Argued
April 17, 2018
Procedural
History
Action
to recover damages for, inter alia, alleged religious
discrimination, and for other relief, brought to the Superior
Court in the judicial district of Waterbury, where the court,
Brazzel-Massaro, J., granted the defendant's
motion for summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
James
F. Sullivan, with whom was Jake A. Albert, for the appellant
(plaintiff).
Angelica M. Wilson, with whom, on the brief, was Glenn A.
Duhl, for the appellee (defendant).
Lavine, Alvord and Pellegrino, Js.
OPINION
LAVINE, J.
The
plaintiff, Luis Martinez, appeals from the trial court's
grant of summary judgment in favor of the defendant, Premier
Maintenance, Inc., on all three counts of the plaintiff's
second revised complaint alleging religious discrimination in
violation of the Connecticut Fair Employment Practices Act
(act), General Statutes § 46a-51 et seq. On appeal, the
plaintiff claims that the trial court improperly (1) utilized
the pretext/ McDonnell Douglas-Burdine
model; Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); rather than
the mixed-motive/Price Waterhouse model of analysis;
Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109
S.Ct. 1775, 104 L.Ed.2d 268 (1989);[1] when adjudicating the motion
for summary judgment, (2) concluded that there was no genuine
issue of material fact as to whether he had demonstrated a
prima facie case of employment discrimination, and (3)
concluded that there was no genuine issue of material fact
that he was not engaged in a protected activity under the
act. We disagree and affirm the judgment of the trial court.
The
plaintiff commenced the present action against the defendant
in November, 2013, alleging that he and the defendant were
employee and employer, respectively, within the meaning of
the act. His second revised complaint alleged three counts,
namely, employment discrimination in violation of General
Statutes (Rev. to 2011) § 46a-60 (a) (1), employer
retaliation in violation of General Statutes (Rev. to 2011)
§ 46a-60 (a) (4), and aiding and abetting discrimination
in violation of General Statutes (Rev. to 2011) § 46a-60
(a) (5). The plaintiff alleged the following facts in the
operative complaint. The plaintiff was employed by the
defendant as a cleaner/porter at the Enterprise-Schoolhouse
Apartments (apartments)in Waterbury, which were managed by
the defendant's customer, WinnResidential. During the
time he was employed by the defendant, the plaintiff's
supervisor, Sandino Cifuentes, knew that the plaintiff was a
chaplain at Tabernacle of Reunion Church. Prior to the
plaintiff's termination from employment, Cifuentes had
informed him that while he was at work, the plaintiff could
not refer to a coworker, Ismael Agosto, as
‘‘pastor'' or give Agosto the respect
ordinarily afforded a pastor.
The
plaintiff also alleged that on June 22, 2012, Carolyn Hagan,
manager of the apartments, relayed information to Cifuentes
that during church services, Agosto had read the names of
tenants who were in jeopardy of being evicted from the
apartments. Hagan learned of the incident from Daisy
Alejandro, assistant manager of the apartments, who heard of
the incident from tenants Enrique Cintron and his wife, Jorge
Cintron. Hagan also relayed to Cifuentes a complaint from
Jorge Cin-tron that the plaintiff was telling tenants of the
apartment that the ‘‘office does not do anything
and that is why nothing gets done . . . .'' Moreover,
Hagan relayed that the plaintiff informed nonresidents who
were in the apartments, when anyone from the office was
entering the apartments, so that they could leave before the
staff arrived. Hagan also reported that the plaintiff was on
his phone constantly, not working, and spent work time
‘‘hanging out'' with a woman who lived
across the street from the apartments.
The
plaintiff further alleged that on or about June 26, 2012,
Hagan requested that Cifuentes remove the plaintiff from his
position. On August 3, 2012, Cifuentes discharged Agosto from
his employment in the presence of the plaintiff. During the
discharge meeting, the plaintiff referred to Agosto as
‘‘pastor . . . .'' Cifuentes admonished
the plaintiff and immediately discharged him as well.
The
plaintiff alleged that he had no performance or conduct
issues and that the quality of his work was excellent. He
denied helping to compile the list of names of tenants in
jeopardy of eviction. On December 14, 2011, Charles Riddle,
maintenance director for CMM WinnResidential, had sent Hagan
a message stating that the plaintiff was a great choice for
temporary supervisor. In addition, the plaintiff alleged that
the Cintrons' complaint against him was made in
retaliation for an incident at church when Agosto admonished
them for playing music at an inappropriate time. The
plaintiff alleged that despite the unsubstantiated nature of
the Cintrons' complaint and despite the fact that his job
performance was satisfactory, the defendant discharged him
from employment.
In
count one, the plaintiff alleged that the defendant
discriminated against him on the basis of his religion in
such a way that it adversely affected his status as an
employee, that the defendant warned and disciplined the
plaintiff and terminated the plaintiff's employment on
account of his religion in violation of § 46a-60 (a)
(1), and that the defendant's unequal treatment of the
plaintiff was arbitrary and unreasonably discriminatory in
violation of the statute. Moreover, he alleged that the
defendant exhibited ill will, malice, improper motive, and
indifference to the plaintiff's civil rights.
In
count two, the plaintiff alleged that he held a bona fide
religious belief and was the chaplain at the Tabernacle of
Reunion Church. The defendant, through its agents, servants
and employees, was aware of the plaintiff's position in
the church and that Agosto was the pastor of the church. The
plaintiff alleged that the defendant's agents
discriminated against him on the basis of his religion and
discharged him for practicing his religious beliefs. The
defendant retaliated against him for using the term
‘‘pastor'' and ‘‘chaplain,
'' despite knowing the plaintiff's religious
beliefs and customs associated with the use of such terms. He
claimed damages.
In
count three, the plaintiff alleged that the defendant,
through its agents, servants, and employees, was aware of his
religious beliefs, customs and practices, and aided and
abetted the unlawful conduct of its supervisors and employees
by permitting one of its agents to discriminate against him
on the basis of his religious beliefs in violation of the
act. The plaintiff again alleged damages.
The
defendant denied the material allegations of the second
revised complaint and alleged nine special defenses. In
particular, the defendant alleged as its fourth special
defense to all counts in the complaint: ‘‘All
actions taken by [the defendant] with respect to [the]
plaintiff and [the] plaintiff's employment were
undertaken for legitimate, nondiscriminatory business
reasons.''
On July
8, 2016, the defendant filed a motion for summary judgment in
which it claimed that there were no genuine issues of
material fact such that the plaintiff could not establish a
prima facie violation of the act. Furthermore, the defendant
claimed that it had a legitimate, nondiscriminatory,
nonretaliatory reason to terminate the plaintiff's
employment and that the plaintiff could not demonstrate that
the reason was false or a pretext. Also, the plaintiff could
not establish a cause of action for aiding and abetting
because, first, he could not establish that the defendant had
discriminated or retaliated against him, and second, a
defendant cannot be liable for aiding and abetting employees
who are not parties to the action. The plaintiff filed an
objection to the defendant's motion for summary judgment
on the grounds that there were genuine issues of material
fact and that he had established a prima facie case of
employment discrimination, retaliation, and aiding and
abetting on the basis of religion. In its reply to the
plaintiff's objection, the defendant argued that the
plaintiff had failed to present evidence that could persuade
a rational fact finder that the defendant's legitimate,
nondiscriminatory reason for terminating the plaintiff's
employment was false or a pretext.
The
parties appeared at short calendar on November 7, 2016, to
argue the motion for summary judgment. The court issued its
memorandum of decision granting the motion for summary
judgment in favor of the defendant on February 15,
2017.[2] After stating the legal standards and
principles regarding a motion for summary judgment and
employment discrimination law, the court found that the
defendant was entitled to summary judgment on each count of
the second revised complaint and that the defendant had
carried its burden of proving the absence of a genuine issue
of material fact.[3]
The
court cited the controlling statute: ‘‘It shall
be a discriminatory practice in violation of this section . .
. (1) [f]or an employer . . . to discharge from employment
any individual . . . because of the individual's . . .
religious creed . . . .'' General Statutes (Rev. to
2011) § 46a-60 (a). The court found that the plaintiff
had alleged that he is a member of a protected class, was
qualified for his position, and was terminated from his
employment due to his use of the term
‘‘pastor'' when referring to Agosto, his
coworker, in the presence of Cifuentes, his supervisor. The
plaintiff alleged that because the defendant disapproved of
his use of religious terms such as
‘‘pastor'' when he was working and was
aware that he was a chaplain in Agosto's church, his
employment termination occurred under circumstances giving
rise to an inference of religious discrimination. The court
found, however, that the plaintiff had failed to allege facts
that the defendant harbored any bias that would create an
inference of discrimination. The court concluded, therefore,
that the plaintiff had failed to establish a prima facie case
of employment discrimination under the act and that the
defendant had demonstrated the absence of any genuine issues
of material fact in this regard.
With
respect to count two, a retaliation claim, the court cited
§ 46a-60 (a), which provides in relevant part that
‘‘[i]t shall be a discriminatory practice . . .
(4) [f]or any . . . employer . . . to discharge, expel or
otherwise discriminate against any person because such person
has opposed any discriminatory employment practice or because
such person has filed a complaint or testified or assisted in
any proceeding under section 46a-82, 46a-83 or 46a-84 . . .
.'' The court found that the plaintiff had alleged
that he had engaged in a protected activity when he openly
called Agosto ‘‘pastor'' in
Cifuentes' presence. The court concluded that the
plaintiff's use of the term pastor in defiance of
Cifuentes' request that he not do so at work, however,
was neither a formal nor informal protest of discrimination,
but a continuation of behavior that Cifuentes had advised him
against. The court concluded that because the plaintiff's
acts did not fall under the category of protected activity,
he had failed to establish a prima facie case of retaliation
in violation of the act and that there were no genuine issues
of material fact in that regard.
In
count three, the plaintiff had alleged that the defendant
aided and abetted the unlawful conduct of its supervisors and
employees by permitting more than one of its agents to
discriminate against him on the basis of his religious
beliefs. Section 46a-60 (a) provides in relevant part that
‘‘[i]t shall be a discriminatory practice in
violation of this section . . . (5) [f]or any person, whether
an employer or an employee or not, to aid, abet, incite,
compel or coerce the doing of any act declared to be a
discriminatory employment practice or to attempt to do so . .
. .'' The court noted that in Connecticut,
‘‘an individual employee may be held liable for
aiding and abetting his employer's discrimination; an
employer [however] cannot be liable for aiding and abetting
its own discriminatory conduct.'' (Internal quotation
marks omitted.) Farrar v. Stratford, 537 F.Supp.2d
332, 356 (D. Conn. 2008), aff'd, 391 Fed.Appx. 47 (2d
Cir. 2010). The court concluded that the defendant could not
have aided and abetted illegal discrimination because the
plaintiff could not establish a prima facie case of
discrimination against the defendant. Moreover, merely
mentioning ‘‘supervisors and employees [who]
assisted the alleged illegal, discriminatory conduct in the
complaint'' is not sufficient to sustain a claim of
aiding and abetting against the defendant. The defendant
cannot have discriminated against the plaintiff and at the
same time aided and abetted its discrimination against him.
The court concluded that the plaintiff had failed to state an
aiding and abetting claim against the
defendant.[4]
We now
set forth the standard of review and the principles that
guide our analysis of appeals from the rendering of summary
judgment. ‘‘Practice Book § 17-49 provides
that summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of
law.'' (Internal quotation marks omitted.) Rivers
v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008).
‘‘In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seeking
summary judgment has the burden of showing the absence of any
genuine issue [of] material facts which, under the applicable
principles of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact.''
(Citations omitted; emphasis omitted; internal quotation
marks omitted.) Altfeter v. Naugatuck, 53 Conn.App.
791, 800, 732 A.2d 207 (1999).
‘‘A
material fact is a fact that will make a difference in the
result of the case.'' (Internal quotation marks
omitted.) Vollemans v. Wallingford, 103 Conn.App.
188, 193, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956
A.2d 579 (2008). ‘‘It is not enough for the
moving party merely to assert the absence of any disputed
factual issue; the moving party is required to bring forward
. . . evidentiary facts, or substantial evidence outside the
pleadings to show the absence of any material dispute. . . .
The party opposing summary judgment must present a factual
predicate for his argument to raise a genuine issue of fact.
. . . Once raised, if it is not conclusively refuted by the
moving party, a genuine issue of fact exists, and summary
judgment is inappropriate.'' (Internal quotation
marks omitted.) Id. ‘‘[A] party opposing
summary judgment must substantiate its adverse claim by
showing that there is a genuine issue of material fact
together with the evidence disclosing the existence of such
an issue.'' (Internal quotation marks omitted.)
Home Ins. Co. v. Aetna Life & Casualty
Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
Demonstrating a genuine issue ‘‘requires the
parties to bring forward before trial evidentiary facts, or
substantial evidence outside the pleadings, from which the
material facts alleged in the pleadings can warrantably be
inferred.'' United Oil Co. v. Urban
Redevelopment Commission, 158 Conn. 364, 378-79, 260
A.2d 596 (1969).
‘‘The
burden of proof that must be met to permit an
employment-discrimination plaintiff to survive a summary
judgment motion at the prima facie stage is de minim[i]s. . .
. Since the court, in deciding a motion for summary judgment,
is not to resolve issues of fact, its determination whether
the circumstances giv[e] rise to an inference of
discrimination must be a determination of whether the
proffered admissible evidence shows circumstances that would
be sufficient to permit a rational finder of fact to infer a
discriminatory motive.'' (Citation omitted; internal
quotation marks omitted.) Chambers v. TRM Copy Centers
Corp., 43 F.3d 29, 37-38 (2d Cir. 1994).
‘‘On
appeal, [an appellate court] must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the facts
set out in the memorandum of decision of the trial court. . .
. [Appellate] review of the trial court's decision to
grant [a] defendant's motion for summary judgment ...