MEMORANDUM OF DECISION
Plaintiff Robert E. Martin, Jr. filed this action on August 12,2002 against the Town of Westport and Stephen Edwards(collectively "the Defendants") alleging claims arising underTitle VII of the Civil Rights Act, 42 U.S.C. § 1981 and 1983,the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101et seq., as well as state statutory and common law. Pendingbefore the Court is Defendants' Motion for Summary Judgment [doc.#18]. For the reasons set forth below, the Motion for SummaryJudgment [doc. #18] is GRANTED IN PART and DENIED IN PART.
I.
The relevant facts are drawn from Defendants' Local Rule 9(c)1Statement [doc. #19] ("Defs.' 9(c)1 Statement"),1 andother pleadings and documents submitted by the parties,2and unless otherwise indicated, are undisputed. Mr. Martin is anAfrican-American male currently employed by the Town of Westport(the "Town") in its Equipment Maintenance Division. Id. ¶ 1.That division falls under the aegis of the Town's Public WorksDepartment, of which Mr. Edwards is the Director. Id. ¶ 2. Mr.Martin is, and at all relevant times was, the Master Mechanic,which is the lead mechanic in the Equipment Maintenance Division,and is responsible for, among other things, leading, instructing,and assisting all Equipment Mechanics in all phases of the work,assigning work, writing up job tickets, maintaining records, maintaining work schedules, and assisting in the requisitioningof parts and supplies. Id. ¶ 4; Master Mechanic Description[doc. # 20], Ex. B.
On or about December 20, 1999, Mr. Martin injured his rightshoulder and wrist while working for the Town. Id. ¶ 10; MartinAffidavit ¶ 18. He underwent surgery on his elbow and wrist onFebruary 14, 2000, and spent time out of work recuperating untilabout August 2000. Id. ¶¶ 11, 12. In August 2000, Mr. Martinreturned to work but his treating physician, Dr. Stewart C.Gross, limited Mr. Martin to light duty, not to exceed four hoursa day, with no lifting. Id. ¶ 13. As a consequence, Mr. Edwardsassigned Mr. Martin exclusively to light duty work, includingcompleting paperwork that had accumulated during Mr. Martin'smedical absence, and ordering parts and attending to inventory.Id. ¶ 14.
On December 14, 2000, Mr. Martin re-injured his right arm whileat home clearing snow from his vehicle, and he remained out ofwork until February 20, 2001. Id. ¶ 16. On February 20, 2001,Mr. Martin again returned to light duty for four hours a day, butincreased to eight-hour days of light duty beginning February 22,2001. Id. ¶ 17. Mr. Martin's light duty assignment restrictedany required lifting to less than ten pounds. Id. ¶ 18. OnApril 13, 2001, after meeting with Mr. Martin and his unionrepresentatives, Mr. Edwards advised Mr. Martin by letter that:"as of the end of April we will only have work for you if yourdoctor authorizes your return to your regular position as MasterMechanic, full time without restrictions, and you do, in fact,return to work." Id. ¶ 19; see also April 13, 2001 EdwardsLetter [doc. # 20], Ex. F.
As of May 1, 2001, Mr. Martin had failed to provide the Townwith a note from his doctor permitting him to return to full-timework without restrictions as required by the April 13 letter.Id. ¶ 20. When Mr. Martin reported to work on May 1, he wasforbidden from working and was ordered to turn in his keys. Id. ¶ 22; May 1, 2001Edwards Letter [doc. #30], Ex. 5. However, Mr. Martin continuedto receive health benefits and all other benefits in accordancewith the contract between the union and the Town. Id. ¶ 23. Heeventually returned to work and was restored to the payroll on orabout October 15, 2001, after an independent medical examinerdeclared him fit to resume his job. Martin Depo. at 82-83, 85.
Mr. Martin filed a grievance charging wrongful termination anddiscrimination against the Town and Mr. Edwards under the termsof the Collective Bargaining Agreement ("CBA"). Id. ¶ 43. Thegrievance was filed directly with the First Selectman, whorejected Mr. Martin's contention that he had been terminated byMr. Edwards since Mr Edwards lacked the authority to fire Mr.Martin. Id. ¶ 45; Martin Depo. at 100. The Connecticut StateBoard of Mediation and Arbitration later affirmed the FirstSelectman's decision and ruled in the Town's favor, finding thatMr. Martin's employment had not been terminated. Id. ¶ 46. Onor about May 1, 2001, Mr. Martin filed a complaint with the CHROalleging that he had been terminated and harassed on the basis ofhis race and physical disability. See CHRO Application,attached to Complaint [doc. #1]. He received a release ofjurisdiction on May 20, 2002, see CHRO Letter, attached toComplaint [doc. #1], and filed this lawsuit on August 12, 2002.
II.
Summary judgment is appropriate only when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). A genuine issue of fact exists when "a reasonable jurycould return a verdict for the nonmoving party," and facts are materialto the outcome if the substantive law renders them so. Andersonv. Liberty Lobby, Inc., 477 U.S. 242 (1986). The moving partybears the burden of demonstrating that no genuine issue exists asto any material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323-25 (1986). If the moving party carries its burden, the partyopposing summary judgment "may not rest upon mere allegations ordenials," rather, the opposing party must "set forth specificfacts showing that there is a genuine issue for trial."Fed.R.Civ.P. 56(e). The Court must draw all ambiguities and inferencesin favor of the plaintiffs. See Anderson, 477 U.S. at 255.However, to defeat a motion for summary judgment, the nonmovingparty "must do more than simply show that there is somemetaphysical doubt as to the material facts." Matsushita Elec.Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Ifthe evidence is merely colorable, or is not significantlyprobative, summary judgment may be granted." Anderson, 477 U.S.at 249-50.
Courts must be "particularly cautious about granting summaryjudgment to an employer in a discrimination case when theemployer's intent is in question. Because direct evidence of anemployer's discriminatory intent will rarely be found,`affidavits and depositions must be carefully scrutinized forcircumstantial proof which, if believed, would showdiscrimination.'" Schwapp v. Town of Avon, 118 F.3d 106, 110(2d Cir. 1997) (citations omitted) (quoting Gallo v. PrudentialResidential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). However,"[s]ummary judgment is appropriate even in discrimination cases,"Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000),where a plaintiff's argument is "based on conclusory allegationsof discrimination and the employer provides a legitimaterationale for its conduct." Tojzan v. N.Y. Presbyterian Hosp.,No. 00 Civ. 6105, 2003 WL 1738993, at *4 (S.D.N.Y. March 31,2003). III. Title VII Claims
There are two issues that the Court should address at theoutset of its consideration of Mr. Martin's Title VII claims.First, Mr. Edwards asserts that he is not subject to suit underTitle VII, since that law applies to employers and not toindividuals, such as Mr. Edwards. Mem. in Supp. of Summ. J. at 8.The Court agrees.
Title VII provides, among other things, that "[i]t shall be anunlawful employment practice for an employer . . . todiscriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment,because of conditions, or privileges of employment, because ofthe individual's race, color, religion, sex, or national origin."42 U.S.C. § 2000e-2(a)(1). An "employer" is defined as "a personengaged in an industry affecting commerce who has fifteen or moreemployees for each working day in each of twenty or more calendarweeks in the current or preceding calendar year, and any agent ofsuch a person." 42 U.S.C. § 2000e(b). The Second Circuit has heldthat "under Title VII individual supervisors are not subject toliability." Mandell v. County of Suffolk, 316 F.3d 368, 377 (2dCir. 2003) (citing Wrighten v. Glowski, 232 F.3d 119, 120 (2dCir. 2000) (per curiam).
Mr. Martin does not address this issue in his opposition brief,and the Court construes Mr. Martin's failure to respond to Mr.Edwards' argument as a concession that Mr. Edwards is not subjectto liability under Title VII. The Court therefore grants Mr.Edwards summary judgment on all of Mr. Martin's Title VII claims,and in the remainder of this opinion, the Court will address Mr.Martin's Title VII claims only with respect to the Town.
Second, Defendants argue that Mr. Martin has not asserted aviable Title VII claim for gender discrimination. Mem. in Supp.of Mot. for Summ. J. at 21. Once again, the Court agrees with Defendants.
Mr. Martin alleges in his Complaint that "[t]he defendantsthrough its agents and employees discriminated against theplaintiff because of plaintiff's race, color, and gender." Compl.¶ 37. As Defendants observe, Mr. Martin has submitted not ascintilla of evidence in support of his gender discriminationclaim. Mem. in Supp. of Mot. for Summ. J. at 21. Mere assertionsor conclusory allegations are insufficient to withstand summaryjudgment. See Cameron v. Cmty. Aid for Retarded Children,335 F.3d 60, 63 (2d Cir. 2003) ("[P]urely conclusory allegations ofdiscrimination, absent any concrete particulars, areinsufficient" to establish a genuine issue of material fact.)(citation omitted); see also Conroy v. New York State Dep't ofCorr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) ("[M]ere conclusoryallegations, speculation or conjecture will not avail a partyresisting summary judgment.") (citation omitted). Moreover, Mr.Martin did not address Defendants' arguments regarding his genderdiscrimination claim in his brief in opposition to the motion forsummary judgment. The Court concludes that Mr. Martin haseffectively abandoned any gender discrimination claim he mighthave had. Accordingly, the Court grants the Town summary judgmenton Mr. Martin's gender discrimination claim.
A. Disparate Treatment
Mr. Martin's disparate treatment racial discrimination claimagainst the Town is governed by the well-established three-partMcDonnell Douglas burden-shifting framework. "`In an employmentdiscrimination case, a plaintiff has the burden at the outset toprove by the preponderance of the evidence a prima facie caseof discrimination.'" Williams v. R.H. Donnelley, Corp.,368 F.3d 123, 126 (2d Cir. 2004) (quoting Collins v. New York CityTransit Auth., 305 F.3d 113, 118 (2d Cir. 2002)). To satisfy his primafacie burden, Mr. Martin must demonstrate that (1) he is amember of a protected class; (2) he is competent to perform thejob or is performing his duties satisfactorily; (3) he sufferedan adverse employment action; and (4) the circumstancessurrounding that action permit an inference of discrimination.Mario v. P&C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir.2002); see also Reeves v. Sanderson Plumbing Prods., Inc.,530 U.S. 133, 142-43 (2000).
The Court is satisfied that Mr. Martin has carried his primafacie burden in support of his disparate treatment claim. Mr.Martin is a member of a protected class, and he suffered anadverse employment action on May 1, 2001 when he was forbidden towork, was ordered to turn in his keys, and was removed from thepayroll from roughly May 1, 2001 to October 15, 2001. MartinAffidavit ¶ 54. While the Town may dispute whether Mr. Martin wascompetent to perform the duties of his job satisfactorily, Mr.Martin states in his affidavit that he was forbidden to return towork even though he was performing the same duties in his job ashe normally did. Martin Affidavit ¶ 50. Moreover, Mr. Martinmaintains that, since he was capable of performing the essentialduties of his job, racial discrimination is a permissibleinference sufficient to satisfy his prima facie burden. Mem. inOpp'n to Mot. for Summ. J., at 16. Given that a plaintiff'sinitial burden in a disparate treatment case is de minimis, theCourt concludes that Mr. Martin has satisfied the first step inthe McDonnell Douglas inquiry and that the Court must proceedto the next steps. See Williams, 368 F.3d at 126 (citationomitted).3 Once a plaintiff sets forth a prima facie claim ofdiscrimination, "a presumption of discrimination arises and theburden shifts to the defendant to proffer some legitimate,nondiscriminatory reason for the adverse decision or action."Mario, 313 F.3d at 767. The Town has satisfied its obligationto proffer a legitimate non-discriminatory reason for Mr.Edwards' actions forbidding Mr. Martin to return to work on May1, 2001. The Town points out that the description of Mr. Martin'sjob as Master Mechanic required him to perform all of the dutiesof an Equipment Mechanic, see Master Mechanic Description [doc.# 20], Ex. B, and that the job description for the EquipmentMechanic requires "Equipment Mechanics [to] maintain and repairvarious types of construction and maintenance equipment, such asdump trucks, snow plows, sanders, rubber tire loaders,bulldozers, crane, graders, rollers, pumps, pick-up trucks andother miscellaneous equipment" and to be "[p]hysically capable ofperforming the job requirements." See Equipment MechanicDescription [doc. #20], Ex. B. The Town relies upon a May 31,2001 letter from Mr. Martin's physician, Dr. Gross, which statesthat Mr. Martin was not capable of performing the tasksassociated with the Equipment Mechanic. The letter states, inpertinent part: [I] have had the opportunity to review the job descriptions for both the Master and Equipment Mechanic positions in the department of public works . . . As you know, I have been the treating physician for this patient since January 7, 2000. I am well versed in his clinical condition. In my opinion and the best of my medical knowledge, I do not believe that this patient would be able to perform the manual and stressful activities required as the Equipment Mechanic. As a Master Mechanic, he could perform the supervisory functions, but would not be able also to perform the functions of the Equipment Mechanic. His limitations would relate to the inability to perform repetitive, stressful manual labor especially over a prolonged periods of time with relationship to rebuilding and repairing engines.See May 31, 2001 Letter [doc. #20], Ex. F. In addition, Mr. Martin does not dispute that as of April 30,2001, he was performing light duty eight hours a day, MartinDepo. at 67, and he acknowledges that on May 1, 2001 he did nothave a release from his treating physician allowing him to returnto work at full capacity. Martin Depo. at 78.
The Town having proffered a legitimate, nondiscriminatoryreason for its actions against Mr. Martin, "the presumption ofdiscrimination created by the prima facie case drops out of theanalysis, and [the Town] `will be entitled to summary judgment. . . unless the plaintiff can point to evidence that reasonablysupports a finding of prohibited discrimination."' Mario, 313F.3d at 767 (quoting James v. New York Racing Ass'n,233 F.3d 149, 154 (2d Cir .2000)). The burden thus shifts back to theplaintiff to prove "by a preponderance of the evidence that thelegitimate reasons offered by the defendant were not its truereasons but were a pretext for discrimination." Id. (quotingReeves, 530 U.S. at 143). The Court must not rely solely on theplaintiff's rebuttal of the employer's explanation but must"examin[e] the entire record to determine whether the plaintiffcould satisfy his `ultimate burden of persuading the trier offact that the defendant intentionally discriminated against theplaintiff.'" Id. (quoting Reeves, 530 U.S. at 143).
Upon its review of the entire record in this case, the Courtconcludes that while Mr. Martin's case is thin, there arequestions of material fact surrounding the Town's motivations inits adverse action against Mr. Martin on May 1, 2001 that requirethis Court to submit Mr. Martin's claims to the jury forresolution.
It is undisputed that Mr. Martin received a letter dated April13, 2001 which stated: As we discussed this morning the Town of Westport does not have permanent light work duty assignments available and as of the end of April 2001 your light duty work assignment will end. Therefore, as of the end of April we will only have work for you if your doctor authorizes your return to your regular position as Master Mechanic, full time without restrictions, and you do, in fact, return to work.See April 13, 2001 Edwards Letter [doc. # 20], Ex. F. Inaddition, as stated earlier, Dr. Gross opined that Mr. Martin wasnot qualified to perform the full spectrum of duties outlined indescription of his position as Master Mechanic on May 1, 2001.
However, Mr. Martin asserts in his affidavit that "[a]t thetime my employment was terminated on May 1, 2001, I was doing thesame duties in my job as I normally did while not under anymedical care," and that he was "able to perform my duties asMaster Mechanic and Equipment Mechanic on May 1, 2001, with anydoctor's limitation(s) or disability that I had." MartinAffidavit ¶¶ 50, 52. Mr. Martin also contests the Town's claimthat the lifting restrictions prevented him from fulfilling hisregular duties, since, "[h]istorically, as a Master Mechanic, Idid not need to lift more than three pounds," and, in any case,"[n]o poundage is found in any job description." Martin Affidavit¶¶ 56, 57. Furthermore, Mr. Martin challenges the informationupon which Dr. Gross based his medical assessment of his workingcapacity. Mr. Martin claims that "according to my job and what Ido [], it was nothing compared to what [Defendants] told him."Martin Depo. at 84. In short, Mr. Martin insists that Mr.Edwards' asserted justification for his action was pretextual —that is, that regardless of what the job description may say, asof May 1 he was doing all of the duties that he normallyperformed as a Master Mechanic and could have continued to do sohad Mr. Edwards not forbidden him from working. Only a jury canresolve that factual dispute.
Of course, merely demonstrating that Mr. Edwards' assertedjustification was pretextual does not necessarily satisfy Mr.Martin's obligations under McDonnell Douglas; he also must proffer evidence from which the trier of fact could reasonablyconclude that the real reason for Mr. Edwards' action was racialdiscrimination. To that end, Mr. Martin proffers evidence ofalleged differential and more favorable treatment accorded towhite employees who were injured on the job or were otherwisedisabled. "[W]here a plaintiff seeks to establish the minimalprima facie case by making reference to the disparate treatmentof other employees, those employees must have a situationsufficiently similar to plaintiff's to support at least a minimalinference that the difference of treatment may be attributable todiscrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 54(2d Cir. 2001). "To be `similarly situated,' the individuals withwhom [the plaintiff] attempts to compare [himself] must besimilarly situated in all material respects." Shumway v. UnitedParcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997).
Mr. Martin provides several examples of white employees whowere allegedly treated more favorably than he after they wereinjured. In the main, Defendants do not contest that these otheremployees were injured or that they were accommodated for aperiod of time. The parties do dispute, however, whether Mr.Martin was similarly situated to the white employees, as requiredto allege disparate treatment on the basis of race. For instance,Mr. Martin points to John Gudzick, Martin Depo. at 103-04, whowhile working in the highway division, injured his right eye in1983 and was left slightly impaired. Def.'s 9(c)1 Statement ¶ 29.Mr. Martin bases his assertion that Mr. Gudzick was treatedpreferentially for his injury on two workplace accommodations:first, Mr. Gudzick was permitted to rely on others to read atransom and, second, Mr. Gudzick was allowed to drive a smallertruck than other workers. Martin Depo. at 108-09. Defendants,however, argue that when Mr. Gudzick was able to return to work,he did do without restrictions. Defs.' 9(c)1 Statement ¶ 29. Next, Mr. Martin points to Michael Frawley, Martin Depo. at104-05, the Building Maintenance Mechanic. Defs.' 9(c)1 Statement¶ 30. In September 1994, while working as a building maintenancemechanic, Mr. Frawley broke his ankle in an injury unrelated towork. Id. He was out of work for several weeks, then releasedfor a light duty assignment on around October 6, 1994. Id. Onemonth later, on November 10, 1994, Defendants state that Mr.Frawley returned to unrestricted work. Id. Mr. Martin assertsthat Mr. Frawley's injury was accommodated for approximatelythree or four months. Martin Depo. at 107. Mr. Martin also claimsthat Dougie Meyers received better treatment following an injurythat affected his ability to work. Martin Depo. at 132.Defendants acknowledge that Mr. Meyers is a building maintenancemechanic, Def.'s 9(c)1 Statement ¶ 33, and is restricted tolifting 40 pounds as a result of a back injury. Id. He has beenaccommodated for ten months on a light duty assignment coveringfor a sick custodian. Id.
The parties' disputes over whether Mr. Martin was or was notsimilarly situated to the white employees and whether Mr. Martinwas or was not was accorded less favorable treatment than thewhite employees involve factual disputes that are properly theprovince of the jury. Harlen Assocs. v. Inc. Vill. of Mineola,273 F.3d 494, 499 n. 2 (2d Cir. 2001) ("[a]s a general rule,whether [individuals] are similarly situated is a factual issuethat should be submitted to the jury"); see Graham v. LongIsland R.R., 230 F.3d 34, 39 (2d Cir. 2000) (reversing districtcourt's grant of summary judgment, the court emphasized that"[w]hether [] employees are similarly situated ordinarilypresents a question of fact for the jury.").4Consequently, the Court denies the Town's motion for summary judgment on Mr. Martin's Title VIIdisparate treatment claim.
B. Retaliation
Title VII prohibits employers from discriminating against anemployee "because [such employee] has opposed any practice madean unlawful employment practice by this subchapter . . ."42 U.S.C. § 2000e-3(a). "Title VII is violated when a retaliatorymotive plays a part in adverse employment actions toward anemployee, whether or not it was the sole cause." Terry v.Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003) (citation andquotation marks omitted). The McDonnell Douglas burden-shiftingframework also applies to retaliation claims brought pursuant toTitle VII. Id. at 141. "To establish a prima facie case ofretaliation, an employee must show (1) participation in aprotected activity known to the defendant; (2) an employmentaction disadvantaging the plaintiff; and (3) a causal connectionbetween the protected activity and the adverse employmentaction." Id. If the defendant introduces such evidence, theplaintiff bears the burden of proving that the allegedjustification is merely a pretext for discriminatory motive.Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996).
In his opposition brief, Mr. Martin notes that he filed twoseparate CHRO complaints, one in 1997 and the other on May 1,2001. Mem. in Opp'n to Mot. for Summ. J., at 26. However, hefurther states that "[t]he CHRO complaint filed on May 1, 2001 isthe basis for this lawsuit." Id. Therefore, his 1997 complaintis irrelevant for purposes of this lawsuit. With regard to theMay 1, 2001 CHRO complaint, Mr. Martin relies wholly onproximity, stating that "the plaintiff's filing of the CHROcomplaint and the adverse employment action on May 1, 2001 was very close." Mem. in Opp'n to Mot. for Summ. J. at 26. WhileMr. Martin contends that on May 1, 2001, the Town took adverseemployment action against Mr. Martin in retaliation for his CHROcomplaint, as the Town points out, Mr. Martin filed his complaintwith the CHRO after he was told to leave the premises and turnin his keys, the events that give rise to Mr. Martin'sallegations of disparate treatment racial discrimination. Def.'sReply Mem. at 7-8. The sequence of events, as chronicled by Mr.Martin himself, thus precludes the Court, or any reasonable trierof fact, from finding that the Town took the adverse actionagainst him on May 1 in response or in retaliation to hissubsequent filing of a CHRO complaint.5 Because Mr.Martin cannot establish the first prong of his prima facieburden on a retaliation claim, the Town is entitled to judgmentas a matter of law on that claim.
C. Hostile Work Environment
Lastly, Mr. Martin alleges that he was subjected to a hostilework environment in violation of Title VII. "In order to prevailon a hostile work environment claim, a plaintiff must first showthat the harassment was sufficiently severe or pervasive to alterthe conditions of the victim's employment and create an abusiveworking environment." Feingold v. New York, 366 F.3d 138, 149(2d Cir. 2004). "Second, the plaintiff must demonstrate aspecific basis for imputing the conduct creating the hostile workenvironment to the employer." Id. at 150.
"Proving the existence of a hostile work environment involvesshowing both objective and subjective elements: the misconductshown must be severe or pervasive enough to create an objectivelyhostile or abusive work environment, and the victim must alsosubjectively perceive that environment to be abusive." Id. (quoting Harris v.Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "In determiningwhether an actionable hostile work environment claim exists, [thecourt] look[s] to all the circumstances, including the frequencyof the discriminatory conduct; its severity; whether it isphysically threatening or humiliating, or a mere offensiveutterance; and whether it unreasonably interferes with anemployee's work performance." Nat'l R.R. Passenger Corp. v.Morgan, 536 U.S. 101, 116 (2002); see Oncale v. SundownerOffshore Servs., Inc., 523 U.S. 75, 78 (1998) (stating that ahostile work environment is created "[w]hen the workplace ispermeated with discriminatory intimidation, ridicule, and insultthat is sufficiently severe or pervasive to alter the conditionsof the victim's employment and create an abusive workingenvironment").
Viewing the totality of the circumstances in the light mostfavorable to Mr. Martin, and drawing all inferences in his favor,the Court concludes that no reasonable jury could find that Mr.Martin's work environment was objectively hostile or abusive. "Ahostile work environment claim is composed of a series ofseparate acts that collectively constitute one unlawfulemployment practice." 42 U.S.C. § 2000e-5(e)(1); Morgan. 536U.S. at 117. "As a general rule, incidents must be more thanepisodic; they must be sufficiently continuous and concerted inorder to be deemed pervasive." Id. Mr. Martin has providedsparse and largely conclusory allegations of harassing incidents.One such incident involved a co-worker, Joe Izzo, who allegedlycalled Mr. Martin a "coon." Martin Depo. at 127. A secondincident involved another co-worker, Dale Wehmhoff, who allegedlyused the "N" word in referring to Mr. Martin. Id. at 128.However, Mr. Martin denies that the incident involving Mr.Wehmhoff is part of this litigation, and therefore the Court will not consider it forpurposes of this motion. Id.6 Moreover, Mr. Martin wasunable to describe any other instances of racially hostileconduct at work, id. at 130, and he admitted that he wasunaware of any supervisors using racially insensitive language.Id. at 133. As a consequence, the only incidents that form thebasis of Mr. Martin's hostile work environment claim, are the Mr.Izzo remark and Mr. Edwards' actions in barring him from work onMay 1, 2001.
While not in any way intending to condone Mr. Izzo's remark —which was inappropriate and should not be tolerated in anyworkplace — the Court does not believe that a reasonable jurycould find that this lone comment, for which Mr. Izzo apologizedto Mr. Martin shortly after uttering it, Martin Depo. at 127,transformed Mr. Martin's workplace into one that was objectivelyhostile and permeated with racial animus. Oncale, 523 U.S. at78. The Second Circuit has noted that "in order `[f]or racistcomments, slurs, and jokes to constitute a hostile workenvironment, there must be more than a few isolated incidents ofracial enmity.'" Richardson v. New York State Dep't of Corr.Serv., 180 F.3d 426, 437 (2d Cir. 1999) (quoting Schwapp, 118F.3d at 110). That is a standard that Mr. Martin has notmet.7 As to the adverse employment action suffered by Mr. Martin onMay 1, 2001, even if Mr. Martin subjectively perceived the actionto be motivated by hostility towards his race, the Court isunable to conclude that a reasonable trier of fact could findthat this incident made his work environment objectively hostilewithin the meaning of the relevant case law. See PennsylvaniaState Police v. Suders, ___ U.S. ___, 124 S.Ct. 2342, 2345(2004). While the Second Circuit has commented that "a single actcan create a hostile work environment if it in fact work[s] atransformation of the plaintiff's workplace," Feingold,366 F.3d 150, Mr. Martin has not described any incident or act thatworked such a transformation of Mr. Martin's workplace. Finally,Mr. Martin's allegation that the Town failed to provide Mr.Martin training opportunities on par with white employees doesnot by itself or in conjunction with the other allegationsadequately support a hostile work environment claim.
Since Mr. Martin has not shown that there are genuine issues ofmaterial facts with regard to his hostile work environment claim,and the Court finds that the undisputed facts are insufficient asa matter of law to establish an objectively abusive environment,the Court grants the Town summary judgment on Mr. Martin'shostile work environment claim. In sum, the Town in entitled tosummary judgment on all of Mr. Martin's Title VII claims exceptfor his disparate treatment claim relating to his being barredfrom work on May 1, 2001. IV. ADA Claims
Mr. Martin brings two claims pursuant to the ADA, one for theadverse employment action he suffered on May 1, 2001, Compl. ¶48, and the other for an alleged failure to accommodate Mr.Martin's alleged disability. Id. ¶ 51. As with Title VII, Mr.Edwards is not subject to liability under the ADA. The ADA'sprohibition against discrimination applies only to employers,employment agencies, labor organizations, and labor-managementcommittees. 42 U.S.C. § 12111(2). It does not contemplateindividual liability. See Diggs v. Town of Manchester,303 F. Supp.2d 163, 175 (D. Conn. 2004) (noting that ADA does notprovide for individual liability). Since the definition of"employer" in Title VII and the ADA are identical, Mr. Edwards isnot subject to liability under the ADA. See Hiller v. Brown,177 F.3d 542, 545 n. 5 (6th Cir. 1999) ("The ADA, ADEA, and theRehabilitation Act borrowed the definition of "employer" fromTitle VII."); Cerrato v. Durham, 941 F. Supp. 388, 395(S.D.N.Y. 1996) ("As other courts have recognized, the argumentsagainst individual liability apply with equal force to themirror-image statutory provisions of Title VII and the ADA.");Harrison v. Indosuez, 6 F. Supp.2d 224, 229 (S.D.N.Y. 1998)("[A]s Title VII and the ADA define `employer' identically, theCourt's holding in Tomka clearly supports the rejection ofpersonal liability under the ADA as well."). Accordingly, theCourt grants Mr. Edwards summary judgment on all of Mr. Martin'sADA claims. See Shannon v. New York City Transit Auth.,332 F.3d 95, 99 (2d Cir. 2003).
To make out a prima facie ADA case against the Town, Mr.Martin must show that (1) the Town is subject to the ADA; (2) hewas a person with a disability within the meaning of the ADA; (3)he was otherwise qualified to perform the essential functions ofhis job, with or without reasonable accommodation; and (4) hesuffered adverse employment action because of his disability. Id. at 99. The Town does not contest the firstelement, and the Court has already determined that Mr. Martinsuffered an adverse employment action. The Town directs itsarguments to the second and third elements of Mr. Martin's primafacie burden. Mem. in Supp. of Mot. for Summ. J. at 21-27.
The second element requires Mr. Martin to show that he wasdisabled within the meaning of the ADA. The ADA defines"disability" with respect to an individual as "(A) a physical ormental impairment that substantially limits one or more of themajor life activities of such individual; (B) a record of suchimpairment; or (C) being regarded as having such an impairment."42 U.S.C. § 12102(2). The only disability asserted by Mr. Martinin his pleadings is a physical impairment that substantiallylimits one or more major life activities.
As the Supreme Court has emphasized, "[m]erely having animpairment does not make one disabled for purposes of the ADA.Claimants also need to demonstrate that the impairment limits amajor life activity." Toyota Motor Mfg., Inc. v. Williams,534 U.S. 184, 195 (2002); see 42 U.S.C. § 12102(2)(A). "`Major lifeactivities' . . . refers to those activities that are of centralimportance to daily life. In order for performing manual tasks tofit into this category — a category that includes such basicabilities as walking, seeing, and hearing — the manual tasks inquestion must be central to daily life." Toyota, 534 U.S. at197. When asked whether there was anything he could not do withhis injured arm that was significant, Mr. Martin replied, "I willnever bowl again." Martin Depo. at 49. On the other hand, Mr.Martin conceded that he could write with his left hand, id. at50; eat; id. at 50; torque a wrench, id. at 51; walk, id.at 73; speak, breath, see, hear, and care for himself. Id. at74. As is apparent from his own testimony, Mr. Martin was notlimited in his ability to perform manual tasks. See Toyota, 534U.S. at 198. Nor could Mr. Martin identify any other activities that are ofcentral importance to daily life that were precluded or limitedby his injury. Furthermore, Mr. Martin admitted that hisimpairment at all relevant times was only temporary. See id.(stating that the impairment's impact must be permanent or longterm in order to be substantially limiting).
For purposes of the ADA, a worker could be substantiallyimpaired from the major life activity of working. See, e.g.,Cameron v. Cmty. Aid For Retarded Children, 335 F.3d 60, 64-65(2d Cir. 2003); Bartlett v. New York State Bd. of Law Exam'rs,226 F.3d 69, 83 (2d Cir. 2000). However, as the Supreme Court haspointed out, "[t]o be substantially limited in the major lifeactivity of working, [] one must be precluded from more than onetype of job, a specialized job, or a particular job of choice."Sutton v. United Air Lines, 527 U.S. 471, 492 (1999); seeGiordano v. City of New York, 274 F.3d 740, 747-48 (2d Cir.2001) (same); see also 29 C.F.R. § 1630.2(j)(3) ("The termsubstantially limits means significantly restricted in theability to perform either a class of jobs or a broad range ofjobs in various classes as compared to the average person havingcomparable training, skills and abilities."). "To make out thisclaim, a plaintiff must establish that she was regarded as`significantly restricted in the ability to perform either aclass of jobs or a broad range of jobs.'" Cameron, 335 F.3d at64-65. Only a single, specific job, that of Master Mechanic, isat issue in this case, and Mr. Martin does not claim, let aloneprovide any evidence that would allow a trier of fact toconclude, that his impairment excluded him from a class of jobsor a broad range of jobs. "The inability to perform a single,particular job does not constitute a substantial limitation inthe major life activity of working." Id.; see Sutton, 527U.S. at 491-92. On the basis of the undisputed facts, therefore,the Court finds that no reasonable trier of fact could concludethat Mr. Martin was disabled within the meaning of the ADA. Consequently, the Court grants the Townsummary judgment on Mr. Martin's ADA claims for disabilitydiscrimination and failure to accommodate.
VI. Due Process
"In analyzing plaintiffs' procedural due process claims, thecourt must first determine (1) whether plaintiffs possessed aprotected liberty or property interest, and, if so, (2) whatprocess plaintiffs were due before they could be deprived of thatinterest." Sealed v. Sealed, 332 F.3d 51, 55 (2d Cir.2003).8
Even assuming that Mr. Martin had a property interest in hisjob, the Court does not believe that, based on the undisputedfacts of this case, a reasonable juror could conclude that Mr.Martin was denied an adequate opportunity to be heard. The CBAsets forth a grievance procedure for employees who wish to appealdisciplinary actions.9 Mr. Martin was aware of the procedures, and filed a grievance on the day he alleges he wasterminated. Martin Depo. at 98. Mr. Martin's grievance wentdirectly to the First Selectman, who ruled that only she, not Mr.Edwards, had the authority to fire Mr. Martin, and that she hadnot done so. Id. at 100. The First Selectman, therefore,determined that Mr. Martin had not, in fact, been terminated.Id. Mr. Martin subsequently arbitrated his claims, pursuant tothe CBA. Id. The arbitration panel also found that Mr. Martinhad not been terminated.10 Id. at 102. Mr. Martin argues that "[a]lthough the collective bargainingagreement attempted to provide due process [], it failed in totalin that the first step of the grievance procedure was set up insuch a fashion that the first select person, the head of one ofthe parties to the action, Town of Westport was the decisionmaker. There is a conflict, thus the grievance procedure isunjust, unfair and provided no due process to the plaintiff."Mem. in Opp'n to Mot. For Summ. J. at 18-19. The Court disagrees.It is well-established in case law that the type of grievanceprocedure provided Mr. Martin by the CBA is sufficient to satisfyconstitutional standards. For example, in Harhay v. Town ofEllington Bd. of Educ., 323 F.3d 206 (2d Cir. 2003), the SecondCircuit held as follows: The CBA, which governed [plaintiff's] employment, established a grievance and arbitration procedure, and [the plaintiff] took advantage of these procedures by filing two grievances that were considered by the Board and by pursuing arbitration. Courts have held that such post-deprivation procedures, providing for a hearing to contest a challenged employment decision, are sufficient to satisfy due process. See e.g., Narumanchi v. Bd. of Trustees of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988); Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 102 (1st Cir. 2002) (pre-deprivation notice and "the full arbitration afforded by the collective-bargaining agreement w[ere] more than sufficient to satisfy" due process requirements).Harhay 323 F.3d at 213.
It is apparent from Mr. Martin's brief that he takes issue notwith the process he was provided but rather with the resultreached by that process. Mr. Martin's disagreement with thesubstance of the arbitrators' decision does not in any waysupport a claim for denial of procedural due process.
The Court therefore grants both Defendants summary judgment onMr. Martin's procedural due process claim.11
XI. State Law Claims
In addition to his federal claims, Mr. Martin brings thefollowing claims under Connecticut state law against theDefendants: discrimination pursuant to Connecticut FairEmployment Practices Act, Conn. Gen. Stat. §§ 46a-60 et seq.("CFEPA"); intentional infliction of emotional distress; andnegligent infliction of emotional distress.
As with Title VII, Mr. Martin cannot bring claims against Mr.Edwards, an individual supervisor, under CFEPA. See Perodeau v.City of Hartford, 259 Conn. 729, 737 (2002). As a result, Mr.Edwards is granted summary judgment on the CFEPA claim. As to Mr.Martin's CFEPA claim against the Town, the Connecticut SupremeCourt has held that Connecticut antidiscrimination statutes are"coextensive with [Title VII]," Brittell v. Dep't of Corr.,247 Conn. 148, 164 (1998); see Arnold v. Yale New Haven Hosp.,213 F. Supp.2d 142, 151 (D. Conn. 2002). For the reasons previouslystated, the Court therefore grants the Town summary judgment onMr. Martin's CFEPA claim to the extent it is based upon claims ofretaliation, hostile work environment or gender discrimination.However, to the extent that Mr. Martin's CFEPA claim is based ondisparate treatment racial discrimination relating to the eventsof May 1, 2001, the Court denies the Town's motion for summaryjudgment for the same reasons stated above regarding Mr. Martin's Title VII claim.
Mr. Martin's remaining state law claims against Mr. Edwards andthe Town are common law claims for intentional and negligentinfliction of emotional distress. Compl. at 10. To establish aintentional infliction of emotional distress claim underConnecticut law, a plaintiff must demonstrate four elements: "(1)that the actor intended to inflict emotional distress or that heknew or should have known that emotional distress was the likelyresult of his conduct; (2) that the conduct was extreme andoutrageous; (3) that the defendant's conduct was the cause of theplaintiff's distress; and (4) that the emotional distresssustained by the plaintiff was severe." Carrol v. Allstate Ins.Co., 262 Conn. 433, 442-43 (2003) (citing Appleton v. Bd. ofEduc. of Town of Stonington, 254 Conn. 205, 210 (2000))."Whether a defendant's conduct is sufficient to satisfy therequirement that it be extreme and outrageous is initially aquestion for the court to determine." Id. (citing Bell v. Bd.of Educ., 55 Conn. App. 400, 410 (1999). "Liability forintentional infliction of emotional distress requires conductthat exceeds "`all bounds usually tolerated by decent society. . .'" Carrol, 262 Conn. at 443 (quoting Petyan v. Ellis,200 Conn. 243, 254 n. 5)). "Conduct on the part of the defendantthat is merely insulting or displays bad manners or results inhurt feelings is insufficient to form the basis for an actionbased upon intentional infliction of emotional distress." Id.at 443. "Only where reasonable minds disagree does it become anissue for the jury." Appleton, 254 Conn. at 210.
Mr. Martin alleges that the "conduct of Defendants inconnection with the termination of the Plaintiff's employmentwhile under medical care for work-related injury was `extreme andoutrageous'" and that the discriminatory treatment to which hewas subjected evinced malice on the part of the Defendantssufficient to be regarded as a "hate crime." Mem. in Opp'n toDefs.' Mot. for Summ. J. at 29-31. Mr. Martin's passionate wordsnotwithstanding, the record as a whole fails to demonstrate thatDefendants' conduct with respect to Mr. Martin was at any point"atrocious," Carrol, 262 Conn. at 444, and the Court does notbelieve that reasonable minds could disagree with thisconclusion.
In order to state a claim for negligent infliction of emotionaldistress, the plaintiff must allege that he was terminated fromhis employment. Perodeau, 259 Conn. at 762. In addition, theplaintiff must demonstrate "`unreasonable conduct of thedefendant in the termination process.'" Id. at 750 (quotingParsons v. United Tech. Corp., 243 Conn. 66, 88 (1997). It isclear from Mr. Martin's own testimony that he was not terminated.He admits that the arbitration board that heard Mr. Martin'sgrievance concluded that Mr. Martin had not been terminated,Martin Depo. at 102, and, as Mr. Martin admits, he returned towork "right away" on or about October 15, 2001, after beingcleared by a couple of doctors. Martin Depo. at 85. Furthermore,even assuming arguendo that Mr. Martin was terminated, wrongfultermination is not by itself a sufficient basis upon which tosustain a claim for negligent infliction of emotional distress.See Perodeau, 259 Conn. at 750. There are no facts in therecord from which a reasonable juror could find that Mr. Martinis entitled to recover for either intentional or negligentinfliction of emotional distress, and the Court therefore grantsDefendants summary judgment on both claims.
XI. Conclusion
For the foregoing reasons, the Court GRANTS IN PART Defendants'Motion for Summary Judgment [doc. #18]. The Court grantsDefendant Edwards summary judgment on all of Plaintiff's claims,and Mr. Edward's is therefore dismissed from this case. The Courtgrants the Defendant Town of Westport summary judgment on all ofPlaintiff's claims except his Title VII and CFEPA claims fordisparate treatment and racial discrimination in the First Countof the Complaint. The parties shall submit their joint trialmemorandum in accordance with the Court's instructions on jointtrial memoranda no later than September 20, 2004 and be readyfor trial thereafter. The parties are directed to contactChambers to obtain a copy of the Court's Joint Trial MemoInstructions.
IT IS SO ORDERED.
1. Mr. Martin's Local Rule 9(c)2 Statement [doc. #29] is notin compliance with Local Rule 56(a)(3), which amended LocalRule 9(c)2, effective August 1, 2003. With respect to each of theDefendants' assertions of undisputed facts in their LocalRule 56(a)(1) statement, Mr. Martin simply responds with either"Admitted" or "Denied." Local Rule 56(a)(2) requires that "[e]achdenial . . . in an opponent's Local Rule 56(a)(2) Statement, mustbe followed by a specific citation to (1) the affidavits of awitness competent to testify as to the facts at trial and/or (2)evidence that would be admissible at trial." D. Conn. L. Civ. R.56(a)(3). Since, "all material facts set forth in [the movant'sRule 56(a)(1) Statement] will be deemed admitted unlesscontroverted by the statement required to be filed and served bythe opposing party in accordance with Local Rule 56(a)(2)," D.Conn. L. Civ. R. 56(a)(1), the Defendants' factual assertions intheir Rule 56(a)(1) will be deemed admitted for the purposes ofthis motion. See S.E.C. v. Global Telecom Servs., L.L.C., No.3:03 CV 418 (PCD), 2004 WL 1638045, at *7 (D. Conn. July 19,2004). "Absent such a rule, the court is left to dig through avoluminous record, searching for material issues of fact withoutthe aid of the parties." Id. In fact, "Fed.R.Civ.P. 56 doesnot impose an obligation on a district court to perform anindependent review of the record to find proof of a factualdispute." Id. That said, the Court is well aware that the Second Circuit hasexpressly cautioned that "[i]t is incumbent upon a court in adiscrimination case to examine `the entire record to determinewhether the plaintiff could satisfy his ultimate burden ofpersuading the trier of fact that the defendant intentionallydiscriminated against the plaintiff.'" Lizardo v. Denny's,Inc., 270 F.3d 94, 101 (2d Cir. 2001) (quoting Reeves v.Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000))(citation omitted); see Zimmermann v. Assocs. First CapitalCorp., 251 F.3d 376, 382 (2d Cir. 2001) (noting that inevaluating the merits of a Title VII case, the task is "toexamine the entire record and, in accordance with Reeves, makethe case-specific assessment as to whether a finding ofdiscrimination may reasonably be made"). Therefore, the Courtwill not rely exclusively on Defendants' Rule 9(c)1 Statement inconsidering Defendants' motion. In particular, the Court hasconsidered Mr. Martin's Affidavit and the exhibits to hisaffidavit.
2. These documents consist of: Defendants' Memorandum of Lawin Support of Motion for Summary Judgment [doc. #20] ("Mem. inSupp. of Mot. for Summ. J."); Plaintiff's Memorandum of Law inSupport of His Objection to Defendants' Motion for SummaryJudgment [doc. #28] ("Mem. in Opp'n. to Mot. for Summ. J.");Plaintiff's Local Rule 9(c)(2) Statement [doc. #29]; andAffidavit of Robert E. Martin, Jr. [doc. #30] ("MartinAffidavit").
3. Mr. Martin mentions in his affidavit that he was deprivedof training opportunities that would improve his chances forpromotion to superintendent that were available to hiscolleagues. Martin Affidavit [doc. #30] ¶ 32. Since the Complaintfails to assert a failure to promote claim, the Court willconsider Mr. Martin's claim that he was deprived of trainingopportunities within the context of his hostile work environmentclaim.
4. The Second Circuit in Harlen Assocs., however, noted that"[t]his rule is not absolute, [], and a court can properly grantsummary judgment where it is clear that no reasonable jury couldfind the similarly situated prong met." Harlen Assocs., 273F.3d at 499 n. 2 (citing Cruz v. Coach Stores, 202 F.3d 560,568 (2d Cir. 2000)). However, on the basis of the recordsubmitted, the Court cannot conclude that no reasonable jurorcould find the similarly situated prong met.
5. In addition, Mr. Martin was forewarned in an April 13, 2001letter — well in advance of Mr. Martin's CHRO complaint — of theadverse action he eventually experienced on May 1. April 13, 2001Edwards Letter [doc. # 20], Ex. F.
6. There are oblique references in Mr. Martin's deposition toprior litigation that apparently resulted in a jury verdict.Martin Depo. at 128. It appears that Mr. Martin at his depositionwas only willing to answer questions regarding his workenvironment that involved the time period after the trial in hisprevious lawsuit. Id. 128-29.
7. Mr. Martin is also unable to demonstrate "a specific basisfor imputing the conduct creating the hostile work environment tothe employer." Feingold, 366 F.3d at 150. The Town has a policyagainst discrimination that provides a complaint procedure foremployees. Defs.' 9(c)1 Statement ¶ 50. With regard to Mr. Izzo'sremark, although Mr. Martin was aware of the Town'santi-discrimination policy, he did not report Mr. Izzo's commentpursuant to that policy. Id. ¶¶ 52, 53. It would be illogicalto impute to the Town knowledge of Mr. Izzo's stray remark whenMr. Martin never reported it to the Town. See Faragher v. Cityof Boda Raton, 524 U.S. 775, 806-07 (1998) ("If the plaintiffunreasonably failed to avail herself of the employer's preventiveor remedial apparatus, she should not recover damages that couldhave been avoided if she had done so."). Mr. Martin does notcontend that Mr. Izzo was his supervisor, or that any supervisorharassed Mr. Martin. Therefore, the Town cannot be heldvicariously liable for Mr. Izzo's remark. See id. at 807 ("Anemployer is subject to vicarious liability to a victimizedemployee for an actionable hostile environment created by asupervisor with immediate (or successively higher) authority overthe employee.").
8. The Complaint does not set forth a § 1983 substantive dueprocess claim stemming from alleged racial discrimination. Mr.Martin makes reference to a due process violation under theSecond Count for violation of the ADA, Compl. ¶ 58, but the Courthas dismissed Mr. Martin's ADA claim. Mr. Martin also raised asubstantive due process claim based on racial discrimination forthe first time in an opposition brief, see Mem. in Opp'n toMot. for Summ. J., at 24-25, but any such claim is untimely and,therefore, the Court will not consider it.
9. Article X of the Collective Bargaining Agreement BetweenThe Town of Westport and Council #4, AFSCME, AFL-CIO, Local1303-385, July 1, 1999 to June 30, 2004 [doc. #20], Ex. G,provides in pertinent part: SECTION 2. PURPOSE The purpose of this procedure is to provide an orderly method of adjusting grievances. A grievance raised by an employee involving the interpretation or application of any provision of this Agreement (including the following areas not specifically covered by this Agreement: transfer, demotion and classification of position) shall be resolved in the following manner: STEP 1. EMPLOYEE TO SUPERVISOR The employee . . . shall present to the Supervisor all the facts available pertaining to the grievance within fifteen (15) working days of the grievance or when the employee should have had knowledge of the facts giving rise to the grievance. Within three (3) working days thereafter the Supervisor shall adjust the grievance or notify the employee and or his/her representative of his/her decision. STEP 2. TO THE DIRECTOR OF PUBLIC WORKS If the employee and his/her representative feel there should be further review, the facts pertaining to the grievance shall be presented to the Director of Public Works in writing by the steward within five (5) working days of the date the Superintendent's written notice is given or such notice was due. The Director of Public Works shall review the grievance and discuss it with the employee and his/her representative within five (5) working days and shall render his/her decision thereafter in writing within give (5) working days following such meeting. STEP 3. TO THE FIRST SELECTMAN If the employee and his/her representative feel further review is necessary, the UNION will request a meeting with the First Selectman within five (50 working days following the written decision of the Director or when such decision was due. The First Selectman shall, within seven (7) working days call a meeting of all the parties concerned and the Union's Grievance Committee and discuss the grievance fully. The First Selectman may render a decision in writing, either at the end of the meeting or within seven (7) days after the meeting to the Representative of the UNION. STEP 4. ARBITRATION In the event the UNION feels that further review is justified, then within thirty (30) calendar days following the written decision of the First Selectman or when such decision was due, the UNION shall file notice of appeal to submit the matter to arbitration. The decision of the Board shall be final and binding on both parties.
10. The Westport Code, § C4-5, states that "[t]he FirstSelectman, at his or her discretion, may remove any employee ofthe Town and any officer or member of any appointed Board orCommission, except as provided by statute."
11. Since the Court has determined that Mr. Martin has notestablished the threshold element of a qualified immunityanalysis — that he was deprived of a clearly establishedconstitutional right, due process or otherwise — it isunnecessary for the Court to address the Town's qualifiedimmunity argument with respect to Mr. Edwards. See Saucier v.Katz, 533 U.S. 194, 201 (2001) ("If no constitutional rightwould have been violated were the allegations established, thereis no necessity for further inquiries concerning qualifiedimmunity.").