DORIS FELICIANO v. AUTOZONE, INC.
Supreme Court of Connecticut
Argued December 1, 2014—officially released March 31, 2015
Josephine Smalls Miller, for the appellant (plaintiff). Emery K. Harlan, pro hac vice, with whom were Proloy K. Das and, on the brief, Andrew L. Houlding, for the appellee (defendant).
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Opinion
ROGERS, C. J. The issue in this certified appeal is whether the Appellate Court properly affirmed the trial court‘s summary judgment rendered in favor of the defendant, Autozone, Inc., on the claims of unlawful discrimination on the basis of national origin, religion, sex, disability and race filed by the plaintiff, Doris Feliciano. The plaintiff brought this action pursuant to the
The opinion of the Appellate Court sets forth the following undisputed facts and procedural history. “The plaintiff is a black female who was born in the U.S. Virgin Islands and practices the Rastafarian religion. As part of her religion, she wears her hair in dreadlocks. The plaintiff was employed by the defendant, first as a sales clerk and later as a supervisor, for a few years before being transferred to the defendant‘s Bloomfield location (store). Michael Balboni became the manager of the store in 2005, while the plaintiff was a supervisor there. The defendant had a company wide customer loyalty reward card program in place for purchases made by customers. In May, 2007, the defendant‘s automatic loss prevention computer program flagged twenty transactions between April 28 and May 9, 2007, involving the same customer loyalty card number. Nineteen of the twenty transactions were listed as being processed under the plaintiff‘s customer service representative number.
“On May 16, 2007, the plaintiff was accused by the defendant of improperly using a customer loyalty reward card for her own use. Patricia Vasquez, a loss prevention specialist, was sent by the defendant to investigate the situation. Vasquez questioned the plain-tiff in the presence of Erwin Ballou, a district manager of the defendant. At the interview, the plaintiff admitted that she signed into the cash register and left it signed in under her customer service representative number for other employees to use. The plaintiff further admitted that she was ‘wrong’ for letting other employees work under her customer service representative number. Vasquez forwarded her report, including the plaintiff‘s statements, to the defendant‘s staff attorney, Timothy P. Harrison, in Tennessee. He was not acquainted with the plaintiff. Harrison recommended that the plaintiff‘s employment be terminated, and Azeem Sikandar, regional manager for the defendant, followed the recommendation
“Following her termination, the plaintiff filed a timely complaint with the Connecticut [C]ommission on [H]uman [R]ights and [O]pportunities on July 27, 2007, within 180 days of the actions attributed to the defendant, and with the federal Equal Employment Opportunity Commission. The federal Equal Employment Opportunity Commission issued a notice of right to sue on April 7, 2009, and the Connecticut [C]ommission on [H]uman [R]ights and [O]pportunities released jurisdiction on April 14, 2009. On April 30, 2009, the plaintiff commenced this action in the trial court pursuant to the
“The defendant moved for summary judgment on all five counts of the plaintiff‘s complaint and, following oral argument by counsel, the court issued its memorandum of decision and entered its corresponding judgment on February 10, 2012, rendering summary judgment on all counts in favor of the defendant.” (Footnotes altered.) Feliciano v. Autozone, Inc., supra, 142 Conn. App. 758–60.
The plaintiff then appealed to the Appellate Court claiming that the trial court improperly had rendered summary judgment on all five counts of her complaint because there were genuine issues of material fact as to all of her claims. Id., 760. The Appellate Court, as did the trial court, construed the plaintiff‘s complaint as raising claims that the defendant had failed to reasonably accommodate her claimed disability; id., 762; had engaged in sexual harassment in the workplace; id., 764–65; and had unlawfully terminated her employment on the basis of her national origin, religion and race.2 Id., 769. With respect to the disability discrimination claim, the Appellate Court determined that the trial court properly had determined that the plaintiff had failed to establish a genuine issue of material fact as to whether she was disabled within the meaning of the
With respect to the plaintiff‘s claim of sexual harassment, the Appellate Court concluded that the trial court improperly had assumed that the plaintiff had intended to bring a hostile work environment claim pursuant to
The plaintiff claims on appeal to this court that the Appellate Court improperly determined that: (1) she had failed to make out a prima facie case that her employment was unlawfully terminated on the basis of her national origin, religion or race; and (2) she could not prevail on her sexual harassment claim because the defendant was not on notice of the statutory basis of the claim.4 We reject the plaintiff‘s first claim but agree with her second claim. We further conclude that the plaintiff has established a genuine issue of material fact as to whether she was subjected to a hostile work environment on the basis of her sex.
We begin by setting forth the applicable standard of review. “The standards governing our review of a trial court‘s decision to grant a motion for summary judgment are well established. 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. . . . 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 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. . . . A material fact . . . [is] a fact
With these principles in mind, we first address the plaintiff‘s claim that the defendant unlawfully terminated her employment on the basis of her national origin, religion or race. The legal standards governing discrimination claims involving adverse employment actions are well established. “The framework this court employs in assessing disparate treatment discrimination claims under Connecticut law was adapted from the United States Supreme Court‘s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. Lyon v. Jones, 291 Conn. 384, 406–407, 968 A.2d 416 (2009). We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both. State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469–70, 559 A.2d 1120 (1989). Craine v. Trinity College, 259 Conn. 625, 637 n.6, 791 A.2d 518 (2002). Under this analysis, the employee must first make a prima facie case of discrimination. Id., 637. In order for the employee to first make a prima facie case of discrimination, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, supra, 802. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. Craine v. Trinity College, supra, 637. This burden is one of production, not persuasion; it can involve no credibility assessment. . . . Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 506, 832 A.2d 660 (2003). The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. Craine v. Trinity College, supra, 637.” (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., supra, 142 Conn. App. 769–70.
The Appellate Court concluded that the plaintiff had established the first three prongs of the McDonnell Douglas Corp. framework; id., 770; but had not established a genuine issue of material facts as to the fourth prong, that the circumstances surrounding her termination gave rise to an inference of discrimination on the basis of her national origin, religion or race. Id., 774. The plaintiff contends that, to the contrary, the evidence showing that the defendant treated other similarly situated employees more favorably than her was sufficient to establish a genuine issue of material fact. See Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43 A.3d 69 (2012) (to establish that adverse employment action took place under circumstances permitting inference of discrimination, “a litigant may present circumstantialevidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was“); see also id., 519 (to raise inference of discrimination on basis of disparate treatment, evidence must reveal
The following additional evidence, viewed in the light most favorable to the nonmoving plaintiff for purposes of reviewing the trial court‘s grant of the defendant‘s motion for summary judgment, is relevant to these claims. Balboni repeatedly referred to the plaintiff as an “f‘ing Jamaican“; suggested that Jamaicans live in grass huts, wear grass skirts,
The computerized loss prevention report that flagged twenty transactions at the defendant‘s store involving the same customer loyalty card number, nineteen of which had been processed under the plaintiff‘s customer service representative number, also showed that the remaining transaction had been processed under the customer service representative number of another employee, Shaun Davis. There is no evidence that Davis was investigated for wrongdoing. In addition, the plaintiff testified at a deposition, the transcript of which was attached as an exhibit to her opposition to the defendant‘s motion for summary judgment, that she had complained to Balboni, Ballou and Sikandar that another employee, Sakari Pina, as well as other employees, had been stealing from the store, and that no actionwas taken against those employees. The plaintiff also testified that she had warned Balboni that he should not hire a particular young male whose full name the plaintiff could not remember because he had previously stolen from the store. In response, Balboni accused the plaintiff of being a racist because the person was white. Balboni hired the person, who was later terminated for stealing. Finally, the plaintiff testified at her deposition that Balboni regularly had implied in conversations with her that she was stealing from the store in the weeks preceding her termination.
With respect to the plaintiff‘s claim that she established that there was a genuine issue of material fact as to whether she was treated differently than other similarly situated employees on the basis of her national origin, religion and race, we are not persuaded. Although she claims that she was treated less favorably than Davis, the loss prevention report showing multiple transactions for the same customer loyalty card under the plaintiff‘s and Davis’ customer service representative numbers appears to show that the transaction under Davis’ number was a credit in the amount of a previous transaction under the plaintiff‘s number, while all of the transactions under the plaintiff‘s number were purchases. Thus, there is no evidence that Davis engaged in theft. In any event, the plaintiff has pointed to no evidence regarding Davis’ national origin, religion or race.6 Thus, there is no basis for any inference that Davis was treated more favorably than the plaintiff because of these characteristics. Similarly, with respect to her claim that she was treated worse than the other employees who were under suspicion of theft, there is no evidence of their national origin, religion or race, except with respect to Pina, who was African-American and who was not fired, and the young male who Balboni had hired against the plaintiff‘s advice, who was white and who was fired. Thus, far from evincing the stark pattern of disparate treatment that is required to raise an inference of discriminatory treatment; Perez-Dickson v. Bridgeport, supra, 304 Conn. 517–19; the evidence in the present case shows no pattern of disparate
We further conclude that, although there was ample evidence that Balboni had treated the plaintiff in a despicable manner because of her perceived national origin, religion or race, the Appellate Court properly concluded that there was no evidence of a causal connection between Balboni‘s discriminatory animus and the defendant‘s termination of the plaintiff‘s employment. Specifically, although there was evidence that Balboni had implied to the plaintiff that he believed that she was stealing items from the store, there is no evidence that Balboni ever reported his suspicions to anyone else or that he influenced the investigation that resulted in the plaintiff‘s termination in any way.7 Indeed, theplaintiff does not seriously contend that there was affirmative evidence of a connection between Balboni‘s discriminatory animus and her termination. Rather, she contends that the jury reasonably could have disbelieved the defendant‘s evidence that Balboni was not involved in any way in the decision to terminate her employment, and such disbelief would be sufficient to raise a genuine issue of material fact as to Balboni‘s involvement. We disagree.
Although disbelief of an employer‘s explanation for an adverse employment action, in combination with the plaintiff‘s prima facie case of discrimination, may, under some circumstances, be sufficient to meet the plaintiff‘s ultimate burden of proving intentional discrimination; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (“[t]he factfinder‘s disbelief of the reasons put forward by the defendant [particularly if disbelief is accompanied by a suspicion of mendacity] may, together with the elements of the prima facie case, suffice to show intentional discrimination” [emphasis added; internal quotation marks omitted]); Board of Education v. Commission on Human Rights & Opportunities, supra, 266 Conn. 510 (“an employment discrimination claim will not necessarily fail, as a matter of law, when the only evidence of discrimination is the evidence necessary to establish a prima facie case and evidence that the employer‘s legitimate, nondiscriminatory reasons are false” [emphasis added]); disbelief of the employer‘s evidence is not sufficient to establish a prima facie case of discrimination in the first instance. St. Mary‘s Honor Center v. Hicks, 509 U.S. 502, 519, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (“[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff‘s explanation of intentional discrimination” [emphasis in original]); Board of Education v. Commission on Human Rights & Opportunities, supra, 505 (burden is on plaintiff to establish prima facie case that “the adverse action occurred under circumstances giving rise to an inference of discrimination“); Board of Education v. Commission on Human Rights & Opportunities, supra, 517 (inference of discrimination may not be based on “mere conjecture or surmise“); see also State v. Hart, 221 Conn. 595, 605, 605 A.2d 1366 (1992) (“jury
We next turn to the plaintiff‘s claim that the Appellate Court improperly concluded that she could not prevail on her sexual harassment claim because the defendant was not on notice of the statutory basis of the claim. We agree with the plaintiff. We further conclude that the trial court improperly determined that the plaintiff had failed to establish a genuine issue of material fact as to whether she was subjected to a hostile work environment because of her sex.
The following additional facts and procedural history are relevant to this claim. Count three of the plaintiff‘s complaint was captioned: “CONNECTICUT FAIR EMPLOYMENT PRACTICES ACT (SEXUAL HARASSMENT).” Paragraphs one through twenty-one of count three incorporate the corresponding paragraphs from count one alleging discrimination on the basis of national origin. The relevant paragraphs alleged that Balboni had rubbed his body against the plaintiff and, after the plaintiff complained and told him to stop, he sent her a text message stating, “you [bitch].” The plaintiff also alleged that, when she was on sick leave because of pain in her knee, Balboni had stated to other employees that “she was a man and could not feel pain and that she should just ‘suck it up’ and get back to work.” In addition, she alleged that Balboni had ridiculed her by wearing a dreadlocks wig and telling her that that was how she looked.8
During discovery, the plaintiff stated in response to the defendant‘s interrogatories that Balboni had repeatedly bumped into her in a manner that was not accidental, and rubbed up against her.9 She further stated that Balboni “came up behind her and rubbed his crotch against her buttocks and then moved on.” After Balboni sent her the text message that stated, “you bitch,” the plaintiff confronted him and Balboni first said that he was joking, and then denied that he had sent the message. Balboni also commented that Pina had a “big ass” and the plaintiff had a “flat ass.”
At her deposition, the plaintiff testified that Balboni repeatedly had tried to play with her hair and that he had rubbed up against her “about three times.” In addition, she testified that Balboni touched his crotch on more than one occasion, and would “play with” Pina and “smack her on the ass.” Balboni also spoke about Pina having had abortions and stated, “at least
The defendant argued in its memorandum of law in support of its motion for summary judgment that the plaintiff‘s sexual harassment claim should be “summarily dismissed” because she had alleged in count three only that she had been discharged for her religious beliefs. The defendant further argued that the evidence produced by the plaintiff, including the statements in the plaintiff‘s interrogatory responses and her deposition testimony, did not create a genuine issue of material fact as to whether Balboni‘s conduct was sufficiently severe or pervasive to create a hostile work environment. In her opposition to the defendant‘s motion for summary judgment, the plaintiff contended that, to the contrary, the evidence was sufficient to establish “a genuine question of material fact whether these events, taken as a whole, worsened [the plaintiff‘s] working environment or constituted sexual harassment.” In its reply brief in support of the motion for summary judgment, the defendant again contended that “[c]onduct far more egregious than the conduct [that the plaintiff complained of] has been found by courts to not reach the necessary level of severe or pervasive conduct sufficient to alter an employee‘s terms or conditions of employment.”
The trial court concluded in its memorandum of decision that the plaintiff‘s reference to religious discrimination in count three of the complaint alleging sexual harassment was “an obvious scrivener‘s error . . . .” The court further concluded that, “although the plaintiff does not specifically reference the sexual harassment provision of . . .
We disagree. Although the plaintiff‘s complaint was certainly not a model of clarity, it is clear that the defendant understood that the plaintiff‘s allegations regarding Balboni‘s conduct were intended to raise a hostile work environment claim pursuant to
Accordingly, we turn to the question of whether the trial court properly determined that the plaintiff failed to establish a genuine issue of material fact as to whether she had been subjected to a hostile work environment because of her sex. See State v. James, 261 Conn. 395, 411, 802 A.2d 820 (2002) (this court may address issue in certified appeal that Appellate Court did not reach in interests of avoiding delay and promoting judicial economy when record is adequate for review and issue has been briefed by parties). We begin our analysis with the governing legal standard. “[T]o establish a hostile work environment claim, a plaintiff must produce evidence sufficient to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim‘s employmentand create an abusive working environment . . . . [I]n order to be actionable . . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. . . . Whether an environment is objectively hostile is determined by looking at the record as a whole and at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.” (Citations omitted; internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 699, 41 A.3d 1013 (2012). “As the Court of Appeals for the Second Circuit explained with respect to offensive slurs in another context: [T]here must be more than a few isolated incidents of racial enmity . . . meaning that [i]nstead of sporadic racial slurs, there must be a steady barrage of
In support of its claim that the trial court properly determined that the plaintiff had not established a genuine issue of material fact as to whether she was subject to a hostile work environment on the basis of her sex, the defendant relies on a number of cases in which, according to the defendant, the respective courts found that much worse discriminatory conduct than that alleged by the plaintiff was insufficiently pervasive and severe to be actionable. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (plaintiff‘s claims that her supervisor had told her that she had been voted “sleekest ass” in office and that he deliberately had touched her breasts with some papers that he was holding were “sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded [the plaintiff‘s] working environment“);11 Bailey v. Synthes, 295 F. Supp. 2d 344, 358 (S.D.N.Y. 2003) (plaintiff‘s claims that various supervisors had shown group of employees vacation photographs displaying representations of male genitalia on native buildings, had engaged in sexually suggestive dancing with another female staff member, had told plaintiff of sexual experience with nurse, and had given plaintiff smaller cigar than those provided to male colleagues were not sufficient to create genuine issue of material fact as to whether employer created hostile work environment because actions were infrequent and isolated, were not physically threatening, occurred outside of plaintiff‘s daily work routine, and there was no evidence to showthat they affected her work performance); Lamar v. NYNEX Service Co., 891 F. Supp. 184, 184–85 (S.D.N.Y 1995) (female plaintiff‘s claim that female supervisor had “grasped her hand to admire her rings and told her that she ‘looked really hot,’ ” made vulgar sexual remarks to groups of employees, displayed sexually revealing garment to several employees, and stared at plaintiff in hostile manner and behaved abusively toward her were not sufficiently severe or pervasive to create hostile work environment when plaintiff did not object to conduct and behavior was not directed specifically at her); Babcock v. Frank, 783 F. Supp. 800, 808–809 (S.D.N.Y. 1992) (plaintiff‘s claims that supervisor with whom she had had affair issued disciplinary letter to her, which was later expunged from plaintiff‘s personnel file and had no lasting effect on plaintiff, that coworker had thrown pencils at her, that another coworker had written anonymous note to plaintiff suggesting that she get hairpiece, that supervisor had given her red lace underwear as “gag gift” at Christmas party, and that coworker had hung photograph of half-naked woman on wall of his
We conclude that these cases are distinguishable from the present case. Quinn v. Green Tree Credit Corp., supra, 159 F.3d 768, involved only two isolated incidents. In Bailey v. Synthes, supra, 295 F. Supp. 2d 358, the supervisor‘s actions were infrequent and isolated, were not physically threatening and occurred outside of the plaintiff‘s daily work routine. In Lamar v. NYNEX Service Co., supra, 891 F. Supp. 185, the plaintiff did not object to her supervisor‘s behavior and that behavior was not directed specifically at the plaintiff. In Babcock v. Frank, supra, 783 F. Supp. 808–809, the incidents were isolated and, in one instance, uncorroborated, and the employer responded promptly to all of the plaintiff‘s complaints. In contrast, in the present case, the plaintiff claimed that, over the period of just a few months, Balboni had rubbed up against her three times and, when she asked him to stop, he sent her a text message stating, “you bitch.” During the same period, Balboni twice ridiculed the plaintiff‘s hairstyle in a most public and offensive manner and called the plaintiff a man who was incapable of feeling pain. When the plaintiff complained about Balboni‘s conduct to her supervisors, she was chided for being “petty” and for raising issues that were “not relevant.” Although the specific dates of Balboni‘s other actions are not clear, viewed in the light most favorable to the plaintiff, the evidence would support a conclusion that his vulgar comments about the physical attributes of female customers, Pina and the plaintiff, his statements to the effect that he was willing to have sexual relations with “black, white,Puerto Rican, anything,” his sexually provocative conduct with and comments about Pina, and his repeated touching of his crotch were ongoing issues.
We note that the trial court considered only one of Balboni‘s unnecessary physical contacts with the plaintiff and his text message to the plaintiff when it concluded that the plaintiff had not established a genuine issue of material fact as to whether Balboni‘s conduct created a hostile work environment. Summary judgment is appropriate, however, only when, on the basis of all of the evidence, “view[ed] . . . in the light most favorable to the nonmoving party,” the movant is entitled to judgment as a matter of law. (Emphasis added; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 258 Conn. 559; see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 69, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (existence of hostile workplace must be determined “in light of the record as a whole and the totality of circumstances” [internal quotation marks omitted]). We conclude that, on the basis of all of this evidence, a reasonable juror could find that the defendant‘s “workplace [was] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the [plaintiff‘s] employment and create an abusive working environment . . . .” (Internal quotation marks omitted.) Patino v. Birken Mfg. Co., supra, 304 Conn. 699. Accordingly, we conclude that the trial court improperly determined that the plaintiff had not established a genuine issue of material fact as to whether the defendant had subjected her to a hostile work environment on the basis of her sex.
In this opinion the other justices concurred.