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
PELLEGRINO, J.
The
plaintiff, Ismael Agosto, appeals from the summary judgment
rendered by the trial court in favor of the defendant,
Premier Maintenance, Inc., on all counts of the second
revised complaint in which the plaintiff alleged 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 defendant's
motion for summary judgment, (2) improperly concluded that
there were no genuine issues of material fact as to the
circumstances under which he was discharged from employment
that give rise to a prima facie inference of religious
discrimination and (3) improperly concluded that there were
no genuine issues of material fact that he was not engaged in
a protected activity that gave rise to a claim of retaliatory
discharge. We disagree, and thus affirm the judgment of the
trial court.
The
plaintiff commenced the present action in November, 2013. He
alleged three counts against the defendant: employment
discrimination in violation of General Statutes (Rev. to
2011) § 46a-60 (a) (1);[2] discriminatory retaliation in
violation of § 46a-60 (a) (4); and aiding and abetting
discrimination in violation of § 46a-60 (a) (5). The
plaintiff alleged that the defendant employed him to be a
cleaner/porter at the Enterprise-Schoolhouse Apartments
(apartments) in Waterbury from March 13, 2012, until August
3, 2012. The apartments were managed by WinnResidential, a
client of the defendant. Sandino Cifuentes was the
plaintiff's supervisor.
The
plaintiff alleged that he was the pastor of Tabernacle of
Reunion Church (church). Cifuentes knew that he was the
pastor of the church. The plaintiff alleged that he was part
of a cleaning crew that was led by Luis Martinez, who was the
chaplain at the church, and that Cifuentes had informed
Martinez that while he was working, Martinez should not refer
to the plaintiff as ‘‘pastor'' or give
him the respect ordinarily afforded a pastor. While he was at
work, the plaintiff frequently greeted tenants by stating
‘‘God bless, '' but in giving such
greetings, he was never delayed for more than a minute or
two. On June 14, 2012, Cifuentes warned the plaintiff about
interacting with tenants of the apartments.
On or
about June 22, 2012, Carolyn Hagan, the manager of the
apartments, e-mailed Cifuentes, relaying information she had
received from Daisy Alejandro, assistant manager of the
apartments. Tenants Enrique Cintron and his wife, Jorge
Cintron, had informed Alejandro that, during a church
service, the plaintiff had read the names of tenants who were
in jeopardy of being evicted. The plaintiff alleged that the
Cintrons had lodged the complaint against him in retaliation
for his having corrected them for inappropriately playing
music in the church. He also alleged that at no time had he
read the names of tenants who were in danger of being
evicted.
The
plaintiff further alleged that on or about June 26, 2012,
Hagan requested that Cifuentes remove the plaintiff from his
position. Cifuentes discharged the plaintiff from the
defendant's employ on August 3, 2012, for the reasons
that the plaintiff spent too much time talking to the tenants
and Hagan's accusation that the plaintiff had read the
names of tenants in jeopardy of eviction from the apartments.
Also, the plaintiff alleged that Wendy Smart, a
representative of the defendant, signed a statement stating
that the plaintiff ‘‘[o]ver-stepped the
boundaries of church and work.''[3] (Internal
quotation marks omitted.)
In
count one, the plaintiff claimed that, through its agents,
the defendant had violated the act by interfering with his
privilege of employment on the basis of his religion. The
defendant exhibited ill will, malice, improper motive, and
indifference to his religion. In count two, the plaintiff
alleged that he held a bona fide religious belief and that
the defendant's agents were aware that the plaintiff was
the pastor and Martinez was the chaplain of the church. The
defendant's agents retaliated against him for practicing
his religious beliefs and customs by using the terms
‘‘pastor'' and
‘‘chaplain.'' In count three, the
plaintiff alleged that the defendant aided and abetted the
unlawful conduct of its agents, who discriminated against him
on the basis of his religious beliefs.
On
March 30, 2015, the defendant filed an answer in which it
denied the material allegations of the complaint and alleged
nine special defenses. The fourth special defense to all
counts of the complaint alleged: ‘‘All actions
taken by [the defendant] with respect to [the] [p]laintiff
and [the] [p]laintiff's employment were undertaken for
legitimate, nondiscriminatory business reasons.'' The
plaintiff filed a general denial of the defendant's
special defenses.
The
defendant filed a motion for summary judgment on July 8,
2016. The defendant claimed that the plaintiff could not
establish a prima facie case of employment discrimination and
retaliation under the act. Even if the plaintiff were able to
establish a prima facie case of employment discrimination and
retaliation, those claims would fail because the defendant
had a legitimate, nondiscriminatory, nonretaliatory basis for
terminating the plaintiff's employment, and the plaintiff
cannot demonstrate that the basis is a pretext. The defendant
further contended that the plaintiff's claim that it
aided and abetted its agent's discriminatory conduct
failed because (1) the plaintiff could not establish a
material issue of fact as to his discrimination and
retaliatory discharge claims, which are predicates to a claim
of aiding and abetting, and (2) the defendant cannot be
liable for aiding and abetting agents who are not parties to
the present action. The defendant appended affidavits from
Cifuentes, Hagan, Alejandro and Joseph Deming, superintendent
of the apartments, and other documents to its memorandum of
law in support of summary judgment.
The
plaintiff filed an objection to the defendant's motion
for summary judgment on October 3, 2016. He asserted that
there were genuine issues of material fact and that he had
demonstrated a prima facie case of employment discrimination,
retaliatory discharge and aiding and abetting under the act.
The plaintiff attached his own affidavit to his memorandum of
law. The defendant filed a reply to the plaintiff's
objection in which it contended 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 is
false or pretextual.
The
parties argued the motion for summary judgment on November7,
2016. The court issued its memorandum of decision on February
15, 2017. The court set forth the procedural history of the
case and identified the exhibits the defendant had submitted
in support of summary judgment. After setting forth the
standards for summary judgment and the legal principles
governing employment discrimination claims, the court found
that the defendant was entitled to summary judgment on each
count of the complaint by meeting its burden of proving the
absence of a genuine issue of material fact.[4]
With
respect to the plaintiff's claim of employment
discrimination, the court cited the controlling statute.
Section 46a-60 (a) provided in relevant part:
‘‘It shall be a discriminatory practice . . . (1)
[f]or an employer . . . to discharge from employment any
individual . . . because of the individual's . . .
religious creed . . . .'' The court found that the
plaintiff alleged that on March 13, 2012, he was hired by the
defendant to be a cleaner/ porter at the apartments, and that
he is the pastor at the church. During the course of his
duties at the apartments, the plaintiff frequently greeted
tenants with the phrase ‘‘God bless'' and
spent time talking with them. Cifuentes warned the plaintiff
on June 14, 2012, about interacting with tenants as he had
been doing. On June 22, 2012, Hagan received information that
the plaintiff, during a service at the church, read the names
of tenants who were in jeopardy of being evicted from the
apartments. On June 26, 2012, Hagan requested that Cifuentes
terminate the plaintiff from his position. Cifuentes
discharged the plaintiff on August 3, 2012, on the basis of
his spending too much time talking with tenants and acting
inappropriately when he read the names of tenants at church.
The court concluded that the plaintiff had not demonstrated
that his firing occurred under circumstances giving rise to a
prima facie inference of discrimination. The plaintiff merely
had ‘‘alleged the conclusory statement that
[b]ecause [the] [d]efendant disapproved of [the]
plaintiff's use of religious terms while at work and was
aware of his status as a pastor, [the] plaintiff has shown
direct evidence of discriminat[ory] motive.''
(Internal quotation marks omitted.) The court concluded that
the plaintiff had not satisfied a prima facie case of
employment discrimination under § 46a-60 (a) (1). The
defendant demonstrated the absence of any genuine issue of
material fact regarding the lack of circumstances giving rise
to an inference of religious discrimination.
As to
the retaliatory discharge claim alleged in count two, the
court cited § 46a-60 (a) (4). Section 46a-60 (a)
provided in relevant part: ‘‘It shall be a
discriminatory practice . . . (4) [f]or any . . . employer .
. . to discharge, expel or otherwise discriminate against any
person . . . because such person has filed a complaint or
testified or assisted in any proceeding under section 46a-82,
46a-83 or 46a-84 . . . .'' The defendant asserted
that the plaintiff had failed to allege that he had engaged
in a protected activity. The plaintiff responded that he
engaged in a protected activity when he openly used religious
terms at work, spoke out against the defendant by
communicating with Martinez and referred to him as chaplain,
contrary to the defendant's instructions, and that the
defendant retaliated against him by firing him. The court
concluded that the protected activity the plaintiff claimed
was not a protected activity under the act and, therefore, he
had failed to establish a prima facie case of retaliation.
In
regard to count three, § 46a-60 (a) provided in relevant
part: ‘‘It shall be a discriminatory practice . .
. (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 found that the
plaintiff alleged that the defendant aided and abetted
discriminatory conduct, but because the plaintiff failed to
assert successfully a prima facie case of employment
discrimination, he could not successfully assert a claim of
aiding and abetting. Furthermore, the defendant cannot
discriminate against the plaintiff and at the same time aid
and abet itself in discriminating against him. The court
concluded that the plaintiff's allegations of aiding and
abetting failed. Although the plaintiff mentioned the
defendant's employee, he did not name the employee as a
defendant. The case was commenced against the defendant only.
The court, therefore, granted the defendant's motion for
summary judgment.
We
begin with the standard of review and the legal principles
that guide our analysis of appeals from the granting of a
motion for summary judgment. ‘‘The law governing
summary judgment and the accompanying standard of review are
well settled. Practice Book § [17-49] requires that
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. A material
fact is a fact that will make a difference in the result of
the case. . . . The facts at issue are those alleged in the
pleadings.'' (Internal quotation marks omitted.)
Marasco v. Connecticut Regional Vocational-Technical
School System, 153 Conn.App. 146, 154, 100 A.3d 930
(2014), cert. denied, 316 Conn. 901, 111 A.3d 469 (2015).
‘‘In
seeking summary judgment, it is the movant who has the burden
of showing the nonexistence of any issue of fact. The courts
are in entire agreement that the moving party for summary
judgment has the burden of showing the absence of any genuine
issue as to all the material facts, which, under applicable
principles of substantive law, entitle him to a judgment as a
matter of law. The courts hold the movant to a strict
standard. To satisfy his burden the movant must make a
showing that it is quite clear what the truth is, and that
excludes any real doubt as to the existence of any genuine
issue of material fact. . . . As the burden of proof is on
the movant, the evidence must be viewed in the light most
favorable to the opponent. . . .
‘‘The
party opposing a motion for summary judgment must present
evidence that demonstrates the existence of some disputed
factual issue . . . . The movant has the burden of showing
the nonexistence of such issues but the evidence thus
presented, if otherwise sufficient, is not rebutted by the
bald statement that an issue of fact does exist. . . . To
oppose a motion for summary judgment successfully, the
nonmovant must recite specific facts . . . which contradict
those stated in the movant's affidavits and documents. .
. . The opposing party to a motion for 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. . . . The
existence of the genuine issue of material fact must be
demonstrated by counter affidavits and concrete evidence. ...
‘‘[T]ypically
[d]emonstrating a genuine issue requires a showing of
evidentiary facts or substantial evidence outside the
pleadings from which material facts alleged in the pleadings
can be warrantably inferred. . . . Moreover, [t]o establish
the existence of a material fact, it is not enough for the
party opposing summary judgment merely to assert the
existence of a disputed issue. . . . Such assertions are
insufficient regardless of whether they are contained in a
complaint or a brief. . . . Further, unadmitted allegations
in the pleadings do not constitute proof of the existence of
a genuine issue as to any material fact. . . .
‘‘Although
the court must view the inferences to be drawn from the facts
in the light most favorable to the party opposing the motion
. . . a party may not rely on mere speculation or conjecture
as to the true nature of the facts to overcome a motion for
summary judgment.'' (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Walker v.
Dept. of Children & Families, 146 Conn.App. 863,
869-71, 80 A.3d 94 (2013), cert. denied, 311 Conn. 917, 85
A.3d 653 (2014). ‘‘Requiring the nonmovant to
produce such evidence does not shift the burden of proof.
Rather, it ensures that the nonmovant has not raised a
specious issue for the sole purpose of forcing the case to
trial.'' (Internal quotation marks omitted.)
Id., 871. ‘‘The fundamental purpose of
summary judgment is preventing unnecessary trials.''
Stuart v. Freiberg, 316 Conn. 809, 822, 116 A.3d
1195 (2015).
‘‘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 is
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).
‘‘Though caution must be exercised in granting [a
motion for] summary judgment where intent is genuinely in
issue . . . summary judgment remains available to reject
discrimination claims in cases lacking genuine issues of
material fact.'' (Citation omitted.) Id.,
40.
‘‘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 is
plenary.'' (Internal quotation marks omitted.)
Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d
1247 (2008).
I
The
plaintiff first claims that the court improperly concluded
that the pretext/McDonnell Douglas-Burdine
model of analysis applied to its adjudication of the
defendant's motion for summary judgment rather than the
...