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Martinez v. Premier Maintenance, Inc.

Court of Appeals of Connecticut

October 16, 2018

LUIS MARTINEZ
v.
PREMIER MAINTENANCE, INC.

          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 ...


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