Luth v. OEM Controls, Inc.

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        Superior Court, Judicial District of Ansonia-Milford
                    File No. CV-XX-XXXXXXX-S

               Memorandum filed December 6, 2019


  Memorandum of decision on defendant’s motion for
summary judgment. Motion granted.
  James V. Sabatini, for the plaintiff.
  Jody N. Cappello and Sidd Sinha, for the defendant.

  The plaintiff, Diane Luth, filed a two count revised
complaint against the defendant, OEM Controls, Inc.,
on December 3, 2018, alleging gender discrimination
and retaliation. The complaint alleges the following
facts. The defendant hired the plaintiff in January of
1996 as a sales administrator. Throughout the plaintiff’s
employment, she held different titles. Her most recent
position was implementation manager in the data deliv-
ery department where she made $88,000 to $92,000
annually. The plaintiff is the only female in her job
position. The defendant allegedly hired Mick Lauer in
October, 2015, to perform the same or substantially
similar job duties as the plaintiff. The defendant alleg-
edly pays Lauer $170,000 annually in compensation.
Lauer was not the plaintiff’s manager, nor was he in
charge of the data delivery team. The defendant also
employs Jay Monahan. Monahan shares some of the
same job functions as the plaintiff, and he allegedly is
paid more than the plaintiff.
   When the plaintiff found out about the difference in
pay, she expressed her concerns to the defendant. The
defendant stated that it was going to look at all the
salaries of individuals on the data delivery team. The
plaintiff asked about her salary again a few months
later, and she was told to not take it personally and
that it was not her concern. On October 6, 2016, the
plaintiff’s employment with the defendant was termi-
   The first count of the plaintiff’s complaint alleges
gender discrimination. The plaintiff alleges that the
defendant discriminated against her because of her gen-
der by paying her unequally and by constructively dis-
charging her. In the second count, the plaintiff’s com-
plaint alleges that the defendant retaliated against the
plaintiff for complaining about the gender discrimina-
tion in the workplace and the pay disparity between
men and women at the company.
  Pending before the court is the defendant’s motion
for summary judgment filed on April 15, 2019, with a
supporting memorandum of law. The plaintiff filed a
memorandum in opposition to the motion for summary
judgment on July 1, 2019. The defendant filed a reply
memorandum to the plaintiff’s opposition on July 15,
2019. The court heard oral argument on the motions
on July 22, 2019. The court ordered the parties to file
supplemental briefs. The plaintiff filed a supplemental
opposition on July 29, 2019, and the defendant filed a
reply on August 19, 2019.
  ‘‘Summary judgment is a method of resolving litiga-
tion when pleadings, affidavits, 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. . . . The motion for sum-
mary judgment is designed to eliminate the delay and
expense of litigating an issue when there is no real
issue to be tried.’’ (Internal quotation marks omitted.)
Grenier v. Commissioner of Transportation, 

306 Conn.

, 534–35, 

51 A.3d 367

(2012). ‘‘The party seeking
summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case.’’ (Internal quotation marks omitted.) Stuart v.

316 Conn. 809

, 821, 

116 A.3d 1195

   ‘‘With respect to employment discrimination claims,
our Supreme Court has held that we review federal
precedent concerning employment discrimination for
guidance in enforcing our own antidiscrimination stat-
utes.’’ (Internal quotation marks omitted.) Phadnis v.
Great Expression Dental Centers of Connecticut, P.C.,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX (January 26, 2015) (reprinted at 

Conn. App. 82

, 86, 

153 A.3d 691

), aff’d, 

170 Conn. App.


153 A.3d 687

(2017). ‘‘Under the [analysis set forth
in McDonnell Douglas Corp. v. Green, 

411 U.S. 792


93 S. Ct. 1817


36 L. Ed. 2d 668

(1973)], the
employee must first make a prima facie case of discrimi-
nation, The employer may then rebut the prima facie
case by stating a legitimate, nondiscriminatory justifica-
tion for the employment decision in question. The
employee then must demonstrate that the reason prof-
fered by the employer is merely a pretext and that the
decision was actually motivated by illegal discrimina-
tory bias.’’ (Internal quotation marks omitted.) Phadnis
v. Great Expression Dental Centers of Connecticut,

P.C., supra

, 87.
          Prima Facie Case of Discrimination
   ‘‘In order for the employee to first make a prima facie
case of discrimination, the plaintiff must show: (1) the
plaintiff is a member of a protected class; (2) the plain-
tiff was qualified for the position; (3) the plaintiff suf-
fered an adverse employment action; and (4) the
adverse employment action occurred under circum-
stances that give rise to an inference of discrimination.’’
Feliciano v. Autozone, Inc., 

316 Conn. 65

, 73, 

111 A.3d

(2015). ‘‘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
assessment 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 ver-
dict in the plaintiff’s favor.’’ (Internal quotation marks
omitted.) Perez-Dickson v. Bridgeport, 

304 Conn. 483


43 A.3d 69

   ‘‘In addition to proffering direct evidence of discrimi-
nation with respect to the fourth prong, a litigant may
present circumstantial evidence from which an infer-
ence may be drawn that similarly situated individuals
were treated more favorably than she was.’’ (Internal
quotation marks omitted.) Phadnis v. Great Expression
Dental Centers of Connecticut, 

P.C., supra

, 170 Conn.
App. 88. ‘‘To establish the fourth element of a prima
facie case, [the plaintiff] must show that she was treated
differently from similarly situated [employees]. To be
similarly situated, the individuals with whom [the plain-
tiff] attempts to compare herself must be similarly situ-
ated in all material respects.’’ (Citation omitted; internal
quotation marks omitted.) Shumway v. United Parcel
Service, Inc., 

118 F.3d 60

, 64 (2d Cir. 1997). ‘‘Whether
a plaintiff is similarly situated to comparators is gener-
ally a question for the jury. . . . But a court can prop-
erly grant summary judgment where it is clear that no
reasonable jury could find the similarly situated prong
met.’’ (Citation omitted; internal quotation marks omit-
ted.) Brown v. Waterbury Board of Education, 247 F.
Supp. 3d 196, 209 (D. Conn. 2017).
   ‘‘That an employee’s conduct need not be identical
to that of another for the two to be similarly situated
is also reflected in the language of McDonnell Douglas
[Corp.], where the Supreme Court used the phrase ‘com-
parable seriousness’ to identify conduct that might help
to support an inference of discrimination.’’ (Internal
quotation marks omitted.) Graham v. Long Island Rail

230 F.3d 34

, 40 (2d Cir. 2000). ‘‘[T]he standard
for comparing conduct requires a reasonably close
resemblance of the facts and circumstances of [the]
plaintiff’s and comparator’s cases, rather than a show-
ing that both cases are identical.’’

Id. ‘‘What constitutes

material respects’ . . . must be judged based on
(1) whether the plaintiff and those [s]he maintains were
similarly situated were subject to the same workplace
standards and (2) whether the conduct for which the
employer imposed discipline was of comparable seri-

‘‘When a plaintiff

attempts to satisfy the ultimate bur-
den of proving discriminatory intent by presenting cir-
cumstantial evidence of disparate treatment, the plain-
tiff must show that the better-treated workers with
whom the plaintiff compares herself are a representa-
tive sample of all the workers who are comparable to
her. . . . She must not pick and choose [compara-
tors].’’ (Internal quotation marks omitted.) Perez-Dick-
son v. 

Bridgeport, supra


304 Conn. 524

n.45. ‘‘Employ-
ees need show only a situation sufficiently similar to
[their own] to support at least a minimal inference that
the difference of treatment may be attributable to dis-
crimination.’’ (Internal quotation marks omitted.)
United Technologies Corp. v. Commission on Human
Rights & Opportunities, 

72 Conn. App. 212

, 226, 

A.2d 1033

, cert. denied, 

262 Conn. 920


812 A.2d 863

   ‘‘Nothing in McDonnell Douglas Corp. . . . limits the
type of circumstantial evidence that may be used to
establish the fourth prong of the test for a prima facie
case of . . . discrimination.’’ (Citation omitted.)
Craine v. Trinity College, 

259 Conn. 625

, 640–41, 

A.2d 518

(2002). ‘‘[T]he inference of discriminatory
intent could be drawn in several circumstances includ-
ing, but not limited to: the employer’s continuing, after
discharging the plaintiff, to seek applicants from per-
sons of the plaintiff’s qualifications to fill that position;
or the employer’s criticism of the plaintiff’s perfor-
mance in . . . degrading terms; or its invidious com-
ments about others in the employee’s protected group;
or the more favorable treatment of employees not in
the protected group; or the sequence of events leading
to the plaintiff’s discharge.’’ (Internal quotation marks
omitted.) Abdu-Brisson v. Delta Air Lines, Inc., 

F.3d 456

, 468 (2d Cir.), cert. denied, 

534 U.S. 993


S. Ct. 460


151 L. Ed. 2d 378

  The defendant argues that the plaintiff has failed to
prove a prima facie case of discrimination. For the
purposes of the motion for summary judgment, the
defendant does not challenge that the plaintiff has met
the first three prongs of her prima facie case of discrimi-
nation. The defendant only argues that the plaintiff has
not proved the fourth prong of a prima facie case for
discrimination. Specifically, the defendant argues that
the plaintiff’s position was not filled by an individual
outside the plaintiff’s protected class, and the compara-
tors given by the plaintiff are not ‘‘similarly situated’’
to the plaintiff. In response, the plaintiff argues that
she has presented evidence that the defendant treated
similarly situated male employees more favorably than
the plaintiff. The plaintiff argues that her male cowork-
ers had similar job titles and responsibilities but were
paid significantly more than the plaintiff. The court
agrees with the defendant.
   In the present case, the plaintiff offers two compara-
tors, Lauer and Monahan. The key question is whether
Lauer and Monahan were similarly situated to the plain-
tiff. Lauer and Monahan are similarly situated if their
positions were ‘‘substantially equal in skill, effort, and
responsibility’’ to the plaintiff. (Internal quotation
marks omitted.) Andrus v. Dooney & Bourke, Inc., 

F. Supp. 3d 550

, 554 (D. Conn. 2015). The undisputed
facts establish that, although both men worked with
the plaintiff on the data delivery team, they had different
job titles and responsibilities than the plaintiff.
  The plaintiff’s title was implementation manager.
Sam Simons, the copresident and chief operating officer
for the defendant, testified at his deposition that the
plaintiff’s job in 2016 was to ‘‘support the customer,
primarily Kiewit, and manage implementation projects
or installation and implementation.’’ Defendant’s
Motion for Summary Judgment, exhibit A, Simons
Deposition, 15:19–22. Simons states that some of the
work [of] the plaintiff overlapped with other employees
but no one else had her specific duties.
   The plaintiff’s testimony about her job responsibili-
ties is generally consistent with Simons’ description of
these responsibilities. In her deposition, the plaintiff
stated that her job duties included taking out teams to
job sites and supervising and overseeing them in the
field; making suggestions on how to improve the prod-
ucts when out in the field; troubleshooting and fixing
the product; working with mechanics either in person
or over the phone to walk them through how to install
the products; troubleshooting the software and soft-
ware uploads; and other similar tasks.
   Monahan stated in his deposition that he worked at
the defendant for twenty years. During the relevant time
period, he had worked as a project manager for about
seven years. As part of his job, Monahan stated in his
deposition, he helps ‘‘direct, design, install, [and] config-
ure the asset management side of [the] product line.’’
Defendant’s Motion for Summary Judgment, exhibit A,
Monahan Deposition, 4:25–5:1. Monahan further explains
that, if a customer had problems with the data, the plain-
tiff would work on that issue, but if a customer had a hard-
ware problem or issues with the installation or product, he
would work on that, too.
   Despite the plaintiff’s claims to the contrary, the
undisputed facts establish that the work performed by
the plaintiff and Monahan was significantly different. In
the plaintiff’s deposition, when she was asked whether
she had a similar role to Monahan, she initially answered,
‘‘[y]es, absolutely, we both sort of . . . did the exact
same thing,’’ but then further explained that, ‘‘except
Jay did more—got more involved with maybe training
and process and trouble—we both did troubleshooting,
yeah.’’ (Emphasis added.) Defendant’s Motion for Sum-
mary Judgment, exhibit A, Plaintiff’s Deposition, 39:4–8.
In short, the plaintiff admits that her role and Monahan’s
were dissimilar, and considering this evidence fully and
in a light most favorable to the plaintiff, there is no fac-
tual dispute that the job responsibilities of the plaintiff
and Monahan were different because his tasks were
more expansive.1
  An identical conclusion must be reached regarding
Lauer. Lauer was hired in late 2015, and his job title was
account manager and sales. Lauer’s job was to develop
new business and to provide better services to the cus-
tomers. Specifically, Simons testified that Lauer’s main
focus was to sell products as well as to engage account
management activities, which would lead to sales. Sim-
ons Deposition, 50:10–20. There can be no real or bona
fide question that Lauer’s job responsibilities were dra-
matically different from the plaintiff’s tasks.
  In summary, the plaintiff has not presented any evi-
dence indicating that similarly situated male employees
were treated more favorably. The plaintiff has neither
discussed nor present[ed] evidence as to employees on
the data delivery team other than Lauer and Monahan,
and a reasonable jury could not find that the plaintiff
was similarly situated to either of them. The plaintiff
was obviously displeased that these two employees
were working in the same data delivery team of the
company and were making more money than she was,
but she cannot contest this disparate treatment on the
ground that they were similarly situated and that this
similarity creates an inference of gender discrimination.
The plaintiff’s job was dissimilar to her male counter-
parts; therefore, her salary may be expected to be dis-
similar to these individuals. Moreover, the plaintiff’s
position on the data delivery team was not filled by
someone outside her protected class.
        Legitimate, Nondiscriminatory Reason
  Furthermore, assuming arguendo that the plaintiff
established a prima facie case of discrimination, the
defendant has provided a nondiscriminatory reason for
the plaintiff’s termination, and the plaintiff has failed
to provide any sufficient evidence indicating that these
reasons were pretextual.
   ‘‘Once an employee has made a prima facie case, the
employer may rebut by stating a legitimate, nondiscrim-
inatory justification for the employment decision in
question.’’ Phadnis v. Great Expression Dental Centers
of Connecticut, 

P.C., supra


170 Conn. App. 90

. ‘‘This,
too, is a burden of production, and the defendant merely
needs to state a nondiscriminatory reason. The defen-
dant does not have to prove the absence of discrimina-
tion.’’ Craine v. Trinity 

College, supra


259 Conn. 643

   In the present case, Simons, the copresident and chief
operating officer of the defendant, states that the reason
for the plaintiff’s termination was because the defen-
dant’s business was doing poorly, especially in the data
delivery unit. The defendant has experienced layoffs
and budget cuts. There were actually two sets of layoffs
in 2016, one in June and one in October when the plain-
tiff was terminated. Simons also stated that the data
delivery team was restructured. In October of 2016
when the plaintiff was laid off, four to six other people
were also laid off, and they ranged from new employees
to employees who worked at the defendant for just as
long as the plaintiff. The plaintiff even stated in her
deposition that the company was doing poorly in 2015
and states that there were freezes on raises in 2015
and cuts in pay around the same time. Therefore, the
evidence presented shows that the defendant had a
legitimate, nondiscriminatory business reason for ter-
minating the plaintiff.
   ‘‘[The plaintiff] now must have the opportunity to
demonstrate that the [defendant’s] proffered reason
was not the true reason for the employment decision.
This burden now merges with the ultimate burden of
persuading the court that [the plaintiff] has been the
victim of intentional discrimination.’’ (Internal quota-
tion marks omitted.) DaSilva v. Weik, Superior Court,
judicial district of Litchfield at Torrington, Docket No.
CV-XX-XXXXXXX-S (Hon. John W. Pickard, judge trial ref-
eree) (August 27, 2019). ‘‘[The plaintiff] may succeed
in this either directly by persuading the court that a
discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence. . . .
Employment discrimination therefore can be proven
directly, with evidence that the employer was motivated
by a discriminatory reason, or indirectly, by proving
that the reason given by the employer was pretextual.’’
(Internal quotation marks omitted.)

Id. ‘‘The plaintiff,

proving pretext by a preponderance of the evidence,
can rely on evidence used in setting forth her prima facie

Id. ‘‘A showing that

similarly situated employees
belonging to a different . . . group received more
favorable treatment can also serve as evidence that the
employer’s proffered legitimate, [nondiscriminatory]
reason for the adverse job action was a pretext for
discrimination.’’ Graham v. Long Island Rail 



230 F.3d 43

   The plaintiff here presents two insufficient reasons
to support her claim that the defendant’s reason for
her termination is pretextual: (1) the plaintiff made far
less than her fellow male employees; and (2) Simons’
characterization of his employment relationship with
the plaintiff is different in his deposition than his testi-
mony in another civil action involving the defendant.
   First, the plaintiff argues that she made far less than
her male counterparts. Based on the deposition testi-
mony, Lauer made around $125,000 in addition to com-
mission in 2016, Monahan made between $100,000 to
$115,000, and the plaintiff made between $88,000 to
$92,000. As discussed above, the plaintiff was not a
salesperson, nor was she a project manager; therefore,
it may be both expected and reasonable that her pay
would be different from these other employees. Simply
because they all worked on the data delivery team does
not mean, as the plaintiff insists, that their pay should
be similar to her pay, particularly when their job
descriptions differed, as previously discussed. There-
fore, the fact that the plaintiff was paid less than these
male employees does not show that the defendant’s
reason for the plaintiff’s termination is pretextual.
  Second, the plaintiff contends that the pretextual
nature of the defendant’s reason for her termination
can be found in Simons’ differing explanations for her
termination. However, a careful review of his testimony,
even in the light most favorable to the plaintiff, does
not establish any factual basis to support this claim.
  In Simons’ deposition, he consistently states that the
reason for the plaintiff’s termination was due to the
business doing poorly and a restructuring of the data
delivery team. He also characterizes his relationship
with the plaintiff as being good in the beginning of her
employment, but [that it] then turned negative after she
moved to New Hampshire in 2011. He explains that he
ignored or tolerated the plaintiff’s negative behavior in
the workplace because she worked hard and did an
overall good job. The plaintiff contends that, in Simons’
testimony in a separate civil case, he states that the
reason for the termination was due to her behavior.2
The court can find no bona fide factual basis for this
contention. In his trial testimony, Simons again states
that the cause of the plaintiff’s termination was due to a
change in business. He also testifies that his relationship
with the plaintiff became negative after she moved to
New Hampshire. His entire trial testimony about the
plaintiff is consistent with his deposition testimony.
Even on a motion for summary judgment, the plaintiff
must present some factual basis to support her claims
and cannot rely solely on naked claims or arguments
unsupported by any actual evidence or at least some
evidence from which reasonable, supportive inferences
may be made. The plaintiff has failed to make this show-
ing here and, in turn, has failed to show that there is
any genuine issue of material fact regarding whether
the defendant’s explanation for her termination is pre-
  The second count of the plaintiff’s complaint alleges
that the defendant terminated her in retaliation for her
complaining about the gender discrimination in the
workplace and the pay disparity between men and
women at the company. The defendant essentially
argues that the plaintiff’s retaliation claim fails as a
matter of law because of the long period of time
between her complaints and her termination. In
response, the plaintiff contends that the defendant’s
argument raises material issues of disputed facts which
cannot be resolved on motion. The court agrees with
the defendant.
   ‘‘Federal and state law retaliation claims are reviewed
under the burden-shifting approach of McDonnell Doug-
las [Corp.] . . . .’’ Kwan v. Andalex Group LLC, 

F.3d 834

, 843 (2d Cir. 2013). The plaintiff must first
establish a prima facie case of retaliation. ‘‘To establish
a prima facie case of retaliation, an employee must
show (1) the employee was engaged in protected activ-
ity; (2) the employer was aware of that activity; (3) the
employee suffered an adverse employment action; and
(4) there was a causal connection between the pro-
tected activity and the adverse employment action.’’
(Internal quotation marks omitted.) Samakaab v. Dept.
of Social Services, Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX-S (March 10, 2016)
(reprinted at 

170 Conn. App. 54

, 62, 

173 A.3d 1007


178 Conn. App. 52


173 A.3d 1004

   ‘‘Once a prima facie case of retaliation is established,
the burden of production shifts to the employer to dem-
onstrate that a legitimate, [nondiscriminatory] reason
existed for its action. . . . If the employer demon-
strates a legitimate, nondiscriminatory reason, then
[t]he burden shifts . . . back to the plaintiff to estab-
lish, through either direct or circumstantial evidence,
that the employer’s action was, in fact, motivated by
discriminatory retaliation.’’ (Citation omitted; internal
quotation marks omitted.) Summa v. Hofstra Univer-

708 F.3d 115

, 125 (2d Cir. 2013).
   In the present case, the plaintiff’s claim for retaliation
is based on her asking for a pay increase after dis-
covering that some male employees made more money
than she did at the defendant. The defendant argues
that the only prong of the prima facie case for retaliation
that is at issue is the fourth prong where the plaintiff
has to prove a causal connection between the protected
activity and the adverse employment action. The follow-
ing additional information is necessary for the determi-
nation of the retaliation claim.
   The plaintiff first spoke to Simons about a pay raise
to match her male counterparts in late 2015. Simons at
that time stated that he would look at the salaries of
the data delivery team to see if anything needed to be
adjusted. The plaintiff later brought up raising her salary
in April of 2016. The plaintiff was terminated in October
of 2016. Between the last time the plaintiff spoke to
Simons about her salary and her termination there was
a round of layoffs in June of 2016. Six months passed
between the last time the plaintiff spoke to Simons
about her salary and when she was terminated, and
about a year passed between when she spoke to Simons
about the pay differences and her termination.
  The plaintiff argues that the six months between
when she spoke to Simons about her salary and when
she was terminated are sufficient to establish causation
and to establish a prima facie case of retaliation. ‘‘[T]he
temporal proximity between [the] two events as circum-
stantial evidence of causation . . . standing alone, is
insufficient.’’ Dixon v. International Federation of

416 Fed. Appx. 107

, 110 (2d Cir. 2011).
‘‘Moreover, Second Circuit precedent makes clear that
the relevance of temporal proximity to the question of
whether there is a causal nexus between a plaintiff’s
protected activity and the defendant’s allegedly retalia-
tory action will depend on the facts and circumstances
of each particular case.’’ (Internal quotation marks
omitted.) Bryant v. Greater New Haven Transit Dis-

8 F. Supp. 3d 115

, 133 (D. Conn. 2014). The United
States Supreme Court has stated that the two events
must be ‘‘ ‘very close’ ’’ and that a proximity of three
months or more is insufficient where the court is solely
relying on temporal proximity. Clark County School
District v. Breeden, 

532 U.S. 268

, 273, 

121 S. Ct. 1508


149 L. Ed. 2d 509

(2001). Therefore, on the basis of this
precedent, the plaintiff has not established a prima facie
case for retaliation, so the burden does not shift to the
defendant. Because there is no genuine issue of material
fact on whether the plaintiff has established a prima
facie case of retaliation, the defendant’s motion for
summary judgment as to the plaintiff’s retaliation claim
must be granted.
 For these reasons, the defendant’s motion for sum-
mary judgment is granted.
  * Affirmed. Luth v. OEM Controls, Inc., 203 Conn. App.            ,      A.3d
    As another example, the plaintiff was also asked whether Luke Manney,
another male sales employee who was receiving commissions for sales, had
essentially the same role that she did, to which she replied, ‘‘[n]o, the same
as supposedly [Lauer].’’ Defendant’s Motion for Summary Judgment, exhibit
A, Plaintiff’s Deposition, 77:5–9. The answer to this question also indicates
that the plaintiff had a different role than Lauer.
    The plaintiff attaches the full testimony of Simons at this trial to her
supplemental objection to the defendant’s motion for summary judgment

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