Percoco v. Lowe's Home Centers, LLC

208 F. Supp. 3d 437, 2016 U.S. Dist. LEXIS 129366, 2016 WL 5339569
CourtDistrict Court, D. Connecticut
DecidedSeptember 22, 2016
DocketCIVIL CASE NUMBER: 3:14-cv-01122-VLB
StatusPublished
Cited by10 cases

This text of 208 F. Supp. 3d 437 (Percoco v. Lowe's Home Centers, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Percoco v. Lowe's Home Centers, LLC, 208 F. Supp. 3d 437, 2016 U.S. Dist. LEXIS 129366, 2016 WL 5339569 (D. Conn. 2016).

Opinion

MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Vanessa L. Bryant, United States District Judge

Plaintiff Vivian Percoco brings this employment discrimination action against her former employer, Defendant Lowe’s Home Centers, LLC. She raises claims for race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. GemStat. § 46a-60 et seq.-, claims for age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and CFEPA; and claims for interference and retaliation in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.1 Defendant moves for summary judgment on all claims. The Court grants the motion and enters judgment in favor of Defendant.

Background

The following facts, which are undisputed unless otherwise noted, are drawn from the record.2 Plaintiff is Hispanic, is of Puerto Rican descent, and was over the age of forty at all relevant times. ECF Nos. 1 (Compl.) at ¶ 16; 37 (Answer) at ¶ 16; see 42-9 (PI. Depo.) at 129:16-21. Plaintiff worked as the Human Resources Manager for Defendant’s Danbury store from 2006 until 2013. ECF Nos. 1 (Compl.) [441]*441at ¶¶ 15, 19, 39; 37 (Answer) at ¶¶ 15, 19, 39; 42-10 (Jewell Depo.) at 12:15-19. Her immediate supervisor in 2013 was Area Human Resources Manager Svetlana Jewell née Baranova, who is neither Hispanic, Puerto Rican, nor over the age of forty. ECF Nos. 1 (Compl.) at 1121; 37 (Answer) at ¶ 21; 42-10 (Jewell Depo.) at 5:15-20. Jewell’s immediate supervisor was Human Resources Director Luis Rivera, who is Hispanic, is of Puerto Rican descent, and was over the age of forty in 2013. ECF No. 42-2 (Rivera Aff.) at ¶¶ 2-3, 5. Members of the Human Resources Department, including Plaintiff, are not trained to investigate complaints of gender discrimination and harassment. ECF No. 42-10 (Jewell Depo.) at 30:8-18, 35:3-9. Given the potential for legal liability, Defendant’s Employee Relation Department are specifically trained to investigate these claims. Id. at 35:10-18.

On March 31, 2013, Plaintiff sustained face and chest injuries from a car accident. ECF No. 42-9 (PI. Depo.) at 13:2-20. That night, she informed the night manager of Defendant’s Danbury store that the car accident prevented her from coming to work the following week. Id. at 15:13-16:10. A few days later, Plaintiff also informed Jewell, and Jewell told Plaintiff “to take it easy and just keep in contact with [Plaintiffs] coordinator.” Id. at 16:11-25. Plaintiff used four paid sick days, id. at 17:22-18:8; ECF No. 42-10 (Jewell Depo.) at 10:9-14, and never received nor requested any type of FMLA documentation, ECF No. 42-9 (PL Depo.) at 18-21. Plaintiff returned to work on Monday, April 8, 2013. Id. at 13:24-14:9.

The Friday evening before Plaintiffs return, Kayla Fleming, a store employee, emailed Store Manager Angelo Resso and Plaintiff. ECF No. 42-5 (Email). Fleming’s email states, in relevant part, that “[Manager Samir Feratovic] told me on multiple occasions that because he is a man and we are women that men are superior to women in every way therefore he is above me.” Id. When Plaintiff returned to work the following Monday, Resso informed Plaintiff that a number of employees including Fleming had submitted written statements concerning sexual harassment, but Resso did not provide any specific details. ECF No. 42-9 (PI. Depo.) at 19:4-20:2. Plaintiff read Fleming’s email that Monday afternoon, id. at 22:5-7, and the following day Resso provided Plaintiff with the three written complaints, id. at 20:10-12. The complainants alleged that Feratovic had made statements that he does not listen to women, that woman are beneath him, and that men are superior to women. ECF Nos. 6-8 (Written Statements). Lisa LeB-reque, a store employee, also complained to Plaintiff, but the parties dispute whether this occurred on Monday or Tuesday. ECF No. 42-9 (PI. Depo.) at 25:9-13.

On Tuesday, April 9, 2013, Plaintiff spoke with Feratovic, ECF No. 42-9 (PI. Depo.) at 34:2-5, but the parties dispute whether Plaintiff took a written statement from Feratovic, compare id. at 105:9-15, with ECF No. 42-10 (Jewell Depo.) at 81:2-6 (“Percoco had explicitly stated ... that she did not collect a statement from [Feratovic].”). Feratovic admitted that the complaints were accurate. ECF No. 42-9 (PI. Depo.) at 35:5-10. He further stated that he should not joke that way because women are “mostly emotional and sensitive.” Id. at 44:6-7. Plaintiff believed that Feratovic was just “joking around.” Id. at 45:12-15. Plaintiff also thought that she “stopped the behavior” by telling Feratovic that he “couldn’t really be friendly with his subordinates,” id. at 35:17-22, 112:18-20, and she blamed the incident on Feratovic’s national origin, id. at 31:25-32:1 (“[l]t’s his personality. I’m just saying that’s German.”). But on April 13, one of the complainants informed Plaintiff that Feratovic [442]*442retaliated against her. ECF No. 42-9 (PI. Depo.) at 125:17-21.

Plaintiff informed Jewell of the complaints of gender discrimination a week after Plaintiff first learned of them. ECF No. 42-9 (PI. Depo.) at 105:20-22. On the following day, Jewell told Rivera because members of the Employee Relation Department, not the Human Resources Department, are specifically trained to and charged with investigating claims of gender discrimination and harassment. ECF No. 42-10 (Jewell Depo.) at 30:8-18, 35:3-9; 35:10-18. In light of the problems caused by Plaintiffs unsupervised investigation, Rivera ordered Jewell to look into the issue, and Jewell learned that one of the complainants intended to call Defendant’s hotline because the claims of discrimination went unabated. Id. at 37:21-38:7.

Rivera also tasked Jewell with ascertaining why Plaintiff waited to immediately report the incident after returning to work, as Plaintiff was required to do, and Plaintiff said she believed that she had addressed the complaints herself. ECF No. 42-10 (Jewell Depo.) at 31:14-32:25. Rivera then decided to terminate Plaintiffs employment for failing to immediately report the incident, and Jewell agreed. Id. at 74:22-75:8. On April 25, 2013, Jewell informed Plaintiff that she was being fired because she failed to promptly notify Jewell of the complaints of gender discrimination after Plaintiff learned .of those complaints when she returned to work. ECF No. 42-9 (PI. Depo.) at 117:3-17. Defendant replaced Plaintiff with a female employee who was over the age of forty, but the record does not demonstrate whether the replacement was younger, Hispanic, or Puerto Rican. ECF No. 42-10 (Jewell Depo.) at 44:7-45:10. Defendant concedes that the replacement was neither Hispanic nor Puerto Rican. ECF No. 42-1 (Mem.) at 11.

Plaintiff believes that the failure to discharge Resso shows race, national origin, and age discrimination, as well as FMLA retaliation. ECF No. 42-9 (PI- Deop.) at 131:1-5.

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208 F. Supp. 3d 437, 2016 U.S. Dist. LEXIS 129366, 2016 WL 5339569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/percoco-v-lowes-home-centers-llc-ctd-2016.