Free Motion for Summary Judgment - District Court of Connecticut - Connecticut

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT LYNN B. KANIOS Plaintiff, v. UST INC. and MARK ULIASZ, Defendants. : : : : : : : : : Civil Action No. 303CV369 (DJS)

May 21, 2004

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rules 7 and 56, the Defendants, UST Inc. ("UST" or the "Company") and Mark Uliasz ("Uliasz") (or collectively "Defendants"), hereby respectfully submit this Memorandum of Law in Support of their Motion for Summary Judgment. PRELIMINARY STATEMENT This action was brought by Plaintiff, Lynn Kanios, a former employee of Defendant UST. In the Amended Complaint dated January 14, 2004 (the operative Complaint and hereinafter the "Complaint"), Kanios alleges: (1) in the First Count against UST, discrimination based on gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 29 U.S.C. § 2000, et seq. ("Title VII")1; (2) in the Second Count against UST, discrimination based on gender in violation of the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60(a)(1), et seq. ("CFEPA"); (3) in the Third Count against UST, retaliation in violation of Title VII; (4) in the Fourth Count against UST, retaliation in violation of the CFEPA; (5) in the Fifth Count against Defendant Uliasz, aiding and abetting in violation of the CFEPA; (6) in the Sixth Count against both Defendants, negligent infliction of emotional distress; (7) in the Seventh Count against UST, negligent misrepresentation; and (8) in the

Although Kanios alleges "sexual harassment"in the Complaint, she has clarified that she is alleging only genderbased sexual harassment. (Kanios Dep. pp. 99-104)

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Eighth Count against UST, violation of the federal Family and Medical Leave Act, 29 U.S.C. § 2615(a)(1), et seq. ("FMLA"). As will be established herein, Defendants' Motion should be granted as to all causes of action based on the pleadings, deposition testimony and documents presented, because the record unequivocally establishes the absence of any genuine, disputed issues of material fact, warranting the entry of summary judgment as to the Complaint in its entirety. I. STATEMENT OF FACTS

UST, headquartered in Greenwich, Connecticut, is in the primary business of manufacturing and distributing smokeless tobacco products. Kanios began her employment with UST on March 6, 1995, as a Support Staff Secretary in the Employee Relations ("Human Resources") Department ("Complaint," ¶ 7, part of Ex. K hereto; Kanios Dep. pp. 49-50)2 Kanios performed some secretarial and data coordinator work for the Purchasing Department, filling in for a secretary in that department on maternity leave. (Kanios Dep. pp. 54, 70, 73) Kanios describes her interaction at that time with Uliasz, Purchasing Manager, as limited; however, she claimed to have even then experienced problems with his "managerial style," including his "condescending tone." She also claimed that Uliasz made comments about her weight, appearance, the amount of food she consumed during pregnancy, that he vaguely referred to her "mind being home with the kids," and remarked that "women belong in the home." (Kanios Dep. pp. 59-64) Although Kanios knew that she could complain to Human Resources about Uliasz, she did not bring any complaint at that time. (Kanios Dep. pp. 67-69, 83-86, 120; Ex. M) Kanios is Promoted Into Purchasing On or about July 21, 1997, Kanios was promoted into the Purchasing Department as an Associate Buyer by Tim Howard, the department Director. (Ex. K ¶ 8; Kanios Dep. pp. 54-55; Howard Dep. p. 4) As an Associate Buyer, Kanios' primary responsibilities were to assist the Buyers, Senior

Kanios received an employee handbook and reviewed its contents when she commenced her employment with UST. (Kanios Dep. p. 51; Ex. L)

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Buyers and Managers by placing purchase orders with suppliers, managing inventory by ensuring that certain, designated plants and manufacturing facilities had the ingredients necessary to make the smokeless tobacco products, ensuring sufficient inventory of dry plant materials, developing spreadsheets for polypropylene and casing materials or flavoring fragrances, and placing purchase orders for casing materials, waxes and some of the labels for the dry snuff business. (Kanios Dep. pp. 55-56, 71; Howard Dep. pp. 12-13, 110, 112, 114; Maguire Dep. pp. 6, 8-9, 27-28, 48, 50-51, 53) Priscilla Maguire, a then Buyer, supervised some of Kanios' orders and inventory management.3 (Maguire Dep. p. 9) Kanios was periodically also expected to pitch in, as were the other Associate Buyers, to absorb duties of employees who were on leave. (Kanios Dep. pp. 69-70; Howard Dep. p. 118; Uliasz Dep. pp. 126-28, 131-32)4 Kanios initially reported to David Turner. (Kanios Dep. pp. 57-59) Shortly

thereafter, however, Kanios began to report directly to Defendant Uliasz,5 but her responsibilities did not change. (Id.) At all times, Uliasz reported to Tim Howard. (Howard Dep. pp. 5, 9) Kanios' Complaint to a Co-Worker Reaches Human Resources In or about late January 2001, Kanios told a colleague, Christine Walsh, that she was upset by comments made to her by Uliasz. (Kanios Dep. pp. 80, 116-17; Ex. K ¶ 16) Walsh worked directly for Robert Rentz, Director of Customer Development and a UST Compliance Officer;6 she told Rentz about her "friend" who was having problems with her supervisor. (Rentz Dep. pp. 42; Kanios Dep. pp. 14546) Kanios then spoke directly with Rentz after Rentz contacted her. (Kanios Dep. pp. 82, 117, 120; Rentz Dep. pp. 43-44) Kanios alleged to Rentz: (a) that Uliasz made offensive comments about her size;

While Kanios contends Uliasz harbored discriminatory bias against women in general, it is noteworthy that Uliasz promoted Maguire, a female, to Associate Buyer; then to Buyer; and then to Senior Buyer. (Maguire Dep. pp. 7, 37). This testimony is undisputed by Kanios. (Kanios Dep. pp. 94-95, 113-14, 156-57) 4 (See also, e.g., Uliasz Dep. pp. 126-128, 138; Howard Dep. p. 118; Kanios Dep. pp. 69-71, 182-84) 5 Uliasz participated in the decision to have Kanios transferred to him as her supervisor, as well as in the initial promotion to Associate Buyer. (Uliasz Dep. pp. 40, 41, 157; Ex. N) This testimony is also undisputed by Kanios. (Kanios Dep. pp. 58-59 wherein she concedes lack of knowledge on this point) 6 Compliance officers are identified individuals within UST charged with the responsibility of acting as additional receivers of employee complaints of violations of the Company's Code of Conduct. Once received, these officers forward complaints received to the appropriate department, such as Human Resources, for investigation. (Rentz Dep. pp. 16-18).

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(b) that he often commented about the amount of food she was consuming, possibly having called her a "fat bitch" (although Rentz was admittedly unclear in his recollection on this remark); and (c) that, in general, he made repeated, condescending comments about her intelligence and performance. (Kanios Dep. p. 120-21; Rentz Dep. pp. 43-44, 60; Viesta Dep. pp. 63-65 and Ex. P, DO667) Kanios also told Rentz Uliasz "pushed" her. (Kanios Dep. p. 121) No mention of any gender-based comments was made by Kanios to Rentz. (Id.) Rentz advised Kanios that the matter had to be reported, and himself followed up with the Legal Department. (Rentz Dep. pp. 44, 47-48) This conversation with Rentz was the first on record in which Kanios ever complained about conduct by Uliasz to UST management. (Kanios Dep. pp. 7677, 83, 111, 286-87; Howard Dep. pp. 23-24)7 Kanios claimed she did not go to Human Resources earlier out of fear of retaliation, but she could not name even an single instance which she observed to support this fear. (Kanios Dep. pp. 83, 84-87, 118) In fact, she acknowledged that others had complained about the department, with other males having complained specifically about Uliasz's managerial style, yet she could not point to any retaliation against them. (Kanios Dep. pp. 84-86, 157-59) Rentz then followed up with Nella Viesta, Director of Employee Relations, to advise her that Kanios would be coming in to see her. (Kanios Dep. p. 122; Rentz Dep. pp. 50-51; Viesta Dep. p. 8) By that time, however, Viesta had already been made aware by the Legal Department that Kanios complained about Uliasz. (Viesta Dep. pp. 62-63 and Ex. P DO667) An investigation thereafter ensued. (See infra) On February 7, 2001, Viesta met with Kanios. She complained to Viesta about Uliasz's managerial style, condescending tone, as well as his "comments" about her food consumption. (Kanios Dep. pp. 148-49, 151-52) During her deposition, Kanios elaborated that Uliasz made derogatory comments about her appearance, weight, eating habits and intelligence. By way of example: (a) when
Kanios claimed during deposition she previously complained to David Turner and to Tim Howard, yet she did not include this allegation either in her Complaint, or in her CHRO Charge. Further, she could not remember the particulars of these purported conversations. (Kanios Dep. pp. 68, 77-78 ; Ex. K; Ex. R, CHRO charge)
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she returned from maternity leave, Uliasz told her he "needed to teach [her] Math 101 again," and that "her thoughts are still at home"; (b) he kept a small jar of pennies on a desk in the department which he labeled her "education fund"; (c) incident to her two pregnancies, Uliasz had commented repeatedly that she was "really packing it [weight] on...was eating for two...was strapping on a feed bag...."; "when you are done eating, make sure you wipe your chin off"; and (d) he would ask her if she "wanted a hefty bag," referring again to her food consumption. When asked at her deposition if all comments were about "weight and eating habits," Kanios said "No, there was...he would make comments about my appearance, he would make comments that he had to deal with...he would talk condescending to me and it would be inferior comments and he would--you know, comments he wouldn't make to a man. A lot of it is hard to say. A lot of it was in his--he had a lot of mannerisms. It's very hard to describe..." When asked yet again what comments were not related to weight or food consumption, she answered: "He's made comments about my hair, he's made comments about my glasses, he's made comments about my shoes. He's made comments about--you know, living still in the 80's with the clothes I had on." She also claimed he made negative comments about her attractiveness. (Kanios Dep. pp. 97-104, 247, Viesta Dep. pp. 41-44 ) Kanios further asserted that Uliasz commented about her being "barefoot and pregnant," being a woman home with children, and about being emotional because she was a woman. (Kanios Dep. pp. 89-93, 97-104, 150-152; but see Viesta Dep. pp. 37-38, 41-44, 55-56, 67-69, 72, 75-80 and Ex. P DO668-669-Viesta denies any record of Kanios alleging gender-derogatory remarks) Kanios also told Viesta that Uliasz put his hands on her to get by her, expressing frustration, during a conversation in his office--"like she didn't matter." (Kanios Dep. pp. 108-10, 169-170, 172; Viesta Dep. pp. 42-43, 72-73)8 Interestingly, Kanios' allegations of comments which refer to "women" are conspicuously absent from both Kanios' Complaint in this action and her CHRO Charge, including the letter attached to her Charge
8

Viesta denied that Kanios alleged Ulisaz pushed or shoved her, but rather, visibly demonstrated and verbally described that he had placed his hands up to get by her--without touching, pushing or shoving. (Viesta Dep. pp. 4243, 72-73)

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authored by her then attorney, William Blake. (Ex. K; Ex. R) Further, Kanios produced purported contemporaneous handwritten notes of what she described as pertinent events, yet not one comment reflected in those notes refers to such statements. (Ex. T, Kanios Notes) When asked at her deposition whether she had raised any claims of gender based discrimination or harassment to Viesta, Kanios responded ambiguously that she "believed" she told Viesta about comments "along those lines"; about the remark that Kanios was "barefoot and pregnant," about Kanios being emotional because she was a woman9, and about her mind being home with the children. (Kanios Dep. pp. 148-52; see also Kanios Dep. pp. 97-104, 273-75, 277, 280, 281-88; Ex. T)10 Kanios was assured she would not have to confront Uliasz unless she was comfortable. (Kanios Dep. pp. 125-27; Ex. K ¶ 17) Viesta promptly met with Uliasz on February 8, 2001, and informed him of Kanios' complaints which concerned his condescending management style and comments he made about the amount of food Kanios consumed. (Uliasz Dep. pp. 90, 93-94, 171-73; Viesta Dep. pp. 83-88; Ex. P DO670, D0682683) Uliasz expressed surprise to Viesta that Kanios had not addressed this issue with him directly, yet conceded that, at times, he may have exhibited his frustration with Kanios' performance in a manner which could be too direct. (Uliasz Dep. pp. 172-73; Viesta Dep. p. 85) Uliasz agreed to try to be more sensitive to any condescending demeanor, and to better manage Kanios' performance by giving her specifics and coaching. (Viesta Dep. pp. 87- 88; Ex. P D0670; Uliasz Dep. pp. 101-02) Uliasz further admitted that he made the "Math 101" comment once (Uliasz Dep. pp. 84), and that he may have joked in the cafeteria about Kanios' food consumption. (Uliasz Dep. p. 88) However, during his deposition, Uliasz added that such teasing remarks were made in the department between and among males and

9

Kanios conceded Uliasz could have been simply making a distinction between men and women and how sensitive women are to teasing remarks, as opposed to how men handle teasing. (Kanios Dep. p. 151) 10 Viesta denies that Kanios made any claims of gender-based derogatory comments by Uliasz, and indeed, Viesta's deposition testimony and contemporaneous investigatory notes reflect allegations by Kanios consistent with the Complaint and the CHRO Charge; i.e., that the comments were about the amount of food being consumed, weight, appearance, and intelligence. (Viesta Dep. pp. 172-175 and Ex. P)

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females alike. (Uliasz Dep. pp. 158-159, 181) Kanios, on the other hand, could not proffer evidence as to how Uliasz treated males, or anyone else, in the office. Nor could she provide any evidence regarding Uliasz's pattern of hiring and firing of males and females, except to concede he promoted Maguire. (Kanios Dep. pp. 95, 113-14, 153-55 ) After hearing about Kanios' complaint, Uliasz met with Kanios, as pre-planned, to discuss her annual performance review. (Kanios Dep. pp. 124-25, 139-40; Uliasz Dep. pp. 68-71, 169-170) Indeed, contrary to her own Complaint, Kanios admitted during deposition that Uliasz specifically referred to his conversation with Viesta during her review meeting. (Kanios Dep. pp. 124-25) Yet, despite his knowledge of the internal complaint, Uliasz still gave Kanios a positive overall performance review and commensurate raise.11 A bonus followed two weeks later. (Ex. V; Ex. U D0398; Viesta Dep. pp. 165166; Kanios Dep. pp. 124-125, 160)12 Viesta also advised Howard, that Kanios had complained about Uliasz's condescending and abrasive management style. (Viesta Dep. pp. 88-90; Howard Dep. pp. 30-35, 37, 63-66) Howard agreed to a meeting with and to monitor Uliasz. (Howard Dep. p. 35-40; Viesta Dep. pp. 89-90, 94, 176) Howard then approached Kanios directly, who reiterated her claims to Howard.13 (Kanios Dep. pp. 13031; Howard Dep. pp. 44-47, 50-52, 78-79; Viesta Dep. p. 94; Ex. EE DO384-388) Howard met with Uliasz. (Howard Dep. pp. 39-40, 64-67; Uliasz Dep. p. 99-101; Ex. EE DO385-388) It is important to note that Kanios never stated to Howard that Uliasz had called her "fat," "ugly," or that she believed she was treated differently because of gender. (Howard Dep. pp. 144-145) On February 16, 2001, Howard, in an attempt to facilitate a resolution, attempted to have a meeting with Kanios and Uliasz, but Kanios expressed discomfort at meeting with them alone. (Kanios
Historically, Kanios's reviews reflected a "meets" or "exceeds" expectations rating by Uliasz. (Kanios Dep. pp. 73-89) 12 Howard and Uliasz could have taken the opportunity to change Kanios' performance review upon learning of her complaint about Uliasz, and before presenting it to Kanios. However, neither took such action. Again, even two weeks later, Kanios received a bonus on top of the raise granted with the positive review. (Viesta Dep. pp. 168-169; Howard Dep. pp. 145-47) 13 Kanios again ambiguously claimed she told Howard of Uliasz's comments by making it "obvious" they were made because she is a woman. (Kanios Dep. p. 146-48) No factual details were provided.
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Dep. 130-31; Viesta Dep. pp. 98-100; Ex. P DO672) On that same day, Kanios went to the Vice President of UST's Employee Assistance Program ("EAP"), Karen Thorman. (Thorman Dep. pp. 1217; Kanios Dep. p. 132) Observing that Kanios was emotionally upset about attending a meeting her managers had scheduled, Thorman referred Kanios to Dr. Jane Hankin, a psychologist on UST's EAP referral list. Thorman further recommended that Kanios go back to Viesta and talk to her about her discomfort, and herself contacted Viesta to advise that Kanios wanted Viesta present at the meeting. (Thorman Dep. pp. 12-17, 26; Viesta Dep. pp. 94-97; Ex. P DO671) However, on February 20, before hearing from Viesta, Howard attempted to resolve the situation by having a meeting with Kanios and Uliasz, to find out how to "make it better". (Kanios Dep. pp. 132-36; Howard Dep. pp. 81-83, 89-92; Ex. EE DO389; Viesta Dep. pp. 94-97, 102, 104-05; Ex. P DO671-674; Uliasz Dep. pp. 102, 105-06) After the February 20th meeting with Uliasz and Howard, Kanios contacted an attorney, who wrote a letter to Senior Vice President, Richard Kohlberger. (Kanios Dep. pp. 134-35) This letter referenced only comments relating to Kanios' weight, appearance, and intelligence, yet asserted that such comments were the result of gender-bias, that they created a "hostile environment", and constituted "sexual harassment." (Ex. W) In the interim, on February 22, Viesta had a conversation with Kanios, during which Kanios informed her of the meeting with Howard and Uliasz two days earlier, and her discomfort with meeting them alone. Kanios told Viesta she thought they were trying to "make it a performance issue", and therefore, Viesta suggested another meeting with her present for the following Monday. Kanios agreed. (Viesta Dep. pp. 103-07; Ex. P DO672-674) After this conversation, but prior to the scheduled Monday meeting, Kohlberger passed the attorney letter along to Viesta. Viesta contacted Kanios on February 23 to discuss the letter, and asked why Kanios had contacted an attorney. (Kanios Dep. p. 136; Viesta Dep. pp. 104-106, 108-09, 112; Ex. P D0675-676) Viesta claims Kanios told her that her "real estate attorney" had been premature in sending the letter, and she wanted to explore transfer opportunities, but agreed to proceed with the Monday meeting with Howard and Uliasz to continue to aim for resolution. (Viesta Dep. pp. 109-12;
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Ex. P DO675). Kanios denies disavowing the letter, but agrees that she told Viesta she would meet again without her attorney present, responding to Viesta's expression that she wanted things to work about with Uliasz. (Kanios Dep. pp. 137-38; Ex. P DO675-676) On February 27, 2001, this meeting was conducted. Kanios' allegations were reviewed, and the parties agreed that Uliasz would meet with Kanios once each week to discuss the status on projects to improve communications and to avoid problems when he might be frustrated with her performance. It was also decided that Howard would be observing, monitoring and coaching Uliasz and attending his regular staff meetings as much as he could. They reiterated that Kanios could come to Uliasz or Howard at any time with any continuing concerns. (Kanios Dep. pp. 138-144; Viesta Dep. pp. 113-16; Ex. P D0675-676; Howard Dep. pp. 90-93, 98-99; Ex. EE DO390)14 Viesta then told Howard and Uliasz that "a letter" had been received from an attorney representing Kanios, but she did not divulge to Uliasz, and could not recall divulging to Howard, the specific content thereof or that discrimination and sexual harassment were being alleged. Howard and Uliasz specifically recalled not being told of these details (Howard Dep. pp. 101-104, 133, 150-151, 154; Uliasz Dep. pp. 173-175) The testimony of Howard and Uliasz, which establish that Howard and Uliasz were never made privy to any of the contents of the attorney letters, cannot be contraverted with evidence by Kanios. Viesta prepared a "purpose" memo dated February 26, 2001, confirming the topics of discussion at the February 27 meeting, noting specifically Viesta's continuing perception that Kanios' complaint was that Uliasz was condescending, and that he had made offensive remarks related to her eating habits and intelligence. The memo also mentioned Uliasz's frustrations with Kanios' performance as a potential reason for his attitude. (Viesta Dep. pp. 113-117, 178; Ex. P, Ex. X; Kanios Dep. pp. 138-45) Kanios admitted in deposition that some of these performance issues had, in fact, been addressed by
14

Viesta testified that she decided what investigative steps to take based specifically on Kanios' allegations. Thus, had Kanios suggested gender-based harassment, Viesta possibly would have conducted other interviews of women in the department. (Viesta Dep. pp. 174-175)

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Uliasz before her complaint. (Kanios Dep. pp. 162-74; see also Viesta Dep. p. 178-79, where she confirms that Kanios never alleged performance concerns of Uliasz unjustified) Viesta also prepared a March 6, 2001, "recap" memo specifically noting the solutions discussed to improve communications between Kanios and Uliasz going forward. (Ex. X DO677) Significantly, the memo contained an invitation to the recipients, including Kanios, to alter or add to its content if the recipient thought it necessary---Kanios neither changed nor added anything to this memo, despite the lack of any reference to gender-based remarks, or discrimination or harassment on the basis of gender or any other protected category. (Kanios Dep. pp. 144-45; Ex. X; Viesta Dep. pp. 180-81) Kanios claimed that even after March 6, Uliasz made additional comments about her eating. (Kanios Dep. pp. 140-41) However, subsequent to this last meeting, Viesta periodically checked with Kanios about the status of her situation and Kanios replied that the situation was "okay." (Viesta Dep. pp. 118-119) Viesta, Howard and Uliasz therefore believed the matter had progressed to Kanios' satisfaction. (Viesta Dep. p. 119; Howard Dep. pp. 90-93; Uliasz Dep. pp. 114-15, 119) Kanios Takes a Two-Week Leave of Absence On March 19, 2001, Kanios went to Viesta and to Thorman upset, without providing the reasons why she was upset. (Kanios Dep. p. 211; Viesta Dep. pp. 120-21) Kanios mentioned she had a scheduled doctor's appointment and Thorman recommended she keep that appointment. (Thorman Dep. p. 26) Kanios told Viesta she was having panic attacks and was going to see her doctor. (Viesta Dep. pp. 120-121, 177, 180; Ex. P D0678.) Thorman was then contacted directly by Kanios' psychologist who expressed concern over Kanios' return to the department. (Hankin Dep. pp. 91-92) At the

psychologist's request, Thorman agreed to approve Kanios for a two week leave of absence, commencing immediately on March 20, 2001. (Thorman Dep. pp. 28-29, 36; Hankin Dep. pp. 91-92; Trencher Dep. pp. 19-20, 35-36; Kanios Dep. pp. 220-21, 310- 311) Kanios followed up with Viesta on March 20, 2001, and informed her of the two-week medical leave. (Viesta Dep. pp. 123-24)

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On March 22, 2001, Viesta forwarded to Kanios the UST leave of absence forms, including the physician certification forms, for completion by her and by her treating psychologists so as to qualify for any remaining leave to which Kanios was entitled. (Kanios Dep. pp. 312-14; Ex. Y; Ex. Z; Ex. AA) Like the FMLA policy set forth in the employee handbook, these forms, which Kanios acknowledged receiving and completing, specifically provided that the federal leave entitlement was calculated by looking back at the prior 12 month period. In this regard, it is critical to note that in 2000, and specifically between May 1 through July 12, Kanios had already taken 10.3 weeks of FMLA qualified leave incident to her pregnancy. She then took an additional 2 weeks of medical leave from July 24, 2000, through August 7, 2000; thus, Kanios had taken more than 12 weeks of medical leave during the 12 months between March 20, 2000, and March 20, 2001. (Kanios Dep. pp. 302-03, 306; Ex. Z; Ex. AA; Ex. BB; Ex. CC) Critically important, the forms confirmed that her federally guaranteed FMLA rights had already been exhausted by that point, and that she may have additional eligibility for leave only under the Connecticut state FMLA.15 (Ex. Z; Ex. AA; Ex. BB; Kanios Dep. pp. 314-15) Management Discovers Serious Performance Deficiencies On March 21, 2001, immediately following the commencement of Kanios' leave, another letter had been received by Kohlberger from Attorney Blake. (Ex. DD) Kohlberger forwarded this letter to Viesta as well, but the contents of this letter were, like the first, not made known to Uliasz or Howard. (Howard Dep. pp. 101-104, 133, 150-151, 154; Ex. P D0682-683; Viesta Dep. p. 131-39; Uliasz Dep. 174) Viesta told Howard a second letter had been received. During this same conversation, Howard advised Viesta that after Kanios' leave of absence commenced, the plants began calling him and Maguire directly, complaining about the reducing inventory; the failure to receive critical supplies; and unprocessed orders for items for which Kanios was responsible. (Howard Dep. pp. 107-22, 136-39; Uliasz Dep. pp. 5-6, 135-37, 159-160; Maguire Dep. pp. 20-21; Viesta Dep. pp. 131-36, 142, 149-57; Ex. S). In fact, Maguire testified as to her direct knowledge that orders for supplies and ingredients had
15

These forms were sent again to Kanios on April 6, 2001. (Ex. Z DO366)

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not been timely placed by Kanios, despite that she and Kanios had reviewed the inventory together prior to her leave and decided what items within Kanios' responsibility needed to be ordered for the manufacturing plants. Indeed, Maguire confirmed that representatives from the plants had called her directly, informing her that orders for critical ingredients and supplies were either not received or not placed at all. Maguire herself was frustrated since, based on Kanios' prior assurances and discussions, Kanios should have understood the tasks to be completed. It was Maguire who then informed both Uliasz and Howard about a number of problems related to the orders for plant materials/ingredients. (Maguire Dep. pp. 26-29, 44-55, 61-62) A series of e-mail communications and internal memoranda outlining the problems were presented to Maguire during her deposition; she confirmed that she knew personally and directly that Kanios had failed to order items as reflected in these communications. (Id.) Critically important, Maguire, a female and friend of Kanios, someone completely removed from the investigation and complaint process, and not a decision-maker with respect to Kanios' employment, presented testimony still unrefuted by Kanios that these failures constituted serious derelictions of duty by Kanios which could have potentially shut down plants and/or cost UST millions of dollars. (Maguire Dep. pp. 49-52; Ex. O, copy of Maguire Affidavit to CHRO) Kanios' proclaimed lack of any

knowledge of these issues was, bluntly stated, patently "underwhelming," yet she admitted the seriousness of the consequences in not correctly and timely placing orders. (Kanios Dep. 56, 181-210) After this initial conversation wherein Howard advised Viesta of these disturbing discoveries, serious additional problems were unearthed. As Howard testified and his contemporaneous handwritten notes confirm, once he was advised of the problems with the plants, both through Maguire and through calls placed directly to him, he asked the employees covering Kanios' desk to see what else might be lingering. This inquiry revealed that the problems were prevalent, yet Kanios had told Howard prior to her leave as well things were "under control."16 (Howard Dep. pp. 106-22, 132-39; Ex. S) By this time,

Howard initially told Viesta he wanted to place Kanios on probation, but after problems continued to be discovered, he agreed termination was warranted. (Viesta Dep. pp. 155-57)

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it was clear that Kanios' deficiencies were egregious, especially in view of her repeated assurances to management. (Uliasz Dep. pp. 135-38) Obviously, Kanios had been sitting on a "powder keg," keeping everything hidden. Yet, while Kanios claims that Howard and Uliasz were driven by their desire to retaliate against her for lodging her complaint, she proffers no reason whatsoever for Maguire's undisputed and unequivocal testimony with respect to her performance deficiencies or to disprove the testimony by Howard regarding calls he received directly from the plants. Kanios' employment was ultimately terminated effective April 13 by way of letter to her. (Ex. Q, Termination Letter) Kanios confirmed at her deposition that she was medically unable to return to work at the time she received the letter terminating her employment. (Kanios Dep. pp. 306-307, 310) Interestingly,

Kanios stopped seeing her treating psychologist as soon as she received the termination letter, and has not sought continuing treatment with any medical professional since then. (Kanios Dep. pp. 217-19, 315-317) Kanios Files Administrative Charges On or about August 21, 2001, Kanios filed an administrative charge with the Connecticut Commission on Human Rights and Opportunities ("CHRO") and the Equal Employment Opportunity Commission ("EEOC"). As previously established, in support of her Charge, Kanios submitted an

affidavit, under oath, in which she set forth only allegations that Uliasz had made comments relating to her weight, appearance, and intelligence. The affidavit contains no reference whatsoever to comments by Uliasz that were sexual or gender-based; there were no allegations mentioning disparate treatment of "women," or of Kanios as a "woman"; or even any comments about pregnancy. (Ex. R, Kanios Affidavit to CHRO) Similarly, Kanios' Complaint and Amended Complaint in this action contain only allegations that Uliasz made comments regarding her "weight, appearance, eating habits and intelligence," and are likewise conspicuously devoid of any mention of comments regarding gender or pregnancy. (Ex. K ¶¶ 12, 13).

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Based on the applicable judicial precedent and a review of the undisputed facts presented, the following becomes apparent: (a) even if Kanios' allegations are taken as true, the purported conduct by Uliasz did not rise to the level of actionable discrimination or gender-based harassment within the scope of either Title VII or the CFEPA; (b) even if Kanios' allegations are taken as true, she did not engage in "protected activity" known to Howard or Uliasz, the primary decision-makers with respect to the termination of her employment, when that decision was made, and therefore, Kanios cannot sustain a claim of retaliation under either Title VII or the CFEPA; (c) Uliasz cannot be held to have "aided and abetted" a discriminatory practice as a matter of law; Uliasz is the accused "discriminator," and therefore, cannot be an "aider or abetter" under well established law; (d) Kanios cannot sustain a claim of negligent infliction of emotional distress, as the required showing that defendant should have realized its conduct during the termination process involved an unreasonable risk of causing severe distress, which might result in illness or bodily harm; (e) Kanios cannot establish that any representation made to her by anyone at UST was false when made, or which anyone should have known was false when made, in connection with her taking a leave of absence; and (f) Kanios cannot maintain a claim under the FMLA because: (i) by the time she commenced her last leave of absence, her rights had already been exhausted; (ii) in any event, the remainder of her leave entitlement was exhausted by the time of her termination; or (iii) in the alternative, she did not fulfill the requirement of continued certification of a serious illness, nor was she even able to return to her employment at the time of the undisputed expiration of her leave entitlement. II. A. ARGUMENT

THE STANDARD ON A MOTION FOR SUMMARY JUDGMENT

A moving party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any," demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Beckman v. United States Postal Serv., 79 F. Supp.2d 394, 399 (S.D.N.Y. 2000). The
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movant's burden is satisfied if it can point to an absence of evidence to support an essential element of the non-moving party's claim. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); Celotex, 477 U.S. at 322-23; Jancewicz v. Southern New England Tel. Co., 54 F. Supp. 2d 134, 135 (D. Conn. 1999). Defendant is entitled to judgment if a fair-minded jury could not return a verdict for the plaintiff on the evidence presented. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The non-moving party must provide "concrete evidence" upon which a reasonable juror could return a verdict in his or his favor. Id. at 256. A summary judgment motion "will not be defeated merely...on the basis of conjecture or surmise." Bernard v. New York City Health & Hosps. Corp., No. 93 Civ. 8593 (LAP), 1996 WL 457284, at *4 (S.D.N.Y. Aug. 14, 1996)(quoting Goenaga, 51 F. 3d at 18)). Summary judgment is appropriate in employment

discrimination cases, including Title VII-based discrimination or harassment cases, despite that the employer's intent may be at issue. See, e.g., Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S.Ct. 53 (2003); Coraggio v. Time, Inc., No. 94 Civ. 5429, 1996 WL 139786, at *6 (S.D.N.Y. Mar. 28, 1996), aff'd mem., 108 F.3d 329 (2d Cir. 1997); Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001), cert. denied, 534 U.S. 993 (2001). B. COUNTS ONE AND TWO (DISCRIMINATION) FAIL AS A MATTER OF LAW Kanios 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...". Kanios further claims that UST failed to "adequately investigate and remedy the treatment to which [she] was subjected," which also "discriminatorily denied plaintiff equal treatment on the basis of sex..." Plaintiff makes identical allegations under the CFEPA in Count Two. Kanios confirmed during her deposition that her discrimination claim is one for gender-based harassment. (Kanios Dep. pp. 99-101) Moreover, she does not attribute, because she cannot, any particular tangible, adverse employment decision attributable to the purported gender bias; indeed, in response to questioning by her own attorney to clarify her claim regarding the adverse action about
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which she complains (i.e., the termination of her employment), she responded that it was the fact of her internal complaint against Uliasz which motivated that termination decision. In other words, as more fully outlined below, Kanios never asserts that a basis for the termination of her employment was her gender, and similarly fails to point to any other tangible, adverse action which she asserts was discriminatory based on her gender.17 (Kanios Dep. pp. 128-30 where she admits she was not disciplined in any way after her complaint; 210, 254) (i) Plaintiff Cannot Prove Actionable Hostile Environment Sexual Harassment

In support of her claim of hostile environment as a result of gender-based harassment by her supervisor, Uliasz, in violation of the Title VII and CFEPA,18 Kanios articulated alleged comments about her appearance, weight, intelligence, and about Uliasz's "condescending" attitude in general. While such comments, if made, were clearly in poor taste, they do not involve "categories" protected by Title VII or the CFEPA. As to Kanios' allegations concerning comments which do arguably reference her gender, or women in general, it is undisputed that they were vague, sporadic, and did not even clearly evidence a gender bias. Further, Kanios conceded she had no personal knowledge of how Uliasz treated her male counterparts, except to admit that other males had complained about his managerial style. (Kanios Dep. pp. 84-85, 93-95, 153-54, 157-59, 258). She had no evidence as to how he treated other females19, nor his hiring and firing practices along gender lines, and thus, in sum, articulated nothing but inadmissible hearsay, conjecture, or surmise in support of her discrimination claims. (Kanios Dep. pp 95, 113-14, 153-60) At the same time, she admits that Uliasz promoted another female, Maguire, whom she claimed Uliasz had teased only about her
17

Likewise, in her Complaint, she alleges that it was "through defendant Uliasz's behavior," which she portrays as harassment, that resulted in "unreasonable interference with her work performance" and unspecified "adverse employment decisions." (Ex. K) 18 It bears noting that the same legal standards are to be applied to each of these claims. Specifically, in interpreting the provisions of the CFEPA, the courts are to be guided by the federal courts' interpretation of Title VII's provisions. Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996). 19 With the exception of Priscilla Maguire. However, even with Maguire, it bears repeated that Kanios alleged only that Uliasz made remarks about her "wrinkled clothing", her fingernails, weight, and needing an extra tray for her lunch. Further, she acknowledged that Uliasz had promoted Maguire. (Kanios Dep. pp. 93-95, 152, 288)

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"wrinkled clothing" and the food on her lunch tray.

(Kanios Dep. pp. 95, 113-14, 153-55)

Nevertheless, Kanios leaps to the conclusion that Uliasz's abusive behavior was borne of his animus toward females. Despite these unrealistic and unsubstantiated conclusions, and even if all the above allegations are deemed true, Kanios' claims of gender-based sexual harassment must fail as a matter of law. Kanios Cannot Satisfy Her Prima Facie Burden To establish a prima facie case of hostile work environment sexual harassment under either the CFEPA or Title VII, Plaintiff must prove that she was subjected to unwelcome conduct because of her gender that was so extreme as to create an objective change in the terms and conditions of her employment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). More specifically, she must demonstrate with competent evidence that her "workplace [was] permeated with `discriminatory intimidation, ridicule, and insult' that [was] `sufficiently severe or pervasive to alter the conditions of [her] employment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). See also Oncale, 523 U.S. at 78; Rider v. Town of Farmington and Bangham, 162 F.Supp. 2d 45 (D. Conn. 2001). For the workplace to be deemed a hostile work environment: it must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.... [Courts must] look [] at all the circumstances, `including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citations omitted). See also Loiola N.Y. A.G., 2002 U.S. Dist. LEXIS 11112, 00 CV 4907 (RCC) (S.D.N.Y. Jun. 21, 2002)(totality of the circumstances must indicate an environment ridden with discriminatory intimidation, ridicule and insult sufficiently severe or pervasive).

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Thus, courts "filter out complaints attacking the ordinary tribulations of the workplace...." Faragher, 524 U.S. at 788 (citation omitted). "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at `discriminat[ion]...because of...sex.''' Oncale, 523 U.S. at 102. Significantly, "workplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations. `The critical issue...is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Id. (citing Harris, 510 U.S. at 25). Plaintiff's claims here must therefore be examined

against these standards, and only evaluated with reference to the "social context in which [the] particular behavior occur[red] and [was] experienced by [plaintiff]." Oncale, 523 U.S. at 81. See Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 319 (2d Cir. 1999) and Leson v. Ari of Connecticut, Inc., 51 F. Supp.2d 135 (D.Conn. 1999). Consequently, "isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive," Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n.5 (2d Cir. 1995) (overruled on other grounds by Faragher), and be deemed gender-based, rampant abuse; see Harris, 510 U.S. at 21; Tomka, 66 F.3d at 1305. As the Supreme Court has cautioned, Title VII is not a general civility code. Oncale, 523 U.S. at 102. Instructive is the ruling in Figueroa v. City of New York, 2002 WL 31163880 (S.D.N.Y. Sept. 27, 2002). In Figueroa, the court reversed a denial of summary judgment as to plaintiff's gender based sexual harassment claims. Figueroa primarily alleged: (a) that a supervisor made comments about liking the way her pants fit; (b) that male coworkers made jokes about "snowplows" and "screws"; (c) that she was subjected to a prank where condoms were stuck into her glove; and (d) a coworker tried to strike her with his car. She also claimed that her supervisor consistently reprimanded her.
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In her deposition, she testified to a conclusion that the fact these incidents

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occurred, and her supervisor's treatment of her, were based on her gender. When pressed for reasons why she concluded gender was the motivating factor, she simply repeated it was because she was female, and could not point to discriminatory or disparate treatment of other females as opposed to the treatment of males. In dismissing the claim, the court opined: "Courts have repeatedly granted summary judgment where the evidence points, not to gender...animus, but rather to the fact that plaintiff's personality is the motivation for the harassment." See, e.g., Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002); Kodengaga v. Int'l Bus. Mach. Corp., 88 F.Supp.2d 236, 243 (S.D.N.Y.), aff'd 242 F.3d 366 (2d Cir. 2000)(dismissing hostile work environment claim where, inter alia, evidence showed that the hostility plaintiff encountered largely reflected a clash of personalities rather than discriminatory animus). Indeed, the Figueroa court focused on plaintiff's failure to proffer sufficient evidence that males were not treated in a hostile manner and that other females were so treated. Id. At *3-4. Equally instructive is the ruling in Samborski v. West Valley Nuclear Services Co., Inc., 2002 U.S. Dist. LEXIS 12745, 99 CV 0213E (F) (W.D.N.Y. Jun. 25, 2002). In Samborski, the plaintiff alleged harassment in violation of Title VII and comparable state law by being subjected to continuous comments by co-workers derogatory toward women in the workplace. While Samborski dealt with co-worker harassment, the court's analysis of hostile environment cases is persuasive. In addressing the plaintiff's claim that male co-workers were not subjected to rumors regarding their sexual orientation and other gender-based derogatory remarks, the court rejected the perceived attempt to turn a "non-actionable allegation" into an actionable one simply by asserting that males were not subjected to the same behavior. "Indeed, were such pleading proper, a plaintiff could turn a non-actionable allegation that she was harassed because she has purple hair into an actionable claim for sex-based discrimination by simply alleging that male co-workers were not harassed for having purple hair. Plaintiffs asserting Title VII claims must show that they were discriminated against because of their sex, not because they were disliked or ridiculed for some other reason." Id. at *2.
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Thus, as these and other courts have emphasized, the subject conduct must be both objectively and subjectively offensive, such that a reasonable person would find the behavior hostile or abusive, not just that the plaintiff did, in fact, perceive it to be so.20 See Harris, 510 U.S. at 21-22. The fact that a plaintiff is "female and that she did not always receive the respect and help she desired does not create the inference that the treatment was motivated by discriminatory animus." Meckenberg v. New York City Off-Track Betting, 42 F.Supp.2d 359, 372 (S.D.N.Y. 1999). Clearly, here, Kanios is attempting to transform comments about weight, the amount of food she consumed, and her level of intelligence into actionable behavior, merely by projecting that she did not observe male co-workers being treated in the same fashion. As to any other comments where gender is even arguably referenced (e.g., "women belong at home"), it is imperative to note that the sporadic dispersing of gender-based comments does not salvage her cause of action, particularly when she cannot establish how any purported gender bias harbored by Uliasz affected her in terms of compensation or status. Indeed, she admitted her performance never changed; she was promoted with input by Uliasz; given positive performance reviews; given commensurate raises; and paid bonuses, with one positive review, raise and bonus being given after her internal complaint. (Kanios Dep. pp. 124-29, 160, 169-70. Ex. V; Ex. U) Simply stated, given these undisputed facts, Kanios cannot sustain her burden of establishing that Uliasz made any comment or engaged in any teasing because of any discriminatory animus toward women. See, e.g., Loiola, 2002 U.S. Dist. LEXIS 11112 at *17 (offensive conduct violates the law only if it was engaged in for a prohibited reason-- plaintiff's gender); Rizzo-Puccio v. College Auxiliary Servs., Inc., 2000 U.S. App. LEXIS 14116, No. 99-9272 (2d Cir. Jun. 14, 2000)(where isolated, gender specific remarks made among a host of gender-based insults or other remarks, plaintiff failed to prove existence of objectively hostile

Thus, equally critical to note, comments such as "your mind is at home with the kids," do not, in themselves, connote gender bias as plaintiff contends. Rizzo-Puccio v. College Auxilliary Servs., Inc., 2000 U.S. App. 14116, No. 99-9272 (2d Cir. Jun. 2000); Tuggle v. Mangan, 348 F.3d 714 (8th Cir. 2003);Gleason v. Mesirow Financial, Inc., 118 F.3d 1134 (7th Cir. 1997).

20

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environment; at best, plaintiff showed supervisor was a "rude person). See also, Gleason v. Mesirow Financial, Inc., 118 F.3d 1134 (7th Cir. 1997)(pregnancy related comments, such as commenting about how plaintiff's breasts had become "larger" due to pregnancy; that he hoped the baby's father would support the child; asking plaintiff about her dietary and alcohol restrictions; and continuing to comment about plaintiff's pregnancy even after she requested he stop; not sufficient, even in the aggregate, to establish gender bias or bias against pregnant women). Although rendered in the Eighth Circuit, the decision in Tuggle v. Mangan, 348 F.3d 714 (8th Cir. 2003) is equally persuasive. Tuggle alleged her supervisor: (a) told her "women are better secretaries"; (b) asked plaintiff why she did not do her hair, wear make-up or wear a dress to work; (c) commented about plaintiff's fingernails; (d) told plaintiff "women are better at organizing things"; (e) asked plaintiff once if she was pregnant after she vomited at work; and (f) told plaintiff on one occasion she needed to "choose between [her] job and her family." Plaintiff also alleged her supervisor took a photograph of her leaning into a truck from behind and posted an unflattering photo focusing on her rear end on the bulletin board in the shop. After plaintiff complained about this conduct, which she contended took place over a two year period, she was required to meet monthly with her supervisor and others to discuss ways to allow her to be on the road and out of the office. She believed these meetings were punitive. She also claimed she was asked to perform different responsibilities following her complaint. The employee relations department, after an internal

investigation, told plaintiff she had not been subjected to discrimination or retaliation, and that they had canvassed the supervisor and warned him about his comments and behavior. In reversing the lower court's denial of a motion for summary judgment as to plaintiff's hostile environment claim, the court held: "[a]lthough Mangan's conduct was inappropriate, it did not rise to the level of actionable hostile work environment sexual harassment. Our conclusion is consistent with Duncan and other recent circuit cases requiring hostile environment claims to satisfy the demanding standards

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established by the Supreme Court in order to clear the high threshold for actionable harm." (citations omitted). Id. at 721-23. Based on the wealth of judicial precedent presented, Kanios clearly falls far short of sustaining her burden of proof herein. She cannot demonstrate initially that most, if any, of the conduct by Uliasz, even if true, was motivated by her gender or otherwise was sufficiently severe or pervasive. The best Kanios can do is to infer that, perhaps, Uliasz had a personal dislike for her, or displayed a stern, abrasive, or even rude and condescending management style. Remarking about "math 101"; being verbally abusive toward her at work; joking about the amount of food she consumed, and even allegedly pushing her on one occasion, even if true, cannot, especially in view of the judicial precedent explored, be deemed tantamount to hostile environment sexual harassment covered by Title VII or the CFEPA. Murphy v. Board of Education of the Rochester School District, 273 F.Supp.2d 292 (W.D.N.Y. 2003) As demonstrated above, this inevitable conclusion does not change even with reference to alleged, sporadic remarks about "women in the workplace" or that her "mind was at home with the children". Kanios' additional failure to establish similar conduct by Uliasz toward other female

employees, except to state that she heard Uliasz comment about Maguire's wrinkled clothing, and that he had asked her if she "needed an extra tray for her lunch," underscores the deficiencies of her claims. (Kanios Dep. pp. 89-95, 150-52)21 Bolstering Defendants' assertions in this regard, Maguire, a then Buyer and admitted personal friend of Kanios, testified that Kanios herself made weight-related comments directed at Uliasz; examples include calling Uliasz "bones" because he was thin and general comments about the amount of food he ate at lunch time. Maguire denied ever hearing any comments by Uliasz which revealed a gender bias towards Kanios or women in general. Maguire further provided undisputed testimony that Uliasz also made comments to male employees about their shoes (looked "plastic") and clothes ("K-mart"), and could be condescending toward male
21

Maguire testified she and Kanios teased Uliasz about his food consumption as well. (Maguire Dep. pp. 35-37)

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employees as well as female employees. (Maguire Dep. pp. 26, 35-37, 42-44, 58-61)

Maguire's

critical testimony confirming Uliasz's gender neutral conduct toward her and others, and that Uliasz promoted her, remains undisputed by Kanios. This unrefuted evidence, coupled with Kanios' failure to establish sufficiently severe and pervasive conduct reflecting gender bias, defeats her prima facie case, and therefore, this claim should be summarily dismissed. (ii) Even If Uliasz's Actions Were Tantamount to Sexual Harassment, Liability Cannot Be Imputed to Defendant UST

Even if this Court deems the conduct of which Kanios complains to constitute hostile environment sexual harassment, this claim must nevertheless be dismissed as no tangible employment action was taken against her as derived from the alleged harassment, and it is undisputed that: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) Plaintiff was unreasonable in taking advantage of the corrective opportunities provided by UST. Faragher, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Hill v. The Children's Village, 196 F.Supp.2d 389 (S.D.N.Y. 2002). In this regard, a "tangible employment action" is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. See, e.g., Hill, 196 F.Supp.2d at 396-97. As previously established, while Kanios' employment was terminated, she herself attributes that action to her having filed an internal complaint against Uliasz, i.e., motivated by intent to retaliate, as opposed to gender bias or harassment. (Kanios Dep. pp. 254: Q. by Attorney Lucas: "Why do you believe you were terminated. A.: Because I complained. I believe it was in total retaliation.") Thus, Kanios fails to proffer evidence of any "tangible employment action" resulting from the discrimination itself. See, e.g., Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003), cert denied 124 S.Ct. 562 (2003)(for purposes of this defense, the question is whether the supervisor's focus on the employee's protected attributes was the source of the hire, fire, demotion, promotion,

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transfer or discipline); Wilburn v. Fleet Financial Group, Inc., 170 F.Supp.2d 219 (D.Conn. 200(defense available where the hostile work environment does not culminate in the tangible action). Indeed, it has already been established that even after the internal complaint by Kanios, Uliasz and Howard gave her a positive performance review, raises, and bonuses. (See, supra). Her compensation increased as a result. See also Ellerth, 524 U.S. at 761; Arnold v. Yale New Haven Hosp., 213 F.Supp 2d 142, 148 (D. Conn. 2002); Gibson v. Crucible Materials Corp., 290 F.Supp.2d 292 (N.D.N.Y. 2003); Hill, 196 F.Supp.2d at 399-400. Moreover, any suggestion by Plaintiff that the manner in which the investigation was handled was based on gender bias, and thus constituted a "tangible employment action," does not pass muster under the "significant change" principles set forth by the courts in Faragher and Hill v. The Children's Village. Specifically, such action did not involve or result in a failure to hire, failure to promote, reassignment or transfer with significantly different responsibilities, nor in the termination of employment (which again Kanios attributes to retaliatory motive). See Arnold, 213 F.Supp.2d at 148-49; Lee-Crespo v. Shering-Plough Del Caribe, Inc., 354 F.3d 34 (1st Cir. 2003). See also Ellerth, 524 U.S. at 761; Gibson 290 F.Supp.2d at 292; Hill, 196 F.Supp.2d at 399-400. In this regard, Kanios has no entitlement to demand a particular method to deal with Uliasz's "behavioral issues". Gonzalez v. Beth Isr. Med. Ctr., 262 F.Supp.2d 342, 355 (S.D.N.Y. 2003). Consequently, as previously stated, UST must further prove that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) Kanios unreasonably failed to take advantage of any preventive or corrective opportunities provided by UST. Burlington, 118 S.Ct. at 2270; Faragher, 118 S.C. at 2292-93. See also Moore v. Sam's Club, 55 F. Supp.2d 177 (S.D.N.Y. 1999). First, it is undisputed that UST publicized and maintained a harassment policy and internal complaint procedure of which Plaintiff was aware. (Kanios Dep. pp. 51, 67, 69; Ex. L; Ex. M) It is equally undisputed that Kanios, by her own testimony, waited "years" to raise any

complaints about Uliasz. (Kanios Dep. pp. 68, 77, 111) It is further undisputed that after her
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complaint to Rentz, and then to Viesta, the Company immediately implemented steps to have Uliasz counseled, to have the parties meet on a regular basis and to have Uliasz's superior, Howard, monitor the situation and keep an open door. After these steps were taken and implemented, Kanios never complained again about subsequent events. Instead, she just went out on leave. (see, e.g, Viesta Dep. pp. 88-90, 92-94, 98-102, 114; Kanios Dep. pp. 122, 130-36, 138, 140-45; Howard Dep. pp. 30, 3435, 39-40, 44-46, 50-51, 55, 78, 81-83, 86, 89, 94, 98-99; Ex. P) Thus, even if this Court deems the conduct of which Kanios complains to have created an actionable, hostile work environment, her claims should nevertheless be dismissed based on the absence of a tangible employment action, followed by Defendants' prompt, remedial action coupled with Plaintiff's failure to act on the corrective action by making additional complaints before going on leave commencing March 20, 2001. As previously established, this principle applies even despite Kanios' claim that the remedial action taken was not to her satisfaction. Therefore, this Court

should hold that UST complied with its legal obligations, even if the subject conduct constituted hostile environment sexual harassment, obviating the Defendant's potential vicarious liability under the CFEPA or Title VII. Accordingly, Counts One and Two should be dismissed. C. KANIOS' CLAIMS OF RETALIATION SIMILARLY FAIL Retaliation claims are analyzed under the burden shifting rules applicable to discrimination claims established by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973); see also Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000); Quinn v. Green Tree Credit Corp, 159 F.3d 759, 764. The plaintiff must first demonstrate a prima facie case of retaliation, after which the defendant has the burden of articulating a legitimate, non-retaliatory reason for the subject action. If the defendant meets its burden of proof, the plaintiff must then demonstrate by competent evidence that there is sufficient proof for a reasonable jury to find the proffered legitimate reason is merely a pretext for retaliation. See Spadola v. New York City Transit Authority, 242 F.Supp.2d 284 (S.D.N.Y. 2003); Gurry v. Merck, No. 01 Civ. 5659 (RLC), 2003 WL 1878414 (S.D.N.Y. Apr. 14,
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2003). Noteworthy, the Supreme Court has held that in order for a sexual harassment complaint to be the basis for a retaliation claim, the underlying sexual harassment must have been "objectively" perceived as covered conduct. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-72 (2001). As in Breeden, Kanios cannot sustain her burden of proving that, notwithstanding her subjective, unreasonable conclusions, the conduct of which she complained actually violated Title VII or, in the alternative, that a reasonable person, in good faith, could believe the conduct of which she complained constituted actionable sexual harassment. Under such circumstances, her retaliation claim must be rejected. Nevertheless, even if the three-prong rule of shifting burdens is applied, Kanios' retaliation claims still fail. (i) Plaintiff Cannot Establish A Prima Facie Case of Retaliation

To establish a prima facie case of retaliation, a plaintiff must prove: (1) participation in a protected activity known to the defendants; (2) adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996); Leson, 51 F.Supp.2d at 145. A causal connection can be established directly through evidence of retaliatory animus directed against the plaintiff by defendants, indirectly by showing that the protected activity was followed closely by discriminatory treatment or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Johnson v. Palma, 931 F. 2d 203, 207 (2d Cir. 1991); DeCintio v. Westchester County Med. Ctr., 821 F. 2d 111, 115 (2d Cir. 1987), cert. denied, 484 U.S. 825 (1987). While Defendants concede, for purposes of this Motion, that Kanios arguably participated in protected activity at least as of the date her attorney wrote to UST and that she can establish alleged adverse action (i.e., the termination of her employment) close to the time of her internal complaint, for those reasons set forth below, Defendants contend that Kanios cannot satisfy the remaining element necessary to prove a
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Case 3:03-cv-00369-DJS

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prima facie case of retaliation--a causal connection between such protected activity and the termination decision. Kanios Fails to Establish the Requisite Causal Connection Kanios conceded that Uliasz knew about her complaint to Human Resources before presenting her with a "meets expectations" performance appraisal and commensurate raise in salary, contrary to the allegation in her Complaint that such appraisal was issued without that knowledge. (Kanios Dep. pp. 124-25, 139-40) She further conceded that after her internal complaint, Uliasz did not impose any discipline against her. (Kanios Dep. pp. 124-25, 128-30, 160) However, what she does allege is that while she was out on FMLA leave, the Company deliberately conjured up performance based reasons to terminate her employment. Nonetheless, Kanios cannot proffer sufficient, actual evidence that the primary decision-makers, Uliasz and Howard, knew that she had engaged in "protected activity", or that they were motivated by it. To the contrary, Uliasz's and Howard's testimony in this regard remains undisputed; they believed Kanios' complaint was about Uliasz's managerial style and about comments he made about food, weight, and intelligence. (Howard Dep. pp 30-35, 101-04, 133, 144-45, 150-51, 154; Uliasz Dep. pp. 90, 93-94, 171-75; also Kohlberger Dep. pp. 44-45, confirming he did not discuss letters with Howard or Uliasz) Thus, they had no reason to surmise that Kanios had claimed gender discrimination or

harassment, and had no knowledge that any attorney on her behalf had made any such assertions prior to the termination decision. Thus, proof of the r