Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT LYNN B. KANIOS Plaintiff, V. UST, INC. and MARK ULIASZ Defendants. : : : : : : : : : CIVIL ACTION NO.: 303 CV 369 (DJS)

JULY 12, 2004

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT Plaintiff Lynn B. Kanios submits this brief in opposition to defendants' Motion for Summary Judgment dated May 21, 2004 (hereinafter "Defendants' Motion"). As more fully set forth below, defendants' have misstated and skewed both the facts and, in many instances, the applicable law in an effort to wrongly deprive plaintiff of her day in court. For example, in its memorandum in support of its Motion (hereinafter "Defendants' Memo"), defendants inconsistently address the topic of plaintiff's complaints of discrimination. Not only are defendants inconsistent in their own recitation of operative facts, their versions lie in stark contrast to plaintiff's sworn testimony and defendants' own documents, resulting in a myriad of disputed issues of material fact, any one of which provides an adequate basis to deny defendants' Motion for Summary Judgment. STATEMENT OF FACTS Defendant UST is a company headquartered in Greenwich, Connecticut and is in the primary business of manufacturing smokeless tobacco products. (Defendants' Memo at 2; D.Ex.1 K ¶2; Def. Ex. EE.) Plaintiff began her employment with UST on March 6, 1995 as a Support Staff Secretary in the Employee Relations Department ("Human Resources") reporting to Rose Wilder and David
"D.Ex. ___" shall refer to defendants' appendix of exhibits filed with their Motion for Summary Judgment; "P.Ex. ___" shall refer to plaintiff's appendix of exhibits filed herewith.
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Turner, a supervisor with defendant UST's Human Resources department and a manager in UST's purchasing department, respectively. (D.Ex. K ¶7; Deposition of Lynn B. Kanios taken August 28, 2003 (hereinafter "Kanios Depo.") at 49-50, 57-58, 72-73 (P.Ex. 1); P.Ex. 2.) On or around August 21, 1995, plaintiff received a promotion incident to which she received approximately a 6% pay raise. (P.Ex. 2.) Again on August 5, 1996, plaintiff received a merit increase in salary of approximately 4%. (P.Ex. 2.) On or around April 29, 1997, plaintiff was again promoted, this time into the Purchasing Department where she became the Senior Data Coordinator reporting to Mr. Turner. (P.Ex. 3; P.Ex. 2; Kanios Depo. At 49-50, 57-58 (P.Ex. 1).) Incident to this promotion, plaintiff received a 10.6% percent increase in salary. (P.Ex. 2.) Soon thereafter, on or about July 21, 1997, at the behest of Mr. Turner, plaintiff again received a pay raise and was promoted within the purchasing department into the position of Associate Buyer.2 (P.Ex. 3; P.Ex. 2.) By the admission of Nella Viesta, defendant UST's Director of Human Resources, plaintiff rose quickly through the ranks and was very successful. (Deposition of Nella Viesta taken January 7, 2004 (hereinafter "Viesta Depo.") at 14-21 (P.Ex. 4).) After her July 1997 promotion, plaintiff began reporting to defendant Mark Uliasz, another of UST's purchasing managers. (P.Ex. 2; Kanios Depo at 49-50, 56-59, 72-73 (P.Ex. 1); deposition of Mark Uliasz taken March 15, 2004 (hereinafter "Uliasz Depo.") at 74 (P.Ex. 5).) Uliasz engaged in unremitting harassment of plaintiff up to the date of her termination on or around April 13, 2001. (Kanios Depo. At 59-64, 97-98, 102-103, 109, 140-141, 246-247, 253-254 (P.Ex. 1); D.Ex. T; D.Ex. W; D.Ex. K ¶27.) Examples of Uliasz's behavior include, inter alia, the following: (1) calling plaintiff a "fat bitch"; (2) telling plaintiff that "it was a good thing [she] wasn't married, because nobody would want [her] the way [she] was looking"; (3) telling plaintiff that "women should be barefoot and pregnant"; (4) stating that plaintiff wasn't "nice looking enough"; (5) stating that
The "main objective" of plaintiff's position as an Associate Buyer was to support the administrative needs of the buying group. (D.Ex. V; Kanios Depo. At 187-201 (P.Ex. 1).)
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plaintiff wasn't "sexy enough to be back out on the market"; (6) that plaintiff "hadn't seen the inside of a gym ever"; (7) that "women belong in the home"; (8) that women were too "emotional," referring to his animus toward women in the workplace; (9) telling plaintiff she couldn't "fit through the door," referring to her size despite his knowledge of her two recent pregnancies; (10) telling plaintiff she should use "a feed bag," referring to plaintiff as an animal when she eats; and (11) keeping a jar of pennies in the office labeled plaintiff's "education fund." Uliasz's unlawful conduct reached its nadir when he pushed plaintiff scoffing "get out of my way." (Kanios Depo. at 59-64, 121 140-141, 246-247, 253-254; D.Ex. T; D.Ex. W; Ex. K ¶27; deposition of Robert G. Rentz taken December 18, 2003 (hereinafter "Rentz Depo.") at 43-45 (P.Ex. 6).) In late January 2001, Christine Walsh, plaintiff's coworker, realizing the gravity of the harassment befalling plaintiff, complained about Uliasz's unlawful conduct to Robert Rentz, a Compliance Representative3 charged with, inter alia, receiving complaints of unlawful conduct and assisting the Compliance Committee4 with the implementation of UST's Code of Corporate Responsibility, a mandatory code controlling conduct in defendants' workplace. (Deposition of Richard Kohlberger taken March 24, 2004 (hereinafter "Kohlberger Depo.") at 16-17 (P.Ex. 8); Rentz Depo. at 21-22, 42-43 (P.Ex. 6); Kanios Depo. at 78-80, 116-17 (P.Ex. 1); D.Ex. K ¶16; Pl. Ex. 7). Soon thereafter, Rentz met with plaintiff in order to discuss all her complaints of harassment, including being called a "fat bitch," as well as her fears of retaliation. (Rentz Depo. at 42-45 (P.Ex. 6); Kanios Depo. at 82, 117, 120-121 (P.Ex. 1).) Rentz immediately deemed Uliasz's conduct to "define harassment in the workplace" and reported these complaints to Viesta as well as UST's Legal Department. (Rentz Depo. at 44-45, 47-48, 50-51 (P.Ex. 6).)
Compliance Representatives, among other things, assist the Compliance Committee in its oversight and implementation of UST's compliance program, including compliance with the Code of Corporate Responsibility and Code Policy Statements. Compliance representatives also serve as an individual to whom employees and other agents can report violations by others within the organization without fear or retribution, and to take action on such reports as directed by the Compliance Committee. (P.Ex. 7.) 4 The Compliance Committee is charged with, among other things, the duty to detect and ensure that all reasonable steps are taken in response to an offense and to prevent further similar offenses. (P.Ex. 7.)
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Despite plaintiff's complaints of unlawful harassment, UST made no attempt to investigate, let alone apply corrective measures. (Rentz Depo. at 44-45, 47-48, 50-51 (P.Ex. 7); Viesta Depo. at 36-37, 44-45 (P.Ex.4).) While Rentz testified he brought directly toViesta's attention all of plaintiff's complaints of discrimination and sexual harassment, Viesta, inconsistent with her own notes, testified at her deposition and submitted in a sworn affidavit to the CHRO that Rentz told her of but one complaint regarding Uliasz's "managerial style." (P.Ex. 9 ¶6; Defendants' statement of undisputed facts No. 26.) Rentz testified, contrary to Viesta's affidavit, that the complaints were "serious" and that he informed Viesta and the Legal Department of these facts. Viesta made no investigation into these claims. (Rentz Depo. at 44-45, 47-48, 50-51 (P.Ex. 6); Viesta Depo. at 36-37, 44-45 (P.Ex. 4).) In fact, despite Rentz's testimony and her own notes regarding plaintiff's complaints, Viesta justifies her inaction by claiming that she had absolutely no knowledge of plaintiff's complaints of harassment. (Viesta Depo. at 36-38, 44-45 (P.Ex. 4); P.Ex. 9.) In addition, Viesta's statements regarding plaintiff's complaints and her response to those complaints are inconsistent. For example, Viesta on one hand states that she did investigate plaintiff's complaint yet "determined it was not harassment" while on the other hand claims she "did not investigate harassment" because "there was no need to." (Viesta Depo. at 36-37, 44-45 (P.Ex. 4); P.Ex. 9.) In addition, Viesta admits that she was aware that plaintiff herself complained to Rentz, yet states that plaintiff "never formally lodged" a complaint. (Viesta Depo. at 53-54 (P.Ex. 4); P.Ex. 9.) Furthermore, Viesta states that she never personally spoke to Rentz regarding the complaints plaintiff reported to him; yet she then admits that Rentz, after meeting with plaintiff, followed up with her to advise her that plaintiff would be coming in to see her. (Rentz Depo. at 50-51 (P.Ex. 6); Viesta Depo. at 64-65 (P.Ex. 4); Defendants' statement of undisputed facts No. 26.) In fact, she later testified that she directed Rentz to stop speaking with plaintiff entirely so as to prevent him from providing plaintiff with "counsel" and "suggestions." (Viesta Depo. at 95-96 (P.Ex. 4).) Ironically, despite her admitted failure to enforce UST's policies geared at curing unlawful conduct, Viesta claims in her

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sworn statement: "UST maintains and strongly enforces strict and clear written policies prohibiting discrimination on the basis of, inter alia, an individual's sex and prohibiting any form of unlawful harassment, including sexual harassment." (P.Ex. 9 ¶4.) Despite her professed lack of knowledge, on February 7, 2001, soon after plaintiff's meeting with Rentz, Viesta met with plaintiff to discuss plaintiff's complaints. (Kanios Depo. at 97-98, 103104, 108-110, 148-152, 169-170 247 (P.Ex. 1); Viesta Depo. at 62-63, 72-73, 78,79,80,81, 83,84 (P.Ex. 4); D.Ex. P at DO668-669.) By that time, Viesta had clearly been made aware by Rentz and the Legal Department that plaintiff had lodged a "formal" complaint. (Rentz Depo. at 50-51 (P.Ex. 6); Viesta Depo. at 41-44, 62-63 (P.Ex. 4).) Plaintiff stated to Viesta during this meeting that she feared retaliation and that she did not want to meet with Uliasz. (Kanios Depo. at 102-103, 122-123 (P.Ex. 1); D.Ex. P at DO668-669.) Viesta promised plaintiff that she would not have to meet Uliasz alone, but at some point she would have to meet the person she was accusing of harassment as that was "company policy." (Kanios Depo. at 123 (P.Ex. 1); D.Ex. at DO668-669.) Despite Viesta's claim of lack of knowledge, plaintiff testified she reiterated her complaints to Viesta of Uliasz's harassing comments and detailed how Uliasz pushed her scoffing "out of my way." (Viesta Depo. at 62-63, 72-73 (P.Ex. 4); D.Ex. P at DO668-669; Kanios Depo. at 148-152 (P.Ex. 1).) Plaintiff testified she told Viesta, inter alia, that Uliasz: (1) discriminated against her because of her sex; (2) made comments about plaintiff "being barefoot and pregnant," referring to his animus towards women in the workplace and his sex based harassment of plaintiff; (3) made comments about plaintiff being a woman needing to be at home with her kids, again referring to his animus towards women in the workplace and his sex based harassment of plaintiff; and (4) comments that plaintiff, because she was a woman, was too emotional. (Kanios Depo. at 97-98, 103-104, 108110, 148-152, 169-170, 247 (P.Ex. 1); Viesta Depo. at 62-63, 72-73, 79 (P.Ex. 4); D.Ex. P at DO668669.) Plaintiff made it clear to Viesta that these comments toward plaintiff were made repeatedly. (Kanios Depo. at 148-152 (P.Ex. 1); D.Ex. P at DO668-669.) Viesta's own notes which reflect her

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meeting with plaintiff regarding plaintiff's complaints of sex discrimination recorded, inter alia, that plaintiff complained that Uliasz made inappropriate comments about her weight, intelligence, and appearance. (D.Ex. P at DO668-669; Viesta Depo. at 62-63, 72-73, 79 (P.Ex. 4).) Viesta also recorded some of these comments made while plaintiff was pregnant. (D.Ex. P at DO668-669; Viesta Depo. at 62-63, 72-73, 79 (P.Ex. 4).) Again, Viesta, inconsistent with her own notes and plaintiff's testimony, submitted a sworn affidavit to the CHRO stating plaintiff "at no time during her employment...complain[ed] or otherwise suggest[ed] to [Viesta] or any member of management that [Plaintiff] was being sexually harassed or otherwise being treated differently on account of her sex." (D.Ex. P at DO668-669; Viesta Depo. 62-63, 72-73, 79 (P.Ex. 4); Kanios Depo. at 97-98, 103-104, 108-110, 148-152, 169170, 247 (P.Ex. 1); P.Ex. 9 ¶4.) Moreover, Viesta's notes reflect that plaintiff was physically moved as if "she didn't matter," with Uliasz stating "out my way." (D.Ex. P D0668-669; Viesta Depo. at 7273, 79 (P.Ex. 4).) Nevertheless, despite all she had learned thus far, Viesta maintains and defendants assert in their brief that there is no evidence nor complaint of sexual "harassment." (Viesta Depo. at 90 (P.Ex. 4); P.Ex. 9 ¶4; Defendants' Memo at 4.) As of February 7, 2001, the date of the meeting between Viesta and plaintiff, plaintiff's supervisor, Uliasz, had created a positive performance review which had been shared with his supervisor Tim Howard. (Deposition of Timothy G. Howard taken March 29, 2004 (hereinafter "Howard Depo.") at 26-29 (P.Ex. 10); D.Ex. V.) The next morning, on February 8, 2001, Viesta met with Uliasz and informed him of plaintiff's complaints. (Rentz Depo. at 43-45, 50-51 (P.Ex. 6); D.Ex. P at. DO667, DO670; Viesta depo. at 83, 84 (P.Ex. 4).) At this meeting, Uliasz admitted to being "condescending" toward plaintiff. (D.Ex. P at DO670; Viesta Depo. at 83, 84 (P.Ex. 4).) Uliasz then met with plaintiff and tendered to her the review. (Kanios Depo. at 124 (P.Ex. 1).) Uliasz did not change the review at this time, as plaintiff's performance had already been discussed between Howard and he, and they both on February 7, 2001 authorized her salary increase incident to

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approving her positive review. (Howard Depo. at 26-29 (P.Ex. 10); P.Ex. 2); Kanios Depo. at 127128 (P.Ex. 1).) Moreover, plaintiff testified that during this meeting, Uliasz informed her that he "just" had a meeting with Viesta and that "he was very upset" that she went to human resources. (Kanios Depo. at 124 (P.Ex. 1); Uliasz Depo. at 70 (P.Ex. 5).) Soon after, Viesta met with Howard to inform him of plaintiff's complaints. (Viesta Depo. at 88-89 (P.Ex. 4); Howard Depo. at 30-37 (P.Ex. 10).) Then on February 16, 2001, Howard having been instructed by Human Resources to "put this to bed," referring to plaintiff's complaints, met with plaintiff and attempted to set up a meeting between Uliasz, plaintiff and himself. (Kanios Depo. at 130-131 (P.Ex. 1); D.Ex. W; D.Ex. P at DO671-DO672; Viesta Depo. at 98, 102-103 (P.Ex. 4); P.Ex. 11; Howard Depo. at 46-48 (P.Ex. 10).) Within a few minutes of this meeting, plaintiff became visibly "upset" and ended the meeting crying, making it clear to Howard that she "was not emotionally ready" and did not want to meet with Uliasz. (Howard Depo. at 46-48 (P.Ex. 10); Kanios Depo. at 130-131 (P.Ex. 1).) Still visibly upset, plaintiff went to the Vice President of UST's Employee Assistance Program ("EAP"), Karen Thorman, and complained to her and Mary Ann Morelli, defendant UST's manager of the Employee Assistance Program, that Uliasz had made sexist and derogatory remarks about her weight and appearance. (P.Ex. 11; Deposition of Karen Thorman taken March 29, 2004 (hereinafter "Thorman Depo.") at 12-17 (P.Ex. 12); Kanios Depo. at 132 (P.Ex. 1).) Moreover, plaintiff explained that Howard told her that she must meet with Uliasz however she was uncomfortable in doing so. (P.Ex. 11; Thorman Depo. at 12-17 (P.Ex. 12); Kanios Depo. at 132 (P.Ex. 1).) Thorman, recognizing the urgency of the situation, interrupted Viesta from a meeting and made it clear to Viesta that plaintiff was extremely agitated and did not want to meet with Uliasz or Howard. (Viesta Depo. at 94-96 (P.Ex. 4); D.Ex. P at D0671.) Viesta at that point told Thorman that she was "aware of it." (Thorman Depo. at 17 (P.Ex. 12).) Thorman then sent plaintiff home from work. (Viesta Depo. at 94-96 (P.Ex.

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12); D.Ex. P at D0671.) Plaintiff was assured by EAP that she did not have to confront Uliasz alone. (Kanios Depo. at 126 (P.Ex. 1).) Nevertheless, on February 20,, 2001, Howard and Uliasz, both aware that plaintiff did not want to meet, duped plaintiff into meeting. (D.Ex. P at DO671-DO672; Viesta Depo. at 98-99, 102103 (P.Ex. 4); D.Ex. W.) Although, Viesta was well aware that plaintiff did not wish to meet with Uliasz and Howard, she nevertheless did absolutely nothing to prevent Uliasz and Howard from pressuring plaintiff. (Viesta Depo. at 98-100, 102-103 (P.Ex. 4); Complaint ¶17 (D.Ex. K); D.Ex. P at DO671.) At this meeting, plaintiff was extremely uncomfortable and did not speak. (D.Ex. P at DO671-DO672, DO6724; Viesta Depo. at 102-103 (P.Ex. 4); D.Ex. W.) After the meeting, plaintiff complained to Viesta that Howard and Uliasz had created a "two against one" atmosphere and were trying to undermine her complaints of discrimination by creating false performance issues. (D.Ex. P at DO674; Viesta Depo. at 104-105 (P.Ex. 4).) After the February 20, 2001 meeting with Uliasz and Howard, plaintiff contacted an attorney who wrote a letter to the Senior Vice President of UST, Richard Kolhberger (Kanios Depo. at 134135 (P.Ex. 1); D.Ex. W.) On February 21, 2001, Kohlberger received the letter from plaintiff's attorney specifically claiming, among other things, sexual harassment. (D.Ex. W.5) Kohlberger, although the person responsible for overseeing all complaints of discrimination, decided not to take any action himself and passed plaintiff's attorney's letter to Viesta, the same person who still maintains that plaintiff at no time complained of sex harassment. (P.Ex. 9; D.Ex. P at DO675-676; Viesta Depo. at 106 (P.Ex. 4); Kohlberger Depo. at 13-16, 37-43 (P.Ex. 8).) Plaintiff's attorney makes it clear in his letter that he is to be present if UST meets with plaintiff to discuss her complaints regarding Uliasz. (D.Ex. W.) Despite plaintiff's attorney's request, a

This letter explicitly claims sexual harassment in violation of both the Connecticut Fair Employment Practices Act and Title VII of the Civil Rights Act of 1964. (D.Ex. W.)

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subsequent meeting involving only plaintiff, Viesta, Howard and Uliasz was scheduled. (D.Ex. W; D.Ex. P at DO677; D.Ex. X.) On February 27, 2001, this meeting was conducted. (D.Ex. EE at DO390; D.Ex. X.) A written synopsis of this meeting reflects a discussion not about plaintiff's complaints of discrimination, but instead of her theretofore undisclosed "performance issues" despite plaintiff's receipt, approximately 20 days prior to this meeting, of a positive performance review with no reference of these issues. (D.Ex. X; D.Ex. V; D.Ex. P. at DO674.) Moreover, Viesta, although having written in her notes that plaintiff complained that Howard and Uliasz were trying to use this meeting to convert her complaints into performance issues, denies even discussing this point with plaintiff. (Viesta Depo. at 178-179 (P.Ex. 4); D.Ex. P at DO674.) Plaintiff then called her attorney and informed him of what had occurred, specifically stating that she disagreed with the outcome of this meeting. (Kanios Depo. at 144-145 (P.Ex. 1).) Despite plaintiff's numerous complaints reported to various members of UST's management, Uliasz's harassment continued unabated. (D.Ex. W; D.Ex. DD; Kanios Depo. at 59-64, 121, 140-141, 246-247, 253-254 (P.Ex. 1); D.Ex. T; D.Ex. W; D.Ex. K ¶27; Rentz Depo. at 43-45 (P.Ex. 6); Kohlberger Depo. at 37-43 (P.Ex. 8).) Plaintiff testified that Uliasz continued to make comments about her appearance and eating. (Kanios Depo. at 140-141 (P.Ex. 1).) Although plaintiff had been receiving treatment6 for the emotional distress she suffered at the hands of Uliasz, on March 19, 2001 plaintiff could withstand no more. (Kanios Depo. at 338 (P.Ex. 1); D.Ex. P at DO678; Viesta Depo. at 120-121 (P.Ex. 4).) Plaintiff, visibly shaking and suffering from a panic attack related to Uliasz's abuse, was sent by Viesta to plaintiff's doctor for immediate treatment. (D.Ex. P at DO678; Viesta Depo. at 120-121 (P.Ex. 4); Hankin Notes (P.Ex. 26);
Plaintiff met with Drs. Hankin and Trencher, physicians EAP refers UST employees to for treatment of mental issues, regarding her physical and emotional difficulties related to Uliasz's abuse. (Kanios Depo. at 338 (P.Ex. 1); Hankin Notes (P.Ex. 26); Thorman Depo. at 3, 14 (P.Ex. 12); Deposition of Lisa Trencher taken March 22, 2004 (hereinafter "Trencher Depo.") at 16 (P.Ex. 13).)
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deposition of Jane Hankin, M.D. taken March 30, 2004 (hereinafter "Hankin Depo.") at 83 (P.Ex. 14).) More importantly, due to plaintiff's "suicidal ideation," "serious distress," and her doctor's concern over plaintiff remaining in Uliasz's department, plaintiff was placed on Family Medical Leave on March 20, 2001. (Hankin Depo. at 74-76, 83, 86, 91 (P.Ex. 14); Trencher Depo. at 17-18 (P.Ex. 13); Thorman Depo. at 29 (P.Ex. 12); Kanios Depo. at 220-221 (P.Ex. 1); Viesta at 128-129 (P.Ex. 4); P.Ex. 15.) In fact, Viesta informed plaintiff that she had "three and a half weeks left of FMLA."7 (Viesta Depo. at 128-129 (P.Ex. 4); D.Ex. P at DO679.) Plaintiff was tendered documents specifically stating she was eligible for the federal leave. (P.Ex. 16.) On March 21, 2001, immediately following the commencement of plaintiff's Family Medical Leave, plaintiff's attorney sent a second letter to Kohlberger again reiterating plaintiff's claims of sexual harassment and addressing UST's deliberate attempts to stifle plaintiff's rights.8 (D.Ex. DD; Kohlberger Depo. at 37-43 (P.Ex. 8); D.Ex. P at DO679, DO682-DO683.) Again, despite this second letter from plaintiff's attorney, Kohlberger did no investigation of his own and again passed the letter to Viesta. (Kohlberger Depo. at 37-43 (P.Ex. 8).) Viesta, upon receipt of this letter on March 21,
Note also that one day prior to the date of plaintiff's termination letter, her family medical leave documents were being processed. (P.Ex. W.)
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This letter in pertinent part read: "The meeting that was held with [Plaintiff] occurred on February 27, 2001. I am not certain if the meeting was simply conducted by a representative who did not understand the issues, and their importance, or if the meeting reflected a deliberate corporate decision to attempt to deny and cover up the claims made by [plaintiff]. In either event, if you review the draft memorandum describing the meeting...you will see the clear attempt to characterize the claims made by [plaintiff] as performance issues. Nothing could be further from the case. What was at issue was long term, mean-spirited, sexual harassment of [plaintiff] by her supervisor, Mr. Uliasz. What was also at issue was the manger's (Mr. Howard) effort to cover up the abuse, and to coerce [plaintiff] into silence. Yet those issues are never mentioned in the memorandum. ...severe emotional reactions have developed since Mr. Uliasz's battery of [plaintiff]. Incredibly, in the middle of a panic attack on Monday, UST's human resource representative, Nella Viesta, badgered [plaintiff] about what she was going to do when she returned from her leave, telling her that she would have to return to purchasing, because there was no other positions available. I cannot conceive of a better way to make a difficult situation worse."

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2001, again did no investigation of her own. (D.Ex. P at DO683; P.Ex. 9; Viesta Depo. at 131, 146 (P.Ex. 4).) In fact, despite plaintiff's attorney's second letter, Viesta still found "no reason" to investigate the complaints. (Viesta Depo. at 148, 149 (P.Ex. 4).) On March 22, 2001, the day after receipt of plaintiff's attorney's second letter, Viesta alerted Howard and Uliasz that plaintiff had retained an attorney to represent her in opposition to UST. (D.Ex. P at DO683l; P.Ex. 9; Viesta Depo. at 131, 132, 146 (P.Ex. 4).) Viesta testified that Howard, upon learning of the contents of plaintiff's attorney's second letter, became "very upset." (Viesta Depo. at 131, 132, 133, 146 (P.Ex. 4).) Howard's anger was followed by an immediate report a few hours later to Viesta of alleged performance failures he and Uliasz "discovered" during plaintiff's absence. (Viesta Depo. at 131-133, 142 (P.Ex. 4); D.Ex. P at DO682-DO683; D.Ex. Q). Note that at this point, plaintiff had only been out on Family Medical Leave for approximately two days. (D.Ex. P at DO678-DO679; D.Ex. DD; Viesta Depo. at 134-135 (P.Ex. 4).) Plaintiff adamantly denies responsibility for any of these alleged performance failures. (Kanios Depo. at 187-201 (P.Ex. 1).) At the time she went on leave, Viesta admitted that based on plaintiff's review, plaintiff would have had no indication her job was in jeopardy. (Viesta Depo. at 115-116 (P.Ex. 4).) Nevertheless, plaintiff was terminated while on FMLA leave, after her attorney's second letter, ostensibly for performance reasons never even discussed with nor mentioned to her. (Viesta Depo. at 115-116 (P.Ex. 4); D.Ex. P at DO682-DO683; D.Ex. Q.) Nevertheless, on April 11, 2001, Viesta mailed plaintiff her termination letter effectively terminating her employment as of April 13, 2001 for these supposed "performance failures." (D.Ex. Q.) In an attempt to justify its termination decision, defendant UST identified in the CHRO proceedings a male Buyer formerly employed in its purchasing department who was terminated due to performance issues. Defendants claim that this male employee, Mr. Lou Mauro, was "similarly situated" to plaintiff. (Viesta Depo. at 161 (P.Ex. 4).) However, even a perfunctory review of his personnel file demonstrates he was treated radically different than plaintiff. Mr. Mauro was given

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several warnings of his performance failures, as well as ample opportunities to improve. (Viesta Depo. at 161 (P.Ex. 4); Uliasz Depo. at 33-34, 145 (P.Ex. 5).) His performance issues, which included abuse of other employees and use of UST's resources to further his own personal construction project, were tolerated and documented for years. (Uliasz Depo. at 33-34, 145 (P.Ex. 5); P.Ex. 17 at D0689 and D0713.) Only after numerous warnings and personal confrontations and discussions was he actually terminated. In contrast, discovery has revealed that the only other female who claimed sex discrimination was terminated for performance reasons within three months of doing so. In that case, as here, defendant claimed it did a "thorough investigation," supervised by Viesta, yet "found no evidence" of discrimination. (P.Ex. 18; Viesta Depo. at 11-12, 159-160 (P.Ex. 4).) ARGUMENT I. THE STANDARD FOR GRANTING SUMMARY JUDGMENT. Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The burden of demonstrating the absence of a genuine dispute as to a material fact rests with the party seeking summary judgment." Rose v. James River Paper Co., 2 F.Supp.2d 245 (D.Conn. 1998) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In determining whether summary judgment is appropriate, the court resolves all ambiguities and draws all reasonable inferences against the moving party. Id. (citing McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). In determining whether the plaintiff has met the de minimis initial burden of showing "circumstances giving rise to an inference of discrimination," the function of the court on a summary judgment motion is to determine whether the "proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn." Chambers v. TRM Copy Centers Corp., 43 F.3d at 38;

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see also Ramseur v. Chase Manhattan Bank, 865 F.2d at 465; Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d at 58. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995). In an employment discrimination context where the employer' intent is at issue, special s caution should be employed when deciding a motion for summary judgment. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). Although the Second Circuit has approved the use of summary judgment in employment discrimination cases, Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985), it has cautioned against granting summary judgment in an employer's favor because intent is often an issue. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). The Second Circuit has since reaffirmed its limited approach to summary judgment in discrimination cases. See Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); McLee v. Chrysler Corp., 109 F.3d 130, 135-37 (2d Cir. 1997). Zarzycki v. United Technologies Corp., 30 F.Supp.2d, 283, 286 (D. Conn. 1998). II. GENUINE ISSUES OF MATERIAL FACT EXIST SUFFICIENT TO DEFEAT DEFENDANTS MOTION FOR SUMMARY JUDGMENTAS TO PLAINTIFF'S DISCRIMINATION CLAIMS. Plaintiff has properly stated a claim for sex discrimination in violation of Title VII and CFEPA.9 Plaintiff alleges in her first cause of action that UST violated Title VII, 42 U.S.C. §2000e et seq., by treating her in a "manner unequal to other employees...on the basis of sex...discriminatorily denied plaintiff equal treatment on the basis of sex.... Moreover, UST unreasonably interfered with plaintiff's work performance, and plaintiff's complaints of discrimination were used by defendant UST as a basis for adverse employment decisions affecting plaintiff." (D.Ex. K ¶¶27, 31, 32.) Plaintiff further alleges in her complaint that "Plaintiff's termination and unfavorable treatment by her superiors were not based on plaintiff's work performance, but rather were consistent with her supervisor's sexist views and harassing conduct...." (D.Ex. K ¶¶27, 31, 32 (emphasis added).)
Note that the same legal standards are to be applied to plaintiff's claim under Title VII and CFEPA. Specifically, in interpreting the provisions of the CFEPA, the courts are to be guided by the federal courts' interpretation of Title VII's provisions. Board of Education of the City of Norwalk v. Commission On Human Rights and Opportunities, 266 Conn. 492, 832 A.2d 660 (2003); Craine v. Trinity College, 259 Conn. 625 (2002); Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996).
9

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A.

Claim Of Hostile Environment.

Defendants inappropriately attempt to limit plaintiff's sex discrimination claim to that of "hostile environment" ostensibly on the basis that her claim for wrongful treatment on the basis of sex fails due to a lack of an adverse employment action. Plaintiff bases her Title VII claim on her wrongful treatment on the basis of sex and adverse action (i.e., termination) as discussed in the next section, as well as the fact she has suffered harm in the workplace amounting to hostile environment. Title VII prohibits employers from "discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual' ... s sex." 42 U.S.C. §2000e-2(a)(1). The phrase "terms, conditions, or privileges of employment" is broad enough to encompass, and render actionable, an employer' requirement that an employee "work in a s discriminatorily hostile or abusive environment," so long as the discriminatory conduct at issue is "severe or pervasive enough to create an objectively hostile or abusive work environment." Harris v. Forklift Systems, 510 U.S. 17, 21, 114 S.Ct. 367 (1993). This is so notwithstanding the fact that the employer takes no "tangible employment action ... [that] itself constitutes a change in the terms and conditions of employment" by formally altering a worker' employment status. Burlington Indus., s Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also id. at 761-63, 118 S.Ct. 2257 (discussing tangible employment actions). "To prevail on a hostile work environment claim, a plaintiff must demonstrate: (1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). To be actionable, a "sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998). The employer will avoid liability if it can plead and

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prove, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and promptly correct any sexual harassment by such a supervisor, and (2) the employee unreasonably failed to avail herself of any corrective or preventative opportunities provided by the employer or to avoid harm otherwise. Id. If plaintiff suffers a tangible employment action no defense is available. Leopold v. Baccarat, Inc., 239 F.3d 243 (2nd Cir. 2001). 1. Plaintiff Experienced A Hostile Work Environment.

Plaintiff has presented sufficient evidence to allow a trier of fact to conclude that she subjectively experienced a hostile environment. Burford v. McDonald's Corporation, 2004 WL 1392426 (D.Conn. 2004) (Genuine issues of material fact existed as to whether employee subjectively experienced work environment as hostile precluding summary judgment where plaintiff testified at her deposition that the sexual harassment she claims to have been subjected to made it difficult for her to work, that she wanted to leave work, and that the experience made her physically ill) (P.Ex. 19); Feingold v. State of New York, 366 F.3d 138 (2nd Cir. 2004) (evidence consists of daily harassing comments, finding a rational fact-finder could conclude that plaintiff subjectively experienced a hostile work environment). In the instant case, plaintiff has provided evidence that Uliasz's conduct not only made it difficult for her to work but also that his conduct was so egregious that she did not think she could continue working in his department. (Kanios Depo. at 121, 130-131 (P.Ex. 1); D.Ex. P at DO671-72, DO668-669, DO678.) Indeed, while at work, plaintiff, in connection with Uliasz's unwelcome physical contact. suffered panic attacks and after reporting this to Viesta was placed on leave. (D.Ex. P at DO678; P.Ex. 16.) Accordingly, plaintiff has satisfied the subjective prong of the hostile environment test. Defendants' principal position in their motion for summary judgment is that plaintiff has not satisfied the objective portion of the test, that is, even taking her subjective allegations as true, they do not rise to the level of hostile environment. (Defendants' Memo at 17.) However, the conduct plaintiff was

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made to suffer was objectively pervasive and severe. Burford, supra (Genuine issues of material fact existed as to whether employee's workplace, in which supervisor allegedly made comments about employee's body as well as unwanted physical contact was objectively hostile, precluding summary judgment) (P.Ex. 19); Pascal v. Storage Technology Corp., 152 F.Supp.2d 191 (D. Conn. 2001) (Genuine issues of material fact regarding whether alleged conduct by female employee's male coworkers, including making disparaging remarks, jokes and comments about women were severe and pervasive precluding summary judgment). In Newtown v. Shell Oil Co., 52 F.Supp.2d 366, 372 (D.Conn.1999), the plaintiff' hostile s environment claim was based on her allegations that she was subjected to two incidents of offensive name-calling based on her sex and a co-worker frequently called her "woman" in a derogatory fashion. The court denied summary judgment, noting that whether "the use of offensive epithets focusing on plaintiff' sex ... occurred frequently enough in the workplace to be deemed pervasive is s a question of fact best left to a jury. Drawing all reasonable inferences in plaintiff' favor and looking s at the totality of the circumstances, a reasonable jury could find that the discriminatory conduct was sufficiently pervasive to create a hostile or abusive work environment." Id. In Badlam v. Reynolds Metals Co., 46 F.Supp.2d 187, 196 (N.D.N.Y.1999), the court rejected the employer' argument that because the work environment was offensive to both men and s women, it was not based on sex. The court noted that "[w]hile it is true that male and female employees alike were exposed to pornographic materials and offensive conduct and language, there is evidence that certain harassment was directed only at the female plaintiffs," including numerous pornographic drawings specifically referencing plaintiffs and the fact that plaintiffs were constantly referred to by offensive terms "usually associated with females." Id. Here, plaintiff was repeatedly subjected to harassment by Uliasz and such harassment was clearly related to her gender. Examples of Uliasz's behavior include, inter alia, the following: (1) calling plaintiff a "fat bitch"; (2) telling plaintiff that "it was a good thing [she] wasn't married,

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because nobody would want [her] the way [she] was looking"; (3) telling plaintiff that "women should be barefoot and pregnant"; (4) stating that plaintiff wasn't "nice looking enough"; (5) stating that plaintiff wasn't "sexy enough to be back out on the market"; (6) that plaintiff "hadn't seen the inside of a gym ever" (7) that "women belong in the home"; (8) that women were too "emotional" referring to his animus toward women in the workplace; (9) telling plaintiff she couldn't "fit through the door" referring to her size despite his knowledge of her two recent pregnancies; (10) telling plaintiff she should use "a feed bag" referring to plaintiff as an animal when she eats; and (11) keeping a jar of pennies in the office labeled plaintiff's "education fund." Uliasz's unlawful conduct reached its nadir when he pushed plaintiff, scoffing "get out of my way." (Kanios Depo. at 59-64, 121, 140-141, 246-247, 253-254 (P.Ex. 1); D.Ex. T; D.Ex. W; D.Ex. K ¶27; Rentz Depo. at 43-45 (P.Ex. 6).) Accordingly, plaintiff has shown objectively that she was subject to unwelcome harassment because of her gender and such harassment was sufficiently pervasive to alter the conditions of her employment. 2. Defendant UST Is Liable For Uliasz's Conduct And The Environment He Created.

UST is liable under Title VII for any sexual harassment committed by its supervisor Uliasz. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, (1998); Burford v. McDonald's Corporation, 2004 WL 1392426 (D.Conn. 2004) (P.Ex. 19). In Burford, the court held the defendant employer liable for plaintiff's supervisor's harassment where plaintiff reasonable availed her self of defendant's corrective measures. For example, plaintiff asserted that she complained about her supervisor's harassing conduct to a number of employees, including the supervisor, and that she called defendant's help line five times before she received a response.

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In the instant case, not only is UST liable for Uliasz's conduct but plaintiff has raised a material issue of fact as to UST's ability to apply any affirmative defense. First, the affirmative defense to a claim of hostile environment is only available to UST if plaintiff suffered no tangible employment action. Plaintiff was terminated in connection with her complaints about the alleged harassment. In addition, even if the affirmative defenses were available to UST, plaintiff has clearly demonstrated that her actions in availing herself of any corrective measures were reasonable. Plaintiff complained to Rentz, a compliance officer designated to field complaints of discrimination. (Rentz Depo. at 44-45, 47-48, 50 (P.Ex. 6).) Indeed, Rentz found plaintiff's complaints to "define harassment in the workplace." (Rentz Depo. at 44-45, 47-48, 50-51 (P.Ex. 6).) Plaintiff complained to Viesta who, even after receiving plaintiff's attorney second letter reiterating plaintiff's complaints of harassment, admits that she did nothing to investigate plaintiff's complaints, and took no measures to correct them. (Viesta Depo. at 149 (P.Ex. 4).) Accordingly, even assuming arguendo that an affirmative defense was available, plaintiff clearly took reasonable steps to employ defendant UST's corrective measures to no avail. B. Discrimination Based On Gender.

Courts have not hesitated to deny a dispositive motion where, as here, the same circumstances suggesting a hostile environment claim also give rise to a claim of sex discrimination. Gregory v. Daly, 243 F.3d 687 (2nd Cir. 2001) (Allegations in female former employee's complaint, that male supervisor, inter alia, engaged in a continuous, pattern of conduct that began with insulting and ominous talk and then increasingly took the form of concrete interference with her job functions and finally culminated in her termination, stated claim that her termination occurred under circumstances suggesting sex discrimination as well as a claim for hostile work environment both under Title VII). Sex-based hostility to a woman's continued presence in the workplace, or to particular roles within it, does not necessarily stop at the doctrinal boundary between creation of a hostile environment claim and a sex discrimination claim involving more tangible employment

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injuries; E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994) ("Because hostility against women underlies decisions to discharge or to refuse to hire women because of their gender, evidence of sex harassment will be relevant to claims of gender based employment discrimination."); Cady v. Cortland, 2000 WL 1456285 (Plaintiff former female employee properly alleged claim for hostile work environment, sex discrimination as well as retaliation) (P.Ex. 20). The facts in this case support Title VII liability under gender discrimination and hostile environment theories. 1. Burden Of Proof.

While claims of gender-based sex discrimination, quid pro quo sexual harassment, and hostile work environment sexual harassment all come under the umbrella of Title VII, they are conceptually distinct from one another. See Benoit v. Ocwen Financial Corp., 960 F.Supp. 287, 28990 (S.D.Fla.1997); Bridges v. Eastman Kodak Co., 822 F.Supp. 1020, 1027 (S.D.N.Y.1993). To establish a prima facie case of sex discrimination, the plaintiff must establish that: (1) she is a woman; (2) she was qualified for the position at issue; (3) she was subject to an adverse employment action10; and (4) that action was taken under circumstances giving rise to an inference of discrimination. Shumway v. United Parcel Service, Inc., 118 F.3d at 63, 64 (2nd Cir. 1997); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir.1997). This last element of a prima facie case may be proven by showing that a man similarly situated was treated differently. Id. A plaintiff may also rely on direct evidence of what the defendant did and said in satisfying her initial burden. See Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 124 (2nd Cir. 2004). Proof of the prima facie case creates a presumption of discrimination that defendant may rebut by producing evidence of a legitimate nondiscriminatory reason for the adverse employment decision. See St. Mary's Honor Center, 509 U.S. at 507, 113 S.Ct. 2742.
No affirmative defense is available when harassment culminates in a tangible employment action. Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); see also Karibian v. Columbia University, 14 F.3d 733 (1994).
10

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Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the plaintiff must prove, by a preponderance of the evidence that the employer intentionally discriminated against him. Reeves v. Sanderson Plumbing Products,Inc., 120 S.Ct. 2097 (2000). However, the "fact finder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination" Id. at 120 S.Ct. 2097. Of course, "[t]o defeat summary judgment within the McDonnell Douglas framework ... the plaintiff is not required to show that the employer' proffered reasons were false or played no role in the employment s decision, but only that they were not the only reasons and that the prohibited factor was at least one of the ' motivating' factors." See Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 78 (internal quotation marks omitted). 2. Plaintiff's Termination Occurred Under Circumstances Giving Rise To An Inference Of Sex Discrimination.

Defendants apparently attempt to limit plaintiff's cause of action to a claim of hostile environment by disjoining defendants' sexist conduct from plaintiff's ultimate termination. Specifically, defendants seek to attribute plaintiff's termination solely to her complaints of discrimination and not to defendants' continued sexist behavior. However, this court has found defendants' approach to unlawful sex discrimination to be too narrow. Windhauser v. Bausch & Lomb, Inc., 302 F.Supp.2d 139 (W.D.N.Y. 2003) (defendant employer's motion for summary judgment denied where plaintiff properly stated a claim for sex discrimination and retaliation based on the elimination of his position); Gregory v. Daly, 243 F.3d 687 (2nd Cir. 2001) (Allegations in female former employee's complaint, that male supervisor, inter alia, engaged in a continuous, pattern of conduct that began with insulting and ominous talk and then increasingly took the form of concrete interference with her job functions and finally culminated in her termination, stated claim that her termination occurred under circumstances suggesting sex discrimination as well as a claim

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for retaliation.); Cady v. Cortland, 2000 WL 1456285 (Plaintiff former female employee properly alleged claim for hostile work environment, sex discrimination as well as retaliation) (P.Ex. 20). In the instant case, plaintiff's termination is surrounded by evidence of gender discrimination. Uliasz repeated told plaintiff, among other things, that "women should be barefoot and pregnant," that "women belong in the home" and that women were too "emotional" all referring to his animus toward women in the workplace. See Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 124 (2nd Cir. 2004) (gender based stereotyped remarks can be evidence that gender played a part in an adverse employment decision satisfying plaintiff's burden of showing prima facie case of sex discrimination). Uliasz even went so far as to call plaintiff a "fat bitch" prior to her termination. (Kanios Depo. at 59-64, 121, 140-141, 246-247, 253-254 (P.Ex. 1); D.Ex. T; D.Ex. W; D.Ex. K ¶27; Rentz Depo. at 43-45 (P.Ex. 6).) Moreover, in relation to plaintiff's claim of retaliation, plaintiff in less than two and a half months after complaining of Uliasz's abuse was terminated for ostensibly performance failures despite receiving a positive review merely weeks before her termination. (D.Ex. V; P.Ex. 21.) Accordingly, a jury could easily find that plaintiff's gender played a role in her treatment and timing of her termination was based on her gender. 3. Inconsistent Application Of Defendants' Alleged Disciplinary Policy Is Sufficient For A Jury To Find That Defendants' Defense Was Pretext For Discrimination.

The Second Circuit in Greenway v. The Buffalo Hilton Hotel, 143 F.3d 47 (2d. Cir. 1998), held that the evidence of defendant employer's inconsistent application of its disciplinary policy was sufficient for the jury to have decided properly that the employer's stated reason for discharge was simply a pretext for discrimination. In Greenway, the plaintiff had been employed with defendant for approximately five years and received positive employment reviews. However, defendant, upon learning of plaintiff's HIV status, immediately proceeded to issue plaintiff warning notices regarding his work performance. The plaintiff, after complaining that he was being discriminated against

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because of his disability, was terminated for "continued poor performance." He had received a total of four warnings from his employer upon its learning of his disability up to his date of termination. The evidence offered showed that defendant did not apply a similar disciplinary policy where, for example, one employee who had received 11 written warnings was not fired and another who received 6 warnings was not fired. Moreover, another employee who held the same title as plaintiff was only given a "friendly reminder" after being in a "physical confrontation" with a customer of defendant. In the instant case, plaintiff, shortly after receiving a positive performance review and bonus, was terminated without ever receiving a warning or notice for her alleged performance failures. However, Lou Mauro, according to defendants a "similarly situated" former UST employee,11 was not only given several warnings for his performance failures but also given ample opportunities to improve (Viesta Depo. at 161 (P.Ex. 4); Uliasz Depo. at 33-34, 145 (P.Ex. 5).) In fact, not only did UST tolerate Mr. Mauro's abuse of other employees, but he was able to use UST's resources in furtherance of his own personal construction project. (Uliasz Depo. at 33-34, 145 (P.Ex. 5); P.Ex. 17 at D0689 and D0713. Moreover, when asked, Uliasz, who took part in Mr. Mauro's disciplining, could not even equate let alone find more severe plaintiff's alleged performance failures to the gravity of those of Mr. Mauro. (Uliasz Depo. at 145 (P.Ex. 5).) Accordingly, defendants' reason for terminating plaintiff could easily be found by a factfinder to be pretextual, and summary judgment must therefore be denied.

Plaintiff at the time of her termination was an "Assistant Buyer" in UST's purchasing department. (D.Ex. V; D.Ex. Q.) Mr. Mauro at the time of his termination served as a Buyer in UST's purchasing department. (P.Ex. 17.)

11

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III.

GENUINE ISSUES OF MATERIAL FACT EXIST SUFFICIENT TO DEFEAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S RETALIATION CLAIMS UNDER TITLE VII. Plaintiff has properly stated a claim for retaliation in violation of both Title VII and

CFEPA.12 To establish a prima facie case of retaliation under Title VII, the plaintiff must show that: (1) she was engaged in an activity protected by Title VII; (2) defendant was aware that the plaintiff engaged in the protected activity; (3) the plaintiff suffered a disadvantageous employment action; and (4) a casual relation exists between the protected activity and the employment action. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2nd Cir. 1996). If plaintiff carries this initial burden, the burden of production shifts to the defendant to offer evidence of a legitimate, non-retaliatory justification for its action. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.1993). If the defendant introduces such evidence, the plaintiff is afforded the opportunity to prove that the alleged justification is merely a pretext for retaliation. Rexach v. University of Connecticut Department of Dining Services, 313 F.Supp.2d 100 (D.Conn. 2004) (Kravits, J). A. Plaintiff's Proof Establishes A Prima Facie Case For Retaliation. 1. Plaintiff Was Engaged In Protected Activity.

In order for plaintiff to establish the first element, that she was engaged in a protected activity, she need only show that she was acting under a good faith belief that the activity was covered by the statute. Cosgrove v. Sears, Roebuck and Co., supra (citing Summer v United States Postal Service, 899 F.2d 203, 209 (2d. Cir. 1990)). While the protected activity usually takes the form of filing a formal complaint or a lawsuit, making an internal complaint regarding sexual discrimination is also covered by the statute. Id. at 1040.

Plaintiff also brings a retaliation claim under the Connecticut Fair Employment Practices Act. We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. Craine v. Trinity College, 259 Conn. 625 (2002).

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Plaintiff made repeated internal complaints and defendant admits that it registered her protests as complaints of discrimination. (Rentz Depo. at 44-45, 47-48, 50-51 (P.Ex. 6); Kanios Depo. at 82, 117, 120-121 (P.Ex. 1); D.Ex. W; D.Ex. DD.) In addition, in their Memo, defendants "concede for purposes of this Motion that [Plaintiff] arguably participated in protected activity at least as of the date her attorney wrote UST." (Defendants' Memo at 26.) Accordingly, defendants' own assertions establish that plaintiff has satisfied the first element necessary to support her claim of retaliation, and there are no material questions of fact. 2. Defendant Knew Or Should Have Known That Plaintiff Was Engaged In Protected Activity.

Defendants' own admissions establish that they were aware that plaintiff was in fact complaining of discriminatory conduct. In deed, Rentz's deposition testimony reveals that he viewed plaintiff's assertions to "define harassment in the workplace." (Rentz Depo. at 44-45, 47-48, 50-51 (P.Ex. 6).) Accordingly, there are no genuine issues of fact as to whether defendants knew or should have known that plaintiff was engaged in a protected activity. 3. Defendants' Retaliatory Conduct Affected Plaintiff's Employment.

The third element of a retaliation claim is satisfied when plaintiff shows that defendant's conduct "affected terms, privileges, duration, or conditions of employment." Dortz v. City of New York, 904 F.Supp. 127, 156, 156 (S.D.N.Y. 1995) (quoting Vergara v. Bensten, 868 F.Supp 581, 591 (S.D.N.Y. 1994)). "While the result is often the employee's discharge, less severe events can also be sufficient." Id. Defendants "concede for purposes of this Motion that [Plaintiff]... can establish alleged adverse action (i.e. the termination of her employment) close to the time of her internal complaint." (Defendants' Memo at 26.) Indeed, Howard, upon learning of the contents of plaintiff's attorney's second letter, became "very upset" and that day "discovered" the performance failures relied on to legitimize plaintiff's termination. (Viesta Depo. at 131-133, 142 (P.Ex. 4); D.Ex. P at DO682-DO683; D.Ex. Q.)

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Accordingly, there are no material questions of fact as to whether plaintiff's employment was detrimentally affected by defendants' conduct, as revealed by defendants' own admissions. 4. Plaintiff Protected Activity Is Casually Related To Her Adverse Treatment.

The fourth and final element of a prima facie retaliation claim is satisfied "by showing that the protected activity was closely followed by adverse treatment." Dortz, supra at 156-157 (emphasis added). Defendants again concede this issue: "Defendants concede, for purposes of this Motion, that [Plaintiff]...can establish alleged adverse action (i.e., the termination of her employment) close to the time of her internal complaint...." (Defendants' Memo. at 26 (emphasis added).) Defendants' only contention, however, is that the individuals involved in the decision to terminate plaintiff were somehow blissfully unaware of plaintiff's complaints of discrimination. Nothing could be further from the truth. In fact, all of the primary decision makers in plaintiff's termination were aware of plaintiff's complaints of discrimination. Thus, the fourth and final element of plaintiff's retaliation claim is satisfied. Cifra v. Gen. Electric Co., 252 F.3d 205, 217 (2d Cir. 2001) (plaintiff's termination 20 days after defendant employer learned she had hired an attorney, via receipt of attorney's letter detailing plaintiff's pursuit of a claim of gender discrimination, provided causal connection needed for proof of retaliation claim); Burford, supra (employer aware of complaint, insofar as plaintiff made them both to management and through defendant employer's regular complaint channels) (P.Ex. 19). In the surprisingly similar case of Cifra, supra, the Second Circuit found sufficient circumstantial evidence that plaintiff's gender discrimination complaint was causally connected to her termination and that defendant's explanation of poor performance was a pretext for retaliation. In Cifra, plaintiff retained an attorney after her complaints to human resources regarding her male supervisor's harassment went unaddressed. Plaintiff's attorney promptly caused a letter to be delivered to defendant's human resource department advising that plaintiff had retained her and requested an opportunity to meet to discuss plaintiff's claims of sex discrimination and fears of

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retaliation. Despite plaintiff's attorney's request to the contrary, plaintiff was required to meet with human resources and her male supervisor without her attorney being present. During this meeting, human resources and plaintiff's supervisor tried to convince plaintiff that she did not need an attorney. Less than 20 days from this meeting, plaintiff was terminated for performance issues. The Cifra court, without addressing whether the contents of plaintiff's attorney's letter, were shared with the alleged harasser, recognized that by the letter, plaintiff had made defendant as well as the harasser aware of her complaints. In addition, the Cifra court held that while plaintiff's argument that she had orally complained to human resources as much as nine months prior to her termination could lend itself to an inference that her complaints did not cause her termination, the court still refused to grant summary judgment on plaintiff's retaliation count. In making its decision, the Court of Appeals looked to the evidence illustrating how defendant's position that it only became aware of plaintiff's Title VII claims upon receipt of plaintiff's attorney's letter "discredited its own causation" argument where plaintiff was terminated 20 days later for alleged performance failures. Additional evidence which the court found persuasive was the harasser's discovery of performance problems merely three days after plaintiff's attorney's letter arrived in light of his finding that plaintiff had satisfactorily performed her duties just six weeks earlier. In the case at bar, within two and a half months of complaining of discrimination, plaintiff was terminated by Howard, Viesta and Uliasz for performance failures. (P.Ex. 9; D.Ex. Q.) This, despite the fact that plaintiff had recently received a positive performance review, approved by Howard and Uliasz, that made no mention of the alleged performance issues of which she was terminated. (D.Ex. V.) Moreover, plaintiff's attorney had written two letters, both explicitly detailing plaintiff's claims of harassment and violations under Title VII. (D.Ex. W; D.Ex. DD.) These letters were made known to Viesta, Howard and Uliasz. (P.Ex. 9.) In fact, Viesta testified that Howard, upon learning of the contents of plaintiff's attorney's second letter, became "very upset." (Viesta Depo. at 131, 132, 133, 146 (P.Ex. 4).) Howard's anger was followed by an immediate report to

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Viesta of the alleged performance failures he and Uliasz "discovered" during plaintiff's absence.13 (Viesta Depo. at 131-133, 142 (P.Ex. 4); D.Ex. P at DO682-DO683; D.Ex. Q.) These performance failures were ultimately used to legitimize plaintiff's termination. (Viesta Depo. at 131-133, 142 (P.Ex. 4); D.Ex. P at DO682-DO683; D.Ex. Q.) Plaintiff adamantly denies any of these alleged performance failures. (Kanios Depo. at 187-201 (P.Ex. 1).) Nevertheless, on April 11, 2001, Viesta mailed plaintiff her termination letter, effectively terminating her employment as of April 13, 2001 for these supposed "performance failures" without even discussing the "discovered" issues with plaintiff. (D.Ex. Q.) Accordingly, there are material issues of fact to be determined by a fact finder in connection with the fourth and final element of the retaliation claim. Plaintiff has produced ample evidence of continued positive performance prior to her complaints, and the close temporal proximity of her complaints with her termination alone satisfies the causal connection requirement. LaFond v. General Physics Services Corp. 50 F.3d 165 (2nd Cir. 1995) (unless the employer has come forward with evidence of a dispositive non-retaliatory reason "as to which there is no genuine issue and which no rational trier of fact could reject, the conflict between the plaintiff' evidence establishing a prima s facie case and the employer' evidence of a [non-retaliatory] reason reflects a question of fact to be s resolved by the fact finder after trial); see also Back v. Hastings On Hudson Union Free School District, 365 F.3d 107 (2nd Cir. 2004) (derogatory comments stereotyping women followed by adverse action support a conclusion of pretext.) For these reasons defendant's Motion as to this count should be denied.

Note that at this point, plaintiff had only been out on FMLA leave for approximately two days. (D.Ex. P at DO678-DO679; D.Ex. DD; Viesta Depo. at 134-135 (P.Ex. 4).)

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IV.

GENUINE ISSUES OF MATERIAL FACT EXIST AS TO PLAINTIFF'S CLAIM OF AIDING AND ABETTING. While there is no individual liability under Title VII, state statutes14 may provide a cause of

action against an individual for aiding and abetting where the corresponding federal statute does not. Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (allowing aiding and abetting liability against the perpetrator when individual held liable was acting with others to harass the plaintiff); see also Perks v. Town of Huntington, 96 F.Supp.2d 222, 228 (E.D.N.Y. 2000) (same); Bogdahn v. Hamilton Standard Space Sys. Int' Inc., 46 Conn. Supp. 153, 159 (Conn.Super.Ct.1999) l. (recognizing as a cognizable claim for aiding and abetting, conduct whereby an employer and other employees'actions "ratified, endorsed and perpetrated" another employee' harassing conduct). s While an employee cannot aid and abet his own discriminatory practice, Jones v. Gem Chevrolet, 166 F.Supp.2d 647, 649 n. 1 (D.Conn.2001) (Burns, J), an individual may aid and abet his employer' s discrimination. Id. at 650. This individual liability is particularly applicable to supervisors in the use of their authority, even where the employer' liability is derived from the supervisor' wrongful s s conduct. Wasik v. Stevens Lincoln-Mercury, Inc., 2000 WL 306048 at *6 (P.Ex. 22). A. Plaintiff's Allegations Support Her Claim Of Aiding And Abetting.

Defendants seek dismissal of plaintiff's aiding and abetting count by narrowly reading plaintiff's complaint to only encompass the harassment and discrimination perpetrated by Uliasz. However, this limited reading of a discrimination plaintiff's complaint has been flatly rejected by this