Green v. Town of E. Haven

• Decision Date: 10 March 2020
• Docket Number: August Term, 2018,Docket No. 18-0143
• Citation: 952 F.3d 394
• Parties: Dyanna L. GREEN, Plaintiff-Appellant, v. TOWN OF EAST HAVEN, Defendant-Appellee, East Haven Police Department, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

952 F.3d 394

Dyanna L. GREEN, Plaintiff-Appellant,

v.TOWN OF EAST HAVEN, Defendant-Appellee,East Haven Police Department, Defendant.

Docket No. 18-0143

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: May 3, 2019

Decided: March 10, 2020

KAREN R. KING, New York, New York (Jennifer X. Luo, Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York, on the brief), for Plaintiff-Appellant.

LYNCH, TRAUB, KEEFE & ERRANTE, New Haven, Connecticut (Hugh F. Keefe, of counsel), submitted a brief for Defendant-Appellee.

Before: KEARSE, WESLEY, and CHIN, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Dyanna L. Green appeals from a judgment of the United States District Court for the District of Connecticut, Vanessa L. Bryant, Judge , dismissing her action against defendant Town of East Haven ("Town") for alleged age discrimination in terminating her employment, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 - 634 ("ADEA"), and the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq . ("CFEPA"). The district court granted summary judgment dismissing the action on the sole ground that Green had failed to make out a prima facie case of any adverse employment action, because she chose to retire rather than attend a scheduled disciplinary hearing--the only merits-based challenge presented in the Town's summary judgment motion. On appeal, Green contends that the court erred in failing to view her evidence that the retirement was not voluntary but was coerced by the threat of likely termination--and hence constituted a constructive discharge--in the light most favorable to her. We agree that the evidence, viewed in the light most favorable to Green, sufficed to present genuine issues of fact as to whether a reasonable person in Green's shoes would have felt compelled to retire. Accordingly, we vacate the judgment and remand for further proceedings.

I. BACKGROUND

Many of the following facts are undisputed, as indicated by the parties' statements submitted pursuant to Local Rule 56(a) as to undisputed and disputed material facts ("Rule 56(a) Statements"). Other descriptions are, as indicated, principally taken from the deposition testimony of the Town's Internal Affairs (or "I.A.") Officer James Naccarato or from the affidavit submitted by Green in opposition to the Town's motion for summary judgment.

A. Green's Employment at East Haven Police Department

From about May 2001 through December 2014, Green was an employee of the Town, working at defendant East Haven Police Department ("EHPD" or "Department"). She was one of two full-time employees in EHPD's records division, responsible for processing arrest and accident reports, typing search and arrest warrants, typing misdemeanor and infraction tickets, and entering data into EHPD's computer system. In 2012, EHPD Lieutenant David Emerman became supervisor of the records division. (See Rule 56(a) Statements, undisputed ¶¶ 1-3; see also id . undisputed ¶ 27.)

Also in 2012, Jennifer Ward was hired to work in the records division, replacing Green's recently retired coworker. (See id . undisputed ¶ 6.) Green, 47 years of age when she was hired, was 58 in 2012 (see Affidavit of Dyanna L. Green dated September 6, 2017 ("Green Aff." or "September 2017 Affidavit"), ¶¶ 4-5); Ward, in 2012, was approximately 30 years of age (see id . ¶ 7). Green asserted that after Ward was hired, Green began to experience treatment from Emerman and EHPD Chief Brent Larrabee that she "believe[s] ... was intended to create a hostile work environment and cause [her] to retire." (Id . ¶ 12; see id . ¶ 17 ("I was singled out" and "believe that I was subjected to deliberately disparate treatment and a hostile work environment because of my age, which was intended to make my employment intolerable and force me to resign or retire").)

Green stated, inter alia , that from the time Ward arrived until Green left EHPD, Green was made to feel "marginalized in [her] role" (id . ¶ 8), with Emerman "engag[ing] in a sustained and systematic pattern of publicly criticizing, micromanaging and scrutinizing" Green's work and "subject[ing her] to harassing and demeaning demands and questioning" (id . ¶ 12). Emerman also prepared and filed a number of criticisms of Green's work that Green viewed as unwarranted. (See id . ¶ 13.) Meanwhile, Ward was given more desirable work assignments and training opportunities that were denied to Green (see id . ¶¶ 8-11) and was treated by Emerman and Chief Larrabee "with obvious favoritism" (id . ¶ 8).

B. The December 2014 Biscuits and Basket Incident

Shortly after 8 a.m. on December 5, 2014, Green went to the EHPD kitchen/breakroom area to borrow a wire basket that was kept there, to use in an upcoming holiday party. While there, she observed two canisters of Pillsbury buttermilk biscuits dough that she had seen in the communal refrigerator since at least Thanksgiving. Green took one of the canisters, put it and the basket in her tote bag, and took them back to her desk. (See Green Aff. ¶¶ 21-22.)

Shortly after noon that day, EHPD Lieutenant Joseph Murgo sent an email to EHPD employees stating as follows:

We had two (2) canisters of Buttermilk flavored Pillsbury biscuits that was [sic ] brought in on Thanksgiving by one of our officers. There is now one canister left, which means one canister grew legs and walked away. If YOU are in possession of Pillsbury Grands Flaky layers Buttermilk biscuits, please return them to their rightful owner. We work in a police department people. Too many things grow legs here. Thank you.

(December 5, 2014 email from Joseph Murgo to All Police Department Employees.)

After receiving that email, Green "asked Lieutenant Emerman if there were cameras in the kitchen." (Rule 56(a) Statements, undisputed ¶ 21.) Green then went into the kitchen area, carrying the biscuits in a bag, intending to return them to the refrigerator. (See id . undisputed ¶ 22.) When she arrived, Chief Larrabee was there; and the refrigerator was sealed with, inter alia , yellow "crime scene" tape. (Green Aff. ¶¶ 29, 27.)

Chief Larrabee asked Green what was in her bag; she responded only that it contained her salad; she did not tell him that it also contained the biscuits, which she had taken and was about to return to the refrigerator. (See , e.g. , Rule 56(a) Statements, undisputed ¶¶ 23-25.) "Chief Larrabee then looked in the bag and saw the canister of biscuit[s]." (Green Aff. ¶ 29.) Chief Larrabee took Green back to her desk, as she attempted to explain that she had taken the biscuits with the intent of baking them at home--the communal kitchen at EHPD having no oven (see id . ¶ 22)--and bringing the baked biscuits back to the office for officers and staff (see id . ¶ 29). Chief Larrabee refused to listen. Arriving at Green's desk, Chief Larrabee saw Green's tote bag and asked what was in it. She showed him the wire basket and attempted to explain that she was temporarily borrowing it for a holiday party, but again he refused to listen. (See id .)

Green was immediately placed on administrative leave with pay, having been found to have in her possession a basket that she admitted she had not asked anyone whether she could borrow, and biscuits that she admitted she had not asked anyone whether she could take. (See , e.g. , Rule 56(a) Statements, undisputed ¶¶ 14, 18-20; December 11, 2014 Interview of Green by EHPD Internal Affairs Officer James Naccarato ("Naccarato Interview of Green") at 5-6.)

C. The Disciplinary Process and Green's Resignation

EHPD in 2014 had a Code of Conduct policy and a policy governing internal affairs complaints. "Under the policy governing the Internal Affairs Officer [sic ] and Complaints, the Chief of Police and Deputy Police Chief had the authority to determine the merits of an investigation." (Rule 56(a) Statements, undisputed ¶ 29.) Under that policy, the Chief of Police and Deputy Police Chief had the authority to issue "verbal reprimand[s], written reprimand[s], and suspension[s]"; but for more serious allegations they were to forward the investigation to the Town's Board of Police Commissioners ("Town BPC" or "BPC"); only the BPC had the authority to terminate the employee. (Id . undisputed ¶¶ 30, 32-33.) The Town and the BPC were subject to a federal consent decree, see Agreement for Effective and Constitutional Policing, United States v. Town of East Haven, East Haven Board of Police Commissioners , No. 3-12-CV-1652 (D. Conn. Dec. 21, 2012), Dkt. No. 11, which required EHPD to follow a "disciplinary matrix" governing offenses for which an EHPD employee could be discharged (Deposition of James Naccarato ("Naccarato Dep." or "Dep.") at 111). They "ha[d] to follow the matrix." (Id .)

In 2014, Naccarato was EHPD's I.A. Officer. In that position, he was required to investigate alleged violations of policies and procedures by EHPD personnel. He conducted an investigation with regard to potential Code of Conduct violations by Green on December 5, 2014. (Rule 56(a) Statements, undisputed ¶¶ 10-15.)

As part of his investigation, Naccarato interviewed Green on December 11 in the presence of her union representative. In that interview, Green admitted that, as indicated above, she had taken the biscuits and the basket without asking anyone's permission. She told Naccarato, as she had tried to tell Chief Larrabee on December 5, that she had merely been borrowing the basket for a Hanukkah party, and that she had seen the biscuits in the refrigerator for more than a week and planned to bake them at home and bring them back for officers and staff. When Naccarato asked why she had tried to conceal the basket, Green stated that she was not concealing it. She merely brought the tote bag because it made the basket easier to carry; and it had not occurred to her to ask permission to borrow it, since for the past 13 years she and others (she named two) had borrowed and returned such items as the basket...