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Date: 08-21-2019
Case Style:
Rachel Bentley v. AutoZoners, L.L.C.
Case Number: 18-2441-CV
Judge: Reena Raggi
Court: United States Court of Appeals for the Second Circuit on appeal from the District of Connecticut (New Haven County)
Plaintiff's Attorney: James V. Sabatini
Defendant's Attorney: Michael kP. Devlin, Tracey E. Kern, Laurie Michele Riley
Description:
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
8
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
9
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.
13
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
18
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
23
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.
Outcome: Accordingly, we AFFIRM the judgment of the district court.
Plaintiff's Experts:
Defendant's Experts:
Comments: