Phadnis v. Great Expression Dental Centers of Connecticut, P.C.

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APPENDIX
UKTI PHADNIS v. GREAT EXPRESSION DENTAL
CENTERS OF CONNECTICUT, P.C.*
Superior Court, Judicial District of Hartford
File No. CV-13-6042588
Memorandum filed January 26, 2015
Proceedings
Memorandum of decision on defendant’s motion for
summary judgment. Motion granted.
Michael T. Petela, Jr., for the plaintiff.
Brian C. Hoeing, Craig A. Redinger, pro hac vice,
and Jeffrey D. Wilson, pro hac vice, for the defendant.
Opinion
ELGO, J. Before this court is a motion for summary
judgment filed by the defendant, Great Expression Den-
tal Centers of Connecticut, P.C. The plaintiff, Ukti
Phadnis, is a dentist who was terminated from the
employ of the defendant on August 16, 2012, and com-
menced this action on May 31, 2013. In the first three
counts of her amended complaint, the plaintiff alleges
violations of General Statutes § 46a-51 et seq., the Con-
necticut Fair Employment Practices Act (CFEPA). Spe-
cifically, the plaintiff alleges her termination was the
result of discrimination based on the plaintiff’s preg-
nancy and that her termination was a result of unlawful
retaliation. In the remaining counts, the plaintiff further
alleges, with respect to her employment contract with
the defendant, breach of contract, breach of implied
contract, and breach of the covenant of good faith and
fair dealing. For the reasons outlined below, this court
grants summary judgment as to all counts.
The amended complaint alleges the following facts.
The plaintiff, a female, was employed by the defendant
as a dentist in its East Windsor office from December
12, 2011, through her termination on August 16, 2012.
In May, 2012, the plaintiff notified her employer that
she was pregnant and that her doctor had placed restric-
tions on her exposure to X ray radiation. Further, in
May, 2012, the plaintiff began to suffer from morning
sickness that often required her to be late for work.
To address her tardiness, the plaintiff met with her
supervisor, Dr. Paul Kim, in May, 2012, to arrange for
an adjustment to her schedule, which would allow her
to arrive at 8:30 a.m. instead of 8 a.m. Dr. Kim and the
plaintiff again met in mid-June to discuss maintaining
her late start time, which Dr. Kim did not oppose. Then,
in mid-July, aware of the scheduling problems arising
from her morning sickness-induced tardiness, the plain-
tiff requested to be transferred to the defendant’s Man-
chester office where additional dentists were on staff
to assist with coverage in the event she was late to
work. Dr. Kim agreed to her transfer.
During this time, the plaintiff also alleges, she brought
to the defendant’s attention its discriminatory applica-
tion of disciplinary policies in regard to two other
employees in the office. Despite a good work record,
positive feedback, and only one patient complaint dur-
ing her tenure, the plaintiff was terminated on August
16, 2012. The defendant’s stated reasons for the termina-
tion were as follows: (1) the plaintiff’s inability to main-
tain the schedule of the office, which had been brought
to the plaintiff’s attention twice prior; (2) complaints
from staff and patients concerning her performance;
and (3) unprofessional interactions with staff.
DISCUSSION
‘‘Summary judgment is a method of resolving litiga-
tion when 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. . . . The motion for sum-
mary judgment is designed to eliminate the delay and
expense of litigating an issue when there is no real issue
to be tried. . . . However, since litigants ordinarily
have a constitutional right to have issues of fact decided
by a jury . . . the moving party for summary judgment
is held to a strict standard . . . of demonstrating his
entitlement to summary judgment.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
Grenier v. Commissioner of Transportation, 306 Conn.
523, 534–35, 51 A.3d 367 (2012). ‘‘Summary judgment
shall be rendered forthwith if the pleadings, affidavits
and 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 decid-
ing a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party.’’ (Citation omitted; internal quotation
marks omitted.) Vendrella v. Astriab Family Ltd. Part-
nership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
‘‘As the party moving for summary judgment, the
[movant] is required to support its motion with support-
ing documentation, including affidavits.’’ Heyman
Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn.
756, 796, 653 A.2d 122 (1995). Likewise, ‘‘[t]he existence
of the genuine issue of material fact must be demon-
strated by counteraffidavits and concrete evidence.’’
(Emphasis omitted; internal quotation marks omitted.)
Walker v. Dept. of Children & Families, 146 Conn. App.
863, 870, 80 A.3d 94 (2013), cert. denied, 311 Conn. 917,
85 A.3d 653 (2014). ‘‘Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book § [17-45].’’
(Internal quotation marks omitted.) Marinos v. Poirot,
308 Conn. 706, 712, 66 A.3d 860 (2013).
COUNT ONE
The plaintiff alleges in count one of her amended
complaint that the defendant’s stated reason for her
termination, chronic tardiness, was a pretext for unlaw-
ful discrimination based on her pregnancy. Specifically,
the plaintiff claims that the defendant discriminated
against her on the basis of her pregnancy in violation
of § 46a-60 (a) (1) and (7). Section 46a-60 (a) provides
in relevant part: ‘‘It shall be a discriminatory practice
in violation of this section . . . (1) [f]or an employer,
by the employer or the employer’s agent, except in the
case of a bona fide occupational qualification or need,
to refuse to hire or employ or to bar or to discharge
from employment any individual . . . because of the
individual’s race, color, religious creed, age, sex, gender
identity or expression, marital status, national origin,
ancestry, present or past history of mental disability,
intellectual disability, learning disability or physical 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 . . . .’’ General Statutes § 46a-
51 (15).
Although the plaintiff has cursorily referenced the
previously mentioned provision, she has not established
nor adequately briefed a claim that her cause of action
supports discrimination based on disability. Moreover,
neither pregnancy nor morning sickness is recognized
as a disability under these provisions.1 Therefore, to
the extent that the plaintiff has made a claim under this
provision, this court considers it abandoned.
As to the plaintiff’s claims regarding § 46a-60 (a),
the provision states in pertinent part: ‘‘It shall be a
discriminatory practice in violation of this section . . .
(7) [f]or an employer, by the employer or the employer’s
agent: (A) To terminate a woman’s employment
because of her pregnancy; (B) to refuse to grant to that
employee a reasonable leave of absence for disability
resulting from her pregnancy . . . (E) to fail or refuse
to make a reasonable effort to transfer a pregnant
employee to any suitable temporary position which may
be available in any case in which an employee gives
written notice of her pregnancy to her employer and
the employer or pregnant employee reasonably believes
that continued employment in the position held by the
pregnant employee may cause injury to the employee
or fetus . . . .’’
With respect to employment discrimination claims,
our Supreme Court has held that ‘‘we review federal
precedent concerning employment discrimination for
guidance in enforcing our own antidiscrimination stat-
utes.’’ Curry v. Allan S. Goodman, Inc., 286 Conn. 390,
415, 944 A.2d 925 (2008). ‘‘In defining the contours of
an employer’s duties under our state antidiscrimination
statutes, we have looked for guidance to federal case
law interpreting Title VII of the Civil Rights Act of 1964,
the federal statutory counterpart to § 46a-60.’’ Brittell
v. Dept. of Correction, 247 Conn. 148, 164, 717 A.2d
1254 (1998).
To determine whether a plaintiff has established a
prima facie claim for discrimination pursuant to § 46a-
60 (a) (1), the court employs the burden shifting analysis
set forth by the United States Supreme Court in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802–804,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Dept. of
Transportation v. Commission on Human Rights &
Opportunities, 272 Conn. 457, 463 n.9, 863 A.2d 204(2005) (‘‘We note that the analytical framework set forth
by the United States Supreme Court in McDonnell Doug-
las Corp. . . . and its progeny is used to determine
whether a complainant may prevail on a claim of dispa-
rate treatment under our state law’’). Under the McDon-
nell Douglas Corp. analysis, ‘‘the employee must first
make a prima facie case of discrimination. The
employer may then rebut the prima facie case by stating
a legitimate, nondiscriminatory justification for the
employment decision in question. The employee then
must demonstrate that the reason proffered by the
employer is merely a pretext and that the decision was
actually motivated by illegal discriminatory bias.’’
(Internal quotation marks omitted.) Perez-Dickson v.
Bridgeport, 304 Conn. 483, 513, 43 A.3d 69 (2012).
‘‘The burden of establishing a prima facie case [of
discrimination] is a burden of production, not a burden
of proof, and therefore involves no credibility assess-
ment by the fact finder. . . . The level of proof required
to establish a prima facie case is minimal and need not
reach the level required to support a jury verdict in the
plaintiff’s favor.’’ (Internal quotation marks omitted.)
Id., 513. ‘‘In order to establish a prima facie case, the
[plaintiff] must prove that: (1) [she] is in the protected
class; (2) [she] was qualified for the position; (3) [she]
suffered an adverse employment action; and (4) the
adverse action occurred under circumstances giving
rise to an inference of discrimination.’’ (Internal quota-
tion marks omitted.) Jacobs v. General Electric Co.,
275 Conn. 395, 400, 880 A.2d 151 (2005). In addition to
proffering direct evidence of discrimination with
respect to the fourth prong, ‘‘a litigant may present
circumstantial evidence from which an inference may
be drawn that similarly situated individuals were
treated more favorably than she was.’’ Perez-Dickson
v. Bridgeport, supra, 304 Conn. 514.
The defendant argues that the plaintiff has failed to
proffer evidence that raises an inference of discrimina-
tory animus in its decision to terminate the plaintiff’s
employment. The defendant contends that there is no
evidence the plaintiff was treated differently than non-
pregnant employees and, further, that it has provided
a legitimate, nondiscriminatory reason for her termina-
tion. Additionally, the defendant asserts that the plain-
tiff misinterpreted the statute in claiming that she was
entitled to a transfer. The plaintiff’s request for transfer
was for her own convenience and did not give rise to
statutorily protected action under § 46a-60 (a) (7) (E),
which provides for transfer only when there is a reason-
able belief that continued employment may cause injury
to the employee or fetus.
In her objection, the plaintiff claims that the defen-
dant’s stated reasons regarding her termination were
related to her morning sickness, which was caused by
her pregnancy. Moreover, the plaintiff argues that there
is temporal evidence that gives rise to an inference of
discrimination in the timing of her termination, which
was four days prior to her transfer, two weeks after
the discussion regarding the transfer, two months after
her initial request for a delayed start time, and three
months after her radiation restriction was conveyed to
the defendant.
The plaintiff then argues, in light of the defendant’s
allegedly discriminatory action, the defendant’s prof-
fered legitimate reason for her termination is nonsensi-
cal, as the plaintiff’s pregnancy and her altered schedule
were both temporary, dentists in the defendant’s prac-
tice had flexible schedules, there were no rigid disciplin-
ary policies regarding tardiness in place, no
communication of discipline for her alleged tardiness,
and the defendant commonly permitted adjusted sched-
ules. Finally, the plaintiff argues the transfer request
should have been accommodated, as her commute to
work, where she was often forced to pull over to vomit
as a result of her morning sickness, did in fact put her
and her fetus in danger.
There appears to be no disagreement that the plaintiff
was a member of a protected class, was qualified as a
dentist, and suffered an adverse employment action
through her termination. In support of her assertions
of the defendant’s discriminatory animus, however, the
plaintiff claims to have direct as well as indirect evi-
dence. In her brief, for example, the plaintiff attempts
to underscore aspects of Dr. Kim’s testimony as mani-
festing direct evidence of a discriminatory animus.
Although the plaintiff bears only the burden of produc-
tion in making a prima facie case, having reviewed those
portions of the transcript, the court concludes that the
plaintiff’s attempt to create a material issue of fact
actually amounts to a distortion of the evidence. This
court’s thorough review of the evidence reveals a persis-
tent, and undisputed, issue with the plaintiff’s tardiness.
Nor does the plaintiff proffer any evidence which
can support an inference of discriminatory animus or
motive based on the plaintiff’s pregnancy. The plaintiff
does not point to any instances where similarly situated
individuals were treated more favorably than she was.
In fact, the plaintiff makes no mention of any nonpreg-
nant employees who were allowed to be chronically
tardy without discipline. The plaintiff appears to rely
solely on the argument that her tardiness was due to
her pregnancy and morning sickness, and, therefore,
her termination for tardiness was only because she was
pregnant. In the absence of evidence, direct or circum-
stantial, from which an inference may be drawn that
similarly situated individuals were treated more favor-
ably than the plaintiff, the court cannot determine that
the plaintiff’s termination took place under circum-
stances permitting an inference of discrimination. As a
result, the plaintiff has failed to make out a prima facie
case of discrimination.
Even assuming arguendo that the plaintiff has made
out a prima facie case, summary judgment is still war-
ranted. Once an employee has made a prima facie case,
the employer may rebut by stating a legitimate, nondis-
criminatory justification for the employment decision
in question. The employee then must demonstrate that
the reason proffered by the employer is merely a pretext
and that the decision was actually motivated by illegal
discriminatory bias. Perez-Dickson v. Bridgeport,
supra, 304 Conn. 513. As the plaintiff herself has pointed
out, ‘‘the plaintiff is not required to show that the
employer’s proffered reasons were false or played no
role in the employment decision, but only that they
were not the only reasons and that the prohibited factor
was at least one of the ‘motivating’ factors.’’ Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).
The plaintiff has not shown that her pregnancy was
a motivating factor behind her termination. In addition
to exacerbating factors concerning the plaintiff’s
strained and difficult relations with other employees,
the evidence establishes that the defendant’s ongoing,
persistent concern was that the plaintiff’s chronic, daily
tardiness was severely affecting its patients and the
dental practice.
The defendant provided detailed exhibits establishing
reports of repeated chronic tardiness even after the
defendant provided the plaintiff a later start time,
including e-mails from the office manager discussing
the plaintiff’s chronic tardiness and its impact on wait-
ing patients, and e-mails from Dr. Kim to the plaintiff
noting that despite the accommodation, the plaintiff
must be on time for every patient because start times are
strictly enforced for all employees. Dr. Kim’s testimony
specified that many of the practice’s patients are nonsal-
aried, blue collar workers for whom early morning
appointments are critical so that they suffer less time
away from their jobs. The plaintiff failed to provide any
contradictory evidence, and even acknowledged in her
own deposition that chronic tardiness is a ‘‘practice
killer.’’ Such evidence clearly amounts to legitimate,
nondiscriminatory reasons for the plaintiff’s termi-
nation.
The plaintiff attempts to rebut the defendant’s pur-
ported concern with her tardiness by asserting that all
employees, including she, enjoyed a flexible schedule.
The defendant, however, does not dispute that it offered
the plaintiff flexibility in her schedule. In fact, per the
plaintiff’s request for an accommodation, the defendant
approved a late start for the plaintiff until such time as
her morning sickness became more manageable. The
evidence makes clear, however, that the opportunity
to have a flexible schedule, such as allowing the plaintiff
to begin her workday at 8:30 a.m. instead of 8 a.m., or
allowing her a workday that began at 11 a.m. and ended
at 7 p.m., cannot be equated with being late nearly
every day.
The defendant also points to evidence of the plain-
tiff’s personnel problems with other members of the
office staff as a reason for her termination. While there
are indications that prior to her termination, the plaintiff
was considered a good dentist and the plaintiff’s interac-
tions with patients and staff members ‘‘met standards,’’
further evidence reveals that the plaintiff had an ongo-
ing dispute with another member of the office, Gabby,
that resulted in the plaintiff threatening to resign if
Gabby was not terminated. As a result of this disagree-
ment, the plaintiff forced the defendant to transfer
Gabby to the Manchester office, then, as was noted
during short calendar, when the plaintiff was preparing
to transfer to Manchester herself, she demanded that
Gabby again be transferred before the plaintiff began
work at the Manchester office. The plaintiff provided
no evidence to create a genuine issue of material fact
with respect to this issue. Therefore, even assuming
that the plaintiff has set forth a prima facie case of
discrimination, she cannot, and has not, rebutted the
defendant’s legitimate, nondiscriminatory justification
for her termination. There is simply no evidence from
which this court can infer, that in the absence of the
plaintiff’s tardiness, the defendant would have termi-
nated the plaintiff due to her pregnancy.
The parties also appear to argue over whether the
defendant violated § 46a-60 (a) (7) in failing to make a
reasonable effort to transfer the plaintiff and instead
terminating her employment. As noted previously,
§ 46a-60 (a) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section . . .
(7) . . . (E) . . . to fail or refuse to make a reasonable
effort to transfer a pregnant employee to any suitable
temporary position which may be available in any case
in which an employee gives written notice of her preg-
nancy to her employer and the employer or pregnant
employee reasonably believes that continued employ-
ment in the position held by the pregnant employee
may cause injury to the employee or fetus . . . .’’
The plaintiff does not claim that her request to trans-
fer to Manchester was a result of a reasonable belief
that her current employment in East Windsor would
cause injury to herself or her fetus. Instead, the plaintiff
claims that her reasonable belief of injury arose from
her commute to work during which she was forced to
pull over and vomit on the side of the road. However,
even if this claim met the requirements of § 46a-60 (a)
(7) (E), there is no evidence that a transfer from one
office to another would alleviate the potential for injury
since the plaintiff would still be required to commute
to work each day. In fact, the plaintiff’s rationale for
requesting the transfer is premised on her understand-
ing that there were additional dentists in the Manchester
office who could provide coverage for her if she was
late. The accommodation, therefore, has nothing to do
with the risk of injury to the plaintiff or her fetus since
the plaintiff’s potential to experience nausea was pre-
sumably present whether she was commuting to East
Windsor or Manchester. Indeed, the plaintiff does not
dispute that while the defendant approved her request
to transfer to the Manchester office and had resched-
uled her start times to accommodate her pregnancy,
the defendant never approved of and consistently took
issue with the plaintiff’s tardiness. In other words, the
plaintiff’s argument is ultimately that she was entitled
to arrive late, irrespective of the defendant’s accommo-
dation of her schedule or agreement to transfer to a
different office.
Moreover, § 46a-60 (a) (7) (E) finds a discriminatory
practice where the employer fails or refuses to make
a reasonable effort to transfer the employee, but, in the
instant case, the employer did allow for the transfer.
The defendant had approved the transfer and was in the
process of orchestrating the transfer when the plaintiff’s
personnel problems again surfaced. The plaintiff
refused to begin work at Manchester until such time
as Gabby, the employee the plaintiff forced to be trans-
ferred earlier, was again transferred at the plaintiff’s
demand. The plaintiff has provided no evidence that
creates a genuine issue of material fact as to the defen-
dant’s failure or refusal to make a reasonable effort to
transfer the plaintiff.
Finally, in her objection to the motion for summary
judgment, the plaintiff references a violation of § 46a-
60 (a) (7) (B) for failure of the defendant to provide
the plaintiff with a ‘‘reasonable leave of absence for
disability from pregnancy . . . .’’ The plaintiff has prof-
fered no evidence that she made a request for a leave
of absence, nor did she assert a violation of § 46a-60
(a) (7) (B) in her complaint. Therefore, the court does
not address this statutory provision.
The defendant’s motion for summary judgment is
granted as to count one.
COUNT TWO
In count two of the amended complaint, the plaintiff
alleges that her termination was the result of retaliation
for placing medical restrictions related to her pregnancy
on her employment. Specifically, the plaintiff argues
that the defendant violated § 46a-60 (a) in its decision
to terminate her. The statute provides in relevant part:
‘‘It shall be a discriminatory practice in violation of this
section . . . (4) [f]or any . . . employer . . . to dis-
charge, expel or otherwise discriminate against any per-
son because such person has opposed any
discriminatory employment practice or because such
person has filed a complaint or testified or assisted in
any proceeding under section 46a-82, 46a-83 or 46a-84
. . . .’’ General Statutes § 46a-60 (a) (4).
‘‘To establish a prima facie case of retaliation, a plain-
tiff must show four elements: (1) that [s]he participated
in a protected activity; (2) that the defendant knew of
the protected activity; (3) an adverse employment
action against [her]; and (4) a causal connection
between the protected activity and the adverse employ-
ment action.’’ Ayantola v. Board of Trustees of Techni-
cal Colleges, 116 Conn. App. 531, 536, 976 A.2d 784(2009).
To determine whether a plaintiff can prevail on a
claim of retaliation, under state law, the court again
employs the burden shifting analysis set forth by the
United States Supreme Court in McDonnell Douglas
Corp. v. Green, supra, 411 U.S. 802. See Zboray v. Wal-
Mart Stores East, L.P., 650 F. Supp. 2d 174, 179 (D.
Conn. 2009) (applying the burden shifting analysis to a
retaliation claim under CFEPA); Bracey v. Northeast
Utilities Service Co., Superior Court, judicial district
of Hartford, Docket No. CV-12-6027883-S, 2013 Conn.
Super. LEXIS 2521, *38 (November 1, 2013) (Huddles-
ton, J.) (‘‘[b]ecause Connecticut’s courts look to federal
precedent in interpreting CFEPA, claims of retaliation
under § 46a-60 [a] [4] are evaluated under the McDon-
nell Douglas [Corp.] burden-shifting paradigm’’).
While the plain language of the statute lacks any
terms which would bring the act of seeking a reasonable
accommodation within its protective purview, numer-
ous United States federal courts have held that
requesting a reasonable accommodation is a protected
activity under the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq. See Payne v. PSC Indus-
trial Outsourcing, Ltd. Partnership, United States Dis-
trict Court, Docket No. 3:13-CV-00355 (VLB), 2013 U.S.
Dist. LEXIS 180941 (D. Conn. 2013); see also Wright
v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003).
However, in contrast, the few Connecticut courts that
have considered the issue in regard to CFEPA have
concluded that § 46a-60 (a) (4) does not protect an
employee who makes a request for a reasonable accom-
modation. See Sheehy v. Big Y Foods, Inc., Superior
Court, judicial district of Waterbury, Complex Litigation
Docket, Docket No. X06-CV-12-6014260-S (October 31,
2012) (Agati, J.) (54 Conn. L. Rptr. 887, 889) (‘‘The issue
raised . . . is whether requesting reasonable accom-
modation for one’s own disabilities qualifies as ‘oppos[-
ing] [a] discriminatory employment practice’ for
purposes of alleging retaliation under § 46a-60 [a] [4].
It does not.’’).
In count two, the plaintiff alleges only that the stated
reasons for her termination were a pretext for unlawful
retaliation because the plaintiff ‘‘provid[ed] medical
restrictions related to her pregnancy.’’ The plaintiff’s
only reference to medical restrictions appears to be her
restriction on X ray radiation exposure. The plaintiff
fails to allege further facts indicating that this request
was taken into consideration when the defendant made
the decision to terminate her employment, and as noted
previously, pregnancy is not classified as a disability
requiring a reasonable accommodation under CFEPA.
Because the plaintiff fails to allege a prima facie case
of retaliation, the defendant is entitled to summary judg-
ment as a matter of law on count two.
COUNT THREE
The plaintiff claims in count three of her amended
complaint that her termination was the result of unlaw-
ful retaliation for opposing age discrimination in viola-
tion of § 46a-60 (a) (4). The plaintiff alleges that she
questioned the defendant’s office manager on four sepa-
rate occasions about a possible age discrimination prac-
tice occurring in the office. Specifically, the plaintiff
alleges an older employee was disciplined for unprofes-
sional conduct, while a younger employee, who had
engaged in allegedly worse conduct, was not disci-
plined. After the office manager appeared to disregard
the plaintiff’s complaints, the plaintiff spoke with her
supervisor, Dr. Kim, to inform him that policies were
not being applied fairly and equally among older and
younger employees. The amended complaint then
alleges that Dr. Kim stated he did not manage staff
related issues, and that the office manager was aware
of her complaints and would take appropriate action.
The plaintiff was terminated a week later.
As detailed in the previous count, to prevail on a
claim of retaliation, the plaintiff must first establish a
prima facie case of retaliation. Only upon a showing of
a prima facie case does the burden shift to the defendant
to proffer a legitimate, nonretaliatory reason for the
adverse employment action.
In the present case, while an alleged report of an
employer’s discriminatory actions is a protected activity
under § 46a-60 (a) (4), the plaintiff has failed to establish
a prima facie case of retaliation. The only evidence
indicating that the plaintiff’s alleged complaints of age
discrimination played a role in her termination come
from the plaintiff’s own self-serving deposition in which
the plaintiff claims she believes the complaints contrib-
uted to the termination decision. While in her deposition
the plaintiff makes reference to numerous e-mails and
phone calls to Dr. Kim regarding the age discrimination
allegations, she fails to provide any evidence supporting
these assertions.
Our courts have long held that summary judgment
may not be based on or opposed by inadmissible evi-
dence of self-serving, unsubstantiated speculation or
conclusory statements or denials. Gupta v. New Britain
General Hospital, 239 Conn. 574, 582–83, 687 A.2d 111(1996); see also Texidor v. Thibedeau, Superior Court,
judicial district of Hartford, Docket No. CV-13-6040518-
S, 2014 Conn. Super. LEXIS 2283 (September 10, 2014)
(Peck, J.). Therefore, in the absence of any concrete
evidence supporting the claim, the plaintiff has failed
to establish a prima facie case of retaliation under § 46a-
60 (a) (4), and summary judgment should be granted
as to count three.
COUNTS FOUR, FIVE AND SIX
The final three counts of the plaintiff’s amended com-
plaint arise under contract law and allege claims of
breach of contract, breach of implied contract, and
breach of the covenant of good faith and fair dealing.
In the defendant’s motion for summary judgment, it
argues that the plaintiff’s contract claims are barred by
the parties’ Agreement to Assert Claims Timely (AACT)
provision of the employee handbook. Thus, as a prelimi-
nary matter, the court must address whether the
agreements between the parties bar the remaining
counts.
The AACT provision provides in relevant part, ‘‘It is
mutually understood by myself and Great Expressions-
NDG, and agreed to in this document, that whenever
there is a dispute concerning my employment, it is in the
best interests of everyone that the dispute be resolved
quickly. For that reason, I understand and agree that
any action or suit against the Great Expressions-NDG
arising out of my employment . . . must be brought
within six (6) months of the event giving rise to the
claims or be forever barred . . . .’’ The defendant con-
tends that such provision has effectively barred the
plaintiff’s contract claims, as they were filed over a year
after her termination and the alleged breach of contract.
In response, the plaintiff claims that her employment
agreement is expressly carved out from the handbook
acknowledgment because the acknowledgment states,
‘‘this handbook is not a contract of employment (Den-
tists’ and Specialists’ employment terms and conditions
are outlined in their individual employment
agreements).’’ It appears that under the plaintiff’s inter-
pretation, because she was a contract employee, the
handbook acknowledgment and AACT is not an
enforceable agreement between the parties.
‘‘In determining whether a contract is ambiguous, the
words of the contract must be given their natural and
ordinary meaning. . . . A contract is unambiguous
when its language is clear and conveys a definite and
precise intent. . . . The court will not torture words
to impart ambiguity where ordinary meaning leaves no
room for ambiguity. . . . Moreover, the mere fact that
the parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous.’’ (Internal quotation
marks omitted.) Cruz v. Visual Perceptions, LLC, 311
Conn. 93, 102–103, 84 A.3d 828 (2014).
The plaintiff signed her employment contract on
November 28, 2011, and then, on December 1, 2011,
she signed the handbook acknowledgment agreement
that contained the disputed AACT provision. The clear
terms of her employment contract state, ‘‘no modifica-
tion or addition hereto or waiver or cancellation or any
provision shall be valid except by a writing signed by
the party charged therewith.’’ (Emphasis added.) Thus,
her agreement, which was in writing and signed by the
plaintiff, to limit her filing of an action or claim against
the defendant within six months of the event giving rise
to the claims, is valid and enforceable. The plaintiff’s
contract claims in counts four, five, and six are barred,
and the defendant’s motion for summary judgment is
granted.
* Affirmed. Phadnis v. Great Expression Dental Centers of Connecticut,
P.C., 170 Conn. App. 79, A.3d (2017).
1
There is no case law in Connecticut that defines pregnancy or morning
sickness as a disability. Because the term ‘‘chronic’’ has no statutory defini-
tion, the Superior Court has relied on the dictionary definition of chronic in
analyzing a physical disability claim under CFEPA. Commission on Human
Rights & Opportunities v. Hartford, Superior Court, judicial district of New
Britain, Docket No. CV-09-4019485-S (October 27, 2010) (Cohn, J.) (50 Conn.
L. Rptr. 750, 757) (relying on the dictionary definition of chronic); Gilman
Bros. Co. v. Commission on Human Rights & Opportunities, Superior
Court, judicial district of Hartford, Docket No. CV-95-0536075, 1997 Conn.
Super. LEXIS 1311, *8–*10 (May 13, 1997) (McWeeny, J.) (relying on the
dictionary definition of chronic to find that carpal tunnel qualifies as a
physical disability under CFEPA). Under the limited analysis regarding preg-
nancy and physical disability, courts have held that pregnancy, or even most
pregnancy related ailments, are not chronic and thus are not classified as
a physical disability under CFEPA. See Kucharski v. Cort Furniture Rental,
536 F. Supp. 2d 196, 201–202 (D. Conn. 2007), rev’d in part on other grounds
after reconsideration by Kucharski v. Cort Furniture Rental, 594 F. Supp.
2d 207 (D. Conn. 2008) (pregnancy complications that required an employee
to be out of work for two months are not a disability under CFEPA), aff’d,
342 Fed. Appx. 712 (2d Cir. 2009).