NEEDREPLACE, Civil No. 12cv58 (AWT).

CourtNew York District Court
Writing for the CourtALVIN W. THOMPSON
Citation7 F.Supp.3d 218
Docket NumberCivil No. 12cv58 (AWT).
Decision Date26 March 2014
PartiesLester GORHAM, Plaintiff, v. TOWN OF TRUMBULL BOARD OF EDUCATION, Defendant.

7 F.Supp.3d 218

Lester GORHAM, Plaintiff,

Civil No. 12cv58 (AWT).

United States District Court, D. Connecticut.

Signed March 26, 2014

Motion granted.

[7 F.Supp.3d 221]

Jerry V. Leaphart, Jerry V. Leaphart & Assoc. PC, Ridgefield, CT, for Plaintiff.

[7 F.Supp.3d 222]

Allison L. Pannozzo, Michael J. Rose, Robin B. Kallor, Rose Kallor LLP, Hartford, CT, for Defendant.


ALVIN W. THOMPSON, District Judge.

The plaintiff, Lester Gorham (“Gorham”), brings this action against the defendant, Town of Trumbull Board of Education (the “BOE”), alleging that the BOE discriminated against him by terminating his employment based on his race (African American), color (black), and age (46), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 (“Title VII”), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (“ADEA”), and the Connecticut Fair Employment Practices Act, Conn. Gen.Stat. § 46a–60 et seq. (“CFEPA”). The plaintiff further alleges that the defendant retaliated against him by not reinstating him after he filed a charge of discrimination with the Commission on Human Rights and Opportunities (“CHRO”). The defendant moves for summary judgment with respect to all claims. For the reasons set forth below, the motion is being granted.

I. Factual Background

In August 2003, Gorham was interviewed by Stephen Kennedy (“Kennedy”), who is the BOE's plant administrator. Kennedy recommended to the BOE's superintendent, Ralph M. Iassogna (“Iassogna”), that Gorham be hired for the position of custodial floater. The defendant contends that the terms and conditions of the plaintiff's employment were governed by a collective bargaining agreement between the BOE and the plaintiff's union. The agreement provides a four-step procedure in the event an employee is disciplined or terminated. The first step provides that the employee “shall present to the employee's supervisor ... all facts available pertaining to the problem or incident....” (Mem. of Law in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Mem.”), Ex. N, Doc. No. 38–16, at 19.) The second step provides that “[i]f either party feels there should be further review, the facts pertaining to the problem shall [be] represented to the Plant Administrator....” ( Id.) The third step provides that “[i]f either party still feels further review is necessary, it must request a hearing from the Superintendent of Schools....” ( Id.) Finally, the fourth step provides that if either the union or the BOE “feels that further review is justified, such party must submit the matter to arbitration....” ( Id. at 20.) The plaintiff denies that the terms and conditions of his employment were governed by a collective bargaining agreement as it relates to his termination in or about November 2010.

Gorham began his employment with the BOE on August 25, 2003. New hires, such as Gorham, are placed on a 180–day probationary period, but the BOE extended Gorham's probationary period for 30 days on the basis of some performance issues.1 Subsequently, the BOE determined that Gorham was performing his duties satisfactorily, and his probationary period ended on March 22, 2004. In March 2007,

[7 F.Supp.3d 223]

Gorham was promoted to the position of night custodian at Trumbull High School. Gorham was supervised by Craig Schneider (“Schneider”), who is the BOE's night custodial supervisor. Gorham's performance showed improvement after the initial probationary period, and he received raises and promotions. Gorham continued to be employed by the BOE until November 19, 2010, when he resigned. The plaintiff denies he voluntarily resigned and maintains that he was constructively discharged.

There is an established understanding among the employees in the custodial department that they may take items found in the trash.2 With respect to items in the Lost and Found, the custodial staff is directed by their supervisors not to take any items from the Lost and Found until the accumulation of the items has become such that it overflows into the hallway. The custodial staff is then directed by a school administrator to place the items in a plastic bag to be donated to Goodwill.

A. The Incident

On or about November 4, 2010, Felix Dausilio (“Dausilio”), a night custodian, found a case for a musical instrument while cleaning the band room. The instrument case was in the garbage, and it looked like garbage. Dausilio did not open the case to see what was inside. He put the case on top of a barrel that he was wheeling to the loading dock. Dausilio called Schneider and asked Schneider what he should do with the instrument case. Schneider asked Dausilio to bring the instrument case to him because he wanted to look at it. Dausilio and Schneider met “in the custodial hall.” (Def.'s Mem., Ex. G, Affidavit of Craig Schneider, Doc. No. 38–9, ¶ 5.) Schneider observed that the instrument case looked old and worn, but he did not open it to look inside. Schneider asked Dausilio to put the instrument case on the loading dock, which was where custodians typically put items that required a determination as to their value. Schneider planned to speak to Peter Horton, the music director at Trumbull High School, about the instrument case.

After leaving Schneider, Dausilio saw Gorham in the hallway.3 Gorham looked at the instrument case, and Dausilio asked him whether he wanted it. Gorham opened the instrument case and looked inside. Gorham then took the instrument case and walked away. Dausilio did not see the inside of the case because he was standing at the back of the barrel.

Gorham testifies that he was bringing garbage to the dumpster on the loading dock and saw a brown case in the dumpster. The case was clearly worn out. He opened the case and saw a saxophone.4

[7 F.Supp.3d 224]

Gorham considered it garbage because it was in the dumpster and so he took it home with him thinking maybe the church could use it, in accordance with the established understanding that custodians may take items in the trash.

On the following day, November 5, 2010, Horton approached Schneider and asked about a missing musical instrument that belonged to a student. Schneider was told that the musical instrument was a family heirloom. Schneider and Horton approached Dausilio to ask about the instrument case. Dausilio told them that Gorham had it. Schneider also questioned other custodians, including Ed Bike (“Bike”), the head custodian at Trumbull High School, about whether they knew anything about a missing musical instrument.

Schneider questioned Gorham. At first, Gorham denied having knowledge of the matter. Later, Gorham told Schneider that he had given the instrument to someone at his church; then Gorham claimed that he had sold the instrument; and finally, Gorham told Schneider that he sold the instrument to a pawn shop. Schneider asked Gorham to bring the instrument back to the school.

Bike also asked Gorham about the missing instrument. Gorham told Bike that he had taken the instrument case, and that it looked like trash. Bike asked Gorham to bring back the instrument case, which Gorham did. When Gorham returned the instrument case, Bike observed that the case appeared old and worn but the instrument inside the case was polished. Bike then contacted Kennedy to inform him about what had happened.

Gorham states that he never denied having knowledge of the matter, and he brought the instrument case back once he became aware that people were looking for it. Gorham states that he never told Schneider that he sold the instrument to a pawn shop.

B. The Investigation

After being informed of the incident, Kennedy conducted an investigation, which included speaking with Gorham directly. Kennedy states that Gorham told him the following:

a) [Gorham] took home a musical instrument in its case on November 4, 2010;

b) [Gorham] knew Craig Schneider had asked Felix Dausilio to separate the item from the trash and set it aside;

c) [Gorham] opened the case and saw the instrument before he took it, and he admitted that he believed the instrument would have value;

d) [Gorham] took the instrument home ... and said he gave it to someone else; and

e) [Gorham] sold the instrument....

(Def.'s Mem., Ex. B, Affidavit of Stephen Kennedy (“Kennedy Aff.”), Doc. No. 38–4, ¶ 13.)

Gorham denies that Kennedy “conducted an investigation.” (Affidavit of Lester Gorham (“Gorham Aff.”), Doc. No. 42–2, ¶ 31.) Instead, Gorham states that Kennedy “engineered a pretext to terminate [his] employment.” ( Id.)

Kennedy states that, as a part of his investigation, he also watched a surveillance camera recording from November 5, 2010 that shows Gorham taking home a coat 5 from the school's Lost and Found

[7 F.Supp.3d 225]

and a dry mop from the custodial women's lavatory that was used as a storage area. The video shows that after the custodial staff left the loading dock at approximately 11:00 p.m., Gorham appeared to check outside several times. He then went into the custodial storage room, came out with a large garbage bag, and went into the custodial break room. The video shows that Gorham went to the Lost and Found shelves in the hall, looked over the shelves, picked up a coat, examined it, and took it into the custodial break room. The video also shows that Gorham went into the custodial women's lavatory that was used as a storage area for custodial equipment, took a small dry mop belonging to another custodian, Elaine Schwab (“Schwab”), and went back to the custodial break room. Gorham then left the break room with a garbage bag that was “puffy” at the bottom and had a dry mop handle sticking out of it. The video shows that Gorham went to the loading dock and placed the bag in an empty garbage barrel.

When Kennedy questioned Gorham about the events in the November 5, 2010 video, Gorham stated that he had...

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