The U.S. District Court for the District of Connecticut recently denied summary judgment in a shoe salesman’s age and gender discrimination lawsuit against his former employer. The salesman, Richard Tremalio, alleged that his former employer, shoe wholesaler Demand Shoes, LLC, had terminated his employment in violation of the Age Discrimination in Employment Act (“ADEA”) and the Connecticut Fair Employment Practices Act (“CFEPA”). Tremalio alleged that his manager had told him that the company’s Chief Operating Officer wanted to hire a younger, female sales force and that he was replaced by a younger, female sales representative.
Demand Shoes moved for summary judgment, arguing that Tremalio could not prove discrimination because: (1) Tremalio was not qualified for the sales representative position in light of his failure to meet the company’s sales and behavior expectations; (2) the company had no knowledge of the age of the salesperson who replaced Tremalio; (3) Tremalio was not covered by the ADEA or CFEPA because he was an independent contractor, not an employee; and (4) even if Tremalio could be considered an employee, the company had too few employees to qualify as an “employer” under the ADEA or CFEPA.
In denying Demand Shoes’ motion for summary judgment, the court found that Tremalio had established prima facie cases of age and gender discrimination and that a reasonable jury could find that Demand Shoes’ explanation for terminating Tremalio was pretextual. The court relied on the U.S. Supreme Court’s 2009 decision in Gross v. FBL Financial Services in finding that Tremalio met the heightened standard of showing that his age was a “but for” cause of his discharge, not just a motivating factor. Specifically, the court found that Tremalio raised an inference of age bias by pointing to the Chief Operating Officer’s preference for a younger sales force. However, the Court declined to apply the stricter federal standard to Tremalio’s state-law age bias claim because no Connecticut appellate court has ruled on whether to apply that standard.
The court also rejected Demand Shoes’ remaining arguments. Specifically, the court held that Tremalio had met the minimal burden of showing that he was qualified for his job due to his extensive experience in the shoe industry and that, even if Demand Shoes did not know the specific age of Tremalio’s replacement, it must have been aware of a significant difference in their ages. In addition, the court rejected Demand Shoes’ argument that Tremalio was an independent contractor, finding that the company closely supervised Tremalio’s work and did not produce an independent contractor agreement for Tremalio, while it did produce such agreements for other shoe salesmen. Lastly, the court rejected Demand Shoes’ argument that it did not meet the statutory definition of an employer and found that a genuine issue of material fact exists as to whether Demand Shoes could be grouped with its parent company under the single employer doctrine in order to satisfy the statutes’ minimum numbers of employees.
Connecticut employers should take note that until the Connecticut appellate courts rule on the issue of whether the heightened “but for” standard applies to discrimination claims under CFEPA, Connecticut employees asserting state-law age discrimination claims apparently need only show that their age was a “motivating factor” in any adverse employment action taken against them.