Bartolotta v. Human Resources Agency of New Britain, Inc. ( 2024 )

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ALYSSA BARTOLOTTA v. HUMAN RESOURCES
AGENCY OF NEW BRITAIN, INC.
(AC 46091)
Elgo, Cradle and Seeley, Js.
Syllabus
Pursuant to statute (§ 21a-408p), no employer may discharge an employee
solely on the basis of such employee’s status as a person qualified to
use medical marijuana under the Palliative Use of Marijuana Act (§ 21a-
408 et seq.).
The plaintiff, whose employment as a preschool teaching assistant with the
defendant had been terminated, sought to recover damages from the
defendant for, inter alia, its alleged discrimination against her because of
her disability, epilepsy. At the time of her hire, the plaintiff acknowledged
receipt of the defendant’s drug free workplace policy and employee
handbook, which included provisions stating that working while under
the influence of drugs could result in the termination of her employment.
She did not inform the defendant that she suffered from epilepsy until
after she experienced a seizure while at work. The defendant thereafter
adopted a medical alert protocol for the plaintiff, allowed her, in her
discretion, to leave work for the day whenever she experienced a seizure,
and transferred her to a different classroom to ensure she would be
accompanied by another adult at all times for her safety and the safety
of the students. In October, 2018, the plaintiff additionally requested
that the nurse on site store Valium in her office and administer it to the
plaintiff after she had a seizure. The defendant denied this request in
part because the nurse was not permitted to administer medications to
the staff, but the defendant did not prohibit the plaintiff from bringing
Valium and using it in the workplace as needed. In January, 2019, an
incident occurred during which the plaintiff called a child the wrong
name in front of D, a teacher at the facility, and told D that she was a
medical marijuana user and was feeling the effects from it. D reported
this interaction to E, the defendant’s education manager, and the defen-
dant conducted an investigation into the plaintiff’s purported drug use.
During the course of the investigation, E and G, the defendant’s human
resources director, conducted an investigatory interview with the plain-
tiff, in which the plaintiff admitted that she had reported to work while
impaired, which she said was caused by taking too much medical mari-
juana. As part of its investigation, the defendant also interviewed L, the
teacher assigned to the plaintiff’s classroom, who noted that the plaintiff
had been droopy and unsteady on her feet in the weeks prior to the
January, 2019 incident, and the defendant received a letter from B, an
employee who stated that the plaintiff had informed him that she was
taking medical marijuana. The defendant requested that the plaintiff
submit to a drug test, which came back negative for marijuana. The
plaintiff additionally submitted a physician’s letter to the defendant
stating that she was a medical marijuana user with a prescription to
use a vape pen daily at 8 p.m. At the conclusion of its investigation, the
defendant terminated the plaintiff’s employment for reporting to work
while impaired by marijuana. In a four count complaint alleging viola-
tions of a provision (§ 46a-60 (b) (1)) of the Connecticut Fair Employ-
ment Practices Act (§ 46a-51 et seq.), a violation of § 21a-408p, and
wrongful termination in violation of a drug testing statute (§ 31-51x),
the plaintiff claimed that the defendant had discriminated against her
on the basis of her disability and her qualification as a medical marijuana
user. The defendant moved for summary judgment, asserting, inter alia,
that the plaintiff could not establish a prima facie case of discrimination,
it had provided her with reasonable accommodations for her disability,
it had a reasonable suspicion that she was impaired in the workplace
before it directed her to submit to drug testing, and her discrimination
and reasonable accommodation claims were time barred. The court
granted the defendant’s motion, and the plaintiff appealed to this
court. Held:
1. The trial court properly rendered summary judgment for the defendant
on the count of the plaintiff’s complaint alleging that the defendant
violated § 21a-408p (b) (3) by improperly terminating her employment
due to her status as a person qualified to use medical marijuana under
the Palliative Use of Marijuana Act: no genuine issue of material fact
existed as to whether the defendant violated the statute, as its investiga-
tion into the plaintiff’s January, 2019 conduct originated in D’s report
that the plaintiff had been impaired in the workplace and was com-
menced before the plaintiff informed the defendant that she was a
qualified user of medical marijuana, thus, the plaintiff could not establish
that the defendant discharged her solely on the basis of her status
as a qualifying patient; moreover, the defendant’s stated decision to
terminate the plaintiff’s employment for reporting to work in an impaired
state was expressly permitted by § 21a-408p (b) (3).
2. The trial court properly rendered summary judgment for the defendant
on the count of the plaintiff’s complaint alleging discrimination on the
basis of disability: the court did not apply an improper legal standard
in evaluating that claim, as it explicitly determined that the plaintiff had
not met her burden under either the mixed-motive or the pretext model
of analysis; moreover, the plaintiff did not raise a genuine issue of
material fact as to whether her disability played a substantial role in
the defendant’s decision to terminate her employment, as notes from the
investigatory interview indicated that G specifically asked the plaintiff
if she understood that the defendant’s alarm over the January, 2019
incident had nothing to do with the plaintiff’s epilepsy, to which the
plaintiff responded in the affirmative, the written disciplinary notice
that the defendant furnished to the plaintiff made no mention of the
plaintiff’s disability, and the record indicated that the defendant proac-
tively took multiple steps to accommodate the plaintiff’s epilepsy once
it learned of it; furthermore, the plaintiff could not satisfy her burden
to raise a genuine issue of material fact that the real reason for her
termination was membership in a protected class, as the defendant
stated a legitimate, nondiscriminatory reason for its decision to termi-
nate her employment, and the plaintiff did not submit any evidence to
demonstrate or argue on appeal that that reason was pretextual.
3. The trial court properly rendered summary judgment for the defendant
on the count of the plaintiff’s complaint alleging failure to accommodate
her disability in violation of § 46a-60 (b) (1):
a. The plaintiff’s claim with respect to the defendant’s denial in October,
2018, of her request to store Valium in the nurse’s office and have the
nurse administer the Valium to her occurred more than 180 days before
she filed a complaint of disability discrimination with the Commission
on Human Rights and Opportunities in May, 2019, and the plaintiff did
not allege that waiver, consent, or another equitable tolling doctrine
applied to the accommodation request, thus, the claim with respect to
that request was time barred by the statute of limitations ((Rev. to 2017)
§ 46a-82 (f)).
b. No genuine issue existed as to whether the plaintiff made a medical
marijuana accommodation request or whether the defendant violated
§ 46a-60 (b) (1) by denying such a request: the record did not reflect
that the plaintiff requested an accommodation for her medical marijuana
use, as she did not disclose her use of medical marijuana to the defendant
until after the January, 2019 incident, the letter she furnished from her
physician did not request or recommend any accommodations regarding
her use of medical marijuana, and she acknowledged during her deposi-
tion that there was no reference to medical marijuana in her request for
accommodation with respect to her use of Valium; moreover, the plaintiff
provided no legal authority to support the proposition that the defendant
should have allowed her to use her medical marijuana during the workday
or to appear at the preschool facility in an impaired state; furthermore,
the plaintiff never suggested that she could properly perform the job of
a preschool teaching assistant while impaired by the use of medical
marijuana.
4. The trial court properly rendered summary judgment for the defendant
on the count of the plaintiff’s complaint alleging that the defendant
violated § 31-51x by requiring her to take a drug test following the
January, 2019 incident; no genuine issue of material fact existed as to
whether the defendant had a reasonable suspicion to require the plaintiff
to take a drug test, as D and L had provided observations to the defendant
of the plaintiff in the workplace that indicated a concern for the safety
of the children in the plaintiff’s care, B had informed the defendant by
letter that the plaintiff claimed to use medical marijuana, and the plaintiff
had admitted to E and G that she used medical marijuana and may have
used too much, and a reasonable person armed with that information
would have suspected that the plaintiff had been under the influence
of drugs in the classroom, which could adversely impact her job perfor-
mance.
Argued October 19, 2023—officially released March 19, 2024
Procedural History
Action to recover damages for, inter alia, alleged
employment discrimination, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the court, Reed, J., granted the defen-
dant’s motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to
this court. Affirmed.
James V. Sabatini, for the appellant (plaintiff).
Tamara M. Nyce, with whom, on the brief, was How-
ard K. Levine, for the appellee (defendant).
Opinion
ELGO, J. The plaintiff, Alyssa Bartolotta, appeals
from the summary judgment rendered by the trial court
in favor of the defendant, Human Resources Agency of
New Britain, Inc., in this employment discrimination
action. On appeal, the plaintiff claims that the court
improperly concluded that there is no genuine issue as
to any material fact and that the defendant was entitled
to judgment as a matter of law on all four counts of
her complaint. We disagree and, accordingly, affirm the
judgment of the trial court.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are relevant
to this appeal. The defendant is a nonprofit organization
that provides, inter alia, educational services to quali-
fied children. On February 12, 2018, it hired the plaintiff
as a teaching assistant in the early childhood division
at its 180 Clinton Street location in New Britain (facil-
ity).1 In that capacity, the plaintiff worked in classrooms
with approximately twenty preschool children.
At the time of her hire, the defendant provided the
plaintiff with a copy of its employee handbook, which
contained various policies. Policy 701 sets forth ‘‘rules
of conduct’’ and provides in relevant part: ‘‘To ensure
orderly operations and provide the best possible work
environment, [the defendant] expects employees to fol-
low rules of conduct that will protect the interests and
safety of all employees and the organization. . . . The
following . . . infractions of rules of conduct . . .
shall result in disciplinary action, up to and including
termination . . . . Working under the influence of
alcohol or illegal drugs . . . .’’ Policy 703 pertains spe-
cifically to drug and alcohol use and provides in relevant
part: ‘‘[The defendant] will not tolerate any controlled
substance or alcohol use that threatens the health,
safety or well-being of its employees, clients or the
general public. To ensure worker safety and workplace
integrity, this agency strictly prohibits the illegal manu-
facture, possession, distribution or use of controlled
substances or alcohol in the workplace by employees.
. . .’’ Appended to the defendant’s motion for summary
judgment was the plaintiff’s signed employee acknowl-
edgment form, in which the plaintiff acknowledged that
she ‘‘received the handbook’’ and that she understood
‘‘that it is [her] responsibility to read and comply with
the policies contained in this handbook . . . .’’
The defendant also signed an acknowledgment of the
defendant’s drug free workplace policy, which stated
in relevant part: ‘‘I understand that it is unlawful to
manufacture, possess, distribute or use controlled sub-
stances or alcohol in the workplace. I have been
informed that violations of the Drug Free Workplace
Policy will result in disciplinary action up to and includ-
ing termination.’’ In her deposition testimony, the plain-
tiff admitted that she was aware that her employment
could be terminated if she came to work impaired.
The plaintiff has suffered from epilepsy her entire
life and experiences, on average, one ‘‘bad’’ seizure a
month. She nevertheless did not inform the defendant
of that condition until she experienced her first seizure
at work.2 In response, the defendant adopted a medical
alert protocol in the spring of 2018 that documented
seizure symptoms, protocols, and emergency contacts
for the plaintiff. A copy of that protocol, which was
titled ‘‘Alyssa Bartolotta Medical Alert—Seizure—Par-
tial Complex,’’ was posted on the nurse’s desk. The
defendant also allowed the plaintiff, in her discretion,
to leave for the day whenever she experienced a seizure.
In addition, the defendant transferred the plaintiff to a
different classroom to ensure that she would be accom-
panied by a teacher or another teaching assistant at all
times, and in the evenings in particular. In her deposi-
tion testimony, the plaintiff admitted that this transfer
was an accommodation that the defendant provided for
her safety, as well as the safety of students.
In October, 2018, the plaintiff provided the defendant
with a note from her physician, which requested that
the defendant (1) store Valium3 in the nurse’s office
and (2) have the nurse administer it to the plaintiff in the
event that she had a seizure at work.4 In her deposition
testimony, the plaintiff explained that this note consti-
tuted an accommodation request ‘‘for the nurse to hold
a few doses of Valium locked up somewhere safe, and
then for me to lay down for thirty minutes to an hour,
rest, and then hop back up and go back to my class-
room . . . .’’
In a sworn affidavit submitted in support of the defen-
dant’s motion for summary judgment, Brenda Sherer,
the defendant’s Director of Organizational Develop-
ment and Human Resources, explained that the defen-
dant had a nurse at the facility on only two days each
week. Moreover, that nurse was not permitted to admin-
ister medications to staff, as such activities exceeded
the scope of her employment with the defendant. For
that reason, the defendant denied the plaintiff’s request
in part. At the same time, the defendant, in consultation
with the plaintiff, adopted a modified protocol for staff
to follow when the plaintiff sustained a seizure at the
facility. A copy of that December 5, 2018 protocol was
appended to the defendant’s motion for summary judg-
ment.5
Notably, the plaintiff was not prohibited from using
Valium when needed at the facility. At her deposition,
the following colloquy occurred between the defen-
dant’s counsel and the plaintiff:
‘‘Q. Were you ever told that you could not have your
Valium at work?
‘‘A. No.
‘‘Q. You were just told that the nurse could not be
the custodian of your Valium; is that right?
‘‘A. Yes. . . .
‘‘Q. So . . . other than [denying the request] to main-
tain custody of your Valium in the nurse’s office, is there
anything else that [the defendant] did not accommodate
from your request for accommodation?
‘‘A. No.’’
On January 2, 2019, an incident occurred at the facility
between the plaintiff and Amanda Doty, a teacher in the
classroom adjacent to the plaintiff’s. As Doty averred
in her sworn affidavit: ‘‘I observed [the plaintiff] call a
child by the wrong name. [The plaintiff] told me that
she was ‘just out of it.’ [The plaintiff] then told me that
she uses medical marijuana and that her ‘head is just
not right from it yet.’ . . . [Her] comments made me
concerned that she was not okay to be in the classroom
with the children because she was still feeling the
effects of the marijuana.’’ Doty reported the incident
to Suzanne Licki, the teacher in the plaintiff’s class-
room, who advised Doty to notify a supervisor. Doty
then informed Ana Erazo, the defendant’s Education
Manager, of the statements made by the plaintiff that
day.
In response, the defendant conducted an investiga-
tion into the plaintiff’s purported drug use. As Sherer
recounted in her affidavit: ‘‘On January 8, 2019, [Erazo]
and [Human Resources Director] Andrea Goodison met
with [the plaintiff] to discuss the report that she was
impaired in the workplace. . . . [The plaintiff] admit-
ted that she reported to work impaired and said the
cause was taking too much medical marijuana.’’ Copies
of the investigation and interview notes were submitted
in support of the defendant’s motion for summary judg-
ment,6 which indicate that, during that investigation,
the plaintiff for the first time presented her medical
marijuana card to the defendant.7 Those notes also state
in relevant part: ‘‘When presented with the allegations
of what was reported [by Doty] . . . [the plaintiff] did
not deny showing up to work impaired [and stated that]
‘I use a disposable vape pen which gives [between fifty
and seventy] puffs [of medical marijuana]. I wasn’t
keeping track and I believe the pen ran out. I take it at
[8 p.m.]. . . . It is supposed to wear off within [eight]
hours and I take it right after I take the Valium and
other seizure medication. There is a possibility I may
have used too much [and] more than prescribed
[because] I ran out and had [two] seizures the following
day. I am prescribed [four] puffs at [a] time.’’ In addition,
the notes indicate that the plaintiff ‘‘did not deny . . .
reporting to work impaired and . . . stated, ‘It’s my
mother’s fault! I knew I should’ve said something [about
the use of medical marijuana]’ . . . .’’
The notes also contain the following colloquy
between the plaintiff, Erazo and Goodison:
‘‘[Erazo]: Do you understand that you cannot show
up to work impaired because the children require full
attention and if you are impaired you are unable to
respond quickly to their needs?
‘‘[The Plaintiff]: Yes, I understand, and I thought [the
marijuana] would have worn off by then. My mother is
[going to] kill me and I’m mad at myself because I knew
I should have told you guys. . . . You guys have been
so nice and accommodating and I messed up.
‘‘[Goodison]: Do you understand that this has nothing
to do with your epilepsy?
‘‘[The Plaintiff]: Yes, I do.’’
At the conclusion of her interview, the plaintiff was
suspended without pay and directed to submit to a drug
test. The results from that test, which was administered
six days after the January 2, 2019 incident, came back
positive for Valium but negative for marijuana.
As part of the investigation, Goodison interviewed
Licki, the teacher who worked with the plaintiff on a
daily basis. Licki informed her that, for approximately
two weeks prior to the January 2, 2019 incident, she
observed the plaintiff ‘‘to be forgetful, droopy, and
unsteady on her feet.’’ Licki at that time expressed con-
cern regarding the safety of children in the plaintiff’s
care.
The defendant also received a letter from Chris
Badenhop, a coworker at the facility, on January 8,
2019. In that letter, Badenhop stated that, during a con-
versation in a hallway on January 3, 2019, the plaintiff
confided in him that ‘‘she was on medical marijuana.’’
Badenhop indicated that he assumed the defendant
‘‘knew about this already, as [the plaintiff] so openly
told me in the hallway, for others to hear. I didn’t realize
that this was new information, as I wasn’t really
involved with this staff member or classroom.’’
The plaintiff subsequently provided the defendant
with a letter from her physician dated January 15, 2019.
That letter stated in full: ‘‘[The plaintiff] has a medical
card to use medical marijuana for anxiety and seizures.
She uses a vapor at 8PM daily (2–4 puffs). If you have
any questions or concerns, please don’t hesitate to call.’’
On January 23, 2019, officials from the defendant’s
human resources department met with the plaintiff and
informed her of the decision to terminate her employ-
ment. The written disciplinary notice issued by the
defendant states in relevant part that, during the inter-
view on January 8, 2019, the plaintiff ‘‘admitted that
[she uses] medical marijuana and did show up to work
impaired and that [she] may be abusing it. In addition,
during multiple phone calls with the [Human
Resources] Director, [she] did not deny showing up [to]
work impaired.’’ After detailing both Policy 701 and
Policy 703, which are memorialized in the defendant’s
employee handbook, the notice states that the plaintiff
violated ‘‘company rules’’ by reporting to work
‘‘impaired as admitted by [the plaintiff] to another staff
member. [She] repeated it and never retracted this state-
ment on several occasion[s].’’ The notice concludes:
‘‘[The defendant] has a legal obligation to protect the
children in our care. In showing up to work while
impaired [the plaintiff] violated the [applicable] stan-
dard of care . . . . [The plaintiff] failed to follow com-
pany policy and procedures; therefore, [her] employ-
ment with [the defendant] is being terminated, effective
immediately.’’
The plaintiff thereafter filed a grievance regarding
her termination, which was initially heard by the defen-
dant’s grievance committee. After that committee
upheld the termination decision, her grievance was
heard by the defendant’s board of directors. That board,
too, concluded that the termination decision was
proper.
The plaintiff then filed an employment discrimination
complaint with the Commission on Human Rights and
Opportunities (commission) on May 29, 2019. In her
accompanying affidavit, the plaintiff alleged that the
defendant ‘‘terminated [her] employment because of
her disability’’ and ‘‘failed to accommodate [her] by
prohibiting her from working while taking prescription
medication for her disability.’’ On April 20, 2020, the
commission issued a release of jurisdiction over the
plaintiff’s complaint.
On July 16, 2020, the plaintiff commenced the present
action against the defendant. Her complaint contains
four counts and alleges (1) disability discrimination in
violation of General Statutes § 46a-60 (b) (1), (2) failure
to accommodate, (3) a violation of General Statutes
§ 21a-408p, and (4) a violation of General Statutes § 31-
51x. In response, the defendant filed an answer and
several special defenses.
The plaintiff was deposed by the defendant on Janu-
ary 5, 2022. In her deposition testimony, the plaintiff
acknowledged that her employment with the defendant
could be terminated if she was impaired in the work-
place. She nonetheless maintained that she was not
impaired when the incident occurred on January 2,
2019, and that taking medical marijuana ‘‘does not make
[her] impaired.’’ The plaintiff further averred that the
results of the drug test conducted on January 8, 2019,
‘‘proves [that she] didn’t come to work impaired’’ on
January 2, 2019.
On February 25, 2022, the defendant filed a motion
for summary judgment. In its accompanying memoran-
dum of law, the defendant argued: (1) the plaintiff could
not establish a prima facie case of discrimination; (2)
the plaintiff’s failure to accommodate claim failed as a
matter of law because the defendant provided the plain-
tiff with reasonable accommodations for her disability;
(3) the plaintiff could not demonstrate that she was
terminated because of her status as a qualifying user of
medical marijuana; (4) the plaintiff could not establish
a violation of § 31-51x because the defendant had a
reasonable suspicion that the plaintiff was impaired in
the workplace before it directed her to submit to a
urine toxicology drug screening; and (5) the plaintiff’s
discrimination and reasonable accommodation claims
were time barred. Appended to that memorandum were
several exhibits, including the sworn affidavits of
Sherer, Doty, and Licki, certain policies pertaining to
drug use contained in the defendant’s employee hand-
book, the medical protocol adopted by the defendant
in the spring of 2018 regarding the plaintiff’s seizures,
the revised medical protocol adopted on December 5,
2018, copies of the defendant’s investigation and inter-
view notes related to the January 2, 2019 incident, the
written disciplinary notice that the defendant furnished
to the plaintiff on January 23, 2019, and portions of the
plaintiff’s January 5, 2022 deposition testimony.
The plaintiff filed an objection to the motion for sum-
mary judgment, as well as a memorandum of law and
exhibits that included her January 5, 2022 deposition
testimony, the May 28, 2019 affidavit that she filed with
the commission, and the January 15, 2019 letter from
her physician regarding her use of medical marijuana.
The defendant filed a reply to that objection on June
15, 2022.
The court heard argument from the parties on the
motion for summary judgment on August 1, 2022. It
thereafter issued a memorandum of decision in which
it concluded that summary judgment was appropriate
on all four counts of the plaintiff’s complaint. The court
thus rendered judgment in favor of the defendant, and
this appeal followed.
At the outset, we note the well established standard
that governs our review of a trial court’s decision to
grant a motion for summary judgment. ‘‘Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered 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. . . . [T]he moving party . . . has the burden of
showing the absence of any genuine issue as to all
the material facts . . . . When documents submitted
in support of a motion for summary judgment fail to
establish that there is no genuine issue of material fact,
the nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue. . . .
Once the moving party has met its burden, however,
the [nonmoving] party must present evidence that dem-
onstrates the existence of some disputed factual issue.
. . . Our review of the trial court’s decision to grant the
defendant’s motion for summary judgment is plenary.’’
(Citations omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d
1 (2018).
I
For purposes of clarity, our analysis begins with the
plaintiff’s claim that the court improperly rendered sum-
mary judgment on the third count of her complaint,
which alleges that the defendant violated the Palliative
Use of Marijuana Act (act), General Statutes § 21a-408
et seq.8 More specifically, she alleges that a genuine
issue of material fact exists as to whether the defendant
violated § 21a-408p (b) (3) by improperly terminating
her employment due to her status as a person qualified
to use medical marijuana under the act. We disagree.
Section 21a-408p (b) provides in relevant part: ‘‘(3)
No employer may . . . discharge, penalize or threaten
an employee solely on the basis of such person’s or
employee’s status as a qualifying patient . . . . Noth-
ing in this subdivision shall restrict an employer’s ability
to prohibit the use of intoxicating substances during
work hours or restrict an employer’s ability to discipline
an employee for being under the influence of intoxicat-
ing substances during work hours.’’ It is undisputed
that, at the time of her termination, the plaintiff was a
qualifying patient, as that term is used in the act; see
General Statutes §§ 21a-408 and 21a-408p (a) (7); as she
submitted a letter from her physician so indicating on
January 15, 2019. It also is undisputed that the plaintiff
did not disclose that status to the defendant until
approximately one week after the January 2, 2019 inci-
dent. See footnote 7 of this opinion.
The plain language of § 21a-408p (b) (3) indicates
that, to establish a violation thereof, an employer must
be shown to have discharged ‘‘an employee solely on
the basis of such person’s or employee’s status as a
qualifying patient . . . .’’ (Emphasis added.) In the
present case, the record belies such a contention. The
investigation into the plaintiff’s conduct on January 2,
2019, originated in a report from a coworker that the
defendant was impaired in the workplace and was com-
menced before the plaintiff ever informed the defendant
that she was a qualified patient under the act. The notes
from that investigation contain an exchange between
Erazo, Goodison, and the plaintiff, in which the plaintiff
affirmatively stated her understanding that the investi-
gation had ‘‘nothing to do with [her] epilepsy,’’ but
rather concerned the dangers posed to children when
teaching staff is impaired in the workplace. Moreover,
in her deposition testimony, the plaintiff admitted that
the defendant’s officials did not tell her that she could
not take medical marijuana to treat her epilepsy, but
rather simply told her that she could not come to work
impaired. In addition, the written disciplinary notice
issued by the defendant states in relevant part that the
plaintiff violated company policy by reporting to work
in an impaired state and concluded that her employment
was being terminated because she ‘‘failed to follow
company policy and procedures’’ regarding drug and
alcohol use in the workplace. In light of that record, the
plaintiff cannot establish that the defendant discharged
her solely on the basis of her status as a qualifying
patient.
Section 21a-408p (b) (3) also expressly provides that
‘‘[n]othing in this subdivision shall restrict an employ-
er’s ability to prohibit the use of intoxicating substances
during work hours or restrict an employer’s ability to
discipline an employee for being under the influence of
intoxicating substances during work hours.’’ The plain
import of that provision confirms that, while the pallia-
tive use of marijuana is authorized under Connecticut
law, employers nonetheless may prohibit qualifying
patients from being under its influence in the work-
place.9 The policies contained in the defendant’s
employee handbook, as well as its drug free workplace
policy that the plaintiff signed upon commencement of
her employment, indicate that the defendant prohibited
all employees from being under the influence of drugs
or alcohol in the workplace. Accordingly, in light of the
defendant’s stated decision to terminate the plaintiff
for reporting to work in an impaired state, we conclude
that no genuine issue of material fact exists as to
whether the defendant violated § 21a-408p (b) (3).
II
The plaintiff contends that the court improperly ren-
dered summary judgment on the first count of her com-
plaint, which alleges disability discrimination in viola-
tion of § 46a-60 (b) (1), a provision of the Connecticut
Fair Employment Practices Act (CFEPA), General Stat-
utes § 46a-51 et seq.10 We do not agree.
A
As a threshold issue, we address the plaintiff’s claim
that the court applied an improper legal standard in
evaluating her disability discrimination claim. She
claims that the court improperly applied the McDonnell
Douglas-Burdine pretext model of analysis; see Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248,
252–56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973); rather than the mixed-
motive model established in Price Waterhouse v. Hop-
kins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d
268 (1989). Our review of that question of law is plenary.
See Hartford v. CBV Parking Hartford, LLC, 330 Conn.
200, 214, 192 A.3d 406 (2018) (whether trial court
applied proper legal standard is subject to plenary
review on appeal).
‘‘Under the analysis of the disparate treatment theory
of liability, there are two general methods to allocate
the burdens of proof: (1) the mixed-motive/Price Water-
house model . . . and (2) the pretext/McDonnell Doug-
las-Burdine model.’’ (Citation omitted; footnote omit-
ted.) Levy v. Commission on Human Rights &
Opportunities, 236 Conn. 96, 104–105, 671 A.2d 349(1996). Those two methods of proof apply to claims of
intentional discrimination. See Jacobs v. General Elec-
tric Co., 275 Conn. 395, 403, 880 A.2d 151 (2005). ‘‘A
mixed-motive case exists when an employment deci-
sion is motivated by both legitimate and illegitimate
reasons. . . . In such instances, a plaintiff must dem-
onstrate that the employer’s decision was motivated
by one or more prohibited statutory factors. Whether
through direct evidence or circumstantial evidence, a
plaintiff must submit enough evidence that, if believed,
could reasonably allow a [fact finder] to conclude that
the adverse employment consequences resulted
because of an impermissible factor.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
Levy v. Commission on Human Rights & Opportuni-
ties, supra, 105. ‘‘Under [the mixed-motive] model, the
plaintiff’s prima facie case requires that the plaintiff
prove by a preponderance of the evidence that he or
she is within a protected class and that an impermissible
factor played a ‘motivating’ or ‘substantial’ role in the
employment decision.’’ Id., 106.
Our Supreme Court further explained that, ‘‘[o]ften,
a plaintiff cannot prove directly the reasons that moti-
vated an employment decision. Nevertheless, a plaintiff
may establish a prima facie case of discrimination
through inference by presenting facts [that are] suffi-
cient to remove the most likely bona fide reasons for
an employment action . . . . From a showing that an
employment decision was not made for legitimate rea-
sons, a fact finder may infer that the decision was made
for illegitimate reasons. It is in these instances that the
McDonnell Douglas-Burdine model of analysis must be
employed.’’ (Citation omitted; internal quotation marks
omitted.) Id., 107; see also Jones v. Dept. of Children &
Families, 172 Conn. App. 14, 24, 158 A.3d 356 (2017)
(describing McDonnell Douglas-Burdine standard as
‘‘ ‘pretext’ model of analysis’’). ‘‘The McDonnell Doug-
las-Burdine analysis keeps the doors of the courts open
for persons who are unable initially to establish a dis-
criminatory motive. If a plaintiff, however, establishes
a . . . prima facie case [under the mixed-motive model
of analysis], thereby proving that an impermissible rea-
son motivated a defendant’s employment decision, then
the McDonnell Douglas-Burdine model does not apply
. . . .’’ Levy v. Commission on Human Rights &
Opportunities, supra, 236 Conn. 109.
The plaintiff in the present case alleged, inter alia,
that (1) the defendant intentionally discriminated
against her and ‘‘terminated [her] employment on
account of her disability’’ and (2) the defendant ‘‘treated
[her] adversely different from similarly situated employ-
ees . . . .’’11 Broadly construed; see Doe v. Cochran,
332 Conn. 325, 333, 210 A.3d 469 (2019); her complaint
thus implicates both the mixed-motive and the McDon-
nell Douglas-Burdine pretext models of analysis. In
its memorandum of decision, the trial court explicitly
concluded that the plaintiff had not offered any proof
‘‘that her disability was ‘a motivating factor’ in the defen-
dant’s decision to terminate her’’ or that ‘‘her termina-
tion was pretextual.’’ In so doing, the court determined
that the plaintiff had not met her burden under either
the mixed-motive or the McDonnell Douglas-Burdine
model of analysis.12 We, therefore, reject the plaintiff’s
contention that the court applied an improper legal
standard in evaluating her claims of disability discrimi-
nation.
B
We next consider whether the court properly applied
those legal standards. We begin with the plaintiff’s claim
that the ‘‘defendant terminated [her] because of her
disability,’’ which, she argues, entails an application of
the mixed-motive model of analysis. Under that model,
the plaintiff bears the initial burden of establishing a
prima facie case by proving (1) ‘‘that he or she is within a
protected class’’13 and (2) ‘‘that an impermissible factor
played a ‘motivating’ or ‘substantial’ role in the employ-
ment decision.’’14 Levy v. Commission on Human
Rights & Opportunities, supra, 236 Conn. 106. ‘‘Once
the plaintiff has established [her] prima facie case, the
burden of production and persuasion shifts to the defen-
dant. [T]he defendant may avoid a finding of liability
only by proving by a preponderance of the evidence
that it would have made the same decision even if it
had not taken [the impermissible factor] into account.’’
(Footnote omitted; internal quotation marks omit-
ted.) Id.A plaintiff’s initial burden under the mixed-motive
model is not an insignificant one. ‘‘[T]he plaintiff’s initial
burden in a [mixed-motive] case is heavier than the de
minimis showing required to establish a prima facie
[case under the McDonnell Douglas-Burdine pretext
model] . . . .’’ Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d
Cir. 1997); accord Tyler v. Bethlehem Steel Corp., 958
F.2d 1176, 1181 (2d Cir.) (‘‘[i]n . . . a ‘mixed-motives’
case, the plaintiff must initially show more than the ‘not
onerous’ McDonnell Douglas-Burdine factors’’), cert.
denied, 506 U.S. 826, 113 S. Ct. 82, 121 L. Ed. 2d 46(1992); Tyler v. Bethlehem Steel Corp., supra, 1186 (in
mixed-motives case, ‘‘the defendant need do nothing
until the plaintiff has proved unlawful motivation’’
(internal quotation marks omitted)). A plaintiff in a
mixed-motive case bears the ‘‘burden of showing that
an illicit motive played a substantial factor in the termi-
nation decision . . . .’’ Kirk v. Hitchcock Clinic, 261
F.3d 75, 78 (1st Cir. 2001). To satisfy that burden, ‘‘a
plaintiff must produce a smoking gun or at least a thick
cloud of smoke to support [her] allegations of discrimi-
natory treatment.’’ (Internal quotation marks omitted.)
Serby v. New York City Dept. of Education, 526 Fed.
Appx. 132, 135 (2d Cir. 2013); see also Morales v.
Rooney, 509 Fed. Appx. 9, 11 (2d Cir. 2013) (plaintiffs
in mixed-motive case ‘‘were required to adduce evi-
dence that did more than hint at the possibility of unfair
treatment on account of [an impermissible factor]’’
(internal quotation marks omitted)).
The plaintiff in the present case has not met that
burden. Nothing in the record before us suggests that
the defendant terminated the plaintiff’s employment
due to her epilepsy. The notes of the January 8, 2019
investigatory interview indicate that the defendant’s
human resources director specifically asked the plain-
tiff if she understood that the defendant’s alarm over
the January 2, 2019 incident ‘‘has nothing to do with
your epilepsy,’’ to which the plaintiff replied, ‘‘Yes I
do.’’ The written disciplinary notice that the defendant
furnished to the plaintiff likewise makes no mention of
her disability generally or epilepsy specifically. More-
over, the record before us demonstrates that, once
alerted to the plaintiff’s epilepsy following her first sei-
zure at work in the spring of 2018, the defendant proac-
tively took a number of steps to accommodate that
disability, as discussed more fully in part III of this
opinion. We therefore conclude that the plaintiff has
not raised a genuine issue of material fact as to whether
her disability played a substantial role in the defendant’s
decision to terminate her employment.
C
The trial court also concluded that the plaintiff failed
to raise a genuine issue of material fact pursuant to the
McDonnell Douglas-Burdine pretext model of analysis.
We concur with that determination.
‘‘[F]or the employee to first make a prima facie case of
discrimination [under the McDonnell Douglas-Burdine
model], the plaintiff must show: (1) the plaintiff is a
member of a protected class; (2) the plaintiff was quali-
fied 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. . . . The employer may
then rebut the prima facie case by stating a legitimate,
nondiscriminatory justification for the employment
decision in question. . . . This burden is one of produc-
tion, not persuasion; it can involve no credibility assess-
ment. . . . 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.’’ (Emphasis added; internal quota-
tion marks omitted.) Hartford Police Dept. v. Commis-
sion on Human Rights & Opportunities, 347 Conn.
241, 257, 297 A.3d 167 (2023); see also Perez-Dickson
v. Bridgeport, 304 Conn. 483, 515, 43 A.3d 69 (2012)
(after defendant articulates nondiscriminatory reason
for employment action, ‘‘the burden is then on the plain-
tiff to prove by a preponderance of the evidence that
the real reason for the disparate treatment was discrimi-
nation on the basis of membership in the protected
class’’); cf. 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 fact-
finder must believe the plaintiff’s explanation of inten-
tional discrimination’’ (emphasis in original)).
Assuming, arguendo, that the plaintiff can satisfy all
four prongs of her initial burden, she still cannot prevail,
as the defendant has stated a legitimate, nondiscrimina-
tory reason for its decision to terminate her employ-
ment. It is undisputed that, following an investigation
into the January 2, 2019 incident, the defendant con-
cluded that the plaintiff had been impaired at work, in
violation of the defendant’s policies prohibiting employ-
ees from being under the influence of drugs in the
workplace. The defendant communicated that nondis-
criminatory reason to the plaintiff when it met with her
on January 23, 2019, and memorialized it in its written
disciplinary notice.15 Because the defendant proffered
a legitimate, nondiscriminatory justification for its deci-
sion to terminate the plaintiff’s employment, the burden
was on the plaintiff to demonstrate that this reason ‘‘is
merely a pretext and that the decision actually was
motivated by illegal discriminatory bias.’’ (Internal quo-
tation marks omitted.) Hartford Police Dept. v. Com-
mission on Human Rights & Opportunities, supra, 347
Conn. 257. The plaintiff failed to submit any evidence
in that regard and does not argue on appeal that the
aforementioned reason was pretextual.16
Furthermore, we note that the plaintiff’s burden
under the final step of the McDonnell Douglas-Burdine
pretext model ‘‘is the same as the plaintiff’s initial bur-
den’’ under the mixed-motive model.17 Tyler v. Bethle-
hem Steel Corp., supra, 958 F.2d 1185. In part II B of
this opinion, we concluded that the plaintiff had not
met her initial burden under the mixed-motive model
of raising a genuine issue of material fact as to whether
her disability played a substantial role in the defendant’s
decision to terminate her employment. For that reason,
she likewise cannot satisfy her burden under the
McDonnell Douglas-Burdine pretext model to raise a
genuine issue of material fact that the real reason for
her termination was discrimination on the basis of mem-
bership in a protected class. See Perez-Dickson v.
Bridgeport, supra, 304 Conn. 515. We therefore con-
clude that the court properly rendered summary judg-
ment in favor of the defendant on the plaintiff’s claim
of disability discrimination.
III
The plaintiff also claims that the court improperly
rendered summary judgment on the second count of
her complaint, in which she alleged that the defendant
failed to accommodate her disability in violation of
§ 46a-60 (b) (1). We disagree.
Section 46a-60 (b) (1) requires employers to reason-
ably accommodate an employee’s disability. See Curry
v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d
925 (2008). ‘‘In order to survive a motion for summary
judgment on a reasonable accommodation claim, the
plaintiff must produce enough evidence for a reason-
able jury to find that (1) [she] is disabled within the
meaning of the [statute], (2) [she] was able to perform
the essential functions of the job with or without a
reasonable accommodation, and (3) [the defendant],
despite knowing of [the plaintiff’s] 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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,415–16.
The plaintiff concedes that she did not inform the
defendant of her epilepsy disability until she suffered
her first seizure at work in the spring of 2018. The
undisputed evidence shows that the defendant there-
after proactively implemented a number of accommo-
dations, including adoption of a medical alert protocol
titled ‘‘Alyssa Bartolotta Medical Alert—Seizure—Par-
tial Complex,’’ which documented seizure symptoms,
protocols, and emergency contacts for the plaintiff.18
The defendant also allowed the plaintiff, in her discre-
tion, to leave for the day whenever she experienced
a seizure. In addition, the defendant transferred the
plaintiff to a different classroom to ensure that she
would be accompanied by a teacher or another teaching
assistant at all times, and evenings in particular. In her
deposition testimony, the plaintiff admitted that this
transfer was an accommodation that the defendant pro-
vided for her safety, as well as the safety of students.
Those accommodations undoubtedly were reasonable
measures taken by the defendant upon learning of the
plaintiff’s disability, and the plaintiff has not argued
otherwise in this appeal.
Instead, she alleges that the defendant improperly
denied two distinct requests for accommodation pur-
portedly made by the plaintiff on October 8, 2018, and
January 15, 2019, respectively. We address each in turn.
A
We begin with the plaintiff’s contention that the
defendant improperly denied her request for an accom-
modation on October 8, 2018. At that time, the plaintiff
which requested that the defendant (1) store Valium in
the nurse’s office and (2) have the nurse administer it
to the plaintiff in the event that she had a seizure at
work.19 In her deposition testimony, the plaintiff
explained that this note constituted an accommodation
request ‘‘for the nurse to hold a few doses of Valium
locked up somewhere safe, and then for me to lay down
for [thirty] minutes to an hour, rest, and then hop back
up and go back to my classroom . . . .’’
In a sworn affidavit submitted in support of the defen-
dant’s motion for summary judgment, Sherer explained
that the defendant had a nurse at the facility only two
days each week. Moreover, that nurse was not permit-
ted to administer medications to staff, as such activities
exceeded the scope of her employment with the defen-
dant. For that reason, the defendant denied the plain-
tiff’s request in part. At the same time, the defendant
did not prohibit the plaintiff from having Valium at
the facility, as the plaintiff conceded in her deposition
testimony.20 Rather, the defendant simply denied the
plaintiff’s request to have the part-time nurse serve as
the custodian thereof.
On appeal, the plaintiff maintains that the defendant’s
denial of her October 8, 2018 accommodation request
violated her rights under § 46a-60 (b) (1). In response,
the defendant argues, inter alia, that this claim is time
barred, as the conduct in question occurred outside the
180 day limitation period contained in General Statutes
(Rev. to 2017) § 46a-82 (f).21 We agree with the defen-
dant.
Pursuant to § 46a-82 (f), any person claiming to be
aggrieved by an alleged discriminatory practice is
required to file a complaint with the commission ‘‘within
one hundred and eighty days after the alleged act of
discrimination . . . .’’ As our Supreme Court has held,
compliance with that time limit is mandatory unless
‘‘waiver, consent, or some other compelling equitable
tolling doctrine applies.’’ Williams v. Commission on
Human Rights & Opportunities, 257 Conn. 258, 284,
777 A.2d 645 (2001). In the present case, the plaintiff
filed her complaint with the commission on May 29,
2019. Any allegation of a discriminatory practice that
occurred prior to November 30, 2018, therefore, is
barred by that statute of limitations.
It is undisputed that both the plaintiff’s request for
an accommodation to store Valium at the facility and
the defendant’s response thereto occurred in October,
2018. Moreover, the plaintiff has not alleged that waiver,
consent, or some other compelling equitable tolling doc-
trine applies to that accommodation request. Accord-
ingly, her claim with respect to that request is barred
by the statute of limitations contained in § 46a-82 (f).
B
The plaintiff also claims that the defendant improp-
erly denied what she refers to in her appellate brief as
her ‘‘medical marijuana accommodation request.’’ We
do not agree.
First and foremost, the plaintiff has presented no
evidence that she made such a request of the defendant.
As she acknowledged in her complaint and deposition
testimony, she did not disclose her use of medical mari-
juana to the defendant until January 8, 2019. See foot-
note 7 of this opinion. Although she furnished a letter
from her physician on January 15, 2019, the physician
did not recommend or request that the defendant pro-
vide any accommodations to the plaintiff. Rather, the
physician simply stated: ‘‘[The plaintiff] has a medical
card to use medical marijuana for anxiety and seizures.
She uses a vapor at 8PM daily (2–4 puffs). If you have
any questions or concerns, please don’t hesitate to call.’’
Furthermore, the plaintiff was asked during her deposi-
tion ‘‘[w]here in [her] request for accommodation is
there any reference at all to medical marijuana,’’ to
which she replied: ‘‘There isn’t.’’ The plaintiff also was
asked if ‘‘there [was] anything else other than [denying
the request] to maintain custody of your Valium in the
nurse’s office, is there anything else that we did not
accommodate from your request for accommodation?’’
The plaintiff answered, ‘‘No.’’ On the record before us,
we cannot conclude that the plaintiff requested an
accommodation for her medical marijuana use.
In addition, it is unclear what—if any—accommoda-
tion the defendant could make with respect to the plain-
tiff’s use of medical marijuana short of allowing her
to appear impaired in the workplace. The plaintiff’s
medical marijuana prescription called for her to take
between two and four ‘‘puffs’’ of medical marijuana
every day at 8 p.m. In her deposition testimony, the
plaintiff explained that, when she took the medication
as directed, she would not become impaired and that
she would never depart from those directions.
To the extent that the plaintiff is suggesting that the
defendant should permit her to disregard the directions
on her medical marijuana prescription to allow her (1)
to use it during the workday or (2) to appear at the
facility in an impaired state, she has provided no legal
authority that supports that bold proposition. In this
regard, we reiterate that the act expressly provides that
‘‘[n]othing in this subdivision shall restrict an employ-
er’s ability to prohibit the use of intoxicating substances
during work hours or restrict an employer’s ability to
discipline an employee for being under the influence
of intoxicating substances during work hours.’’ General
Statutes § 21a-408p (b) (3).
The sole case relied on by the plaintiff is Stewart v.
Snohomish County PUD No. 1, 262 F. Supp. 3d 1089(W.D. Wn. 2017), aff’d, 752 Fed. Appx. 444 (9th Cir.
2018), a federal case applying the state law of Washing-
ton. In her appellate brief, the plaintiff notes that ‘‘the
trial court’s decision makes no mention of the Stewart
case.’’ For three reasons, that silence is understandable.
First, because Stewart involves the proper applica-
tion of Washington state law, it is both inapposite and
nonbinding authority. Second, that case is factually dis-
tinct from the present case in several respects. Stewart
involved a plaintiff who took prescription medication
during the workday to treat an existing disability and
whose physician provided a letter to the defendant
employer explaining that the plaintiff was ‘‘ ‘able to
work without restrictions’ ’’ after the medication was
administered. Id., 1094, 1097. By contrast, the plaintiff
here was not directed to take medical marijuana during
the workday, but rather was prescribed to take it at 8
p.m. each day. Moreover, unlike the plaintiff in Stewart,
the plaintiff in the present case did not inform her
employer that she was under such treatment and did not
provide any communication from her treating physician
indicating that she could work without restriction after
taking medical marijuana during the day. In addition,
the plaintiff in Stewart, who worked as a customer
service representative at a utility company; id., 1093;
performed markedly different duties. Whereas the
plaintiff in Stewart primarily assisted ‘‘customers in
person or over the phone with issues with their public
utility services and billing’’; id.; the plaintiff here was
entrusted with the care of approximately twenty pre-
school children in a classroom setting. Indeed, her
employment as a teaching assistant required satisfac-
tion of certain statutory prerequisites, which speaks to
the gravity of her position. See, e.g., Friedenberg v.
School Board of Palm Beach County, 911 F.3d 1084,
1098 (11th Cir. 2018) (‘‘[O]ur schools have a singular
custodial and tutelary responsibility for our nation’s
most precious resource—our children. . . . Our teach-
ers . . . are directly given the responsibility to ensure
the safety and protection of our children. Each family
sending a child into the care and custody of [a school]
is counting on [its] teachers not only to educate them,
but to keep them safe. It is to them that we look to
safeguard the classroom and protect our students.’’).
Third, and perhaps most significantly, the District
Court in Stewart found that, although the plaintiff in
that case had ‘‘exhibited signs of impairment at work’’;
Stewart v. Snohomish County PUD No. 1, supra, 262
F. Supp. 3d 1096; the defendant had not shown that
‘‘the effects of [her] medication . . . prevented her
from properly performing her job’’ as a customer service
representative. Id., 1104. In the present case, the plain-
tiff never has suggested that she can properly perform
her job as a preschool teaching assistant while impaired
by the use of medical marijuana.
In light of the foregoing, we conclude that no genuine
issue of material fact exists as to whether the plaintiff
made a medical marijuana accommodation request or
whether the defendant violated § 46a-60 (b) (1) by deny-
ing such a request. The court, therefore, properly ren-
dered summary judgment on the second count of the
plaintiff’s complaint.
IV
As a final matter, the plaintiff claims that the court
improperly concluded that no genuine issue of material
fact exists as to whether the defendant violated § 31-
51x by requiring her to take a drug test on January 8,
2019. She contends that the defendant lacked a reason-
able suspicion to do so. We disagree.
Section 31-51x provides in relevant part: ‘‘(a) No
employer may require an employee to submit to a urinal-
ysis drug test unless the employer has reasonable suspi-
cion that the employee is under the influence of drugs
or alcohol which adversely affects or could adversely
affect such employee’s job performance. . . .’’ That
statute, ‘‘in plain language, prohibits an employer from
requiring an employee to submit to a urinalysis drug
test without reasonable suspicion.’’ Tomick v. United
Parcel Service, Inc., 135 Conn. App. 589, 608–609, 43
A.3d 722, cert. denied, 305 Conn. 920, 47 A.3d 389 (2012).
Neither the General Statutes nor any state regulation
defines the term ‘‘reasonable suspicion’’ as it is used
in § 31-51x. In Poulos v. Pfizer, Inc., 244 Conn. 598,
606, 711 A.2d 688 (1998), our Supreme Court explained
that § 31-51x ‘‘was enacted as part of a comprehensive
legislative plan regulating workplace drug testing’’ and
‘‘was intended to provide the same protections to pri-
vate employees in Connecticut as those protections that
are afforded to employees of the federal government
by the fourth amendment to the United States constitu-
tion.’’ The court further opined that ‘‘the issue of volun-
tary consent to drug testing under § 31-51x should be
resolved in a manner consistent with federal fourth
amendment constitutional law.’’ Id., 606–607. In his con-
curring opinion, Justice McDonald emphasized that,
under established fourth amendment jurisprudence,
‘‘[r]easonable suspicion is a lesser standard . . . than
probable cause. . . . The collective knowledge of the
employer should determine reasonable suspicion for
the drug testing.’’ (Citations omitted; internal quotation
marks omitted.) Id., 619 (McDonald, J., concurring).
Guided by that precedent, it is appropriate to look
to the criminal context in ascertaining the applicable
standard for reasonable suspicion. In that context, our
Supreme Court has observed that ‘‘[r]easonable suspi-
cion is a less demanding standard than probable cause
not only in the sense that reasonable suspicion can be
established with information that is different in quantity
or content [from] that required to establish probable
cause, but also in the sense that reasonable suspicion
can arise from information that is less reliable to show
probable cause. . . . Reasonable and articulable suspi-
cion is an objective standard that focuses not on the
actual state of mind of the police officer, but on whether
a reasonable person, having the information available
to and known by the police, would have had that level
of suspicion. . . . [I]n justifying [a] particular intrusion
the police officer must be able to point to specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that
intrusion.’’ (Citation omitted; internal quotation marks
omitted.) State v. Lewis, 333 Conn. 543, 569, 217 A.3d
576 (2019).
In her appellate brief, the plaintiff submits that ‘‘[i]t
is undisputed that the defendant lacked reasonable sus-
picion on January 8, the day it ordered the plaintiff to
submit to drug testing.’’ We disagree.
Prior to January 8, 2019, the defendant had no knowl-
edge of the plaintiff’s medical marijuana use. Shortly
after the January 2, 2019 incident transpired, Doty noti-
fied Licki and Erazo of her concern that the plaintiff
‘‘was not okay to be in the classroom with the children
because she was still feeling the effects of the mari-
juana.’’ In response, the defendant opened an investiga-
tion into the allegations of drug use by the plaintiff. As
part of that investigation, Goodison interviewed Licki,
the teacher who worked with the plaintiff on a daily
basis. Licki informed her that, for approximately two
weeks prior to the January 2, 2019 incident, she
observed the plaintiff ‘‘to be forgetful, droopy, and
unsteady on her feet.’’ Licki at that time expressed con-
cern regarding the safety of children in the plaintiff’s
care. The defendant also received a letter from
Badenhop, who stated that, on January 3, 2019, the
plaintiff told him that ‘‘she was on medical marijuana.’’
On January 8, 2019, Goodison and Erazo met with
the plaintiff to discuss the report that she was impaired
in the workplace. At that time, the plaintiff for the first
time notified the defendant that she used medical mari-
juana. Moreover, as Sherer noted in her affidavit, ‘‘[d]ur-
ing [that] interview . . . [the plaintiff] admitted that
she reported to work impaired and said the cause was
taking too much medical marijuana.’’ The notes of that
interview similarly state in relevant part: ‘‘When pre-
sented with the allegations of what was reported [by
Doty] . . . [the plaintiff] did not deny showing up to
work impaired and stated: ‘I use a disposable vape pen
which gives [between fifty and seventy] puffs [of medi-
cal marijuana]. I wasn’t keeping track and I believe the
pen ran out. I take it at [8 p.m.]. . . . It is supposed to
wear off within [eight] hours and I take it right after I
take the Valium and other seizure medication. There is
a possibility I may have used too much [and] more than
prescribed [because] I ran out and had [two] seizures
the following day. I am prescribed [four] puffs at [a]
time.’’
The interview notes also contain the following collo-
quy between the plaintiff and Erazo:
‘‘[Erazo]: Do you understand that you cannot show
up to work impaired because the children require full
attention and if you are impaired you are unable to
respond quickly to their needs?
‘‘[The Plaintiff]: Yes, I understand, and I thought [the
marijuana] would have worn off by then. My mother is
[going to] kill me and I’m mad at myself because I knew
I should have told you guys. . . . You guys have been
so nice and accommodating and I messed up.’’
In light of (1) the observations of the plaintiff in the
preschool workplace by Doty and Licki, (2) the letter
from Badenhop, (3) the plaintiff’s disclosure during the
investigatory interview that she used medical mari-
juana, (4) the plaintiff’s admission during that interview
that she reported to work impaired, (5) the plaintiff’s
statement that she may have taken too much medical
marijuana prior to the January 2, 2019 incident, and (6)
her statement that she ‘‘messed up,’’ we agree with the
trial court that no genuine issue of material fact exists
as to whether the defendant had a reasonable suspicion
to require the plaintiff to take a drug test following her
investigatory interview on January 8, 2019. A reasonable
person armed with that information would suspect that
the plaintiff was under the influence of drugs in the
classroom, which could adversely affect her job perfor-
mance. The court, therefore, properly rendered judg-
ment on the fourth count of the plaintiff’s complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
It is undisputed that the plaintiff met the statutory requirements for
that position.
2
During her deposition, the plaintiff testified that the defendant conducted
an interview with her prior to extending an offer of employment. She further
testified that, at that time, she did not apprise the defendant of the fact that
she had epilepsy.
3
Valium, known also as diazepam; see State v. Ruscoe, 119 Conn. App.
834, 837, 989 A.2d 667, cert. denied, 296 Conn. 903, 992 A.2d 330 (2010); is
a controlled substance under Connecticut law. See General Statutes § 21a-
240 (9); Regs., Conn. State Agencies § 21a-243-10 (a) (15).
4
That note contained a list of the plaintiff’s medications. The plaintiff’s
physician then stated that, if the plaintiff ‘‘were to have a seizure at work,
please send her to the nurse’s office. The nurse can administer the Valium.’’
5
That protocol was titled ‘‘Protocol to follow when staff has a seizure’’
and stated: ‘‘Protocol: Classroom staff will place [the plaintiff] in a safe
place in the classroom. Classroom staff will call Health Manager, [Education
and Family Services Manager], Assistant Director or Director to let us know
[that the plaintiff] had a seizure. In the event that no one can be found
classroom staff will call Chuc [at extension] 2235 and she will find someone
to help. [They then] will go to the classroom and check on [the plaintiff].
[The plaintiff] will determine if she wants to stay or go home. In the event
that [the plaintiff] decides to go home a manager will call the emergency
contacts that staff provided to us. Always calling first [the plaintiff’s
mother].’’
6
In her affidavit, Scherer averred that exhibit A-7 submitted by the defen-
dant was ‘‘a true and accurate copy of the investigation and interview notes
that were prepared in connection with [the defendant’s] investigation.’’
7
It is undisputed that the plaintiff did not inform the defendant of her
medical marijuana use until the investigation into the January 2, 2019 incident
commenced, as she admitted in her deposition testimony. In her complaint,
she likewise acknowledged that, ‘‘[o]n January 8, 2019, the plaintiff notified
the defendant that she takes prescribed medical marijuana and showed her
state medical card to the defendant.’’
8
Although the act has been amended by the legislature since the events
underlying this appeal; see, e.g., Public Acts, Spec. Sess., June, 2021, No.
21-1, § 77; those amendments have no bearing on the merits of this appeal.
We therefore refer to the current revision of the act in this opinion.
9
In her appellate brief, the plaintiff argues, with respect to her use of
medical marijuana, that ‘‘[t]erminating an employee for using medication
for a disability is the equivalent of terminating an employee because of her
disability.’’ She has provided no legal authority for that bald assertion, which
runs contrary to the plain language of § 21a-408p (b) (3).
10
General Statutes § 46a-60 provides in relevant part: ‘‘(b) It shall be a
discriminatory practice in violation of this section . . . (1) For an employer
. . . to discharge from employment any individual or to discriminate against
any individual . . . because of the individual’s . . . present or past history
of mental disability, intellectual disability, learning disability, physical dis-
ability . . . .’’
Under CFEPA, ‘‘ ‘[p]hysically disabled’ refers to any individual who has
any chronic physical handicap, infirmity or impairment, whether congenital
or resulting from bodily injury, organic processes or changes or from illness,
including, but not limited to, epilepsy . . . .’’ General Statutes § 46a-51 (15).
11
In her complaint, the plaintiff defined her disability as chronic epilepsy.
12
To the extent that the plaintiff complains that the trial court’s discussion
of those respective models of analysis was not exhaustive enough, we note
that she did not seek an articulation of the court’s judgment in any respect.
See Practice Book § 66-5; see also Orcutt v. Commissioner of Correction,
284 Conn. 724, 739 n.25, 937 A.2d 656 (2007) (‘‘in the absence of an articula-
tion . . . [an appellate court will] presume that the trial court acted prop-
erly’’).
13
It is undisputed that the plaintiff is within a protected class under CFEPA
due to her physical disability. See footnote 10 of this opinion.
14
At times, the decisional law of this state has reflected a dichotomy with
respect to the evidentiary framework involved in the mixed-motive and the
McDonnell Douglas-Burdine pretext models of analysis. See, e.g., Commis-
sion on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn.
263, 277, 25 A.3d 632 (2011) (Price Waterhouse mixed-motive standard
applies ‘‘where there is direct evidence of discrimination’’ (internal quotation
marks omitted)); Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 425, 944
A.2d 925 (2008) (describing McDonnell Douglas-Burdine model as ‘‘circum-
stantial evidence [framework]’’); Jacobs v. General Electric Co., supra, 275
Conn. 401 (‘‘[e]mployment discrimination . . . can be proven either
directly, with evidence that the employer was motivated by a discriminatory
reason, or indirectly, by proving that the reason given by the employer was
pretextual’’). Our Supreme Court nonetheless has instructed that a plaintiff’s
burden under the mixed-motive model may be established ‘‘through direct
. . . or circumstantial evidence . . . .’’ Levy v. Commission on Human
Rights & Opportunities, supra, 236 Conn. 105.
As the United States Court of Appeals for the Second Circuit observed,
‘‘we [previously] have equated direct evidence with evidence that shows
that the impermissible criterion played some part in the decision-making
process. . . . [The defendant] would have us define direct evidence as non-
circumstantial evidence. But the basic problem with this touchstone is that
direct evidence of intent cannot exist, at least in the sense of evidence which,
if believed, would establish the ultimate issue of intent to discriminate. . . .
Normally, direct evidence is described as evidence tending to show, without
resort to inference, the existence of a fact in question. This is often contrasted
with circumstantial, or indirect evidence, which requires the factfinder to
take certain inferential steps before the fact in question is proved. But . . .
all knowledge is inferential.’’ (Citations omitted; internal quotation marks
omitted.) Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir.), cert.
denied, 506 U.S. 826, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). The court
continued: ‘‘Direct evidence, it seems, is an unfortunate choice of terminol-
ogy for the sort of proof needed to establish a mixed-motives case. Direct
and indirect describe not the quality of the evidence presented, but the
manner in which the plaintiff proves his case. Strictly speaking, the only
direct evidence that a decision was made because of an impermissible factor
would be an admission by the decisionmaker such as I fired him because
he was too old. Even a highly-probative statement like You’re fired, old man
still requires the factfinder to draw the inference that the plaintiff’s age had
a causal relationship to the decision. But juries have always been allowed
to draw such inferences.’’ (Internal quotation marks omitted.) Id., 1185. The
court thus clarified that the mixed-motive model of analysis ‘‘does not require
. . . direct evidence of discriminatory animus (at least not in the sense of
direct and circumstantial evidence). What is required is simply that the
plaintiff submit enough evidence that, if believed, could reasonably allow
a jury to conclude that the adverse employment consequences were because
of an impermissible factor.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 1187.
15
In that written disciplinary notice, the defendant stated in relevant part
that, during the interview on January 8, 2019, the plaintiff ‘‘admitted that
[she uses] medical marijuana and did show up to work impaired and that
[she] may be abusing it. In addition, during multiple phone calls with the
[Human Resources] Director, [she] did not deny showing up to work
impaired.’’ That notice further stated that the plaintiff violated ‘‘company
rules’’ by reporting to work ‘‘impaired as [she] admitted . . . to another
staff member’’ and then concluded: ‘‘In showing up to work while impaired
[the plaintiff] violated the [applicable] standard of care . . . . [The plaintiff]
failed to follow company policy and procedures; therefore, [her] employment
with [the defendant] is being terminated, effective immediately.’’
16
In her appellate brief, the plaintiff does not refute the court’s conclusion
that she failed to offer any proof that the defendant’s stated rational for
terminating her employment was pretextual and insists that ‘‘[t]his is not a
pretext case.’’
17
Under the mixed-motive model of analysis, the plaintiff’s initial burden
requires proof ‘‘that an illicit motive played a substantial factor in the
[employment] decision . . . .’’ Kirk v. Hitchcock Clinic, supra, 261 F.3d 78.
Under the final step of the McDonnell Douglas-Burdine pretext model, the
plaintiff’s burden in opposing a defendant’s motion for summary judgment
is to present evidence that the employment decision ‘‘actually was motivated
by illegal discriminatory bias.’’ (Internal quotation marks omitted.) Hartford
Police Dept. v. Commission on Human Rights & Opportunities, supra, 347
Conn. 257.
18
A copy of that protocol was posted on the nurse’s desk ‘‘so that staff
knew who to contact and how to respond when [the plaintiff] had a seizure’’
in the workplace.
19
The record before us does not contain a copy of that note from the
plaintiff’s physician. It nevertheless is undisputed that the plaintiff submitted
that note to the defendant on October 8, 2018, as the defendant admitted
in its answer to the plaintiff’s complaint. Moreover, in support of its motion
for summary judgment, the defendant furnished a report dated October 15,
2018, from Erazo to Goodison regarding the note that the defendant received
from the plaintiff’s physician, which states in relevant part: ‘‘[The] note
includ[ed] a list of the plaintiff’s medications. The note stated that if the
plaintiff ‘were to have a seizure at work, please send her to the nurse’s
office. The nurse can administer the Valium. Please allow her to rest in the
nurse’s office for [thirty to sixty] minutes.’ ’’
20
In her deposition testimony, the plaintiff stated that Erazo instructed
her to keep her Valium in her purse while at the facility and admitted that
she was never told that she could not have her Valium at work.
21
All references to § 46a-82 (f) in this opinion are to the 2017 revision of
that statute, which the defendant pleaded as a special defense. In moving
for summary judgment on the plaintiff’s failure to accommodate claim, the
defendant alternatively argued that her claim was time barred and that it
failed on its merits and has renewed both arguments in its appellate brief
in this appeal.