Heyward v. Judicial Dept.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
THERESA D. S. HEYWARD ET AL. v. JUDICIAL
DEPARTMENT OF THE STATE
OF CONNECTICUT ET AL.
(AC 39232)
DiPentima, C. J., and Keller and Pellegrino, Js.
Syllabus
The plaintiff T, a clerk in a state courthouse, sought to recover damages from
her employer, the defendant Judicial Department, and her supervisor,
the defendant A, for their alleged employment discrimination in violation
of the applicable provision (§ 46a-60 [a]) of the Connecticut Fair Employ-
ment Practices Act. In an amended complaint, T claimed, inter alia,
that the defendants had created a hostile work environment and had
discriminated against her on the basis of her race. The trial court dis-
missed all counts of the complaint as against A and all but the hostile
work environment and race discrimination counts as against the state,
and T appealed to this court, which dismissed the appeal in part and
affirmed the judgment in part. Thereafter, the trial court granted the
state’s motion to strike the remaining two counts of the complaint,
concluding, inter alia, that the complaint failed to allege sufficient facts
to support her claims of hostile work environment and race discrimina-
tion. On T’s appeal to this court, held:
1. The trial court properly struck T’s hostile work environment claim; the
conduct alleged by T in her complaint was not sufficiently severe or
pervasive so as to alter the conditions of her employment and to create
a hostile work environment, as T alleged only two instances of racial
remarks, with one of those remarks having been made toward a third
person, and two instances of inappropriate conduct alleged to have
occurred within a one year span did not meet the high standard of
severe and pervasive, and the remainder of T’s allegations concerned
routine workplace matters, such as requests for time off, lunch breaks,
performance evaluations and favoritism, which were not unreasonable
conditions to be subjected to in the employment context.
2. The trial court properly struck T’s claim of race discrimination, T having
pleaded insufficient facts to establish a prima facie case of discrimina-
tion; T did not allege any facts demonstrating that she had been subjected
to an adverse employment action by her employer, as her allegations
that A had placed a disciplinary e-mail in her personnel file and had
yelled at her in front of coworkers and members of the public for having
given incorrect information did not constitute an adverse employment
action in the absence of evidence showing that T had been terminated,
demoted or given diminished responsibilities, or that she suffered a
decrease in salary or material loss in benefits.
Argued October 10—officially released December 19, 2017
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
Waterbury, where the court, Zemetis, J., granted in part
the defendants’ motion to dismiss, rendered judgment
thereon, and transferred the matter to the judicial dis-
trict of Hartford; thereafter, the plaintiffs appealed to
this court, which dismissed the appeal in part and
affirmed the judgment in part; subsequently, the court,
Noble, J., granted the named defendant’s motion to
strike, and the plaintiffs appealed to this court; there-
after, the court, Noble, J., granted the named defen-
dant’s motion for judgment and rendered judgment
thereon, and the plaintiffs filed an amended appeal.
Affirmed.
Eddie Z. Zyko, for the appellants (plaintiffs).
Ann E. Lynch, assistant attorney general, with whom,
on the brief, was George Jepsen, attorney general, for
the appellee (named defendant).
Opinion
PELLEGRINO, J. In this action arising out of alleged
workplace discrimination, the plaintiff Theresa D. S.
Heyward appeals from the judgment of the trial court
rendered in favor of the defendant Judicial Department
of the state of Connecticut.1 On appeal, the plaintiff
claims that the court erred in granting the defendant’s
motion to strike her hostile work environment and
racial discrimination claims. We disagree and, accord-
ingly, affirm the judgment of the trial court.
In Heyward v. Judicial Department, 159 Conn. App.
794, 797–98, 124 A.3d 920 (2015), this court set forth
the following undisputed facts and procedural history:
‘‘[The plaintiff], who is African-American, was
employed as an administrative clerk in the clerk’s office
for the Superior Court in Meriden. At all relevant times,
she was the only nonwhite employee working in the
Meriden clerk’s office.
‘‘On July 18, 2012, [the plaintiff] filed a complaint with
the Commission on Human Rights and Opportunities
(CHRO), alleging that she had been subjected to harass-
ment, discrimination and denied time off for medical
appointments due to her race and gender, and as retalia-
tion for engaging in protected activities. In her CHRO
complaint, [the plaintiff] named the [defendant] as the
sole respondent. She alleged that her supervisor,
[Robert A.] Axelrod, had subjected her to a hostile work
environment on the basis of her sex and race . . . .
‘‘On March 7, 2013, [the plaintiff] received a release
of jurisdiction letter from the CHRO, authorizing her
to bring an action in the Superior Court for the claims
alleged in her CHRO complaint. On August 8, 2013, [the
plaintiff and her husband]2 filed a six count amended
complaint [in the Superior Court] against the [defendant
and Axelrod]. The first five counts were brought by
[the plaintiff] against [the defendant and Axelrod], and
alleged, respectively, creation of a hostile work environ-
ment, race based discrimination, disability discrimina-
tion, negligent infliction of emotional distress, and
defamation. . . .
‘‘The [defendant] moved to dismiss the amended com-
plaint on August 14, 2013, arguing that the court lacked
subject matter jurisdiction to hear the case for a number
of reasons. With respect to the [defendant], the court
granted the motion to dismiss . . . [as to] counts
[three] four, five, and six . . . .’’ (Footnotes added
and omitted.)
On February 21, 2014, the plaintiff appealed from
the court’s dismissal of the latter four counts of her
amended complaint. On September 15, 2015, this court
dismissed the appeal as to the defendant for lack of
subject matter jurisdiction, concluding that the plaintiff
had not appealed from a final judgment. See id., 805.
to strike the remaining two counts of the plaintiff’s
amended complaint, alleging hostile work environment
and race discrimination. On December 10, 2015, the
plaintiff filed her memorandum in opposition to the
defendant’s motion to strike. On April 12, 2016, the
court issued a memorandum of decision granting the
defendant’s motion to strike on the ground that the
plaintiff’s amended complaint did not allege sufficient
facts to support claims of hostile work environment or
race discrimination, and, in the alternative, that the
plaintiff’s memorandum in opposition was inadequately
briefed.3 This appeal followed.4 Additional facts will be
set forth as necessary.
The plaintiff claims that the court improperly struck
her hostile work environment and race discrimination
claims and contends that she is ‘‘entitled to the broadest
construction of the allegations of the amended com-
plaint without [formulaic words] being required.’’ We
disagree and conclude that the plaintiff has pleaded
insufficient facts to state a claim of hostile work envi-
ronment or race discrimination.
We first set forth the appropriate standard of review
in an appeal from the granting of a motion to strike.
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling . . . is plenary.’’ (Internal quotation
marks omitted.) Amato v. Hearst Corp., 149 Conn. App.
774, 777, 89 A.3d 977 (2014). ‘‘The role of the trial court
[is] to examine the [complaint], construed in favor of
the [plaintiff], to determine whether the [pleading party
has] stated a legally sufficient cause of action.’’ (Internal
quotation marks omitted.) Szczapa v. United Parcel
Service, Inc., 56 Conn. App. 325, 328, 743 A.2d 622,
cert. denied, 252 Conn. 951, 748 A.2d 299 (2000). ‘‘It is
fundamental that in determining the sufficiency of a
complaint challenged by a defendant’s motion to strike,
all well-pleaded facts and those facts necessarily
implied from the allegations are taken as admitted. . . .
For the purpose of ruling upon a motion to strike, the
facts alleged in a complaint, though not the legal conclu-
sions it may contain, are deemed to be admitted. . . .
A motion to strike is properly granted if the complaint
alleges mere conclusions of law that are unsupported by
the facts alleged.’’ (Internal quotation marks omitted.)
Amato v. Hearst Corp., supra, 777–78.
The following additional facts are necessary for our
discussion. Our decision in the plaintiff’s prior appeal
summarizes the well-pleaded facts set forth in para-
graphs nine and ten of the amended complaint as fol-
lows: ‘‘Axelrod allegedly told an African-American
police officer that he ‘must be working hard’ because he
was ‘black.’ Margaret Malia, [the plaintiff’s] coworker,
allegedly stated that she ‘did not believe in interracial
relationships . . . .’ [The plaintiff] was also denied
vacation time and medical leave because of ‘operational
need,’ even though Axelrod routinely granted other
employees requests for time off. Axelrod yelled at [the
plaintiff] in front of coworkers and members of the
public, and interrupted [the plaintiff’s] conversations,
both during work and while she was on breaks, to
discuss work-related matters. [The plaintiff] felt that
Axelrod showed Malia ‘preferential treatment’ at her
expense. Axelrod placed a ‘defamatory, accusatory and
baseless’ e-mail in [the plaintiff’s] personnel file. [The
plaintiff] believed that the state did not do enough to
protect her from the favoritism that Axelrod showed
other employees.’’ Heyward v. Judicial Department,
supra, 159 Conn. App. 798 n.3.
In granting the defendant’s motion to strike, the court
stated: ‘‘[The plaintiff] has not asserted in her objection
that in fact the conduct alleged in her complaint created
a workplace ‘permeated with discriminatory intimida-
tion, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of [her] employment
and create an abusive working environment.’ Brittel v.
Dept. of Correction, [247 Conn. 148, 166–67, 717 A.2d
1254 (1998)]. The court does not find that such has
been alleged. Similarly, the plaintiff has not objected
to the defendant’s motion to strike on the ground that
her complaint in fact alleges an adverse employment
action as a consequence of the state’s conduct as is
required to state a claim for [race] discrimination.
Buster v. Wallingford, [557 F. Supp. 2d 294 (D. Conn.
2008)]. A review of the complaint indicates no such
pleading.’’
With these factual allegations and legal principles
in mind, we address the sufficiency of the plaintiff’s
pleadings with respect to her hostile work environment
and race discrimination claims.
I
We first address the plaintiff’s hostile work environ-
ment claim. The plaintiff, in count one of her amended
complaint, alleges the following: ‘‘The conduct of the
[defendant and Axelrod] created a hostile work environ-
ment for [the plaintiff] in violation of the Connecticut
Fair Employment Practices Act, [General Statutes
§ 46a-51 et seq.] insofar as the conduct was sufficiently
severe and pervasive so as to alter the terms and condi-
tions of her employment and . . . Axelrod’s conduct
was egregiously not in compliance with the pertinent
law/regulations/policies he was charged with abiding
by/enforcing that the defendant . . . did not, or
improperly so, train him to do/oversee him.’’ The plain-
tiff contends that the court improperly struck this count
because she pleaded in accordance with Brittel v. Dept.
of Correction, supra, 247 Conn. 166–67. We disagree
and conclude that the facts alleged by the plaintiff are
not sufficiently severe or pervasive so as to alter the
conditions of her employment and to create a hostile
work environment.
We begin by setting forth the applicable legal frame-
work. General Statutes § 46a-60 (a) (1) provides in rele-
vant part: ‘‘It shall be a discriminatory practice . . .
[f]or an employer, by the employer or the employer’s
agent . . . to discriminate against such individual in
compensation or terms, conditions or privileges of
employment because of the individual’s race . . . .’’ In
order for the plaintiff ‘‘[t]o establish a claim of hostile
work environment, [under § 46a-60 (a) (1)] the work-
place [must be] permeated with discriminatory intimi-
dation, ridicule and insult that is sufficiently severe
or pervasive to alter the conditions of the [plaintiff’s]
employment and create an abusive working environ-
ment . . . . In order to be actionable . . . [the work-
ing] environment must be both objectively and
subjectively offensive, one that a reasonable person
would find hostile or abusive, and one that the [plaintiff]
in fact did perceive to be so. . . . [W]hether an environ-
ment is sufficiently hostile or abusive [is determined]
by looking at all the circumstances . . . .’’ (Citations
omitted; internal quotation marks omitted.) Brittell v.
Dept. of Correction, supra, 247 Conn. 166–67; see also
Patino v. Birken Mfg. Co., 304 Conn. 679, 699, 41 A.3d
1013 (2012). ‘‘[T]here must be more than a few isolated
incidents of racial enmity . . . meaning that [i]nstead
of sporadic racial slurs, there must be a steady barrage
of opprobrious racial comments . . . . Thus, whether
racial slurs constitute a hostile work environment typi-
cally depends on the quantity, frequency, and severity
of those slurs . . . considered cumulatively in order to
obtain a realistic view of the work environment . . . .’’
(Internal quotation marks omitted.) Feliciano v. Auto-
zone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015).
In the present case, the plaintiff alleged only two
instances of racial remarks, with one of those remarks
being made toward a third person. ‘‘Although not bound
by it, we review federal precedent concerning employ-
ment discrimination for guidance in enforcing our own
antidiscrimination statutes.’’ (Internal quotation marks
omitted.) Thomson v. Dept. of Social Services, 176
Conn. App. 122, 131, 169 A.3d 256, cert. denied, 327
Conn. 962, A.3d (2017). The United States
Supreme Court has held that the ‘‘mere utterance of an
. . . epithet which endangers offensive feelings in an
employee . . . does not sufficiently affect the condi-
tions of employment to implicate Title VII [of the Civil
Rights Act of 1964].’’ (Citation omitted; internal quota-
tion marks omitted.) Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
Furthermore, two instances of inappropriate conduct
within a one year span do not meet the high standard
of severe and pervasive. See, e.g., Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (holding
that two isolated incidents of inappropriate sexual con-
duct not sufficient to establish liability for hostile work
environment); Stembridge v. New York, 88 F. Supp. 2d
276, 286 (S.D.N.Y. 2000) (holding that seven instances
over three year span, which included indirect racial
remarks, direct racial slurs, and hanging of black doll
near plaintiff’s workstation, were insufficient to support
finding of hostile work environment); Carter v. Cornell
University, 976 F. Supp. 224, 232 (holding that six racial
remarks over three years did not constitute hostile work
environment), aff’d, 159 F.3d 1345 (2d Cir. 1998). Addi-
tionally, the remainder of the plaintiff’s allegations con-
cern routine workplace matters, such as requests for
time off, lunch breaks, performance evaluations and
favoritism. These are not unreasonable conditions to
be subjected to in the employment context. See Pero-
deau v. Hartford, 259 Conn. 729, 757, 792 A.2d 752
(2000) (‘‘individuals reasonably should expect to be
subject to other vicissitudes of employment, such as
workplace gossip, rivalry, personality conflicts and the
like’’). We therefore conclude that the conduct alleged
by the plaintiff is not sufficiently severe or pervasive
to establish a claim of hostile work environment, and,
accordingly, the trial court properly struck the plain-
tiff’s hostile work environment claim.
II
We next address the sufficiency of the plaintiff’s race
discrimination claim. The plaintiff, in count two of her
amended complaint, alleges the following: ‘‘The con-
duct of the defendants was race discrimination against
[the plaintiff] in violation of the Connecticut Fair
Employment Practices Act and . . . Axelrod’s conduct
was egregiously not in compliance with the pertinent
law/regulations/policies he was charged with abiding
by/enforcing that the defendant . . . did not, or
improperly so, train him to do/oversee him.’’ The plain-
tiff contends that this language, when read in conjunc-
tion with paragraphs nine and ten, ‘‘manifestly means
that an adverse employment action . . . has been
alleged . . . .’’ We disagree and conclude that the plain-
tiff did not allege any facts demonstrating that she was
subjected to an adverse employment action by the
defendant.
The following legal principles guide our analysis of
the plaintiff’s discrimination claim. ‘‘The [legal] frame-
work this court employs in assessing disparate treat-
ment discrimination claims under Connecticut law was
adapted from the United States Supreme Court’s deci-
sion in McDonnell Douglass Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its
progeny.’’5 (Internal quotation marks omitted.) Tomick
v. United Parcel Services, Inc., 157 Conn. App. 312,
325, 115 A.3d 1143 (2015), aff’d, 324 Conn. 470, 153 A.3d
615 (2016). Accordingly, under our state law, in order
for the plaintiff to prevail on her claim of race discrimi-
nation based on disparate treatment, she must first
establish a prima facie case of discrimination. ‘‘To
establish a prima facie case of discrimination . . . the
[plaintiff] must demonstrate that (1) [she] is in a pro-
tected class; (2) [she] was qualified for the position; (3)
[she] suffered an adverse employment action; and (4)
that the adverse action occurred under circumstances
giving rise to an inference of discrimination.’’ (Empha-
sis added; internal quotation marks omitted.) Jones v.
Dept. of Children & Families, 172 Conn. App. 14, 25,
158 A.3d 356 (2017). ‘‘A plaintiff sustains an adverse
employment action if he or she endures a materially
adverse change in the terms and conditions of employ-
ment. . . . To be materially adverse a change in work-
ing conditions must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.
. . . [A]n adverse employment action [has been
defined] as a significant change in employment status,
such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a deci-
sion causing a significant change in benefits.’’ (Citation
omitted; internal quotation marks omitted.) Amato v.
Hearst Corp., supra, 149 Conn. App. 781; id., 783 (hold-
ing that employee failed to allege adverse employment
action as result of being placed on performance
improvement plan because she did not additionally
allege that her salary or benefits had decreased, or that
there was change in employment status).
In the present case, the plaintiff alleges that Axelrod
placed a disciplinary e-mail in her personnel file and
also yelled at her in front of coworkers and members
of the public for giving incorrect information. Federal
courts, however, have held that a disciplinary letter
does not constitute a materially adverse employment
action.6 See, e.g., Chang v. Safe Horizons, 254 Fed.
Appx. 838, 839 (2d Cir. 2007) (holding that oral and
written warnings do not constitute adverse employment
actions); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.
2006) (‘‘[t]he application of the [employer’s] disciplinary
policies to [the employee], without more, does not con-
stitute [an] adverse employment action’’); Mattern v.
Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997)
(holding that disciplinary filings and supervisor’s repri-
mands are not adverse employment actions), cert.
denied, 522 U.S. 932, 118 S. Ct. 336, 139 L. Ed. 2d 260
(1997).
The reprimands and admonishments alleged by the
plaintiff, in the absence of evidence showing that she
was terminated, demoted or given diminished responsi-
bilities, or that she suffered a decrease in salary or
material loss in benefits, do not constitute an adverse
employment action. We therefore conclude that the trial
court properly struck the plaintiff’s race discrimina-
tion claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On August 8, 2013, Theresa Heyward and her husband, the plaintiff Kevin
Heyward, filed a six count amended complaint against the defendants, the
Judicial Department of the state of Connecticut (state) and Robert A. Axel-
rod, the chief clerk for the judicial district of New Haven at Meriden. The
first five counts were brought by Theresa Heyward against the defendants,
and Kevin Heyward alleged a derivative cause of action for loss of consortium
in count six. Thereafter, the defendants filed a motion to dismiss the com-
plaint. On February 4, 2014, the trial court dismissed all counts as to Axelrod,
and counts three through six as to the state. On appeal, this court dismissed
the appeal as to the state for lack of subject matter jurisdiction and affirmed
the judgment as to Axelrod. See Heyward v. Judicial Department, 159
Conn. App. 794, 805, 124 A.3d 920 (2015). Consequently, Axelrod is not a
party to this appeal, and, therefore, all references in this opinion to the
defendant are to the state. Furthermore, although initially raised in their
preliminary statement of the issues, the plaintiffs have not briefed any
claimed error regarding the trial court’s February 4, 2014 ruling on the
motion to dismiss. Therefore, the sole issue on appeal is whether the trial
court properly granted the state’s motion to strike the first and second counts
of the amended complaint. Accordingly, Kevin Heyward is not involved in
this appeal, and, therefore, all references in this opinion to the plaintiff are
to Theresa Heyward.
2
See footnote 1 of this opinion.
3
Because we conclude that the plaintiff’s amended complaint was legally
insufficient and this is an adequate basis on which to affirm the judgment
of the trial court, we need not address the court’s alternative basis for
granting the defendant’s motion to strike.
4
On May 19, 2016, the plaintiff filed her appeal. On May 25, 2016, the
defendant filed a motion for judgment. On June 6, 2016, the court granted
the defendant’s motion and rendered judgment in the defendant’s favor. On
June 16, 2016, the plaintiff amended her appeal to include the final judgment
rendered on the stricken counts, effectively curing the jurisdictional defect.
See Practice Book § 61-9 (‘‘[i]f the original appeal is dismissed for lack of
jurisdiction, the amended appeal shall remain pending if it was filed from
a judgment or order from which an original appeal properly could have
been filed’’).
5
‘‘[D]isparate treatment simply refers to those cases where certain individ-
uals are treated differently than others. . . . The principal inquiry of a
disparate treatment case is whether the plaintiff was subjected to different
treatment because of his or her protected status.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Levy v. Commission on Human
Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).
6
A review of our case law does not provide any controlling authority. We
therefore turn to federal precedent for guidance in reaching our conclusion.
See Thomson v. Dept. of Social Services, supra, 176 Conn. App. 131.