389 F.Supp.2d 319 (2005) | Cited 9 times | D. Connecticut | August 23, 2005


On August 10, 1998, eight plaintiffs commenced this action,alleging that defendant City of Middletown ("the City") andseveral of the City's employees had violated provisions of theU.S. Constitution as well as certain federal and state laws. Theplaintiffs, after filing two previous versions of theircomplaint, advanced the following thirteen claims in theirSecond Amended Complaint: (1) racial discrimination, in violation of42 U.S.C. § 1981; (2) racial and age discrimination and retaliation,in violation of Title VII of the Civil Rights Act,42 U.S.C. § 2000e et seq.; (3) violations of the plaintiffs'First Amendment rights, pursuant to 42 U.S.C. § 1983; (4) violations ofthe plaintiffs' Equal Protection rights under theFourteenth Amendment, pursuant to 42 U.S.C. § 1983; (5) violations of theplaintiffs' substantive due process rights under theFourteenth Amendment, pursuant to 42 U.S.C. § 1983; (6) violations of theplaintiffs' procedural due process rights under the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983; (7) conspiracy tointerfere with the plaintiffs' civil rights, in violation of42 U.S.C. § 1985; (8) neglect to prevent a conspiracy to interferewith the plaintiffs' civil rights, in violation of42 U.S.C. § 1986; (9) lack of fair dealing in good faith with the plaintiffsby breaching a collective bargaining agreement; (10) breachingthe duty of fair dealing pursuant to a collective bargainingagreement, in violation of Section 301 of the Labor ManagementRelations Act ("LMRA"), 29 U.S.C. § 185(a); (11) negligentinfliction of emotional distress; (12) intentional infliction ofemotional distress; and (13) age discrimination, in violation ofthe Age Discrimination in Employment Act ("ADEA"),29 U.S.C. § 621 et seq. After various motions, severance of certainclaims, and a jury trial, the only remaining plaintiff isBattista Dino Cendali ("Cendali"), and the only remainingdefendant is the City. Now pending is the City's motion forsummary judgment (dkt. # 163) pursuant to Rule 56 of the FederalRules of Civil Procedure. For the reasons stated herein, theCity's motion (dkt. # 163) is GRANTED.


Cendali is a former employee of the City, which is a municipalcorporation in the State of Connecticut. The City hired Cendalion August 14, 1989, and at all relevant times, Cendali worked asa Utility Worker for the City's Department of Water and Sewer ("DWS"). As a Utility Worker for the City,Cendali was a member of Local 466 of the American Federation ofState, County, and Municipal Employees ("AFSCME"), AFL-CIO,which, pursuant to the Collective Bargaining Agreement ("CBA")between the City and Local 466, represents all the laborer-gradeand utility-grade workers in the DWS.

Cendali, who is Caucasian, claims that during the course of hisemployment, he observed what he determined to be discriminatoryand differential treatment of African-American andHispanic-American DWS employees. In particular, Cendali assertsthat Guy Russo ("Russo"), who became the Director of the DWS inDecember of 1995, discriminated against minority workers. Thus,on December 6, 1995, Cendali, along with three other Cityemployees, wrote a letter to then-mayor Maria Madsen Holzberg("Holzberg"), requesting a meeting for the purpose of relatingtheir grievances to Holzberg. Holzberg, however, declined to meetwith the signatories of this letter. On December 12, 1996,Cendali provided an affidavit in support of a complaint thatCurtis Cockfield ("Cockfield"), an African-American co-worker ofCendali, had filed with the Commission on Human Rights andOpportunities ("CHRO") against Russo and other City officials. Inhis affidavit, Cendali stated that he had observed what heperceived to be discriminatory conduct in the DWS.

Cendali contends that, in retaliation for filing his affidavit in Cockfield's CHRO proceeding, he experienceddiscriminatory and harassing treatment from DWS employees.Particularly, Cendali asserts that he has received a number ofunjustified and factually inaccurate negative criticisms of hiswork performance. In one instance, Cendali claims that hissupervisors disciplined him for using the telephone to consult onhis wife's health. In another instance, Cendali was suspended forallegedly uttering threatening words to a co-worker, even though,Cendali claims, his supervisors had not yet investigated theincident, and he and the co-worker had reconciled. In addition,Cendali claims that his supervisors have required him, on anumber of occasions, to work outdoors in "extremely inclementweather." Also, Cendali claims that his supervisors hadconsistently denied him the opportunity to work overtime. Cendalispecifically points to one instance in December of 1997, where hewas denied the opportunity for overtime snow clearance work.Additionally, Cendali claims that he has experienceddiscriminatory treatment because of his age. Cendali notes thaton April 6, 1998, he was injured on the job, hurting his leftleg. Cendali's supervisor, Donald Fisco ("Fisco"), apparentlyrelated in the accident report Cendali's statement that Cendaliwas "getting old," but Cendali claims that he never commentedabout his age to Fisco. Moreover, Cendali also maintains thatFisco, in the accident report, speculated that Cendali had probably "over exerted himself." Cendali asserts that he tried tomeet with and discuss his complaints with Holzberg, but that sherefused to meet with him.

Cendali filed a joint Charge of Discrimination, which the CHROreceived on May 8, 1998, and the Equal Employment OpportunityCommission ("EEOC") received on June 26, 1998. Cendali received arelease of jurisdiction and right-to-sue letter on September 22,1998. On August 10, 1998, however, before he received hisright-to-sue letter, Cendali, along with City employeesCockfield, Moses Bond ("Bond"), Tanya Oliver-Perry("Oliver-Perry"), Joel Brown ("Brown"), Richard Dimmock("Dimmock"), Gary Corriveau ("Corriveau"), and Ralph Scharborough("Scarborough") filed this action ("the 1998 action")against theCity and nine of the City's employees in their officialcapacities. At the court's direction, the plaintiffs filed anAmended Complaint, dated November 10, 1998. In response to theAmended Complaint, the defendants filed eight separate motions todismiss, separately addressing the claims raised by eachplaintiff. After these motions were filed, the claims ofplaintiffs Corriveau and Scharborough were dismissed bystipulation.

On August 23, 1999, the plaintiffs filed the Second AmendedComplaint, in which the plaintiffs advanced thirteen separatecauses of action. On December 29, 1999, the defendants moved for summary judgment as to all the claims in the Second AmendedComplaint, and the plaintiffs filed an opposition thereto onFebruary 3, 2000. On September 29, 2000, the court ruled on thesummary judgment motion, granting it for the individualdefendants and denying it, without prejudice, for the City. Theresult of the court's ruling was that only the City remained as adefendant.

Cendali's claims in the 1998 action were, pursuant to a motionby the City, severed from the claims of the remaining plaintiffsbecause Cendali commenced a second lawsuit ("the 2001 action")against the City and Fisco.1 In the 2001 action, Cendalifiled a three-count Amended Complaint, alleging: (1) retaliationfor filing his affidavit with Cockfield's CHRO complaint, and forfiling the 1998 action, in violation of 42 U.S.C. § 1981; (2) agediscrimination, in violation of the ADEA; and (3) retaliation forengaging in speech protected by the First Amendment, in violationof 42 U.S.C. § 1983. Cendali, in the 2001 action, claimed thatthe defendants' discriminatory and retaliatory conduct ultimatelyled to his termination on May 31, 2000. The defendants filed amotion for summary judgment, dated December 9, 2002, and on July31, 2003, the court granted the motion on all counts of Cendali'sAmended Complaint. Cendali did not appeal the court's judgment in the 2001 action.

Beginning on October 15, 2002, the claims brought by Bond,Brown, Dimmock, and Cockfield in the 1998 action were tried to ajury. On October 25, 2002, the jury rendered its verdict in favorof the City as to all the plaintiffs' claims, and on November 4,2002, judgment entered in favor of the Cityagainst these fourplaintiffs. By a stipulation filed on April 11, 2003,Oliver-Perry's claims were dismissed. Judgment has been enteredagainst Cendali in his 2001 action, judgment has entered in favorof the City against Bond, Brown, Cockfield, and Dimmock, and allthat remains pending with respect to this dispute are Cendali'sclaims in the 1998 action. On August 29, 2003, the courtconducted a telephonic status conference with the parties todiscuss how to proceed with Cendali's claims in the 1998 action.At the City's request, the court permitted the City to file asecond motion for summary judgment as to Cendali's remainingclaims, which it did on September 19, 2003.



A motion for summary judgment may be granted "if the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue of material fact and that the moving party isentitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Summary judgment is appropriate if, after discovery, thenonmoving party "has failed to make a sufficient showing on anessential element of [its] case with respect to which [it] hasthe burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). "The burden is on the moving party `to demonstratethe absence of any material factual issue genuinely in dispute.'"American Int'l Group, Inc. v. London Am. Int'l Corp.,664 F.2d 348, 351 (2d Cir. 1981) (quoting Heyman v. Commerce & Indus.Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975).

A dispute concerning a material fact is genuine "`if evidenceis such that a reasonable jury could return a verdict for thenonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist.,963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986)). The Court must view allinferences and ambiguities in a light most favorable to thenonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982(2d Cir. 1991). "Only when reasonable minds could not differ asto the import of the evidence is summary judgment proper." Id.


In Count One, Cendali claims that the City violated42 U.S.C. § 1981 by discriminating and retaliating against him because of hissupport for minority workers who were "in pursuit of their legal rights."2 Section 1981(a) provides thefollowing: [a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981(a).

Cendali cannot prevail on his § 1981 claim. In Jett v. DallasIndependent School District, the Supreme Court held that "theexpress `action at law' provided by [42 U.S.C.] § 1983 for the`deprivation of any rights, privileges, or immunities secured bythe Constitution and laws,' provides the exclusive federaldamages remedy for the violation of the rights guaranteed by §1981 when the claim is pressed against a state actor."491 U.S. 701, 735 (1989). Additionally, the Court in Jett held that aplaintiff who sues a municipality under § 1983 for a violation of his rights under § 1981 may not rely upon the doctrine ofrespondeat superior, and the "policy or custom" requirementfor municipal liability under § 1983, as set forth in Monell v.Department of Social Services of the City of New York,436 U.S. 658, 690-91 (1978), must be satisfied. Jett,491 U.S. at 735-36.

After the Supreme Court decided Jett, however, Congress, in1991, added subsection (c) to § 1981, which states that "[t]herights protected by this section are protected against impairmentby nongovernmental discrimination and impairment under color ofState law." 42 U.S.C. § 1981(c). After the 1991 amendment, somecourts found that § 1981(c) statutorily overruled, at least inpart, the holdings in Jett. See Fed'n of African Am.Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.1996) ("[W]e conclude that the amended 42 U.S.C. § 1981 containsan implied cause of action against state actors, therebyoverturning Jett's holding that 42 U.S.C. § 1983 provides theexclusive federal remedy against state actors for the violationof rights under 42 U.S.C. § 1981."); Robinson v. Town ofColonie, 878 F. Supp. 387, 405 n. 13 (N.D.N.Y. 1995)("[S]ubsection (c) [of 42 U.S.C. § 1981] . . . overrules, inpertinent part, the Supreme Court's decision in [Jett].").Indeed, the enactment of subsection (c) has caused a circuitsplit as to whether Jett's holdings were overruled, castingdoubts on Jett's viability. Compare Fed'n of African Am.Contractors, 96 F.3d at 1214 (holding that § 1981, as amended in 1991, overturned Jett's holding that 42 U.S.C. § 1983 providedthe exclusive federal remedy against state actors for violationsof rights under 42 U.S.C. § 1981), with Oden v. OktibbehaCounty, Miss., 246 F.3d 458, 462-64 (5th Cir. 2001) (concludingthat 1991 amendments to § 1981 did not overrule Jett). TheSecond Circuit, though, has not made any express finding on thisissue. See Anderson v. Conboy, 156 F.3d 167, 178 n. 19 (2d.Cir. 1998) ("Section 1981(c) may be ambiguous as to whether itcreates an implied private right of action against state actorsunder Section 1981, statutorily overruling [Jett], which heldthat 42 U.S.C. § 1983 provides the exclusive federal remedyagainst municipalities for violation of the rights set forth inSection 1981(a).").

This court, in the absence of controlling authority to thecontrary, will not deviate from the Supreme Court's analysis of §1981 in Jett. See Felton v. Polles, 315 F.3d 470, 480-81(5th Cir. 2002); Oden, 246 F.3d at 464; Butts v. County ofVolusia, 222 F.3d 891, 894 (11th Cir. 2000) ("Nothing in the1991 amendment to § 1981 evinces Congress' desire to alter theSupreme Court's conclusion in Jett. . . . Accordingly, weconclude that Jett still governs this case."); Dennis v.County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995) ("Wethink the correct reading of the [1991] amendment [to § 1981] is. . . that subsection (c) did not purport to overrule Jett'sholding with respect to municipal liability."); Williams v. Little Rock Mun. WaterWorks, 21 F.3d 218, 224 (8th Cir. 1994); Burbank v. Office ofthe Att'y Gen. of Conn., 240 F. Supp. 2d 167, 174 (D. Conn.2003); Mack v. Port Auth. of New York and New Jersey,225 F. Supp. 2d 376, 383 (S.D.N.Y. 2002) Roddini v. City Univ. of NewYork, No. 02 Civ. 4640, 2003 WL 435981, at *5 n. 7 (S.D.N.Y.Feb. 21, 2003). Under Jett, any claim of a deprivationConstitutional rights, privileges, or immunities by a state actormust be brought pursuant to § 1983, not § 1981. Cendali isasserting such a deprivation by a state actor (i.e., the City),but he brought his claim pursuant to § 1981, which, according toJett, does not create a private cause of action against stateactors. Consequently, because this court finds that Jett's §1981 analysis still controls, Cendali's § 1981 claim against theCity must fail. The City's motion as to Count One is granted.


In Count Two, Cendali claims that the City violated Title VIIof the Civil Rights Act, 42 U.S.C. § 2000e et seq., byretaliating against him because of his support for minorityworkers who were "in pursuit of their legal rights."3Section 2000e-2(a) provides: It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. 2000e-2(a).

First, the City argues that this court lacks jurisdiction overCendali's Title VII claim because his right-to-sue letter wasissued too early. The City relies on § 2000e-5(f)(1), whichprovides, in relevant part: [i]f a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . whichever is later, the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge.42 U.S.C. 2000e-5(f)(1). Cendali filed his joint charge with theCHRO on May 8, 1998, and then with the EEOC on June 26, 1998. TheEEOC issued Cendali's right-to-sue letter on September 22, 1998, which was less than 180 days from the filings with both theCHRO and the EEOC. The City asserts that, under § 2000e-5(f)(1),any right-to-sue letter issued before the statutory 180-dayperiod runs cannot serve as a basis for suit in this court.

There is no binding authority on this issue; the circuits aresplit as to whether a federal court may entertain a Title VIIsuit based upon an "early" right-to-sue letter. CompareMartini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336, 1347 (D.C.Cir. 1999) (holding that suits in the district court based onearly right-to-sue letters are premature), with Sims v. TrusJoist MacMillian, 22 F.3d 1059 (11th Cir. 1994) (holding thatearly right-to-sue letters do not preclude suits in the districtcourts) and Brown v. Puget Sound Elec. Apprenticeship &Training Trust, 732 F.2d 726, 729 (9th Cir. 1984) ("PugetSound") (concluding the same), and Walker v. United ParcelServ. Inc., 240 F.3d 1268, 1274 (10th Cir. 2001) (followingSims and Puget Sound). The Second Circuit, though, has notexpressly decided this question. See Arroyo v. WestLB Admin.,Inc., 213 F.3d 625, 2000 WL 562425, at *1 (2d Cir. 2000) (Table)(declining to decide the issue while noting that the circuits aresplit and that the Second Circuit has not resolved the question).The district courts within the Second Circuit have disagreedabout the consequences of early right-to-sue letters. CompareMcGrath v. Nassau Health Care Corp., 217 F. Supp. 2d 319,325-27 (E.D.N.Y. 2002) (holding that issuance of premature right-to-sue letter didnot warrant dismissal of Title VII claim), with Stafford v.Sealright, Inc., 100 F. Supp. 2d 137, 139-40 (N.D.N.Y. 2000)(holding that failure of EEOC to wait 180 days before issuingright-to-sue letter precluded the plaintiff's lawsuit). Thecourts dismissing cases brought under early right-to-sue lettershave found that "Congress contemplated that investigation andconciliation efforts on the part of the EEOC . . . [are] anintegral part of the Title VII remedy, and that the EEOC is,therefore, required to make some effort at investigating a chargeand conducting some conciliation between employer and employeeduring the 180-day period." Commodari v. Long Island Univ.,89 F. Supp. 2d 353, 382 (E.D.N.Y. 2000). Those courts that allowsuits brought under early right-to-sue letters reason that"Congress included the 180-day period as a statutory `outerlimit' after which the EEOC must cede its exclusive jurisdiction;. . . [Congress] did not intend to bar the EEOC from waiving itsexclusive jurisdiction before expiration of the 180 days, if itbelieves that doing so will benefit claimants and facilitate thepurposes of Title VII." McGrath, 217 F. Supp. 2d at 326(internal quotations omitted).

The rationale advanced by courts allowing suits based on earlyright-to-sue letters to proceed is more persuasive. "[T]he EEOCis overburdened with pending cases and lacks the resources to investigate all of those cases within the 180 day period."Id. at 327. Thus, "[i]nvalidating [the early right-to-sueletter] process will only encourage the EEOC to hold charges inlimbo for the 180-day period." Id. Moreover, to dismissCendali's claim because the EEOC issued its right-to-sue letterearly would be grossly unfair to Cendali. Dismissing Cendali'sTitle VII claim for this reason "will result in wasted resourcesand penalizes [the plaintiff] for the EEOC's procedures." Id.Consequently, the court finds that Cendali's Title VII claimsshould not be dismissed because the EEOC issued the right-to-sueletter early.

Cendali's Title VII claim that the City retaliated against himbecause he filed an affidavit in support of Cockfield fails,however, because the evidence he has presented is insufficient,as a matter of law, to support his claim. "Retaliation claimsunder Title VII are tested under a three-step burden shiftinganalysis." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768(2d Cir. 1998); see McDonnell Douglas Corp. v. Green,411 U.S. 792, 802-04 (1973). "First, the plaintiff must make out aprima facie case of retaliation." Quinn, 159 F.3d at 768."To establish a prima facie case of retaliation, an employeemust show [1] participation in a protected activity known to thedefendant; [2] an employment action disadvantaging the plaintiff;and [3] a causal connection between the protected activity and the adverse employment action." Id. at 769 (internal quotationsomitted). The burden of establishing a prima facie case is"minimal." See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,506 (1993). If the plaintiff makes his prima facie case, "thedefendant then has the burden of articulating a legitimate,non-retaliatory reason for the complained of action." Quinn,159 F.3d at 768. If the defendant can articulate such alegitimate, non-retaliatory reason, the plaintiff "must adduceevidence sufficient to raise a fact issue as to whether [theemployer]'s reason was merely a pretext for retaliation." 769 (internal quotations omitted). That is, the plaintiff mustshow that retaliation "was the real reason for the employmentaction." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000).

There is no dispute as to whether Cendali has satisfied thefirst element of his prima facie case. Filing his affidavitin support of Cockfield's complaint is a protected activity aboutwhich the City would have known. For the next element of hisprima facie case Cendali must demonstrate that he experiencedan "adverse employment action." "An `adverse employment action'is one which is `more disruptive than a mere inconvenience or analteration of job responsibilities.'" Terry v. Ashcroft,336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya v. New York CityBd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Examples ofadverse employment actions "include `termination of employment, a demotion evidenced by a decrease in wage or salary, a lessdistinguished title, a material loss of benefits, significantlydiminished material responsibilities, or other indices . . .unique to a particular situation." Id. (quoting Crady v.Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7thCir. 1993)).

Cendali has failed to provide evidence that he was the victimof an adverse employment action. Cendali asserts that, inretaliation for his support of Cockfield, the City retaliated bygiving Cendali "unfair and baseless disciplinary actions, failureto promote, filing of false police reports, failure to provided[sic] adequate information and/or training to perform the job anddifferential treatment." Yet, Cendali backs his allegations herewith scant evidence. In Cendali's opposition papers, Cendalimakes much of the fact that the City reclassified its DWS plants.Cendali states that this action, which upgraded theclassification of certain plants, effectively demoted Cockfield,who had once been a chief plant operator, but, after the changein the plants' status, no longer had the adequate operator'slicense to hold that position. In Cendali's opinion, the Cityreclassified the plant with the intent to discriminate againstCockfield, a minority worker. Whether or not Cendali's claims inthis regard are true, they are irrelevant. A jury has alreadyrendered a verdict in favor of the City as to Cockfield's claims, so it is not proper for the court to now re-consider the meritsof Cockfield's case. Instead, the court must look at the allegedincidents of retaliation that occurred because Cendali filed anaffidavit in support of Cockfield.

The court notes that Cendali, in his papers and affidavits,mentions certain disciplinary actions that were the subject ofthe 2001 action, namely, an eight-day suspension on February 3,1999, a ten-day suspension on November 30, 1999, a twenty-daysuspension on March 27, 2000, and Cendali's termination on May31, 2000. Leaving aside the fact that these incidents occurredafter the filing of the 1998 action, it is worth noting that thecourt, in the 2001 action, has already addressed these issues inthe July 31, 2003 Ruling on Defendants' Motion for SummaryJudgment. More specifically, the court found that the threesuspensions and other twenty-six incidents involved in the 2001action "do not constitute adverse employment actions" (Ruling onDef. Mot. Summ. J. at 9), and Cendali's ultimate termination wasfound to be lawful in that case. Cendali presents nothing thatwould change the court's findings with regard to those incidents.Consequently, those occurrences cannot support Cendali's TitleVII claim here.

The remainder of Cendali's evidence with regard to adverseemployment actions is wholly inadequate to support a Title VIIclaim. Cendali maintains that he received a number of unjustified and factually inaccurate negative criticisms of hiswork, but he gives no specifics with regard to these criticisms.Even if Cendali had given more detail about how he wascriticized, the court finds that such criticisms of his workperformance would not be adverse employment actions, consideringthat a criticism does not rise to the level of a "termination ofemployment," "demotion evidenced by a decrease in wage orsalary," "less distinguished title," "material loss of benefits,"or "significant diminishing of material responsibilities."Cendali claims that he was disciplined for using the telephone toconsult on his wife's health, but again, this incident (aboutwhich Cendali gives no specifics) does not rise to the level ofan adverse employment action. The fact that Cendali had to workoutdoors in "extremely inclement weather" also does not meet thestandard of an adverse employment action. In addition, the denialof overtime work, which Cendali claims was "consistent," eventhough he points to only one incident in December of1997,4 is not sufficient to constitute an adverseemployment action. Cendali has presented no evidence of adverseemployment actions that would satisfy his burden to establish aprima facie case of discrimination, and, as a result, the City's motion as to CountTwo is granted.


Cendali next asserts a First Amendment retaliation claim,pursuant to 42 U.S.C. § 1983, against the city. As the SecondCircuit has held, a plaintiff making a First Amendment retaliation claim under § 1983 must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination.Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999); seeMount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,429 U.S. 274, 283-87 (1977). "The question of whether certain speechenjoys a protected under the First Amendment is one of law, notfact." Morris, 196 F.3d at 110. "Central to this inquiry iswhether the speech may `be fairly characterized as constitutingspeech on a matter of public concern.'" Id. (quoting Connickv. Myers, 461 U.S. 138, 146 (1983)). In general, "speech on `anymatter of political, social, or other concern to the community'is protected by the First Amendment." Id. (quoting Connick,461 U.S. at 146). Cendali's act of filing an affidavit forCockfield's discrimination claim satisfies this first element,and the City does not dispute that Cendali was speaking on a matter of public concern.5

Cendali has not satisfied the second element, however. "Adverseemployment actions include discharge, refusal to hire, refusal topromote, demotion, reduction in pay, and reprimand." Id.Although it is true that "lesser actions may also be consideredadverse employment actions" with regard to a First Amendmentretaliation claim, id., the actions that the court must nowconsider do not rise to the level of adverse employment actions.As stated herein, the court, during the course of the 2001action, has already made findings with regard to Cendali's majorsuspensions and termination. The court notes that Cendali hasmade some broad, general accusations, and the court will not giveweight to any of Cendali's accusations that are based uponconjecture or speculation. Cendali thus leaves the court with fewspecifics upon which to make findings, and those specific incidents that the court can discern from Cendali's papers (seesupra, Part C, Title VII discussion) are insufficient, as amatter of law, to constitute adverse employment actions. TheCity's motion as to Count Three is granted.


In Count Four, Cendali claims that the City "has establishedand maintained policies, practices, procedures and/or customs ofestablishing, implementing, applying, enforcing and reviewingpersonnel and employment policies, decisions and procedures, andrecommending, determining, and executing remedial and/orcorrective actions and issue [sic] directives based upon orinfluenced by the [sic] race, color, sex, age and for providingsupport to employees in pursuit of their legal rights." (SecondAm. Compl., ¶ 131). According to Cendali, the City, pursuant tothese discriminatory policies, has discriminated and retaliatedagainst him in the terms and conditions of his employment inviolation of his Equal Protection rights under theFourteenth Amendment.

The Fourteenth Amendment to the United States Constitutionprovides that "[n]o state shall . . . deny to any person withinits jurisdiction the equal protection of the laws." U.S. Const.amend. XIV, § 1. The Supreme Court has held that the EqualProtection Clause is "essentially a direction that all personssimilarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439 (1985). Aplaintiff claiming a violation of his equal protection rights canproceed according to several theories: A plaintiff could point to a law or policy that "expressly classifies persons on the basis of race." [Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999] (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213, 227-29 . . . (1995)). Or, a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 . . . (1886). A plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.Brown v. City of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir.2000).

Cendali does not clearly set forth facts from which the courtcould discern how he was treated differently from similarlysituated employees. In his opposition papers, Cendali gives twoexamples of what he perceives to be unequal treatment. Cendaliclaims that there was an incident during which Fisco had grabbedCendali with such force that Cendali had to grab Fisco's scrotumin order to get Fisco to release his grip. According to Cendali,the City did not discipline Fisco for this act. Cendali comparesthis incident to the events that led up to his eight-daysuspension (which was mentioned above), where he "had a verbalexchange with Phil Lombardo, for which he apologized immediatelyfollowing [sic], he was suspended without pay immediately [sic]." (Dkt. # 166 at 13) ("Pl.'s Mem.").6Cendali also points to another "contrast in the administration ofdiscipline," where Fisco apparently brought a firearm to work,yet was never punished, whereas "Cendali received a week [sic]suspension without pay for complying with the direction of thePolice Department."7 (Pl.'s Mem. at 12-13). It seems thatCendali, at least with regard to these incidents, is claiming that the City selectively enforced its disciplinary code againsthim, presumably because of his support for his minorityco-workers.

Although selective enforcement is a "murky corner of equalprotection law," LeClair v. Saunders, 627 F.2d 606, 608 (2dCir. 1980), the Second Circuit has ruled that such a claim isappropriate under the following circumstances: (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)(quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.1992)). Cendali cannot prevail solely by showing that he wastreated differently than others, because "`equal protection doesnot require that all evils of the same genus be eradicated ornone at all.'" Id. at 684 (quoting LeClair, 627 F.2d at 608).Cendali's evidence here is not sufficient to sustain an equalprotection claim. Even if the court were to assume that Cendalihas demonstrated that the City had a policy or custom of treatinghim differently than other workers (which Cendali has notadequately demonstrated) Cendali has not compared himself with asimilarly situated employee. Cendali compares his treatment withFisco's treatment, but Cendali and Fisco did not have the same job responsibilities, and Fisco's purportedinfractions were not the same as Cendali's infractions. That is,Fisco and Cendali were not equals at work; indeed, Fisco wasCendali's supervisor, and Cendali does not demonstrate that hisviolations were similar to Fisco's alleged violations. Therefore,Cendali cannot maintain his equal protection claim with regard tothese incidents.

Cendali's remaining evidence is inadequate to sustain hisclaim. In his opposition papers, Cendali states the following: [f]rom Jaunary 1, 1994 until February 11, 1998, there were forty three [sic] (43) grievances filed protesting management action in the DWS twenty (20) of the grievances involved current or pass [sic] Plaintiff [sic] to this action. Of the remain [sic] twenty three [sic], five involve MaryLee Dorflinger which [sic] address harassment and favoritism, three (3) involve an African American [sic], Willie Pickard who was terminated. Unfair treatment and favoritism represent sixty-five (65%) percent [sic] of the grievances file [sic] within the DWS. Of the remain [sic] grievances, only 4 other persons filed grievances excluding Mary Lee [sic] Dorfinger [sic]. During the period from February 16, 1994 until February 11, 1998, only two grievances, which addressed overtime pay, were upheld.(Pl.'s Mem. at 13). Apparently, Cendali is trying to make asummary of union grievances filed by Local 466 between January 1,1994 through February 11, 1998. From the statement quoted above,Cendali says that only two grievances were upheld betweenFebruary 16, 1994 and February 11, 1998. Yet, based on theexhibits that Cendali filed with his own opposition papers,Cendali's assertion is wrong because the paperwork Cendali submitted seem to indicate that more than two grievances wereupheld. This list of grievances fails to demonstrate how the Cityviolated Cendali's equal protection rights. A comparison betweenthe overall amount of grievances filed and the overall amount ofgrievances upheld has little meaning to Cendali's claim.Additionally, the equal protection claims from the otherplaintiffs in this case have been tried to a jury, and the courtwill not re-litigate those issues here. Cendali does not offerany evidence with regard to his grievances or how they relate tohis equal protection claims. Based on this submission, the courtsees no evidence of Cendali being treated differently from othersimilarly situated employees. Therefore, Cendali cannot maintainan equal protection claim with regard to his grievance summary.

Cendali offers nothing else that would support his equalprotection claim. Leaving aside the general assertions that hereceived a number of "unjustified and factually inaccuratenegative criticisms," the remainder of Cendali's specificcomplaints are not sufficient to sustain his equal protectionclaim. Cendali has not shown how, for example, working outdoorsin "extremely inclement weather" or being disciplined for usingthe telephone to consult his wife's health is an equal protectionviolation. He has not shown how, with any of these incidents, howthe City treated him unequally and unfairly. Consequently, Cendali cannot sustain his equal protection claim,and the City's motion with regard to Count Four is granted.


Cendali next claims that City officials "have subjected [him]to harassing and retaliatory treatment in the terms andconditions of [his] employment so as to offend common notions offundamental fairness by exhibiting a deliberate indifference to[his] complaints of discrimination in violation of the DueProcess Clause of the 14th Amendment of the United StatesConstitution." (Second Am. Compl., ¶ 137). Cendali asserts thatthe City's officials retaliated against him because of hisdiscrimination complaints by exhibiting deliberate indifferenceto his complaints in violation of his right to substantive dueprocess.

"Substantive due process is an outer limit on the legitimacy ofgovernmental action." Natale v. Town of Ridgefield,170 F.3d 258, 263 (2d Cir. 1999). The Supreme Court has emphasized "thatthe touchstone of due process is protection of the individualagainst arbitrary action of government . . . whether the faultlies in a denial of fundamental procedural fairness, . . . or inthe exercise of power without any reasonable justification in theservice of a legitimate governmental objective." County ofSacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (internalquotations and citations omitted).

Cendali claims that, with regard to his discrimination claims,he "attempted to seek the intervention of [Holzberg] and LawrenceKinch, Director of Personnel . . . to no avail. [Cendali's]efforts have included direct written appeals to Holzberg, publicappeals to the Common Council for the City of Middletown, appealsthrough the press, and appeals to the Justice Department of theUnited States. Throughout these appeals for relief there havenever been a single boni [sic] fide investigation undertaken."(Pl.'s Mem. at 3-4).

"For a substantive due process claim to survive . . ., it mustallege governmental conduct that `is so egregious, so outrageous,that it may fairly be said to shock the contemporaryconscience.'" Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005)(quoting Sacramento, 523 U.S. at 847 n. 8). Although the courts"tend to speak of that which `shocks the conscience' largely inthe context of excessive force claims. . . . it can apply toother areas of government activity as well." Id. at 93-94(internal citations omitted). "`[M]alicious and sadistic' abusesof power by government officials, intended to `oppress or tocause injury' and designed for no legitimate government purpose,`unquestionably shock the conscience.'" Id. at 94 (quotingJohnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 252 (2dCir. 2001)). The court uses the "shock the conscience" test because "our constitutional notion of due process rests onthe bedrock principle that we must protect the individual`against . . . the exercise of power without any reasonablejustification in the service of a legitimate governmentalobjective." Id. (quoting Sacramento, 523 U.S. at 845-46).

The alleged "deliberate indifference" of Holzberg and Kinch inthis matter does not rise to the level of action that is"malicious" or "sadistic." That is to say, Cendali's allegationswith regard to inaction by Holzberg and Kinch do not"unquestionably shock the conscience." Indeed, in response toCendali's letter to Holzberg, Holzberg wrote back, informingCendali that she had spoken with Russo regarding Cendali'scomplaints, and that because Cendali was represented by abargaining unit, she recommended that he follow the procedures inthe CBA. The court does not see how this is "deliberateindifference," nor does it see how this "shocks the conscience."In fact, from what the court can discern from the CBA, whichCendali attached to his Amended Complaint, a direct appeal to themayor was not a step in the grievance process.8 Also, Cendali attached to his opposition papers a list of thegrievances filed by Local 466 DWS employees between 1994 and1998, and that list does not indicate that all grievances filedby the plaintiffs, including Cendali, were ignored, or evendenied. There are a number of examples on that list where thegrievance was withdrawn or resolved; in some circumstances, thegrievance was pursued to Step 3 of the grievance procedure. Thus,Cendali cannot even support his claim that his substantive dueprocess rights were violated because of "deliberateindifference."

In addition, Cendali, in his attempt to support his allegation,advances no distinct facts in Count Five that would give rise toa separate substantive due process claim. The Second Circuit has held that "where a specific constitutionalprovision prohibits government action, plaintiffs seeking redressfor that prohibited conduct in a § 1983 suit cannot makereference to the broad notion of substantive due process." 94. In any event, because the City's actions, as a matter oflaw, are not sufficiently egregious to constitute a violation ofCendali's substantive due process rights, Cendali's substantivedue process claim must fail. The City's motion with regard toCount Five is granted.


In Count Six, Cendali claims that the City violated hisprocedural due process rights under the Fourteenth Amendment "byrefusing, on an arbitrary, capacious [sic] and discretionarybases [sic], to investigate [Cendali's] claims of discriminationand summarily dismissing any opportunity for [Cendali] to meetwith and discuss [his] complaints with Holzberg, acting in hercapacity as Mayor as the designated official who was in theposition to investigate or authorized [sic] the investigation ofsuch complaints, influence municipality policies, and/or offerappropriate remedies for discriminatory or harassing treatment."(Second Am. Compl., ¶ 140). That is, Cendali claims that hisprocedural due process rights were violated because Holzbergrefused to meet with him to discuss his discriminationcomplaints. "The requirements of procedural due process apply only to thedeprivation of interests encompassed by theFourteenth Amendment's protection of liberty and property. When protectedinterests are implicated, the right to some kind of prior hearingis paramount." Bd. of Regents of State Colleges v. Roth,408 U.S. 564, 569-70 (1972); see also Patterson v. City ofUtica, 370 F.3d 322, 329 (2d Cir. 2004) ("The Due Process Clauseof the Fourteenth Amendment requires that, generally, a personmust be afforded the opportunity for a hearing prior to beingdeprived of a constitutionally protected liberty or propertyinterest."); New York State Nat'l Org. for Women v. Pataki,261 F.3d 156, 164 (2d Cir. 2001) ("NOW") ("procedural due processprotects only important and substantial expectations in life,liberty, and property"). As the Supreme Court has maintained,although "`[l]iberty' and `property' are broad and majesticterms," Roth, 408 U.S. at 571, "the range of interest protectedby procedural due process is not infinite," id. at 570.

Cendali has not set forth an interest of which the City hasdeprived him. The term "liberty"

denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.Id. at 572 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). There is little doubt that "[i]n a Constitution for afree people, . . . the meaning of `liberty' must be broadindeed." Id. Nevertheless, the court does not believe thatCendali asserts anything here that is a deprivation of a libertyinterest because Cendali's claim does not even resemble a loss ofa long-recognized privilege "essential to the orderly pursuit ofhappiness."

Thus, Cendali must be claiming that he was deprived of aproperty interest in violation of his procedural due processrights. "The Fourteenth Amendment due process guarantee . . .only extends to property claims to which an individual has a`legitimate claim of entitlement.'" NOW, 261 F.3d at 164(quoting Roth, 408 U.S. at 577). That is, Cendali mustdemonstrate that he possessed "a property interest ofconstitutional dimension." Furlong v. Shalala, 156 F.3d 384,393 (2d Cir. 1998). "A cognizable property interest is more thanjust a `unilateral expectation,'" id., for procedural dueprocess does not protect "trivial and insubstantial interest[s],"Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 783 (2d Cir.1991). Indeed, "[t]o have a property interest in a benefit, aperson clearly must have more than an abstract need or desire forit." Roth, 408 U.S. at 577.

Cendali has failed to show that his procedural due processrights were violated. There is nothing to indicate that Cendali had a constitutionally-protected property interest in Holzbergpersonally conducting an investigation into his claims, or inHolzberg meeting with him. Aside from the fact that Cendali hasnot proven that Holzberg did not investigate his discriminationclaims, Cendali did not have "legitimate claim of entitlement" toan investigation by, or a meeting with, Holzberg. "Propertyinterests . . . are not created by the Constitution. Rather theyare created and their dimensions are defined by existing rules orunderstandings that stem from an independent source such as statelaw." Id. Cendali gives no such "independent source" that wouldbestow upon him a property interest in an investigation by theCity's mayor, or in a meeting with the City's mayor. Cendali'sneed or desire for Holzberg to investigate his claims and meetwith him, however, do not implicate due process. Consequently,the City's motion with regard to Count Six is granted.


1. Section 1985 Conspiracy

In Count Seven, Cendali claims that the City "discriminatedagainst [him] by conspiring to prevent and preventing minoritiesinclusive of Plaintiffs from obtaining training opportunities,and conspiring to prevent employees from obtaining redress forharassment based on their race, color and engagement in protectedspeech in violation of 42 U.S.C. § 1985." (Second Am. Compl., ¶ 143). Section 1985(3) provides: If two or more persons in any State . . . conspire . . ., for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. 1985(3). Cendali claims that the City, by illegallyconspiring against him, deprived him of his civil rights.

As the Second Circuit has held, [t]he four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States.Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,1087 (2d. Cir. 1993). Any such conspiracy "must also be motivatedby `some racial or perhaps otherwise class-based, invidiousdiscriminatory animus behind the conspirators' action.'" Id. at1088 (quoting United Bhd. of Carpenters, Local 610 v. Scott,463 U.S. 825, 829 (1983)). "In order to maintain an action underSection 1985, a plaintiff `must provide some factual basissupporting a meeting of the minds, such that defendants enteredinto an agreement, express or tacit, to achieve the unlawfulend." Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346,363 (S.D.N.Y. 2000)).

Cendali's conspiracy claim fails as a matter of law. Cendalioffers no evidence to show any "meeting of the minds;" indeed,Cendali does not address his conspiracy claims in his oppositionpapers. Cendali supports his claim only with conclusory andgeneral allegations of conspiracy. Because Cendali only offerssome vague notion of conspiracy, without any facts, hisconspiracy allegation must fail. See Webb, 340 F.3d at 111("The plaintiffs have not alleged, except in the most conclusoryfashion, that any such meeting of the minds occurred among any orall the defendants. Their conspiracy allegation must thereforefail."); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)(holding that it is proper to dismiss "conclusory, vague orgeneral allegations of conspiracy to deprive a person ofconstitutional rights."). The City's motion with regard to CountSeven is granted.

2. Section 1986 Neglect to Prevent Conspiracy

In Count Eight, Cendali claims that the City, "having knowledgeof the discrimination and retaliation against Plaintiffs andother employees and having the power to prevent suchdiscriminatory and retaliatory treatment, [has] refused orneglected to take any action to prevent such discriminatory andretaliatory actions in violation of 42 U.S.C. § 1986." (Second Am. Compl., ¶ 146). Section 1986 provides: Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured . . . for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented.42 U.S.C. § 1986. As seen from the text of the statute, § 1986provides a cause of action against anyone who had knowledge ofthe wrongs conspired to be done and mentioned in § 1985, and hadthe power to prevent the commission of the conspiracy, butneglected to act. As a result, "a § 1986 must be predicated upona valid § 1985 claim." Mian, 7 F.3d at 1088; see alsoBrown, 221 F.3d at 341. Because Cendali does not have a valid §1985 claim, his § 1986 claim must fail. The City's motion withregard to Count Eight is granted.


1. LMRA Violation9

In Count Ten, Cendali claims that the City has "discriminatedand retaliated against Plaintiffs in breach of their duty of fairdealings pursuant to the Collective Bargaining Agreement. . . .[The City's] actions constitute a violation of29 U.S.C. § 185(a)." (Second Am. Compl., ¶ 151). Section 301 of the LMRA provides the following: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a).

Cendali's claim here cannot stand. The LMRA specificallyexcludes States or political subdivisions thereof from itsdefinition of "employer." See 29 U.S.C. § 142(3) (incorporatingthe National Labor Relations Act ("NLRA") definition of"employer" from 29 U.S.C. § 152(3));10 see alsoStrasburger v. Bd. of Educ., Hardin County Cmty. Unit Sch. Dist.No. 1, 143 F3d 351, 359 (7th Cir. 1998). The Supreme Court has"limited the exemption for political subdivisions to entitiesthat are either (1) created directly by the state, so as toconstitute departments or administrative arms of the government,or (2) administered by individuals who are responsible to publicofficials or to the general electorate." Rose v. Long IslandR.R. Pension Plan, 828 F.2d 910, 916 (2d Cir. 1987) (findingthat the Metropolitan Transit Authority was a politicalsubdivision of the State of New York) (quoting N.L.R.B. v. Natural Gas Util. Dist. of Hawkins County, 402 U.S. 600, 604-05(1971) (finding that Respondent Utility District was a politicalsubdivision subject to the exemption to jurisdiction under theNational Labor Relations Act)).

As a result, the City, under the criteria set forth by theSupreme Court, is a "political subdivision" under the NLRA andLMRA because, as a municipality, it is "administered byindividuals who are responsible to public officials or to thegeneral electorate." Therefore, the City cannot be an "employer"under the LMRA, and it follows that Cendali is not an "employee,"§ 152(3),11 because he does not work for an "employer."Consequently, Cendali's LMRA claim fails, and the City's motionwith regard to Count Ten is granted.

2. Lack of Fair Dealing and Good Faith12

In Count Nine, Cendali maintains that "[a]s a result of [the City's] lack of fair dealing and good faith with Plaintiffs,in breach of the collective bargaining agreement, Plaintiffs,individually and collectively, have suffered financial andemotional loss." (Second Am. Compl., ¶ 149).

"When courts interpret CBAs, traditional rules of contractinterpretation apply as long at they are consistent with federallabor policies." Aeronautical Indus. Dist. Lodge 91 of the Int'lAss'n of Machinists and Aerospace Workers, AFL-CIO v. UnitedTechs. Corp., 230 F.3d 569, 576 (2d Cir. 2000). In contract law,"the implied warranty of good faith [and fair dealing] is readinto all contracts." Fabri v. United Techs. Int'l, Inc.,387 F.3d 109, 127 (2d Cir. 2004) (citing Celentano v. Oaks Condo.Ass'n, 265 Conn. 579, 617 (2003) ("It is axiomatic that theimplied duty of good faith and fair dealing is a covenant impliedinto a contract or a contractual relationship. . . . The covenantof good faith and fair dealing presupposes that the terms andpurpose of the contract are agreed upon by the parties and thatwhat is in dispute is a party's discretionary application orinterpretation of a contract term.") (internal quotationsomitted)).

"Employers must bargain in good faith with unions thatrepresent a majority of employees in an appropriate unit. . . .Good faith requires that an employer explain its positions onvarious issues." Stroehmann Bakeries, Inc. v. Nat'l Labor Relations Bd., 95 F.3d 218, 222 (2d Cir. 1996). Also, the"covenant of good faith and fair dealing requir[es] that neitherparty do anything that will injure the right of the other toreceive the benefits of the agreement." Elm Haven Constr. Ltd.P'ship v. Neri Constr. LLC, 376 F3d 96, 102 (2d Cir. 2004)(quoting Habetz v. Condon, 224 Conn. 231, 238 (1992)). "`Badfaith means more than mere negligence; it involves a dishonestpurpose.'" Id. (quoting Habetz, 224 Conn. at 237).

Cendali offers nothing to demonstrate how the City breached thecovenant of good faith and fair dealing.13 Cendali doesnot show how the City acted with a "dishonest purpose" or how theCity injured his rights to receive the benefit of the CBA.Therefore, the City's motion with regard to Count Nine isgranted.


1. Intentional Infliction of Emotional Distress

In Count Twelve,14 Cendali asserts that "[t]hrough . . .extreme and outrageous behavior, [the City] intentionallyinflicted severe emotional distress upon [Cendali] or knew or should have known that severe emotional distress was a likelyresult of said conduct." (Second Am. Compl., ¶ 157)

With respect to intentional infliction of emotional distressclaims, the Connecticut Supreme Court has stated that, in orderto recover damages on this theory, [i]t must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress and (4) that the emotional distress sustained by the plaintiff was severe.Peytan v. Ellis, 200 Conn. 243, 253 (1986), superseded bystatute on other grounds as recognized in Chadha v. CharlotteHungerford Hosp., 272 Conn. 776 (2005). "Whether a defendant'sconduct is sufficient to satisfy the requirement that it beextreme and outrageous is initially a question for the court todetermine." Appleton v. Bd. of Educ. of Town of Stonington,254 Conn. 205, 210 (2000). "`Liability has been found only where theconduct has been so outrageous in character, and so extreme indegree, as to go beyond all possible bounds of decency, and to beregarded as atrocious, and utterly intolerable in a civilizedcommunity.'" Id. at 210-11 (citing 1 Restatement (Second) ofTorts § 46, comment (d) (1965)).

Cendali's allegations do not meet this standard. Cendali'sallegations could not, as a matter of law, give rise to a claimfor intentional infliction of emotional distress. The evidence in the record demonstrates that Cendali had been disciplined bythe City, but does not support the allegation that the City'semployees, in disciplining him, acted in an extreme andoutrageous manner that is atrocious and utterly intolerable to acivilized community. Also, Cendali makes accusations of so-called"outrageous" behavior (for example, the filing of false policereports) without offering evidence to support these accusations.Therefore, the City's motion must be granted with respect toCount Twelve.

2. Negligent Infliction of Emotional Distress

In Count Eleven, Cendali alleges the same facts as in hisintentional infliction of emotional distress claim. Thedispositive issue when passing upon the validity of a negligentinfliction of emotional distress claim in the employment contextis whether the employer's conduct is so egregious that theemployer "should have realized that its conduct involved anunreasonable risk of causing emotional distress, and that thatdistress, if caused, would result in illness or bodily harm."Perodeau v. City of Hartford, 259 Conn. 729, 751 (2002). "Anindividual making an emotional distress claim must show that, asa result of the employer's conduct, a reasonable person wouldhave suffered emotional distress that might result in illness orbodily harm." Id. at 755 (internal citation omitted). Further,in the employment context, only conduct occurring during the termination process may give rise to a valid infliction ofemotional distress claim. See id. at 762-63. Although Cendalimakes arguments with regard to his termination, Cendali'stermination, as the court noted above, has already been addressedin the 2001 action. Thus, Cendali's termination is not an issuehere, and as such, he cannot, as a matter of law, prevail on thisclaim. The City's motion with regard to Count Eleven is granted.


In his final Count, Cendali claims that the City discriminatedand retaliated against him based on his age, in violation of theADEA, 29 U.S.C. § 621 et seq.15

The ADEA provides that "[i]t shall be unlawful for an employer. . . to discharge or otherwise discriminate against anyindividual with respect to his compensation, terms, conditions,or privileges of employment, because of such individual's age."29 U.S.C. § 623(a)(1). The ADEA's prohibition against discrimination based on age protectsemployees who are at least forty years of age.29 U.S.C. § 631(a).

The Second Circuit analyzes ADEA claims by using theburden-shifting framework of Title VII claims, which is set forthherein. See Abdu-Brisson v. Delta Air Lines, Inc.,239 F.3d 456, 466 (2d Cir. 2001). Cendali's age discrimination claim failsas a matter of law. Although the burden of establishing a primafacie case is not heavy, Cendali has not even met that minimalstandard. Cendali, at the relevant times, was over forty years ofage, and the court will assume that he was qualified for hisposition. Cendali has not demonstrated that he suffered an"adverse employment action" in circumstances that give rise to aninference of age discrimination. As the court pointed out in thediscussion of Cendali's Title VII claim, Cendali has notdemonstrated that, for the purposes of this case, he has sufferedan adverse employment action.

Moreover, there is no indication that any criticism or negativetreatment that Cendali received at work was due to agediscrimination. The specifics of Cendali's claim, i.e., thatCendali was injured on the job, and Fisco apparently noted on theaccident report that Cendali was "getting old," and that Cendalihad "over exerted himself," are not enough to give rise to aninference of age discrimination. "Stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence tomake out a case of employment discrimination." Danzer v. NordenSys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). These comments,which the court will accept as true, are not sufficient tosupport an age discrimination claim; indeed, the comment thatCendali "over exerted himself" does not necessarily have anyconnection to age at all. Cendali's evidence here is insufficientto support his age discrimination claim. As a result, the City'smotion with regard to Count Thirteen is granted.


For the foregoing reasons, defendant's motion for summaryjudgment (dkt. # 163) is GRANTED with respect to all of theplaintiff's claims. Judgment in favor of the City of Middletownshall enter on Counts One through Thirteen of the Second AmendedComplaint with respect to Battista Dino Cendali. The Clerk of theCourt shall close this file.

So ordered.

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