Fiveash v. Delong ( 2022 )

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SHARON FIVEASH v. CONNECTICUT CONFERENCE
OF MUNICIPALITIES ET AL.
SHARON FIVEASH v. JOSEPH DELONG ET AL.
(AC 44824)
Alvord, Elgo and Clark, Js.
Syllabus
The plaintiff, a director of member services at the defendant C Co., sought
to recover damages from various defendants for alleged gender discrimi-
nation and retaliation in violation of a provision (§ 46a-60) of the Con-
necticut Fair Employment Practices Act. A few years after the plaintiff
was hired, several employees in her department resigned while she was
the director, and a few of those employees expressed displeasure with
working for her and voiced complaints about her during exit interviews.
In response, the defendant D, the executive director of C Co., instructed
B, the director of human resources of C Co., to conduct an investigation
into the allegations, which resulted in the termination of the plaintiff’s
employment. The plaintiff then commenced an action against C Co. and
a related entity and a separate action against D, B and the defendant
T, the deputy director of C Co., with whom the plaintiff did not get
along. The two actions were consolidated for the purposes of discovery,
pretrial pleadings and trial. Subsequently, the defendants filed a motion
for summary judgment in each case, arguing that there were no genuine
issues of material fact that would permit an inference of gender discrimi-
nation or, in the alternative, that her termination was a pretext for
gender discrimination. The trial court granted the defendants’ motion,
and the plaintiff appealed to this court. Held that the trial court properly
granted the defendants’ motion for summary judgment in each case, as
no reasonable jury could have concluded that the plaintiff’s termination
was motivated in whole or in part by gender discrimination: the plaintiff
did not demonstrate the existence of a genuine issue of material fact
as to whether the defendants’ legitimate, nondiscriminatory justification
for her discharge, namely, repeated charges of mismanagement of
employees and failure to respect authority as detailed in the report of
the investigation, was a pretext for unlawful discrimination, and the
record was devoid of any evidence that the plaintiff engaged in a pro-
tected activity giving rise to a claim of retaliation.
Argued May 11—officially released October 4, 2022
Procedural History
Actions to recover damages for alleged employment
discrimination, and for other relief, brought to the Supe-
rior Court in the judicial district of Hartford where
the matters were consolidated; thereafter, the court,
Moukawsher, J., granted the defendants’ motion for
summary judgment in each case, from which the plain-
tiff appealed to this court. Affirmed.
James H. Howard, for the appellant (plaintiff in
each case).
Rachel V. Kushel, for the appellees (defendants in
each case).
Opinion
PER CURIAM. In these employment discrimination
actions, the plaintiff, Sharon Fiveash, appeals from the
summary judgment rendered in favor of the defendants,
Connecticut Conference of Municipalities (CCM), Con-
necticut Interlocal Risk Management Agency, Inc.
(CIRMA), Faith Brooks, Joseph DeLong, and Ronald W.
Thomas. On appeal, the plaintiff claims that the court
erred in concluding that there were no genuine issues
of material fact regarding the plaintiff’s claims of gender
discrimination and retaliation. We disagree and, accord-
ingly, affirm the judgments of the trial court.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are revealed
by the record. CCM is Connecticut’s statewide associa-
tion of towns and municipalities. CIRMA is a separate
legal entity through which CCM provides insurance ser-
vices to its members.
The plaintiff was hired on or about May 5, 2015, as
director of member services at CCM. Throughout the
plaintiff’s tenure with CCM, she received positive
employment reviews. In 2018, however, several employ-
ees in the plaintiff’s department resigned while she was
the director. During exit interviews, a few of those
employees expressed displeasure with working for the
plaintiff and voiced complaints about her. In response
to these negative complaints, DeLong, the executive
director of CCM, instructed Brooks, the director of
human resources, to conduct an investigation into the
allegations coming from the member services depart-
ment. The plaintiff was notified by letter of the work-
place complaints and the initiation of an investigation
and was placed on a paid suspension pending the com-
pletion of the investigation. The investigation focused
on, inter alia, whether the plaintiff abused her authority,
micromanaged, created an unhealthy work environ-
ment, and/or failed to respect authority. Following the
investigation, Brooks issued an investigation report,
which substantiated many of the allegations against
the plaintiff. The plaintiff’s employment with CCM was
terminated on October 19, 2018.
In June, 2019, the plaintiff commenced an action
against Brooks, DeLong, and Thomas, who served as
deputy director of CCM, claiming that they aided and
abetted gender discrimination against her in violation
of General Statutes § 46a-60 (b) (5).1 In August, 2019,
she commenced a separate action against CCM and
CIRMA claiming that they committed workplace dis-
crimination against her on the basis of gender in viola-
tion of § 46a-60 (b) (1)2 and retaliated against her in
violation of § 46a-60 (b) (4).3 On October 2, 2019, the
plaintiff filed a motion to consolidate, requesting that
the court consolidate the actions for purposes of discov-
ery, pretrial pleadings and trial, explaining that the indi-
vidual defendants in the first action are the officers
and/or employees of the entities that are the defendants
in the second action. On November 13, 2019, the court,
Sheridan, J., granted the motion.
On March 19, 2021, following discovery, the defen-
dants filed a motion for summary judgment in each
case, arguing that there were no genuine issues of mate-
rial fact that would permit an inference of gender dis-
crimination, or, in the alternative, that her termination
was a pretext for gender discrimination. On May 11,
2021, the plaintiff filed her opposition to the defendant’s
motion for summary judgment.
In a memorandum of decision dated June 22, 2021,
the court, Moukawsher, J., granted the defendants’
motion for summary judgment. The court focused its
attention on the final step of the McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973) burden shifting framework, evaluating
whether CCM’s articulated, nondiscriminatory reason
for the plaintiff’s termination was pretextual.4 It stated:
‘‘CCM says [it] fired [the plaintiff] because she microma-
naged and bullied the employees she supervised. More
than one of them said so in exit interviews. There was
an investigation. The complaints were deemed well-
founded. [The plaintiff] was fired, and CCM cited this
bullying as the reason.
‘‘[The plaintiff] insists this isn’t the real reason. She
says the real reason was because a supervisor . . .
Thomas, didn’t like her because she is a woman and
that this led to her being fired. In support she cites a
variety of indirect evidence—and, yes, indirect evidence
is not only enough, it is often all there is.
‘‘[The plaintiff] says her office was smaller than the
offices given to male supervisors and she was paid less.
She says there are too few women in proportion to men
at CCM. While the sister organization [CIRMA] she is
suing has women in leadership, she was the only woman
among her peers at CCM. She says a subordinate
employee not under her charge once called her a ‘bitch.’
She claims the head of CCM joked at a meeting that
she was a ‘slave driver’ to her staff. [The plaintiff’s]
expert says . . . Brooks did a poor job looking into
the complaints and suggests she was swayed by
Thomas. [The plaintiff] says Thomas was friendly to the
male supervisors and unfriendly to her, unreasonably
interfering with her job duties. She says Thomas
wouldn’t answer her emails. Thomas complains she
wouldn’t answer his. The parties offered evidence of
arguments between the two via email.
‘‘All of this must be looked at through the lens . . .
for summary judgment motions. . . . From what has
been submitted, should [the plaintiff] get to a jury with
the question whether her gender was a substantial fac-
tor in her firing? [The plaintiff] has described conditions
at CCM that are different for her than men in her office.
But to get to a jury these things have to be at least
substantially linked with the decision to fire her. It isn’t
enough that they existed. They have to be a substantial
cause of her firing. And that’s where the trouble is. The
court doesn’t see anything a jury might latch onto to
connect the two.
‘‘The evidence about Thomas in particular points
unmistakably to a different problem. The submissions
of both sides document that when [the plaintiff] started
her job she thought she would report solely to the head
of CCM . . . DeLong. But when she got the paperwork
after arriving for work it showed her reporting to . . .
Thomas. She complained immediately, and DeLong
immediately temporized, explaining that she would
report to Thomas for administrative matters and to
DeLong on matters of substance.
‘‘Thomas plainly didn’t think so. He repeatedly sought
to assert control over [the plaintiff] and [the plaintiff]
repeatedly fought back, appealing to DeLong and
DeLong continued to temporize. While Thomas said
many positive things about [the plaintiff] in her reviews,
more than once he complained that she wouldn’t recog-
nize his authority. He continued to assert it. She contin-
ued to combat it. If there was bad blood between the
two, the only evidence is that it was about this issue.
‘‘The uncontradicted reality of this dispute is fatal
also to [the plaintiff’s] secondary claim of retaliation.
The parties agree that the same case law applies to the
§ 46a-60 (b) (4) claim that she was fired for complaining
about Thomas’ gender animus. But the evidence shows
that the complaints were solely about the supervision
controversy, particularly the July and August, 2015
emails [the plaintiff] points to as evidence of her alleg-
edly protected complaints. No evidence suggests, until
she faced firing, that she directly or indirectly com-
plained to DeLong or anyone else about gender animus
in any way at any time.
‘‘As for the other indirect evidence, [the plaintiff]
hasn’t offered any evidence that Thomas picked her
office, set her salary, and picked the rest of the staff
she complains of as being too freighted with men.
Instead, she shifts back and forth pointing out these
circumstances, suggesting an institutional problem but
then pointing to Thomas without connecting him as the
decision maker who created the alleged institutional
problems. With equal inconsistency she points to
DeLong as her protector in some places and then with-
out explanation lumps him into the problem.
‘‘As for the investigation, [the plaintiff] hired an
expert to scrutinize the process, suggesting an outside
investigator would have been more neutral and that
. . . Brooks sometimes asked the wrong questions of
some and not all of the questions she should have of oth-
ers.
‘‘Again, nothing about what Brooks did is linked to
gender as being [a] substantial factor in [the plaintiff’s]
firing. Nothing about the flaws suggest that she was
fired because of the flaws rather than because of the
repeated charges of mismanagement revealed by those
[the plaintiff] supervised. There is only the murky sug-
gestion that it is somehow part of an overall gender
biased scheme orchestrated by Thomas without any-
thing a jury could find to support that link.
‘‘There just isn’t enough here to recognize a disputed
issue of material fact between the parties. Viewing
everything most favorably to [the plaintiff], avoiding
credibility judgments, applying only the need to make
gender a substantial factor, a reasonable jury would
still be missing the most important thing. It would be
missing any evidence to connect the circumstances [the
plaintiff] points out with the decision to fire her. Indeed,
the evidence shows that her problem with Thomas had
everything to do with her refusal to submit to his super-
vision instead of DeLong’s—a very solid explanation
for the trouble between them and one that appears on
the scene without anything to link it to gender. Likewise,
there is evidence that complaints and an investigation
led to the decision to fire her. . . . Perhaps a silken
thread here would be enough to mean a jury not a judge
should decide the matter. But the thread here doesn’t
run.’’ (Citations omitted; emphasis omitted; footnotes
omitted.) Accordingly, the court granted ‘‘CCM sum-
mary judgment because on this record no reasonable
jury could find for her on her claim that it discriminated
or retaliated against her. All of [the plaintiff’s] claims
against the other defendants—even assuming they are
properly joined—similarly rely on the same gender and
retaliation claims. Since these claims fail, the court
grants all the remaining defendants summary judgment
as well.’’ This appeal followed.
On the basis of our careful review of the record,
the parties’ briefs, and their oral arguments before this
court, and applying the well established principles that
govern our review of a court’s decision to render sum-
mary judgment in cases alleging violations of the Con-
necticut Fair Employment Practices Act, General Stat-
utes § 46a-51 et seq.; see, e.g., Stubbs v. ICare
Management, LLC, 198 Conn. App. 511, 520–22, 233
A.3d 1170 (2020); we conclude that the judgment of the
trial court in each case should be affirmed. We agree
with the court that the plaintiff has not demonstrated
the existence of a genuine issue of material fact as to
whether the defendants’ legitimate, nondiscriminatory
justification for her discharge was a pretext for unlawful
discrimination.5 See Luth v. OEM Controls, Inc., Supe-
rior Court, judicial district of Ansonia-Milford, Docket
No. CV-XX-XXXXXXX-S (December 6, 2019) (reprinted at
203 Conn. App. 673, 686, 252 A.3d 412) (granting sum-
mary judgment in favor of defendant when ‘‘the defen-
dant has provided a nondiscriminatory reason for the
plaintiff’s termination, and the plaintiff has failed to
provide any sufficient evidence indicating that these
reasons were pretextual’’), aff’d, 203 Conn. App. 673,
252 A.3d 406 (2021). We similarly agree with the trial
court that the record is devoid of any evidence that the
plaintiff engaged in a protected activity giving rise to
a claim of retaliation. See Agosto v. Premier Mainte-
nance, Inc., 185 Conn. App. 559, 587–88, 197 A.3d 938(2018) (affirming grant of summary judgment in favor
of defendant when allegations and facts of case ‘‘do
not constitute a protected activity’’ and when plaintiff
failed to establish that defendant knew that plaintiff
‘‘was engaged in a protected activity’’).
On the record before us, no reasonable jury could
conclude that the plaintiff’s termination was motivated
in whole or in part by gender discrimination. See Taing
v. CAMRAC, LLC, 189 Conn. App. 23, 28, 206 A.3d 194(2019) (to defeat summary judgment motion, ‘‘the plain-
tiff’s admissible evidence must show circumstances
that would be sufficient to permit a rational finder of
fact to infer that the defendant’s employment decision
was more likely than not based in whole or in part
on discrimination’’ (internal quotation marks omitted)).
We therefore conclude that the court properly granted
the defendants’ motion for summary judgment in
each case.
The judgments are affirmed.
1
General Statutes § 46a-60 provides in relevant part: ‘‘(b) It shall be a
discriminatory practice in violation of this section . . . (5) For 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 . . . .’’
2
General Statutes § 46a-60 provides in relevant part: ‘‘(b) 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, physical disability, including, but not limited to, blindness or
status as a veteran . . . .’’
Although the legislature has amended § 46a-60 (b) (1) since the events
underlying the present case; see Public Acts 2021, No. 21-69, § 1; that amend-
ment has no bearing on the merits of this appeal. In the interest of simplicity,
we refer to the current revision of the statute.
3
General Statutes § 46a-60 provides in relevant part: ‘‘(b) It shall be a
discriminatory practice in violation of this section . . . (4) For any person,
employer, labor organization or employment agency 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 . . . .’’
4
Under the McDonnell Douglas Corp. burden shifting analysis, the
employee must ‘‘first make a prima facie case of discrimination. . . . The
employer may then rebut the prima facie case by stating a legitimate, nondis-
criminatory justification for the employment decision in question. . . . 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.’’ (Internal quotation marks omitted.) Rossova v. Charter
Communications, LLC, 211 Conn. App. 676, 684–85, 273 A.3d 697 (2022).
In the present case, the court appears to have assumed, without deciding,
that the plaintiff established a prima facie case of gender discrimination. It
also concluded that the defendants had satisfied their burden of articulating
a legitimate, nondiscriminatory reason for the plaintiff’s termination. The
court thus focused its analysis on whether the defendants’ proffered reason
for the termination was pretextual, concluding that it was not.
5
The plaintiff argues, inter alia, that the court erred in rendering summary
judgment by ‘‘permitting the defendants to use hearsay evidence to proffer
a ‘legitimate reason’ for the adverse employment action.’’ To that end, it
appears that she is arguing that the sole evidence that the defendants rely
on to articulate a nondiscriminatory reason for her termination is the investi-
gation report, which, in her view, is impermissible hearsay evidence. This
argument lacks any merit and warrants little discussion. First, when the
plaintiff brought her hearsay concerns to the court’s attention, the court
made clear that it would ‘‘not consider the investigation documents for the
truth of the matters asserted in them but only to show that steps were
taken to investigate claims against [the plaintiff] and that the investigation
conclusion was linked to the decision to fire [the plaintiff].’’ Second, aside
from the investigation report, both DeLong and Brooks, the decision maker
and investigator, respectively, testified in depositions about what prompted
the investigation, the investigation itself, and the reasons for her termination.
Lastly, the plaintiff herself submitted and relied upon the investigation report
in opposition to the defendants’ motion for summary judgment. We therefore
reject the plaintiff’s argument.