Opinion
The plaintiff, Doris Feliciano, appeals from the trial court’s grant of summary judgment in favor of the defendant, Autozone, Inc., on all five counts of the plaintiffs complaint alleging national origin discrimination, religious discrimination, sexual harassment, disability discrimination and race discrimination in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., specifically, General Statutes § 46a-60.
The following undisputed facts and procedural history are relevant to the plaintiffs appeal. The plaintiff is a black female who was bom in the U.S. Virgin Islands and practices the Rastafarian religion.
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
Following her termination, the plaintiff filed a timely complaint with the Connecticut commission on human rights and opportunities 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 commission on human rights and opportunities released jurisdiction on April 14, 2009. On April 30, 2009, the plaintiff commenced this action in the trial court pursuant to the Connecticut Fair Employment Practices Act.
The defendant moved for summary judgment on all five counts of the plaintiffs 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. This appeal by the plaintiff then followed.
On appeal, the plaintiff claims that the court erroneously rendered summary judgment on all five counts because there were genuine issues of material fact that could not be resolved at the pretrial stage. We will address the five counts of the plaintiffs complaint in three groups. First, we will address the plaintiffs claim of disability discrimination, next we will address the plaintiffs claim of sexual harassment, and last we will address the plaintiffs claims of national origin, religious and race discrimination.
We begin by setting forth our standard of review and the principles that guide our analysis for 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. 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ” (Internal quotation marks omitted.) Rivers v. New Britain,
“A material fact is a fact that will make a difference in the result of the case. ... 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
I
We first address the plaintiffs claim of disability discrimination. The following additional facts are relevant to this claim. In the plaintiffs complaint, she alleges that she injured her back, knee and foot during the second half of 2006. Specifically, the plaintiff claims that she suffers from chronic swelling in her left foot due to a work-related injury. The plaintiff further alleges that in late January or early February, 2007, she gave the defendant a doctor’s note requesting a light duty accommodation because of her alleged physical disability, but Balboni denied her request. The plaintiff also claims that a coworker with a pacemaker was provided with a light duty accommodation. Finally, the plaintiff alleges that when she felt the need to sit or rest because of pain from her alleged disability, Balboni would task her with additional work.
“In order to survive a motion for summary judgment on a reasonable accommodation claim, the plaintiff must produce enough evidence for a reasonable jury to find that (1) [s]he is disabled within the meaning of the [statute], (2) [s]he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiffs] disability, did not reasonably accommodate it. ... If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business.” (Citations omitted; internal quotation marks omitted.) Curry v. Allan S. Goodman, Inc.,
Although the plaintiffs complaint alleged foot, knee and back pain, the plaintiffs objection to the defendant’s motion for summary judgment addressed only her foot injury. We will only address the plaintiffs disability discrimination claim with respect to her foot injury because “[w]here a claim is asserted . . . but thereafter receives only cursory attention . . . without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . These same principles apply to claims raised in the trial court.” (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control,
The plaintiff failed to produce enough evidence for a reasonable jury to find that she was disabled within the meaning of § 46a-60. Accordingly, her reasonable accommodation disability discrimination claim cannot survive a motion for summary judgment. Curry v. Allan S. Goodman, Inc., supra,
“Courts in the Second Circuit have consistently held that when a plaintiff fails to offer any medical evidence substantiating the specific limitations to which [s]he claims [s]he is subject due to h[er] conditions, [s]he cannot establish that [s]he is disabled within the meaning of the [Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.]. . . . Because [the] [p]laintiff provides no evidence of h[er] disability beyond h[er] own testimony . . . from which the extent or duration of h[er] impairment or limitation may be discerned, and more is required in the Second Circuit, [the] [plaintiff has failed to demonstrate [Americans with Disabilities Act] or [Connecticut Fair Employment Practices Act] disability, and summary judgment will enter on h[er] [Connecticut Fair Employment Practices Act] claim.” (Citations omitted; internal quotation marks omitted.) Buotote v. Illinois Tool Works, Inc., 815 F. Sup. 2d 549, 557-58 (D. Conn. 2011); see also Douglas v. Victor Capital Group, 21 F. Sup. 2d 379, 392 (S.D.N.Y. 1998) (“[the plaintiffs] testimony as to the (alleged) limits on his ability to walk, without supporting medical testimony, simply is not sufficient to establish his prima facie case under the [Americans with Disabilities Act] ”). Despite the fact that “the [Connecticut Fair Employment Practices Act’s] definition of physical disability is broader than the [Americans with Disabilities Act’s definition]”; Beason v. United Technologies Corp.,
We agree with the court that this kind of expert evidence, which was not proffered by the plaintiff, was necessary in order for this claim to survive the defendant’s motion for summary judgment. The plaintiff did not produce any medical evidence from which a reasonable jury could find that she is disabled within the meaning of the Connecticut Fair Employment Practices Act. The plaintiff, therefore, cannot establish either temporary or permanent disability, which is needed to place her within the protected class of disabled persons. We reject the plaintiffs claim on appeal that her unsupported testimony that she was disabled creates any issue of material fact regarding her claim of disability discrimination. The plaintiffs reasonable accommodation disability discrimination claim, thus, fails to survive the defendant’s motion for summary judgment. See Maglietti v. Nicholson, 517 F. Sup. 2d 624, 631 (D. Conn. 2007).
II
We next address the plaintiffs sexual harassment claim. The following additional
Section 46a-60 provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section ... (8) For an employer ... to harass any employee ... on the basis of sex or gender identity or expression. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment . . . .”
Count three of the plaintiffs complaint is entitled “Connecticut Fair Employment Practices Act (Sexual Harassment).” After incorporating by reference the allegations of paragraphs one through twenty-one of count one of her complaint, the gravamen of count three of her complaint, paragraph twenty-two, reads as follows: “By its termination of [the] [plaintiffs employment when similarly situated employees, who are not of the same religious belief as [the] [p]laintiff, were not terminated for the same offense, [the] [defendant has discriminated against [the] [p]laintiff based upon her religion in violation of the Connecticut Fair Employment Practices Act.” In its answer to the plaintiffs paragraph twenty-two, the defendant “denie[d] the allegations of [c]ount [t]hree, [paragraph twenty-two], and notes that the allegations of this paragraph make no reference to a violation of the Connecticut Fair Employment Practices Act on the grounds of Sexual Harassment.” The plaintiff made no effort to amend count three accordingly.
“[I]t is well settled that [t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint .... As a result, [i]t is incumbent on a plaintiff to allege some recognizable cause of action in h[er] complaint. . . . [I]f the complaint puts the defendant on notice of the relevant claims, then a plaintiffs failure specifically to allege a particular fact or issue is not fatal to h[er] claim unless it results in prejudice to the defendant.” (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC,
In its memorandum of decision, the trial court noted that “the plaintiff incorporated paragraph [twenty-two] of count two, alleging religious discrimination, as her concluding paragraph of count three (sexual harassment), which merely states that she was terminated based on discrimination against her because of her religion.” The trial court also stated that the plaintiff failed to “specifically reference the sexual harassment provision of the [Connecticut Fair Employment Practices Act], General Statutes § 46a-60 (a) (8) . . . .” The trial court then “assume [d] [the plaintiffs] intention was to rely on that provision in making a claim of sexual harassment.” The assumptions did not stop there. The trial court further assumed that out of the
Although, if we were to make similar assumptions, we would not disagree with the court’s analysis on the merits of the motion for summary judgment regarding the plaintiffs sexual harassment claim, we do not think that the court should have engaged in such analysis. Practice Book § 10-3 states in relevant part: “(a) When any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number. ...” “[Although a plaintiff should plead a statute in a complaint . . . failing to do so will not necessarily bar recovery as long as the [defendant is] sufficiently apprised of the applicable statute during the course of the proceedings.” (Emphasis in original.) Spears v. Garcia,
The plaintiff failed to include necessary allegations in her sexual harassment claim, which consequently precludes her recovery for sexual harassment under this count. Sturm v. Harb Development, LLC, supra,
Ill
Finally, we address the plaintiffs separately pleaded claims of national origin, religious and race discrimination, pleaded in counts one, two and five of the plaintiffs complaint, respectively. The following additional facts are relevant to this claim. In the plaintiffs complaint she alleges that “Balboni began to harass [the] [p]laintiff on a daily basis, in part because of her national origin. Balboni incorrectly believed that [the] [p]laintiff was from Jamaica because of her accent. Balboni called [the] [p]laintiff a ‘f*****g Jamaican.’ ” She further alleges that with regard to her dreadlocks,
“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,
The court concluded that “because the plaintiff has failed to present any evidence to support her claim that the circumstances of her termination give rise to an inference of discrimination, she has failed to make out a prima facie case as to her claims of national origin, religious and race discrimination. Based on the evidence submitted by the parties, no rational fact finder could determine that discriminatory animus fueled the defendant’s decision to terminate the plaintiff. Accordingly, the motion for summary judgment as to count one, two and five must be granted. . . . [T]he defendant is entitled to summary judgment on all counts of the plaintiffs complaint as a matter of law.”
In order to survive the defendant’s motion for summary judgment, there must be a genuine issue of material fact as to the remaining fourth prong required for a prima facie case of discrimination, namely, whether the plaintiffs termination occurred under circumstances that give rise to an inference of discrimination.
The original loss prevention inquiry was triggered by the defendant’s automated computer program, which was not targeted at the plaintiff specifically, but designed to reveal any suspicious activity in connection with its customer loyalty reward card program, which rewards customers based on the amount spent at the defendant’s retail locations. That computer program revealed suspicious activity associated with a particular customer loyalty reward card number and the plaintiffs customer service representative number. The defendant investigated this activity by sending a loss prevention specialist, Vasquez, to meet with the plaintiff in the presence of Ballou. The plaintiff admitted to Vasquez and Ballou that she signed into the cash register with her customer service representative number, left herself signed in on the cash register for other employees to use and did not log out of the cash register before leaving the immediate area. The plaintiff offered these admissions as an explanation as to why multiple transactions were assigned to the single customer loyalty reward card under her customer service representative number.
The computer program, Vasquez, Ballou, Harrison and Sikandar were involved in the investigation that eventually led to the termination of the plaintiff. The plaintiffs claims, however, involve the actions and statements of Balboni. “Isolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus. [The plaintiff] must demonstrate [that] a nexus exists between these allegedly discriminatory statements and the [defendant’s] decision to terminate her.” (Internal quotation marks omitted.) Orisek v. American Institute of Aeronautics & Astronautics, 938 F. Sup. 185, 192
“[An adverse employment decision] is only actionable if the employer harbors a discriminatory animus and that animus is one of the causes of the adverse action taken against the employee.” Diamantopulos v. Brookside Corp., 683 F. Sup. 322, 327 (D. Conn. 1988). The plaintiff originally was identified by the defendant’s automated computer program by her customer service representative number. The program was run as to all of the defendant’s store locations in the New York region, which included this store. Being selected by such an automated computer program is not a circumstance giving rise to the inference of discrimination. Such an automated computer program does not equate with harboring discriminatory animus. Additionally, the plaintiff does not allege that Vasquez, Ballou or Harrison harbored discriminatory animus toward her.
The only remaining actor in the termination decision is the ultimate decision maker, Sikandar. In order to survive summary judgment, there must be a genuine issue of material fact regarding the circumstances surrounding Sikandar’s decision to terminate the plaintiff. The plaintiff alleged that Sikandar made a false statement that he was not aware of the plaintiffs protected status when he decided to terminate her because the plaintiff claims that she met him before. Sikandar, in his affidavit, swore that he “was not aware of [the plaintiffs] race, religion, ethnicity, national origin or religion, as they were irrelevant .... I made the decision solely and exclusively based on the fact that [the plaintiff] admitted to cash register misconduct and to violation of the loss prevention policy.”
Although this is a dispute as to whether Sikandar ever met the plaintiff and, thus, was aware of her protected status, it does not rise to a dispute regarding a material fact. First, the plaintiff never alleges that Sikandar was motivated by such knowledge and thus that he acted with discriminatory animus. Furthermore, Harrison stated in his affidavit that “approximately 99 percent of the time the [r]egional [m]anager follows the recommendation that the staff attorneys make.” The plaintiff does not offer any evidence to challenge Harrison’s statement. The plaintiff fails to raise an issue of material fact as to whether Sikandar terminated the plaintiff for a discriminatory reason and not upon Harrison’s recommendation. Last, the plaintiff fails to produce any evidence to contravene the defendant’s evidence that it consistently terminates employees for similar misconduct to that admittedly committed by the plaintiff. “Unless the plaintiffs
The plaintiff fails to present a factual predicate for her argument and thus fails to raise a genuine issue of material fact as to the existence of circumstances surrounding her termination that give rise to an inference of discrimination. There is no genuine issue as to the fourth prong required for a prima facie claim of discrimination. The plaintiff, therefore, cannot prove a prima facie case of discrimination under McDonnell Douglas Corp. audits progeny. Consequently, the defendant is entitled to summary judgment as to the plaintiffs claims of national origin, religious and race discrimination.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
General Statutes § 46a-60 provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability . . . .”
Although § 46a-60 (a) (1) was amended after the plaintiffs employment was terminated in 2007; see Public Acts 2011, No. 11-55, § 24; Public Acts 2011, No. 11-129, § 20; the changes are not relevant to this appeal. For convenience, we refer to the current revision of the statute.
These undisputed facts are of some importance in light of the plaintiffs claim that she was discharged because of her manager’s improper references to her race, nationality, religion and appearance in the workplace.
Allowing other employees to use the cash register while logged in under the plaintiffs customer service representative number and leaving the cash register unattended while still logged in under this number are violations of the defendant’s loss prevention policy.
We should note, however, that although the plaintiff has failed to raise a genuine issue of material fact as to the existence of circumstances surrounding her termination that give rise to an inference of discrimination, we do not condone the alleged actions of Balboni.