HAIGHT, Senior District Judge.
Plaintiff James Fasoli ("Fasoli"), a public employee of the City of Stamford
There is very little that is not disputed here. Nevertheless, and as the Court explains below, no genuine and material factual dispute that precludes summary judgment exists because, in opposition to Defendants' properly supported motions for summary judgment, Fasoli has presented nothing more than mere speculation and conjecture on key elements of his claims.
This Ruling begins with a recitation of the allegations in Fasoli's Amended Complaint. Additional factual background is derived from the evidentiary record generated by the extensive discovery conducted before these motions for summary disposition were filed.
At the time he filed his Amended Complaint, Fasoli was 66 years old and had been an Equipment Mechanic in the Vehicle Maintenance Department ("Vehicle Maintenance"), which is part of the City's Office of Operations ("Operations"),
Scacco is the Manager of Vehicle Maintenance,
In his Amended Complaint [Doc. 31], Fasoli attributes the start of his workplace troubles to a letter he wrote to the City, in April 2008, reporting what he believed to be sexual harassment of a female co-worker, Charlene McArthur ("McArthur").
Then, on or about January 4, 2010, Orgera, who had recently become Director of Operations, reassigned Fasoli from Vehicle Maintenance to Scofieldtown Yard, a facility
In February of 2010, Fasoli learned that a position had opened up for a Traffic Violations Officer (TVO) with special police powers, and that the position had been filled on a provisional basis by Tania Barnes's ("Barnes")
Shortly thereafter on April 8, 2010, Fasoli informed Gabriele "that City employees were throwing out City snowplows and selling City scrap metal .... to pay for private employee parties, and that this was done [in violation of City ordinances and] with the knowledge and consent of ... [Orgera]." Id. at ¶¶ 49-50, 54. Fasoli submits that he "had previously reported" the same activity to Tarzia and Gabriele, but does not specify when he made those reports. See id. at ¶ 50. According to Fasoli, his "reporting of the mismanagement, misuse and theft of City assets within the Office of Operations was a political embarrassment to [] Orgera ... and to [the Mayor of Stamford,] who appointed [Orgera to be Director of Operations]." Id. at ¶ 66. He states that, "[a]s a result of the inquiries generated by [his] whistle-blowing... the [Stamford] Board of Finance voted in May of 2010 to hire an outside auditor to conduct a forensic audit of the Operations Department with respect to the sale of City metals (the "Metals Audit")." Id. at ¶ 67. Fasoli also asserts that "[t]he Metals Audit generated significant public notoriety[,]" and states that "[i]t was rumored among City employees that [Fasoli had been the one to] provide[] the information to [Tarzia and Gabriele] that [led] to the Audit." Id. at ¶ 68. As a result of these rumors Fasoli claims that, starting in April 2010 and continuing through October 2010, he became the subject of disparaging remarks by City employees, including over the Department's two-way vehicle radio system, calling him a "whistleblower" and a "rat." Id.
In mid-May 2010, Fasoli attended a Board of Representatives Operations Committee Meeting, which was also attended by Scacco. Id. at ¶ 38. At the meeting, Fasoli spoke out against the Department's purchase of certain 1996 used Mack trucks, claiming they were unsafe and in
The day after the board meeting, Scacco filed an ethics complaint against Tarzia, Gabriele, and Robert Kolenberg ("Kolenberg"), each of whom were elected Stamford officials. According to Fasoli, Scacco did this "in retaliation ... for exposing waste and mismanagement in [] Scacco['s] department and the theft of City metals, and to intimidate them, other employees[,] and elected officials from [conducting] future inquir[i]es into his department and the Office of Operations." Id. at ¶¶ 72, 74. Fasoli further maintains that Scacco intentionally disclosed portions of his personnel files to the Ethics Board, and also, along with Orgera, conducted a pattern of intimidation and retaliation against him for the purpose of discouraging and/or discrediting him, and to dissuade him from providing testimony in Scacco's upcoming ethics hearing. Id. at ¶¶ 75-76.
A few months later, in September 2010, Fasoli claims that one of his co-workers, Richard Valentine ("Valentine"), stated at a union meeting that Fasoli should be thrown out of the union because he was a "rat." Id. at ¶ 80(d). Then, on October 14, 2010, Orgera issued an Official Notification of Reassignment transferring Fasoli from Scofieldtown Yard back to Vehicle Maintenance, where he would again report to Scacco. Fasoli contends that Orgera and Scacco did this in furtherance of their ongoing efforts to intimidate and retaliate against him. Id. at ¶ 77.
Fasoli began working at Vehicle Maintenance anew on November 1, 2010. Id. at ¶ 79. He maintains that shortly after returning there he was made the subject of intimidation and retaliation within the Department, including: (1) "[a]nonymous sexually explicit innuendos [] written on the lunchroom white board pertaining to `whistleblowers' and `rats'"; (2) the placing of "[r]eplica rats ... on [] [his] toolbox"; and (3) being "called a `rat' by several of his co-workers, on numerous occasions, ... [including] at meetings in which many of [his] co-workers were present." Id. at ¶ 80.
Fasoli also claims that as the date for Scacco's ethics hearing approached, Scacco, Barnes and Orgera intensified their harassment against him. Id. at ¶ 81. Specifically, Fasoli maintains that Scacco threatened to terminate him and/or suspend him without pay based on vague accusations of poor work performance and not working "while on the clock." Id. at ¶ 81. Fasoli believed these accusations were intended to dissuade him from testifying as a witness at the ethics hearing. Grievance Complaint Form [Doc. 173-44] at 27-28, dated March 28, 2011.
Then, in mid-March 2011, Fasoli says a Stamford Advocate reporter contacted Barnes with questions about her involvement in hiring her brother for the TVO position. Id. at ¶ 107. The next day, when Fasoli arrived at work, he found "a plastic replica of a rat ... on [his] toolbox[.]" This act, as Fasoli characterizes it, was "a clear effort to harass and intimidate
When he returned the next workday, Fasoli was summoned to Scacco's office and was confronted by Barnes and Scacco, who "wrongly accused [him] of failing to perform his job.... [and of] not working for an hour." Id. at ¶ 117. Fasoli says they both used "abusive language, [made] untrue allegations [against him,] and [had a] harassing demeanor[.]" Id. at ¶ 118. As a result, Fasoli says he "became ill, dizzy, had trouble breathing, and felt pain in his chest." Id. "[B]elieving [] he was having a heart attack," Fasoli was taken to Stamford Hospital where he underwent diagnostic testing[,]" which concluded that he was having an anxiety attack. Fasoli maintains the anxiety attack "was directly caused by the belligerent actions of [] Barnes and Scacco." Id. at ¶ 119. Fasoli was admitted and remained at the hospital until the next afternoon. Id. at ¶ 120.
Three days later, Scacco issued a pre-disciplinary notice to Fasoli, advising him of a hearing on March 30. Id. at ¶ 122. Fasoli alleges that the pre-disciplinary notice falsely accused him of violating the time and attendance policy and poor work performance, and was issued simply because he had not called in sick the day he was hospitalized, even though, as Fasoli maintains, Scacco and Human Resources were well aware that he had been admitted to the hospital for an "apparent heart attack." Id. at ¶¶ 123, 124. Following the disciplinary hearing, Scacco suspended Fasoli for five days. Id. at 125. Fasoli lost pay for the day he was hospitalized, and for follow-up doctor's appointments, despite the fact that he had accrued personal and sick days for such absences. Id. at ¶ 126.
Fasoli contends that this pattern of harassment against him continues to the present and is part of a clear effort to, inter alia, prevent him from providing testimony at Scacco's ethics hearing. Id. at ¶¶ 127-128. He also claims that the City improperly handled his personnel file by intentionally and purposefully leaving it in a common area of the Stamford municipal building for several weeks and then permitting the public to access his personal medical information, confidential communications about his well-being, and treatment. Id. at ¶ 131. As factual support for these accusations, Fasoli reports that his attorney was contacted by a reporter for the Stamford Advocate after viewing the contents of his personnel files, which the reporter had found in a publicly accessible area of the City's municipal building. Id.
In addition, Fasoli claims that in connection with this pattern of harassment and retaliation against him, Scacco maintained a separate file on him, which contained self-serving documents that "cast Fasoli in a false light" and which "eventually made their way into his official personnel file." Id. at ¶ 132.
Lastly, Fasoli avers that in mid-June 2011, Scacco concocted a scheme to discipline him, by first approving Fasoli's use of a brake pad that "had been cleaned [of] grease[,]" and then "gather[ing] false evidence and witnesses ... to frame [Fasoli] for improperly using [that] defective part[.]" Id. at ¶ 134. This incident resulted in a pre-disciplinary hearing, during which, according to Fasoli, "it was revealed that [] Scacco had lied about not knowing ... of the cleaned brake pad[], and [that he] had concocted [the] scenario to [take] [] disciplinary action against [him]." Id. at ¶ 135. Fasoli maintains that "[n]o discipline or other resolution
Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a summary judgment motion, a court must construe the facts in evidence in the light most favorable to the nonmoving party. It must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
However, when "a motion for summary judgment is properly supported by documentary and testimonial evidence ... the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but rather must present significant probative evidence to establish a genuine issue of material fact." Marczeski v. Gavitt, 354 F.Supp.2d 190, 193 (D.Conn.2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In order to do so, the nonmoving party must produce contradictory evidence that is more than "merely colorable," "such that a reasonable jury could return a verdict [in his favor]." Anderson, 477 U.S. at 248, 249, 106 S.Ct. 2505. Accordingly, in the face of a properly supported motion, summary judgment is appropriate if the nonmoving party fails to present affirmative evidence on each essential element of his case with respect to which he has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
In Counts One through Five of his Amended Complaint, Fasoli avers that the Defendants retaliated against him on the basis of his speech in violation of 42 U.S.C. § 1983 (Count One), Conn. Gen.Stat. §§ 31-51q (Count Two) and 31-51m (Count Three), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count Four), and the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen.Stat. § 46a-60(a)(4) (Count Five).
To establish a retaliation claim under § 1983 in violation of a public employee's First Amendment right to freedom of speech, a plaintiff must show: (1) his speech was constitutionally protected; (2) he suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action. Washington v. Cnty. of Rockland, 373 F.3d 310, 320 (2d Cir.2004).
To demonstrate a free speech violation under Conn. Gen.Stat. § 31-51q, a plaintiff must prove: (1) he was exercising rights protected by the First Amendment to the United States Constitution (or an equivalent provision of the Connecticut Constitution); (2) he was disciplined or terminated on account of his exercise of such rights; and (3) his exercise of his First Amendment (or equivalent state constitutional rights) did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer. Lopez v. Burris Logistics Co., 952 F.Supp.2d 396, 406-07 (D.Conn.2013).
A violation of Conn. Gen.Stat. § 31-51m (Connecticut's Whistleblower's Protection Act), requires proof that: (1) a plaintiff engaged in protected speech; (2)
A Title VII retaliation claim based on speech requires a plaintiff to show that: (1) he engaged in protected speech; (2) the employer was aware of this activity, (3) the employer took adverse action against him, and (4) a causal connection exists between the protected activity and the adverse action. DeMoss v. Norwalk Bd. of Educ., No. 3:05 CV 736(DJS), 2014 WL 1875105, at *13 (D.Conn. May 9, 2014). The elements for a claim of retaliation under the CFEPA are the same as for a retaliation claim under Title VII. Id.
Each of the foregoing causes of action is analyzed under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Arnone v. Town of Enfield, 79 Conn.App. 501, 507, 831 A.2d 260 (2003) (stating that retaliation claims for whistleblowing are analyzed under the McDonnell Douglas framework); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.2010) ("Retaliation claims under Title VII ... are [] analyzed under the McDonnell Douglas burden-shifting test[.]"); Bracey v. Northeast Util. Serv. Co., No. CV126027883S, 2013 WL 6334262, at *13 (Conn.Super.Ct. Nov. 1, 2013) (stating that CFEPA "claims of retaliation ... are evaluated under the McDonnell Douglas burden-shifting paradigm"). And although the evidentiary framework for analyzing First Amendment retaliation claims under § 1983 and Conn. Gen.Stat. § 31-51q is not expressly referred to in the case law as falling under the McDonnell Douglas rubric, it is still essentially the same. See Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 47 (2d Cir.2014).
Under the McDonnell Douglas burden-shifting analysis, for Fasoli to survive summary judgment on his speech retaliation claims, he must first establish a
Proof of a causal connection, as required by the third element of the prima facie case, may be demonstrated either: (1) indirectly, by circumstantial evidence, such as by showing that the protected activity was followed closely in time by adverse treatment in employment, or (2) directly, by evidence of retaliatory animus. Id. Either way, "a plaintiff may not solely `rely on conclusory assertions of retaliatory motive to satisfy the causal link[,]'" id. at 358 (citing cases); rather, "[he] must [] provide the Court with `some tangible proof to demonstrate that [his] version of what occurred was not imaginary[,]'" id. Further, where, as here, the third element of causal connection is premised on motive, i.e., retaliation motivated by exercise of protected speech, it necessarily follows that Fasoli must make some showing that Defendants knew of his protected activity. See id. at 359; accord Gordon, 232 F.3d at 116-17.
It is usually "the judge, not the jury, who must decide whether a plaintiff has satisfied the requirements of McDonnell Douglas's minimal version of a prima facie case[.]" Gordon, 232 F.3d at 116. If the court so finds, the burden then shifts to the defendant to offer evidence of a legitimate, nonretaliatory reason for its employment action. McClain v. Pfizer, Inc., 692 F.Supp.2d 229, 238 (D.Conn.2010) (citing McPherson v. New York City Dept. of Educ., 457 F.3d 211, 215 (2d Cir.2006)). If the defendant succeeds in doing so, the McDonnell Douglas presumption of unlawful retaliation falls away, and the burden shifts back to the plaintiff to produce evidence from which a reasonable jury could find that the employer's stated reason is merely pretext for illegal retaliation. Id.; see also Gordon, 232 F.3d at 116 ("when a retaliation case does go to the jury [after applying three-step burden-shifting framework from McDonnell Douglas], the jury's task is simply to determine the ultimate question of whether the plaintiff met her `burden of proving that the defendant was motivated by prohibited retaliation'").
Fasoli identifies five instances of protected speech in support of the retaliation claims in his Amended Complaint:
Each of the Defendants has denied Fasoli's allegations. Each Defendant also maintains that Fasoli (1) has failed to establish a prima facie case of retaliation; and (2) even if he has met that initial burden, he has failed to produce sufficient evidence to create a genuine dispute that, as applicable, a Defendant's proffered legitimate, nonretaliatory reason is merely pretext for retaliation, or that a Defendant would not have taken the same action in the absence of any such protected speech.
As the Court explains, with one exception discussed below, in each instance of protected speech he has raised, Fasoli fails to also establish either the second element, i.e., an adverse employment action, or the third element, i.e., causal connection, of the prima facie case.
Even in the instances where the Court assumes or finds that Fasoli has established a prima facie case, Defendants have, as applicable, articulated a legitimate nonretaliatory reason, supported by record evidence, for taking the alleged adverse action, which Fasoli fails to rebut with any evidence suggesting otherwise.
Before analyzing each of Fasoli's claims, it bears repeating that the Court's function on summary judgment is confined to "issue-finding" not "issue-resolution[.]" Burns v. Dep't of Pub. Safety, 973 F.Supp.2d 141, 148 (D.Conn.2013). But, as just discussed, before it need "discern [] whether there are any genuine issues of material fact to be tried[,]" id., which, again, turns on whether Fasoli has produced sufficient evidence from which a reasonable jury could find that Defendants' stated reason for taking an adverse action is merely pretext for retaliation, the Court must first determine whether Fasoli has satisfied his prima facie burden.
Although "[t]he requisite degree of proof necessary to establish a prima facie case... on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence[,]" Wallis, 26 F.3d at 889; accord Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000), Fasoli must still "offer evidence which `gives rise to an inference of unlawful discrimination[,]'" Wallis, 26 F.3d at 889, i.e., evidence that warrants the inferences needed to establish each element of
The Court will now address the twelve adverse employment actions Fasoli has raised in his Amended Complaint in chronological order.
Fasoli submits that, "within two months" after speaking out against the sexual harassment directed at McArthur in April 2008, he was "targeted," "retaliated against[,]" and "put on Defendants' hit list[,]"
With regard to these allegation as to Orgera, Fasoli has proffered no evidence that he had a role in any of the above adverse actions. Moreover, it is undisputed that Orgera did not have supervisory authority over Fasoli until after he was appointed Director of Operations, on December 1, 2009. Orgera Dep. [179-13] at 31:3-14. There is also no genuine dispute that Orgera's first alleged adverse action against Fasoli is his transfer to Scofieldtown Yard on January 4, 2010, which is outside the time period in which the above alleged adverse actions occurred. Thus, there is no evidence of Orgera's involvement in this alleged retaliation.
This is so even though Fasoli claims "[he] got a total double cross from [Orgera]... [in that he] got a five-day suspension out of the blue for nothing." Fasoli Tr. [Doc. 198] at 716:22-23. However, the uncontradicted evidence shows that the suspension was issued by Scacco for poor work performance. Doc. 152-15. Even though Fasoli "believes" Orgera had a part in it because he had met with Orgera approximately two weeks earlier (just after Orgera's appointment as Director) regarding union matters and things in general, Fasoli Dep. [Doc. 198] at 717:9-11, the record evidence actually shows that the suspension was issued for poor work performance that occurred almost entirely before Fasoli's meeting with Orgera, i.e., from mid-August 2009 to mid-December 2009. Id. at 719:18-720:20; accord Doc. 152-15. Moreover, Fasoli does not even claim that he engaged in protected speech of any kind during the meeting with Orgera.
With regard to Scacco, it is undisputed that he had supervisory authority over Fasoli
The June 2008 incident report, which Scacco later placed in Fasoli's personnel file, states that the report was issued because Fasoli had acted in a manner that Scacco "felt ... interfered with [his] responsibility to assign and manage work within the department." Scacco Aff. [173-5] at ¶ 25. Specifically, as Scacco explained, he issued the report after he assigned, over Fasoli's objection on safety grounds, another employee as "lead man" to work with Fasoli on a repair. Fasoli refused to take direction from the other man and then left the premises. Id.; accord Fasoli Dep. [Doc. 198] at 50:19-55:19. Fasoli does not materially contest the explanation by Scacco. Fasoli Dep. [Doc. 198] at 49:14-58:15.
Because Scacco issued the incident report approximately two months after Fasoli complained on behalf of McArthur, the temporal proximity of the two events could arguably constitute circumstantial evidence of a causal connection between Fasoli's "protected speech" and that adverse employment action. But temporal proximity is a thin reed. "[E]ven very close temporal proximity is not always sufficient to support an inference that the plaintiff's protected activity was a motivating factor in the defendant's adverse employment action." Smith v. Da Ros, 777 F.Supp.2d 340, 357 (D.Conn.2011) (citing cases). "[T]he [ultimate] question of whether ... a `causal nexus' [exists] between a plaintiff's protected activity and the defendant's allegedly retaliatory action will depend on the facts and circumstances of each particular case." Id. "A district court must exercise its judgment about permissible inferences that can be drawn from temporal proximity in the context of a particular case." See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.2009).
Here, absent any other evidence that might show Scacco issued the incident report in retaliation for Fasoli's speech involving McArthur, temporal proximity by itself is not sufficient to warrant an inference of a causal connection, especially in light of the fact that Fasoli has presented no evidence that Scacco had any reason to harbor ill will against Fasoli in connection with his defense of McArthur. As Fasoli concedes, Scacco was not implicated in the McArthur incident in any way, Fasoli Dep. [Doc. 198] at 38:8-39:13. Fasoli also does not materially contest Scacco's version of events regarding the June 18
As to the other two incidents of adverse employment action, i.e., the one-day suspension in February 2009 and the five-day suspension in December 2009, both occurred at least ten months after Fasoli spoke out about McArthur's harassment.
The same is true with regard to Fasoli's claim that Orgera's transfer of him to Scofieldtown Yard on January 4, 2010 was done in retaliation for his April 2008 speech on behalf of McArthur, which is the only arguably protected speech Fasoli identifies in his Amended Complaint as preceding this transfer.
Fasoli submits another alleged adverse employment action is the denial of overtime during his time at Scofieldtown Yard (from approximately January 19 to October 31, 2010). Specifically, Fasoli claims that he was offered overtime by his immediate supervisor there but that Scacco "vetoed" it in retaliation for his speaking out on matters of public concern. This claim fails as a technical matter because Scacco denies that he was ever consulted about whether or not Fasoli could work overtime, Scacco Aff. [Doc. 173-5] at ¶ 109, and Fasoli has not produced any evidence demonstrating otherwise, e.g., no supporting testimony from his supervisor at Scofieldtown Yard. Furthermore, it is not disputed that Scacco did not have supervisory authority over Fasoli while he was at Scofieldtown Yard, and that Scacco lacked the discretion or authority to award overtime, even with respect to his immediate staff. See id. at ¶ 110. Rather, the record evidence shows that overtime requests were approved by union shop stewards pursuant to an overtime list the stewards maintained and from which the stewards would offer overtime to employees in chronological order.
Fasoli also avers that his "whistle-blowing" regarding the scrap metal caused
Defendants have, in pertinent part, denied these allegations, Orgera Answ. [Doc. 33] at ¶ 68; Orgera Aff. [Doc. 146] at ¶¶ 12, 14; Scacco Answ. [Doc. 197] at ¶ 68; City Answ. [Doc. 199] at ¶ 68, and Fasoli has not produced any evidence demonstrating that Defendants made, knew of, or orchestrated any such disparaging remarks about him. See, e.g., Fasoli Dep. [Doc. 198] at 786:4-787:2, 788:16-791:8. Moreover, there is no genuine dispute that neither Orgera nor Scacco had any significant contact with Fasoli during this time as Fasoli was working in a different facility and was not under the daily supervision of either men.
Fasoli also has not come forward with any evidence to rebut Orgera and Scacco's assertions that they had no knowledge of Fasoli's asserted role in the Metals Audit during this period in time, Orgera Aff. [Doc. 146] at ¶¶ 11-13; Scacco Aff. [Doc. 173-5] at ¶¶ 98-101. Although a plaintiff may satisfy the knowledge requirement simply by pointing to general corporate knowledge of the protected activity, Gordon, 232 F.3d at 116, Fasoli has not done so here. At deposition and in his affidavit [Doc. 179-1], he maintains that newspaper articles identify him as the source of the Metals Audit, yet none of the newspaper articles submitted reflect this attribution (not to mention that they were all published after October 2010). See [Docs. 179-17-179-21.] Further, the report produced in connection with the Metals Audit [Doc. 179-4] also does not expressly identify Fasoli as playing any role in its initiation (and it, too, was published well after October 2010). Finally, Fasoli makes no argument for treating either Tarzia or Gabriele, then both members of the City's legislature, as synonymous with or acting on behalf of the City corporate entity. More to the point, Fasoli readily concedes that his communications with both men on these issues were strictly confidential, which precludes any attribution of knowledge to Defendants. Accord Gordon, 232 F.3d at 116 (implying communication to corporate entity, though general, must still disclose identity of speaker before such knowledge may be attributed to the corporate entity). Fasoli further fails to provide substantiation for his assertion that he was rumored among City employees to be the source behind the Metals Audit.
Fasoli also claims as an adverse employment action that Scacco "fraudulently" inflated his hourly labor rate during his
Scacco denies this, Scacco Answ. [Doc. 197] at ¶¶ 40-41, and, apart from bald allegations, Fasoli has not produced any evidence — e.g., proposed witness testimony or the documentary material he claims Scacco presented at the meeting — to warrant an inference that Scacco actually did what Fasoli claims he did, much less that Scacco did so in connection with Fasoli's purported whistleblowing in connection with the trucks or anything else. Accord Fasoli Dep. [Doc. 198] at 155:5-162:8. Underscoring this omission is the fact that the meeting minutes also do not reflect any discussion of Fasoli's labor rate. See Committee Report [Doc. 173-55] at 4-5.
Another adverse action cited by Fasoli concerns an ethics complaint that Scacco filed the day after the aforementioned board meeting. In that complaint, Scacco alleged that Tarzia, Gabriele, and Robert Kolenberg ("Kolenberg"), abused their powers as public officials by leading a campaign of harassment and retaliation against him as a result of his efforts to address Fasoli's poor job performance, which he claimed was a major obstacle to the productivity of the Operations Department and the safety of the City's fleet. [Doc. 173-34.] Specifically, Scacco claimed that the three men had harassed him since he issued Fasoli the disciplinary report in February 2008,
Even though Fasoli had no involvement whatsoever in the ethics complaint or with its allegations, Fasoli nevertheless maintains that Scacco filed the complaint in retaliation for his speech regarding waste and mismanagement in Scacco's department and the theft of City metals, and to
Because Fasoli's speech at the committee meeting was so "very close" to Scacco's ethics complaint, the Court infers the existence of the required element of causal connection. Nonetheless, Fasoli has failed to demonstrate that Scacco's ethics complaint constitutes an adverse employment action against him, which is the second element of his prima facie case.
It is well-settled in the Second Circuit that only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action. See, e.g., Wrobel v. County of Erie, 692 F.3d 22, 31 (2d Cir.2012) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225-26 (2d Cir.2006)). Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand. Zelnik, 464 F.3d at 225-26. This list is not exhaustive and even less significant actions, such as negative evaluation letters and express accusations by an employer that an employee has lied, may be considered adverse employment actions. Id. Ultimately, "whether an undesirable employment action qualifies as being `adverse' is a heavily fact-specific, contextual determination[,]" Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002), and usually should not be adjudicated on summary judgment.
Here, however, it is undisputed that Scacco did not file the ethics complaint against Fasoli. And even assuming that Fasoli is a friend and political ally of Tarzia, Gabriele, and Kolenberg — and thus on that basis Scacco's complaint could be perceived as also being aimed at Fasoli, even if indirectly — Fasoli has not alleged or introduced any evidence showing that the complaint caused the conditions of his employment to change in any way, much less in a way that "would [have] deter[red] a similarly situated individual of ordinary firmness from exercising his or her constitutional rights[,]" Wrobel, 692 F.3d at 31; see also Radolf v. Univ. of Conn., 364 F.Supp.2d 204, 225 (D.Conn.2005) (rejecting plaintiff's "contention that merely being the subject of an internal investigation... constitutes an adverse employment action sufficient to support an employee's First Amendment retaliation claim against his employer" where plaintiff did not produce any evidence of "attendant material disadvantage in employment terms"); Boylan v. Arruda, 42 F.Supp.2d 352, 356-58 (S.D.N.Y.1999) (concluding plaintiff suffered no employment consequences as a result of allegedly unfounded criminal investigation other than possible reputational injury); accord Everitt v. DeMarco, 704 F.Supp.2d 122, 133-34 (D.Conn.2010) (recognizing that whether an action would "deter a similarly situated individual of ordinary firmness from exercising his ... constitutional rights" hinges on whether there is evidence that the action in question caused a "materially adverse change in the terms and conditions of [plaintiff's] employment").
Fasoli also maintains that Scacco intentionally and illicitly disclosed portions of his personnel file to the Ethics Board and maintained a separate file on him for the purpose of harassing and retaliating against him, and created self-serving documents that cast him in a false light and eventually were included in his official personnel file. Fasoli also avers that the City improperly handled his personnel file, by intentionally and purposefully leaving it in a common area of the Stamford municipal building. Both Scacco and the City have denied these allegations, Scacco Answ. [Doc. 197] at ¶¶ 131-132; City Answ. [Doc. 199] at ¶¶ 131-132. And because Fasoli has failed to provide any evidence — e.g., proof of the "separate file" he claims Scacco created, or any evidence that his personnel file was ever improperly accessed or disclosed, accord Fasoli Dep. [Doc. 198] at 608:15-616:12 — the Court finds as a matter of law that no inference is warranted that any Defendant committed these acts, much less did so in retaliation for Fasoli's protected speech.
Another adverse action cited by Fasoli concerns statements made by his co-worker, Richard Valentine ("Valentine"), in September 2010, who stated at a workers' meeting that Fasoli should be thrown out of the union because he was a "rat." See generally, Fasoli Dep. [Doc. 198] at 62:24-64:15, 71:7-9, 95:11-14, 637:8-21, 824:3-10, 853:4-13. I accept the factual accuracy of Fasoli's account of this incident, but the incident itself is not relevant to Fasoli's claims against the Defendants, given the total absence of any evidence that Orgera, Scacco, or any other City employee, knew of, orchestrated, or condoned Valentine's alleged derogatory statement, see, e.g., Fasoli Dep. Tr. [Doc. 198] at 763:6-11, much less any evidence that Valentine's statement was made in retaliation for any protected speech by Fasoli.
Fasoli's assertion that his transfer from Scofieldtown Yard back to Vehicle Maintenance in October 2010 constitutes an adverse employment action fails for the simple reason that he makes no causal connection between it and any temporally proximate speech. Specifically, there is no genuine dispute that the transfer occurred five months after Fasoli's last instance of protected speech, i.e., his speech at the May 2010 committee meeting about the purchase of the six Mack trucks; thus, the transfer is too temporally remote from such speech to support an inference of a causal connection, see supra p. 301-02. Fasoli has also failed to produce any evidence of retaliatory motive for the transfer.
There is similarly no merit to Fasoli's claims that shortly after returning to work at Vehicle Maintenance on November 1, 2010, he was made the subject of intimidation and retaliation within the Department, consisting of (1) anonymous sexually explicit innuendos written on the lunchroom whiteboard pertaining to "whistleblowers" and "rats"
Defendants have all denied having prior knowledge of these incidents or of condoning them at any time, Orgera Answ. [Doc. 33] at ¶ 80; Orgera Aff. [Doc. 14]; Scacco Answ. [Doc. 197] at ¶ 80; Scacco Aff. [173-5] at ¶¶ 68-78; City Answ. [Doc. 199] at ¶ 80. Scacco even maintains that he never actually saw the whiteboard comments. Scacco Aff. [Doc. 173-5] at ¶ 68. Because Fasoli has not produced any evidence to demonstrate otherwise, see, e.g., Fasoli Dep. [Doc. 198] at 367:13-368:25, 375:4-376:17, no inference is warranted that Defendants were connected to any of those acts of retaliation. Thus, the Court finds as a matter of law that Fasoli has failed to establish the third element of his prima facie case on this part of his claim.
Here, too, Fasoli's claim of adverse action is based on pure speculation and founders for lack of any valid evidentiary support, let alone any connection to protected speech. According to Fasoli, in March 2011, a Stamford Advocate reporter contacted Barnes to ask questions about her involvement in the hiring of her brother for the TVO position, and the next morning he arrived at work to find a plastic rat on his toolbox. He viewed this as retaliation for the reporter's inquiry and it caused him to call in sick the next day.
Upon his return to work, Fasoli was summoned to Scacco's office and was confronted by Barnes and Scacco, both of whom, he claims, wrongly accused him of failing to perform his job and not working for an hour. During the meeting, at which Orazio Cierello, who was Fasoli's union representative, and Frycz, the department foreman, were also present, Fasoli became highly agitated and felt he was having a heart attack. He was admitted to the hospital for testing and was absent from work for the next two days.
On or about March 24, following his release from the hospital, and having returned to work, Fasoli received a pre-disciplinary notice from Scacco, advising him that a hearing would be held the next week. According to Fasoli, the notice
Even though Fasoli does not expressly allege this, the Court presumes that Fasoli is claiming all of the foregoing was in retaliation for protected speech — presumably his comments about the Mack trucks, which last occurred at the committee meeting ten months earlier, in May 2010. But those remarks and any purportedly protected speech before that was too temporally remote as a matter of law to infer a causal connection with these events. The only other instance of prior speech on which Fasoli might rely is the telephone inquiry allegedly made by the Stamford Advocate reporter to Barnes, questioning her about the hiring of her brother, which, according to Fasoli, occurred just days before these events. Although he does not expressly allege this, Fasoli seems to view the reporter's inquiry as a proxy for his own speech regarding the hiring of Barnes's brother. That is, despite being quite a stretch, Fasoli apparently sees himself as the impetus for the reporter's inquiry, given that he conveyed his suspicions about the hiring to Tarzia and Gabriele in February 2010. See Am. Compl. [Doc. 31] at ¶¶ 85-90, 100, 102; Fasoli Dep. [Doc. 198] at 347:18-352:14. But Fasoli has no evidence to connect the reporter's phone call to Fasoli's communication with Tarzia and Gabriele, which occurred nearly one year earlier. See id. Moreover, Scacco stated that he was not then aware that Fasoli had any concerns about the hiring of Barnes's brother, Scacco Aff. [Doc. 173-5] at ¶ 111, and thus would not have had any reason to attribute the reporter's phone call to Fasoli, accord Fasoli Dep. [Doc. 198] at 347:1-352:23, 600:14-601:25. Accordingly, because in the complete absence of any evidentiary basis for treating the reporter's call to Barnes as a proxy for Fasoli's speech, the Court finds Fasoli has not met his prima facie burdens on the first or third elements respecting protected speech and causal connection.
There are numerous additional reasons for not inferring the necessary causal connection. They include Scacco's contention that he did not believe Fasoli had anything to do with the scrap metal investigation even after Fasoli claimed to be the source, Scacco Aff. [Doc. 173-5] at ¶ 92; the fact
Also, the next day, Scacco made a note that Fasoli complained to him about finding a plastic rat on his toolbox, and then abruptly punched out and left work for the day, only five minutes after he had punched in. Id. at ¶ 75. Again, on March 18, Scacco noted that Fasoli called out sick. Id. at ¶ 76. At some point thereafter, one of Fasoli's co-workers told Scacco that he had observed Fasoli taking photographs of the toy mouse on Scacco's computer and that Fasoli had said it was evidence for this case.
Id. at ¶¶ 79-80. Then, according to Scacco, on the following day, March 22, Fasoli did not report to work and failed to call to advise him that he would be out. Scacco later learned from Fasoli's union that Fasoli had been admitted to the hospital overnight. Id. at ¶ 81. And on March 23, Fasoli called just ten minutes before the start of his shift to say he would be taking a vacation day, id. at ¶ 82. Scacco rejected Fasoli's request for vacation time since Fasoli had not made the request in advance, nor had the time off been pre-approved by Scacco. Rather, Scacco told Fasoli that he would record his absence as a sick day, at which point, according to Scacco, Fasoli responded in "an inappropriate fashion" and "made accusations[.]" Doc. 152-16. Fasoli does not materially dispute any of this. Fasoli Dep. [Doc. 198] at 378:13-384:14. And although Fasoli's recounting of these events might at times sound dramatic, he has not negated the
Finally, the Court finds no merit to Fasoli's claim that, after he commenced this suit in May 2011, Scacco concocted a scheme to discipline him in connection with a brake repair on a City truck. As an initial matter, although this alleged adverse employment action is temporally proximate to Fasoli's filing of the instant complaint — there having been a gap of just one month between the two events — such temporal proximity, as noted, is not always sufficient, by itself, to establish the necessary causal connection unless the facts and circumstances underlying the event also support such an inference. Such is not the case here.
As an initial matter, Scacco denies taking this action in retaliation for any protected speech, Scacco Answ. [Doc. 197] at ¶¶ 134-135, and Fasoli concedes that he does not know what would motivate Scacco to falsely accuse him of using a defective part, Fasoli Dep. [Doc. 198] at 393:9-21. But even assuming that Fasoli's filing of this lawsuit per se constitutes circumstantial evidence of Scacco's retaliatory animus, Scacco has come forward with a legitimate, nonretaliatory reason for disciplining Fasoli, see Scacco Aff. [Doc. 173-5] at ¶¶ 86, 134; see also Frycz Aff. [Doc. 173-7] at ¶ 55, which Fasoli has not rebutted with any evidence creating a genuine dispute that Scacco's reason was pretextual or that Scacco would not have taken the same action if not for Fasoli's filing of this action, see Fasoli Dep. [Doc. 198] at 387:14-389:4. Accord Rubinow, 496 Fed. Appx. at 119 (finding plaintiff's contention that employer "fabricated" its explanation for taking adverse action did not create a triable issue of fact as plaintiff's statement was conclusory and "not fundamentally [in] dispute [with her employer's] [ ] specific accounts of her insubordination"). Thus, this claim fails as a matter of law.
Two additional points merit discussion here, though Fasoli has not explicitly raised them. The first is that the Court would have reached the same result even if aspects of Fasoli's Amended Complaint were construed as also alleging Defendants retaliated against him on the basis of his association with Tarzia, Gabriele, and Kolenberg. This is because the standards by which a court is to evaluate a claim premised on political affiliation is generally the same one the Court has applied to Fasoli's speech retaliation claims. Quagliani, 889 F.Supp.2d at 351 n. 2. But see Da Ros, 777 F.Supp.2d at 359 (reasoning that political affiliation, unlike speech, usually does not consist of discrete acts).
The second point has to do with the implication in Fasoli's Amended Complaint, deposition testimony, and briefing, that, even if not individually, the adverse employment actions he alleges amount to speech retaliation when viewed in the aggregate. But that approach would impart an additional dimension to his claims that is neither supported by the case law — as it would nearly eviscerate the causal connection requirement — nor the evidence Fasoli has produced — which shows that even though he engaged in multiple instances of speech, his speech was nevertheless episodic and ran the gamut of subject matter. Ultimately, and as noted at the outset, it is for Fasoli to provide the Court with "some tangible proof to demonstrate that his version of what occurred was not imaginary[,]"
As part of his § 1983 claim, Fasoli alleges that: "[i]n retaliation for [his] engaging in free speech on matters of public concern,... Scacco, as the [Vehicle] Maintenance Supervisor, [] Orgera, as the Director of Operations, [] Larobina, as the head [of the] Office of Legal Affairs Personnel Division, and [] Barnes, as a Human Resources Generalist in the Personnel Division.... conspired to violate [his] rights in violation of, inter alia, [] § 1983." Am. Compl. [Doc. 31] at ¶ 145 (emphasis added). Specifically, Fasoli maintains that even though Defendants, Larobina, and Barnes "were all aware of the retaliatory acts against [him], [and] had a duty to protect him from this illegal harassment and retaliation, [they] ignored his complaints, failed to discipline the City employees involved, and/or encouraged the aforesaid conduct, and/or participated in the aforesaid conduct, and purposely failed to conduct an investigation [regarding] [his] complaints[.]" Id. But for the reasons below, this claim also fails as a matter of law.
"The elements of a § 1983 conspiracy are: `(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.'" Bartels v. Inc. Vill. of Lloyd, 751 F.Supp.2d 387, 402 (E.D.N.Y.2010) (quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999)). However, "[u]nder the intra-corporate conspiracy doctrine, officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other." Id. (citing cases).
In this case, Orgera, Scacco, Larobina and Barnes were all City employees, and, in his Amended Complaint, Fasoli expressly states that each was acting in his or her ordinary course of employment. In pertinent part, Fasoli does not allege that either Orgera or Scacco was acting out of a personal interest to retaliate against him apart from any interest held by the City. See Bond v. Bd. of Educ. of the City of New York, No. 97 CV 1337, 1999 WL 151702, at *2 (E.D.N.Y. Mar. 17, 1999) (finding that even though complaint included allegation that defendant wanted to "get rid of" plaintiff, "personal bias does not constitute personal interest and is not sufficient to defeat the intracorporate conspiracy doctrine"). As such, Fasoli fails to assert a viable claim of conspiracy in violation of § 1983 and Defendants are entitled to summary judgment on this subpart of Fasoli's Count One claim.
In Count Six of his Amended Complaint, Fasoli avers that the City retaliated against him in violation of the ADEA, 29 U.S.C. § 623(d). Specifically, Fasoli
The ADEA prohibits employers from retaliating against an employee for engaging in speech alleging age discrimination. See Kessler v. Westchester Cnty. Dept. of Soc. Servs., 308 Fed.Appx. 528, 529 (2d Cir.2009) (citing Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990)). "[A] plaintiff bringing a ... claim pursuant to the ADEA must prove, by a preponderance of the evidence, [inter alia,] that age was the `but for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., 557 U.S. 167, 180, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). A plaintiff must also show that: "(1) he was engaged in a protected activity; (2) his employer was aware of that activity; and (3) he was subject to [an] adverse employment action[.]" Kessler, 308 Fed.Appx at 529. As with Fasoli's claims, supra, his ADEA retaliation claim is analyzed under McDonnell Douglas's burden-shifting framework. Gorzynski, 596 F.3d at 110 ("Retaliation claims under... the ADEA are [] analyzed under the McDonnell Douglas burden-shifting test").
Here, the Court assumes that Fasoli has produced sufficient evidence to satisfy the first three elements of his ADEA retaliation claim. That is, Fasoli filed a CHRO complaint alleging age discrimination in August 2009 and alleges subsequent adverse employment action by the City in that he was: (1) issued a five-day suspension by Scacco in December 2009; (2) transferred from Fleet Maintenance to Scofieldtown Yard by Orgera in January 2010; and (3) transferred from Scofieldtown Yard back to Fleet Maintenance, also by Orgera, in November 2010. Fasoli Dep. [Doc. 198] at 838:8-845:5. But, as noted, in order to defeat the City's instant motion for summary judgment on his ADEA retaliation claim, Fasoli must also produce evidence warranting the inference, as a matter of law, that age was the "but for" cause of these actions. Gross, 557 U.S. at 180, 129 S.Ct. 2343.
In Counts Seven and Eight of his Amended Complaint, Fasoli alleges that the City discriminated against him on the basis of his age in violation of the ADEA, 29 U.S.C. § 623(a)(1), and the CFEPA, Conn. Gen.Stat. § 46a-60(a)(1). Although his age discrimination claims comprise state statutory law, the Second Circuit has recognized that "Connecticut law in relevant part follows the ADEA[,]" Rubinow, 496 Fed.Appx. at 117, and therefore this Court will apply the same but-for analysis from Gross, to both of Fasoli's age discrimination claims.
It thus follows that in order to defeat the City's instant motion for summary judgment on his discrimination claims, Fasoli must first establish a prima facie case, using the McDonnell Douglas framework, with evidence warranting the inference that: (1) he falls within the protected age group; (2) he was subject to an adverse employment action; and (3) his age was the "but-for" cause of the adverse employment action. Gross, 557 U.S. at 180, 129 S.Ct. 2343; Gorzynski, 596 F.3d at 106 (stating that "[the court] remain[s] bound by, and indeed see[s] no reason to jettison, the [McDonnell Douglas] burden-shifting framework for ADEA cases that has been consistently employed in [this] Circuit").
Because Fasoli is over forty years old, it is clear that he has met his burden as to the first element. However, as to the second element, the Court finds that Fasoli has not produced sufficient evidence — documentary or otherwise — to warrant an inference as a matter of law
In particular, Fasoli alleges that Scacco: (1) harassed, intimidated and ridiculed him, and treated him differently because of his age; (2) created false performance reports about him because of his age; (3) made false statements about him because of his age; (4) unreasonably refused his requests for overtime because of his age; (5) "singled [him] out for mistreatment"; and (6) intentionally misrepresented his labor cost as being at a higher rate than all other employees in the Department. Am. Compl. [Doc. 31] at ¶¶ 190-199. Fasoli further alleges that the City discriminated against him because of his age by refusing to promote him when he applied for the manager position now held by Scacco. Id. at ¶ 198; Fasoli Dep. [Doc. 198] at 492:17-493:2.
To begin with, although he claims that Scacco fraudulently calculated his labor cost at a rate higher than all other employees in the Department, Fasoli has failed to produce any evidence to support this allegation, even though he has testified that, for at least some time, he supposedly had in his possession a "chart" and other material showing this, Fasoli Dep. [Doc. 198] at 155:10-163:15, 170:9-175:3, 183:2-185:20, 556:10-566:1. Nor has Fasoli produced corroborating witness testimony on this issue, even though he claims that Scacco presented the fraudulent information at the May 2010 committee meeting, where others, such as Tarzia and Gabriele, were present. Id. at 170:9-175:3, 556:10-566:1; see also generally Gabriele Aff. [Doc. 176-23]; Tarzia Aff. [Doc. 176-24].
Similarly, Fasoli has not stated with any specificity what "false statements" Scacco purportedly made about him, much less when they were made or that they were made because of his age. And Fasoli's own deposition testimony defeats his allegations that Scacco unreasonably refused his requests for overtime because of his age, and that Scacco singled him out for mistreatment because of his age,
Fasoli also has failed to produce any evidence that the City discriminated against him on the basis of his age by refusing to promote and "ignor[ing]" his application for the manager position (which Scacco ultimately filled), as he has not alleged, much less produced any evidence demonstrating, that he was even minimally qualified for the position, see, e.g., id. at 680:11-694:6; accord, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001) requiring, as part of plaintiff's prima facie ADEA discrimination case, evidence "that plaintiff applied for a position for which he was qualified"); see also Gross, 557 U.S. at 180, 129 S.Ct. 2343 (rejecting mixed-motives standard and requiring "but-for" causation by plaintiff alleging ADEA claim). Having failed to demonstrate that he suffered an adverse employment action, which, as noted, is the second requisite element of his
The remaining claims in Fasoli's Amended Complaint also must be summarily dismissed. In Count Nine, Fasoli alleges that Scacco and the City invaded his privacy when they published portions of his personnel files without his knowledge or permission. As already discussed, Defendants have denied this and Fasoli has not produced, even after the benefit of discovery, any evidence to support the allegation that his personnel file was impermissibly accessed or otherwise published.
In Count Ten, Fasoli avers that Defendants intended to inflict emotional distress on him or that they knew or should have known that emotional distress was the likely result of their conduct.
Thus, even taking the entirety of the Amended Complaint as true, nothing Fasoli has alleged reaches the level of conduct required for a claim of intentional infliction of emotional distress. The majority of Fasoli's allegations fall under the rubric of "routine employment actions," which he concedes are not actionable. Similarly, Fasoli's claims regarding the plastic toy rats, name-calling, and sexual innuendos anonymously written on the lunchroom
Nevertheless, Fasoli attempts to avoid this result by urging the Court to adopt the conclusion in Davis v. City of Hartford, 601 F.Supp.2d 488, 495 (D.Conn.2009), in which the plaintiff, a teacher's aide at a city school, survived summary dismissal of her intentional infliction of emotional distress claim on the court's rationale that:
Id. at 494-95. The Davis court further reasoned that "a jury could find [ ] all this takes on new and more extreme meaning when considering [the defendant] (the authority figure) [wa]s white and [the plaintiff] (the harassed subordinate) [wa]s black." Id. at 495. But, here, even when viewed in the aggregate, the record evidence shows that Defendants' alleged conduct falls appreciably below the level of severity of the conduct in Davis and amounts to no more than routine employment actions or petty indignities. This is particularly so as Fasoli has not produced evidence demonstrating that the actions he complains of were constant or based on a disparity in status (other than the one inherent to the employment relationship). Cf. id. at 494-95. Accordingly, it cannot be said as a matter of law that a jury, "upon hearing a recitation of the facts, [even as Fasoli has alleged them,] would resent [any] [D]efendant and call his [] conduct `outrageous[,]'" id. at 495, because though perhaps unpleasant, nothing in the record, whether viewed individually or taken in the aggregate, points to the kind of "extreme and outrageous" conduct that "exceed[s] all bounds usually tolerated by decent society[.]" Accordingly, summary judgment for Defendants is granted on Count Ten.
Finally, in Count Eleven, Fasoli seeks compensatory damages. His complaint also makes passing reference to punitive damages. Having granted summary judgment in favor of Defendants on the entirety of Fasoli's Amended Complaint, no basis exists for awarding any damages.
For the above reasons, Defendants' respective motions for summary judgment [Docs. 146, 152 & 173] are GRANTED.
The Clerk is directed to dismiss this action with prejudice, and to close the file.
It is SO ORDERED.
