RETURN:

ANNE M.

OCTOBER 9,2012 SUPERIOR COURT J. D. OF NEW HAVEN

SEPTEMBER 4,2012

: VS. : THE HEARST CORPORATION : AMATO

COMPLAINT
1. This is an action pursuant to the Connecticut Fair Employment
Practices Act, Conn. Gen. Stat. $$ 46a-60, ef seq.

2, The plaintiff has complied

with all of the procedural prerequisites to suit

under the statutes aforementioned, having filed a timely complaint of employment discrimination with the Connecticut Commission on Human Rights and Oppoftunities on or about December 1,2011, and having received a Release of Jurisdiction dated June 26, 2012.

3. The plaintiff is a resident of Milford, Connecticut, and was born on

February 3, 1948.

4.

The defendant is a Delaware corporation having its principal place of

business at 300 West 57th Street, New York, NY 10019. lts agent for service in

Connecticut is C T Corporation System at One Corporate Center,

1th

Floor,

Hartford, CT 06'103-3220. It is the owner of The Connecticut Post, a daily newspaper whose business address is 410 State Street, Bridgeport, CT 06604.

5. The plaintiff has been

employed by the defendant at The Connecticut

Post continuously for a decade, and has worked for that newspaper a total of more than twenty years.

6. The plaintiff is a senior reporter

previously was the State Editor.

covering the Valley Area. She

7. The plaintiff's job evaluations

always have been satisfactory or better. that the respondent had

8. On October 7,2011, the plaintiff was informed

been placed on a Performance lmprovement Plan subjecting her to termination

on December7,2011.

9. The defendant

had established a pattern of terminating or threatening

to terminate older employees of The Connecticut Post with outstanding

performance records by placing them on such Performance lmprovement Plans

without just cause. Between October 7,2011, and the end of December 2011, three other outstanding employees of The Connecticut Post were given threats of termination similar to that given to the plaintiff. Those employees were Dan

Tepfer, Phyllis Boros and Linda C. Lambeck. All of them also were senior
reporters each with twenty or more years of service and each with outstanding records as highly respected reporters. All were over the age of 40.

10. The defendant in the manner described in Paragraphs

B and 9 was

attempting to rid itself of its older reporters regardless of their skill and work records.

11. After the plaintiff filed her aforesaid complaint with the Commission

on Human Rights and Oppoftunities, the defendant elected to end or at least suspend its said actions against older workers, including the plaintiff, and
ultimately did not terminate them. However, the actions of the defendant unreasonably and without cause placed the plaintiff in great fear of losing her employment and caused her to suffer severe emotional distress.

12. The actions of the defendant described above constituted an adverse

employment action based upon the plaintiff's age and thereby violated the

Connecticut Fair Employment Practices Act. WHEREFORE, the plaintiff claims judgment against the defendant.

THE PLAINTIFF

BY

JOHN R. WTLLTAMS (#67962) 51 Elm Street New Haven, CT 06510 (203) 562-9931 FAX: (203) 776-9494 E-Mail : jrw@johnrwill iams.com Her Attorney

RETURN:
ANNE M.

OCTOBER 9,2012 SUPERIOR COURT

: : VS. THE HEARST CORPORATION :

AMATO

J. D. OF NEW HAVEN
SEPTEMBER 4,2012

PRAYER FOR RELIEF

The plaintiff claims judgment in an amount greater than fifteen thousand

dollars ($15,000.00), exclusive of interest and costs, as follows:

A.

Compensatory damages in an amount this court shall consider to be

just, reasonable and fair;

B.

Punitive damages in an amount this court shall consider to be just,

reasonable and fair;

C. Attorney fees and the costs of this action; D. Such other relief as this court shall consider to be fair and equitable.
THE PLAINTIFF

BY:

JOHN R. WTLL|AMS (#67962) 51 Elm Street New Haven, CT 06510 (203) 562-9931 FAX: (203) 776-9494 E-Mail: jrw@ohnnruilliams.com Her Attorney

DOCKET NO.

: NNH-CY

12-6032885-5 SUPEzuOR COURT

ANNE AMATO, Plaintiff,

v. THE HEARST CORPORATION, Defendant.

JUDICIAL DISTRICT OF NEW HAVEN

ATNEW HAVEN
November 8,2012

DEFENDANT'S MOTION TO STRIKE

Pursuant

to Connecticut

Practice Book

$$ 10-39 et seq., Defendant The

Hearst

Corporation ("Hearst" or "the Company"), by and through its attorneys, respectfully files this

Motion to Strike. Hearst seeks to strike Plaintiff s Complaint in its entirety for failure to state a
ciaim upon which relief can be granted.

Plaintiff Anne Amato ("Plaintiff') has filed a one-count Complaint against

Hearst,

attempting to assert a claim for age discrimination based on the claim that she was placed on a performance improvement plan ("PIP") because of her age. However, placement on a PIP does

not constitute an adverse employment action, especially where Plaintiff was taken off the PIP
and her employment was never terminated, Because Plaintiff did not suffer an adverse employment action as a result of the PIP, she

cannot establish a prima facie case of age discrimination. As a result, Plaintiff s sole claim for

discrimination should be stricken and her Complaint dismissed in its entirety with prejudice.

Respectfully submitted,

ov:AM SbbQt
Aryn J.
The Flearst Corporation

300 West 57u'Street New York, New York 10019 (212) 64e-207A
(6 46) 280 -2070 (facsirni le)

asobo@hearst.com

A. Robert Fischer Tal Ifudar JACKSON LEWIS LLP Jrrris No. 4A5727
177 Broad Street P.O, Box 251 Stamford, CT 06904-025 I

(203) 961-0404 (203) 324 - 4704 ( facsi rnil e) fi scliera@j acksoulewis. com kad art@j aclcsonlewi s. corn
Att orneys for Defen dant The Hearst Corporation

DOCKET NO. : NNH-CV 1 2-60328 85-S SUPERIOR COURT

ANNE AMATO,

Plaintifi
v"

JUDICIAL DISTRICT OF NEW HAVEN

ATNEW HAVEN
November 8,2012

THE HEARST CORPORATION, Defendant.

MEMORANDUM OF'LAW IN SUPPORT OF DEF'ENDANT'S MOTTON TO STRIKE

I.

PRELIMINARY STATEMENT
Pursuant

to Connecticut

Practice Book $$ 10-39

et seq., Defendant The

Hearst

Corporation ("Hearst" or "the Company"), by and through its attorneys, respectfully files this Memorandum of Law

in Support of its Motion to Strike.

Hearst seeks to strike Plaintiff

Complaint in its entirety for failure to state a claim upon which relief can be granted.

II.

SUMMARY OF ARGUMENT Plaintiff Anne Amato ("Plaintiff') has fi1ed a one-count Complaint against Hearst in

which she purports to assert a claim for age discrimination based solely on her placement on
performance improvement plan other discriminatory act

("PIP"). Indeed, Plaintiff

does not allege that she suffered any

she does not claim that she was demoted or experienced any change in

her compensation or benefits, and in fact, she admits that she was taken off the PIP and remains employed to this day. (Complaint'lJ 11.) Under these circumstances, Plaintiff s claim is facially
and legally insufficient because she has not alleged any actionable adverse employment action

to be sure, it is well-settled iaw that placement on a PIP cannot form the basis of a cognizable
age discrimination claim. Without alleging any adverse employment action or any material
change to a condition or term
case of age

of her employment, Plaintiff plainly fails to assert a prima facie

discrimination. As a result, Plaintiff s sole claim for discrimination must be stricken

and therefore, her Complaint should be dismissed in its entirety with prejudice.

ilI.

tr'ACTUAL BACKGROUNDI

A.

Plaintif?sBmoloymentWith The Connecticut

Post.

According to the Complaint, Plaintiff has worked for The Connecticut Post ("The Post") "continuously for a decade," and for more than twenty years in total. (Complaint'1f5.) Although
Hearst has not owned The Post for that entire length of time, for purposes of this Motion Hearst
does not dispute that

it

or,vned The Post during the relevant time

period. Plaintiff began working

for The Post in the position of State Editor. (Id. n6.) Plaintiff remained State Editor until
January 2011, when she became a Reporter with responsibilities including covering stories in the

Naugatuck River Valley in westem Connecticut.

(Id)

B.

Plaintiff Was Placed on a Temporarv Performance Improvement Plan.

Plaintiff was placed on a performance improvement plan on October'/,2011.

(Complaint '1f8.) At the time she was placed on the PIP, Plaintiff was 63 years

old. (Id. n 3.)

Plaintiff has not alieged that she experienced any changes to her compensation, benefits, job
duties, or other terms or conditions of employment associated with the PIP. Plaintiff was later taken off the PIP. (1d.
1T11.)

Hearst does not concede the facts as alleged in the Complaint, but accepts the facts for the purposes of this Motion only. Hearst expressly reserves its right to dispute the facts alleged in the Complaint.

C.

Plaintiff Remains Emploved by TrePasL

she

Plaintiff remains employed by The Post to this day. Ud.) She does not claim that
suffered any other discriminatory action other than being placed on a temporary PIP.

IV. A.

ARGUMENT
Leeal Standard

The Motion to Strike is designed to test the legal sufficiency of a pleading or of any prayer for relief in a pleading. Faullcner v. United Techs. Corp.,240 Conn. 576, 580 (1997); Ferryman v. City of Groton,2l2 Corn. 138,742 (1989); Corri. Practice Book $ 10-39. Such a
contest is limited to a determination of whether the allegations contained in the Complaint state a

claim upon which legal relief may be granted. Novametrix Med. Sys., Inc. v. BOC Group, Inc.,

224 Conn, 2t0, 214-75 (1992). "[T]he burden rests on the plaintiff to allege a recognizable
cause

of action." Research Assoc. Inc. y. New Haven

Redevelopment Agency, 157 Conn. 587,

588 (1968). Should aplaintiff fail to plead arecognizable cause of action,

"it is notthe burden

of the defendant to attempt to correct the deficiency, either by motion, demun'er or otherwise."

Brill v. Ulrey,159 Conn. 371,374 (1970) (internal quotation marks

and citation omitted).

In ruling on a Motion to Strike, the Court is limited to the facts alleged in the Complaint.

Liljedahl Bros., Inc. v. Grigsby,215 Conn. 345,348 (1990). Furthermore, indeciding aMotion

to Strike, the Court cannot be aided by the assumption of any facts not alleged within the
Complufi. Id. If the facts provable in the Complaint would not support a cause of action, the
Motion to Strike must be granted.
See Noyametrix

Med,

Sys.,

(nc.,224 Conn. at2l5.

B.

Plaintiffs Sole Claim Must Be Stricken Because the Facts Provable in the Complaint Indisputably Fail to Suprrort a Cause of Action for Aee
Discrimination.
because the facts alleged

Plaintiffs sole cause of action must be stricken

in

the

Complaint fail to support a legally cognizable claim of age discrimination and thus Plaintiff has failed to state a claim upon which relief may be granted.

To maintain a cause of action for age discrimination, a plaintiff must establish (1) she is

in the protected

class, (2) she was qualified for the position, (3) she suffered an adverse

employment action, and (4) the adverse employment action occru:red under circumstances giving rise to an inference of discrimination. Board of Education of the City of Norwalk v. Commission

on Human Rights and Opportunities, 266 Corur. 492, 505 (2003), citing McDonnell Douglas
Corp. v, Green,411 U.S. 792,93 S.Ct, 1817 (1973).

Plaintiff clearly has not sufficiently pled a cause of action for age discrimination. Even
assuming arguendo for purposes of this Motion only that Plaintiff was qualified for her position,

Plaintiff has not sufficiently alleged that she suffered any adverse employment action at all,
much less one which occurred under circumstances giving rise to an inference of discrimination.

1.

Being Placed on

Performance Improvement Plan Does Not

of age discrimination, as nowhere

Constitute an Adverse Employment Action. Plaintiff has not sufficiently stated a prima facie
case

in her Complaint does she plead facts establishing that she suffered any adverse employment
action, much less one which occurred under circumstances giving rise

to an inference of

discrimination. The only action that Plaintiff alleges constituted an adverse employment action
was Hearst's placing her on a

PIP. Plaintiff does not allege thatThe Posltook any other actions

against her, such as changing her compensation, benefits or employment status or any terms or

conditions of her employment, or any other action that arguably could be considered an adverse employment action.

Under these circumstances, the 1aw

is

clear that merely placing an employee on a

performance improvement plan, without an accompanying material change in the terms and conditions of employment, does not constitute an adverse employment action giving rise to an
actionable discrimination claim. See Brown v. American Golf Corp.,99 Fed. Appx. 341,343, 2004 WL 1202072, at *2 Q.d Cir. June 2,20A4) ("being instructed to follow the requirements of

the Performance Improvement Plan did not constitute an adverse employment action" fol
putposes of establishing a prima facie case) . See also, Reynolds v. Dep't of the Army, 439 Fed,

Appx. 150, 153, 2011 WL 2938101, at*2-3 (3d Cir. Iuly 22,2011) (affirming dismissal of
plaintifPs age discrimination claim based on a PIP, as "a PIP is not an adverse employment
action absent accompanying changes to pay, benefits or employment status . . . A PIP differs

significantly from the types of employnent actions that qualify as adverse"); Young v. Pitney
Bowes, Inc., 2006 U.S. Dist. LEXIS 20788 (D. Conn. March 21, 2006)

(plaintiff failed to prove

actions including being placed on a strict performance improvement plan resulted in a material change to his working conditions and thus did not constitute an adverse employment action);

Givens v. Cingular Wireless, 396 F.3d 998 (8th Cir. 2005) ("placing [an employee] ,on a 'performance improvement plan,' without more, did not constitute an adverse employment

action"); Taylor v. Small, 350 F.3d 1286, 1293 (D.C, Cir. 2003) (o"formal criticism or poor
performance evaluations are [not] necessarily adverse actions' and they should not be considered
such

if they did not'affect [ ] the [employee's] grade or salary"') (intertral citations omitted).

As such, Plaintiff has not alleged a crucial element of her prima facie
discrimination, and she plainly fails to state a claim upon which relief can be granted.

case of

2,

Plaintiff Does Not Allese that She Suffered Any Material Chanee to

"rt.
To constitute a 'omaterial change" in the terms and conditions of employment,
change must
such

be "more disruptive than a mere inconvenience or an alteration of job

responsibilities." Galabya v. New York City Bd. of Educ,, 202 F.3d 636, 640 (2d Cir. 2000). In

this case, the Complaint is devoid of any allegation that Plaintiff experienced any material
change

to any term or condition of emplol,rnent as a result of being placed on a PIP. In fact,

Plaintiff specifically admits that she was taken off the PIP and was not terminated. (Complaint

fli 1.)

She also admits that the

only result of being placed on a PIP was that she was o'placed . . .

in great feal of losing her employment and [it] caused her to suffer severe emotional dishess."

(Id)

Neither of these alleged results, however, constitute a material change to the terms or

conditions of her employment or, in fact, were actions taken by The Post that have anything to do with her employrnent at

all.

Absent The Post making any accompanying adverse change in

the conditions of Plaintiff s employment, her placement on a PIP could not and did not qualiff as
an actionable adverse employment action. Reynolds, supra, at 153-154. Thus, because

Plaintiff

has failed to allege that she suffered any adverse employment action, she has clearly failed to

sufficiently state a cause of action for age discrimination.

v.

corygl,usroN
Plaintiff failed to sufficiently plead a cause of action for age discrirnination upon which

relief rnay be granted. Thereforc, I{earst lespectfully requests that flre Court strilce Plaintiff
Complaint in its entirety.

Respectftilly submitted,

Ur,

The l{earst Corporation 300 West 57t" Street New York, New York 10019 (212) 649-2070 (6 46) 280 -2070 (facsirnil e) asobo@hearst.con'r

A. Robert Fischer Tal Kadar: JACKSON LEWIS LLP Jtuis No. 405727 177 Broad Stleet P.O. Box 251 Stamford, CT 06904-025

(203) 961-0404 (203) 324-4704 ( facsim i le) fi sclrera@ acksonlewis. com kadart@j acksonlewis.com
At
to

r n eys

for

D efend a nt

The l-Iearst Cot poration

NO. NNH-CV-1 2-6032885-S

ANNE M.

AMATO

: :

SUPERIOR COURT J. D. OF NEW HAVEN

NOVEMBER 23,2012

VS.
THE HEARST

CORPORATION :

BRIEF IN OPPOSITION TO MOTION TO STRIKE The plaintiff is a long-time reporter and editor at The Connecticut Post, daily newspaper now owned by the defendant. She is over the age of 60 and
alleges that she, along with other long-term reporters over the age of 40, were targeted for placement in a Performance lmprovement Plan leading to termination on a fixed date. After this suit was filed, the defendant backed off

and removed all of them from the plan. The plaintiff seeks compensatory
damages for the emotional distress suffered during the period in which she suffered the discrimination.

The defendant has moved to strike the complaint in its entirety,

contending that placement on this performance improvement plan was not an "adverse employment action" within the meaning of the Connecticut Fair

Employment Practices Act, Conn. Gen. Stat. $$ a6a-60, ef seq. "[A] motion to strike challenges the legal sufficiency of a pleading...."
Kniqht v. F. L. Roberts & Co. ,241 Conn 466, 470, 696 A.2d 1249 (1997). The

court, considering a motion to strike, must "take the facts to be those alleged in the complaint...and... construe the complaint in the manner most favorable to sustaining its legal sufficiency." Bohan v. Last, 236 Conn. 670, 674,674 A.2d 839 (1996). "lf facts provable in the complaint would support a cause of action,

the motion to strike must be denied." Waters v. Autuori, 236 Conn. 820, 826,
676 A.2d 357 (1996). "What is necessarily implied [in an allegation] need not be

expressly alleged." Clohessv v. Bachelor,237 Conn. 31, 33 n.4,675 A.2d 852

(1996). "[W]e assume the truth of both the specific factual allegations and any
facts fairly provable thereunder. ln doing so, moreover, we read the allegations broadly, rather than narrowly." Craiq v. Driscoll,262 Conn.312,321,813 A.2d 1003 (2003). "[W]e long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.....[T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon

which it proceeded, and do substantialjustice between the parties....Our reading of pleadings in a manner that advances substantialjustice means that a pleading
must be construed reasonably, to contain all that it fairly means...." ATC Partnership v. Windham,268 Conn. 463, 366 n.4,845 A.2d 389 (2004). Cf., Broadnax v. New Haven,270 Conn. 133, 173-74,851 A.2d 1113 (2004).

The Complaint in this case expressly alleges not simply that the plaintiff was placed on a Performance lmprovement Plan but that this plan was to lead to
her termination on December 7,2011. The defendant claims that merely being placed on a Performance

lmprovement Plan is not the sort of "adverse employment action" necessary to

establish prohibited discrimination under federal law. The defendant does not discuss Connecticut law, which is the statute under which this action has been brought, and fudges the fact that the cases upon which it relies all speak of "merely" being placed on a Performance lmprovement Plan "without more".

When a Performance Improvement Plan affects, for example, the employee's

professional reputation, making it more difficult to obtain other employment,

there is that more and placement on the P.l.P. does constitute an adverse
employment action justifying a substantial plaintiff's verdict. Tse v. UBS Financial Services, lnc., 568 F. Supp, 2d274 (S.D.N.Y. 2008).

The defendant relies on a total of six cases. All of them are rulings of federal courts interpreting federal statutes. Even more significantly, all of them
are rulings on motions for summary judgment after a full evidentiary record had been developed. Not one of the cases cited by the defendant was a ruling on a motion to dismiss pursuant to Rule 12(bX6) of the Federal Rules of Civil Procedure, which is the federal procedural equivalent of a Connecticut motion to

strike based solely on the face of a complaint. The reason for that is the fact that the determination of whether a given action is "adverse" within the meaning of employment discrimination law is highly fact-specific. "Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse."'Wanamaker v.

Columbian Rope Co., 108 F.3d 462,466 (2"d Cir. 1997). "ln our view, a plaintiff must show that a reasonable employee would have
found the challenged action materially adverse...." Burlinqton Northern & Santa Fe Railwav Co. v. White, 548 U.S. 53, 126 S. Ct. 2405,2412 (2006). Such a

determination cannot be made on the face of a complaint. The motion to strike

must be denied"

Respectfully submitted

(#067962) JOHN R. WTLLTAMS (#67962) 51 Elm Street New Haven, CT 06510 (203) 562-9931 FAX: (203) 776-9494 E-Mail : jrw@ohnrwilliams.com Plaintiff's Attorney

/s/