MONTEIRO v. UNITED TECHNOLOGIES CORP.

No. 3:97CV899 JBA

119 F. Supp.2d 71 (2000) | Cited 0 times | D. Connecticut | June 6, 2000

RULING ON MOTION FOR SUMMARY JUDGMENT [DOC. #51]

Plaintiff Daniel Monteiro (Monteiro) claims that the defendantUnited Technologies Corporation Pratt & Whitney Division (Pratt& Whitney) failed to promote him from his current position as aLabor Grade 2 welder to a Labor Grade 1 position because of hisage, national origin and race in violation of federal and statelaw. In addition, Mr. Monteiro claims that Pratt & Whitneyretaliated against him following his filing of a complaint withthe CHRO in November 1995. Finally, Mr. Monteiro alleges thatthrough such conduct, Pratt & Whitney intentionally andnegligently inflicted emotional distress on him. By this motion,defendant moves for summary judgment on all counts.

For the reasons that follow, defendant's motion for summaryjudgment [Doc. # 51] is DENIED in part and GRANTED in part.

I. FACTUAL BACKGROUND

Mr. Monteiro was born June 27, 1952 and has been employed byPratt & Whitney as a welder since September 9, 1974. See Def.Ex. B. On December 14, 1992, Mr. Monteiro was promoted to LaborGrade 2 and continues to work at Labor Grade 2 welder inDepartment 45642 at the East Hartford facility of Pratt &Whitney. Welders at Pratt & Whitney are either classified asLabor Grades 1, 2 or 3. In addition, welders work one of threeshifts (1st, 2nd or 3rd1). Labor Grade 1 is dividedbetween those classified as "working leaders" or "specialists."The "working leader" working in conjunction with the "cellleader"2 "would assign work during the shift, ensure thepriorities were working, would help employees who were havingspecific problems on a job, would work with cell leaders onspecial requirements for follow-up, may work with engineering onunusual jobs. . . ." See Kane Dep. at 44. A specialist "wouldtypically perform work that he is usually good at, that he has ahigher skill level in a particular expertise." See Lynn Dep.at 50. At times if the working leader or lead person is not atwork, the "specialist" might take on some of the lead person'sresponsibilities. See Kane Dep. at 46.

Whenever there is an opening for a Labor Grade promotion on ashift, Pratt & Whitney has the "cell leader" conduct a "survey.""A survey is where you would ask people that are in position toget promoted whether or not they're interested in the position."See Lynn Dep. at 45. It is not disputed that those already atthe Labor Grade of the promotion have the right to transfer tothe shift with the opening. The cell leader would have eachworker "sign-off" that they were either interested or notinterested in being considered for the promotion. See LynnDep. at 62. Under the union contract, promotions were made basedon three factors: seniority, fitness, and ability. See LynnDep. at 63.

First Opening for Labor Grade 1 (Lead Position) on SecondShift

On February 3, 6 & 7, 1995, Pratt & Whitney surveyed weldersfor a Labor Grade 1 lead position opening on the 2nd shift.See Pl.'s Ex. 1. Mr. Monteiro was never considered for thevacant Labor Grade 1 position on the 2nd shift. Mr. Kane, thecell leader, and Mr. Lynn, the Business Unit Manager, determinedhe was not qualified for the lead position even though theysubsequently determined he was qualified for the position ofspecialist. See Kane Dep. 96-97, 100-102, 110-12, 113-15.After surveying eleven welders of various ages and races, Pratt& Whitney offered the position to Paul Morneau.

Opening for Labor Grade 1 Position (Lead Position orSpecialist) on Third Shift

In March 1995, Pratt & Whitney determined that there would bea Labor Grade 1 position opening on the third shift which wasnot yet in operation. At the time, Mr. Monteiro was a LaborGrade 2 welder on the 2nd shift. Although Pratt & Whitney claimsthe Labor Grade 1 position on the third shift was only aspecialist position, Mr. Monteiro claims Pratt & Whitney neverspecified whether the position was as a lead position or asspecialist and there had never been a specialist on the thirdshift. See Ricci Aff. ¶ 8 ("During the brief period of time inthe spring of 1995 when the third shift was opened, the twoworking leaders were Donald Moore and Matt Dean. There was nodifferentiation between them as far as their duties or theirauthority."). See Moore Aff. ("I, Donald Moore, went on 3rdshift as a working Labor Grade I lead position on around thelatter part of April 1995, in the Combustion Chamber Repair Unit(Dept.45642) at the East Hartford O & R Facility. At this time,I was joined by a second working Labor Grade I lead position on3rd shift; Matt Dean, who wanted that position. Our jobs wereequal and we both held the same authority as working leadposition since no supervision was present on that shift.") Pratt& Whitney surveyed at least twelve employees including Mr.Monteiro with respect to the open Labor Grade 1 position on thethird shift. See Pl.'s Ex. 12. Mr. Lynn and Mr. Kane wereinvolvedin the decisionmaking process regarding the fitness of thewelders under consideration. See Pl.'s Loc. R. 9(c) Statementat ¶ 18. On March 7, 1995, Mr. Lynn offered Mr. Monteiro theLabor Grade 1 position on the 3rd shift. See Monteiro Dep. at11. On the same date, Mr. Monteiro accepted and signed anEmployee Memorandum indicating he had accepted the promotion toLabor Grade 1 on the Third Shift. See Pl.'s Ex. 2. TheEmployee Memorandum Mr. Monteiro signed does not indicatewhether the Labor Grade 1 position was as lead position or as aspecialist. Id.

Although Mr. Monteiro was scheduled to transfer to the thirdshift and assume his Labor Grade 1 position, another employee,Matt Dean, requested to be transferred to the Labor Grade 1position on the third shift. See Kane Dep. at 65-67. SinceDean was already a Labor Grade 1 on the 2nd Shift, he wasentitled to the transfer and should have been surveyed beforeMr. Monteiro was offered the position. Plaintiff does notdispute that Mr. Dean was entitled to the Labor Grade positionon the third shift, but contends he should have received theLabor Grade 1 position that was vacated when Dean moved to the3rd shift.

Although plaintiff claims Mr. Dean's move from the 1st shiftto the 3rd shift and Donald Moore's move from the 2nd shift tothe 3rd shift, created two Labor Grade 1 openings on both the1st and 2nd Shifts, he presents no evidence controverting Pratt& Whitney's contention that only one Labor Grade 1 openingresulted and that opening was only on the 2nd shift which hadalready been filled by Morneau in February 1995. See Lynn Dep.at 69 (testifying that there was no need to replace Dean on the1st shift since there were already two working leaders on the1st shift and the only opening was on the 2nd shift resultingfrom Donald Moore's transfer).

Second Opening for Labor Grade 1 (Lead Position) on SecondShift

In November 1995, another working leader position becameavailable on the 2nd shift. At the time this new working Leaderposition became available, Monteiro was reassigned outside thedepartment to light duty due to a shoulder injury. Even thoughplaintiff was released to return with acceptable restrictions onNovember 6, 1995 and without restrictions on December 11, 1995,he was not returned to Department 45642 until January 1996.After surveying nine other Labor Grade 2 welders on December 18,1995, Kane offered the promotion to Ronald Bianchi who waspromoted effective February 1996. Mr. Monteiro was neversurveyed for this second position even though he had beenmedically released by the time of the survey. Mr. Kane testifiedthat he was not surveyed because he was out of the departmentand there had been no change in his and Mr. Lynn's earlierassessment that he was not qualified based on his poorcommunication and interpersonal skills.

On November 30, 1995, Mr. Monteiro filed a discriminationcomplaint with the CHRO and the EEOC alleging that he wasdiscriminated against due to his race, national origin andphysical disability in not receiving the February 1995 promotionthat went to Paul Morneau. In April 1996, Mr. Monteiro filed asecond complaint with the CHRO and EEOC concerning the promotiongiven to Ron Bianchi in December 1995.

II. STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure providesthat a motion for summary judgment may be granted when "there isno genuine issue of material fact remaining for trial and themoving party is entitled to judgment as a matter of law." As a"general rule, all ambiguities and inferences to be drawn fromthe underlying facts should be resolved in favor of the partyopposing the motion, and all doubts as to the existence of agenuine issue for trial should be resolved against the movingparty." Tomka v. Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995).If, when viewing theevidence produced in the light most favorable to the non-movant,there is no genuine issue of material fact, then the entry ofsummary judgment is appropriate. See Binder v. Long IslandLighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

In cases alleging employment discrimination, the SecondCircuit has held that additional considerations must be takeninto account when deciding whether summary judgment should begranted. See Gallo v. Prudential Residential Services,22 F.3d 1219, 1224 (2d Cir. 1994). In such cases, the trial court mustbe particularly cautious about granting summary judgment whenthe employer's intent is at issue, and affidavits anddepositions must be scrutinized for circumstantial evidencethat, if believed, would support the plaintiff's claim. Id. at1224. Though caution must be exercised in granting summaryjudgment where intent is genuinely in issue, summary judgmentremains available to reject discrimination claims in caseslacking genuine issues of material fact. See e.g., Woroski v.Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994).

III. DISCUSSION

A. Discrimination based on age, race and national origin (Count One)

The familiar burden shifting analysis from McDonnell Douglasapplies to plaintiffs discrimination claims under the ADEA andTitle VII. Under that test, Mr. Monteiro must first establish aprima facie case of discrimination by demonstrating membershipin a protected class, satisfactory performance of his duties, anadverse employment action, and circumstances giving rise todiscrimination. See Goeniaga v. March of Dimes Birth DefectsFound., 51 F.3d 14, 18 (2d Cir. 1995). If he succeeds in thistask, the burden then shifts to Pratt & Whitney to produce alegitimate, nondiscriminatory reason for his termination. IfPratt & Whitney is able to do so, the burden shifts back to Mr.Monteiro to show that the company's stated reason is in fact apretext for discrimination based on an impermissible factor suchas age, race or national origin. Id.

The Court will consider plaintiffs evidence of discriminationbased on age and national origin/race separately.

1. Age Discrimination

It is undisputed that Mr. Monteiro was 41 and 42 at the timeshe claims he was not promoted, therefore he was a member of theprotected class under the ADEA. See 29 U.S.C. § 631(a).Although Pratt & Whitney claims Mr. Monteiro is not qualifiedfor the lead position, Mr. Monteiro presents evidence, that ifcredited by the factfinder could support a finding that he wascompetent, at least at a base level to perform the duties oflead position. See Moore Aff. ¶ 4 "I found Danny [Monteiro] tobe a very conscientious, skilled productive worker who wouldhave made a good leadman."; George Aff. ¶ 10 "In my opinion Mr.Monteiro is and was as capable of being a welding leadman basedupon his skills and ability to get a job done and, at the timeof the promotion of Mr. Bianchi, Dan was probably more capablethan Mr. Bianchi."

To show the adverse employment action on which hisdiscrimination claims are based, Mr. Monteiro relies on threedifferent occasions he claims to have been denied a promotionand/or demoted from a Labor Grade 1 position in 1995. First, Mr.Monteiro presents evidence that he was qualified for, but neversurveyed for the February 1995 promotion to Labor Grade 1 on the2nd shift that went to Mr. Morneau, age 36. Next, he claims hewas demoted after receiving the promotion to Labor Grade 1 onthe 3rd shift when Dean expressed his interest in the position.However, Mr. Monteiro does not rebut that this action wasrequired by contract. Nor is his conclusory claim that anotheropening was thus created by Mr. Dean's transfer supported by anyevidence in the record. Finally, he claims he was neverconsidered for the additional Labor GradeI position, 2nd shift, that was surveyed in December 1995 afterhe was released to return to his department from light duty.Since an adverse employment action will be found where aplaintiff applies for a specific promotion and is rejected for adiscriminatory reason, see Brown v. Coach Stores,163 F.3d 706, 710 (2d Cir. 1998), the Court must determine whether he hasidentified circumstances giving rise to an inference that he wasdenied promotion to Labor Grade 1 based on his age.

As previously noted the evidence of circumstances related toMr. Monteiro's loss of the Labor Grade 1 position he accepted onthe 3rd shift does not give rise to an inference that he wasdenied this promotion based on his age, absent any proffer ofevidence rebutting Pratt & Whitney's evidence that Mr. Dean wasentitled to transfer to the 3rd shift under the terms of theCollective Bargaining Agreement, since he already was a LaborGrade 1 on the 1st shift. Accordingly, Mr. Monteiro fails toshow a triable claim that Pratt & Whitney's failure to implementMr. Monteiro's promotion to Labor Grade 1 on the 3rd shift inMarch 1995 was based on or motivated by his age.

With respect to the failure to promote Mr. Monteiro to theLabor Grade 1 openings which became available in February 1995and December 1995, Mr. Monteiro claims the inference of agediscrimination can be drawn from the facts that 1) he was over40 years old at the time of each promotion, 2) Mr. Morneau(d/o/b 10/28/1958) and Mr. Bianchi (d/o/b 6/24/1956), the twoindividuals who received these promotions, were 36 and 38 yearsold at the time they were promoted, 3) these two individuals hadless seniority but Mr. Monteiro was more skilled, and 4) DennisKane, a decisionmaker made a comment implying a preference foryounger employees at some prior, but unspecified time. SeePl.'s Mem. in Opp'n at 18.

Defendant contends that even though Mr. Morneau and Mr.Bianchi were both under 40 years of age, this fact is notsignificant in considering the employer's alleged treatment ofemployees of differing ages in light of O'Connor v.Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13,116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Defendant overstates theholding of O'Connor, which simply established that aninference of discrimination could be shown by evidence ofreplacement with a "significantly younger" worker even if thatyounger worker was also within the protected class of workersover 40. See Tarshis v. Riese Organization, 211 F.3d 30, 38(2d Cir. 2000) ("A difference of eight years between the age ofthe person discharged and his replacement, as in the instantcase, is not insignificant."). Thus, the Court concludes thatbecause the promoted employees were outside the protected class,the fact of their seven and four years age differentialscompared to plaintiff means that their promotion over Mr.Monteiro is not insignificant as a matter of law, and under thecircumstances of this case could support an inference of agediscrimination.

While Mr. Monteiro's claim that Mr. Morneau and Mr. Bianchihad "significantly" less seniority may be overstated given thatthey were hired only three years after Mr. Monteiro, they werejunior to him and there is substantial factual dispute as to therelative competencies of Mr. Monteiro, Mr. Morneau and Mr.Bianchi for the lead position. See George Aff. ¶ 10; JohnsonAff. ¶ 3 and 7; Ricci Aff. T 7; Phinney Aff. T 9 and Moore Aff.¶ 5.

Plaintiff also relies, for an inference of age discriminatoryintent, on the alleged comment made by Mr. Kane, ("One time Iwas on the shop floor doing a job and he made his usual rounds,and I'm not specifically sure of the date, but I do remember theconversation, and we were talking about pushing work out, and hesays, "Well, I need a lot more younger energetic people in hereto push work," and that was said to me.") (Monteiro Dep. at 90),Pratt & Whitney challenges the adequacy of this evidence todefeat summary judgment asunspecified in time and unrelated to the employment actions atissue. However, since Mr. Kane's presence in the departmentcommenced in December 1994-January 1995, see Kane Dep. at 29,30, this comment must have occurred at some time after December1994. See Moore Arbitration Test. Pl.'s Ex. 10. Defendantargues that even if made during the relevant period, suchcomment only constitutes "some evidence" of age bias and inlight of the other undisputed facts would not support a rationalfinding of age discrimination as the Second Circuit found inWoroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994). InWoroski the Second Circuit, acknowledging the question to be aclose one, affirmed the district court's granting of summaryjudgment in an age discrimination claim, even though there wassome evidence of age bias by one of the decision-makersresponsible for staff reductions in light of the other evidenceshowing age bias played no role in the downsizing decisions. Incontrast, the comment in this case was made by a key decisionmaker whose characterization of the relative qualifications ofMr. Monteiro and non-protected workers is challenged as themotivation for the promotion decisions, and thus could addsupport to the inference that age was a substantial ormotivating factor that made a difference in the promotiondecisions.

While Pratt & Whitney claims that its offer of thesepromotions first to older workers, who refused them,sufficiently offsets any inference of age discrimination,plaintiffs evidence suggests that these workers were offeredthese promotions because they were known not to be interested inany transfer to this less desirable third shift. While Pratt &Whitney rebuts by noting that Matt Dean voluntarily switchedfrom the 1st shift to the 3rd shift, the weighing of therespective inferences from these disputed issues of fact shouldnot be resolved on summary judgment.

In summary, given Mr. Monteiro's evidence that twonon-protected younger workers got the sought after promotions,that he was more qualified and that Kane, a decisionmaker, madethe youth preference comment, the Court concludes that Mr.Monteiro has come forward with sufficient evidence from which afactfinder could reasonably infer that Pratt & Whitney's claimedreason for its actions was masking unlawful discrimination.

Accordingly, while this is admittedly close, Defendant'sMotion for Summary Judgment on Plaintiffs discrimination claimbased on age, Count One, is DENIED.

2. Title VII Discrimination based on Race and/or National Origin

In opposing this motion for summary judgment, Mr. Monteiroclaims that Pratt & Whitney discriminated against him becausecell leader Kane believed he was Puerto Rican as evidenced bythe fact that at least two of his co-workers heard Mr. Kane,refer to Mr. Monteiro as a "big Puerto Rican," and his race onan employee list was listed as "B" meaning black. See Pl.'sEx. # 23. Howard Ricci, one of plaintiffs co-workers, submittedan affidavit stating that "[d]uring an informal survey by DennisKane I was asked if I was interested in a leadman position whichwould be available on second shift in early 1995, I questionedwhy the offer was being made to me and not to Danny Monteirosince he was more senior than me. I was told by Mr. Kane thatDanny was a big Puerto Rican who intimidated people and couldnot get along with them so he would not be considered." SeeRicci Aff. ¶ 12 (Pl.'s Ex. 4.) Donald Moore, a former leadman onthe 2nd shift submitted an affidavit stating that "[i]nFebruary, 1995, while working on the floor, Dennis Kane, theBusiness Unit Manager for our Department noticed that I washaving trouble lifting a part and told me to have my big PuertoRican friend help me with the part. In March that same year, Iwas told by Mr. Kane and Cell leader, Randy Lynn, that they werenot going to offer theGrade 1 Second shift position to my Big Puerto Rican Buddybecause he did not get along with people." See Moore Aff. ¶ 6.

Pratt & Whitney claims that even if credited, Mr. Kane'sreference to Mr. Monteiro as a "big Puerto Rican" does notreflect discriminatory animus, but was merely descriptive,albeit erroneous since Mr. Monteiro is Portuguese not PuertoRican. While the jury might agree with Pratt & Whitney'suggestion that such reference was purely descriptive and notevidence any discriminatory animus, the Court is unable toresolve the nuances of this obvious ethnic reference as a matterof law. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir.1998) ("Whatever the early life of a federal judge, she or heusually lives in a narrow segment of the enormously broadAmerican socio-economic spectrum, generally lacking the currentreal-life experience required in interpreting subtle sexualdynamics of the workplace based on nuances, subtle perceptions,and implicit communications.").

Pratt & Whitney claims in its Reply Memorandum that Ricci andMoore's statements cannot be credited because they have changedtheir allegations from those originally made in the CHROinvestigation and/or have their own motivations to fabricate thetruth, see Aug. 19 Letter to CHRO, Def.'s Ex. K. The Courtrejects Pratt & Whitney's invitation to find that Mr. Moore'sand Mr. Ricci's statements are so lacking in credibility that noreasonable factfinder could rely on them because these areissues of credibility inappropriate to resolution on summaryjudgment.

Pratt & Whitney's proffered reason for not considering Mr.Monteiro for lead positions, that he lacked communicationskills, lacked the ability to work with others and lacked betterqualifications than Mr. Morneau and Mr. Bianchi — has beensufficiently rebutted by Mr. Monteiro's evidence of Kane'sremarks and the evidence show factually disputes onqualifications such that the Court concludes there existdisputed material issues of fact which await determination bythe factfinder.

Accordingly, Defendant's Motion for Summary Judgment onPlaintiffs discrimination claim based on race/national origin inviolation of Title VII and corresponding state law in Count Oneis DENIED.

B. Retaliation Claim (Count Three)3

In Count Three, plaintiff claims that after he filed his CHROcomplaint related to the denial of the first working leaderposition on November 30, 1995, Pratt & Whitney retaliatedagainst him by denying him the second working leader position,raises beyond his union mandated raises and the opportunity toobtain assignments outside of his department.4

In order to establish a prima facie case of retaliation,plaintiff must demonstrate that: (1) he was engaged in aprotected activity; (2) the employer was aware of plaintiffsparticipation in the protected activity; (3) the employer tookadverse action against plaintiff; and (4) a causal connectionexisted between the plaintiffs protected activity and theadverse action taken by the employer. See Cosgrove v. Sears,Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). Once a primafacie case has been established, the burden of production shiftsto the employer to articulate a legitimate, nonretaliatoryreason for the adverse employment action.See Richardsonl v. New York State Dep't of Correctional Serv.,180 F.3d 426, 443 (2d Cir. 1999). If the employer meets itsburden, the burden then shifts back to plaintiff to "demonstratethat there is sufficient potential proof for a reasonable juryto find [that] the proffered legitimate reason [was] merely apretext for impermissible retaliation," id., and that"defendant's real motivation was the impermissibly retaliatorymotive." Donato v. Plainview-Old Bethpage Cent. Sch. Dist.,96 F.3d 623, 634 (2d Cir. 1996).

While Pratt & Whitney concedes that plaintiffs filing of acomplaint with the CHRO constitutes protected activity, itmaintains that Mr. Monteiro suffered no adverse employmentaction subsequent to filing his CHRO complaint and that Mr.Monteiro fails to demonstrate any causal connection between theclaimed treatment and the protected activity. While it isundisputed that the second promotion occurred on December 18,1995, while Mr. Monteiro was outside the department, and thatMr. Monteiro filed his CHRO complaint on November 30, 1995, thisrecord is devoid of any evidence that Mr. Kane, the decisionmaker, knew of Mr. Monteiro's CHRO complaint at the time he madehis December 18, 1995 offer to Mr. Bianchi or that he knew as ofDecember 18, 1995 that Mr. Monteiro had been released by hisdoctor to return to work. See Def.'s Reply Mem. Ex. A.

Mr. Monteiro further claims as evidence of Pratt & Whitney'sretaliation the fact that he did not receive any merit raisesfollowing his filing of his CHRO complaint. See Monteiro Dep.at ¶ 22 ("Since 1995 I have not received any raises other thanthose required by contract until a few months ago, shortly afterI discussed the lack of raises in my deposition. I hadpreviously received merit raises from time to time.") Mr.Monteiro does not dispute that he received all raises he isentitled to under the union contract and points only to meritraises to which he believes he was entitled. He contends that ifone eliminates all Labor Grade 2 welders who are at the gradepay maximum and presumably thus ineligible for merit raises,five of the remaining six welders have received larger aggregateraises ranging from $4.36 to $6.33 compared to Mr. Monteiro whohas only received $4.23 in merit raises. Mr. Monteiro concedesas he must that the other welder, Donald Horton, receivedsmaller merit raises than he, but contends this is explained bythe fact that Horton is considered a less productive worker.

Although plaintiffs evidence shows five employees receivedlarger raises than he received during this period, it does notshow that he was thus treated less favorably than all employeeswho did not file discrimination claims since at least one welderreceived less than he did. Nor does Mr. Monteiro show when Mr.Kane or his successor, Lydia O'Neil learned of his CHROcomplaint in relation to these merit increase decisions. Whileit can be reasonably inferred that at some point after Pratt &Whitney received the CHRO complaint on December 11, 1995, theseBusiness Unit Managers became aware of Mr. Monteiro's claim, theminimal statistic differentials offered by plaintiff do notconstitute adequate evidence here on which a reasonablefactfinder could properly infer retaliatory motivation.

Accordingly, Defendant's Motion for summary judgment as toplaintiffs claim of retaliation, Count Three, is GRANTED.

C. Intentional Infliction of Emotional Distress (Count Five)

Pratt & Whitney contends that Mr. Monteiro fails todemonstrate a claim for intentional infliction of emotionaldistress since this claim "requires conduct exceeding all boundsof decent society and which is calculated to cause, and doescause mental distress of a very serious kind." To prevail on aclaim for intentional infliction of emotional distress, theplaintiff must prove: (1) that the actor intended to inflictemotional distress, or knew or should have known that emotionaldistresswas the likely result of its conduct, (2) that the conduct wasextreme and outrageous, (3) that the defendant's conduct was thecause of the plaintiffs distress, and (4) that the emotionaldistress sustained by the plaintiff was severe. See Petyan v.Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). Ordinarily,the disputed conduct must exceed all bounds tolerated by decentsociety, and cannot be merely rude, tactless or insulting. SeePetyan, 200 Conn. at 254, (1986). "[A] line canbe drawn between the slight hurts which are the price of acomplex society and the severe mental disturbances inflicted byintentional actions wholly lacking in social utility." Whelanv. Whelan, 41 Conn. Sup. 519, 522, 588 A.2d 251 (1991).

In opposing summary judgment on this claim, Mr. Monteirorelies on what he claims is evidence of unusual improprieties infilling a leader position on the 2nd shift in December 1995immediately following his CHRO filing and while he was out ofthe department although released for duty in the department, hisevidence that he was twice overlooked for promotions awarded toinferior employees, and his claim that he must endure the dailyhumiliation of going to work knowing that his record is nowconsidered flawed and his fellow workers consider him inferior.See Pl.'s Mem. in Opp'n at 27-28. Notwithstanding claimedunfairness, improprieties and shortcomings in the manner andprocedures utilized by Pratt & Whitney, none of this misconductcould reasonably be found by factfinder to reach the requisitelevel of conduct exceeding all bounds of decent societycalculated to cause serious injury.

Accordingly, Defendant's Motion for Summary Judgment as toplaintiffs claim for intentional infliction of emotionaldistress, Count Five, is GRANTED.

D. Negligent Infliction of Emotional Distress (Count Four)

Defendant contends that plaintiffs claim for negligentinfliction of emotional distress should be dismissed since inParsons v. United Technologies Corp., 243 Conn. 66, 88-89,700 A.2d 655 (1997), the Connecticut Supreme Court limited suchclaims to conduct in the termination process itself. Whilerecognizing the split of authority on this issue, the Court doesnot read Parsons as foreclosing this cause of action in allnon-termination circumstances, particularly in light of theSecond Circuit's recent observation that the Connecticut SupremeCourt might permit a claim for negligent infliction of emotionaldistress in the absence of a termination, in light of the 1993amendments to the Workers' Compensation Act that excludedcoverage for mental and emotional impairment. See Malik v.Carrier Corp., 202 F.3d 97, 103 n. 1 (2d Cir. 2000) ("[W]e notethat the Connecticut Supreme Court has arguably acknowledged thepossibility that such a claim might arise in the employmentcontext. . . . Whether a viable emotional distress claim fornegligent acts in the employment context exists underConnecticut law is thus unclear.").

At oral argument, Pratt & Whitney requested that the Courtconsider alternate arguments which had not been raised in itsmotion for summary judgment. While the Court will not entertainsuch arguments not raised nor briefed by the parties at thisstage, such grounds may be raised at trial pursuant toFed.R.Civ.P. 50.

Accordingly, Defendant's motion for summary judgment asdirected to Count Four alleging negligent infliction ofemotional distress is DENIED.

Conclusion

For the reasons set forth above, Defendant's motion forsummary judgment [Doc. # 51] is DENIED as to Count One allegingdiscrimination based on age, race and/or national origin underfederal and state law and as to Count Four alleging negligentinfliction of emotional distress and GRANTED as to Counts Threealleging retaliation, and as to Count Fivealleging intentional infliction of emotional distress.

IT IS SO ORDERED.

1. The Third Shift does not always run, but is added whennecessary to meet production needs.

2. The "cell leader" would be more concerned with productionand the entire unit schedule including interfacing with outsidesuppliers. See Kane Dep. at 44.

3. The Court previously dismissed Count Two which allegeddiscrimination based on disability in violation of the Americanswith Disability Act.

4. Although plaintiff filed a grievance form with Pratt &Whitney dated March 22, 1995 claiming he had been demoted fromLabor Grade I to Labor Grade II, he cannot base his retaliationclaim on this activity presumably since he made no claim ofdiscrimination based on race or age in his grievance and thereis no evidence of any nexus between the grievance and any of theretaliatory actions he claims were taken against him. SeeDef.'s Reply Mem. at Ex. B.

RULING ON MOTION FOR SUMMARY JUDGMENT [DOC. #51]

Plaintiff Daniel Monteiro (Monteiro) claims that the defendantUnited Technologies Corporation Pratt & Whitney Division (Pratt& Whitney) failed to promote him from his current position as aLabor Grade 2 welder to a Labor Grade 1 position because of hisage, national origin and race in violation of federal and statelaw. In addition, Mr. Monteiro claims that Pratt & Whitneyretaliated against him following his filing of a complaint withthe CHRO in November 1995. Finally, Mr. Monteiro alleges thatthrough such conduct, Pratt & Whitney intentionally andnegligently inflicted emotional distress on him. By this motion,defendant moves for summary judgment on all counts.

For the reasons that follow, defendant's motion for summaryjudgment [Doc. # 51] is DENIED in part and GRANTED in part.

I. FACTUAL BACKGROUND

Mr. Monteiro was born June 27, 1952 and has been employed byPratt & Whitney as a welder since September 9, 1974. See Def.Ex. B. On December 14, 1992, Mr. Monteiro was promoted to LaborGrade 2 and continues to work at Labor Grade 2 welder inDepartment 45642 at the East Hartford facility of Pratt &Whitney. Welders at Pratt & Whitney are either classified asLabor Grades 1, 2 or 3. In addition, welders work one of threeshifts (1st, 2nd or 3rd1). Labor Grade 1 is dividedbetween those classified as "working leaders" or "specialists."The "working leader" working in conjunction with the "cellleader"2 "would assign work during the shift, ensure thepriorities were working, would help employees who were havingspecific problems on a job, would work with cell leaders onspecial requirements for follow-up, may work with engineering onunusual jobs. . . ." See Kane Dep. at 44. A specialist "wouldtypically perform work that he is usually good at, that he has ahigher skill level in a particular expertise." See Lynn Dep.at 50. At times if the working leader or lead person is not atwork, the "specialist" might take on some of the lead person'sresponsibilities. See Kane Dep. at 46.

Whenever there is an opening for a Labor Grade promotion on ashift, Pratt & Whitney has the "cell leader" conduct a "survey.""A survey is where you would ask people that are in position toget promoted whether or not they're interested in the position."See Lynn Dep. at 45. It is not disputed that those already atthe Labor Grade of the promotion have the right to transfer tothe shift with the opening. The cell leader would have eachworker "sign-off" that they were either interested or notinterested in being considered for the promotion. See LynnDep. at 62. Under the union contract, promotions were made basedon three factors: seniority, fitness, and ability. See LynnDep. at 63.

First Opening for Labor Grade 1 (Lead Position) on SecondShift

On February 3, 6 & 7, 1995, Pratt & Whitney surveyed weldersfor a Labor Grade 1 lead position opening on the 2nd shift.See Pl.'s Ex. 1. Mr. Monteiro was never considered for thevacant Labor Grade 1 position on the 2nd shift. Mr. Kane, thecell leader, and Mr. Lynn, the Business Unit Manager, determinedhe was not qualified for the lead position even though theysubsequently determined he was qualified for the position ofspecialist. See Kane Dep. 96-97, 100-102, 110-12, 113-15.After surveying eleven welders of various ages and races, Pratt& Whitney offered the position to Paul Morneau.

Opening for Labor Grade 1 Position (Lead Position orSpecialist) on Third Shift

In March 1995, Pratt & Whitney determined that there would bea Labor Grade 1 position opening on the third shift which wasnot yet in operation. At the time, Mr. Monteiro was a LaborGrade 2 welder on the 2nd shift. Although Pratt & Whitney claimsthe Labor Grade 1 position on the third shift was only aspecialist position, Mr. Monteiro claims Pratt & Whitney neverspecified whether the position was as a lead position or asspecialist and there had never been a specialist on the thirdshift. See Ricci Aff. ¶ 8 ("During the brief period of time inthe spring of 1995 when the third shift was opened, the twoworking leaders were Donald Moore and Matt Dean. There was nodifferentiation between them as far as their duties or theirauthority."). See Moore Aff. ("I, Donald Moore, went on 3rdshift as a working Labor Grade I lead position on around thelatter part of April 1995, in the Combustion Chamber Repair Unit(Dept.45642) at the East Hartford O & R Facility. At this time,I was joined by a second working Labor Grade I lead position on3rd shift; Matt Dean, who wanted that position. Our jobs wereequal and we both held the same authority as working leadposition since no supervision was present on that shift.") Pratt& Whitney surveyed at least twelve employees including Mr.Monteiro with respect to the open Labor Grade 1 position on thethird shift. See Pl.'s Ex. 12. Mr. Lynn and Mr. Kane wereinvolvedin the decisionmaking process regarding the fitness of thewelders under consideration. See Pl.'s Loc. R. 9(c) Statementat ¶ 18. On March 7, 1995, Mr. Lynn offered Mr. Monteiro theLabor Grade 1 position on the 3rd shift. See Monteiro Dep. at11. On the same date, Mr. Monteiro accepted and signed anEmployee Memorandum indicating he had accepted the promotion toLabor Grade 1 on the Third Shift. See Pl.'s Ex. 2. TheEmployee Memorandum Mr. Monteiro signed does not indicatewhether the Labor Grade 1 position was as lead position or as aspecialist. Id.

Although Mr. Monteiro was scheduled to transfer to the thirdshift and assume his Labor Grade 1 position, another employee,Matt Dean, requested to be transferred to the Labor Grade 1position on the third shift. See Kane Dep. at 65-67. SinceDean was already a Labor Grade 1 on the 2nd Shift, he wasentitled to the transfer and should have been surveyed beforeMr. Monteiro was offered the position. Plaintiff does notdispute that Mr. Dean was entitled to the Labor Grade positionon the third shift, but contends he should have received theLabor Grade 1 position that was vacated when Dean moved to the3rd shift.

Although plaintiff claims Mr. Dean's move from the 1st shiftto the 3rd shift and Donald Moore's move from the 2nd shift tothe 3rd shift, created two Labor Grade 1 openings on both the1st and 2nd Shifts, he presents no evidence controverting Pratt& Whitney's contention that only one Labor Grade 1 openingresulted and that opening was only on the 2nd shift which hadalready been filled by Morneau in February 1995. See Lynn Dep.at 69 (testifying that there was no need to replace Dean on the1st shift since there were already two working leaders on the1st shift and the only opening was on the 2nd shift resultingfrom Donald Moore's transfer).

Second Opening for Labor Grade 1 (Lead Position) on SecondShift

In November 1995, another working leader position becameavailable on the 2nd shift. At the time this new working Leaderposition became available, Monteiro was reassigned outside thedepartment to light duty due to a shoulder injury. Even thoughplaintiff was released to return with acceptable restrictions onNovember 6, 1995 and without restrictions on December 11, 1995,he was not returned to Department 45642 until January 1996.After surveying nine other Labor Grade 2 welders on December 18,1995, Kane offered the promotion to Ronald Bianchi who waspromoted effective February 1996. Mr. Monteiro was neversurveyed for this second position even though he had beenmedically released by the time of the survey. Mr. Kane testifiedthat he was not surveyed because he was out of the departmentand there had been no change in his and Mr. Lynn's earlierassessment that he was not qualified based on his poorcommunication and interpersonal skills.

On November 30, 1995, Mr. Monteiro filed a discriminationcomplaint with the CHRO and the EEOC alleging that he wasdiscriminated against due to his race, national origin andphysical disability in not receiving the February 1995 promotionthat went to Paul Morneau. In April 1996, Mr. Monteiro filed asecond complaint with the CHRO and EEOC concerning the promotiongiven to Ron Bianchi in December 1995.

II. STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure providesthat a motion for summary judgment may be granted when "there isno genuine issue of material fact remaining for trial and themoving party is entitled to judgment as a matter of law." As a"general rule, all ambiguities and inferences to be drawn fromthe underlying facts should be resolved in favor of the partyopposing the motion, and all doubts as to the existence of agenuine issue for trial should be resolved against the movingparty." Tomka v. Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995).If, when viewing theevidence produced in the light most favorable to the non-movant,there is no genuine issue of material fact, then the entry ofsummary judgment is appropriate. See Binder v. Long IslandLighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

In cases alleging employment discrimination, the SecondCircuit has held that additional considerations must be takeninto account when deciding whether summary judgment should begranted. See Gallo v. Prudential Residential Services,22 F.3d 1219, 1224 (2d Cir. 1994). In such cases, the trial court mustbe particularly cautious about granting summary judgment whenthe employer's intent is at issue, and affidavits anddepositions must be scrutinized for circumstantial evidencethat, if believed, would support the plaintiff's claim. Id. at1224. Though caution must be exercised in granting summaryjudgment where intent is genuinely in issue, summary judgmentremains available to reject discrimination claims in caseslacking genuine issues of material fact. See e.g., Woroski v.Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994).

III. DISCUSSION

A. Discrimination based on age, race and national origin (Count One)

The familiar burden shifting analysis from McDonnell Douglasapplies to plaintiffs discrimination claims under the ADEA andTitle VII. Under that test, Mr. Monteiro must first establish aprima facie case of discrimination by demonstrating membershipin a protected class, satisfactory performance of his duties, anadverse employment action, and circumstances giving rise todiscrimination. See Goeniaga v. March of Dimes Birth DefectsFound., 51 F.3d 14, 18 (2d Cir. 1995). If he succeeds in thistask, the burden then shifts to Pratt & Whitney to produce alegitimate, nondiscriminatory reason for his termination. IfPratt & Whitney is able to do so, the burden shifts back to Mr.Monteiro to show that the company's stated reason is in fact apretext for discrimination based on an impermissible factor suchas age, race or national origin. Id.

The Court will consider plaintiffs evidence of discriminationbased on age and national origin/race separately.

1. Age Discrimination

It is undisputed that Mr. Monteiro was 41 and 42 at the timeshe claims he was not promoted, therefore he was a member of theprotected class under the ADEA. See 29 U.S.C. § 631(a).Although Pratt & Whitney claims Mr. Monteiro is not qualifiedfor the lead position, Mr. Monteiro presents evidence, that ifcredited by the factfinder could support a finding that he wascompetent, at least at a base level to perform the duties oflead position. See Moore Aff. ¶ 4 "I found Danny [Monteiro] tobe a very conscientious, skilled productive worker who wouldhave made a good leadman."; George Aff. ¶ 10 "In my opinion Mr.Monteiro is and was as capable of being a welding leadman basedupon his skills and ability to get a job done and, at the timeof the promotion of Mr. Bianchi, Dan was probably more capablethan Mr. Bianchi."

To show the adverse employment action on which hisdiscrimination claims are based, Mr. Monteiro relies on threedifferent occasions he claims to have been denied a promotionand/or demoted from a Labor Grade 1 position in 1995. First, Mr.Monteiro presents evidence that he was qualified for, but neversurveyed for the February 1995 promotion to Labor Grade 1 on the2nd shift that went to Mr. Morneau, age 36. Next, he claims hewas demoted after receiving the promotion to Labor Grade 1 onthe 3rd shift when Dean expressed his interest in the position.However, Mr. Monteiro does not rebut that this action wasrequired by contract. Nor is his conclusory claim that anotheropening was thus created by Mr. Dean's transfer supported by anyevidence in the record. Finally, he claims he was neverconsidered for the additional Labor GradeI position, 2nd shift, that was surveyed in December 1995 afterhe was released to return to his department from light duty.Since an adverse employment action will be found where aplaintiff applies for a specific promotion and is rejected for adiscriminatory reason, see Brown v. Coach Stores,163 F.3d 706, 710 (2d Cir. 1998), the Court must determine whether he hasidentified circumstances giving rise to an inference that he wasdenied promotion to Labor Grade 1 based on his age.

As previously noted the evidence of circumstances related toMr. Monteiro's loss of the Labor Grade 1 position he accepted onthe 3rd shift does not give rise to an inference that he wasdenied this promotion based on his age, absent any proffer ofevidence rebutting Pratt & Whitney's evidence that Mr. Dean wasentitled to transfer to the 3rd shift under the terms of theCollective Bargaining Agreement, since he already was a LaborGrade 1 on the 1st shift. Accordingly, Mr. Monteiro fails toshow a triable claim that Pratt & Whitney's failure to implementMr. Monteiro's promotion to Labor Grade 1 on the 3rd shift inMarch 1995 was based on or motivated by his age.

With respect to the failure to promote Mr. Monteiro to theLabor Grade 1 openings which became available in February 1995and December 1995, Mr. Monteiro claims the inference of agediscrimination can be drawn from the facts that 1) he was over40 years old at the time of each promotion, 2) Mr. Morneau(d/o/b 10/28/1958) and Mr. Bianchi (d/o/b 6/24/1956), the twoindividuals who received these promotions, were 36 and 38 yearsold at the time they were promoted, 3) these two individuals hadless seniority but Mr. Monteiro was more skilled, and 4) DennisKane, a decisionmaker made a comment implying a preference foryounger employees at some prior, but unspecified time. SeePl.'s Mem. in Opp'n at 18.

Defendant contends that even though Mr. Morneau and Mr.Bianchi were both under 40 years of age, this fact is notsignificant in considering the employer's alleged treatment ofemployees of differing ages in light of O'Connor v.Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13,116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Defendant overstates theholding of O'Connor, which simply established that aninference of discrimination could be shown by evidence ofreplacement with a "significantly younger" worker even if thatyounger worker was also within the protected class of workersover 40. See Tarshis v. Riese Organization, 211 F.3d 30, 38(2d Cir. 2000) ("A difference of eight years between the age ofthe person discharged and his replacement, as in the instantcase, is not insignificant."). Thus, the Court concludes thatbecause the promoted employees were outside the protected class,the fact of their seven and four years age differentialscompared to plaintiff means that their promotion over Mr.Monteiro is not insignificant as a matter of law, and under thecircumstances of this case could support an inference of agediscrimination.

While Mr. Monteiro's claim that Mr. Morneau and Mr. Bianchihad "significantly" less seniority may be overstated given thatthey were hired only three years after Mr. Monteiro, they werejunior to him and there is substantial factual dispute as to therelative competencies of Mr. Monteiro, Mr. Morneau and Mr.Bianchi for the lead position. See George Aff. ¶ 10; JohnsonAff. ¶ 3 and 7; Ricci Aff. T 7; Phinney Aff. T 9 and Moore Aff.¶ 5.

Plaintiff also relies, for an inference of age discriminatoryintent, on the alleged comment made by Mr. Kane, ("One time Iwas on the shop floor doing a job and he made his usual rounds,and I'm not specifically sure of the date, but I do remember theconversation, and we were talking about pushing work out, and hesays, "Well, I need a lot more younger energetic people in hereto push work," and that was said to me.") (Monteiro Dep. at 90),Pratt & Whitney challenges the adequacy of this evidence todefeat summary judgment asunspecified in time and unrelated to the employment actions atissue. However, since Mr. Kane's presence in the departmentcommenced in December 1994-January 1995, see Kane Dep. at 29,30, this comment must have occurred at some time after December1994. See Moore Arbitration Test. Pl.'s Ex. 10. Defendantargues that even if made during the relevant period, suchcomment only constitutes "some evidence" of age bias and inlight of the other undisputed facts would not support a rationalfinding of age discrimination as the Second Circuit found inWoroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994). InWoroski the Second Circuit, acknowledging the question to be aclose one, affirmed the district court's granting of summaryjudgment in an age discrimination claim, even though there wassome evidence of age bias by one of the decision-makersresponsible for staff reductions in light of the other evidenceshowing age bias played no role in the downsizing decisions. Incontrast, the comment in this case was made by a key decisionmaker whose characterization of the relative qualifications ofMr. Monteiro and non-protected workers is challenged as themotivation for the promotion decisions, and thus could addsupport to the inference that age was a substantial ormotivating factor that made a difference in the promotiondecisions.

While Pratt & Whitney claims that its offer of thesepromotions first to older workers, who refused them,sufficiently offsets any inference of age discrimination,plaintiffs evidence suggests that these workers were offeredthese promotions because they were known not to be interested inany transfer to this less desirable third shift. While Pratt &Whitney rebuts by noting that Matt Dean voluntarily switchedfrom the 1st shift to the 3rd shift, the weighing of therespective inferences from these disputed issues of fact shouldnot be resolved on summary judgment.

In summary, given Mr. Monteiro's evidence that twonon-protected younger workers got the sought after promotions,that he was more qualified and that Kane, a decisionmaker, madethe youth preference comment, the Court concludes that Mr.Monteiro has come forward with sufficient evidence from which afactfinder could reasonably infer that Pratt & Whitney's claimedreason for its actions was masking unlawful discrimination.

Accordingly, while this is admittedly close, Defendant'sMotion for Summary Judgment on Plaintiffs discrimination claimbased on age, Count One, is DENIED.

2. Title VII Discrimination based on Race and/or National Origin

In opposing this motion for summary judgment, Mr. Monteiroclaims that Pratt & Whitney discriminated against him becausecell leader Kane believed he was Puerto Rican as evidenced bythe fact that at least two of his co-workers heard Mr. Kane,refer to Mr. Monteiro as a "big Puerto Rican," and his race onan employee list was listed as "B" meaning black. See Pl.'sEx. # 23. Howard Ricci, one of plaintiffs co-workers, submittedan affidavit stating that "[d]uring an informal survey by DennisKane I was asked if I was interested in a leadman position whichwould be available on second shift in early 1995, I questionedwhy the offer was being made to me and not to Danny Monteirosince he was more senior than me. I was told by Mr. Kane thatDanny was a big Puerto Rican who intimidated people and couldnot get along with them so he would not be considered." SeeRicci Aff. ¶ 12 (Pl.'s Ex. 4.) Donald Moore, a former leadman onthe 2nd shift submitted an affidavit stating that "[i]nFebruary, 1995, while working on the floor, Dennis Kane, theBusiness Unit Manager for our Department noticed that I washaving trouble lifting a part and told me to have my big PuertoRican friend help me with the part. In March that same year, Iwas told by Mr. Kane and Cell leader, Randy Lynn, that they werenot going to offer theGrade 1 Second shift position to my Big Puerto Rican Buddybecause he did not get along with people." See Moore Aff. ¶ 6.

Pratt & Whitney claims that even if credited, Mr. Kane'sreference to Mr. Monteiro as a "big Puerto Rican" does notreflect discriminatory animus, but was merely descriptive,albeit erroneous since Mr. Monteiro is Portuguese not PuertoRican. While the jury might agree with Pratt & Whitney'suggestion that such reference was purely descriptive and notevidence any discriminatory animus, the Court is unable toresolve the nuances of this obvious ethnic reference as a matterof law. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir.1998) ("Whatever the early life of a federal judge, she or heusually lives in a narrow segment of the enormously broadAmerican socio-economic spectrum, generally lacking the currentreal-life experience required in interpreting subtle sexualdynamics of the workplace based on nuances, subtle perceptions,and implicit communications.").

Pratt & Whitney claims in its Reply Memorandum that Ricci andMoore's statements cannot be credited because they have changedtheir allegations from those originally made in the CHROinvestigation and/or have their own motivations to fabricate thetruth, see Aug. 19 Letter to CHRO, Def.'s Ex. K. The Courtrejects Pratt & Whitney's invitation to find that Mr. Moore'sand Mr. Ricci's statements are so lacking in credibility that noreasonable factfinder could rely on them because these areissues of credibility inappropriate to resolution on summaryjudgment.

Pratt & Whitney's proffered reason for not considering Mr.Monteiro for lead positions, that he lacked communicationskills, lacked the ability to work with others and lacked betterqualifications than Mr. Morneau and Mr. Bianchi — has beensufficiently rebutted by Mr. Monteiro's evidence of Kane'sremarks and the evidence show factually disputes onqualifications such that the Court concludes there existdisputed material issues of fact which await determination bythe factfinder.

Accordingly, Defendant's Motion for Summary Judgment onPlaintiffs discrimination claim based on race/national origin inviolation of Title VII and corresponding state law in Count Oneis DENIED.

B. Retaliation Claim (Count Three)3

In Count Three, plaintiff claims that after he filed his CHROcomplaint related to the denial of the first working leaderposition on November 30, 1995, Pratt & Whitney retaliatedagainst him by denying him the second working leader position,raises beyond his union mandated raises and the opportunity toobtain assignments outside of his department.4

In order to establish a prima facie case of retaliation,plaintiff must demonstrate that: (1) he was engaged in aprotected activity; (2) the employer was aware of plaintiffsparticipation in the protected activity; (3) the employer tookadverse action against plaintiff; and (4) a causal connectionexisted between the plaintiffs protected activity and theadverse action taken by the employer. See Cosgrove v. Sears,Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). Once a primafacie case has been established, the burden of production shiftsto the employer to articulate a legitimate, nonretaliatoryreason for the adverse employment action.See Richardsonl v. New York State Dep't of Correctional Serv.,180 F.3d 426, 443 (2d Cir. 1999). If the employer meets itsburden, the burden then shifts back to plaintiff to "demonstratethat there is sufficient potential proof for a reasonable juryto find [that] the proffered legitimate reason [was] merely apretext for impermissible retaliation," id., and that"defendant's real motivation was the impermissibly retaliatorymotive." Donato v. Plainview-Old Bethpage Cent. Sch. Dist.,96 F.3d 623, 634 (2d Cir. 1996).

While Pratt & Whitney concedes that plaintiffs filing of acomplaint with the CHRO constitutes protected activity, itmaintains that Mr. Monteiro suffered no adverse employmentaction subsequent to filing his CHRO complaint and that Mr.Monteiro fails to demonstrate any causal connection between theclaimed treatment and the protected activity. While it isundisputed that the second promotion occurred on December 18,1995, while Mr. Monteiro was outside the department, and thatMr. Monteiro filed his CHRO complaint on November 30, 1995, thisrecord is devoid of any evidence that Mr. Kane, the decisionmaker, knew of Mr. Monteiro's CHRO complaint at the time he madehis December 18, 1995 offer to Mr. Bianchi or that he knew as ofDecember 18, 1995 that Mr. Monteiro had been released by hisdoctor to return to work. See Def.'s Reply Mem. Ex. A.

Mr. Monteiro further claims as evidence of Pratt & Whitney'sretaliation the fact that he did not receive any merit raisesfollowing his filing of his CHRO complaint. See Monteiro Dep.at ¶ 22 ("Since 1995 I have not received any raises other thanthose required by contract until a few months ago, shortly afterI discussed the lack of raises in my deposition. I hadpreviously received merit raises from time to time.") Mr.Monteiro does not dispute that he received all raises he isentitled to under the union contract and points only to meritraises to which he believes he was entitled. He contends that ifone eliminates all Labor Grade 2 welders who are at the gradepay maximum and presumably thus ineligible for merit raises,five of the remaining six welders have received larger aggregateraises ranging from $4.36 to $6.33 compared to Mr. Monteiro whohas only received $4.23 in merit raises. Mr. Monteiro concedesas he must that the other welder, Donald Horton, receivedsmaller merit raises than he, but contends this is explained bythe fact that Horton is considered a less productive worker.

Although plaintiffs evidence shows five employees receivedlarger raises than he received during this period, it does notshow that he was thus treated less favorably than all employeeswho did not file discrimination claims since at least one welderreceived less than he did. Nor does Mr. Monteiro show when Mr.Kane or his successor, Lydia O'Neil learned of his CHROcomplaint in relation to these merit increase decisions. Whileit can be reasonably inferred that at some point after Pratt &Whitney received the CHRO complaint on December 11, 1995, theseBusiness Unit Managers became aware of Mr. Monteiro's claim, theminimal statistic differentials offered by plaintiff do notconstitute adequate evidence here on which a reasonablefactfinder could properly infer retaliatory motivation.

Accordingly, Defendant's Motion for summary judgment as toplaintiffs claim of retaliation, Count Three, is GRANTED.

C. Intentional Infliction of Emotional Distress (Count Five)

Pratt & Whitney contends that Mr. Monteiro fails todemonstrate a claim for intentional infliction of emotionaldistress since this claim "requires conduct exceeding all boundsof decent society and which is calculated to cause, and doescause mental distress of a very serious kind." To prevail on aclaim for intentional infliction of emotional distress, theplaintiff must prove: (1) that the actor intended to inflictemotional distress, or knew or should have known that emotionaldistresswas the likely result of its conduct, (2) that the conduct wasextreme and outrageous, (3) that the defendant's conduct was thecause of the plaintiffs distress, and (4) that the emotionaldistress sustained by the plaintiff was severe. See Petyan v.Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). Ordinarily,the disputed conduct must exceed all bounds tolerated by decentsociety, and cannot be merely rude, tactless or insulting. SeePetyan, 200 Conn. at 254, (1986). "[A] line canbe drawn between the slight hurts which are the price of acomplex society and the severe mental disturbances inflicted byintentional actions wholly lacking in social utility." Whelanv. Whelan, 41 Conn. Sup. 519, 522, 588 A.2d 251 (1991).

In opposing summary judgment on this claim, Mr. Monteirorelies on what he claims is evidence of unusual improprieties infilling a leader position on the 2nd shift in December 1995immediately following his CHRO filing and while he was out ofthe department although released for duty in the department, hisevidence that he was twice overlooked for promotions awarded toinferior employees, and his claim that he must endure the dailyhumiliation of going to work knowing that his record is nowconsidered flawed and his fellow workers consider him inferior.See Pl.'s Mem. in Opp'n at 27-28. Notwithstanding claimedunfairness, improprieties and shortcomings in the manner andprocedures utilized by Pratt & Whitney, none of this misconductcould reasonably be found by factfinder to reach the requisitelevel of conduct exceeding all bounds of decent societycalculated to cause serious injury.

Accordingly, Defendant's Motion for Summary Judgment as toplaintiffs claim for intentional infliction of emotionaldistress, Count Five, is GRANTED.

D. Negligent Infliction of Emotional Distress (Count Four)

Defendant contends that plaintiffs claim for negligentinfliction of emotional distress should be dismissed since inParsons v. United Technologies Corp., 243 Conn. 66, 88-89,700 A.2d 655 (1997), the Connecticut Supreme Court limited suchclaims to conduct in the termination process itself. Whilerecognizing the split of authority on this issue, the Court doesnot read Parsons as foreclosing this cause of action in allnon-termination circumstances, particularly in light of theSecond Circuit's recent observation that the Connecticut SupremeCourt might permit a claim for negligent infliction of emotionaldistress in the absence of a termination, in light of the 1993amendments to the Workers' Compensation Act that excludedcoverage for mental and emotional impairment. See Malik v.Carrier Corp., 202 F.3d 97, 103 n. 1 (2d Cir. 2000) ("[W]e notethat the Connecticut Supreme Court has arguably acknowledged thepossibility that such a claim might arise in the employmentcontext. . . . Whether a viable emotional distress claim fornegligent acts in the employment context exists underConnecticut law is thus unclear.").

At oral argument, Pratt & Whitney requested that the Courtconsider alternate arguments which had not been raised in itsmotion for summary judgment. While the Court will not entertainsuch arguments not raised nor briefed by the parties at thisstage, such grounds may be raised at trial pursuant toFed.R.Civ.P. 50.

Accordingly, Defendant's motion for summary judgment asdirected to Count Four alleging negligent infliction ofemotional distress is DENIED.

Conclusion

For the reasons set forth above, Defendant's motion forsummary judgment [Doc. # 51] is DENIED as to Count One allegingdiscrimination based on age, race and/or national origin underfederal and state law and as to Count Four alleging negligentinfliction of emotional distress and GRANTED as to Counts Threealleging retaliation, and as to Count Fivealleging intentional infliction of emotional distress.

IT IS SO ORDERED.

1. The Third Shift does not always run, but is added whennecessary to meet production needs.

2. The "cell leader" would be more concerned with productionand the entire unit schedule including interfacing with outsidesuppliers. See Kane Dep. at 44.

3. The Court previously dismissed Count Two which allegeddiscrimination based on disability in violation of the Americanswith Disability Act.

4. Although plaintiff filed a grievance form with Pratt &Whitney dated March 22, 1995 claiming he had been demoted fromLabor Grade I to Labor Grade II, he cannot base his retaliationclaim on this activity presumably since he made no claim ofdiscrimination based on race or age in his grievance and thereis no evidence of any nexus between the grievance and any of theretaliatory actions he claims were taken against him. SeeDef.'s Reply Mem. at Ex. B.

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