.
Victoria Woodin Chavey, for the defendant.
Opinion
BRIGHT, J.
I
INTRODUCTION
This action arises out of the defendant’s, Lego Sys-
tems, Inc. (Lego), termination of the plaintiff’s, Drey
Andrade, employment. The plaintiff alleges in the sole
count of his complaint that he was terminated based
on discrimination against him due to his sexual orienta-
tion in violation of General Statutes § 46a-60 (a) (1).
The defendant has moved for summary judgment,
claiming that there are no genuine issues of material
fact that: (1) the person who made the termination
decision did not know of the plaintiff’s sexual orienta-
tion; and (2) the plaintiff was terminated for reasons
wholly unrelated to his sexual orientation. The plaintiff
argues that he has produced sufficient evidence from
which a reasonable jury could infer that the plaintiff’s
termination was based on his sexual orientation. For
the reasons set forth more fully below, the defendant’s
motion is granted.
II
FACTS
The evidence submitted, viewed in a light most favor-
able to the plaintiff, establishes the following facts. The
plaintiff began working for the defendant on or about
October 12, 2009, as Distribution Operations Manager
CED. In that role, he reported to Julie Bianchi, Director
of Distribution, Americas. The plaintiff is homosexual.
Approximately six months after the plaintiff began
working for the defendant, the plaintiff and Bianchi
were having a conversation about their pets. The plain-
tiff had several dogs, and Bianchi asked him who took
care of his animals. The plaintiff responded that his
partner does at home. The plaintiff did not identify the
sex of his partner and never told Bianchi that he was
gay. The plaintiff did not recall any reaction by Bianchi
to his comment. At no other point during his employ-
ment with the defendant did the plaintiff ever discuss
his sexual orientation with Bianchi. Nor is there any
evidence that Bianchi learned the plaintiff’s sexual ori-
entation from any other source. The plaintiff never
heard Bianchi refer to him as being gay and never heard
Bianchi make any derogatory statements or jokes about
gay people.
On September 23, 2010, Bianchi placed the plaintiff
on a performance plan. The plan required the plaintiff
to take specific actions over a period of ninety days. It
provided that if the plaintiff failed to meet the require-
ments of the plan, additional actions would be taken,
including the possibility of termination. The plan was
detailed in a memo from Bianchi to the plaintiff. The
memo set forth Bianchi’s concern about the plaintiff’s
unavailability on site and his lack of responsiveness.
Furthermore, while Bianchi stated her belief that the
plaintiff had the hard skills necessary to be a strong
performer, she stated that the plaintiff had not demon-
strated the necessary competencies around communi-
cation, collaboration, and building trust. Both Bianchi
and the plaintiff signed the plan. There is no evidence
that the plaintiff ever disputed the specific issues raised
by Bianchi in the plan. There is also no evidence that
the plaintiff did not comply with the ninety day plan.
Nor is there any evidence that any further disciplinary
actions were taken against the plaintiff as a result of
the plan.
In the plaintiff’s midyear review for 2011, Bianchi
noted further concerns she had about the plaintiff’s
performance. She rated his performance as ‘‘Medium/
Low.’’ The review noted that the plaintiff is talented
and capable in both operation and transportation. The
review provided specific examples of where the plaintiff
had performed well in these areas. Nevertheless, Bian-
chi noted that the plaintiff was not meeting expectations
in developing employees who reported to him. The
review further noted that Bianchi had discussed with
the plaintiff moving to a role that focused on his opera-
tional strengths but would remove him from managing
other employees. The plaintiff was not interested in
such a move. Instead, he acknowledged to Bianchi that
he needed to work on and improve his employee man-
agement skills. The review concluded by Bianchi, not-
ing: ‘‘I very much want to see you succeed Drey, and
will support you in this effort.’’ There is no evidence
that the plaintiff in any way disputed the issues raised by
Bianchi or her overall assessment of his performance.
The plaintiff’s 2012 midyear review prepared by Bian-
chi reflects her conclusion that the plaintiff had
addressed the area of people development and was now
meeting expectations. Nevertheless, the review noted
two other areas where the plaintiff was performing
below expectations. First, Bianchi noted that the plain-
tiff needed to do better to understand the retail side of
the defendant’s business. Second, Bianchi noted that
the plaintiff needed to focus on collaboration. In partic-
ular, Bianchi stated that she found the plaintiff’s collab-
oration with her not acceptable and that his behavior
resulted in a lack of trust. Bianchi provided specific
examples of a lack of communication and coordination
from the plaintiff to her. Again, there is no evidence
that the plaintiff disputed the issues raised by Bianchi.
The concerns raised by Bianchi at the midyear review
were not addressed to her satisfaction because Bianchi
placed the plaintiff on a second performance plan on
October 26, 2012. The specific reason given for the
performance plan was the plaintiff’s failure to achieve
target performance level in collaboration and strategic
orientation. The plan provided nine detailed examples
between February and September, 2012, of what Bian-
chi viewed as a lack of collaboration between the plain-
tiff and either her, other Lego employees or third parties
with whom the plaintiff dealt. Almost all of the examples
centered on Bianchi’s perception that the plaintiff was
not communicating appropriately with others. The plan
set forth specific actions the plaintiff was expected to
take over the next sixty days. The plan noted that if
the plaintiff failed to meet the expectations of the plan,
further disciplinary action, including termination, could
be taken. It concluded by stating: ‘‘By signing this docu-
ment, you are agreeing to execute on the details of
the plan outlined above and that you understand the
performance plan as presented to you.’’ The plaintiff
signed the plan and handwrote next to his signature:
‘‘I will provide written feedback on items addressed by
11/2/12.’’ There is no evidence that he ever provided
such feedback or otherwise disputed the issues raised
by Bianchi in the plan.
On January 31, 2013, the performance plan was
extended until March 15, 2013, because the plaintiff had
met some, but not all, of the expectations of the plan.
Bianchi also identified further specific examples of the
plaintiff’s performance shortcomings. She further pro-
vided specific expectations to be met by the plaintiff
by March 15, 2013. The plaintiff signed the extension
of the plan. Again, he has provided no evidence that he
in any way disputed any of the issues raised by Bianchi.
On March 6, 2013, the plaintiff and Bianchi met to
discuss the plaintiff’s response to the performance plan.
The plaintiff had submitted a response on February 28,
2013. Bianchi’s memo from the meeting reflects that
she had already recommended that the plaintiff’s
employment be terminated because he had not met the
expectations of the October 26, 2012 plan. It also
reflects that Bianchi was concerned that the plaintiff’s
February 28, 2013 response was focused on his team’s
past successes and not on addressing the areas of con-
cern identified in the performance plan. Bianchi also
discussed with the plaintiff his PMP and KPI scores,
which are mathematical metrics the defendant uses to
measure employee performance. Bianchi acknowl-
edged that the plaintiff had a very high PMP score. She
also acknowledged that he scored well on his KPIs. She
explained to the plaintiff, though, that PMP and KPI
scores are based on operational metrics, and did not
address the collaboration and strategic orientation
issues that were the bases for the performance plan.
She also told the plaintiff her belief that his performance
scores would be negatively impacted if he did not
address the issues identified in the performance plan.
Bianchi told the plaintiff that she needed more time to
review his submittal, and they scheduled a follow-up
meeting for March 15, 2013.
On March 21, 2013, the October 26, 2012 performance
plan was extended for a second time. The extension
noted that the plaintiff first responded to the delivera-
bles requested in the January 31, 2013 extension in
his February 28, 2013 response. The March 21, 2013
extension detailed eight specific reasons why the plain-
tiff’s February 28, 2013 submittal did not meet Bianchi’s
expectations. In particular, Bianchi noted that the plain-
tiff’s response was focused on what had happened in the
past and did not address how things would be improved
going forward. Furthermore, Bianchi noted the plain-
tiff’s failure to submit a complete transportation strat-
egy and a distribution recall process, both of which
were overdue. She also noted continuing communica-
tion issues, including a failure to respond properly and
timely to multiple customer logistics requests. The
plaintiff was given specific expectations that he was
required to meet by May 3, 2013. The plaintiff signed
the performance plan extension. He has submitted no
evidence that he ever disputed the specific issues raised
by Bianchi in that document. The defendant terminated
the plaintiff on May 9, 2013. The defendant hired an
individual to replace the plaintiff. The defendant does
not know this individual’s sexual orientation.
The plaintiff testified, and the court accepts as true
for purposes of the defendant’s motion, that he was not
permitted to attend a number of conferences, including
the Global Transportation Forum, the company-wide
sales conference, a strategy meeting with PFSweb, a
third-party vendor the plaintiff was responsible to man-
age, and a meeting in Canada to discuss the Canadian
distribution market. The plaintiff testified that other
similarly situated managers who were not gay were
permitted to go to these meetings. The plaintiff further
testified that excluding the plaintiff from these meetings
allowed Bianchi to criticize the plaintiff’s performance
in the areas of strategic orientation, collaboration and
communication. At the same time, the plaintiff acknowl-
edged that he attended monthly meetings with PFSweb
at its offices in Memphis, Tennessee. The plaintiff also
attended meetings with a vendor in Pennsylvania, Min-
nesota, Kansas and Florida, attended a global confer-
ence in Prague, and visited the defendant’s global
headquarters in Billund, Denmark. Additional facts will
be discussed as necessary.
III
DISCUSSION
The summary judgment standard is well established.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any 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.’’
(Internal quotation marks omitted.) Stuart v. Freiberg,
316 Conn. 809, 820, 116 A.3d 1195 (2015). ‘‘[T]he genuine
issue aspect of summary judgment requires the parties
to bring forward before trial evidentiary facts, or sub-
stantial evidence outside the pleadings, from which the
material facts alleged in the pleadings can warrantably
be inferred. . . . A material fact has been defined ade-
quately and simply as a fact which will make a differ-
ence in the result of the case.’’ (Citation omitted;
internal quotation marks omitted.) Buell Industries,
Inc. v. Greater New York Mutual Ins. Co., 259 Conn.
527, 556, 791 A.2d 489 (2002). ‘‘[T]he burden of showing
the nonexistence of any material fact is on the party
seeking summary judgment.’’ (Internal quotation marks
omitted.) Tuccio Development, Inc. v. Neumann, 114
Conn. App. 123, 126, 968 A.2d 956 (2009). ‘‘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 sub-
mitted 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, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue.’’ (Internal quotation marks omitted.) Ferri v.
Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
‘‘[T]ypically, [d]emonstrating a genuine issue requires
a showing of evidentiary facts or substantial evidence
outside the pleadings from which material facts alleged
in the pleadings can be warrantably inferred. . . .
Moreover, [t]o establish the existence of a material fact,
it is not enough for the party opposing summary judg-
ment merely to assert the existence of a disputed issue.
. . . Such assertions are insufficient regardless of
whether they are contained in a complaint or a brief.
. . . Further, unadmitted allegations in the pleadings
do not constitute proof of the existence of a genuine
issue as to any material fact. . . .
‘‘Although the court must view the inferences to be
drawn from the facts in the light most favorable to the
party opposing the motion . . . a party may not rely
on mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary, judg-
ment. . . . Only evidence that would be admissible at
trial may be used to support or oppose a motion for
summary judgment. . . . Requiring the nonmovant to
produce such evidence does not shift the burden of
proof. Rather, it ensures that the nonmovant has not
raised a specious issue for the sole purpose of forcing
the case to trial.’’ (Citations omitted; internal quotation
marks omitted.) Walker v. Dept. of Children & Families,
146 Conn. App. 863, 870–71, 80 A.3d 94 (2013), cert.
denied, 311 Conn. 917, 85 A.3d 653 (2014).
The plaintiff’s sole claim is that his termination was
the result of illegal discrimination by Bianchi because
the plaintiff is gay. The shifting burdens of proof for
establishing such a claim are well settled. ‘‘When a
plaintiff claims disparate treatment under a facially neu-
tral employment policy, this court employs the burden-
shifting analysis set out by the United States Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).1 Under this
analysis, the employee must first make a prima facie
case of discrimination. The employer may then rebut
the prima facie case by stating a legitimate, nondiscrimi-
natory 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. . . .
‘‘The burden of establishing a prima facie case [of
discrimination] is a burden of production, not a burden
of proof, and therefore involves no credibility assess-
ment by the fact finder. . . . The level of proof required
to establish a prima facie case is minimal and need not
reach the level required to support a jury verdict in the
plaintiff’s favor. . . . To establish a prima facie case of
discrimination in the employment context, the plaintiff
must present evidence that: (1) [he] belongs to a pro-
tected class; (2) [he] was subject to an adverse employ-
ment action; and (3) the adverse action took place under
circumstances permitting an inference of discrimina-
tion. . . . To establish the third prong, a litigant may
present circumstantial evidence from which an infer-
ence may be drawn that similarly situated individuals
were treated more favorably than [he] was. . . . To be
probative, this evidence must establish that the plaintiff
and the individuals to whom [he] seeks to compare
[himself] were similarly situated in all material respects
. . . . [A]n employee offered for comparison will be
deemed to be similarly situated in all material respects
if (1) . . . the plaintiff and those [he] maintains were
similarly situated were subject to the same workplace
standards and (2) . . . the conduct for which the
employer imposed discipline was of comparable seri-
ousness.’’ (Citations omitted; emphasis omitted; foot-
note added; internal quotation marks omitted.) Perez-
Dickson v. Bridgeport, 304 Conn. 483, 513–14, 43 A.3d
69 (2012). ‘‘Moreover, as discrimination will seldom
manifest itself overtly, courts must be alert to the fact
that [e]mployers are rarely so cooperative as to include
a notation in the personnel file that the firing is for a
reason expressly forbidden by law. . . . However, they
must also carefully distinguish between evidence that
allows for a reasonable inference of discrimination and
evidence that gives rise to mere speculation and conjec-
ture. This undertaking is not one of guesswork or theori-
zation. After all, [a]n inference is not a suspicion or a
guess. It is a reasoned, logical decision to conclude that
a disputed fact exists on the basis of another fact [that
is known to exist]. . . . Thus, the question is whether
the evidence can reasonably and logically give rise to
an inference of discrimination under all of the circum-
stances. As a jury would be entitled to review the evi-
dence as a whole, courts must not view the evidence
in piecemeal fashion in determining whether there is a
trial-worthy issue.’’ (Citations omitted; internal quota-
tion marks omitted.) Bickerstaff v. Vassar College, 196
F.3d 435, 448 (2d Cir. 1999), cert. denied, 530 U.S. 1242,
120 S. Ct. 2688, 147 L. Ed. 2d 960 (2000).
The evidence, viewed in a light most favorable to the
plaintiff, establishes that he is a member of a protected
class and was subject to an adverse employment action.
The question is whether the plaintiff has presented suffi-
cient evidence that he was terminated under circum-
stances that give rise to an inference of discrimination.
The defendant argues that such an inference is impossi-
ble because the person responsible for terminating the
plaintiff, Bianchi, did not know that the plaintiff was
gay. Bianchi testified in her affidavit that (1) she never
knew that the plaintiff was gay; (2) neither the plaintiff
nor anyone else told her he was gay; and (3) the plaintiff
never did or said anything that led her to believe he
was gay.
In response, the plaintiff does not claim that he ever
told Bianchi that he was gay. Nor does he claim that
anyone else told her that he was gay. Nor does he claim
that he ever heard Bianchi refer to him as gay. The
plaintiff’s claim that Bianchi knew of his sexual orienta-
tion is based entirely on his testimony that he once told
Bianchi that his partner stayed at home with his dogs.
He did not tell Bianchi the name or sex of his partner
and she did not ask. From this one statement the plain-
tiff argues that a reasonable jury could infer that Bianchi
would understand the plaintiff’s reference to his partner
to mean his ‘‘gay partner.’’ The defendant argues that
such a conclusion is not a reasonable inference from
the evidence, but instead impermissible speculation.
The court agrees with the defendant. The reference
to his partner could have several meanings, including
his unmarried heterosexual partner. For a jury to con-
clude from this single comment that Bianchi knew that
the plaintiff was gay would require it to speculate or
guess that Bianchi took meaning from words that did
not express this meaning. Such speculation is particu-
larly troubling here when the plaintiff admits that there
is absolutely no other evidence to support the inference
the plaintiff suggests. The plaintiff has not offered the
testimony of a former coworker or anyone else to sug-
gest that there was reason beyond the plaintiff’s single
cryptic statement to believe that Bianchi knew that the
plaintiff was gay.
In addition, even assuming that Bianchi knew of the
plaintiff’s sexual orientation, the circumstances sur-
rounding his termination do not permit an inference of
discrimination by a reasonable jury. First, while the
plaintiff claims that he was not given the same opportu-
nity to attend conferences and meetings that were given
to similarly situated heterosexual male colleagues, the
evidence he has submitted fails to establish that those
other employees were in fact similarly situated.
‘‘[W]hether two employees are similarly situated ordi-
narily presents a question of fact . . . . [However], a
court can properly grant summary judgment [on a dis-
crimination claim] where it is clear that no reasonable
[fact finder] could find the similarly situated prong
met.’’ (Emphasis omitted; internal quotation marks
omitted.) Walker v. Dept. of Children & Families, supra,
146 Conn. App. 876 n.11. There is no evidence that any of
those employees were ever the subject of a performance
plan. Nor is there any evidence that Bianchi or any
other supervisor had even one performance issue with
those employees. By contrast, the undisputed evidence
establishes that Bianchi set forth in writing detailed
concerns with the plaintiff’s job performance. The plain-
tiff received each of these writings and signed each of
the performance plans that set forth Bianchi’s issues.
There is no evidence that the plaintiff ever disputed
any of the issues raised by Bianchi. In fact, the plaintiff
has not submitted a single performance related docu-
ment in opposition to the defendant’s motion. No rea-
sonable jury could find that the plaintiff has proved that
similarly situated employees were treated differently
when he has failed to show that any of the employees
were in fact similarly situated. Without knowing
whether any of those employees ever did anything that
might subject them to discipline makes it impossible
for a reasonable jury to address whether the termination
of the plaintiff for his undisputed underperformance
was motivated by bias against his sexual orientation.
In response, the plaintiff appears to argue that any
shortcoming in his performance was due to Bianchi’s
decision to exclude him from certain conferences and
meetings. The undisputed evidence would not permit
a reasonable jury to draw such an inference. Most of
the issues raised by Bianchi related to the plaintiff’s
communication with her and others both inside and
outside Lego. In addition, Bianchi raised concerns with
the plaintiff’s failure to timely complete projects and
follow through on various commitments he made. No
reasonable jury could conclude that such failures would
not have occurred had the plaintiff been permitted to
attend various conference and meetings. Furthermore,
the plaintiff has provided nothing but his own conclu-
sory statements as to the relationship between these
conferences and meetings and his job performance.
He has provided no documentation or other evidence
regarding what occurred at these conferences and how
it related to his job duties, and specifically to the issues
raised by Bianchi. Finally, because the plaintiff has pre-
sented no evidence as to the level of job performance
of the purportedly similarly situated heterosexual
employees, there is no factual basis for a jury to con-
clude that any of those employees should have been
denied permission to go to those conferences and meet-
ings due to performance issues like those documented
with the plaintiff.
The plaintiff also argues that his high PMP and KPI
scores belie any problems with his job performance.
This argument ignores, though, that the issues raised
by Bianchi were unrelated to the metrics measured by
those scores. It also ignores that the only evidence
presented to the court regarding the KPI score is that
it also measures team or regional performance, and
global performance, with a trend toward heavier
emphasis on global company performance. Conse-
quently, according to Bianchi, a high KPI score might
not indicate strong job performance by the individual
employee. The plaintiff has offered no evidence to the
contrary. Finally, the plaintiff has not provided the court
with the actual PMP or KPI scores for him or the pur-
ported similarly situated employees. Consequently, the
court is in no position to evaluate the significance of
these scores in how the plaintiff or any other employee
was treated by the defendant.
Despite these issues, the plaintiff argues that the
court may not grant summary judgment when the
employer’s action is based solely on the subjective eval-
uation of the employee because such subjectivity may
mask discrimination. The plaintiff erroneously equates
subjectivity with a lack of objectively measured numeri-
cal data supporting the employment action. That has
never been the case. When courts talk about unreliable
subjective reasons they are referring to actions taken
with little or no reason given for them other than the
subjective preference of the employer. ‘‘Accordingly,
an ‘employer’s explanation of its reasons must be clear
and specific’ in order to ‘afford the employee a full
and fair opportunity to demonstrate pretext.’ Meiri v.
Dacon, 759 F.2d 989, 996–97 [2d Cir.] [cert. denied, 474
U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985)]. Where
an employer’s explanation, offered in clear and specific
terms, ‘is reasonably attributable to an honest even
though partially subjective evaluation of . . . qualifica-
tions, no inference of discrimination can be drawn.’
Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980).’’
Kahn v. Fairfield University, 357 F. Supp. 2d 496, 504
(D. Conn. 2005). Here, Bianchi repeatedly set forth in
clear and specific terms the issues with the plaintiff
s job performance. As noted above, the plaintiff has
submitted no evidence to dispute the issues raised by
Bianchi. Given these undisputed facts, there is simply
no basis to draw an inference of discrimination.
Finally, no reasonable jury could draw an inference
of discrimination given the manner in which Bianchi
handled the plaintiff’s job performance issues. The
plaintiff claims that Bianchi learned of his sexual orien-
tation sometime in the spring or summer of 2010,
approximately six months after he started working for
the defendant. Yet, he was not terminated until three
years later, in May, 2013. During that three year period
it is undisputed that Bianchi gave the plaintiff repeated
warnings about his inadequate job performance. She
provided the plaintiff with specific examples of defi-
cient performance and gave him an opportunity to
address them. Bianchi also provided the plaintiff with
encouragement, and praised him for his positive attri-
butes. She also offered the plaintiff an opportunity to
transition to another position that seemed to be a better
fit for his skills. The defendant twice extended the Octo-
ber 26, 2012 performance plan to give the plaintiff addi-
tional time to comply with its terms. Based upon the
undisputed evidence submitted by the defendant, no
reasonable jury could conclude that sometime in 2010
Bianchi embarked on a three year plan of both criticiz-
ing and praising the plaintiff, and offering him other
career paths, with the ultimate goal of terminating him.
For all of the foregoing reasons there is simply insuffi-
cient evidence from which a reasonable jury could con-
clude that the circumstances surrounding the plaintiff’s
termination could give rise to an inference of discrimi-
nation. The defendant produced considerable evidence
that belies any such inference. The plaintiff has pro-
duced no evidence in response that raises a genuine
issue of material fact.
IV
CONCLUSION
For the foregoing reasons, the defendant’s motion
for summary judgment is granted.
* Affirmed. Andrade v. Lego Systems, Inc., 188 Conn. App. , A.3d
(2019).
1
While the plaintiff argues that meeting the McDonnell Douglas Corp.
test is not the only way to establish illegal discrimination, he agrees that
this case lends itself to an analysis under that test. Plaintiff’s Brief, p. 9. He
also has not proffered another basis to analyze his claim.