BOOZE v. SHAWMUT BANK

No. 3:98-CV-00120 (WWE)

62 F. Supp.2d 593 (1999) | Cited 0 times | D. Connecticut | July 23, 1999

RULING ON MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In her five count complaint plaintiff, Eranze Booze, alleges claimsagainst Shawmut Bank, Connecticut, N.K.A. Fleet Bank ("Fleet") for racediscrimination pursuant to 42 U.S.C. § 1981, retaliation pursuant to29 U.S.C. 29 U.S.C. § 215 (a)(3) intentional infliction of emotionaldistress, breach of contract and defamation. Each of plaintiffs' claimsare brought in connection with Fleet's decision to terminate heremployment for willful misconduct in May, 1995, and events leadingthereto.1

Fleet has moved for summary judgment on all counts of the complaint andfile therewith a statement of undisputed mat rial facts, pursuant to thedictates of Local Rule 9(c)(1).2

STATEMENT OF FACTS

Local Rule 9(c)(1) imposes on the moving party the requirement ofannexing to the motion for summary judgment a "separate, short andconcise statement of material facts which are not in dispute." Local Rule9(c)(2) places a parallel burden upon the resisting party to include a"separate, short and concise statement of material facts as to which itis contended that there exists a genuine issue to be tried." Local Rule 9(c)(1) provides that the facts set forth by the moving party inaccordance with that Rule shall be deemed admitted unless controverted bythe opposing party in accordance with Rule 9(c)(2). Local Rule 9(c)(3)makes clear that these requirements are in addition to those of Fed.R.Civ.P. 56.

The purpose of a Rule 9(c)(2) Statement is to make affirmativestatements which will aid and inform the Court. The absence of a timelyRule (c)(2) Statement, (later filed in noncompliance with the LocalRules), fails to serve this purpose. This alone would be grounds for agrant of summary judgment. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2dCir. 1984) (no filing in compliance with local rule; grant of summaryjudgment); Trzaskos ex rel. Trzaskos v. St. Jacques, 39 F. Supp.2d 177(D.Conn. 1999) (granting summary judgment); Kusnitz v. Yale Univ. Sch. ofMedicine, 1998 WL 422903 (D.Conn. July 16, 1998) (granting summaryjudgment); Scianna v. McGuire, et al., 1996 WL 684400 (D.Conn. March 21,1996) (granting summary judgment). In the interests of judicialfairness, however, the Court will consider the issues in this case anddecide the case on the merits. However, all facts set forth indefendant's complying Rule 9(c)(1) statement will be deemed admitted byplaintiff for purposes of the decision on this Motion.

The plaintiff is an African American woman who commenced employmentwith Connecticut National Bank in 1989. She testified that during thecourse of her employment she believed she developed a reputation forbeing a "troublemaker, an aggressive person, a person with an attitude."Indeed, the record is replete with this type of behavior towards herco-workers and supervisors.

Three of plaintiffs' supervisors issued performance reviews thataddressed the plaintiffs' interpersonal skills and conflict resolution.The plaintiffs' review for the period January, 1990, through January,1991, rated the plaintiffs' performance as "1" on a scale of zero tofive. The plaintiffs' supervisor at that time observed that plaintiffneeded to "strive to improve in this area. She has on occasion let herpersonal feelings effect [sic] her performance."

Plaintiffs' review for the period May, 1991, through May, 1992, ratedher performance in interpersonal skills as "2" out of five. Thesupervisor wrote that the plaintiff "must learn to work better withothers within her area. She does not deal with conflict well. She needsto control her temper better."

Plaintiffs' performance review for the period April 1, 1993, throughApril 1, 1994, included the comment that her "ability to deal withconflict can improve."

Plaintiff testified at her deposition that, regardless of these threeperformance reviews (each done by a different supervisor), she did notthink that she had any need to improve her interpersonal andcommunication skills or to learn to work better with people. Shedetermined to not make any effort to improve her performance in theseareas.

In January, 1995, plaintiff experienced two instances of late overtimepay. In the first instance, she "insisted" that her supervisor issue animmediate "transmittal", which could be cashed at the bank like anypaycheck. He acceded to her demand. She acknowledged that the supervisorprobably felt that she was being aggressive, disruptive or disrespectful.Following his interaction with the plaintiff concerning the status of herovertime pay, her supervisor contacted the Human Relations Departmentabout the plaintiff.

As a result, plaintiff was called for a meeting with Veronica Leonardof Human Resources. Ms. Leonard is also African-American. She counseledplaintiff about how to handle difficulties with plaintiffs' supervisorsand clarified the bank's policies and procedures on unprofessionalconduct.

A second problem with late overtime checks occurred and plaintiffreacted similarly, this time to her supervisor, Queen Williams, anotherAfrican-American woman. Ms. Williams gave plaintiff money out of her ownpocket after plaintiff stated that she needed the money to get home.Plaintiff acknowledged that, because of a host of prior incidents, Ms.Williams had labeled her as "aggressive, loud, boisterous, just keepingthings going into trouble."

In Ms. Williams' judgment, plaintiff engaged in unprofessional conductthat was loud and disruptive to the department. Accordingly, Ms. Williamscontacted the Human Resources Department concerning the plaintiffs'conduct.

In April, 1995, Ms. Williams and Mary Felice of the Human ResourcesDepartment met with plaintiff to issue her a written warning and advisedher that it concerned being loud and disruptive in the department. Thewritten warning stated that plaintiffs' conduct had been "unprofessional"and that she had become "loud and disruptive in the department." Theletter also reiterated the bank's policies on unprofessional conduct.Plaintiff was warned that "continuing the above behavior will warrantyour immediate termination." With a look on her face throughout thehearing, plaintiff showed she was upset by it. The plaintiff described itas a "mean look" that basically conveyed "don't say nothing to me at thismoment." With the mean look on her face, plaintiff testified that shestated during the meeting "what goes around comes around" by which shemeant "you'll get yours in return." Plaintiff refused to sign the writtenwarning.

Plaintiff acknowledged that Ms. Williams felt that the statements werethreatening. In her affidavit Ms. Williams averred that the statementswere indeed threatening in nature and that she was in fear of her safetyas a result of plaintiffs' actions at that meeting.

Because of plaintiffs' conduct, Ms. Felice terminated the meeting andreported what had happened at the meeting to Veronica Leonard, Ms.Felice's supervisor.

In May, 1995, Ms. Leonard met with plaintiff. Upon being told to sitdown, plaintiff refused to do so, testifying that "I didn't like the wayshe said it to me."

As Ms. Leonard averred in her affidavit, in Ms. Leonard's judgment,plaintiff conducted herself in an inappropriate, disruptive andinsubordinate fashion during the meeting. Ms. Leonard found plaintiff tobe so volatile and angry that she was concerned for the safety of theother employees in the department, including a pregnant woman.Accordingly, Ms. Leonard made the decision that plaintiffs' conductwarranted immediate termination. Ms. Leonard advised the plaintiff ofthis and that the reason for the termination was "willful misconduct."

The present litigation then ensued.

LEGAL ANALYSIS

I. The Standard of Review

In a motion for summary judgment the burden is on the moving party toestablish that there are no genuine issues of material fact in disputeand that it is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct.2505, 91 L.Ed.2d 202 (1986) (plaintiff mustpresent affirmative evidence in order to defeat a properly supportedmotion for summary judgment).

If the nonmoving party has failed to make a sufficient showing on anessential element of his case with respect to which he has the burden ofproof at trial, then summary judgment is appropriate. Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Insuch a situation, there can be `no genuine issue as to any materialfact,' since a complete failure of proof concerning an essential elementof the nonmoving party's case necessarily renders all other factsimmaterial." Id. at 322-23, 106 S.Ct. 2548. Accord, Goenaga v. March ofDimes Birth Defects Foundation, 51 F.3d 14, 18 (2d.Cir. 1995) (movant'sburden satisfied by showing if it can point to an absence of evidence tosupport an essential element of nonmoving party's claim).

The court is mandated to "resolve all ambiguities and draw allinferences in favor of the nonmoving party. . . ." Aldrich v. RandolphCent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, 506 U.S.965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). "Only when reasonable mindscould not differ as to the import of the evidence is summary judgmentproper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied,502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). If the nonmovingparty submits evidence which is "merely colorable", or is not"significantly probative," summary judgment may be granted. Anderson, 477U.S. at 249-50, 106 S.Ct. 2505.

"[T]he mere existence of some alleged factual dispute between theparties will not defeat an otherwise properly supported motion for summaryjudgment; the requirement is that there be no genuine issue of materialfact. As to materiality, the substantive law will identify which factsare material. Only disputes over facts that might affect the outcome ofthe suit under the governing law will properly preclude the entry ofsummary judgment. Factual disputes that are irrelevant or unnecessarywill not be counted." Id. at 247-48, 106 S.Ct. 2505 (emphasis inoriginal).

II. The Standard As Applied

A. 42 U.S.C. § 1981

Plaintiffs' first cause of action is for racial discrimination broughtpursuant to 42 U.S.C. § 1981. In order to set forth a prima facie caseof such discrimination, plaintiff must set forth genuine issues ofmaterial fact as to four elements. First, she is a member of theprotected class; (2) she was performing her job satisfactorily; (3)plaintiff was terminated; and (4) the circumstances surrounding thetermination give rise to an inference of discrimination on the basis ofplaintiffs' membership in that class. McLee v. Chrysler Corp., 109 F.3d 130,134 (2d Cir. 1997); Bloom v. Jewish Home for Elderly of FairfieldCounty, Inc., 44 F. Supp.2d 439, 441 (D.Conn. 1999).

Although the burden on the plaintiff to make a prima facie case is deminimis, plaintiff has failed to do so for two reasons. First, she wasnot performing her job satisfactorily. She was continuously disruptive toher entire department, including her co-workers and supervisors,including persons of her own race. She acknowledged in her depositionthat she was "seen as a troublemaker, an aggressive person, a person withan attitude." After her first session with an African-American HumanResources counselor, plaintiff determined not to change her attitude.Again, when her African-American supervisor sent her to Human Resourcesfor the repetition of the same disruptive behavior, plaintiff was againtold of the bank's policies regarding unprofessional conduct in the workplace. Plaintiff was also given a written warning at this meeting thatcontinuing this behavior would result in her immediate termination.Plaintiff refused to sign the letter of warning. At yet a third meeting,her attitudewas such that she was terminated for "willful misconduct". For thesereasons, then, plaintiff fails to set forth her prima facie case underelement number two.

She also has failed to set forth genuine issues of material fact as toprong four, as there was no inference of discrimination in hertermination. Her deposition testimony concerning the circumstances of hertermination and her disciplinary warnings prior to it demonstrates noinference of discrimination, especially since the majority of herdisciplinarians were African-American. See Toliver v. Community ActionCommission, 613 F. Supp. 1070, 1074 (S.D.N.Y. 1985), aff'd, 800 F.2d 1128(2d Cir.), cert. denied, 479 U.S. 863, 107 S.Ct. 217, 93 L.Ed.2d 146(noting that because some of the decision makers were members of the sameprotected class as plaintiff, inference of discrimination becomesattenuated).

In Bloom v. Jewish Home for the Elderly of Fairfield County, Inc.,44 F. Supp.2d 439 (D.Conn. 1999), the plaintiff was terminated forserious performance problems concerning patient treatment and interactionwith other staff. This Court held that plaintiff failed to establish aprima facie case of discrimination and granted summary judgment in favorof the defendant. This Court's decision in Bloom is on all fours with thefacts in this case.

Summary judgment will be granted on the 42 U.S.C. § 1981 claim.

B. 28 U.S.C. § 215 (a)(3)

Plaintiff next alleges that she had engaged in the exercise ofprotected rights under the Fair Labor Standards Act, 28 U.S.C. § 201,et seq. ("FLSA"). Plaintiff specifically sets forth her claim under28 U.S.C. § 215 (a)(3) which provides in relevant part that is shallbe unlawful "to discharge or in any other manner discriminate against anyemployee because such employee has filed any complaint or instituted anyproceeding under or related to this chapter."

Construing the unambiguous language of this Section, the Second Circuithas held that the retaliation provisions of the Equal Pay Act ("EPA")3do not encompass "informal workplace complaints" or "complaints made to asupervisor", as do the filing of formal complaints or instituting aproceeding [under the FLSA or EPA]. Lambert v. Genesee Hospital, 10 F.3d 46,55 (2d Cir. 1993). In Lambert, the court held that "oral complaints to asupervisor that an employee was being paid less than the [employee]thought she should have been" do not rise to the level of a formalcomplaint under EPA. Id. at 56. Accord, Johns v. Cianbro Corp., 1999 WL200699 at *2 (D.Conn. March 29, 1999) (granting motion to dismiss on theFELA /EPA count because, as a matter of law, a "complaint to one'semployer, by itself, is insufficient to state a claim for retaliation.")

Since plaintiff never made a complaint of any kind to either theConnecticut Department of Labor or the U.S. Department of Labor, based onthe clear precedent in this Circuit, plaintiffs' "informal workplacecomplaints" regarding the timing of her overtime pay do not constituteprotected activity on which to base a claim for retaliation pursuant to28 U.S.C. § 215 (a)(3). Summary judgment will be granted in favor ofFleet on this claim.

C. The State Law Claims

Inasmuch as the Court will grant summary judgment on both federalclaims, it will not maintain jurisdiction over the supplemental stateclaims. See, 28 U.S.C. § 1367 (c)(3).

CONCLUSION

Plaintiff has set forth no facts that could affect the outcome of thissuit under thegoverning law. The Motion for Summary Judgment [Doc. No. 21] is GRANTED.The Clerk is directed to close this case.

SO ORDERED.

1. Although the complaint caption also names Queen Williams and MaryFelice as defendants, neither individual was ever served with thecomplaint. Fleet, therefore, is the only defendant in this case.

2. Plaintiff did not file an alleged "statement of facts" until aftera significant and extended period after which it should have been filedhad passed. More telling, the document does not comply with therequirements of Local Rule 9(c)(2). Accordingly, the Court will notconsider that document in issuing this Ruling.

3. The EPA is an amendment to the FLSA and falls under Section215(a)(3) of the FLSA. The analysis is identical. Lambert, 10 F.3d at55.

RULING ON MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In her five count complaint plaintiff, Eranze Booze, alleges claimsagainst Shawmut Bank, Connecticut, N.K.A. Fleet Bank ("Fleet") for racediscrimination pursuant to 42 U.S.C. § 1981, retaliation pursuant to29 U.S.C. 29 U.S.C. § 215 (a)(3) intentional infliction of emotionaldistress, breach of contract and defamation. Each of plaintiffs' claimsare brought in connection with Fleet's decision to terminate heremployment for willful misconduct in May, 1995, and events leadingthereto.1

Fleet has moved for summary judgment on all counts of the complaint andfile therewith a statement of undisputed mat rial facts, pursuant to thedictates of Local Rule 9(c)(1).2

STATEMENT OF FACTS

Local Rule 9(c)(1) imposes on the moving party the requirement ofannexing to the motion for summary judgment a "separate, short andconcise statement of material facts which are not in dispute." Local Rule9(c)(2) places a parallel burden upon the resisting party to include a"separate, short and concise statement of material facts as to which itis contended that there exists a genuine issue to be tried." Local Rule 9(c)(1) provides that the facts set forth by the moving party inaccordance with that Rule shall be deemed admitted unless controverted bythe opposing party in accordance with Rule 9(c)(2). Local Rule 9(c)(3)makes clear that these requirements are in addition to those of Fed.R.Civ.P. 56.

The purpose of a Rule 9(c)(2) Statement is to make affirmativestatements which will aid and inform the Court. The absence of a timelyRule (c)(2) Statement, (later filed in noncompliance with the LocalRules), fails to serve this purpose. This alone would be grounds for agrant of summary judgment. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2dCir. 1984) (no filing in compliance with local rule; grant of summaryjudgment); Trzaskos ex rel. Trzaskos v. St. Jacques, 39 F. Supp.2d 177(D.Conn. 1999) (granting summary judgment); Kusnitz v. Yale Univ. Sch. ofMedicine, 1998 WL 422903 (D.Conn. July 16, 1998) (granting summaryjudgment); Scianna v. McGuire, et al., 1996 WL 684400 (D.Conn. March 21,1996) (granting summary judgment). In the interests of judicialfairness, however, the Court will consider the issues in this case anddecide the case on the merits. However, all facts set forth indefendant's complying Rule 9(c)(1) statement will be deemed admitted byplaintiff for purposes of the decision on this Motion.

The plaintiff is an African American woman who commenced employmentwith Connecticut National Bank in 1989. She testified that during thecourse of her employment she believed she developed a reputation forbeing a "troublemaker, an aggressive person, a person with an attitude."Indeed, the record is replete with this type of behavior towards herco-workers and supervisors.

Three of plaintiffs' supervisors issued performance reviews thataddressed the plaintiffs' interpersonal skills and conflict resolution.The plaintiffs' review for the period January, 1990, through January,1991, rated the plaintiffs' performance as "1" on a scale of zero tofive. The plaintiffs' supervisor at that time observed that plaintiffneeded to "strive to improve in this area. She has on occasion let herpersonal feelings effect [sic] her performance."

Plaintiffs' review for the period May, 1991, through May, 1992, ratedher performance in interpersonal skills as "2" out of five. Thesupervisor wrote that the plaintiff "must learn to work better withothers within her area. She does not deal with conflict well. She needsto control her temper better."

Plaintiffs' performance review for the period April 1, 1993, throughApril 1, 1994, included the comment that her "ability to deal withconflict can improve."

Plaintiff testified at her deposition that, regardless of these threeperformance reviews (each done by a different supervisor), she did notthink that she had any need to improve her interpersonal andcommunication skills or to learn to work better with people. Shedetermined to not make any effort to improve her performance in theseareas.

In January, 1995, plaintiff experienced two instances of late overtimepay. In the first instance, she "insisted" that her supervisor issue animmediate "transmittal", which could be cashed at the bank like anypaycheck. He acceded to her demand. She acknowledged that the supervisorprobably felt that she was being aggressive, disruptive or disrespectful.Following his interaction with the plaintiff concerning the status of herovertime pay, her supervisor contacted the Human Relations Departmentabout the plaintiff.

As a result, plaintiff was called for a meeting with Veronica Leonardof Human Resources. Ms. Leonard is also African-American. She counseledplaintiff about how to handle difficulties with plaintiffs' supervisorsand clarified the bank's policies and procedures on unprofessionalconduct.

A second problem with late overtime checks occurred and plaintiffreacted similarly, this time to her supervisor, Queen Williams, anotherAfrican-American woman. Ms. Williams gave plaintiff money out of her ownpocket after plaintiff stated that she needed the money to get home.Plaintiff acknowledged that, because of a host of prior incidents, Ms.Williams had labeled her as "aggressive, loud, boisterous, just keepingthings going into trouble."

In Ms. Williams' judgment, plaintiff engaged in unprofessional conductthat was loud and disruptive to the department. Accordingly, Ms. Williamscontacted the Human Resources Department concerning the plaintiffs'conduct.

In April, 1995, Ms. Williams and Mary Felice of the Human ResourcesDepartment met with plaintiff to issue her a written warning and advisedher that it concerned being loud and disruptive in the department. Thewritten warning stated that plaintiffs' conduct had been "unprofessional"and that she had become "loud and disruptive in the department." Theletter also reiterated the bank's policies on unprofessional conduct.Plaintiff was warned that "continuing the above behavior will warrantyour immediate termination." With a look on her face throughout thehearing, plaintiff showed she was upset by it. The plaintiff described itas a "mean look" that basically conveyed "don't say nothing to me at thismoment." With the mean look on her face, plaintiff testified that shestated during the meeting "what goes around comes around" by which shemeant "you'll get yours in return." Plaintiff refused to sign the writtenwarning.

Plaintiff acknowledged that Ms. Williams felt that the statements werethreatening. In her affidavit Ms. Williams averred that the statementswere indeed threatening in nature and that she was in fear of her safetyas a result of plaintiffs' actions at that meeting.

Because of plaintiffs' conduct, Ms. Felice terminated the meeting andreported what had happened at the meeting to Veronica Leonard, Ms.Felice's supervisor.

In May, 1995, Ms. Leonard met with plaintiff. Upon being told to sitdown, plaintiff refused to do so, testifying that "I didn't like the wayshe said it to me."

As Ms. Leonard averred in her affidavit, in Ms. Leonard's judgment,plaintiff conducted herself in an inappropriate, disruptive andinsubordinate fashion during the meeting. Ms. Leonard found plaintiff tobe so volatile and angry that she was concerned for the safety of theother employees in the department, including a pregnant woman.Accordingly, Ms. Leonard made the decision that plaintiffs' conductwarranted immediate termination. Ms. Leonard advised the plaintiff ofthis and that the reason for the termination was "willful misconduct."

The present litigation then ensued.

LEGAL ANALYSIS

I. The Standard of Review

In a motion for summary judgment the burden is on the moving party toestablish that there are no genuine issues of material fact in disputeand that it is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct.2505, 91 L.Ed.2d 202 (1986) (plaintiff mustpresent affirmative evidence in order to defeat a properly supportedmotion for summary judgment).

If the nonmoving party has failed to make a sufficient showing on anessential element of his case with respect to which he has the burden ofproof at trial, then summary judgment is appropriate. Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Insuch a situation, there can be `no genuine issue as to any materialfact,' since a complete failure of proof concerning an essential elementof the nonmoving party's case necessarily renders all other factsimmaterial." Id. at 322-23, 106 S.Ct. 2548. Accord, Goenaga v. March ofDimes Birth Defects Foundation, 51 F.3d 14, 18 (2d.Cir. 1995) (movant'sburden satisfied by showing if it can point to an absence of evidence tosupport an essential element of nonmoving party's claim).

The court is mandated to "resolve all ambiguities and draw allinferences in favor of the nonmoving party. . . ." Aldrich v. RandolphCent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, 506 U.S.965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). "Only when reasonable mindscould not differ as to the import of the evidence is summary judgmentproper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied,502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). If the nonmovingparty submits evidence which is "merely colorable", or is not"significantly probative," summary judgment may be granted. Anderson, 477U.S. at 249-50, 106 S.Ct. 2505.

"[T]he mere existence of some alleged factual dispute between theparties will not defeat an otherwise properly supported motion for summaryjudgment; the requirement is that there be no genuine issue of materialfact. As to materiality, the substantive law will identify which factsare material. Only disputes over facts that might affect the outcome ofthe suit under the governing law will properly preclude the entry ofsummary judgment. Factual disputes that are irrelevant or unnecessarywill not be counted." Id. at 247-48, 106 S.Ct. 2505 (emphasis inoriginal).

II. The Standard As Applied

A. 42 U.S.C. § 1981

Plaintiffs' first cause of action is for racial discrimination broughtpursuant to 42 U.S.C. § 1981. In order to set forth a prima facie caseof such discrimination, plaintiff must set forth genuine issues ofmaterial fact as to four elements. First, she is a member of theprotected class; (2) she was performing her job satisfactorily; (3)plaintiff was terminated; and (4) the circumstances surrounding thetermination give rise to an inference of discrimination on the basis ofplaintiffs' membership in that class. McLee v. Chrysler Corp., 109 F.3d 130,134 (2d Cir. 1997); Bloom v. Jewish Home for Elderly of FairfieldCounty, Inc., 44 F. Supp.2d 439, 441 (D.Conn. 1999).

Although the burden on the plaintiff to make a prima facie case is deminimis, plaintiff has failed to do so for two reasons. First, she wasnot performing her job satisfactorily. She was continuously disruptive toher entire department, including her co-workers and supervisors,including persons of her own race. She acknowledged in her depositionthat she was "seen as a troublemaker, an aggressive person, a person withan attitude." After her first session with an African-American HumanResources counselor, plaintiff determined not to change her attitude.Again, when her African-American supervisor sent her to Human Resourcesfor the repetition of the same disruptive behavior, plaintiff was againtold of the bank's policies regarding unprofessional conduct in the workplace. Plaintiff was also given a written warning at this meeting thatcontinuing this behavior would result in her immediate termination.Plaintiff refused to sign the letter of warning. At yet a third meeting,her attitudewas such that she was terminated for "willful misconduct". For thesereasons, then, plaintiff fails to set forth her prima facie case underelement number two.

She also has failed to set forth genuine issues of material fact as toprong four, as there was no inference of discrimination in hertermination. Her deposition testimony concerning the circumstances of hertermination and her disciplinary warnings prior to it demonstrates noinference of discrimination, especially since the majority of herdisciplinarians were African-American. See Toliver v. Community ActionCommission, 613 F. Supp. 1070, 1074 (S.D.N.Y. 1985), aff'd, 800 F.2d 1128(2d Cir.), cert. denied, 479 U.S. 863, 107 S.Ct. 217, 93 L.Ed.2d 146(noting that because some of the decision makers were members of the sameprotected class as plaintiff, inference of discrimination becomesattenuated).

In Bloom v. Jewish Home for the Elderly of Fairfield County, Inc.,44 F. Supp.2d 439 (D.Conn. 1999), the plaintiff was terminated forserious performance problems concerning patient treatment and interactionwith other staff. This Court held that plaintiff failed to establish aprima facie case of discrimination and granted summary judgment in favorof the defendant. This Court's decision in Bloom is on all fours with thefacts in this case.

Summary judgment will be granted on the 42 U.S.C. § 1981 claim.

B. 28 U.S.C. § 215 (a)(3)

Plaintiff next alleges that she had engaged in the exercise ofprotected rights under the Fair Labor Standards Act, 28 U.S.C. § 201,et seq. ("FLSA"). Plaintiff specifically sets forth her claim under28 U.S.C. § 215 (a)(3) which provides in relevant part that is shallbe unlawful "to discharge or in any other manner discriminate against anyemployee because such employee has filed any complaint or instituted anyproceeding under or related to this chapter."

Construing the unambiguous language of this Section, the Second Circuithas held that the retaliation provisions of the Equal Pay Act ("EPA")3do not encompass "informal workplace complaints" or "complaints made to asupervisor", as do the filing of formal complaints or instituting aproceeding [under the FLSA or EPA]. Lambert v. Genesee Hospital, 10 F.3d 46,55 (2d Cir. 1993). In Lambert, the court held that "oral complaints to asupervisor that an employee was being paid less than the [employee]thought she should have been" do not rise to the level of a formalcomplaint under EPA. Id. at 56. Accord, Johns v. Cianbro Corp., 1999 WL200699 at *2 (D.Conn. March 29, 1999) (granting motion to dismiss on theFELA /EPA count because, as a matter of law, a "complaint to one'semployer, by itself, is insufficient to state a claim for retaliation.")

Since plaintiff never made a complaint of any kind to either theConnecticut Department of Labor or the U.S. Department of Labor, based onthe clear precedent in this Circuit, plaintiffs' "informal workplacecomplaints" regarding the timing of her overtime pay do not constituteprotected activity on which to base a claim for retaliation pursuant to28 U.S.C. § 215 (a)(3). Summary judgment will be granted in favor ofFleet on this claim.

C. The State Law Claims

Inasmuch as the Court will grant summary judgment on both federalclaims, it will not maintain jurisdiction over the supplemental stateclaims. See, 28 U.S.C. § 1367 (c)(3).

CONCLUSION

Plaintiff has set forth no facts that could affect the outcome of thissuit under thegoverning law. The Motion for Summary Judgment [Doc. No. 21] is GRANTED.The Clerk is directed to close this case.

SO ORDERED.

1. Although the complaint caption also names Queen Williams and MaryFelice as defendants, neither individual was ever served with thecomplaint. Fleet, therefore, is the only defendant in this case.

2. Plaintiff did not file an alleged "statement of facts" until aftera significant and extended period after which it should have been filedhad passed. More telling, the document does not comply with therequirements of Local Rule 9(c)(2). Accordingly, the Court will notconsider that document in issuing this Ruling.

3. The EPA is an amendment to the FLSA and falls under Section215(a)(3) of the FLSA. The analysis is identical. Lambert, 10 F.3d at55.

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