Martinez v. Premier Maintenance, Inc.

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LUIS MARTINEZ v. PREMIER
MAINTENANCE, INC.
(AC 40188)
Lavine, Alvord and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
religious discrimination in violation of the Connecticut Fair Employment
Practices Act (§ 46a-51 et seq.) following the termination of his employ-
ment. The plaintiff was employed by the defendant as a cleaner/porter
at certain apartments. After the plaintiff was promoted to acting supervi-
sor of a cleaning crew, he recommended that the defendant hire A,
who was the pastor of the plaintiff’s church. C, who was the plaintiff’s
supervisor and who knew that the plaintiff was a chaplain at the same
church, informed the plaintiff that if the defendant hired A, the plaintiff,
while at work, could not refer to A as pastor or give A the respect
ordinarily afforded a pastor. After A was hired, members of the cleaning
crew complained that the plaintiff assigned easy jobs to A while they
were assigned more demanding jobs, and that the plaintiff allowed A
to take extra breaks and spend time talking with residents during work
hours. C thereafter issued written warnings to the plaintiff and to A
about their work performance. Neither the plaintiff nor A wrote anything
in the employee remarks section of the warning forms they received as
to why they disagreed with the warnings. H, the manager of the apart-
ments, then requested that C remove the plaintiff from his position after
H was told of complaints from tenants about the plaintiff and A. When
C, in the presence of the plaintiff, discharged A from his employment,
the plaintiff referred to A as pastor. The plaintiff alleged that C then
became angry and admonished him for having referred to A as pastor,
and immediately discharged him as well. The trial court granted the
defendant’s motion for summary judgment and rendered judgment
thereon, concluding, inter alia, that the plaintiff had failed to establish
a prima facie case of employment discrimination in violation of statute
([Rev. to 2011] § 46a-60 [a] [1]) or a prima facie case of retaliation in
violation of statute ([Rev. to 2011] § 46a-60 [a] [4]). On the plaintiff’s
appeal to this court, held:
1. The plaintiff could not prevail on his claim that the trial court improperly
granted the defendant’s motion for summary judgment when it applied
the pretext model of analysis under McDonnell Douglas Corp. v. Green
(411 U.S. 792) and Texas Dept. of Community Affairs v. Burdine (450
U.S. 248), rather than the mixed-motive model of analysis under Price
Waterhouse v. Hopkins (490 U.S. 228) in determining whether he estab-
lished a prima facie case of employment discrimination; the plaintiff
did not allege that he was fired for legitimate and illegitimate reasons
but, rather, alleged that the defendant’s reason for termination was a
pretext for religious discrimination, and, therefore, the pretext model
of analysis applied.
2. The trial court properly determined that there were no genuine issues of
material fact as to whether the defendant harbored bias or discriminatory
intent on the basis of the plaintiff’s religion: the plaintiff did not point
to any facts from which it could be inferred that the defendant discrimi-
nated against him on the basis of his religion and church membership
prior to the hiring of A, the plaintiff presented no evidence that the
defendant treated others more favorably than it treated him or A, as it
was the plaintiff who gave A more favorable treatment than other mem-
bers of the cleaning crew, and C’s conduct in firing the plaintiff did not
raise an inference of discrimination, as C stated that he told the plaintiff
and A that they were terminated due to conduct and performance issues,
and neither the plaintiff nor A referenced in the employee remarks
section of the written warnings they received that C became angry when
the plaintiff referred to A as pastor when C discharged A.
3. The trial court properly granted summary judgment on the plaintiff’s
retaliation claim: although the plaintiff claimed that he alleged that he
engaged in a protected activity when he referred to A as pastor despite
having been told that he should not do so while the two were working,
he did not allege that he participated in a protected activity by formally
or informally protesting the defendant’s alleged religious discrimination,
and a generous reading of the plaintiff’s allegations of retaliation did
not put the defendant or the court on notice that he engaged in a
protected activity under § 46a-60 (a) (4); moreover, the plaintiff failed
to raise a genuine issue of material fact that his reference to A as pastor
when C fired A constituted an informal complaint, as the plaintiff did not
document his protest in the employee remarks section of the defendant’s
employee warning record or attest in his affidavit in opposition to the
defendant’s motion for summary judgment to having lodged an infor-
mal protest.
Argued April 17—officially released October 16, 2018
Procedural History
Action to recover damages for, inter alia, alleged reli-
gious discrimination, and for other relief, brought to
the Superior Court in the judicial district of Waterbury,
where the court, Brazzel-Massaro, J., granted the
defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
James F. Sullivan, with whom was Jake A. Albert,
for the appellant (plaintiff).
Angelica M. Wilson, with whom, on the brief, was
Glenn A. Duhl, for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff, Luis Martinez, appeals from
the trial court’s grant of summary judgment in favor of
the defendant, Premier Maintenance, Inc., on all three
counts of the plaintiff’s second revised complaint alleg-
ing religious discrimination in violation of the Connecti-
cut Fair Employment Practices Act (act), General
Statutes § 46a-51 et seq. On appeal, the plaintiff claims
that the trial court improperly (1) utilized the pretext/
McDonnell Douglas-Burdine model; Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252–56,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973); rather than the mixed-
motive/Price Waterhouse model of analysis; Price
Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct.
1775, 104 L. Ed. 2d 268 (1989);1 when adjudicating the
motion for summary judgment, (2) concluded that there
was no genuine issue of material fact as to whether he
had demonstrated a prima facie case of employment
discrimination, and (3) concluded that there was no
genuine issue of material fact that he was not engaged
in a protected activity under the act. We disagree and
affirm the judgment of the trial court.
The plaintiff commenced the present action against
the defendant in November, 2013, alleging that he and
the defendant were employee and employer, respec-
tively, within the meaning of the act. His second revised
complaint alleged three counts, namely, employment
discrimination in violation of General Statutes (Rev. to
2011) § 46a-60 (a) (1), employer retaliation in violation
of General Statutes (Rev. to 2011) § 46a-60 (a) (4), and
aiding and abetting discrimination in violation of Gen-
eral Statutes (Rev. to 2011) § 46a-60 (a) (5). The plaintiff
alleged the following facts in the operative complaint.
The plaintiff was employed by the defendant as a
cleaner/porter at the Enterprise-Schoolhouse Apart-
ments (apartments) in Waterbury, which were managed
by the defendant’s customer, WinnResidential. During
the time he was employed by the defendant, the plain-
tiff’s supervisor, Sandino Cifuentes, knew that the plain-
tiff was a chaplain at Tabernacle of Reunion Church.
Prior to the plaintiff’s termination from employment,
Cifuentes had informed him that while he was at work,
the plaintiff could not refer to a coworker, Ismael
Agosto, as ‘‘pastor’’ or give Agosto the respect ordinarily
afforded a pastor.
The plaintiff also alleged that on June 22, 2012, Car-
olyn Hagan, manager of the apartments, relayed infor-
mation to Cifuentes that during church services, Agosto
had read the names of tenants who were in jeopardy
of being evicted from the apartments. Hagan learned
of the incident from Daisy Alejandro, assistant manager
of the apartments, who heard of the incident from ten-
ants Enrique Cintron and his wife, Jorge Cintron. Hagan
also relayed to Cifuentes a complaint from Jorge Cin-
tron that the plaintiff was telling tenants of the apart-
ment that the ‘‘office does not do anything and that is
why nothing gets done . . . .’’ Moreover, Hagan
relayed that the plaintiff informed nonresidents who
were in the apartments, when anyone from the office
was entering the apartments, so that they could leave
before the staff arrived. Hagan also reported that the
plaintiff was on his phone constantly, not working, and
spent work time ‘‘hanging out’’ with a woman who lived
across the street from the apartments.
The plaintiff further alleged that on or about June
26, 2012, Hagan requested that Cifuentes remove the
plaintiff from his position. On August 3, 2012, Cifuentes
discharged Agosto from his employment in the presence
of the plaintiff. During the discharge meeting, the plain-
tiff referred to Agosto as ‘‘pastor . . . .’’ Cifuentes
admonished the plaintiff and immediately discharged
him as well.
The plaintiff alleged that he had no performance or
conduct issues and that the quality of his work was
excellent. He denied helping to compile the list of names
of tenants in jeopardy of eviction. On December 14,
2011, Charles Riddle, maintenance director for CMM
WinnResidential, had sent Hagan a message stating that
the plaintiff was a great choice for temporary supervi-
sor. In addition, the plaintiff alleged that the Cintrons’
complaint against him was made in retaliation for an
incident at church when Agosto admonished them for
playing music at an inappropriate time. The plaintiff
alleged that despite the unsubstantiated nature of the
Cintrons’ complaint and despite the fact that his job
performance was satisfactory, the defendant dis-
charged him from employment.
In count one, the plaintiff alleged that the defendant
discriminated against him on the basis of his religion
in such a way that it adversely affected his status as
an employee, that the defendant warned and disciplined
the plaintiff and terminated the plaintiff’s employment
on account of his religion in violation of § 46a-60 (a)
(1), and that the defendant’s unequal treatment of the
plaintiff was arbitrary and unreasonably discriminatory
in violation of the statute. Moreover, he alleged that
the defendant exhibited ill will, malice, improper
motive, and indifference to the plaintiff’s civil rights.
In count two, the plaintiff alleged that he held a bona
fide religious belief and was the chaplain at the Taberna-
cle of Reunion Church. The defendant, through its
agents, servants and employees, was aware of the plain-
tiff’s position in the church and that Agosto was the
pastor of the church. The plaintiff alleged that the defen-
dant’s agents discriminated against him on the basis
of his religion and discharged him for practicing his
religious beliefs. The defendant retaliated against him
for using the term ‘‘pastor’’ and ‘‘chaplain,’’ despite
knowing the plaintiff’s religious beliefs and customs
associated with the use of such terms. He claimed
damages.
In count three, the plaintiff alleged that the defendant,
through its agents, servants, and employees, was aware
of his religious beliefs, customs and practices, and aided
and abetted the unlawful conduct of its supervisors and
employees by permitting one of its agents to discrimi-
nate against him on the basis of his religious beliefs in
violation of the act. The plaintiff again alleged damages.
The defendant denied the material allegations of the
second revised complaint and alleged nine special
defenses. In particular, the defendant alleged as its
fourth special defense to all counts in the complaint:
‘‘All actions taken by [the defendant] with respect to
[the] plaintiff and [the] plaintiff’s employment were
undertaken for legitimate, nondiscriminatory busi-
ness reasons.’’
On July 8, 2016, the defendant filed a motion for
summary judgment in which it claimed that there were
no genuine issues of material fact such that the plaintiff
could not establish a prima facie violation of the act.
Furthermore, the defendant claimed that it had a legiti-
mate, nondiscriminatory, nonretaliatory reason to ter-
minate the plaintiff’s employment and that the plaintiff
could not demonstrate that the reason was false or a
pretext. Also, the plaintiff could not establish a cause
of action for aiding and abetting because, first, he could
not establish that the defendant had discriminated or
retaliated against him, and second, a defendant cannot
be liable for aiding and abetting employees who are
not parties to the action. The plaintiff filed an objection
to the defendant’s motion for summary judgment on
the grounds that there were genuine issues of material
fact and that he had established a prima facie case of
employment discrimination, retaliation, and aiding and
abetting on the basis of religion. In its reply to the
plaintiff’s objection, the defendant argued that the plain-
tiff had failed to present evidence that could persuade
a rational fact finder that the defendant’s legitimate,
nondiscriminatory reason for terminating the plaintiff’s
employment was false or a pretext.
The parties appeared at short calendar on November
7, 2016, to argue the motion for summary judgment.
The court issued its memorandum of decision granting
the motion for summary judgment in favor of the defen-
dant on February 15, 2017.2 After stating the legal stan-
dards and principles regarding a motion for summary
judgment and employment discrimination law, the
court found that the defendant was entitled to summary
judgment on each count of the second revised com-
plaint and that the defendant had carried its burden of
proving the absence of a genuine issue of material fact.3
The court cited the controlling statute: ‘‘It shall be a
discriminatory practice in violation of this section . . .
(1) [f]or an employer . . . to discharge from employ-
ment any individual . . . because of the individual’s
. . . religious creed . . . .’’ General Statutes (Rev. to
2011) § 46a-60 (a). The court found that the plaintiff
had alleged that he is a member of a protected class,
was qualified for his position, and was terminated from
his employment due to his use of the term ‘‘pastor’’
when referring to Agosto, his coworker, in the presence
of Cifuentes, his supervisor. The plaintiff alleged that
because the defendant disapproved of his use of reli-
gious terms such as ‘‘pastor’’ when he was working and
was aware that he was a chaplain in Agosto’s church,
his employment termination occurred under circum-
stances giving rise to an inference of religious discrimi-
nation. The court found, however, that the plaintiff had
failed to allege facts that the defendant harbored any
bias that would create an inference of discrimination.
The court concluded, therefore, that the plaintiff had
failed to establish a prima facie case of employment
discrimination under the act and that the defendant
had demonstrated the absence of any genuine issues
of material fact in this regard.
With respect to count two, a retaliation claim, the
court cited § 46a-60 (a), which provides in relevant part
that ‘‘[i]t shall be a discriminatory practice . . . (4)
[f]or any . . . employer . . . to discharge, expel or
otherwise discriminate against any person because
such person has opposed any discriminatory employ-
ment practice or because such person has filed a com-
plaint or testified or assisted in any proceeding under
section 46a-82, 46a-83 or 46a-84 . . . .’’ The court found
that the plaintiff had alleged that he had engaged in a
protected activity when he openly called Agosto ‘‘pas-
tor’’ in Cifuentes’ presence. The court concluded that
the plaintiff’s use of the term pastor in defiance of
Cifuentes’ request that he not do so at work, however,
was neither a formal nor informal protest of discrimina-
tion, but a continuation of behavior that Cifuentes had
advised him against. The court concluded that because
the plaintiff’s acts did not fall under the category of
protected activity, he had failed to establish a prima
facie case of retaliation in violation of the act and that
there were no genuine issues of material fact in that
regard.
In count three, the plaintiff had alleged that the defen-
dant aided and abetted the unlawful conduct of its
supervisors and employees by permitting more than
one of its agents to discriminate against him on the
basis of his religious beliefs. Section 46a-60 (a) provides
in relevant part that ‘‘[i]t shall be a discriminatory prac-
tice in violation of this section . . . (5) [f]or any per-
son, whether an employer or an employee or not, to
aid, abet, incite, compel or coerce the doing of any act
declared to be a discriminatory employment practice
or to attempt to do so . . . .’’ The court noted that in
Connecticut, ‘‘an individual employee may be held liable
for aiding and abetting his employer’s discrimination;
an employer [however] cannot be liable for aiding and
abetting its own discriminatory conduct.’’ (Internal quo-
tation marks omitted.) Farrar v. Stratford, 537 F. Supp.
2d 332, 356 (D. Conn. 2008), aff’d, 391 Fed. Appx. 47
(2d Cir. 2010). The court concluded that the defendant
could not have aided and abetted illegal discrimination
because the plaintiff could not establish a prima facie
case of discrimination against the defendant. Moreover,
merely mentioning ‘‘supervisors and employees [who]
assisted the alleged illegal, discriminatory conduct in
the complaint’’ is not sufficient to sustain a claim of
aiding and abetting against the defendant. The defen-
dant cannot have discriminated against the plaintiff and
at the same time aided and abetted its discrimination
against him. The court concluded that the plaintiff had
failed to state an aiding and abetting claim against
the defendant.4
We now set forth the standard of review and the
principles that guide our analysis of appeals from the
rendering of summary judgment. ‘‘Practice Book § 17-
49 provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.’’ (Internal quotation marks
omitted.) Rivers v. New Britain, 288 Conn. 1, 10, 950
A.2d 1247 (2008). ‘‘In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under the applicable principles of substan-
tive law, entitle him to a judgment as a matter of law
. . . and the party opposing such a motion must pro-
vide an evidentiary foundation to demonstrate the exis-
tence of a genuine issue of material fact.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Altfeter v. Naugatuck, 53 Conn. App. 791, 800,
732 A.2d 207 (1999).
‘‘A material fact is a fact that will make a difference
in the result of the case.’’ (Internal quotation marks
omitted.) Vollemans v. Wallingford, 103 Conn. App. 188,
193, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d
579 (2008). ‘‘It is not enough for the moving party merely
to assert the absence of any disputed factual issue; the
moving party is required to bring forward . . . eviden-
tiary facts, or substantial evidence outside the pleadings
to show the absence of any material dispute. . . . The
party opposing summary judgment must present a fac-
tual predicate for his argument to raise a genuine issue
of fact. . . . Once raised, if it is not conclusively
refuted by the moving party, a genuine issue of fact
exists, and summary judgment is inappropriate.’’ (Inter-
nal quotation marks omitted.) Id. ‘‘[A] party opposing
summary judgment must substantiate its adverse claim
by showing that there is a genuine issue of material
fact together with the evidence disclosing the existence
of such an issue.’’ (Internal quotation marks omitted.)
Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn.
185, 202, 663 A.2d 1001 (1995). Demonstrating a genuine
issue ‘‘requires the parties to bring forward before trial
evidentiary facts, or substantial evidence outside the
pleadings, from which the material facts alleged in the
pleadings can warrantably be inferred.’’ United Oil Co.
v. Urban Redevelopment Commission, 158 Conn. 364,
378–79, 260 A.2d 596 (1969).
‘‘The burden of proof that must be met to permit an
employment-discrimination plaintiff to survive a sum-
mary judgment motion at the prima facie stage is de
minim[i]s. . . . Since the court, in deciding a motion
for summary judgment, is not to resolve issues of fact,
its determination whether the circumstances giv[e] rise
to an inference of discrimination must be a determina-
tion of whether the proffered admissible evidence
shows circumstances that would be sufficient to permit
a rational finder of fact to infer a discriminatory
motive.’’ (Citation omitted; internal quotation marks
omitted.) Chambers v. TRM Copy Centers Corp., 43
F.3d 29, 37–38 (2d Cir. 1994).
‘‘On appeal, [an appellate court] must determine
whether the legal conclusions reached by the trial court
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision of the trial court. . . . [Appellate] review of
the trial court’s decision to grant [a] defendant’s motion
for summary judgment is plenary.’’ (Internal quotation
marks omitted.) Rivers v. New Britain, supra, 288
Conn. 10.
I
The plaintiff claims that in ruling on the defendant’s
motion for summary judgment, the court improperly
applied the pretext/McDonnell Douglas-Burdine model
of analysis rather than the mixed-motive/Price Water-
house model in determining whether he established
a prima facie case of employment discrimination. We
conclude that the court applied the appropriate model.
‘‘Connecticut statutorily prohibits discrimination in
employment based upon race, color, religious creed,
age, sex, marital status, national origin, ancestry, pre-
sent or past history of mental disorder, mental retarda-
tion, and learning disability or physical disability.
General Statutes § 46a-60 (a) (1).’’ Levy v. Commission
on Human Rights & Opportunities, 236 Conn. 96, 102,
671 A.2d 349 (1996). Our courts look to federal prece-
dent for guidance in applying the act. Miko v. Commis-
sion on Human Rights & Opportunities, 220 Conn.
192, 202, 596 A.2d 396 (1991).
Generally, there are four theories of employment dis-
crimination under federal law. Levy v. Commission on
Human Rights & Opportunities, supra, 236 Conn. 103.
In the present case, we are concerned with a claim of
disparate treatment. ‘‘Under the analysis of the dispa-
rate treatment theory of liability, there are two general
methods to allocate the burdens of proof: (1) the mixed-
motive/Price Waterhouse model . . . and (2) the pre-
text/McDonnell Douglas-Burdine model.’’ (Citation
omitted.) Id., 104–105.
‘‘The legal standards governing discrimination claims
involving adverse employment actions are well estab-
lished.’’ Feliciano v. Autozone, Inc., 316 Conn. 65, 73,
111 A.3d 453 (2015). ‘‘A mixed-motive [Price Water-
house] case exists when an employment decision is
motivated by both legitimate and illegitimate reasons.
. . . In such instances, a plaintiff must demonstrate
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. . . .
‘‘The critical inquiry [in a mixed-motive case] is
whether [a] discriminatory motive was a factor in the
[employment] decision at the moment it was made.
. . . Under this 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.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Levy v. Commission on Human Rights &
Opportunities, supra, 236 Conn. 105–106.
‘‘Often, a plaintiff cannot prove directly the reasons
that motivated an employment decision. Nevertheless,
a plaintiff may establish a prima facie case of discrimi-
nation through inference by presenting facts [that are]
sufficient to remove the most likely bona fide reasons
for an employment action . . . .’’ (Internal quotation
marks omitted.) Id., 107. ‘‘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.’’ Id.
The plaintiff claims that the court should have applied
the mixed-motive/Price Waterhouse model of analysis
because he established a prima facie case that the defen-
dant’s employment action was motivated by an
improper reason, namely, religious discrimination. The
trial court disagreed, as stated in a footnote in its memo-
randum of decision: ‘‘In [his] objection to the defen-
dant’s motion for summary judgment, the plaintiff
argues that his employment discrimination claim is enti-
tled to the Price Waterhouse mixed-motive analysis. ‘A
mixed motive case exists when an employment decision
is motivated by both legitimate and illegitimate rea-
sons.’ [Id.], 105. In his complaint and affidavit submitted
with the objection to the motion for summary judgment,
however, the plaintiff does not allege that his termina-
tion was the result of legitimate and illegitimate rea-
sons, but rather alleges facts which demonstrate that
the defendant’s reason for termination was a pretext
for illegal religious discrimination. Thus, the McDonnell
Douglas-Burdine pretext model of analysis, instead of
the Price Waterhouse mixed-motive analysis, applies.’’
On the basis of our plenary review of the plaintiff’s
second revised complaint and his affidavit in opposition
to the defendant’s motion for summary judgment, we
conclude that the plaintiff did not allege that he was
fired for both legitimate and illegitimate reasons. We
therefore agree with the trial court that the pretext/
McDonnell Douglas-Burdine model of analysis applied.
II
The plaintiff’s second claim is that even if the court
properly determined that the pretext/McDonnell Doug-
las-Burdine model of analysis was appropriate, the
court improperly found that the defendant had demon-
strated the absence of any genuine issue of material
fact as to whether the circumstances under which he
was fired gave rise to an inference of discrimination.
We do not agree.
Under the pretext/McDonnell Douglas-Burdine anal-
ysis, ‘‘the employee must first make a prima facie case
of discrimination. . . . In order for the employee to
first make a prima facie case of discrimination, the
plaintiff must show: (1) the plaintiff is a member of a
protected class; (2) the plaintiff was qualified for the
position; (3) the plaintiff suffered an adverse employ-
ment action; and (4) the adverse employment action
occurred under circumstances that give rise to an infer-
ence of discrimination. . . . The employer may then
rebut the prima facie case by stating a legitimate, non-
discriminatory justification for the employment deci-
sion in question. . . . This burden is one of production,
not persuasion . . . . The employee then must demon-
strate that the reason proffered by the employer is
merely a pretext and that the decision actually was
motivated by illegal discriminatory bias.’’ (Citations
omitted; internal quotation marks omitted.) Feliciano
v. Autozone, Inc., 142 Conn. App. 756, 769–70, 66 A.3d
911 (2013), rev’d in part on other grounds, 316 Conn.
65, 111 A.3d 453 (2015); see also Craine v. Trinity
College, 259 Conn. 625, 636–37, 791 A.2d 518 (2002).Cir-
cumstances contributing to a permissible inference of
discriminatory intent under the fourth McDonnell Doug-
las-Burdine factor include (1) the employer’s continu-
ing, after discharging the plaintiff, to seek applicants
from persons of the plaintiff’s qualifications to fill that
position; (2) the employer’s criticism of the plaintiff’s
performance in ethnically degrading terms or invidious
comments about others in the employee’s protected
group; (3) the more favorable treatment of employees
not in the protected group; or (4) the sequence of events
leading to the plaintiff’s discharge or the timing of the
discharge. See Chambers v. TRM Copy Centers Corp.,
supra, 43 F.3d 37.
The defendant set forth the following facts in support
of its motion for summary judgment.5 The plaintiff was
employed by the defendant from September, 2010,
through August 3, 2012, to perform services at the apart-
ments that are managed by WinnResidential. WinnResi-
dential is a long-standing client of the defendant for
which it provides cleaning and maintenance services
at numerous locations. Initially, the plaintiff was hired
as a cleaner/porter, but he was promoted to acting
supervisor of a four person cleaning crew in September,
2011. He reported to Cifuentes, the defendant’s opera-
tions manager for the Hartford area. Cifuentes was
responsible for ensuring that the defendant’s employees
delivered superior services to its clients. He visited
employees at their job sites one to three times a month.
He also served as the liaison between the defendant
and its clients with respect to complaints.
During the time that he was employed by the defen-
dant, the plaintiff was the chaplain of his church, and
Cifuentes knew of that affiliation. In March, 2012, the
plaintiff recommended that the defendant hire Agosto,
the pastor of the plaintiff’s church. Cifuentes informed
the plaintiff that if the defendant hired Agosto, the plain-
tiff could not treat him any differently than he treated
other members of the cleaning crew, explaining that as
a supervisor, the plaintiff had to treat all of the cleaners
whom he supervised fairly and equally and not give any
one of them preferential treatment, even if they were
friends outside of work.
In May or early June, 2012, Cifuentes received com-
plaints from members of the plaintiff’s cleaning crew
that the plaintiff was not distributing work assignments
fairly. According to members of the crew, the plaintiff
frequently assigned ‘‘ ‘easy’ ’’ jobs to Agosto and more
demanding work to them. In addition, they complained
that the plaintiff allowed Agosto to take extra breaks
and to spend time talking with residents during work
hours.6 After Cifuentes learned of the complaints, he
informed the plaintiff of them and reminded him that
as a supervisor, he was responsible for keeping Agosto
focused on work and minimizing his interaction with
residents during work hours. Moreover, Cifuentes
reminded the plaintiff that he should not treat Agosto
more favorably than the other members of his crew.
In June, 2012, Cifuentes learned that Daisy Alejandro,
assistant manager of the apartments, on a number of
occasions had observed Agosto standing in the lobby
talking with residents when he should have been work-
ing, and that he was talking to the residents about
church and God. Alejandro also heard complaints from
members of the cleaning crew that the plaintiff assigned
Agosto ‘‘ ‘easy’ ’’ jobs, while they were assigned more
demanding work. John Deming, WinnResidential’s
superintendent for the apartments, witnessed similar
conduct. According to Deming, the plaintiff and Agosto
were not performing to WinnResidential’s standards
and their work was not being completed in a timely
manner. Deming thought that the plaintiff was losing
control over his crew and that he lacked the character
to ensure that his crew was performing as it should.
In June, 2012, Alejandro, Deming, and Hagan met to
discuss the performance of the defendant’s employees.
Hagan noted that the plaintiff was giving preferential
treatment to Agosto by giving him easier tasks and
allowing him to speak with residents rather than work.
She was of the opinion that the plaintiff’s treatment of
Agosto was not conducive of a good working environ-
ment because a supervisor should treat each of his
subordinates fairly and equally. The fact that the plain-
tiff was not treating the members of the crew fairly and
equally led three members of the crew to complain to
Alejandro. Hagan also was concerned about fair hous-
ing laws, which, she stated, do not permit religion to
be discussed.
On June 14, 2012, Cifuentes met with the plaintiff
alone to address Hagan’s concerns about his perfor-
mance as a supervisor. He gave the plaintiff a verbal
warning and repeated his instructions that the plaintiff
was to treat all members of his crew equally and to
limit Agosto’s nonwork-related interaction with resi-
dents. Cifuentes then met with the plaintiff and Agosto
together. Cifuentes instructed Agosto to focus on work
and minimize his interaction with residents during
working hours and issued a written warning to Agosto.
The warning form contained a space where an employee
could state reasons why he disagreed with the warning
received.7 Agosto did not make a written statement and
left the space blank.
On June 21, 2012, the plaintiff returned to his position
as a cleaner. On June 22, 2012, Hagan sent an e-mail
to Cifuentes about an incident involving Agosto and the
plaintiff. Several tenants had complained that during a
church service, Agosto read the names of residents who
were in danger of being evicted due to poor housekeep-
ing, nonpayment of rent, or were ‘‘bad’’ tenants. The
plaintiff had helped Agosto compile the list of names.
Hagan was concerned that the plaintiff and Agosto had
accessed and misused private and confidential informa-
tion that they saw in the management office. Hagan
informed Cifuentes that the misuse of the information
violated WinnResidential’s professional conduct policy
and its restrictions on the use of information by the
defendant’s employees that they viewed or obtained
while they were working. In addition, Alejandro had
received complaints that the plaintiff had been ‘‘bad-
mouthing’’ WinnResidential by telling residents that the
‘‘office doesn’t do anything, and that’s why nothing gets
done . . . .’’ He also was warning nonresidents who
were in the apartments when staff was planning to enter
the apartments so that the nonresidents could leave
before the staff arrived. In addition, the plaintiff was
hanging out with a female who lives across the street
from the apartments. Hagan subsequently requested
that the defendant remove Agosto and the plaintiff from
their positions at the apartments.8 WinnResidential also
did not want them to work at any of its other properties.
Cifuentes confirmed Hagan’s request on July 26, 2012.
On the basis of Hagan’s request, as well as Cifuentes’
continuing concerns about the plaintiff’s and Agosto’s
job performance, Cifuentes determined that it was nec-
essary to replace both men as soon as the defendant
was able to hire qualified replacements. In his affidavit,
Cifuentes attested that the defendant strives to provide
the best possible service to its clients. It is the custom
and practice of the defendant to comply, as soon as
practicable, with any client’s legitimate request to
remove one of the defendant’s employees from a job
site. As a consequence of the defendant’s hiring require-
ments,9 it took the defendant approximately six weeks
to hire qualified replacements for the plaintiff and
Agosto.
On August 3, 2012, Cifuentes met with both Agosto
and the plaintiff and terminated their employment. The
employment warning notice that Cifuentes issued to
the plaintiff on August 3, 2012, stated that the plaintiff
had been warned several times regarding not only his
own conduct as supervisor, but also the conduct of
the crew members for whom he was responsible. The
warning notice stated that the plaintiff’s employment
was terminated due to his ongoing conduct and perfor-
mance issues, particularly on ‘‘[June 7, 2012, June 19,
2012, and July 30, 2012].’’ The plaintiff did not make a
statement objecting to the warning or termination on
the form in the space provided. See footnote 7 of
this opinion.
Cifuentes attested that it is very important to the
defendant that WinnResidential be satisfied with the
quality of the defendant’s employees. The defendant
was concerned that by failing to accommodate Hagan’s
request that the plaintiff and Agosto be removed, the
whole WinnResidential account could be put in jeop-
ardy, which could have ‘‘cost [five] other people to lose
their jobs.’’
The plaintiff opposed the defendant’s motion for sum-
mary judgment by putting forth facts that are for the
most part consistent with those presented by the defen-
dant. The plaintiff attested that when the defendant
hired Agosto, Cifuentes told the plaintiff that, while at
work, he could not refer to Agosto as ‘‘pastor’’ or give
him the respect ordinarily given to a pastor. Also, Hagan
initiated a meeting with Agosto and the plaintiff because
she had been advised by members of the plaintiff’s
cleaning crew that he was assigning Agosto easier work.
On June 14, 2012, Hagan told the plaintiff that he needed
to treat Agosto the same way he treated other workers
and not treat him with the respect of a pastor when
they were at work. Hagan brought Agosto into the meet-
ing and gave him a warning about speaking to residents
while at work and using terms such as ‘‘God bless.’’
The plaintiff acknowledged that Hagan sent Cifuentes
an e-mail about information she had received from Alej-
andro concerning Agosto’s reading the names of resi-
dents at church. Hagan assumed that the plaintiff had
given Agosto confidential information. The plaintiff
denied that Agosto read any names of residents at
church or that he had access to confidential information
that he gave to Agosto.
The plaintiff further attested that the Cintrons made
false complaints to Alejandro that the plaintiff had told
residents that the office ‘‘doesn’t do anything, and that’s
why nothing gets done,’’ and that the plaintiff spends
time on his phone talking to female residents. The plain-
tiff denied the complaints. He accused the Cintrons of
making the false complaints in retaliation for Agosto’s
having reprimanded them for playing music at an inap-
propriate time during church. The plaintiff, however,
acknowledged that Hagan requested that Cifuentes
remove him from his position as a cleaner/porter.
With respect to the August 3, 2012 meeting when
Cifuentes fired him, the plaintiff attested: ‘‘Cifuentes
called a meeting to officially [terminate] Mr. Agosto
from his position as cleaner/porter while I was present
as his supervisor. When I referred to Mr. Agosto as
‘pastor’ during this meeting, Mr. Cifuentes got immedi-
ately angry and immediately removed me from my posi-
tion as well.’’ Finally, the plaintiff denied that he had any
performance issues during the time of his employment
with the defendant and stated that Riddle previously
had praised his appointment as a temporary supervisor.
In applying the pretext/McDonnell Douglas-Burdine
model to the facts presented by the parties, the court
noted that the plaintiff alleged that he was a member
of a protected class, was qualified for his position and
was fired from his position due to his use of the term
‘‘pastor’’ when referring to Agosto, his coworker, in
the presence of Cifuentes. The plaintiff asserted that
because the defendant disapproved of its employees
using religious terms such as ‘‘pastor’’ to refer to one
another while they were at work and because the defen-
dant was aware of the plaintiff’s status as chaplain in
Agosto’s church, the plaintiff’s termination from
employment occurred under circumstances giving rise
to an inference of religious discrimination. The court,
however, found that the facts failed to establish that
the defendant harbored any bias that created an infer-
ence of discrimination and that there were no genuine
issues of material fact in that regard.
On appeal, the plaintiff argues that the court erred
in concluding that there were no genuine issues of mate-
rial fact because trial courts should be cautious when
granting summary judgment in employment discrimina-
tion cases when an employer’s intent is in question. See
Miller v. Edward Jones & Co., 355 F. Supp. 2d 629, 636
(D. Conn. 2005) (United States Court of Appeals for
the Second Circuit cautioned district courts that direct
evidence of intent rarely found). He argues that evi-
dence of an employer’s discriminatory intent will rarely
be found and that affidavits must be carefully scruti-
nized for circumstantial proof, which, if believed, shows
discrimination. Id. Moreover, intent raises an issue of
material fact that cannot be decided on a motion for
summary judgment. Picataggio v. Romeo, 36 Conn. App.
791, 794, 654 A.2d 382 (1995). He concedes, however,
that the quantum of evidence produced by the defen-
dant outweighed his evidence, but he insists that he
put forth some evidence that gives rise to an inference
of religious discrimination on the part of the defendant.
In its brief on appeal, the defendant countered the
plaintiff’s claim of prima facie discrimination with a
number of nondiscriminatory reasons it had to termi-
nate the plaintiff’s employment, none of which had any-
thing to do with his religion or church membership: (1)
as supervisor of a cleaning crew, the plaintiff elevated
Agosto above his coworkers, which created morale
problems; (2) WinnResidential reasonably believed and
communicated to the defendant that the plaintiff helped
Agosto obtain confidential information about the status
of certain residents that Agosto then published in his
church, (3) the plaintiff disparaged WinnResidential to
its tenants; and (4) WinnResidential asked the defen-
dant to replace the plaintiff who, as a supervisor, ele-
vated Agosto above his fellow workers, helped Agosto
obtain confidential information that he published, and
disparaged WinnResidential.
On appeal, the plaintiff argues that he presented suffi-
cient evidence from which a reasonable fact finder
could conclude that the basis of the defendant’s motiva-
tion to terminate his employment was his religion. The
plaintiff’s argument is founded on his view of the time
and manner in which Cifuentes fired him. In the plain-
tiff’s mind, Cifuentes met with the plaintiff and Agosto
on August 3, 2012, for the purpose of firing only Agosto.
Thereafter, when the plaintiff referred to Agosto as
pastor, Cifuentes became angry and fired him as well.
In other words, religion was Cifuentes’ motivating fac-
tor at the time he fired the plaintiff. See Levy v. Commis-
sion on Human Rights & Opportunities, supra, 236
Conn. 106 (critical fact whether impermissible motive
was factor at time termination decision was made). The
plaintiff contends that Cifuentes’ action directly reflects
discrimination on the basis of the plaintiff’s religion
and permits the fact finder to conclude that the adverse
employment consequence was the result of an imper-
missible factor. He also argues that there is nothing in
the record indicating that he was warned several times
about his own behavior and that of members of his
crew, and there is nothing in the record to confirm that
he gave Agosto easier work assignments or that he
permitted him to socialize with residents rather than
work.
To bolster his position that he established a prima
facie case of discrimination, the plaintiff cites Hagan’s
affidavit, in which she attests that she had heard reports
that in the workplace, the plaintiff referred to Agosto
as ‘‘pastor.’’ She attested to her belief that the use of
such terms is not conducive to a good working environ-
ment. Hagan’s attestations, however, go to her reasons
for not wanting the plaintiff and Agosto to work at the
apartments or any site managed by WinnResidential.
Significantly, Hagan was employed by WinnResidential,
not by the defendant. She, therefore, was not the defen-
dant’s agent.
‘‘[R]emarks made by someone other than the person
who made the decision adversely affecting the plaintiff
may have little tendency to show that the decision-
maker was motivated by the discriminatory sentiment
expressed in the remark.’’ Tomassi v. Insignia Finan-
cial Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007), abro-
gated in part on other grounds by Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 177–78, 129 S.
Ct. 2343, 174 L. Ed. 2d 119 (2009). Cifuentes was
requested and motivated to fire both the plaintiff and
Agosto in June, 2012, when he learned that WinnResi-
dential did not want either man to work at the apart-
ments because the plaintiff gave Agosto preferential
treatment, they took confidential information from the
office and published it, the plaintiff denigrated WinnRe-
sidential, and he helped nonresidents avoid detection.
Cifuentes’ job was to ensure that the defendant’s
employees performed to the satisfaction of its clients.
If WinnResidential was not happy with the plaintiff and
Agosto, the defendant risked losing the account if it
did not fire them.
In responding to the plaintiff’s arguments on appeal,
the defendant has undertaken an analysis of the Cham-
bers factors. ‘‘Circumstances contributing to a permissi-
ble inference of discriminatory intent may include [1]
criticism of the plaintiff’s performance in [discrimina-
tory] terms . . . invidious comments about others in
the employee’s protected group . . . [2] the more
favorable treatment of employees not in the protected
group . . . or [3] the sequence of events leading to the
plaintiff’s discharge . . . or the timing of the discharge
. . . .’’ (Citations omitted.) Chambers v. TRM Copy
Centers Corp., supra, 43 F.3d 37. ‘‘Since the court, in
deciding a motion for summary judgment, is not to
resolve issues of fact, its determination of whether the
circumstances giv[e] rise to an inference of discrimina-
tion must be a determination of whether the proffered
admissible evidence shows circumstances that would
be sufficient to permit a rational finder of fact to infer
a discriminatory motive.’’ (Internal quotation marks
omitted.) Id., 38. ‘‘In the absence of any affirmative
evidence of a causal connection between [the defen-
dant’s agent’s] discriminatory animus toward the plain-
tiff and the defendant’s termination of her employment,
no inference of the defendant’s discriminatory intent
can be made.’’ Feliciano v. Autozone, Inc., 316 Conn.
65, 80, 111 A.3d 453 (2015).
As to the first Chambers factor, the defendant repre-
sents that Cifuentes was the only agent of the defendant
who interacted with the plaintiff and did so in a profes-
sional manner. In his affidavit, Cifuentes attested that he
informed the plaintiff of the complaints he had received
regarding the plaintiff’s preferential treatment of
Agosto, that the plaintiff needed to treat all members
of the crew equally, and that it was his responsibility
to keep Agosto focused on work and to minimize his
interactions with tenants. There are no religious refer-
ences in Cifuentes’ interaction with the plaintiff. In
objecting to the motion for summary judgment, the
plaintiff did not take issue with Cifuentes’ affidavit or
otherwise produce countervailing facts. The plaintiff
also did not take issue with Cifuentes’ description of
the June 14, 2012 meeting with the plaintiff and Agosto
together and when Cifuentes gave Agosto a written
warning. Even if, as the plaintiff claims, Cifuentes told
Agosto not to talk to residents about religion, that
admonishment is in keeping with the defendant’s policy
that employees limit their interaction with residents
during working time. Analysis of this factor does not
tip in the plaintiff’s favor.
The second Chambers factor is whether the defen-
dant treated employees who are not members of the
plaintiff’s protected group more favorably. The plaintiff
presented no evidence that the defendant treated others
more favorably than it treated the plaintiff or Agosto.
It was the plaintiff who gave Agosto more favorable
treatment than other members of the cleaning crew he
supervised. This factor weighs against the plaintiff.
As to the sequence of events leading to the plaintiff’s
employment termination, Cifuentes made the decision
to fire him on June 26, 2012, two weeks after Cifuentes
met with the plaintiff and Agosto to discuss their defi-
cient performances. Cifuentes made the decision to fire
them after he heard from Hagan that residents had
reported that the names of residents were read in
church, and that the plaintiff was telling tenants that
the ‘‘office doesn’t do anything, and that’s why nothing
gets done.’’ Hagan requested that the defendant remove
the plaintiff and Agosto from the apartments and not
place them at any location managed by WinnResiden-
tial. On June 26, 2012, Cifuentes clarified with Hagan
that he should replace the men as soon as qualified
employees were found.
The plaintiff’s assertion that Cifuentes’ conduct when
he fired him and Agosto raised an inference of discrimi-
nation is unsupported by the record. ‘‘A mere assertion
of fact in the affidavit of the party opposing summary
judgment is not enough to establish the existence of a
material fact that, by itself, defeats a claim for summary
judgment.’’ Campbell v. Plymouth, 74 Conn. App. 67,
83, 811 A.2d 243 (2002). In his affidavit, Cifuentes stated
that he met with the plaintiff and Agosto on August 3,
2012, ‘‘and told them that they were terminated due to
ongoing conduct and performance issues.’’ By contrast,
the plaintiff stated that during the meeting ‘‘[w]hen I
referred to Mr. Agosto as ‘pastor’ during this meeting,
Mr. Cifuentes got immediately angry and immediately
removed me from my position as well.’’ Neither Agosto
nor the plaintiff referenced Cifuentes having gotten
angry in the employee’s remarks section of their August
3, 2012 warning records. This factor does not weigh in
favor of an inference of a discriminatory motive.
Finally, the defendant argues that the ‘‘same-actor
inference’’ negates any inference of discrimination
because Cifuentes hired and fired Agosto within a short
period of time. ‘‘[W]here the person who made the deci-
sion to fire was the same person who made the decision
to hire, it is difficult to impute to her an invidious moti-
vation that would be inconsistent with the decision to
hire.’’ (Internal quotation marks omitted.) Schnabel v.
Abramson, 232 F.3d 83, 91 (2d Cir. 2000). ‘‘The premise
underlying this inference is that if the person who fires
an employee is the same person that hired him, one
cannot logically impute to that person an invidious
intent to discriminate against the employee. Such an
inference is strong where the time elapsed between the
events of hiring and firing is brief. . . . [T]he same-
actor inference is permissive, not mandatory, [but] it
applies with greatest force where the act of hiring and
firing are not significantly separated in time . . . .’’
(Citations omitted; internal quotation marks omitted.)
Saliga v. Chemtura Corp., Docket No. 12-cv-832 (VAB),
2015 U.S. Dist. LEXIS 133135, *26 (D. Conn. October 1,
2015). At the time Cifuentes hired Agosto, he knew of
his religion and relationship to the plaintiff. He hired
and fired Agosto within approximately five months.
What happened in the interim is that Cifuentes received
reports from WinnResidential personnel that the plain-
tiff gave Agosto preferential treatment on the cleaning
crew, provided him with confidential information about
tenants from the apartment office, and talked negatively
about WinnResidential. The defendant argues that these
are reasons not to draw an inference of religious dis-
crimination on the defendant’s part when it terminated
the plaintiff’s employment.
We find the defendant’s analysis of the underlying
facts and Chambers analysis persuasive that the trial
court properly determined that there were no genuine
issues of material fact that the defendant harbored bias
or a discriminatory intent on the basis of the plaintiff’s
religion. We emphasize the fact that the defendant hired
the plaintiff as a cleaner/porter in 2010 and promoted
him to acting crew supervisor in 2011. The plaintiff has
not pointed to any facts by which one could infer that
the defendant discriminated against him on the basis
of his religion and church membership prior to the
hiring of Agosto, the plaintiff’s pastor. The defendant’s
complaints about the plaintiff’s performance arose
when he gave Agosto preferential treatment at the
expense of other members of the cleaning crew and
permitted Agosto to interact with tenants during work-
ing hours. For all of the foregoing reasons, the plaintiff’s
claim fails.
III
The plaintiff’s third claim is that the court improperly
granted summary judgment on his retaliation claim
because the defendant failed to meet its burden to show
that there were no genuine issues of material fact as
to whether the plaintiff engaged in a protected activity.
We disagree.
In count two of his second revised complaint, the
plaintiff alleged that the defendant retaliated against
him in violation of § 46a-60 (a) (4). In count two the
plaintiff realleged his claims of employment discrimina-
tion and, among other things, that he held a bona fide
religious belief and was chaplain at the Tabernacle of
Reunion Church where Agosto was the pastor. He
alleged that the defendant’s agents were aware of his
religious beliefs and relationships and discriminated
against him on the basis of his religion and ‘‘retaliated
against [him] by discharging him for practicing his reli-
gious beliefs as more fully’’ alleged in his complaint.
Section 46a-60 (a) provides in relevant part: ‘‘It shall
be a discriminatory practice in violation of this section
. . . (4) [f]or any . . . employer . . . to discharge
. . . or otherwise discriminate against any person
because such person has opposed any discriminatory
employment practice or because such person has filed
a complaint or testified or assisted in any proceeding
under section 46a-82, 46a-83 or 46a-84 . . . .’’
The trial court found that the plaintiff alleged that
he had engaged in protected activity when he openly
called Agosto ‘‘pastor’’ in Cifuentes’ presence. The court
concluded that the use of the term ‘‘pastor’’ in defiance
of the defendant’s request that he not do so at work is
neither a formal nor informal protest of discrimination,
but rather a continuation of a behavior that the defen-
dant advised the plaintiff against. The plaintiff’s actions,
therefore, do not fall under the category of activity
protected by § 46a-60 (a) (4), and he failed to establish
a prima facie case of retaliation under the act.
A prima facie case of retaliation requires a plaintiff
to show (1) that he or she participated in a protected
activity that was known to the defendant, (2) an employ-
ment action that disadvantaged the plaintiff, and (3) a
causal relation between the protected activity and the
disadvantageous employment action. See Hebrew
Home & Hospital, Inc. v. Brewer, 92 Conn. App. 762,
770, 886 A.2d 1248 (2005). ‘‘The term protected activity
refers to action taken to protest or oppose statutorily
prohibited discrimination.’’ (Internal quotation marks
omitted.) Jarrell v. Hospital for Special Care, 626 Fed.
Appx. 308, 311 (2d Cir. 2015). ‘‘The law protects employ-
ees in the filing of formal charges of discrimination as
well as in the making of informal protests of discrimina-
tion, including making complaints to management, writ-
ing critical letters to customers, protesting against
discrimination by industry or society in general, and
expressing support of coworkers who have filed formal
charges.’’ (Internal quotation marks omitted.) Matima
v. Celli, 228 F.3d 68, 78–79 (2d Cir. 2000).
On appeal, the plaintiff claims that he alleged that
he participated in a protected activity by continuing to
refer to Agosto as ‘‘pastor’’ despite having been told
that he should not do so while the two were working.
The plaintiff, however, did not allege that he partici-
pated in a protected activity by formally or informally
protesting the defendant’s alleged religious discrimi-
nation.
As previously stated, Practice Book § 17-49 provides
that summary judgment ‘‘shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as
a matter of law.’’ (Emphasis added.) ‘‘[I]t [is] incumbent
upon the party opposing summary judgment to establish
a factual predicate from which it can be determined,
as a matter of law, that a genuine issue of material fact
exists.’’ (Internal quotation marks omitted.) Dinnis v.
Roberts, 35 Conn. App. 253, 260, 644 A.2d 971, cert.
denied, 231 Conn. 924, 648 A.2d 162 (1994). ‘‘[M]aterial
facts are those that will make a difference in the case,
and they must be pleaded.’’ McCann Real Equities
Series XXII, LLC v. David McDermott Chevrolet, Inc.,
93 Conn. App. 486, 511, 890 A.2d 140, cert. denied,
277 Conn. 928, 895 A.2d 798 (2006). ‘‘The purpose of a
complaint . . . is to limit the issues at trial, and it is
calculated to prevent surprise. . . . It must provide
adequate notice of the facts claimed and the issues to
be tried.’’ (Citation omitted; internal quotation marks
omitted.) New Milford Savings Bank v. Roina, 38 Conn.
App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn.
915, 665 A.2d 609 (1995). Even a generous reading of
the plaintiff’s allegations of retaliation do not put the
defendant or the court on notice that he engaged in a
protected activity under § 46a-60 (a) (4). We agree with
the trial court that the facts alleged by the plaintiff
in his retaliation claim do not rise to the level of a
protected activity.
Moreover, the plaintiff failed to raise a genuine issue
of material fact. The plaintiff acknowledges that he did
not formally protest the defendant’s telling him not
to refer to Agosto as ‘‘pastor.’’ He claims on appeal,
however, that his reference to Agosto as ‘‘pastor’’ at
the time Cifuentes fired Agosto constituted an informal
complaint. The plaintiff, however, did not document
his protest in the employee’s remarks section of the
employee warning record. He also did not attest to
lodging an informal protest in his affidavit filed in oppo-
sition to the defendant’s motion for summary judgment.
‘‘[A] party may not rely on mere speculation or conjec-
ture as to the true nature of the facts to overcome a
motion for summary judgment. . . . A party opposing
a motion for summary judgment must substantiate its
adverse claim by showing that there is a genuine issue
of material fact together with the evidence disclosing
the existence of such an issue.’’ (Citation omitted; inter-
nal quotation marks omitted.) Altfeter v. Naugatuck,
supra, 53 Conn. App. 801. Because he did not allege
that he had engaged in a protected activity or present
evidence that he formally or informally protested the
defendant’s alleged religious discrimination, his claim
on appeal fails. The court, therefore, properly granted
summary judgment on count two of the second
revised complaint.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Levy v. Commission on Human Rights & Opportunities, 236 Conn.
96, 104–109, 671 A.2d 349 (1996) (differentiating disparate employment treat-
ment models).
2
The court considered all of the exhibits submitted by both of the parties,
even though they may not have been authenticated, because there was no
objection to them.
3
On appeal, the plaintiff takes issue with the court’s finding that there
were no genuine issues of material fact, but he does not take issue with
the court’s summary of the underlying facts.
4
The plaintiff’s brief on appeal fails to address the court’s granting of
summary judgment with respect to his claim of aiding and abetting. We,
therefore, consider any claim that the court improperly granted summary
judgment as to count three abandoned. See, e.g., Charles v. Mitchell, 158
Conn. App. 98, 102 n.4, 118 A.3d 149 (2015) (failure to brief claim).
5
Attached to the memorandum of law were numerous exhibits, including
some of the plaintiff’s employment records and affidavits from Cifuentes,
Hagan, Daisy Alejandro and Joseph Deming of WinnResidential.
6
To ensure the delivery of efficient, reliable and high quality services,
Cifuentes attested, the defendant instructed its employees to limit their
interaction with the tenants and employees of clients at work sites.
7
That section of the form states that ‘‘[t]he absence of any statement on
the part of the EMPLOYEE indicates his/her agreement with the report
as stated.’’
8
In her affidavit that was submitted with the defendant’s motion for
summary judgment, Hagan attested in part: ‘‘In or about June of 2012, staff
performance was discussed among . . . Deming . . . Alejandro . . . and
me. It was brought to my attention that [the plaintiff] gave preferential
treatment to Agosto. He called him pastor in the workplace. We did not
want him to do that because it was a title of respect and authority while
[the plaintiff] was to be the supervisor. It was also not conducive to a good
working environment because the supervisor should be treating each of his
subordinates fairly and equally—it was creating a problem as the other three
workers were complaining to [Alejandro]. I also was concerned about Fair
Housing Laws where religion was not to be discussed at all. It was also
brought to my attention that Agosto engaged in excessive interaction [apart-
ment] residents during working hours when he should be working, not
socializing. . . . It was also reported to me that Agosto was talking to
residents about church, religion and God when he was to be working.’’
9
The defendant requires potential employees to undergo drug testing and
background checks.
10
To be clear, the resolution of the religious discrimination claim in this
case is limited to the alleged facts. The plaintiff’s claim does not turn on
the use of religious titles and honorifics in the workplace, and we offer no
opinion in that regard.