Samakaab v. Dept. of Social Services

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APPENDIX
HASAN SAMAKAAB v. DEPARTMENT
OF SOCIAL SERVICES*
Superior Court, Judicial District of Hartford
File No. CV-15-6056335S
Memorandum filed March 10, 2016
Proceedings
Memorandum of decision on defendant’s motion for
summary judgment. Motion granted.
Katrena Engstrom, for the plaintiff.
Carolynn Ennis, assistant attorney general, for the
defendant.
Opinion
SCHOLL, J.
INTRODUCTION
This an action by the plaintiff, Hasan Samakaab, pur-
suant to the Connecticut Fair Employment Practices
Act, General Statutes § 46a-60 et seq., against his
employer, the defendant state of Connecticut Depart-
ment of Social Services (DSS). The plaintiff claims that
he was denied a promotion to the position of eligibility
services supervisor on December 1, 2013, because of
his age, sex, Somalian descent, and his prior opposition
to unlawful employment practices.
The defendant has moved for summary judgment on
the plaintiff’s claims because he cannot establish a
prima facie case of discrimination or retaliation and,
in any event, the decision not to promote him was made
for a legitimate, nondiscriminatory and nonretaliatory
reason. In support of its position, the defendant submit-
ted portions of the plaintiff’s deposition; exhibits to the
deposition, which included: the plaintiff’s affidavit of
illegal discrimination provided to the Commission on
Human Rights and Opportunities, the job description
for eligibility supervisor, a letter to the commissioner
of DSS signed by the plaintiff as well as others; the
affidavit of Astread Ferron-Poole, the director of admin-
istration for DSS; and the affidavit of Lisa Wells, social
services operations manager for DSS. The plaintiff sub-
mitted a brief in opposition to the motion for summary
judgment as well as his affidavit; his deposition; the
letter to the commissioner also submitted by the defen-
dant; his responses to interrogatories; and letters and
memos of recommendation and appreciation.
DISCUSSION
‘‘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. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in
the light most favorable to the nonmoving party. . . .
Although the party seeking summary judgment has the
burden of showing the nonexistence of any material
fact [however] 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.
. . . It is not enough . . . for the opposing party
merely to assert the existence of such a disputed issue.
. . . Mere assertions of fact, whether contained in a
complaint or in a brief, are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court [in support
of a motion for summary judgment]. . . . As a general
rule, then, [w]hen a motion for summary judgment is
filed and supported by affidavits and other documents,
an adverse party, by affidavit or as otherwise provided
by . . . [the rules of practice], must set forth specific
facts showing that there is a genuine issue for trial, and
if he does not so respond, summary judgment shall be
entered against him. . . . Requiring the nonmovant to
produce such evidence does not shift the burden of
proof. Rather, it ensures that the nonmovant has not
raised a specious issue for the sole purpose of forcing
the case to trial. . . . [H]owever, one important excep-
tion exists . . . to the general rule that a party oppos-
ing summary judgment must provide evidentiary
support for its opposition . . . . On a motion by [the]
defendant for summary judgment the burden is on [the]
defendant to negate each claim as framed by the com-
plaint . . . . It necessarily follows that it is only [o]nce
[the] defendant’s burden in establishing his entitlement
to summary judgment is met [that] the burden shifts to
[the] plaintiff to show that a genuine issue of fact exists
justifying a trial. . . . Accordingly, [w]hen documents
submitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Squeo v. Norwalk Hospital Assn.,
316 Conn. 558, 593–95, 113 A.3d 932 (2015).
Section 46a-60 provides in relevant part: ‘‘(a) It shall
be a discriminatory practice in violation of this section:
(1) For an employer, by the employer or the employer’s
agent, except in the case of a bona fide occupational
qualification or need, to refuse to hire or employ or to
bar or to discharge from employment any individual or
to discriminate against such individual in compensation
or in terms, conditions or privileges of employment
because of the individual’s race, color, religious creed,
age, sex, gender identity or expression, marital status,
national origin, ancestry, present or past history of men-
tal disability, intellectual disability, learning disability
or physical disability, including, but not limited to,
blindness . . . (4) For any person, employer, labor
organization or employment agency 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 framework for the burden of production of evi-
dence and the burden of persuasion in an employment
discrimination case is well established. [McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973)] and subsequent decisions have
established an allocation of the burden of production
and an order of presentation of proof . . . in discrimi-
natory-treatment cases. . . . First, the [complainant]
must establish a prima facie case of discrimination.
. . . In order to establish a prima facie case, the com-
plainant must prove 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. . . . Once the complain-
ant establishes a prima facie case, the employer then
must produce legitimate, nondiscriminatory reasons for
its adverse employment action. . . . This burden is one
of production, not persuasion; it can involve no credibil-
ity assessment. . . . After the plaintiff has established
a prima facie case, and the defendant has produced
evidence of a legitimate, nondiscriminatory reason for
the employment action, [t]he plaintiff retains the burden
of persuasion. [The plaintiff] now must have the oppor-
tunity to demonstrate that the [defendant’s] proffered
reason was not the true reason for the employment
decision. This burden now merges with the ultimate
burden of persuading the court that [the plaintiff] has
been the victim of intentional discrimination. [The
plaintiff] may succeed in this either directly by persuad-
ing the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of
credence. . . . Employment discrimination therefore
can be proven either directly, with evidence that the
employer was motivated by a discriminatory reason,
or indirectly, by proving that the reason given by the
employer was pretextual. . . . Evidence establishing
the falsity of the legitimate, nondiscriminatory reasons
advanced by the employer may be, in and of itself,
enough to support the trier of fact’s ultimate finding of
intentional discrimination.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) Jacobs
v. General Electric Co., 275 Conn. 395, 400–401, 880 A.2d
151 (2005). ‘‘Although intermediate evidentiary burdens
shift back and forth under this framework, [t]he ulti-
mate burden of persuading the trier of fact that the
[employer] intentionally discriminated against the
[complainant] remains at all times with the [complain-
ant].’’ (Internal quotation marks omitted.) Dept. of
Transportation v. Commission on Human Rights &
Opportunities, 272 Conn. 457, 463 n.9, 863 A.2d 204(2005).
The defendant argues that the plaintiff’s claims of
discrimination fail because his allegations do not sup-
port a prima facie case of discrimination. ‘‘To establish
a prima facie case of discrimination in the employment
context, the plaintiff must present evidence that: (1)
[he] belongs to a protected class; (2) [he] was subject
to an adverse employment action; and (3) the adverse
action took place under circumstances permitting an
inference of discrimination. . . . To establish the third
prong, a litigant may present circumstantial evidence
from which an inference may be drawn that similarly
situated individuals were treated more favorably than
[he] was. . . . To be probative, this evidence must
establish that the plaintiff and the individuals to whom
[he] seeks to compare [himself] were similarly situated
in all material respects . . . .’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Perez-Dickson v. Bridgeport, 304 Conn. 483, 514, 43
A.3d 69 (2012). ‘‘[T]he standard for comparing conduct
requires a reasonably close resemblance of the facts
and circumstances of plaintiff’s and comparator’s cases,
rather than a showing that both cases are identical.
. . . In other words, the comparator must be similarly
situated to the plaintiff in all material respects.’’ (Cita-
tion omitted; internal quotation marks omitted.) Ruiz
v. County of Rockland, 609 F.3d 486, 494 (2d Cir. 2010).
The plaintiff principally relies on his own affidavit
and deposition in support of his claims. The court
agrees with the defendant that they contain mostly self-
serving and unsupported claims. ‘‘The party opposing
a motion for summary judgment must present evidence
that demonstrates the existence of some disputed fac-
tual issue . . . . The movant has the burden of show-
ing the nonexistence of such issues but the evidence
thus presented, if otherwise sufficient, is not rebutted
by the bald statement that an issue of fact does exist.
. . . To oppose a motion for summary judgment suc-
cessfully, the nonmovant must recite specific facts . . .
which contradict those stated in the movant’s affidavits
and documents. . . . The opposing party to a motion
for summary judgment must substantiate its adverse
claim by showing that there is a genuine issue of mate-
rial fact together with the evidence disclosing the exis-
tence of such an issue. . . . The existence of the
genuine issue of material fact must be demonstrated by
counteraffidavits and concrete evidence.’’ (Emphasis
omitted; internal quotation marks omitted.) Gianetti v.
Health Net of Connecticut, Inc., 116 Conn. App. 459,
464–65, 976 A.2d 23 (2009). ‘‘Although the court must
view the inferences to be drawn from the facts in the
light most favorable to the party opposing the motion
. . . 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.’’ (Internal quotation
marks omitted.) Tuccio Development, Inc. v. Neumann,
111 Conn. App. 588, 594, 960 A.2d 1071 (2008).
Even considering the plaintiff’s evidence, it does not
support a finding that an issue of fact exists as to the
validity of his claims. The plaintiff alleges that a number
of females, as well as one male, were promoted instead
of him. Some he claims were younger than he was. Most
he claims were promoted because of their personal
relationship with management, not as a result of dis-
crimination. The defendant argues that the employees
the plaintiff references were not similarly situated
because they were not promoted as a result of the
applicant pool for the position for which the plaintiff
applied. Of the two employees referenced in the plain-
tiff’s brief, Randalyn Muzzio and Deidre Smith, Muzzio
was the only one who was in the same applicant pool as
the plaintiff. But she was promoted by reclassification,
which requires a different process of approvals. As to
Smith, the plaintiff’s claim does not relate to her promo-
tion, but her being given the opportunity to temporarily
serve in a higher class. His discrimination claim here
does not relate to the loss of such opportunities, but
to his failure to be promoted to eligibility services super-
visor. Thus, the plaintiff’s evidence does not support a
finding that a disputed issue of fact exists as to whether
the circumstances surrounding the denial of his promo-
tion would give rise to an inference of discrimination.
The defendant also claims that the plaintiff’s discrimi-
nation claims fail because DSS had a legitimate, nondis-
criminatory reason for not promoting him. The court
agrees. The plaintiff was rated unacceptable overall
following his interview for the eligibility supervisor
position and therefore not eligible to be considered for
the position. The plaintiff also has not demonstrated
that DSS’ reasons for not promoting him were pre-
textual. Although the plaintiff claims that the inter-
viewer, Wells, was hostile to him, the other interviewer
rated him unacceptable as well. The plaintiff has sub-
mitted no evidence that would indicate that the ratings
were unsupported or based on discriminatory motives.
Although the plaintiff claims that he was not a half hour
late, as the interviewers noted, or rambled, as they also
noted, the evidence submitted does not raise into the
question the validity of the other conclusions reached
by the interviewers. They noted that he ‘‘did not provide
clear examples to resolve staff difficulties,’’ ‘‘he did not
come prepared for interview, responses were long and
drawn out but lacked substance,’’ and ‘‘displays needi-
ness for additional support in making decisions.’’ Both
interviewers concluded that they ‘‘could not determine
supervisory or leadership qualities based on
responses.’’ Interviewers of the plaintiff for promotion
in 2012 also noted that his supervisory ability was not
evident. Therefore, the plaintiff has failed to provide
evidence which would indicate that there is an issue
of fact as to whether he was the subject of discrimina-
tion in the denial of promotion.
The defendant also claims that the plaintiff cannot
establish a claim of retaliation. The court agrees. ‘‘To
establish a prima facie case of retaliation, an employee
must show (1) the employee was engaged in protected
activity; (2) the employer was aware of that activity;
(3) the employee suffered an adverse employment
action; and (4) there was a causal connection between
the protected activity and the adverse employment
action.’’ (Internal quotation marks omitted.) Darden v.
Stratford, 420 F. Supp. 2d 36, 45 (D. Conn. 2006). ‘‘Rely-
ing on Second Circuit case law, Connecticut courts have
found that [a] protected activity is an action taken to
protect or oppose statutorily prohibited discrimination.
These actions can include the filing of formal charges
of discrimination, as well as, informal protests of dis-
criminatory employment practices, including com-
plaints to management, writing critical letters to
customers, protecting against discrimination by indus-
try and expressing support of co-workers who have filed
formal charges.’’ (Internal quotation marks omitted.)
Lewis v. Golden Hawk, LLC, Superior Court, judicial
district of New Haven, Docket No. CV-12-6030233S,
2015 WL 36846666, *4 (May 20, 2015) (Nazzaro, J.). The
letter the plaintiff references as the basis for his claim
of retaliation is basically a complaint about manage-
ment. It references ‘‘managers’ malfeasance,’’ their sti-
fling of ‘‘debate, innovation and communications,’’ and
waste of resources. The letter suggests the managers
should be replaced. There is no reference to any claim
that the signatories were protesting or opposing dis-
crimination but only what they perceived as bad man-
agement. The plaintiff, in his brief in opposition to
summary judgment, characterizes the letter as raising
‘‘significant management and morale issues.’’ This does
not constitute evidence that the plaintiff opposed a
discriminatory employment practice as required to
establish a retaliation claim pursuant to § 46a-60.
CONCLUSION
The motion for summary judgment is granted.
* Affirmed. Samakaab v. Dept. of Social Services, 177 Conn. App. 52,
A.3d (2017).