Rachel Bentley v. AutoZoners, L.L.C.

In this diversity action, plaintiff Rachel Bentley sues her former

employer AutoZoners, LLC, and related company AutoZone

Northeast LLC, for sex discrimination, retaliation, and a sex hostile

work environment in violation of the Connecticut Fair Employment

Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a‐60. She now appeals

from an award of summary judgment entered on July 18, 2018, in the

United States District Court for the District of Connecticut (Dominic

J. Squatrito, Judge) in favor of defendant AutoZoners, LLC

(“AutoZone”). See Bentley v. AutoZoners, LLC, No. 16‐cv‐1506 (DJS),

slip op. (D. Conn. July 18, 2018).1 Bentley argues that she adduced

sufficient evidence to raise triable issues of fact on the following

questions: (1) whether AutoZone’s proffered reason for her

discharge—her use of crude language toward a co‐worker who

disparaged women (and who was also discharged)—was a pretext for

sex discrimination and retaliation; (2) whether the offending coworker

was a “supervisor,” making AutoZone strictly vicariously

1 The district court dismissed claims against co‐defendant AutoZone Northeast,

LLC, as abandoned. See Bentley v. AutoZoners, LLC, slip op. at 1. As Bentley does

not challenge that ruling on this appeal, we have no reason to consider it further.

4

liable for the hostile work environment he created; and (3) whether,

even if the offending co‐worker was not a supervisor, AutoZone had

sufficient notice of his misconduct as to be liable for negligently

failing to end the hostile environment. Insofar as the district court

concluded that she did not adduce sufficient evidence to defeat

summary judgment, Bentley particularly faults its holding that parts

of her deposition testimony could not raise genuine issues of material

fact in light of contradictions and inconsistencies with her earlier

signed or sworn statements. For reasons explained herein, we

conclude that Bentley’s arguments fail on the merits. Accordingly, we

affirm the challenged judgment.

BACKGROUND

I. Bentley’s Employment and Termination

From April 13, 2013, until her discharge on September 17, 2014,

plaintiff Rachel Bentley worked for defendant AutoZone as a parttime

sales associate in its Wallingford, Connecticut store. For the first

14 months Bentley worked at the store, the store manager position

was unfilled. Personnel problems plagued the store, with three parts

sales managers (two male, one female) and Bentley all fired within a

two‐year period for professional misconduct.

Bentley acknowledges that, at the start of her employment with

AutoZone, she received and read an employee handbook detailing

various policies, including one, pertinent here, which expressly

prohibits workplace discrimination and harassment based on sex. The

5

handbook further instructs employees promptly to report any such

misconduct to a supervisor or a member of the human resources

department (“HR”), either directly or by means of a toll‐free hotline.

The handbook also states that abusive language in the workplace is

prohibited and that such misconduct can result in termination.

Bentley acknowledges awareness of these policies at times relevant to

this action.

She also admits awareness of AutoZone’s attendance

requirements and its use of a point‐system and progressive discipline

to address attendance issues, with employees accumulating 12 or

more points subject to termination.2

Although AutoZone stores usually have on‐site store

managers, that position was unfilled at the Wallingford location for

much of the time Bentley worked there.3 Thus, district manager David

Campanile—responsible for overseeing eleven stores—would visit

the Wallingford store from time to time to check on its operations and

arranged for East Haven store manager Arif Mohamed to visit

Wallingford approximately once a week for a few hours. Otherwise,

2 As the district court recognized, and our own review of the record confirms, there

is no evidence that AutoZone employed this point‐system or progressive

discipline for workplace misconduct other than attendance. See Bentley v.

AutoZoners, LLC, slip op. at 18.

3 Only in June 2014—more than a year after Bentley started working at the

Wallingford store—was Jonathan Granoff hired as store manager for that location.

6

Campanile relied on a store “management team,” consisting of two

parts sales managers (“PSM”), for the day‐to‐day running of the store.

For the first few months of Bentley’s employment, the Wallingford

PSMs were Justine Case and Stuart Mertel. After Mertel was fired

sometime in late 2013 for inappropriate conduct not specified in the

record, Manny Valentin became the second PSM at the Wallingford

store on January 28, 2014. Valentin’s interactions with Bentley are the

basis for her sex discrimination and hostile work environment claims.

AutoZone PSMs wore gray uniform shirts, signifying

management. They were responsible for opening and closing stores,

giving employees daily work assignments, and imposing informal

discipline as warranted. Formal discipline, however, appears to have

required higher management.4 PSMs were also not empowered to

hire, fire, promote, or demote employees. Indeed, termination could

not be ordered by a store manager, or even a district manager; it

required the action of a regional manager. Nor could PSMs set

employee work schedules. That task was usually performed by a store

manager but, for the time in 2013‐14 when that position was unfilled

at Wallingford, that store’s employees’ work schedules were set by

East Haven store manager Mohamed.

4 Indeed, none of the “written warnings” or “serious violation” notices that Bentley

received for attendance issues—discussed in the next point of this Background

section—were issued by a PSM. Rather, they were submitted by a store manager

and approved by an HR officer.

7

Almost from the start of Bentley’s employment with AutoZone,

she had attendance problems. The record indicates that in 2013, i.e.,

before Valentin was employed at the Wallingford store, Bentley was

late for work on May 18, absent from work on June 29, late on

September 3, absent on September 7, absent on September 24, absent

on October 1, and late on December 4. The October absence prompted

a formal “written warning,” advising Bentley that she had

accumulated 9.5 points, and, that if her attendance performance did

not improve, she faced further corrective action, including

termination. The December tardiness prompted a “serious violation”

notice.

Bentley’s attendance problems persisted into 2014, such that by

March 7, 2014, she had accumulated 13 points, enough to warrant her

termination under company policy. AutoZone, however, did not

terminate her. Rather, Mohamed submitted, and HR manager Nuno

Antunes approved, another serious violation notice, which

Campanile discussed with Bentley at a meeting on March 12, 2014.

Subsequent attendance concerns were similarly addressed through

discipline short of termination.

During her employment, Bentley clashed with various coworkers.

She testified that, after about a month on the job, PSM Case

(who had served as a reference for Bentley on her employment

application with AutoZone) told Bentley she was “not going to last

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long” on the job and was “a bad employee.” App’x 91. In December

2013, when Antunes was investigating another employee’s complaint

about PSM Mertel (which resulted in Mertel’s termination), Bentley

told Antunes that Mertel had “gotten into [her] face,” telling her she

“didn’t know what [she was] doing.” Id. at 111. It is only her

subsequent interactions with Valentin, however, that Bentley claims

were informed by sex‐based animus.

In her sworn deposition testimony, Bentley stated that, within

a week of Valentin starting at the Wallingford store in January 2014,

and on more than 20 occasions thereafter, he made vulgar and

disparaging comments about women’s job performance, calling them

“lazy,” and suggesting that they should be home “bak[ing] cookies.”

Id. at 93–94. In moving for summary judgment, AutoZone does not

dispute that Valentin made such remarks. Rather, it disputes having

notice of the misconduct before August 2014.

Bentley, however, testified at her deposition that she

contemporaneously reported each occasion when Valentin made

sexist remarks to HR manager Antunes. Indeed, she recounted

reporting Valentin’s very first sexist remark to Antunes on the

January day that it was made, sending Antunes a text message from

the Wallingford sales floor, which contained “the exact comment.” Id.

at 94. She testified to sending Antunes similar text messages in

February and March reporting Valentin’s further sexist comments, as

well as making such reports by telephone. Bentley had no record of

these text messages or calls, explaining that she had disposed of the

cell phone used to send them soon after her termination. When

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confronted with a record of her text messages to Antunes as retrieved

from his phone—none of which complained of sexist comments by

Valentin—Bentley retracted her earlier testimony about giving notice

by text. She maintained, however, that she called Antunes to report

Valentin’s misconduct, but to no effect.

The single text message in the record showing Bentley

complaining to Antunes about Valentin is dated May 21, 2014. It

states, “Nuno I’m about to quit this job [M]anny [Valentin] is being so

ridiculous and making up lies and trying to make me go home. And

he threatened to slap me.” Id. at 239. Bentley now asserts that, in

connection with this incident, Valentin was “saying some really sexist

things, but I just didn’t say it” in the text. Id. at 105. That same day,

she complained orally to District Manager Campanile about Valentin.

Campanile’s contemporaneous email to Antunes, copied to regional

manager Charles Blank, states: “I have an incident” at the Wallingford

store. Bentley says PSM Valentin “was verbally harras[s]ing her and

said he was going to slap her because she doesn’t do her job.” Id. at

295.

In response to the complaint, Antunes spoke in person with

both Bentley and Valentin, the former on May 23, 2014, the latter on

May 27. Antunes recalls Bentley telling him the incident arose when

she failed to act on Valentin’s request that she get some parts for him,

a failure she attributed to her being busy with a customer. Bentley

does not challenge this account in her own testimony. Nor does she

claim to have told Antunes in the interview that Valentin had been

making sexist comments at the time of the incident. For his part,

10

Valentin admitted to Antunes that he threatened to send Bentley

home and to report her to Campanile for insubordination, but denied

saying he would slap her. Apparently, AutoZone took no further

action on the matter.

The circumstances leading to Bentley’s—and Valentin’s—

termination originated with district manager Campanile reporting to

Antunes on July 25, 2014, that PSM Case had advised of discord

between Bentley and Valentin. On August 5, 2014, Antunes contacted

Case. She told him that Valentin frequently disparaged women and

called Bentley lazy.

On August 14, 2014, Antunes spoke with Bentley, who agreed

to provide a signed written statement. In that statement, which is in a

question and answer format, Bentley asserted that Valentin

frequently disparaged women (quoting him saying “never work with

a female, females are lazy, they don’t do anything”); called Bentley

and PSM Case “lazy”; asserted that “[g]uys are superior to women”;

and stated “that he doesn’t want to work with women.” Id. at 126.

Bentley said that Valentin had made such comments to male

customers “[a]bout 20 times,” and to Case and Bentley about “15

times,” most recently “[l]ast month.” Id. at 126–27. Bentley also

identified two male employees who had heard Valentin make such

remarks. Asked if she had reported Valentin’s comments, Bentley

answered, “No.” Id. She further stated that Valentin had threatened

to cut her hours on two occasions and to fire her on six occasions, most

recently, the previous Monday. Bentley said she reported the last

firing threat to “John,” the store manager—presumably, a reference

11

to Jonathan Granoff. Id. at 128–29. In her August 14 statement, Bentley

also accused PSM Case of misconduct, specifically, watching Netflix

on company time, eating snack merchandise sold at the store without

paying for it, and putting store phones on hold after the store

manager left for the evening so that she would not have to answer

calls.

After speaking with Bentley on August 14, Antunes instructed

Campanile that, pending further investigation, Bentley and Valentin

should not be scheduled to work at the same time. Antunes then

proceeded to interview the two male employees identified by Bentley,

both of whom denied ever hearing Valentin make derogatory

comments about women.

Antunes then re‐interviewed PSM Case. In a written statement

dated August 20, 2014, Case reiterated hearing Valentin make

derogatory remarks about women workers on several occasions; tell

Bentley she was lazy; and threaten to cut Bentley’s hours, fire her, and

slap her. Case further admitted that over the past three months she

had routinely consumed AutoZone snack merchandise without

paying for it. She also admitted that for the past four months she had

frequently put store phones on hold after the store manager left. She

knew this was wrong but she felt “overwhelmed” and “didn’t want

to deal with customers at the time.” Id. at 275.

Antunes next interviewed Valentin who, in a signed, written

statement dated September 2, 2014, denied ever making any negative

remarks about women generally or women work colleagues in

particular. He further denied ever threatening to slap any co‐worker,

12

to cut a worker’s hours, or to terminate a worker. What he did report

was a particularly crude remark that Bentley had purportedly

directed at him a few months earlier on the trading floor, i.e., “Manny

you need to get your d‐‐k sucked.” Id. at 264. Valentin stated that he

did not report this conduct to anyone, but he claimed that Case and

another employee had witnessed it.

Antunes proceeded to re‐interview Bentley. In a second signed

statement, this one dated September 10, 2014, Bentley admitted

making the crude statement attributed to her by Valentin sometime

in February 2014.5 She adhered to her earlier statement that Valentin

threatened to slap her in March 2014.

Upon concluding his investigation, Antunes recommended to

regional manager Blank that Valentin, Bentley, and Case all be fired,

Bentley and Valentin for inappropriate conduct, and Case for

unauthorized consumption of company merchandise. Blank adopted

the recommendation and ordered all three employees’ termination.

Campanile carried out the order.

II. Procedural History

On February 19, 2015, Bentley filed a claim with the

Connecticut Commission on Human Rights, complaining that she

was wrongfully discharged based on sex and in retaliation for

reporting sex discrimination and that, while employed, she had been

subjected to a sex hostile work environment, all in violation of the

5 Bentley now dates the vulgarity to April 2014.

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CFEPA, Conn. Gen. Stat. § 46a‐60. Upon that agency’s release of

jurisdiction, Bentley commenced this CFEPA action in state court,

which defendants removed to federal court based on diversity

jurisdiction.

Following discovery, AutoZone moved for summary

judgment, which the district court granted, concluding that Bentley

failed to adduce evidence sufficient to raise triable issues of fact on

any of her three claims. In so ruling, the district court determined that

the part of Bentley’s deposition testimony insisting that she had

complained before August 2014 of Valentin’s sexist comments could

not raise genuine issues of fact because it was so unequivocally

contradicted by earlier written and sworn statements that no

reasonable person could believe it.

This timely appeal followed.

DISCUSSION

I. The Decision To Disregard Parts of Bentley’s Deposition

Testimony

We review an award of summary judgment de novo, and will

affirm only if the evidence, viewed “in the light most favorable to the

non‐moving party”—here Bentley—shows “no genuine dispute as to

any material fact” and entitles movant—here AutoZone—to

judgment “as a matter of law.” Baldwin v. EMI Feist Catalog, Inc., 805

F.3d 18, 25 (2d Cir. 2015) (internal quotation marks and citations

omitted); see Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006). To

conduct such review, we must decide what evidence can be

14

considered. Bentley argues that the district court erred in ruling that

part of her deposition testimony—professing to have reported

Valentin’s sexist comments to AutoZone before August 14, 2014—

could not be considered in identifying colorable issues of fact because

it was so contradicted by Bentley’s own written or sworn accounts.

We identify no error.

The district court’s opinion shows its thorough familiarity with

the relevant principles of law, which guide our own de novo review.

Those principles instruct that courts reviewing summary judgment

motions “generally should not weigh evidence or assess the

credibility of witnesses.” Rojas v. Roman Catholic Diocese of Rochester,

660 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted).

Nevertheless, “in the rare circumstance where the plaintiff relies

almost exclusively on [her] own testimony, much of which is

contradictory and incomplete,” to establish a triable issue of fact, it

may well “be impossible” for the court “to determine whether the jury

could reasonably find for the plaintiff, and thus whether there are any

‘genuine’ issues of material fact, without making some assessment of

the plaintiff’s account.” Jeffreys v. City of New York, 426 F.3d 549, 554

(2d Cir. 2005) (internal quotation marks omitted). In conducting such

an assessment here, the district court recognized that it had to identify

more than record ambiguity or incompleteness to conclude that

Bentley’s deposition testimony could not raise a genuine issue of fact

as to notice. Rather, it had to find the record contradictions with

Bentley’s testimony “inescapable and unequivocal” to find that her

testimony raised only “a sham issue of fact.” Fosamax Prods. Liability

Litig., 707 F.3d 189, 194 (2d Cir. 2013).

15

In ourselves applying that standard, we emphasize at the

outset that we consider only whether Bentley’s deposition testimony

regarding notice of sexist comments was properly rejected. AutoZone

does not argue, and the district court certainly did not find, that

Bentley failed to adduce sufficient evidence that Valentin repeatedly

made sexist comments. Not only did Bentley testify to such comments

at her deposition, but also, she and PSM Case had reported such

comments to Antunes in their written statements of August 2014, and

AutoZone fired Valentin on that basis. As to whether AutoZone had

notice of these comments before August 2014, however, Bentley’s

deposition testimony is the only supporting evidence. For much the

same reasons detailed by the district court, we conclude that Bentley’s

deposition testimony on this point is so compromised and

contradicted that it cannot raise a genuine issue of fact as to notice.

Rather than repeat the district court’s thorough analysis, we here

summarize the contradictions informing our decision.

First, there are serious contradictions in Bentley’s own

deposition testimony. Therein, she originally stated that, from

January 2014 forward, she routinely sent Antunes contemporaneous

text messages reporting each sexist statement as made by Valentin.

Indeed, she testified to specifically recalling standing on the

Wallingford sales floor when she sent the first text message. She

subsequently recanted this testimony, however, when confronted

with the record of her text messages to Antunes. Not one of these

messages complains of sexist comments by Valentin—not even the

text reporting his threat to slap Bentley. At her deposition, Bentley

16

acknowledged the omission, but explained that she had called—

rather than texted—Antunes to report Valentin’s sexist comments.

Even that claim, however, is contradicted by Bentley’s earlier

statements. Notably, in the August 2014 signed statement that Bentley

provided Antunes, right after she detailed the content and frequency

of Valentin’s sexist remarks, Bentley was asked, “Did you report these

comments?” and answered, “No.” App’x 384. Bentley attempts to

explain this apparent contradiction with her deposition testimony by

professing to have understood the August inquiry to be asking only

whether she had reported Valentin’s sexist comments to her store

manager.

To be sure, on summary judgment, a court should not

disregard testimony if there is a plausible explanation for its

contradiction by other evidence. See Langman Fabrics v. Graff

Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998) (“If there is a

plausible explanation for discrepancies in a party’s testimony, the

court considering a summary judgment motion should not disregard

the later testimony because of an earlier account that was ambiguous,

confusing, or simply incomplete.”). But Bentley’s explanation is

hardly plausible. Certainly nothing in the quoted question and

answer, or anything else in the August written statement, would

indicate to a reasonable person that the reporting inquiry was limited

to the store manager. Indeed, given the fact that Bentley’s August

interview was conducted by Antunes—the very person to whom, at

deposition, she claimed to have been routinely reporting Valentin’s

sexist comments—the interview question, “Did you report these

17

comments?” would reasonably be expected to prompt the answer,

“Yes, to you,” or at least the inquiry, “You mean, to anyone other than

you?” Bentley’s professed narrow understanding of the reporting

inquiry is at odds not only with the unqualified nature of the question

and common sense, but also with the notice at the bottom of each page

of the signed statement, which advised that, “[b]y signing this

statement form,” Bentley was acknowledging that the answers she

provided therein were “complete.” App’x 383–90. It is further at odds

with her negative response to another inquiry toward the conclusion

of the statement, which asked, “Is there anything else that you want

to include in this statement?” Id. at 389. In sum, Bentley’s explanation

for the contradiction between her deposition testimony and her

August 2014 reporting denial is not plausible.

But even in the unlikely event that Bentley could have

understood the August 2014 reporting inquiry to be asking only about

the store manager, Bentley’s negative response contradicts her

deposition testimony claiming to have reported Valentin’s sexist

comments to the two persons who performed the store manager’s

responsibilities at Wallingford for much of the relevant time: district

manager Campanile and East Haven store manager Mohamed.

In any event, there is still a third set of contradictions that

Bentley cannot explain by professing misunderstanding as to the

scope of the August 2014 reporting inquiry. These appear in her

complaint in this action and in her discrimination filing with the

Connecticut Commission on Human Rights. In both these filings,

which are worded identically in pertinent part, Bentley details

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various occasions when Valentin disparaged women. But she makes

no mention of reporting these comments to anyone in AutoZone

management before August 2014. Rather, the only reporting

referenced in these filings is in September 2014: “In September 2014,

[AutoZone] human resources employee, Nuno Antunes, asked

[Bentley] whether she had any work complaints. [Bentley] told

Antunes that Valentin threatened to slap her and repeatedly made

sexist remarks to her.” Id. at 3 (Complaint), 234 (Human Rights filing).

Because Bentley’s written statement documents this exchange with

Antunes to have occurred in August—not September—2014, we

assume this statement in the filings is off by one month. But nothing

in the record admits an inference that Bentley alerted Antunes to

Valentin’s sexist behavior before August 2014.6

In sum, like the district court, we conclude that Bentley cannot

rely on her deposition testimony to raise a genuine issue of fact about

giving AutoZone notice of Valentin’s sexist comments before August

2014 because that testimony is inescapably and unequivocally

contradicted by her own sworn and written statements, and Bentley

offers no plausible explanation for the multitude of contradictions.

6 In seeking unemployment compensation, Bentley made no mention of reporting

Valentin’s sexist comments before August 2014. Indeed, in that filing, she states

that she was discharged after reporting a PSM (presumably Case) for stealing in

August 2014. She does not mention reporting Valentin at that time—although the

fact that she did so is clearly established by her signed statement. We note this

omission without giving it any weight, given the different focus of the proceeding.

19

With the record thus defined, we proceed to consider Bentley’s

challenge to the award of summary judgment in favor of AutoZone

on each of her three claims.

II. Discrimination and Retaliation Claims

Bentley claims that AutoZone unlawfully discriminated

against her in terminating her employment based on her sex. She

further claims that AutoZone terminated her in unlawful retaliation

for her complaining about sexual harassment by co‐worker Valentin.

Under the CFEPA, these claims are evaluated under the burdenshifting

framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), for parallel federal claims under Title VII. See Kaytor

v. Elec. Boat Corp., 609 F.3d 537, 556 (2d Cir. 2010) (“The analysis of

discrimination and retaliation claims under CFEPA is the same as

under Title VII.”).

Under the McDonnell Douglas framework, Bentley “bears the

initial burden of establishing a prima facie case of discrimination.”

Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014) (internal

quotation marks omitted). To carry that burden on summary

judgment, Bentley must adduce sufficient evidence to permit a

reasonable jury to find that (1) she is a member of a protected class,

(2) she was qualified for the job at issue, (3) she was subjected to an

adverse employment action, and (4) the circumstances of that adverse

action give rise to an inference of discrimination based on her class

membership. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802.

20

To establish a prima facie case of retaliation sufficient to

withstand summary judgment, Bentley must adduce evidence

showing that (1) she engaged in protected activity, (2) the employer

was aware of this activity, (3) she was subjected to an adverse

employment action, and (4) a causal connection exists between the

adverse action and her protected activity. See Weixel v. Bd. of Educ. of

the City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002).

Where a prima facie showing—whether of discrimination or

retaliation—is made, the burden shifts to the defendant to “articulate

some legitimate, nondiscriminatory reason” for its action. McDonnell

Douglas Corp. v. Green, 411 U.S. at 802. If the defendant proffers such

a reason, “the presumption raised by the prima facie case is rebutted

and drops from the case.” Kovaco v. Rockbestos‐Surprenant Cable Corp.,

834 F.3d 128, 136 (2d Cir. 2016) (internal quotation marks omitted).

The plaintiff then bears the ultimate burden to show that the

employer’s proffered reason was merely a “pretext for an unlawful

motive.” Craine v. Trinity Coll., 259 Conn. 625, 644 (2002); see Gorzynski

v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). A plaintiff may

carry this burden by reference to the same evidence used to establish

a prima facie case, provided that the evidence admits plausible

inferences of pretext. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 143 (2000).

As to discriminatory termination, AutoZone concedes for

purposes of its summary judgment motion that Bentley adduced

sufficient evidence to satisfy the first three elements of a prima facie

case. Nevertheless, it argues that she failed to carry her burden as to

21

the fourth element because the fact that she was replaced by a woman

will not admit an inference that Bentley’s own termination was

animated by sex‐based bias. We need not discuss this argument

because, even assuming its resolution in Bentley’s favor, see Pivirotto

v. Innovative Sys., Inc., 191 F.3d 344, 353–54 (3d Cir. 1999) (observing

that “even if a woman is fired and replaced by another woman, she

may have been treated differently from similarly situated male

employees”); see also id. at 354 (recognizing that female employee’s

replacement by another woman may have “some evidentiary force”

in refuting sex discrimination claim) (quoted approvingly in Brown v.

Henderson, 257 F.3d 246, 254 (2d Cir. 2001)), we would uphold the

award of summary judgment at the final step of the McDonnell

Douglas analysis.

AutoZone carried its second‐step burden by pointing to a nondiscriminatory

reason for Bentley’s discharge: her admitted use of

especially crude language toward a co‐worker. In urging pretext,

Bentley submits that terminating an employee for such a one‐time

occurrence “does not pass the straight‐face test.” Appellant Br. at 16.

In support, she cites Stalter v. Wal‐Mart, 195 F.3d 285 (7th Cir. 1999),

in which the Seventh Circuit characterized terminating an employee

for “gross misconduct” based on eating another employee’s potato

chips as akin to “swatting a fly with a sledge hammer,” id. at 290–91.

The circumstances are hardly comparable. The remark Bentley

directed at Valentin was extremely crude and would not be tolerated

in any workplace outside, perhaps, of a locker room. Further

distinguishing this case from Stalter, Bentley has adduced no evidence

22

suggesting that she thought it permissible to make such a remark. Cf.

id. (noting record evidence that plaintiff might have thought bag of

chips had been abandoned). To the contrary, she has acknowledged

that the remark was both inappropriate and expressly prohibited by

company policy. Thus, she cannot urge pretext simply by questioning

whether her misconduct was sufficiently severe to warrant

termination. See Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)

(“‘The courtʹs role is to prevent unlawful hiring practices, not to act as

a superpersonnel department that second guesses employers’

business judgments.’” (alteration omitted) (quoting Byrnie v. Bd. of

Educ., 243 F.3d 93, 103 (2d Cir. 2001))); Gallo v. Prudential Residential

Servs., Ltd. Pʹship, 22 F.3d 1219, 1226 (2d Cir. 1994) (stating that “courts

must be careful not to second‐guess an employerʹs business

judgment” in firing employee; singular inquiry is whether

termination was discriminatory).

Bentley further urges pretext by pointing to the purported

disparate treatment of a comparator, specifically, Valentin. See

Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)

(recognizing that employer treatment of plaintiff less favorably than

similarly situated person outside protected group can admit inference

of discrimination). Bentley argues that while AutoZone fired her for

a single offensive remark, it allowed Valentin to remain on the job

despite repeated complaints about his sexist comments over a period

of months. The argument fails because, assuming Valentin is an

appropriate comparator, he was fired at the same time as Bentley, i.e.,

in September 2014, following an investigation into both their conduct

that was conducted in August 2014. While that investigation revealed

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that Valentin had been making sexist comments for some time, there

is no evidence from which a reasonable jury could find that AutoZone

was aware of that fact before Bentley and Case reported it during the

August 2014 investigation. Bentley’s deposition testimony cannot

raise a genuine issue of fact as to earlier notice for reasons stated in

the preceding section of this opinion.

The same conclusion obtains with respect to Bentley’s

retaliatory discharge claim. While Bentley argues that retaliation can

be inferred from the temporal proximity between her August 2014

reporting of Valentin’s sexist comments and her September 2014

termination, such an inference can only satisfy her prima facie burden.

It cannot demonstrate pretext. See El Sayed v. Hilton Hotels Corp., 627

F.3d 931, 933 (2d Cir. 2010) (holding that “temporal proximity of

events may give rise to an inference of retaliation for the purposes of

establishing a prima facie case . . . under Title VII, but without more,

such temporal proximity is insufficient to satisfy appellant’s burden

to bring forward some evidence of pretext”); accord Zann Kwan v.

Andalex Grp. LLC, 737 F.3d 834, 847 (2d Cir. 2013). In urging that

“more” than temporal proximity here demonstrates pretext, Bentley

reiterates her comparator argument. But as we have already noted,

that argument depends on AutoZone’s knowing of Valentin’s sexist

comments before August 2014, and the only evidence of such

knowledge is Bentley’s deposition testimony, which is so

contradicted by other record evidence that it cannot raise a genuine

issue of fact.

24

Accordingly, summary judgment was correctly granted in

favor of AutoZone on Bentley’s claims of both discriminatory

discharge and retaliatory discharge.

III. Hostile Work Environment

In reviewing state law claims of discrimination based on a

hostile work environment, Connecticut courts “look to federal case

law for guidance.” Brittell v. Dep’t of Corr., 247 Conn. 148, 164 (1998).

That precedent instructs that a Title VII plaintiff complaining of a

hostile work environment “must show that the ‘workplace is

permeated with discriminatory intimidation, ridicule, and insult that

is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Raspardo

v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). “This standard has both objective and

subjective components: the conduct complained of must be severe or

pervasive enough that a reasonable person would find it hostile or

abusive, and the victim must subjectively perceive the work

environment to be abusive. The incidents complained of must be

more than episodic; they must be sufficiently continuous and

concerted . . . .” Id. (internal quotation marks and citations omitted).

Moreover, to hold an employer liable for such a hostile work

environment, federal law requires the plaintiff to show “a specific

basis for imputing the conduct creating the hostile work environment

to the employer.” Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir.

2013) (internal quotation marks omitted). Two such bases exist: strict

vicarious liability if an employer’s supervisor has created the hostile

environment, see Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d

25

Cir. 2015); and negligence if a co‐worker who is not a supervisor has

created the hostile environment, and the employer, upon becoming

aware of the misconduct, fails to remedy it, see Summa v. Hofstra Univ.,

708 F.3d at 124. We consider Bentley’s hostile work environment

claims against AutoZone on both theories.

Bentley claims that AutoZone is strictly liable for the hostile

work environment created by Valentin because Valentin was a

supervisor. Assuming that a reasonable jury could find that

Valentin’s sexist comments were “sufficiently severe or pervasive” as

“to alter the conditions of [Bentley’s] employment and create an

abusive working environment,” Raspardo v. Carlone, 770 F.3d at 114

(internal quotation marks omitted), the record evidence would not

permit it to find that Valentin was a supervisor. That conclusion is

dictated by Vance v. Ball State University, 570 U.S. 421 (2013).

In Vance, the Supreme Court resolved a circuit split. “Some

courts [had] held that an employee is not a supervisor unless he or

she has the power to hire, fire, demote, promote, transfer, or discipline

the victim”; other courts had “substantially followed the more openended

approach advocated by the EEOC’s Enforcement Guidance,

which tie[d] supervisor status to the ability to exercise significant

direction over another’s daily work.” Id. at 430–31. The Supreme

Court rejected the latter position, holding that “[t]he ability to direct

another employee’s tasks is simply not sufficient” to make one a

supervisor. Id. at 439. Rather, an employee is a supervisor only “when

the employer has empowered that employee to take tangible

26

employment actions against the victim, i.e., to effect 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.’” Id. at 431

(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The

hallmark of the tangible employment action thus used to identify a

supervisor is its potential “to inflict direct economic injury.” Id. at 440.

As the Supreme Court explained in Vance, “[o]nly a supervisor has

the power to cause ‘direct economic harm’ by taking a tangible

employment action,” and it is “because a supervisor has that

authority—and its potential use hangs as a threat over the victim—

that vicarious liability . . . is justified.” Id.; see also Burlington Indus.,

Inc. v. Ellerth, 524 U.S. at 762 (observing that “supervisor has been

empowered by the company as a distinct class of agent to make

economic decisions affecting other employees under his or her

control”).

These principles dictate that for Bentley to raise a triable issue

of fact as to Valentin being a supervisor, she had to adduce admissible

evidence showing that AutoZone had authorized Valentin to do more

than oversee her day‐to‐day performance of assigned tasks. It had to

have authorized Valentin to take tangible employment actions that could

inflict direct economic injury. She has not done so.

The record evidence shows that Valentin could not hire, fire,

promote, or demote employees. Nor could Valentin set employees’

compensation or even their work hours. Such scheduling could only

be done by a store manager, and with that position unfilled at

27

Wallingford, employee work hours at that store were set by East

Haven store manager Mohamed. Thus, while Bentley and Case told

Antunes in their August interviews that Valentin had threatened to

cut Bentley’s hours, to send her home, and even to fire her, there is no

record evidence that AutoZone, in fact, ever empowered Valentin to

take such actions. See, e.g., Velazquez‐Perez v. Developers Diversified

Realty Corp., 753 F.3d 265, 271 (1st Cir. 2014) (“The extent of a workerʹs

authority is determined . . . by an examination of actual authority.”

(internal quotation marks omitted)). Nor is there any evidence that

Valentin ever took such actions, or any actions that diminished

Bentley’s or any other employee’s earnings. While district manager

Campanile testified that Valentin had “the authority to discipline Ms.

Bentley if the circumstances warranted it,” App’x 346, he also testified

that Valentin could not formally discipline Bentley, alter her hours, or

change her compensation. Indeed, the record shows that to the extent

Bentley was disciplined—specifically, with warnings or violation

notices for absence or tardiness—that discipline was initiated by

someone at the store manager level or higher, even though such

actions appear not to have had any adverse economic consequences

for the employee. Meanwhile discipline resulting in termination

could only be ordered by someone at a still higher level, as occurred

when regional manager Blank, on the recommendation of HR

manager Antunes, fired Bentley, Valentin, and Case.

In sum, the record evidence would not permit a reasonable jury

to find that Valentin had the sort of disciplinary authority that could

cause Bentley economic injury, without which he could not be

identified as a “supervisor” for purposes of vicarious liability. See

28

Vance v. Ball State Univ., 570 U.S. at 437 n.9 (stating that employee’s

disciplinary or reassignment authority must have “economic

consequences” for him to be identified as a supervisor).7

Where a hostile work environment is created by a co‐worker

who is not a supervisor, the employer can still be liable, but “only for

its own negligence.” Summa v. Hofstra Univ., 708 F.3d at 124 (internal

quotation marks omitted). To demonstrate such negligence, a plaintiff

must adduce evidence “that the employer failed to provide a

reasonable avenue for complaint or that it knew, or in the exercise of

reasonable care should have known, about the harassment yet failed

to take appropriate remedial action.” Id. (internal quotation marks

omitted); see Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004)

(stating that where “employee is the victim of sexual harassment,

including harassment in the form of a hostile work environment, by

non‐supervisory co‐workers,” employer’s liability depends on

plaintiff showing that “employer knew (or reasonably should have

known) about the harassment but failed to take appropriate remedial

action”).

Bentley insists that record evidence here shows that AutoZone

knew of Valentin’s persistent sexist comments for many months

7 We note that in a recent unpublished order, the Sixth Circuit held that even

AutoZone store managers, who outrank PSMs, are not supervisors under Vance.

See Equal Emp’t Opportunity Commʹn v. AutoZone, Inc., 692 F. App’x 280, 283 (6th

Cir. 2017). That question is not before us on this appeal.

29

without taking any remedial action. But the only evidence supporting

that claim is her own deposition testimony, which we have already

concluded is so contradicted and inconsistent that it cannot raise a

genuine issue of fact as to notice. Absent that testimony, the record

evidence shows that AutoZone learned of Valentin’s sexist comments

only in August 2014, when first reported by Case and then confirmed

by Bentley. An investigation promptly ensued, resulting in Valentin’s

termination. On this record, no reasonable jury could find AutoZone

liable in negligence for a hostile work environment created by

Valentin.

In sum, because Bentley failed to adduce evidence that would

allow a reasonable jury to find AutoZone liable for a hostile work

environment based on sex on either a strict vicarious liability or

negligence theory, the district court correctly ordered summary

judgment in favor of AutoZone on this claim.

CONCLUSION

To summarize, we conclude as follows:

1. Summary judgment was correctly entered in favor of

AutoZone on Bentley’s Connecticut claims of discriminatory

discharge based on sex, retaliatory discharge for reporting sexual

harassment, and a sex hostile work environment because Bentley

failed to adduce sufficient evidence from which a reasonable jury

could resolve any of these claims in her favor.

2. The district court correctly concluded that Bentley’s own

deposition testimony could not raise a genuine issue of fact as to

30

AutoZone’s having notice of Bentley’s sexual harassment by a coworker

before August 2014 because that testimony was

unequivocally contradicted by Bentley’s own earlier sworn and

written statements, and she failed plausibly to explain the numerous

contradictions.

3. The district court also correctly concluded that Bentley raised

no genuine issue of fact as to the harassing co‐worker being a

“supervisor,” as required for AutoZone to be strictly vicariously

liable for any ensuing hostile work environment. The record evidence

showed that, although AutoZone had authorized the co‐worker to

direct Bentley’s performance of day‐to‐day tasks, it had not

authorized him to take any “tangible employment actions” that could

“inflict direct economic injury.” Vance v. Ball State Univ., 570 U.S. at

440, 453.

Accordingly, we AFFIRM the judgment of the district court.