Jones v. Dept. of Children & Families

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MICHAEL JONES v. DEPARTMENT OF CHILDREN
AND FAMILIES
(AC 37529)
DiPentima, C. J., and Prescott and Gruendel, Js.
Argued September 19, 2016—officially released April 4, 2017
(Appeal from Superior Court, judicial district of
Hartford, Scholl, J. [judgment].)
James V. Sabatini, for the appellant (plaintiff).
Josephine S. Graff, assistant attorney general, with
whom were Antoria D. Howard, associate attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
and Ann E. Lynch, assistant attorney general, and for
the appellee (defendant).
Opinion
GRUENDEL, J. In this employment discrimination
case, the plaintiff, Michael Jones, appeals from the trial
court’s judgment in favor of the defendant, the Depart-
ment of Children and Families. On appeal, the plaintiff
claims that the court improperly concluded that he did
not meet his burden of persuasion with respect to his
allegations that the defendant subjected him to unlawful
discrimination on the basis of his sexual orientation.
See Connecticut Fair Employment Practices Act (act),
General Statutes § 46a-51 et seq. Specifically, the plain-
tiff contends that the court: (1) improperly imposed on
the plaintiff the burden of proving the falsity of the
reason given by the defendant for the termination, (2)
improperly applied an adverse inference against the
plaintiff (3) failed to correctly apply the ‘‘cat’s paw’’
theory of liability, (4) erred by failing to make factual
findings regarding discriminatory animus held by the
plaintiff’s supervisors, and (5) improperly concluded
that the plaintiff’s retaliation claim relied on timing
alone. We disagree with the plaintiff’s assertions and
affirm the judgment of the trial court.
The following facts and procedural events are rele-
vant to this appeal. The plaintiff, an African-American
homosexual male, began his employment as a dura-
tional social worker trainee with the defendant on May
25, 2007. On December 26, 2008, the plaintiff filed a
claim of employment discrimination against the defen-
dant with the Commission on Human Rights and Oppor-
tunities (commission) alleging, in part, the claims set
forth in the present case. In December, 2010, following
the commission’s release of jurisdiction, the plaintiff
brought an action in state court alleging employment
discrimination in violation of the act. Specifically, the
plaintiff claimed that the defendant discriminated
against him during his employment because of his sex-
ual orientation, retaliated against him because he sub-
mitted a formal complaint about the discriminatory
behavior, and subjected him to a hostile work envi-
ronment.
Following a trial to the court, the court, Scholl, J.,
made detailed factual findings. Among these were find-
ings that were uncontested in the trial court proceed-
ings and others that were made by the court based on
its evaluation of the evidence. The following facts are
undisputed. The plaintiff was an employee of the defen-
dant within the meaning of the act. Valeriana DeBrito,
who was employed by the defendant as a social work
supervisor, supervised the plaintiff for part of the time
that he was employed by the defendant. The affirmative
action report written by the defendant’s internal investi-
gator concluded that DeBrito had engaged in discrimi-
natory behavior toward the plaintiff on the basis of his
sexual orientation.
Over the course of the plaintiff’s employment with the
defendant, he received three formal counseling memos.
These memos were not considered a form or act of
discipline by the defendant, but were instead used to
evaluate the plaintiff’s continued employment. On May
19, 2008, the defendant gave the plaintiff an initial proba-
tionary performance evaluation, which rated the plain-
tiff’s overall performance as ‘‘fair,’’ partly on the basis
of poor ratings in the categories of human relations and
judgment. On or about October 3, 2008, the plaintiff
e-mailed the defendant’s human resources director to
notify the defendant of discriminatory and harassing
conduct that had been directed toward him. Subse-
quently, in a nine month evaluation dated October 16,
2008, the plaintiff received an overall job performance
rating of ‘‘unsatisfactory.’’ The plaintiff was terminated
from the defendant’s employ on October 22, 2008, prior
to the expiration of his probationary work period. On
December 26, 2008, the plaintiff filed a complaint with
the commission. The commission issued the plaintiff a
release of jurisdiction letter dated October 25, 2010.
The court made the following additional factual find-
ings. DeBrito was the plaintiff’s immediate supervisor
from May, 2007, until April, 2008. At the beginning of
the plaintiff’s employment, the plaintiff and DeBrito
were friendly, but DeBrito mimicked the plaintiff on
occasion. DeBrito completed a durational performance
assessment of the plaintiff, dated September 25, 2007,
covering the period from May 25, 2007, until September
25, 2007, which could be characterized as generally
favorable to the plaintiff.
On October 25, 2007, DeBrito and her supervisor,
Robert Lapadula, met with the plaintiff and addressed
with him their concerns about his disrupting the work
place by being overly social. On December 7, 2007, the
plaintiff was appointed to a permanent social worker
position, to be effective on December 28, 2007, subject
to a ten month probationary period1 that was to expire
on October 27, 2008. A probationary period is a prelimi-
nary period of employment used to determine whether
the employee is well suited for the position for which
he was hired and whether the employee should be
retained on a permanent basis. The defendant is not
required to use progressive discipline for a probation-
ary employee.
On December 21, 2007, DeBrito issued a formal coun-
seling memorandum to the plaintiff regarding a failure
to follow directives. Three incidents were cited in the
memo. The first two incidents involved the plaintiff’s
directing new trainees to supervise visits with families
without approval from DeBrito. The third incident
involved the plaintiff’s conducting a supervised home
visit that exposed the children to safety risks without
approval from DeBrito and in disregard of her direc-
tives. The memo indicated that DeBrito had addressed
these issues with the plaintiff on several occasions and
that they had both met with Lapadula on October 25,
2007, regarding these and other performance issues.
Although the memo was not considered formal disci-
plinary action, it noted that the ‘‘failure to make and
sustain significant improvements in the area[s] listed
above may result in [the plaintiff] being dropped during
[his] [probationary] period.’’
On January 24, 2008, the plaintiff was issued a second
counseling memo by DeBrito regarding his failure to
follow directives. This memo cited an incident from
December, 2007, during which the plaintiff had submit-
ted plans to a family for review that were different from
the plans DeBrito had approved. The memo once again
noted that a failure to improve could result in the plain-
tiff’s termination during his probationary period. At the
time that this counseling memo was issued, Michael
Wood, the principal human resources specialist for the
defendant, suggested to DeBrito and Lapadula that
‘‘strong indicators are being given that [the plaintiff]
may not be a good match for the agency.’’ He noted
that this was ‘‘the second formal counseling matter for
this [probationary] employee that has demonstrated
behavior of not being able to follow instructions.’’ On
February 20, 2008, the plaintiff received a third counsel-
ing memo from DeBrito regarding his failure to follow
directives. The memo cited an instance in which the
plaintiff conducted the defendant’s business when its
office was closed, and had entered false information
into the defendant’s system.
On May 19, 2008, DeBrito completed an employee
service rating for the plaintiff for the first four months
of his probationary period from December 28, 2007 to
April 28, 2008. The plaintiff was evaluated overall as
‘‘fair,’’ a rating that is below satisfactory. The evaluation
indicated that this rating was based on claims that the
plaintiff was ‘‘difficult, pushy and demanding’’ with ser-
vice providers and clients, and that he had shown resis-
tance to supervision. The evaluation also indicated that
the plaintiff needed to demonstrate improvement in
judgment because he had conducted a supervised visit
in a home when he was told by his supervisor not to
do so, and had conducted state business on a holiday,
without prior approval or supervision, by meeting with
a family in the defendant’s parking lot. On or about
October 3, 2008, the plaintiff filed an internal discrimina-
tion complaint with the defendant’s director of human
resources in which he claimed discrimination, alleging
that his rights as a black gay man had been ‘‘tram-
pled upon.’’
In an evaluation dated October 16, 2008, which cov-
ered the period from April 28, 2008 to October, 2008,
the plaintiff’s new supervisor, Dana Goldberg,2 rated
the plaintiff’s overall performance as ‘‘unsatisfactory.’’
At the time she prepared this evaluation, Goldberg was
unaware of the plaintiff’s October 3, 2008 complaint.
Goldberg’s evaluation was based on unsatisfactory rat-
ings in the categories of human relations and judgment.
As to human relations, the evaluation noted that since
May, 2008, the defendant had received several com-
plaints about the plaintiff, including one complaint that
he had left children alone during a supervised visit
and another that he allowed the noncustodial biological
father to learn the previously undisclosed location of
his children’s residence. The plaintiff already had admit-
ted to the veracity of some of these complaints at the
time Goldberg issued her evaluation. In regard to judg-
ment, the evaluation also cited the fact that the plaintiff
had made inappropriate comments about the defen-
dant’s staff to a client and another staff member.
On October 22, 2008, Wood told the plaintiff he was
being terminated from employment. The defendant’s
internal investigation of the plaintiff’s October 3, 2008
complaint did not begin until after the decision to termi-
nate the plaintiff had been made. The letter of termina-
tion cited the fact that during the plaintiff’s probationary
period, he had ‘‘regressed in the areas of ability to learn
new duties, dependability, human relations, and judg-
ment . . . .’’ DeBrito and Goldberg were not involved
in the decision to terminate the plaintiff’s employ, but
their evaluations of his performance were considered
by the defendant’s human resources department, the
ultimate decision-maker regarding the plaintiff’s termi-
nation.
The defendant’s internal investigation into the plain-
tiff’s October 3, 2008 discrimination complaint was con-
cluded on December 11, 2008. The report by the
investigator found that there was sufficient evidence
to believe that DeBrito had engaged in discriminatory
behavior based on the plaintiff’s sexual orientation. The
report concluded, however, that the defendant had a
legitimate reason to terminate the plaintiff during his
probationary period due to his poor judgment and poor
human relations skills. The defendant issued DeBrito a
formal counseling memo as a result of the investigation.
In a subsequent grievance hearing, an arbitrator
found that there was enough evidence to establish that
two of the plaintiff’s supervisors had acted in a manner
at least appearing to be discriminatory with respect to
the plaintiff’s sexual orientation. The arbitrator con-
cluded, however, that the record lacked any clear evi-
dence of a nexus between any intentional
discriminatory supervision of the plaintiff and his loss
of employment, and that there was ample evidence that
the plaintiff’s performance issues could have supported
a termination during his probationary period.
After exhausting the defendant’s internal procedures
for review of his termination, the plaintiff commenced
the present action claiming that he was discriminatorily
terminated on the basis of his sexual orientation and
his race. Following a trial, the court issued a compre-
hensive memorandum of decision on December 12,
2014. The court concluded that the plaintiff failed to
demonstrate that the adverse employment action
occurred under circumstances giving rise to an infer-
ence of discrimination. Further, the court determined
that even if the plaintiff had established an inference
of discrimination, he had failed to refute the defendant’s
legitimate nondiscriminatory reason for terminating his
employment under the burden shifting analysis set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973). For those reasons,
the court rendered judgment in favor of the defendant.
This appeal followed. Additional facts will be set forth
as necessary.
I
We first address the plaintiff’s claim that the court
applied an incorrect standard when it found that the
plaintiff failed to prove that the defendant discriminated
against him on the basis of his sexual orientation. Spe-
cifically, the plaintiff argues that the court ‘‘conflated’’
the two different analyses used to review a discrimina-
tion claim, and thereby incorrectly imposed on the
plaintiff the burden of proving both the falsity of the
defendant’s reasons for terminating his employment,
as well as the fact that the plaintiff’s sexual orientation
was a motivating factor in the termination decision. We
do not agree that the court applied an incorrect
standard.
Connecticut statutorily prohibits discrimination in
employment based on an individual’s sexual orienta-
tion.3 See General Statutes § 46a-81c. Our courts have
looked to federal law for guidance in enforcing our own
antidiscrimination statutes, and recognize two methods
of analysis for claims of disparate treatment.4 See Levy
v. Commission on Human Rights & Opportunities,
236 Conn. 96, 103, 671 A.2d 349 (1996). Those two meth-
ods are (1) the mixed-motive/Price Waterhouse model;
Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.
Ct. 1775, 104 L. Ed. 2d 268 (1989); and (2) 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, supra, 411 U.S. 802; see also
Levy v. Commission on Human Rights & Opportuni-
ties, supra, 104–109.
The mixed-motive/Price Waterhouse analysis applies
to cases where ‘‘an employment decision is motivated
by both legitimate and illegitimate reasons. See Price
Waterhouse v. Hopkins, supra, 490 U.S. 228 . . . . In
such instances, a plaintiff must demonstrate that the
employer’s decision was motivated by one or more pro-
hibited statutory factors. Whether through direct evi-
dence or circumstantial evidence, a plaintiff must
submit enough evidence that, if believed, could reason-
ably allow a [fact finder] to conclude that the adverse
employment consequences resulted because of an
impermissible factor. . . .
‘‘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. . . .
Once the plaintiff has established his prima facie case,
the burden of production and persuasion shifts to the
defendant. [T]he defendant may avoid a finding of liabil-
ity only by proving by a preponderance of the evidence
that it would have made the same decision even if it
had not taken [the impermissible factor] into account.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) Levy v. Commission on Human
Rights & Opportunities, supra, 236 Conn. 105–106.
If a plaintiff cannot prove directly the reasons that
motivated an employment decision, the plaintiff may
establish a prima facie case under the McDonnell Doug-
las-Burdine or ‘‘pretext’’ model of analysis. Id., 107.
‘‘[T]o establish a prima facie case of discrimination . . .
the complainant must demonstrate that (1) he is in the
protected class; (2) he was qualified for the position;
(3) he suffered an adverse employment action; and (4)
that the adverse action occurred under circumstances
giving rise to an inference of discrimination. . . . 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.) Tomick v. United Parcel Ser-
vice, Inc., 157 Conn. App. 312, 326–27, 115 A.3d 1143,
cert. granted, 317 Conn. 916, 117 A.3d 854 (2015).
‘‘Under the McDonnell Douglas-Burdine model, the
burden of persuasion remains with the plaintiff. . . .
Once the plaintiff establishes a prima facie case, how-
ever, the burden of production shifts to the defendant to
rebut the presumption of discrimination by articulating
(not proving) some legitimate, nondiscriminatory rea-
son for the plaintiff’s rejection. . . . Because the plain-
tiff’s initial prima facie case does not require proof of
discriminatory intent, the McDonnell Douglas-Burdine
model does not shift the burden of persuasion to the
defendant. Therefore, [t]he defendant need not per-
suade the court that it was actually motivated by the
proffered reasons. . . . It is sufficient if the defen-
dant’s evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff. . . .
Once the defendant offers a legitimate, nondiscrimina-
tory reason, the plaintiff then has an opportunity to
prove by a preponderance of the evidence that the prof-
fered reason is pretextual. . . .
‘‘The McDonnell Douglas-Burdine analysis keeps the
doors of the courts open for persons who are unable
initially to establish a discriminatory motive. If a plain-
tiff, however, establishes a Price Waterhouse prima
facie case, thereby proving that an impermissible rea-
son motivated a defendant’s employment decision, then
the McDonnell Douglas-Burdine model does not apply,
and the plaintiff should receive the benefit of the defen-
dant bearing the burden of persuasion.’’ (Citations omit-
ted; internal quotation marks omitted.) Levy v.
Commission on Human Rights & Opportunities,
supra, 236 Conn. 108–109.
In the present case, the plaintiff argues that the court
incorrectly ‘‘conflated the two distinct ways for a plain-
tiff to prevail’’ and improperly imposed the ultimate
burden of persuasion on the plaintiff. The plaintiff cites
to Jacobs v. General Electric Co., 275 Conn. 395, 403,
880 A.2d 151 (2005), for the proposition that a plaintiff
cannot be required to prove both that the defendant’s
proffered nondiscriminatory reason was pretextual and
that a discriminatory reason motivated the defendant’s
adverse employment action. However, the plaintiff mis-
reads the Jacobs case, and, further, the trial court ana-
lyzed the plaintiff’s claims under both the Price
Waterhouse and the McDonnell Douglas-Burdine mod-
els and found that the claims failed under either
analysis.
In Jacobs, our Supreme Court held that a court may
not give jury instructions that improperly impose on
the plaintiff the burden of showing the falsity of the
defendant’s proffered explanation for the adverse
employment action. Jacobs v. General Electric Co.,
supra, 275 Conn. 403. The court also held that a proper
jury charge must inform the jury that there are two
different means by which a plaintiff may establish a
claim of intentional discrimination: ‘‘the first by direct
proof of a discriminatory motive and the second, indi-
rect method by proving that the reasons given by the
employer for the employment decision were pre-
textual.’’ Id.
In the present case, because the court performed an
analysis under each of the distinct methods, the trial
court’s decision was consistent with Jacobs. Unlike in
Jacobs, the court here, in its burden-shifting analysis,
did address each method by which the plaintiff could
prevail. The court first analyzed the plaintiff’s claims
under the McDonnell Douglas-Burdine burden-shifting
analysis, and found that the plaintiff failed to meet his
burden of proving that his employment termination was
caused by unlawful discrimination by the defendant.
The court then applied the mixed-motive/Price Water-
house analysis and found that the defendant had estab-
lished by a preponderance of the evidence that it had
a legitimate reason to terminate the plaintiff. Because
the court fully analyzed the plaintiff’s discrimination
claim under both of the recognized analytical methods,
the court’s decision was proper. Accordingly, the plain-
tiff’s claim is without merit.
II
The plaintiff also claims that the trial court incor-
rectly applied an adverse inference against him for his
failure to call Lapadula as a witness at trial. General
Statutes § 52-216c prohibits a fact finder from drawing
an adverse inference on the basis of a party’s failure
to call a witness unless the party satisfies certain crite-
ria. It provides, in relevant part: ‘‘No court in the trial
of a civil action may instruct to the jury that an inference
unfavorable to any party’s cause may be drawn from
the failure of any party to call a witness at such trial.
However, counsel for any party to the action shall be
entitled to argue to the trier of fact during closing argu-
ments . . . that [it] should draw an adverse inference
from another party’s failure to call a witness who has
been proven to be available to testify.’’ General Statutes
§ 52-216c. The plaintiff argues that the trial court
applied an adverse inference against him for his failure
to call Lapadula as a witness, and that this was done
without a showing that Lapadula was available to tes-
tify. We do not agree that an adverse inference was
used by the trial court in making its factual findings.
In discussing the plaintiff’s claim that his supervisor
DeBrito harbored discriminatory animus toward him,
the trial court stated: ‘‘The plaintiff makes much of
conversations between DeBrito and Lapadula regarding
the plaintiff in which the plaintiff claims Lapadula
described DeBrito’s perception of the plaintiff as too
gay and flamboyant and that it affected her evaluation
of his job performance. Yet Lapadula did not testify at
trial and DeBrito denied the statements [Lapadula]
made to [the defendant’s] investigator. Therefore the
court finds that there was insufficient evidence to estab-
lish that in fact DeBrito held these beliefs.’’ The trial
court’s reference to Lapadula was in regard to DeBrito’s
credibility. The plaintiff had asked the court to make a
finding that DeBrito acted with discriminatory animus,
based in part on Lapadula’s out-of-court statements
about what DeBrito had said about the plaintiff. In
weighing the evidence, the court noted that DeBrito
denied making the statements, and that Lapadula did
not testify about them. The court was simply assessing
credibility, and no inference was drawn from the fact
that Lapadula did not testify. Accordingly, the trial court
did not draw an adverse inference from the plaintiff’s
failure to produce Lapadula as a witness, and the plain-
tiff’s claim fails.
III
The plaintiff next claims that the trial court erred in
concluding that the ‘‘cat’s paw’’ theory of liability did
not apply to the present case. He argues that the facts
of this case support the cat’s paw theory of liability.
Specifically, the plaintiff claims that under the cat’s
paw theory of liability, the defendant is responsible for
intentional discrimination if its decision to terminate
his employment was tainted by the impermissible bias
of DeBrito. We agree with the trial court that the cat’s
paw theory does not apply.
‘‘[S]o-called mixed questions of fact and law, which
require the application of a legal standard to the histori-
cal-fact determinations, are not facts in this sense. . . .
[Such questions require] plenary review by this court
unfettered by the clearly erroneous standard. . . .
When legal conclusions of the trial court are challenged
on appeal, we must decide whether [those] . . . con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) D’Appollonio v. Griffo-Bran-
dao, 138 Conn. App. 304, 323–24, 53 A.3d 1013 (2012).
‘‘The cat’s paw theory of liability has been the subject
of a recent [United States] Supreme Court decision
which involved employment discrimination under the
Uniformed Services and Reemployment Rights Act
(USERRA). Staub v. Proctor Hosp., [562 U.S. 411], 131
S. Ct. 1186, 179 L. Ed. 2d 144 (2011). In Staub, the
Supreme Court considered the circumstances under
which an employer may be held liable for employment
discrimination based on the discriminatory animus of
an employee who influenced, but did not make, the
ultimate employment decision. . . . In a cat’s paw
case, a plaintiff typically seeks to hold his employer
liable for the animus of a supervisor who was not
charged with making the ultimate employment deci-
sion. The Supreme Court held that a plaintiff may estab-
lish cat’s paw liability under USERRA if a supervisor
performs an act motivated by antimilitary animus that
is intended by the supervisor to cause an adverse
employment action, and if that act is a proximate cause
of the ultimate employment action, then the employer
is liable under USERRA. . . . The Supreme Court
explained that [p]roximate cause requires only some
direct relation between the injury asserted and the inju-
rious conduct alleged, and excludes only those link[s]
that are too remote, purely contingent, or indirect.
. . .
‘‘The Supreme Court explained that if the employer’s
investigation results in an adverse action for reasons
unrelated to the supervisor’s original biased action then
the employer will not be liable. . . . However, the
supervisor’s biased report may remain a causal factor
if the independent investigation takes it into account
without determining that the adverse action was, apart
from the supervisor’s recommendation, entirely justi-
fied. . . . The Supreme Court further explained that
its holding, contrary to the dissent’s characterization,
reflected the longstanding principle that an employer
should only be liable when it had delegated part of the
decision making power to the biased supervisor. . . .
The Supreme Court reasoned that if the independent
investigation relies on facts provided by the biased
supervisor—as is necessary in any case of cat’s-paw
liability—then the employer (either directly or through
the ultimate decision maker) will have effectively dele-
gated the fact finding portion of the investigation to the
biased supervisor.’’ (Citations omitted; internal quota-
tion marks omitted.) Rajaravivarma v. Board of Trust-
ees for Connecticut State University System, 862 F.
Supp. 2d 127, 148–49 (D. Conn. 2012).
Prior to the United States Supreme Court’s decision
in Staub, this court embraced a transferred intent the-
ory that was loosely analogous to the cat’s paw theory
of liability articulated in Staub. In United Technologies
Corp. v. Commission on Human Rights & Opportuni-
ties, 72 Conn. App. 212, 234–35, 804 A.2d 1033, cert.
denied, 262 Conn. 920, 812 A.2d 863 (2002), this court
stated: ‘‘Our law allows for the transfer of intent to
discriminate . . . . It is true that [w]ithout some proof
of an improper motive, [a plaintiff’s] case must fail.
. . . Nevertheless, companies may be held liable for
discrimination even where the decision-making official
did not intentionally discriminate if the information
used by that official in deciding to terminate a worker’s
employment was filtered through another employee
who had a discriminatory motive. See Jiles v. Ingram,
944 F.2d 409, 413–14 (8th Cir. 1991) (discriminatory
intent of employer’s agents sufficient proof to hold
employer responsible for discriminatory termination
without intentional discrimination by final decision
maker); see also Kientzy v. McDonnell Douglas Corp.,
990 F.2d 1051, 1057 (8th Cir. 1993) (when a committee
has acted as the conduit of [a supervisor’s] prejudice—
his cat’s paw—the innocence of its members would not
spare the company from liability).’’ (Citation omitted;
internal quotation marks omitted.)
In the present case, the court did not err in concluding
that the cat’s paw theory of liability did not apply. After
weighing and assessing all of the evidence, the court
concluded that, regardless of whether any discrimina-
tory conduct occurred prior to the plaintiff’s termina-
tion, the ultimate decision to terminate the plaintiff was
made through an independent review of the plaintiff’s
job performance. The court agreed with the conclusions
drawn by Wood, the defendant’s internal investigation,
and the arbitrator that ‘‘there were significant lapses
in the plaintiff’s judgment warranting his drop during
the working test period.’’ Because the final termination
decision was made after an independent review of the
plaintiff’s performance based on concrete, objective
factors, the court correctly concluded that the cat’s paw
theory of liability did not apply to this case.
IV
Next, we assess the plaintiff’s claims that the court
erred by failing to make factual findings in regard to
discriminatory animus harbored by the plaintiff’s super-
visors, DeBrito and Goldberg. ‘‘Questions of fact are
subject to the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Because it is the trial court’s function to weigh the
evidence . . . we give great deference to its findings.’’
(Internal quotation marks omitted.) Reiner, Reiner &
Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d
58 (2006).
A
The plaintiff first argues that the trial court should
have found that DeBrito held a discriminatory animus
toward him, and that this discriminatory animus was
direct evidence of the defendant’s discrimination. In
support of his argument, the plaintiff points to evidence
in the record that he believes establishes that DeBrito
held a discriminatory animus toward him, as well as
the fact that the defendant admitted to this. Specifically,
the plaintiff cites to the defendant’s internal investiga-
tion, which was introduced into evidence at the trial,
as well as the testimony of Terry Lynn Johnston, the
defendant’s investigator who investigated the plaintiff’s
claims of discrimination. Though this evidence may
have supported the plaintiff’s claim that DeBrito held
a discriminatory animus toward him, the court was
entitled to weigh this supporting evidence with all of
the other evidence before arriving at its factual determi-
nation.
According to the notes from the internal investigation
that were entered into the record at trial, the defen-
dant’s investigator was told by Lapadula that DeBrito
had told the plaintiff ‘‘why can’t you be a gay man like
Bob Lapadula.’’ The notes also indicate that Lapadula
told the investigator that DeBrito had come to him and
stated that the plaintiff is ‘‘flamboyant’’ and that she
thought that the plaintiff became ‘‘more gay’’ when he
went from a durational position to a regular probation-
ary position. At trial, DeBrito denied making these state-
ments. The plaintiff also cites to Johnston’s testimony
as evidence establishing that DeBrito held a discrimina-
tory animus toward him. Johnston, however, testified
only that Lapadula had reported to her that DeBrito
had said that the plaintiff was ‘‘too gay.’’ Johnston did
not testify as to her own personal knowledge of whether
DeBrito spoke these words, and Johnston denied that
DeBrito’s perception of the plaintiff interfered with her
evaluation of the plaintiff regarding his judgment and
ability to get along with others.
Although there was conflicting evidence regarding
DeBrito’s statements about the plaintiff, the record
reflects that the trial court made a credibility determina-
tion by crediting DeBrito’s testimony over the hearsay
statements from the investigator’s notes. ‘‘Where there
is conflicting evidence . . . we do not retry the facts
or pass upon the credibility of the witnesses. . . . The
probative force of conflicting evidence is for the trier
to determine. . . . It is well established that a
reviewing court is not in the position to make credibility
determinations. . . . This court does not retry the case
or evaluate the credibility of the witnesses. . . .
Rather, we must defer to the [trier of fact’s] assessment
of the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.’’
(Internal quotation marks omitted.) Eaddy v. Bridge-
port, 156 Conn. App. 597, 606–607, 112 A.3d 230, cert.
denied, 317 Conn. 906, 114 A.3d 1220 (2015). As such,
the trial court’s finding that there was insufficient evi-
dence to establish that DeBrito held a discriminatory
animus against the plaintiff is not clearly erroneous.
B
The plaintiff also argues that the court erred in failing
to make any factual findings in regard to the plaintiff’s
other supervisor, Goldberg, and any discriminatory ani-
mus held by her toward the plaintiff. The court, how-
ever, did make factual findings about Goldberg, as
outlined herein. Accordingly, we do not agree with the
plaintiff’s assertions.
Among other factual findings, the court found that
Goldberg was the plaintiff’s supervisor from April, 2008,
until the plaintiff’s termination from employment. The
court also found that on October 16, 2008, Goldberg
issued the plaintiff an evaluation that rated the plain-
tiff’s overall performance as ‘‘unsatisfactory.’’ This eval-
uation was based on outside complaints about the
plaintiff involving his having left children alone during
a supervised visit and his having disclosed the children’s
residence to their biological father. The plaintiff
believes that this evaluation was based solely on dis-
criminatory animus toward him, and the plaintiff points
to testimony from other coworkers who alleged that
Goldberg may have treated the plaintiff differently. The
court, however, neither found that Goldberg harbored
discriminatory animus toward the plaintiff, nor did it
find that her evaluation was the result of such discrimi-
natory animus. The court’s findings are not clearly erro-
neous because the record supports an inference that
the court implicitly found contrarily to the plaintiff’s
contentions. The record shows that Goldberg based
her evaluation on objective factors involving incidents
during which the plaintiff put the safety of children at
risk. Because there is evidence in the record to show
that Goldberg’s evaluations were based on objective
factors, the trial court’s finding that there was no inten-
tional discrimination is not clearly erroneous.
V
Finally, the plaintiff challenges the court’s finding
that he failed to establish causation with regard to his
retaliation claim. Specifically, the plaintiff contends that
the court found his retaliation claim to rely solely on
timing to prove the element of causation, and that the
court ignored other forms of substantive proof put forth
by the plaintiff. Although the plaintiff argues that the
standard of review for this issue is plenary, this court
has held that ‘‘the question of causation in a prima facie
case of retaliation brought under the act is factual in
nature and thereby subject to the clearly erroneous
standard of review.’’ Ayantola v. Board of Trustees of
Technical Colleges, 116 Conn. App. 531, 538, 976 A.2d
784 (2009).
In order for a plaintiff to prevail on a claim of retalia-
tion under General Statutes 46a-60 (a) (4), he must
initially establish a prima facie case by showing that (1)
he participated in a protected activity, (2) the defendant
knew of the protected activity, (3) he was subject to
an adverse employment action, and (4) there was a
causal connection between his protected activity and
the adverse action. Id., 536. ‘‘The causation element can
be proven (1) indirectly, by showing that the protected
activity was followed closely by discriminatory treat-
ment, or through other circumstantial evidence such
as disparate treatment of fellow employees who
engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the
plaintiff by the defendant. . . . Alternatively, causa-
tion may be satisfied by showing a sufficiently close
temporal connection between the protected activity and
the adverse action . . . .’’ (Citation omitted; internal
quotation marks omitted.) Cortez v. Dept. of Transpor-
tation, 606 F. Supp. 2d 246, 251 (D. Conn. 2009). ‘‘The
trier of fact, using the evidence at its disposal and con-
sidering the unique circumstances of each case, is in
the best position to make an individualized determina-
tion of whether the temporal relationship between an
employee’s protected activity and an adverse action is
causally significant. Likewise, the trier of fact is in the
best position to determine whether the employer acted
with a retaliatory animus.’’ Ayantola v. Board of Trust-
ees of Technical Colleges, supra, 116 Conn. App. 539–40.
Under the clearly erroneous standard of review, a
finding of fact must stand if, on the basis of the evidence
before the court and the reasonable inferences to be
drawn from that evidence, a trier of fact reasonably
could have found as it did. See Tragakiss v. Dowling,
183 Conn. 72, 73, 438 A.2d 818 (1981). A finding is clearly
erroneous when there is no evidence in the record to
support it or when, although there is evidence in the
record to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. Brittell v. Dept. of
Correction, 247 Conn. 148, 165, 717 A.2d 1254 (1998).
The court found that ‘‘the plaintiff did not prove the
causation element of his [retaliation] claim’’ because
‘‘[a]lthough the plaintiff was notified that his employ-
ment was terminated on October 22, 2008, which is
close in time to the date of his complaint,5 a review of
the complaint itself reveals that the plaintiff knew, at
that time, that his termination was already being consid-
ered.’’ The court went on to consider the plaintiff’s own
statement from his October 3, 2008 complaint in which
he wrote: ‘‘If the department wants to discuss termina-
tion of my tenure as a social worker in the New Britain
area office I would be happy to discuss the issue
with you.’’
The plaintiff argues that the court’s analysis ignored
evidence of factors other than timing put forth by him
to prove the element of causation. In particular, the
plaintiff argues that the court failed to consider evi-
dence of disparate treatment regarding the defendant’s
treatment of other coworkers. The plaintiff’s argument,
however, is based on a misunderstanding of the court’s
findings. First, the court has the authority as factfinder
to discredit any evidence the court deems to be incredi-
ble or unworthy of belief. Thus, the court was not
required to credit the evidence of disparate treatment
put forth by the plaintiff.
‘‘[I]t is well established that a reviewing court is not
in the position to make credibility determinations. . . .
This court does not retry the case or evaluate the credi-
bility of the [evidence]. . . . Rather, we must defer to
the [trier of fact’s] assessment of the credibility of the
[evidence] . . . .’’ (Internal quotation marks omitted.)
Smith v. Commissioner of Correction, 121 Conn. App.
85, 92, 994 A.2d 317, cert. denied, 297 Conn. 921, 996
A.2d 1193 (2010). Second, and more importantly, the
evidence that was credited by the court to arrive at its
finding that the plaintiff failed to prove causation is
highly persuasive. Even if the court had credited the
evidence of disparate treatment, the statement by the
plaintiff in his October 3, 2008 complaint regarding his
termination all but disproves his entire claim of retalia-
tion. Our review of the record has not left us with a
definite and firm conviction that a mistake has been
committed, as the court reasonably could have con-
cluded that the plaintiff had not proven the causation
element of his retaliation claim. Accordingly, the court’s
findings were not clearly erroneous, and the plaintiff’s
claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The trial court and the parties have also referred to the probationary
period as a ‘‘working test period.’’ Although we do not dismiss their terminol-
ogy, for purposes of clarity, we will refer to this period as ‘‘probationary.’’
2
DeBrito was no longer the plaintiff’s supervisor as of late April, 2008.
3
General Statutes § 46a-81c (1) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section: (1) For an employer, by
himself or his agent, except in the case of a bona fide occupational qualifica-
tion or need, to refuse to hire or employ or to bar or to discharge from
employment any individual or to discriminate against him in compensation
or in terms, conditions or privileges of employment because the individual’s
sexual orientation or civil union status . . . .’’
4
‘‘ ‘Disparate treatment’ simply refers to those cases where certain individ-
uals are treated differently than others.’’ Levy v. Commission on Human
Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).
5
The plaintiff’s discrimination complaint was filed internally with the
defendant on October 3, 2008.